ASPHALT SPECIALISTS INC V STEVEN ANTHONY DEVELOPMENT COMPANY (Per Curiam Opinion)

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STATE OF MICHIGAN COURT OF APPEALS ASPHALT SPECIALISTS, INC., UNPUBLISHED March 21, 2017 Plaintiff/Cross-Defendant, v STEVEN ANTHONY DEVELOPMENT COMPANY, GTR COMPANIES, GLACIER CLUB TWO, INC., GLACIER CLUB ONE, INC., GLACIER DEVELOPMENT COMPANY, INC., GTR BUILDERS, INC., ARLINGTON TRANSIT MIX, ROBERT F. TEMPLE, doing business as CURRENT ELECTRIC CONTRACTING, JP MORGAN CHASE, BOARD OF COUNTY ROAD COMMISSIONERS, WASHINGTON ASSOCIATES, LLC, NAGY CONCRETE COMPANY, NATIONAL CITY BANK OF THE MIDWEST, doing business as NATIONAL CITY BANK, and FEDERAL DEPOSIT INSURANCE COMPANY, Defendants/Cross-Defendants, and GTR GLACIER GOLF HOLDINGS, Defendant/CrossDefendant/Counter-Plaintiff, and GTR GLACIER CLUB, LLC, Defendant/Third-Party Defendant/Cross-Defendant, and LAKEVIEW CONTRACTING, INC., -1- No. 311947 Macomb Circuit Court LC No. 2007-001854-CK Defendant/Third-Party CounterPlaintiff-Appellee, and TONY ANGELO CEMENT CONSTRUCTION COMPANY, Defendant/Third-Party CounterPlaintiff/ Cross-Defendant, and WELLS VENTURE CORPORATION, Defendant/Counter-Plaintiff/CrossDefendant-Appellant, and A & R SEALCOATING, INC., Defendant/Counter-Plaintiff/CrossDefendant. ASPHALT SPECIALISTS, INC., Plaintiff/Cross-Defendant-Appellee, v STEVEN ANTHONY DEVELOPMENT COMPANY, GTR COMPANIES, GLACIER CLUB TWO, INC., GLACIER CLUB ONE, INC., GLACIER DEVELOPMENT COMPANY, INC., GTR BUILDERS, INC., ARLINGTON TRANSIT MIX, ROBERT F. TEMPLE, doing business as CURRENT ELECTRIC CONTRACTING, JP MORGAN CHASE, BOARD OF COUNTY ROAD COMMISSIONERS, WASHINGTON ASSOCIATES, LLC, NAGY CONCRETE COMPANY, NATIONAL CITY BANK OF THE MIDWEST, doing business as NATIONAL CITY BANK, and FEDERAL DEPOSIT INSURANCE COMPANY, -2- No. 314658 Macomb Circuit Court LC No. 2007-001854-CK Defendants/Cross-Defendants, and GTR GLACIER GOLF HOLDINGS, Defendant/CrossDefendant/Counter-Plaintiff, and GTR GLACIER CLUB, LLC, Defendant/Third-Party Defendant/Cross-Defendant, and LAKEVIEW CONTRACTING, INC., Defendant/Third-Party CounterPlaintiff-Appellee, and TONY ANGELO CEMENT CONSTRUCTION COMPANY, Defendant/Third-Party CounterPlaintiff/ Cross-Defendant, and WELLS VENTURE CORPORATION, Defendant/Counter-Plaintiff/CrossDefendant-Appellant, and A & R SEALCOATING, INC., Defendant/Counter-Plaintiff/CrossDefendant. -3- ON REMAND Before: BECKERING, P.J., and O’CONNELL and SHAPIRO, JJ. PER CURIAM. This case returns to this Court after remand by the Michigan Supreme Court, which ordered this Court to consider our previous holding regarding the reasonableness of attorney fees in this case in light of C D Barnes Assoc, Inc v Star Heaven, LLC, 300 Mich App 389; 834 NW2d 878 (2013).1 After doing so, we reverse and remand for further proceedings. I. BACKGROUND This Court has stated the pertinent facts and complex procedural history of this case in our previous opinion and will not restate them in full. Asphalt Specialists, Inc v Steven Anthony Dev Co, unpublished opinion per curiam of the Court of Appeals, issued August 7, 2014 (Docket No. 305753). In summary, Wells Venture Corporation (WVC) argued that it was not liable to pay attorney fees above those fees incurred in foreclosing the construction liens against it, but the circuit court rejected that argument and awarded fees to the contractors who foreclosed against the developer. Id. at 7. A prior panel of this Court “indicated that on remand the attorney fee award must be separated from the construction liens, and that the circuit court must assess the reasonableness of the attorney fee awards.” Id. at 6. On remand, the circuit court amended its judgment regarding the construction liens and held an evidentiary hearing regarding the reasonableness of the attorney fees. Id. at 7. WVC again appealed, and this panel affirmed, holding that the law of the case bound this Court to a prior panel’s analysis of the statutory attorney fee provisions. Id. at 12-13. Specifically, we held: The panel determined that the circuit court erred by including the attorney fees in the construction lien. The panel went on to specifically instruct the circuit court on remand to reconsider the reasonableness of the amount of the attorney fee awards in light of Smith v Khouri, 481 Mich 519, 537; 751 NW2d 472 (2008). . . . . . . WVC argues that even if the law of the case indicates that the contractors were entitled to fees, the entitlement was enforceable only against the golf course developer, not against WVC. This argument misconstrues the prior panel’s analysis. WVC was the appellant in the prior appeal. If the prior panel had determined that the attorney fee award could not be enforced against WVC, the panel would have reversed the circuit court’s initial attorney fee award without further discussion. Instead, the prior panel analyzed and resolved the issue of 1 Asphalt Specialists, Inc v Steven Anthony Dev Co, ___ Mich ___ (2017) (order issued January 27, 2017). -4- entitlement to attorney fees. We are bound by that resolution. Hill v City of Warren, 276 Mich App 299, 308; 740 NW2d 706 (2007). [Id. at 13 (citations omitted).] II. ANALYSIS In C D Barnes Assoc, this Court held that the trial court erred by combining the awarded attorney fees with the amount of a construction lien and granting priority to the combined amount. C D Barnes Assoc, 300 Mich App at 427. We reasoned that a construction lien cannot exceed the amount of the lien claimant’s contract. Id. Accordingly, it was not permissible for a court to add the amount of the attorney fees to the amount of the lien; the circuit court must award construction liens and attorney fees separately. Id. at 428. When doing so, the trial court must ensure that it is attributing its attorney-fee awards to the appropriate parties. Id. This panel previously made its decision on the basis of the law of the case doctrine. That doctrine holds that when this Court has decided a legal issue and remanded the case for further proceedings, this Court will not decide the same issue differently on a subsequent appeal in the same case. Hill, 276 Mich App at 308. A narrow exception exists when there is an intervening change in law. Freeman v DEC Intern, Inc, 212 Mich App 34, 38; 536 NW2d 815 (1995). For this exception to apply the change of law must occur after the initial decision of the appellate court. A change of law that occurs after the lower court’s decision, but before the appellate court’s decision, does not prevent the application of the law of the case doctrine. [Id. (citations omitted).] In this case, the initial panel’s decision reversing and remanding on the issue of attorney fees was issued April 19, 2011. The trial court issued its decision after remand on August 1, 2012. This Court decided C D Barnes Assoc on April 11, 2013. This panel issued our initial opinion holding that the law of the case doctrine applied on August 7, 2014. Accordingly, the change of law occurred after the lower court’s decision but before this panel’s decision, which did not prevent us from applying the law of the case doctrine in the instant case. “The doctrine is, however, discretionary and merely expresses the practice of courts generally; it is not a limit on their power.” Freeman, 212 Mich App at 37. While the change of law was not an intervening change, the law has indeed changed because parties against whom attorney fees were not fairly attributable found themselves saddled with attorney fees for the behavior of other parties. In the interests of fairness, we exercise our discretion not to apply the law of the case doctrine. We instead remand this case for the trial court to consider its award of attorney fees under C D Barnes Assoc. In doing so, the trial court must ensure that it is attributing its attorney-fee awards related to the construction liens to the appropriate parties. See C D Barnes Assoc, 300 Mich App at 428. We reverse and remand. We do not retain jurisdiction. /s/ Jane M. Beckering /s/ Peter D. O’Connell /s/ Douglas B. Shapiro -5-

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