NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 09a0167n.06

Filed: February 27, 2009

Nos. 07-1885, 07-1946

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHAEL E. TINDALL,

Plaintiff-Appellant/Cross-Appellee,

v.

ONE 1973 FORD MUSTANG (VIN 3F03F139034);

DAN CUNNINGHAM; GARY GUTHRIE;

GUTHRIE, INC., a California corporation, jointly

and severally,

Defendants-Appellees/Cross-Appellants.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF MICHIGAN

M E M O R A N D U M

O P I N I O N

BEFORE: KEITH, COLE, and McKEAGUE, Circuit Judges.

PER CURIAM. In August 2005, plaintiff Michael E. Tindall, a Michigan attorney,

purchased a 1973 Ford Mustang in an online auction from defendants Guthrie, Inc., Gary Guthrie,

and Dan Cunningham, all ofCalifornia, for $10,300. When the vehicle delivered one week later was

unaccompanied by a certificate of title and failed to match the online description of the vehicle,

Tindall attempted to rescind the deal. The sellers balked, so Tindall, proceeding pro se, sued for

rescission and damages, alleging fraud and violation of Michigan’s Consumer Protection Act. After

defendants failed to answer or otherwise respond to the complaint, Tindall obtained entry of default.

Then, having erroneously represented that his claims were for a sum certain, Tindall obtained entry

of a default judgment, by the Clerk of the Court, in the amount of $296,865. On motion of the
Nos. 07-1885, 07-1946

Tindall v. One 1973 Ford Mustang

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defendants, the district court set aside the default judgment, finding Tindall’s claims not to be for

a sum certain. The court denied the parties’ cross-motions for summary judgment and conducted

an evidentiary hearing on damages. On July 16, 2007, the court entered judgment awarding Tindall

$12,160 in damages, $3,100 in costs, and $7,800 in attorney fees. On appeal, Tindall asserts three

claims of error. In their cross-appeal, defendants challenge the award of attorney fees.

First, Tindall contends the district court erred when it denied his motion for partial summary

judgment on damages. Generally, denial of a motion forsummaryjudgment is not appealable where,

as here, the movant had a full hearing on the merits of his claims and simply obtained a judgment

less favorable than desired. See U.S. ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc.,

400 F.3d 428, 441 (6th Cir. 2005). Insofar as the denial of plaintiff’s motion for partial summary

judgment on damages may be reviewable, as Tindall argues, because the denial came in the face of

the defendants’ failure to adduce evidence creating a triable fact issue, it is reviewable only for abuse

of discretion. Hanover Ins. Co. v. American Eng’g Co., 33 F.3d 727, 730 (6th Cir. 1994). On due

consideration of the district court’s orders dated March 7, 2007, March 20, 2007, and March 23,

2007, explaining the court’s reasoning, we find no abuse of discretion. 

Second, Tindall contends he was wrongfully denied a jury trial on his claims for lost profits

and statutory damages. The district court denied both claims for relief as a matter of law, finding

insufficient evidence to sustain them. Having duly considered the record, we find no error in these

rulings.

Third, Tindall challenges the district court’s assessment of his damages. The district court

awarded Tindall rescission damages of $11,885, consisting of the $10,300 purchase price and $1,585
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Tindall v. One 1973 Ford Mustang

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in shipping and related expenses; incidental damages of $275 for towing and inspection fees; and

expert witness fees of $3,100. The district court’s reasons for denying Tindall additional recovery

for consequential damages are adequately set forth in its opinion. Tindall has set forth no persuasive

reason to disturb the court’s rulings on damages. 

Finally, the district court awarded Tindall reasonable attorney fees under the Michigan

Consumer Protection Act. Although Tindall had requested fees in the amount of $18,583.50 (52

hours at an hourly rate of $350, plus $383.50 in expenses), the court found the requested billing rate

inadequately substantiated. The court applied an hourly rate of $150 and awarded attorney fees in

the amount of $7,800. Tindall has not challenged this award, but defendants have, in their crossappeal. Defendants correctly contend that under Michigan law, a party proceeding pro se has not

incurred attorney fees and therefore cannot recover attorney fees, even if the party is a licensed

attorney. See Omdahl v. West Iron County Bd. of Educ., 733 N.W.2d 380, 386 (Mich. 2007)

(“[T]here must be separate identities between the attorney and the client, and a person who

represents himself or herself cannot recover actual attorney fees even if the pro se individual is a

licensed attorney.”); FMB-First Mich. Bank v. Bailey, 591 N.W.2d 676, 683 (Mich. App. 1998)

(“Because an attorney is an agent or substitute who acts in the stead of another, a party acting in

propria persona cannot truly be said to be an attorney for himself. It is thus impossible to incur

attorney fees when one is not represented by an attorney, i.e., someone other than the actual party.”);

Troszak v. Prantera, Nos. 280285, 282112, 2008 WL 5273547 at *4 (Mich. Ct. App. Dec. 18, 2008)

(unpublished) (“pro se parties are not eligible for attorney fee sanctions”); Hagen v. Jones-Hagen,

No. 270930, 2008 WL 902107 at *5 (Mich. Ct. App. Apr. 3, 2008) (unpublished) (“No party
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Tindall v. One 1973 Ford Mustang

Tindall contends defendants forfeited this basis for review of the attorney fees award by 1

failing to raise it below. Although defendants objected to award of attorney fees below, they did not

specifically assert Tindall’s disability as a pro se litigant. Yet, though this specific objection may

not have been preserved, we may reach it to correct the district court’s ruling because it poses a

purely legal question, the answer is clear, the parties have had a full opportunity to brief it, and our

ruling results in no unfair prejudice. See United States v. Ellison, 462 F.3d 557, 560-61 (6th Cir.

2006); Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 722 (6th Cir. 1996). 

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representing him or herself, even a party who is a licensed attorney, is entitled to attorney fees.”).1

It follows that the district court’s award of attorney fees was improper under Michigan law and must

be reversed.

Accordingly, the district court’s judgment is AFFIRMED in part. The judgment is

AFFIRMED insofar as it awards plaintiff Tindall $12,160 in damages and $3,100 in costs, but the

award of $7,800 in attorney fees is REVERSED.