Opinion
Docket No. 6,192.
Decided November 25, 1969.
Appeal from Wayne, Carl M. Weideman, J. Submitted Division 1 October 8, 1969, at Detroit. (Docket No. 6,192.) Decided November 25, 1969.
Complaint by Michael Artman against College Heights Mobile Park, Inc., a Michigan corporation, for breach of contract. Counterclaim for breach of contract. Summary judgment for defendant. Plaintiff appeals. Affirmed.
Hyman, Gurwin, Nachman Friedman ( Lawrence Halpern, of counsel), for plaintiff.
O'Leary, Murphy, Fregolle, Kargenian, Berg Bennett, for defendant.
Before: FITZGERALD, P.J., and McGREGOR and V.J. BRENNAN, JJ.
Plaintiff-appellant is an asphalt paving contractor who, in 1965, contracted with defendant, a mobile home park developer, to pave defendant's proposed trailer park. Plaintiff instituted suit in the Wayne county circuit court, in 1967, alleging that defendant had failed to pay plaintiff approximately $3,700. Defendant counterclaimed for breach of contract, claiming damages of $6,000. Defendant also filed a motion for summary judgment, pursuant to GCR 1963, 117.2, contending that plaintiff was not licensed by the state, as is required by the residential builders' act. MCLA § 338.1501 et seq. (Stat Ann 1968 Cum Supp § 18.86[101] et seq.). Plaintiff admitted that he was not licensed, but claimed that he is not required to be. The motion for summary judgment was granted by the trial judge without acting on defendant's counterclaim for $6,000 damages. Plaintiff raises several issues on appeal, which will be dealt with seriatim.
It is plaintiff's basic contention that he, as an asphalt paving company, working on a trailer park, is not subject to the residential builders' act. He alleges that he does not come within the purview of the act for several reasons. Plaintiff argues that he is regulated by the Michigan trailer coach park act (MCLA § 125.1001 et seq. [Stat Ann 1961 Rev and 1969 Cum Supp § 5.278(31) et seq.]), which preempts the residenital builders' act. Plaintiff states that the trailer coach park act was intended to take over the entire field of regulation and supervision of trailer parks. He cites as support Richards v. City of Pontiac (1943), 305 Mich. 666; Moorman v. State Health Commissioner (1966), 2 Mich. App. 446; and Gust v. Township of Canton (1963), 337 Mich. 137. The plaintiff did not raise this issue in the lower court. This Court will not review the matter, unless a miscarriage of justice is apparent. Snider v. Dunn (1968), 11 Mich. App. 39. Assuming, however, that this issue were raised, plaintiff incorrectly asserts that the trailer park act and the residential builders' act are inconsistent. It is obvious that the trailer park act deals with the physical requirements of a trailer park, which must be met by a trailer park developer. The residential builders' act deals with the qualifications of residential builders and residential maintenance or alteration contractors, regardless of whether they are developers. The Court concludes that, whenever two statutes may be reconciled, both must stand. Valentine v. Redford Township Supervisor (1963), 371 Mich. 138.
It is appellant's second assertion that the residential builders' act does not require the licensing of asphalt pavers working on a trailer park site. He contends that the definitional sections of that act do not mention trailers, trailer parks, or asphalt pavers of trailer parks, and that, since the legislature did not specifically enumerate trailer parks or asphalt pavers, the legislative intent was to exclude them from the scope of that act.
MCLA § 338.1502 (Stat Ann 1965 Cum Supp § 18.86[102]) Definitions. Sec. 2. "As used in this act: * * * (c) `Residential maintenance and alteration contractor' means any person who, for a fixed sum, price, fee, percentage, valuable consideration or other compensation, other than wages, undertakes with another for the repair, alteration or any addition to, substraction from, improvement of, movement of, wrecking of or demolition of a residential structure or combination of residential and commercial structure, or building of a garage, or laying of concrete on residential property, except for his own use and occupancy. The provisions of this act shall not be construed to prevent a duly licensed residential maintenance and alteration contractor from constructing an addition to an existing residential structure, or any other structure accessory to an existing residential structure." (Emphasis added.)
An examination of the act reveals that one is considered a "residential maintenance or alteration contractor" if one is involved in the "laying of concrete on residential property." Although the facts show that plaintiff was laying asphalt and not concrete, it is obvious that asphalt may be used instead of, or in addition to, concrete. The rights of consumers will not be allowed to revolve around the mere fortuitous use of the word "asphalt" as opposed to "concrete." The Court notes the impropriety which would result from protecting the homeowner from concrete layers but not from asphalt pavers, performing the same function.
Plaintiff also asserts that a trailer park or a trailer home should not be considered "residential property." If we were to accept this argument, this Court would be diametrically opposed to the avowed purpose of the statute, which is to protect the homeowner-consumer. Tracer v. Bushre (1968), 381 Mich. 282. A trailer home is no less a home because it is mobile; it is as much a home or residence as one which is stationary.
"Modern trailer parks afford modern living accommodations for many of the families in America today, and should not be classified other than dwellings or residences." Land v. City of Grandville (1966), 2 Mich. App. 681, 696, 697.
In addition, the commission which administers this act specifically requires the licensing of asphalt paving contractors under this act. Although not controlling, this is extremely persuasive.
Originally the Corporation and Securities Commission, now the Residential Builders' and Maintenance and Alteration Contractors' Board and the Department of Licensing and Regulation — REPORTER.
`"`The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not be overruled without cogent reasons.'"' Magreta v. Ambassador Steel Company (1968), 380 Mich. 514.
This Court concludes that plaintiff is includable as a residential maintenance and alteration contractor, involved in "laying of concrete on residential property." Assuming, however, that plaintiff were not properly within the above provision, he also is includable as a residential maintenance or alteration contractor, by means either of performing the "alteration or any addition to * * * improvement of * * * a residential structure * * *" Plaintiff raises the argument to support his exclusion from the residential builders' act that the occupation or trade must be performed on or appurtenant to a "structure." Plaintiff argues that the statutory definitions, "residential builder" and "residential maintenance or alteration contractor" both refer to a party who is working on a "residential structure or combination of residential and commercial structure * * *" He reasons that, since he did not work on a "structure" but only on land on which there were no structures, he is not properly includable within the statute. The Court's examination of MCLA §§ 338.1501-338.1504, indicates that the work need not necessarily be performed on a "structure." The statute currently includes "swimming pools, concrete work, and masonry work." From this, the Court concludes that the important criterion for coverage by the statute is not the existence or type of structure, but rather the nature of its occupancy. This interpretation is in harmony with that of the Supreme Court, that the residential builders act is essentially a "consumer protection measure." Tracer v. Bushre, supra.
The commission, upon application, may issue a residential maintenance and alteration contractor's license to any applicant who, upon written examination, shall qualify therefor, which shall authorize the licensee according to his qualifications, crafts and trades to engage in the activities of a residential maintenance and alteration contractor. Licenses shall include the following crafts and trades, but not be limited thereto: Carpentry, concrete work, electrical work, garage building, swimming pools, waterproofing basements, excavation and sewer installation, heating and air conditioning installation, insulation work, lathing, masonry work, painting and decorating, plastering, plumbing work, roofing and siding, screens and storm sash installation, sheet metal work, tile and marble work, house moving and raising and house wrecking." (Emphasis supplied.) MCLA 1970 Cum Supp § 338.1504, Stat Ann 1970 Cum Supp § 18.86 (101).
Our legislature, at least as long ago as 1953, has mandated the licensing of builders and trade contractors who concern themselves not only with a residential structure but any combination of residential and commercial structures as well. PA 1953, No 208, § 2(b) and 2(c), and the current PA 1965, No 383, § 2(b) and 2(c). The Michigan Supreme Court, in Alexander v. Neal (1961), 364 Mich. 485, had an occasion to examine and analyze this prior statute. In considering the then existing pertinent provisions of PA 1953, No 208, Justice TALBOT SMITH said (pp 489, 490), responding to the argument that apartment dwellers were not home owners:
"Thus it is clear from the definitions employed in the act itself that the `home owners' here sought to be protected are not simply the owners of the traditional vine-covered cottages, but comprehend as well the owners of today's combined residential and commercial structures."
The structure in question in the Neal case was an apartment house building, in which the first floor was rented by stores. Analogously, a trailer park ought to be included.
For the reasons herein stated, the trial court's decision is affirmed. Having decided the above issues, as we do, other alleged errors are rendered moot. Costs to appellee.
All concurred.