HA SMITH LUMBER & HARDWARE CO. v. Decina

745 N.W.2d 774, 480 Mich. 1132

• Court: Michigan Supreme Court
• Decided: March 21, 2008
• Docket: 128560
• Status: Published

Opinion

745 N.W.2d 774 (2008)

H.A. SMITH LUMBER & HARDWARE CO., Plaintiff/Counter-Defendant/Appellee,
v.
John DECINA, Defendant/Cross-Defendant/Appellant, and
John Decina Development Co., Third Party Defendant/Cross-Defendant/Counter-Plaintiff/Appellant, and
Linas P. Gobis and Lydia K. Gobis, Defendants/Cross-Plaintiffs/Cross-Defendants/Counter-Defendants/Appellees, and
William Gardella d/b/a Williams Glass Co., Defendant/Counter-Plaintiff/Cross/Plaintiff/Third Party Plaintiff/Appellee.

Docket No. 128560. COA No. 238521.

Supreme Court of Michigan.

March 21, 2008.

On order of the Court, the motion for reconsideration of this Court's December 20, 2007 order is considered, and it is GRANTED. On reconsideration, we REMAND this case to the Oakland Circuit Court to determine whether plaintiff H.A. Smith Lumber & Hardware Company can recover attorney fees under its contract with defendant John Decina. Although attorney fees were not recoverable under the Construction Lien Act (CLA), MCL 570.1101 et seq., as held in our decision in this case, 480 Mich. 987, 742 N.W.2d 120 (2007), they may be recoverable under the contract between the parties.

MARILYN J. KELLY, J., concurs and dissents and states as follows:

I concur in the decision to grant the motion for reconsideration. But I dissent from the decision to remand the case to the trial court to consider whether plaintiff H.A. Smith Lumber & Hardware Company can recover attorney fees. I would reinstate the award of attorney fees for the reasons stated in Justice Cavanagh's dissenting statement in this case, 480 Mich. 987, 988, 742 N.W.2d 120 (2007).

MICHAEL F. CAVANAGH, J., joins the statement of MARILYN J. KELLY, J.

WEAVER, J., would grant reconsideration and, on reconsideration, would grant leave to appeal.