If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ECI ENVIRONMENTAL CONSULTANTS AND 

ENGINEERS, LLC,

Plaintiff-Appellant,

UNPUBLISHED

March 30, 2023

v No. 361803

Oakland Circuit Court

HOUSE OF PROVIDENCE and ASSEMBLIES OF 

GOD LOAN FUND,

LC No. 2020-185003-CB

Defendants-Appellees.

Before: CAVANAGH, P.J., and MARKEY and BORRELLO, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court order granting summary disposition to 

defendant1, House of Providence (HOP), under MCR 2.116(C)(8). Plaintiff alleges that it filed a 

complaint for breach-of-contract as well as to foreclose on a construction lien against defendant’s 

property based on defendant’s alleged refused to pay plaintiff the cost of its labor on defendant’s 

property from June 2019, to August 2020. In this appeal, plaintiff contends the trial court erred in 

granting defendant summary disposition. For the reasons set forth in this opinion, we reverse the 

grant of summary disposition in favor of defendant and remand the matter to the trial court for 

further proceedings consistent with this opinion.

I. BACKGROUND

This appeal arises from work defendant allegedly performed to plaintiff’s property and the 

extent to which the parties had an agreement as to the scope and amount of work to be performed 

by plaintiff. Defendant contracted with plaintiff in April 2017, to provide environmental 

 

1 Although plaintiff named Assemblies of God Loan Fund (AGLF) in its appeal, plaintiff only 

appealed the trial court’s grant of summary disposition to House of Providence and not the earlier 

grant of summary disposition to Assemblies of God Loan Fund. Therefore, references to 

“defendant” will be limited to House of Providence.
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consulting services on defendant’s property, including preparing a plan acceptable to the Michigan 

Department of Environmental Quality (MDEQ). Defendant sought to develop the subject property 

to remove toxins from the land and to facilitate the building of a foster home for at-risk youth. In 

June 2020, Oakland County was awarded a Brownfield Grant to fund defendant’s redevelopment 

project by the Michigan Department of Environment, Great Lakes, and Energy (EGLE). Although 

there is a discrepancy on when plaintiff asserts defendant stopped paying for plaintiff’s labor, 

plaintiff contends defendant has not compensated it for the work done on the property from June 

2019 to August 2020. Defendant does not contest that plaintiff provided services, but contests it 

authorized plaintiff to continue working until August 2020. 

Plaintiff obtained a construction lien on the property to obtain the outstanding balance it 

alleged it was owed. Soon after, plaintiff filed a complaint against defendant to foreclose on the 

construction lien under the Construction Lien Act (CLA), MCL 570.1101 et seq. and a claim for 

breach of contract. 

Defendant moved for summary disposition under MCR 2.116(C)(8) and MCR 

2.116(C)(10). It argued plaintiff failed to state a claim for which relief may be granted because 

the property involves a residential structure and plaintiff did not provide an improvement as 

required under the relevant statutory provisions, citing MCL 570.1114. Defendant also alleged 

there was no written contract. Plaintiff responded that a written contract was not required, relying 

on its 2017 letter of engagement with defendant and an alleged oral contract, citing MCL 570.1107. 

Defendant also alleged that plaintiff’s services did constitute an “improvement” as contemplated 

and defined by MCL 570.1104(6). The trial court granted defendant summary disposition under 

MCR 2.116(C)(8). The trial court also denied plaintiff’s motion for reconsideration. This appeal 

followed. 

II. ANALYSIS

A. CONSTRUCTION LIEN

In its appeal, plaintiff contends the trial court erred in granting summary disposition to 

defendant under MCR 2.116(C)(8) on two bases. First, plaintiff argues the trial court erred in 

relying on the wrong statutory provisions in its dismissal of plaintiff’s request to foreclose on the 

construction lien. Second, plaintiff asserts the trial court erred in granting summary disposition in 

favor of defendant by failing to recognize plaintiff’s implicit allegation of a breach-of contract 

claim in its complaint.

Defendant argues that summary disposition was justified because the subject property 

involves a residential structure, and plaintiff failed to sign a written contract. As a consequence,

defendant argued, plaintiff cannot sustain the propriety of its construction lien or its enforcement. 

Further, even if the subject property is not a residential structure, environmental consulting 

services are not construed as an improvement on the land as contemplated by the statutory scheme. 

Defendant also disputes plaintiff’s contention that it adequately pleaded a breach-of-contract claim 

that would separately sustain the litigation. 

Our appellate courts review a decision on a motion for summary disposition de novo. ElKhalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). “De novo review 
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means that we review the legal issue independently, without required deference to the courts 

below.” Wright v Genesee County, 504 Mich 410, 417; 934 NW2d 805 (2019). 

A court may grant a motion for summary disposition under MCR 2.116(C)(8) if “[t]he 

opposing party has failed to state a claim on which relief can be granted.” MCR 2.116(C)(8). In 

El-Khalil, 504 Mich at 159-160, our Supreme Court stated:

A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on 

the factual allegations in the complaint. When considering such a motion, a trial 

court must accept all factual allegations as true, deciding the motion on the 

pleadings alone. A motion under MCR 2.116(C)(8) may only be granted when a 

claim is so clearly unenforceable that no factual development could possibly justify 

recovery. [Citations and emphasis omitted.] 

“A party may not support a motion under subrule (C)(8) with documentary evidence such as 

affidavits, depositions, or admissions.” Dalley v Dykema Gossett, PLLC, 287 Mich App 296, 305; 

788 NW2d 679 (2010). “When considering such a motion, the trial court must rely only on the 

pleadings.” Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994), citing MCR 

2.116(G)(5). “When an action is based on a written contract, it is generally necessary to attach a 

copy of the contract to the complaint. MCR 2.113(F). Accordingly, the written contract becomes 

part of the pleadings themselves, even for purposes of review under MCR 2.116(C)(8).” Laurel 

Woods Apartments v Roumayah, 274 Mich App 631, 635; 734 NW2d 217 (2007). Further, 

“[q]uestions regarding the interpretation and application of statutes, including the Construction 

Lien Act, are reviewed de novo on appeal.” Stock Bldg Supply, LLC v Parsley Homes of Mazuchet 

Harbor, LLC, 291 Mich App 403, 406; 804 NW2d 898 (2011).

“The Construction Lien Act has been held to have two purposes: (1) protecting the rights 

of lien claimants to payment for wages and materials and (2) protecting owners from paying twice 

for such services.” Old Kent Bank of Kalamazoo v Whitaker Constr Co, 222 Mich App 436, 438-

439; 566 NW2d 1 (1997), lv den 457 Mich 858 (1998). “It is to be liberally construed ‘to secure 

the beneficial results, intents, and purposes’ of the act.” Stock Bldg Supply, LLC, 291 Mich App 

at 407, citing MCL 570.1302(1)2. 

MCL 570.1107(1) states: 

 

2 MCL 570.1302, states:

(1) This act is declared to be a remedial statute, and shall be liberally construed to 

secure the beneficial results, intents, and purposes of this act. Substantial 

compliance with the provisions of this act shall be sufficient for the validity of the 

construction liens provided for in this act, and to give jurisdiction to the court to 

enforce them.

(2) This act shall not be construed to prevent a lien claimant from maintaining a 

separate action on a contract.
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Each contractor, subcontractor, supplier, or laborer who provides an 

improvement to real property has a construction lien upon the interest of the owner 

or lessee who contracted for the improvement to the real property, as described in 

the notice of commencement given under section [MCL 570.1]108 or [MCL 

570.1]108a, the interest of an owner who has subordinated his or her interest to the 

mortgage for the improvement of the real property, and the interest of an owner 

who has required the improvement. A construction lien acquired pursuant to this 

act shall not exceed the amount of the lien claimant’s contract less payments made 

on the contract. [Footnote omitted.]

The CLA defines the term “contract” to mean “a contract, of whatever nature, for the providing of 

improvements to real property, including any and all additions to, deletions from, and amendments 

to the contract.” MCL 570.1103(4). As is generally recognized: 

When construing statutory language, the court must read the statute as a whole and 

in its grammatical context, giving each and every word its plain and ordinary 

meaning unless otherwise defined. Effect must be given to every word, phrase, and 

clause in a statute, and the court must avoid a construction that would render part 

of the statute surplusage or nugatory. If the language of a statute is clear and 

unambiguous, the statute must be enforced as written and no further judicial 

construction is permitted. Generally, when language is included in one section of 

a statute but omitted from another section, it is presumed that the drafters acted 

intentionally and purposely in their inclusion or exclusion. The courts may not read 

into the statute a requirement that the Legislature has seen fit to omit. [LeFever v

Matthews, 336 Mich App 651, 662-663; 971 NW2d 672 (2021).]

Accordingly, in order to state a valid claim under the CLA, plaintiff must have pleaded 

there was a contract, “of whatever nature,” which authorized plaintiff to provide an “improvement” 

on the property through August 2020. In turn, MCL 570.1104(6) defines “improvement” as 

the result of labor or material provided by a contractor, subcontractor, supplier, or 

laborer, including, but not limited to, surveying, engineering and architectural 

planning, construction management, clearing, demolishing, excavating, filling, 

building, erecting, constructing, altering, repairing, ornamenting, landscaping, 

paving, leasing equipment, and installing or affixing a fixture or material, pursuant 

to a contract.

The CLA separately defines “actual physical improvement,” which excludes certain 

activities or work. “Actual physical improvement” is defined as: 

[T]he actual physical change in, or alteration of, real property as a result of labor 

provided, pursuant to a contract, by a contractor, subcontractor, or laborer which is 

readily visible and of a kind that would alert a person upon reasonable inspection 

of the existence of an improvement. Actual physical improvement does not include 

that labor which is provided in preparation for that change or alteration, such as 

surveying, soil boring and testing, architectural or engineering planning, or the 

preparation of other plans or drawings of any kind or nature. Actual physical 
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improvement does not include supplies delivered to or stored at the real property. 

[MCL 570.1103(1).]

Plaintiff argues, in dismissing the validity or enforcement of its construction lien claim, the 

trial court improperly relied on MCL 570.1114, which states, in relevant part:

A contractor does not have a right to a construction lien on the interest of an owner 

or lessee in a residential structure unless the contractor has provided an 

improvement to the residential structure under a written contract between the owner 

or lessee and the contractor and any amendments or additions to the contract are 

also in writing.

Instead, plaintiff contends the trial court should have relied on the language of MCL 570.1118, an 

enforcement provision, which states, in relevant part:

(1) An action to enforce a construction lien through foreclosure shall be brought in 

the circuit court for the county where the real property described in the claim of 

lien is located. . . . An action to enforce a construction lien through foreclosure is 

equitable in nature. . . .

(2) In an action to enforce a construction lien through foreclosure, the court shall 

examine each claim and defense that is presented and determine the amount, if any, 

due to each lien claimant or to any mortgagee or holder of an encumbrance and 

their respective priorities. The court may allow reasonable attorneys’ fees to a lien 

claimant who is the prevailing party. The court also may allow reasonable 

attorneys’ fees to a prevailing defendant if the court determines the lien claimant’s 

action to enforce a construction lien under this section was vexatious.

Here, plaintiff did not undertake work for defendant related to the existing residential 

structure(s) on the property. Rather, the work was to prepare the physical site or land, through 

remediation of hazardous substances, to achieve suitability for future construction and use of the 

property to house children. Accordingly, the trial court’s reliance of MCL 570.1114 was improper.

Rather, the definitions of MCL 570.1107(1), regarding the rights of a contractor “who provides an 

improvement to real property” to a construction lien, in conjunction with MCL 570.1104(6) 

defining the types of labor that provide an “improvement” to property, are more appropriate to

apply to the work performed by plaintiff. When viewed with the statutory definition of a 

“contract,” which indicates a “contract” can be “of whatever nature,” as long as it “provides an 

improvement to real property,” MCL 570.1103(4), there is, at a minimum, a question of fact as to 

whether plaintiff’s alleged work would be sufficient to qualify for a construction lien. We note 

that while MCL 570.1114 requires a written contract, MCL 570.1104(6) does not include a written 

requirement in its definition of a contract. “Generally, when language is included in one section 

of a statute but omitted from another section, it is presumed that the drafters acted intentionally 

and purposely in their inclusion or exclusion.” LeFever, 336 Mich App at 662-663. As such, the 

trial court erred in granting summary disposition under MCR 2.116(C)(8) on the basis of its 

misapprehension regarding the applicability and requirements of MCL 570.1114, to the exclusion 

of other provisions.
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Defendant also argued in the trial court and in its appeal that plaintiff did not provide an 

“improvement” on the subject property as contemplated by the statute, precluding foreclosure of 

the construction lien. Under the CLA, the term:

“Improvement” means the result of labor or material provided by a contractor, 

subcontractor, supplier, or laborer, including, but not limited to, surveying, 

engineering and architectural planning, construction management, clearing, 

demolishing, excavating, filling, building, erecting, constructing, altering, 

repairing, ornamenting, landscaping, paving, leasing equipment, and installing or 

affixing a fixture or material, pursuant to a contract. [MCL 570.1104(6).]

In order to assist the trial court on remand, we remind the trial court to take into 

consideration:

When a statute uses a general term followed by specific examples included within 

the general term . . . the canon of statutory construction ejusdem generis applies. 

This canon gives effect to both the general and specific terms by treating the 

particular words as indicating the class, and the general words as extending the 

provisions of the statute to everything embraced in that class, though not 

specifically named by the particular words. [Huggett v Dep’t of Natural Resources, 

464 Mich 711, 718; 629 NW2d 915 (2001) (citation and quotation marks omitted).]

We additionally note that by using “including, but not limited to” in the provision of 

examples of conduct that constitute the type of labor (or materials) that comprise or lead to an 

“improvement,” in the language of MCL 570.1104(6), the term “improvement” is broad in its 

meaning. We further note that the phrases “surveying” and “engineering and architectural 

planning” in MCL 570.1104(6) are instructive. Both forms of this type of labor involve expert 

services that provide the owner of the real property with greater insight or options on how to 

develop their property, and is defined in MCL 570.1106(2):

“Professional services” means services that are customarily and legally performed 

by or under the supervision or responsible control of design professionals in the 

course of their professional practice, including, but not limited to, programming, 

planning, surveying, site investigation, analysis, assessment, design, preparation of 

drawings and specifications, and construction administration services. 

Given the specific terms, “surveying” and “engineering and architectural planning” 

contained within MCL 570.1104(6) allude to similar forms of labor engaged in by plaintiff, 

allowing an inference, and therefore a question of fact as to whether plaintiff’s labor is 

contemplated by the statute. Huggett, 464 Mich at 718. “[S]urveying” and “engineering and 

architectural planning” involve the labor of experts providing an owner of real property with 

greater insight on how to develop its land. See MCL 507.1106(2). Arguably, the 2017 letter of 

engagement stated plaintiff’s services were intended to assist defendant in developing the subject 

property for the benefit of building “residential housing and services for foster care children.” 

Notably, the invoices submitted by plaintiff alleging the amounts owed, and Table 1 of the draft 

Brownfield Grant Work Plan provide detail of the work performed and associated fees. 
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From our review of the record, we conclude that plaintiff’s work can best be described as 

an essential step in preparing defendant’s land and structures for its stated purpose of housing 

children. As such, plaintiff’s environmental consulting services could be construed as an 

“improvement,” as contemplated by MCL 570.1104(6). Arguably, the broader language or 

application of MCL 570.1104(6) is buttressed by the very specific language of MCL 570.1103(1)’s 

definition of an “actual physical improvement,” suggesting there is a recognition and distinction 

to be made. As such, the trial court erred when it granted defendant’s summary disposition under 

MCR 2.116(C)(8), in reliance on MCL 570.1114. 

B. BREACH OF CONTRACT

Initially, it would seem the parties do not dispute some form of working or contractual 

relationship. However, the parties dispute whether plaintiff impliedly pleaded a breach-of-contract 

cause of action. In its appeal, plaintiff argues the trial court erred when it disregarded its implied 

breach-of-contract claim in its complaint and amended complaint, further stating that it was not 

required to specifically name the causes of action under which it was proceeding. Plaintiff is 

correct in its assertion that the court rules do not require a party to specifically name the causes of 

actions under separate counts. MCR 2.111(B)(1) only requires: 

(1) A statement of the facts, without repetition, on which the pleader relies in stating 

the cause of action, with the specific allegations necessary reasonably to inform the 

adverse party of the nature of the claims the adverse party is called on to defend; 

and

(2) A demand for judgment for the relief that the pleader seeks. 

The trial court did not specifically address the breach-of-contract claim in its order granting 

defendant summary disposition. Rather, in granting summary disposition under MCR 2.116(C)(8), 

and in reliance on MCL 570.1114, the trial court foreclosed amendment of plaintiff’s complaint, 

finding “an amendment here would not be justified.” On the basis of the trial court’s language, 

the futility of amendment was related to the inability to amend the complaint to alleviate the factual 

deficiencies necessary to meet the statutory requirements of MCL 570.1114, regarding a written 

contract, which we have concluded was erroneous. 

“In Michigan, the essential elements of a valid contract are (1) parties competent to 

contract, (2) a proper subject matter, (3) a legal consideration, (4) mutuality of agreement, and (5) 

mutuality of obligation.” Thomas v Leja, 187 Mich App 418, 422; 468 NW2d 58 (1991). 

In its complaint, plaintiff references two forms of alleged contracts that authorized 

plaintiff’s work, specifically the 2017 letter of engagement and an oral contract. The 2017 letter 

of engagement states, in relevant part:

These services are intended to allow you to achieve your goal to provide residential 

housing and services for foster care children on the subject property. 

ECI will review all previous documentation available on the subject 

property, conduct a site reconnaissance, contact/meet with the Deputy 

Superintendent of Oxford, and meet with the Michigan Department of 
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Environmental Quality (MDEQ) Analyst who has authority over the site. Based 

upon information obtained from these sources, ECI will design a plan that is 

acceptable to MDEQ and that will allow you to build and further develop the 

property. The plan will include estimated hours required for its completion. Prior 

to implementation, the plan will be submitted to you for your approval and 

authorization to proceed. Subsequent to your approval, the plan will be 

implemented. 

The immediate tasks are estimated to consume approximately 10 to 12 

hours. Billing for all tasks will be at ECI’s standard billing rate of $195.00 per 

hour. Travel is invoiced at $0.67/mile. An invoice detailing work activities will be 

submitted to you on the 4th Thursday of each month with payments due within 15 

days of receipt of invoice. 

The 2017 letter of engagement is of limited value to establish a contract that covers the 

charges and work alleged by plaintiff to have been performed over an extended period of time. 

Rather, the letter of engagement is more a discussion of the purpose for the work and the types of 

work that plaintiff will perform. Additionally, the 2017 letter of engagement specifically limits 

performance to “immediate tasks,” the anticipated amount of time necessary to complete those 

tasks, and the amount to be paid on an hourly basis. The letter of engagement also specifies that 

invoices should be submitted on a monthly basis, with payment due within 15 days. This factor is 

relevant because of plaintiff’s contention that its oral contract with defendant specifically involved 

alternative or modified terms that payments would not be required until a later point, when the 

grant had been obtained. As such, this document, standing alone, would be insufficient to create 

an obligation by defendant in the outstanding amount claimed by plaintiff of $287,803.30, or to 

even explain the undisputed payment by defendant to plaintiff of at least $152,071.30. 

As such, the issue arises as to whether the parties had an oral contract that is enforceable 

for purposes of the construction lien.

3

 This Court has explained:

In analyzing oral statements for contractual implications, a court must determine 

the meaning that reasonable persons might have attached to the language. In order 

to determine whether there was mutual assent to a contract, the court applies an 

objective test, looking to the expressed words of the parties and their visible acts. 

The court considers the relevant circumstances surrounding the transaction, 

including all writings, oral statements, and other conduct by which the parties 

manifested their intent. [Barber v SMH(US), Inc, 202 Mich App 366, 369-370; 509 

NW2d 791 (1993) (quotation marks and citations omitted).] 

There are a number of documents and memorandum that support the existence, at the very 

least, of an ongoing relationship and work to be performed between the parties. We note the 

September 26, 2019 writing setting forth defendant’s grant of access to plaintiff and others to the 

property related to the application to secure the Brownfield Grant. Further, on August 7, 2020, a 

 

3 We recognize that in making a determination on the validity of the alleged oral contract, such a 

determination may be impacted by MCL 566.132(2)(1)(a), which indicates a contract is void if it 

cannot “be performed within 1 year from the making of the agreement.” 
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draft of the Brownfield Grant Work Plan was prepared, the completion or development of which 

was pertinent to the 2017 letter of engagement, and identifying work to be performed by plaintiff.

Defendant’s e-mail on August 26, 2020, foreshadowed the termination of defendant’s relationship 

with plaintiff, unless a formal, written contract was effectuated: “HOP appreciates all your prior 

hard work and effort, but before you proceed any further and as previously and repeatedly 

requested of ECI, we need ECI to execute and return the contract.” Termination of a working 

relationship necessarily implies the existence of such a relationship. Lance Stokes, plaintiff’s sole 

officer and employee, asserted, in an affidavit, despite the absence of a writing, that defendant 

instructed plaintiff to continue its work and efforts on defendant’s behalf. On October 5, 2020, 

having failed to receive a signed contract from plaintiff, defendant retained another firm as its 

environmental services consultant going forward. This prompted plaintiff to respond, on October 

15, 2020, with an invoice for unbilled services performed for defendant, seeking payment, and 

precipitating the filing of the construction lien.

Next, we address whether there exists within this record material questions of fact as to 

whether plaintiff has established a claim for breach-of-contract. To establish a breach-of-contract 

claim plaintiff must have alleged “(1) there was a contract (2) which the other party breached (3) 

thereby resulting in damages to the party claiming breach.” Miller-Davis Co v Ahrens Constr Inc, 

495 Mich 161, 178; 848 NW2d 95 (2014), reh den 495 Mich 998 (2014). Our review of this matter 

is made difficult by plaintiff’s inarticulate pleadings. While the clear focus of the complaint is on 

the construction lien, albeit indirectly, plaintiff does allege in paragraph 9 of the amended 

complaint that it was “retained” by defendant, and performed services for defendant in paragraph 

10. Plaintiff alleged defendant refused to pay for those services in paragraph 13. In Paragraph 16, 

plaintiff asked for a money judgment, statutory attorney fees (MCL 570.1118(2)), and a judgment 

of foreclosure on the construction lien. While not explicitly stated using the terms breach-ofcontract, use of the term “retained,” coupled with the identification of a fee-for-service relationship 

that was not properly terminated or fulfilled, having failed to provide required remuneration, is 

sufficient notice of a breach-of-contract claim. MCR 2.111(B)(1).

Consequently, on remand the trial court will need to address the alternative statutory 

provisions set forth in this opinion coupled with the ability of plaintiff to establish a contractual 

obligation and its parameters. Along with such considerations, the trial court should revisit the 

question of whether to permit amendment of plaintiff’s complaint to include a more specific claim 

of breach-of-contract.

Given our determination of the need to reverse the trial court’s grant of summary 

disposition to defendant, and our remand to that court for further proceedings consistent with this 

opinion, we need not consider plaintiff’s remaining arguments on appeal.
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Reversed and remanded. We do not retain jurisdiction. No costs are awarded. MCR 

7.219(A).

/s/ Mark J. Cavanagh 

/s/ Jane E. Markey 

/s/ Stephen L. Borrello