                     STATE OF MICHIGAN

                       COURT OF APPEALS



ASPHALT SPECIALISTS, INC.,                      UNPUBLISHED
                                                March 21, 2017
           Plaintiff/Cross-Defendant,

v                                               No. 311947
                                                Macomb Circuit Court
STEVEN ANTHONY DEVELOPMENT                      LC No. 2007-001854-CK
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/Cross-
           Defendant/Counter-Plaintiff,

and

GTR GLACIER CLUB, LLC,

           Defendant/Third-Party
           Defendant/Cross-Defendant,

and

LAKEVIEW CONTRACTING, INC.,

                                          -1-
           Defendant/Third-Party Counter-
           Plaintiff-Appellee,

and

TONY ANGELO CEMENT CONSTRUCTION
COMPANY,

           Defendant/Third-Party Counter-
           Plaintiff/ Cross-Defendant,

and

WELLS VENTURE CORPORATION,

           Defendant/Counter-Plaintiff/Cross-
           Defendant-Appellant,

and

A & R SEALCOATING, INC.,

           Defendant/Counter-Plaintiff/Cross-
           Defendant.


ASPHALT SPECIALISTS, INC.,

           Plaintiff/Cross-Defendant-Appellee,

v                                                No. 314658
                                                 Macomb Circuit Court
STEVEN ANTHONY DEVELOPMENT                       LC No. 2007-001854-CK
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-
           Defendants/Cross-Defendants,

and

GTR GLACIER GOLF HOLDINGS,

           Defendant/Cross-
           Defendant/Counter-Plaintiff,

and

GTR GLACIER CLUB, LLC,

           Defendant/Third-Party
           Defendant/Cross-Defendant,

and

LAKEVIEW CONTRACTING, INC.,

           Defendant/Third-Party Counter-
           Plaintiff-Appellee,

and

TONY ANGELO CEMENT CONSTRUCTION
COMPANY,

           Defendant/Third-Party Counter-
           Plaintiff/ Cross-Defendant,

and

WELLS VENTURE CORPORATION,

           Defendant/Counter-Plaintiff/Cross-
           Defendant-Appellant,

and

A & R SEALCOATING, INC.,

           Defendant/Counter-Plaintiff/Cross-
           Defendant.



                                          -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-
