                         STATE OF MICHIGAN

                          COURT OF APPEALS



WINDRUSH INC.,                                                    UNPUBLISHED
                                                                  September 10, 2015
              Plaintiff-Appellant/Cross-Appellee,

v                                                                 No. 315958
                                                                  Kent Circuit Court
LEE VANPOPERING, SHAGBARK                                         LC No. 09-008274-CK
DEVELOPMENT INC., and NORTHLAND
MANAGEMENT INC.,

              Defendants-Appellees/Cross-
              Appellants.


Before: MURPHY, P.J., and SHAPIRO and RIORDAN, JJ.

PER CURIAM.

                                        ON REMAND

        We previously considered this appeal and cross-appeal and issued an opinion affirming in
full the trial court rulings. Windrush Inc v VanPopering, unpublished opinion per curiam of the
Court of Appeals, issued June 19, 2014 (Docket No. 315958). Plaintiff Windrush, Inc., then
filed for leave to appeal to the Supreme Court. In lieu of granting the application, the Supreme
Court vacated our opinion and remanded the case to us “for reconsideration in light of BC Tile &
Marble Co, Inc, 288 Mich App 576[; 794 NW2d 76] (2010)[,]” a case we had failed to consider
in our opinion.

       BC Tile addresses when a corporate officer may be held personally liable for his
company’s violation of the Michigan Builders’ Trust Fund Act (MBTFA), MCL 570.151 et seq.
After review of that decision, we reverse the trial court’s conclusion that VanPopering is not
personally liable for the damages arising out of his company’s violation of the MBTFA.

        We conclude that BC Tile does not affect the analysis or outcome of any other issue in
this case. Accordingly, the following discussion is drawn verbatim from our initial opinion,
except for Section II(B)(3), entitled “PERSONAL LIABILITY OF VANPOPERING,” and
Section III, entitled “CONCLUSION.”




                                              -1-
                                             I. FACTS

        This appeal concerns the construction of a condominium development known as the
Shagbark Condominiums (“the project”), owned by defendant Shagbark Development
(“Shagbark”). Defendant Northland, owned solely by defendant Lee VanPopering, was the
general contractor on the project. VanPopering was also the president and part owner of
Shagbark. Northland, as the general contractor on the project, entered into agreements with
plaintiff Windrush, which performed carpentry work and painting on the project. James Suschil
was the president and sole owner of plaintiff.

       At some point before the project was fully completed, financial difficulties arose and
Fifth Third Bank, the project’s principal financier, threatened to foreclose on the project. On
December 21, 2006, the project, in various stages of completion, was sold at a distressed price to
a company called Mallards Landing. In October 2005, Suschil, and by extension, plaintiff,
declared bankruptcy. Jeff Moyer was appointed bankruptcy trustee and, therefore, the sole
representative of plaintiff. Seeking money to pay off Suschil’s creditors, Moyer began pursuing
funds he believed plaintiff was owed for work completed on the project.

        On July 31, 2009, plaintiff, through Moyer, brought suit against defendants, asserting
three separate theories of liability. Plaintiff alleged that VanPopering, Shagbark, and Northland
were jointly and severally liable for (1) breach of contract, (2) violations of the [] MBTFA, and
(3) statutory conversion, MCL 600.2919a. Plaintiff requested $29,300 under the contract and
MBTFA theories, and $89,700 for statutory conversion ($29,300 x 3), a cause of action that
provides a trial court with the discretion to award treble damages. MCL 600.2919a(1); Aroma
Wines & Equip, Inc v Columbia Distrib Servs, Inc, 303 Mich App 441, 449-450; 844 NW2d 727
(2013). Plaintiff claimed that defendants failed to pay for work completed on “Building 12” and
“Building 13” of the project. Per the parties’ agreement, plaintiff was to receive $9,000 per
building, known as a “builder’s fee,” after the buildings were completed and sold, for a total of
$18,000. Plaintiff also claimed it was entitled to $11,300 under a construction lien placed on the
project by Suschil for work performed on “Unit 45.”

        Plaintiff moved for summary disposition under MCR 2.116(C)(10), which was granted
with respect to the breach of contract claim against Shagbark for $29,300, but denied as to all
other claims and all other defendants. This ruling is not challenged on appeal.

        After a three-day bench trial, the court allowed the parties to submit written closing
arguments. Plaintiff claimed that it was now owed an additional $22,500 by Northland and
VanPopering due to some “particularly damning admissions by Mr. VanPopering” made on the
last day of trial. Plaintiff cited a document, maintained by VanPopering, indicating that
VanPopering had “paid” plaintiff $22,500 after December 21, 2006. Plaintiff asserted three
separate theories as to how this $22,500 “fit” with the previously claimed $29,300 in damages.
Lastly, plaintiff asserted that, even if VanPopering or Northland paid the $22,500 to Suschil, they
still owed the money to plaintiff, because it would have been paid after Moyer had assumed
control and authority over plaintiff.

       In a written opinion, the trial court found: (1) as to breach of contract, for plaintiff against
Northland for $9,000 for the Building 13 builder’s fee, but for VanPopering against plaintiff; (2)


                                                 -2-
as to violations of the MBTFA, for plaintiff against Northland for $11,300, but for VanPopering
and Shagbark against plaintiff, and; (3) as to statutory conversion, for all defendants. The court’s
ruling was eventually reduced to a judgment for plaintiff accounting for applicable interest and
costs. From this judgment, plaintiff appealed and Northland cross-appealed. [Windrush, pp 1-2.]

                                 II. BREACH OF CONTRACT

        On appeal, plaintiff argues that defendants are liable for the $9,000 builder’s fee for
Building 12. On cross-appeal, Northland argues that the trial court erred by finding it liable to
plaintiff for the builder’s fee for Building 13.1

        “A party claiming a breach of contract must establish by a preponderance of the evidence
(1) that there was a contract, (2) that the other party breached the contract and, (3) that the party
asserting the breach of contract suffered damages as a result of the breach.” Miller-Davis Co v
Ahrens Constr, Inc (On Remand), 296 Mich App 56, 71; 817 NW2d 609 (2012), rev’d in part on
other grounds, __ Mich __ (Docket No. 145052; April 15, 2014).

        The trial court found that it was undisputed that the parties entered into a “profit
agreement,” i.e., a contract, under which plaintiff would be paid a $9,000 builder’s fee for its
work on both Buildings 12 and 13 when those buildings were completed and sold. It appears
that either a written agreement was not executed or such an agreement was not entered into the
record before this Court. However, both VanPopering and Suschil testified that plaintiff was to
receive a builder’s fee for Buildings 12 and 13 only if those buildings were completed and sold.

       The court found, based on VanPopering’s testimony, that Building 13 had been
completed and sold and that plaintiff had not been paid, thus satisfying the final two elements
necessary to establish a breach of contract against Northland, the general contractor. Indeed,
VanPopering testified at trial that plaintiff had performed the contracted work on Building 13,
that Building 13 had been completed and sold, and that plaintiff was entitled to the builder’s fee.
Accordingly, the trial court did not err by finding that Northland owed plaintiff $9,000 for its
work on Building 13 for breach of contract.

        With regard to Building 12, the court found that there was no evidence that Building 12
was ever completed and, therefore, that Northland had not breached the contract by failing to pay
plaintiff the $9,000 builder’s fee for its work on Building 12. VanPopering testified that




       1
         We review a trial court’s findings of fact in a bench trial for clear error and its
       conclusions of law de novo. A finding is clearly erroneous is there is no
       evidentiary support for it or if this Court is left with a definite and firm conviction
       that a mistake has been made. The trial court’s findings are given great deference
       because it is in a better position to examine the facts. [Chelsea Investment Group
       LLC v Chelsea, 288 Mich App 239, 250-251; 792 NW2d 781 (2010) (citations
       omitted).]




                                                -3-
Building 12 was never completed and was sold in incomplete condition.2 His assertion was
bolstered by the fact that Building 12 was sold for far less than the completed buildings.
VanPopering testified explicitly that no builder’s fees were paid unless a building was completed
and sold, i.e., there was no provision for a partial builder’s fee if either condition was not met.
This testimony is uncontroverted. Given that VanPopering and Suschil both testified that the
builder’s fee agreement provided that plaintiff would not be paid until Building 12 was
completed and sold, combined with VanPopering’s uncontroverted testimony that Building 12
was not completed and the principle that unambiguous contract provisions shall be construed as
written, see, e.g. Rory v Continental Ins Co, 473 Mich 457, 470; 703 NW2d 23 (2005), the trial
court did not err by finding that plaintiff was not owed $9,000 for its work on Building 12 for
breach of contract.3 [Windrush, pp 2-4 (footnotes in original).]

                                           III. MBTFA

              The prima facie elements of a civil cause of action brought under the
       [MBTFA] include (1) the defendant is a contractor or subcontractor engaged in
       the building construction industry, (2) a person paid the contractor or
       subcontractor for labor or materials provided on a construction project, (3) the
       defendant retained or used those funds, or any part of those funds, (4) for any
       purpose other than to first pay laborers, subcontractors, and materialmen, (5) who
       were engaged by the defendant to perform labor or furnish material for the


2
  At trial, plaintiff pointed out that VanPopering had testified, in his deposition, that Building 12
had been completed. When confronted with this inconsistency, VanPopering explained that he
had likely been mistaken and did not have the relevant information before him at that time. The
trial court accepted his explanation and found his trial testimony credible. See Peterfish v
Frantz, 168 Mich App 43, 54-55; 424 NW2d 25 (1988). After a bench trial, we defer to a trial
court’s determinations on witness credibility and the weight of the evidence. See Berger v
Berger, 277 Mich App 700, 707; 747 NW2d 336 (2008).
3
  Plaintiff’s argument that Northland admitted that plaintiff was owed $9,000 for Building 12 in
its pleadings is without merit. “[J]udicial admissions are formal concessions that have the effect
of withdrawing a fact from issue and dispensing wholly with the need for proof of that fact.”
King v Mich State Police Dept, 303 Mich App 162, 183; 841 NW2d 914 (2013) (quotation marks
and citation omitted). In its complaint, plaintiff asserted that it was entitled to the builder’s fee
for Building 12. In their answer, defendants admitted that, “absent certain intervening events,”
plaintiff would have been entitled to the builder’s fee. Plaintiff sent interrogatories, requesting
that defendants identify these “intervening events.” Defendants responded, describing unrelated
litigation and concluding that, “the project was sold at a distressed price.” While not specific,
this response can reasonably be read to indicate that Building 12 was not completed, and sold at
a distressed price. In any event, it does not constitute a specific and “formal” concession that
plaintiff was owed the builder’s fee for Building 12. See King, 303 Mich App at 183. Indeed,
plaintiff’s argument is belied by the fact that counsel for both parties repeatedly questioned
VanPopering at trial as to whether Building 12 was completed. Had defendants truly conceded
that plaintiff was owed the builder’s fee, no such questioning would have been necessary.



                                                -4-
       specific project. [DiPonio Constr Co, Inc v Rosati Masonry Co, Inc, 246 Mich
       App 43, 49; 631 NW2d 59 (2001).]

In essence, the MBTFA requires a contractor to pay its laborers, subcontractors, and materialmen
prior to keeping the funds received for a project as profit or using the funds for other, unrelated
matters. “Because the [MBTFA] . . . is remedial in nature, it should be construed liberally for
the advancement of the remedy.” Id. at 50.

                                     A. BUILDINGS 12 & 13

        VanPopering testified that Northland was the general contractor on the project and
plaintiff was a subcontractor engaged to perform work on the project, satisfying elements (1) and
(5). See id. While Suschil testified that Shagbark was the general contractor, we defer to the
factfinder’s determinations on witness credibility and the weight given to the evidence. Berger,
277 Mich App at 707. Accordingly, the trial court’s finding that Northland was the general
contractor was supported by the evidence.

        VanPopering also testified that Northland, through Shagbark, received the funds received
from the sale of the buildings in the project and that Northland retained those funds, thus
satisfying elements (2) and (3). As discussed above, plaintiff was entitled to $9,000 for its work
on Building 13. VanPopering testified that Northland never paid plaintiff that $9,000, thus
satisfying element (4). The trial court’s findings that plaintiff established all five elements of an
MBTFA violation with regard to the builder’s fee for Building 13 were supported by the
evidence and, thus, not clearly erroneous. Chelsea Investment Group, 288 Mich App at 250-251.
Accordingly, the trial court did not err by ruling that Northland violated the MBTFA by failing
to pay plaintiff the $9,000 builder’s fee for Building 13.

       The above discussion regarding elements (1), (2), (3), and (5) applies equally to Building
12. However, to establish element (4), plaintiff must prove that Northland used the funds it
received for the project without first paying plaintiff, one of its subcontractors. It goes without
saying that a subcontractor must actually be entitled to payment in order to invoke the MBTFA.
As discussed above, the evidence supported the trial court’s finding that Building 12 was never
completed and that plaintiff and Northland had a contract that did not entitle plaintiff to the
$9,000 builder’s fee for Building 12 until completion and sale. Because plaintiff was not entitled
to the builder’s fee, Northland’s use of funds received for the project for purposes other than
paying that builder’s fee was not a violation of the MBTFA. Accordingly, the trial court’s ruling
that Northland did not violate the MBTFA with regard to Building 12 was not erroneous.

                                         B. $11,300 LIEN

       The trial court also found Northland liable for an $11,300 construction lien plaintiff
placed on “Unit 45” for work completed.

        As a preliminary matter, the trial court noted that there was no evidence that plaintiff ever
waived the lien or that the lien was ever paid. See Durant Constr, Inc v Gourley, 125 Mich App
695, 698-699; 336 NW2d 856 (1983). VanPopering admitted that the lien was valid and related
to work performed on the project; indeed, it was VanPopering himself who suggested that
plaintiff obtain the lien in light of the increasing financial instability of the project.


                                                -5-
        As discussed above, plaintiff satisfied elements (1), (2), (3), and (5) of an MBTFA action
with regard to its relationship with Northland. VanPopering testified that the $11,300 lien was in
regard to work performed and materials provided on the project and that plaintiff was never paid
under the lien. Northland, at times, possessed funds with which to pay plaintiff and apparently
used those funds for other purposes. Accordingly, plaintiff established all five necessary
elements of an MBTFA violation with regard to the $11,300 lien and, therefore, the trial court
did not err by so ruling. [Windrush, pp 4-5 (footnotes in original).]

                       C. PERSONAL LIABILITY OF VANPOPERING

        Plaintiff argues that the trial court erred by refusing to hold VanPopering personally
liable for the violations of MBTFA.4 In ruling on this issue, the trial court wrote:

               The record does not support a finding that Windrush served as a
       subcontractor for Mr. VanPopering in his personal capacity. This case is
       distinguishable from People v Brown, 239 Mich App 735 (2000), which plaintiff
       cites in its brief and which involves a criminal conviction for fraudulent transfer
       or use of business funds. In Brown, the corporate officer was convicted of
       unlawfully transferring funds from a business account to her personal account,
       when subcontractors went unpaid. Id. at 738. In contrast, testimony and evidence
       presented at trial support a finding that Mr. VanPopering loaned the corporation
       money to keep it afloat and was only partially repaid after the property sale.

        The trial court applied the incorrect legal test for resolving this question. While the court
did not misstate the holding of Brown, a criminal case, it failed to recognize that the standard for
personal civil liability under the MBTFA is less exacting, as explained in BC Tile.

         In that case, the general contractor, Multi Building, whose president was Adriano
Paciocco, engaged the plaintiff, BC Tile, to supply and install ceramic tile on a project. BC Tile,
288 Mich App at 579. BC Tile sent an invoice for labor and materials in the amount of $33,813
to Multi Building, but did not receive payment. Id. BC Tile filed suit alleging that the
defendants violated the MBTFA by failing to pay it for labor and materials furnished. Id. at 580.
The trial court granted summary disposition in favor of Paciocco under MCR 2.116(I)(2), finding
that he was not personally liable for the actions of Multi Building because there was no evidence
that he personally received or misappropriated the funds. Id. at 581. We reversed summary
disposition and remanded for trial because Paciocco’s signature was on documents indicating
that Multi Building received payment for the project, out of which payment to BC Tile should
have, but was not, made. Id. at 592. We concluded that it was not necessary to show that the
Paciocco had personally benefited from that retention of funds and that the fact that a corporate
officer does not have day-to-day involvement in the project “does not absolve [him] of individual
liability.” Id. at 589.


4
  “Whether the MBTFA encompasses officers of a corporate contractor who personally
misappropriates funds is a question of statutory construction. We review questions of statutory
construction de novo.” People v Brown, 239 Mich App 735, 739; 610 NW2d 234 (2000).



                                                -6-
        VanPopering was the sole owner and president of Northland. A review of the trial
court’s findings and the record, particularly VanPopering’s own testimony, leaves no doubt that
he managed all the relevant transactions and accounts. He was responsible for all of Northland’s
financial decisions and actions. While it may be argued that his decisions were motivated by a
desire to preserve the project, BC Tile makes clear that it is participation in the decision to act in
violation of the MBTFA that controls, not whether there was a subjective intent to defraud or
obtain personal financial benefit. Accordingly, VanPopering is personally liable for the damages
awarded to plaintiff for Northland’s violations of the MBTFA.

                                            IV. $22,500

      Plaintiff claims that it was entitled to funds related to an entry in VanPopering’s
documents related to the project.

        On the final day of trial, a 28-page handwritten document was introduced titled “Lee’s
loans to Shagbark.” On the 25th page was an entry stating: “Windrush, $22,500.” VanPopering
was repeatedly questioned about the significance of this entry. Given the financial complexity of
the situation, coupled with the significant time period that had elapsed, he was unable to confirm
what the entry even signified, much less whether any monies had been paid to plaintiff pursuant
to the entry. Plaintiff’s counsel suggested at trial and now on appeal that the entry represents
either funds owed to plaintiff (possibly including parts or all of the other claims in this case) or
funds VanPopering paid to Suschil, after Moyer had been declared bankruptcy trustee, and thus
still owed to plaintiff.

       The trial court found that: “Plaintiff has not established its breach of contract claim with
respect to . . . the $22,500 that it claims was paid to Windrush or Mr. Suschil after bankruptcy
was filed.” The trial court did not clearly err by so ruling. The only evidence regarding the
$22,500 entry was VanPopering’s testimony, which did not establish to what the entry referred
or whether it signified any funds actually paid. Plaintiff points out that $22,500 is a perfect total
of two $9,000 builder’s fees for four-unit buildings and one $4,500 builder’s fee for a two-unit
building and that, if VanPopering paid plaintiff the $22,500, he must have done so by improperly
paying Suschil after Moyer became the sole representative of plaintiff. These assertions, while
conceivably true, remain speculative and, in view of the existing record, cannot establish by a
preponderance of the evidence that plaintiff was owed all or part of $22,500 based on
VanPopering’s entry. See Miller-Davis Co, 296 Mich App at 71. Accordingly, the trial court
did not err by finding that plaintiff was not entitled to relief on its claim for all or part of
$22,500. [Windrush, p 7.]

                                V. STATUTORY CONVERSION

       Lastly, plaintiff argues that the trial court erred by failing to hold VanPopering and
Northland liable for statutory conversion, MCL 600.2919a, which provides in relevant part:

              (1) A person damaged as a result of either or both of the following may
       recover 3 times the amount of actual damages sustained, plus costs and reasonable
       attorney fees:




                                                 -7-
              (a) Another person’s stealing or embezzling property or converting
       property to the other person’s own use.

The trial court found for defendants, writing:

       [T]he record does not support a cause of action for conversion. “Conversion is
       defined as ‘any distinct act of domain wrongfully exerted over another’s property
       in denial of or inconsistent with the rights therein.’” Lawsuit Financial LLC v
       Curry, 261 Mich App 579, 592-93 (2004) (quoting Foremost Ins Co v Allstate Ins
       Co, 493 Mich 378, 391 (1992)). When the claim is that defendant was under an
       obligation to return money otherwise retained, the claim is satisfied only by a
       showing that defendant was under an obligation to return the specific money
       entrusted to its care. AFSCME v Bank One, 267 Mich App 281, 295-96 (2005).
       Plaintiff has failed to satisfy its burden here. Mr. Suschil’s testimony does not
       support a finding that any money due to Windrush was received or retained
       without his consent. Second, there is no basis for finding any defendant’s [sic]
       initial possession of money retained from the sale of an individual condominium
       unit or the closing as a whole was unlawful. To the extent that plaintiff seeks
       money recovered during the sale of the condominium development, the
       [bankruptcy] trustee was apparently at this sale and approved it. While Northland
       or another defendant may have been obligated to pay Windrush, as a
       subcontractor, after receipt, this would only be from funds generally received and
       not specific money due. Plaintiff’s claim for conversion is without merit.

        We first address whether plaintiff may maintain an action for statutory conversion for
defendants’ alleged violations of the MBTFA. The parties have cited no caselaw that directly
addresses this issue. However, plaintiff suggests that our Supreme Court’s analysis of an
analogous question in Dep’t of Agriculture v Appletree Mktg, LLC, 485 Mich 1; 779 NW2d 237
(2010), should guide our decision. In that case, the Court considered “whether the remedies
provided for a breach of the Agricultural Commodities Marketing Act (ACMA) supersede . . . or
abrogate” other remedies, including statutory conversion. Id. at 3-10. “Under the ACMA, apple
distributors deduct the assessments from payments sent to producers, hold the funds in trust, and
remit the funds . . . on a periodic basis.” Id. at 5 (emphasis added). In Appletree, the plaintiff
alleged that the defendant breached the trust fund provisions of the ACMA and brought claims
under the act, as well as claims of statutory and common-law conversion. Id. This Court
concluded that the ACMA provided its own exclusive remedies and, thus, the statutory
conversion claim could not stand. Id. at 6.

        The Supreme Court reversed. Id. at 13. The Court noted that the language of the ACMA
did not prohibit cumulative remedies; indeed, the act provided its own claims “[i]n addition to
any other remedy provided by law[.]” Id. at 8-9; MCL 290.699. The Court further
acknowledged that “the specific language in the statutory conversion provision, MCL
600.2919a(2) provides that relief for a claim of statutory conversion ‘is in addition to any other
right or remedy the person may have at law or otherwise.’” Id. at 9. The Court concluded that,
“because the Legislature is capable of permitting cumulative remedies, as is the case with the
statutory language present here[,]” that “the ACMA and MCL 600.2919a clearly permit
cumulative remedies.” Id. at 13.


                                                 -8-
        Applying the rationale employed by our Supreme Court in Appletree, we conclude that
plaintiff may maintain both claims cumulatively. Like the ACMA, there is nothing in the
MBTFA to suggest that it provides the sole remedy for an MBTFA violation. Indeed, the
MBTFA itself “is a penal statute that does not expressly provide a civil cause of action.
However, our Supreme Court has long recognized a civil cause of action for violation of the
provisions of the act.” DiPonio Constr, 246 Mich App at 48. Further, like in the ACMA,
Appletree, 485 Mich at 5, a general contractor subject to the MBTFA holds its funds in trust until
its laborers, subcontractors, and materialmen are paid, DiPonio Constr, 246 Mich App at 49,
quoting Nat’l Bank of Detroit v Eames & Brown, 396 Mich 611, 622; 242 NW2d 412 (1976)
(“The purpose of the [MBTFA] is to create a trust fund for the benefit of materialmen and others
under private construction contracts”); see also Weathervane Window, Inc v White Lake Constr
Co, 192 Mich App 316, 325; 480 NW2d 337 (1991) (“The contractor holds the money paid for
the construction project as a trustee”); Blair v Trafco Prod, Inc, 142 Mich App 349, 353-354;
369 NW2d 900 (1985). Accordingly, we conclude that an action for statutory conversion may be
maintained for a violation of the MBTFA.

        Having found that an action for statutory conversion may proceed, we turn to the
application of the elements to this case. Plaintiff was obviously “damaged” by Northland’s
failure to pay the $9,000 builder’s fee for Building 13 and the $11,300 construction lien; as
discussed, these failures to pay violated the MBTFA. MCL 600.2919a(1). There is no evidence
that Northland “stole” or “embezzled” the money to which plaintiff was entitled. MCL
600.2919a(1)(a). The question remains whether Northland “converted” the money.

        “Conversion” is a legal term of art, “defined as any distinct act of domain wrongfully
exerted over another’s personal property in denial of or inconsistent with the rights therein.”
Lawsuit Financial, LLC v Curry, 261 Mich App 579, 591; 683 NW2d 233 (2004) (quotation
marks and citation omitted). “To support an action for conversion of money, the defendant must
have obtained the money without the owner’s consent to the creation of a debtor-creditor
relationship and must have had an obligation to return the specific money entrusted to his care.”
Id. (emphasis added).

        Under the MBTFA, Northland was obligated to pay plaintiff $9,000 and $11,300.
However, there is no evidence that plaintiff and Suschil did not consent to Northland receiving
the payments for the condominiums, holding the funds in trust, and then remitting payment to
plaintiff at the appropriate time. Naturally, plaintiff did not consent to Northland failing to ever
pay the owed funds; however, Northland obtained the funds with plaintiff’s consent to the
creation of a debtor-creditor relationship, id., and, therefore, the trial court did not err by ruling
that plaintiff failed to establish statutory or common-law conversion.

                                        III. CONCLUSION

        We affirm in total the trial court’s rulings concerning breach of contract, statutory
conversion, and the $22,500 issue. We also affirm the court’s conclusions that Northland
violated the MBTFA with regard to Building 13 (for $9,000) and the $11,300 construction lien,
but did not violate with regard to Building 12. We reverse the court’s ruling that VanPopering
was not personally liable for Northland’s violations of the MBTFA and remand for entry of an



                                                 -9-
order imposing personal liability on VanPopering for those violations.   We do not retain
jurisdiction.



                                                       /s/ William B. Murphy
                                                       /s/ Douglas B. Shapiro
                                                       /s/ Michael J. Riordan




                                           -10-
