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STATE OF MICHIGAN COURT OF APPEALS

MARK FOX and ANITA FOX, Plaintiffs-Appellants, v SHERWIN-WILLIAMS COMPANY, Defendant-Appellee.

UNPUBLISHED January 7, 2010

No. 287999 Ingham Circuit Court LC No. 07-001630-AV

Before: Talbot, P.J., and O'Connell and Davis, JJ. PER CURIAM. Plaintiffs appeal by leave granted an order affirming dismissal of their district court claims and the imposition of case evaluation sanctions. We affirm in part, vacate in part, and remand. In the spring of 2005, plaintiffs hired a contractor, Gerald Davis, to refinish their wood deck. Plaintiffs specified that Davis use a sealing product called Cuprinol, which was sold by defendant. However, Cuprinol had been discontinued and replaced by a product called DeckScrapes Waterborne Clear Stain. Plaintiffs disliked that color and specified the use of DeckScrapes Exterior Waterborne Semi-Transparent Deck Stain, which was, as it turned out, not considered a "cross over product" for Cuprinol. Davis retained a subcontractor, who performed 85 to 90 percent of the actual staining. In the spring of 2006, after the snow and ice thawed, plaintiffs observed the deck peeling and cracking. Defendant performed a laboratory test on samples taken from plaintiffs' deck, and the test showed that the product did not fail, but rather deck wood was delaminating. Plaintiffs estimated the cost of repairing the deck to be a total of approximately $4,625. Plaintiffs initiated this action in district court, alleging breach of implied warranty, breach of express warranty, and violation of three sections of the Michigan Consumer Protection Act, MCL 445.903(1)(c), (e), and (bb). A case evaluation was performed, and defendant accepted the award, but plaintiffs failed to accept or reject the award and therefore under the court rule it is a rejection. Several days after the deadline to accept or reject the award, plaintiffs moved to vacate the evaluation, alleging that it was unfair because one of the three panel members had previously owned a paint store and dominated the evaluation process. Defendant's counsel sent a copy of the motion to that panel member, who then submitted to the court an affidavit that contained the evaluation amount. Defendant then attached a copy of the affidavit to a brief, and plaintiffs filed a motion also disclosing the evaluation amount. Plaintiffs sought sanctions against defendant -1-

and recusal of the trial judge. The judge

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Michigan Law