COA 374581 SMITH'S DESIGNER CONSTRUCTION INC V BRYAN R ELLIS Opinion - Per Curiam - Unpublished 8/13/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
SMITH’S DESIGNER CONSTRUCTION, INC.,
Plaintiff/Counterdefendant-Appellee,
UNPUBLISHED
August 13, 2026
9:12 AM
v No. 374581
Wayne Circuit Court
BRYAN R. ELLIS and NICOLE TANYA
BRANCH-ELLIS,
LC No. 22-006097-CH
Defendants/Counterplaintiffs/Third-
Party Plaintiffs-Appellants,
and
LIBERTY BANK AND TRUST COMPANY,
Defendant,
and
READY ROOTER, LLC, EXPERT MASTER
PLUMBERS, LLC, VICTOR VIOREL PINTICAN,
and STRICKLY HEATING AND COOLING, LLC,
Third-Party Defendants-Appellees.
Before: ACKERMAN, P.J., and BAZZI and LIEVENSE, JJ.
LIEVENSE, J., (concurring in part, dissenting in part).
I agree with the majority opinion to affirm the trial court’s decision to set aside the default
the Ellises had secured against Strickly. I also agree with the majority opinion to affirm the trial
court’s dismissal of the Ellises’ negligence claim against Strickly. I disagree, however, that the
trial court’s decision should be affirmed completely.
Smith’s Designer sued the Ellises in 2022 alleging they failed to pay for contracted work
done at their home. The Ellises filed a counterclaim against Smith’s Designer and, later, filed a

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third party complaint alleging negligence and unjust enrichment claims against some of Smith’s
Designer’s subcontractors, including Strickly Heating and Cooling, LLC.
In late 2023, the Ellises secured a default against Strickly because it did not answer the
complaint. On April 2, 2024, the trial court issued an order denying the Ellises’ motion for a
default judgment and granting Strickly’s motion to set aside the default the Ellis’s had secured
against Strickly. On April 6, Strickly answered the Ellises’ complaint. Then, on April 22, Strickly
received the scheduling order in the case setting trial for May 13, 2024, which prompted Strickly
to file an emergency motion for summary disposition under MCR 2.116(C)(10) that same day.1 In
its motion, Strickly sought to dismiss the Ellis’s complaint because there was no contract between
them (instead the Ellises only had a contract with Smith’s Designer) and sought to adjourn the trial
because Strickly had not had an opportunity to engage in discovery. The trial court granted
Strickly’s motion for summary disposition under MCR 2.116(C)(10) on May 30, 2024, and
dismissed the Ellises’ complaint against Strickly.
I believe that order contained two errors. First, the trial court’s May 2024 order only
addressed the negligence claim despite the Ellises also having pleaded an unjust enrichment claim.
The trial court, however, did not address it, and only held that the Ellises’ claim “is not a tort
action, but rather a breach of contract,” and they had “no contract with [Strickly] and have shown
nothing in their contract with Smith’s [Designer] that would show a third-party obligation on the
part of Strickly.”
Second, the trial court did not give the Ellises an opportunity to amend their complaint
under MCR 2.116(I)(5), despite functionally being at the beginning of the case against Strickly,
and it made no finding that an amendment would be futile. The court set aside the default and
Strickly filed an answer the month prior. Strickly had not yet participated in discovery. And
importantly, as they argue in their brief on appeal, the Ellises may have an additional claim: for
breach of contract as a third-party beneficiary of Smith’s Designer’s contract with Strickly under
MCL 600.1405. The trial court’s conclusion in its order granting summary disposition that a
breach of contract claim “was not and could not be alleged” by the Ellises was imprecise. I
therefore respectfully dissent from part of Part III of the majority’s opinion.
None of this is to say, however, that the Ellises would be entitled to relief had we reversed.
The Ellises continued to litigate against Smith’s Designer, which included a breach of contract
claim based in part on Strickly’s alleged faulty HVAC system. After a bench trial, the trial judge
found that the Ellises owed Smith’s Designer about $16,000 and made findings that Smith’s
Designer performed its obligations under the contract, including that the HVAC system passed
1 Strickly later also sought relief under MCR 2.116(C)(8) in the alternative, but there is no need to
address this argument since the trial court relied on MCR 2.116(C)(10).

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inspection. Thus, had we remanded in part, it would have been up to the trial court to determine
whether the Ellises still had any avenue for relief considering the trial court’s findings posttrial.
/s/ Andrew J. Lievense

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