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No. 119074
| Robert
and Patricia Stokes, |
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George
N. Bashara, Jr. (313) 965-8300 |
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Plaintiffs-Appellants
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Mark
Merlanti |
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and
Cross-Appellees,
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(Appeal from Ct of Appeals) |
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(Kent -- D. Johnston)
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| Millen
Roofing Company, |
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Donald
R. Visser (616) 531-7711 |
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Defendant-Appellee
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and Cross-Appellant.
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Click to view briefs in Adobe format:
Plaintiff-Appellants Brief on
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Plaintiff-Appellants/Cross-Appellees
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Defendant-Appellee Brief on Appeal>>
Defendant-Appellee/Cross-Appellant
Brief on Appeal>>
Defendant-Appellee
and Cross-Appellant's Response to Amicus Curiae>>
Amicus Curiae Bureau of Commercial Services
Brief>>
Background
Robert and Patricia Stokes contracted with defendant Millen Roofing
Company, a Wisconsin business never licensed in Michigan, to install
a slate roof on the Stokes' home. In July 1994, after a number of disagreements,
Millen Roofing stopped work on the project, leaving behind a "punch
list" of incomplete items. Also in July 1994, Millen Roofing filed a
lien against plaintiffs' property, including $50,000 in disputed "extras."
In August 1994, the plaintiffs sued in Kent Circuit Court, seeking to
remove the lien and recover damages for what they alleged was Millen
Roofing's breach of contract. They argued that, under state law, Millen
Roofing could not impose the lien because it was an unlicensed contractor.
Millen Roofing filed a counterclaim seeking recovery of the contract
balance and an alleged extra amount of almost $53,000. Kent County Circuit
Judge Donald A. Johnston removed the lien because Millen Roofing was
not a licensed residential contractor. Ultimately, however, the judge
ruled that Millen Roofing could remove the roofing materials from the
plaintiffs' house, if Millen Roofing paid $52,934 to an escrow agent,
who would pay those funds to the plaintiffs when the roofing materials
were removed. If the plaintiffs paid $113,269 to the escrow agent, Millen
Roofing would not have the right to remove the roofing materials, but
would receive the funds placed in escrow, the trial judge stated. The
Court of Appeals affirmed in a published opinion, but said it was doing
so only because it was required to follow the precedent of Republic
Bank v Modular One LLC,
232 Mich App 444 (1998), with which the Court of Appeals panel disagreed.
Both the plaintiffs and the defendant appeal. Millen Roofing argues
that the plaintiffs are using the licensing requirement to get out of
paying for their roof. The plaintiffs contend that the trial judge's
solution was improper because he allowed an unlicensed contractor to
recover money for the project, although the contractor had no right
to impose a lien. The Bureau of Commercial Services, which has filed
a brief in the case as amicus curiae, contends the Court of
Appeals decision, if allowed to stand, will permit recovery by other
persons required to have licenses.
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