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03/25/76 SPARTAN ASPHALT PAVING COMPANY v.

March 25, 1976

SPARTAN ASPHALT PAVING COMPANY
v.
TRI-CITIES CONSTRUCTION, INC.



Appeal from Genesee, Ollie B. Bivins, Jr., J.

Danhof, P. J., and V. J. Brennan and M. J. Kelly, JJ.

SYLLABUS BY THE COURT

1. Mechanics' Liens -- Recording -- Notice -- Statutes -- Personal Service -- Posting -- Strict Compliance -- Summary Judgment.

Strict compliance, not merely substantial compliance, is mandated by a statute which requires a party recording a statement of account and lien to serve the property owner or the owner's agent with a true copy of the statment or claim within ten days of the recording and allows service by posting on the premises within five days after the lapse of the ten-day period for personal service, if the owner or agent cannot be found in the county in which the property is situated within the ten-day period; therefore, where a plaintiff served a true copy of the statement of account and lien on defendants by posting on the premises, owned by one of the defendants, seven days after the recording of the statement, because the defendants could not be found in the county, there was substantial compliance, but not strict compliance, since posting was an improper method of service prior to the lapse of the ten-day period requiring personal service, and an order for summary judgment for defendant was proper (MCLA 570.6; MSA 26.286).

2. Appeal and Error -- Ex Parte Affidavits -- Appellate Briefs.

Ex parte affidavits, filed for the first time in an appellate brief, may not serve to enlarge the record on appeal.

The opinion of the court was delivered by: Per Curiam

Complaint by Spartan Asphalt Paving Company, against Tri-Cities Construction, Inc., U.S. Realty Investments, Union Lake Associates, and Woodward Development Company to foreclose a mechanic's lien on property owned by Union Lake Associates. An order for summary judgment in favor of the defendants was entered. Plaintiff appeals.

Plaintiff appeals of right from summary judgment in favor of defendants in a suit to foreclose a mechanic's lien on property owned by the defendants.

Plaintiff brought action in Genesee County. The complaint alleged that the owner, Union Lake Associates, and Woodward Development Co., had entered into a contract with Tri-Cities Construction, Inc., to construct a shopping center and that plaintiff began furnishing asphalt materials and labor on June 12, 1973. On July 10, 1973, plaintiff served the owner with a notice of intent to claim a lien. The last of materials and labor was furnished on August 20, 1973, and on September 12, 1973, plaintiff recorded a statement of account and lien.

Seven days later plaintiff caused the statement of account and lien to be served upon the owner by posting a true copy on the premises owned by defendant Union Lake Associates in Fenton. On March 21, 1974, plaintiff recorded a copy of the proof of service and a true copy of the statement of account and lien with the Genesee County Register of Deeds.

Defendants moved for summary judgment on the ground that plaintiff had not complied with MCLA 570.6; MSA 26.286. In an opinion dated July 19, 1974, the trial court held that the statute mandated strict compliance and that plaintiff had failed to comply with the posting provisions, which was deemed fatal to the attachment of the lien.

MCLA 570.6; MSA 26.286 provides in pertinent part:

"Every person recording such statement or account as provided in the preceding section, except those persons contracting or dealing directly with the owner, part owner or lessee of such premises, shall within 10 days after the recording thereof, serve on the owner, part owner or lessee of such premises, if he can be found within the county or in case of his absence from the county, on his agent having charge of such premises, within the county wherein the property is situated, a copy of such statement or claim; but if neither of such persons can be found within the county where such premises are situated, then such copy shall be served by posting in ...


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