H.A. SMITH LUMBER & HARDWARE CO.
v.
DECINA
No. 125193.
Supreme Court of Michigan.
November 29, 2004.SC: 125193, COA: 238521.
On order of the Court, the application for leave to appeal the September 16, 2003 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we VACATE Part V of the Court of Appeals decision, which affirms the attorney fees awards and rules that they were granted pursuant to MCL 570.1118(2). The Court of Appeals clearly erred by finding that the Oakland Circuit Court's "final order stated that attorney fees were awarded against Decina pursuant to the CLA [Construction Lien Act, MCL 570.1101 et seq.]" 258 Mich.App. 419, 428-429 n 3, 670 N.W.2d 729 (2003). The attorney fee awards in the November 7, 2001 Oakland Circuit Court judgment neither refer to nor rely upon the CLA. The case is REMANDED to the Court of Appeals for further consideration consistent with this order. The Court of Appeals, on remand, may, while retaining jurisdiction, remand the case to the Oakland Circuit Court for additional proceedings or hearings, if necessary. In all other respects, leave to appeal is DENIED.
We do not retain jurisdiction.