UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

JAY LOY, 

 Plaintiff, 

 Case Number 09-12728-BC 

v. Honorable Thomas L. Ludington 

 

B & P PROCESS EQUIPMENT & 

SYSTEMS, L.L.C., 

 

 Defendant. 

______________________________________ / 

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY FEES

 In this dispute between a salesman and his former employer over an unpaid commission 

and bonus, the Court concluded that the salesman was entitled to judgment on both the 

commission and bonus, as well as additional damages pursuant to the Michigan Sales 

Representative Commission Act, Mich. Comp. Laws § 600.2961 (“Act”). The salesman, 

Plaintiff Jay Loy, now moves for attorney fees and costs as the “prevailing party” under the Act. 

ECF No. 43. The former employer, Defendant B&P Process Equipment & Systems, L.L.C., 

contends that Plaintiff is not the prevailing party because he referenced three commissions at 

trial, but did not recover payments for them. Plaintiff’s motion will be granted. 

I. 

Defendant manufactures, installs, and services commercial mixing systems in a variety of 

industries. Defendant hired Plaintiff as a salesman in 2005 and promoted him to an account 

manager on January 31, 2008. Also on January 31, 2008, Plaintiff and Defendant executed a 

contract that provided for a base salary, commissions for all sales, and bonus commissions for 

sales that exceeded yearly targets. The bonus provision provided that Plaintiff would receive a 

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one percent bonus commission on all “Sales Revenue” arising from the sale of new equipment 

that exceeded $10 million per fiscal year. 

On April 1, 2008, Plaintiff and Defendant’s then-CEO, Ray Miller, traveled to India 

where they negotiated and signed a “letter of intent” with an Indian company called Vedanta for 

the sale of three continuous mixers designed to be used in the aluminum smelting process. 

Plaintiff was credited for making the sale and negotiating the terms of the letter of intent. The 

letter of intent provided that Defendant would deliver the three machines to a Vedanta plant in 

India, provide various services, and provide spare parts in exchange for $5,496,860. The 

delivery dates for the machines were indicated as February, May, and June 2009. The letter of 

intent called for both parties to sign a “detailed Contract” within sixty days. It further provided 

that “[t]he Contract shall become effective and the completion schedule shall be reckoned from 

the date of issue of this LOI ie. 1st April, 2008.” The letter of intent was signed by officials from 

Vedanta and Defendant. 

The “detailed Contract” required by the letter of intent was not signed within sixty days. 

On September 4, 2008, Vedanta returned the unsigned contract to Defendant. Defendant’s 

managers immediately re-endorsed the contract and returned it to Vedanta, which eventually 

executed it on October 18, 2008. 

While this back-and-forth regarding contract execution was transpiring, Plaintiff 

voluntarily resigned from Defendant on September 12, 2008. Defendant did not pay Plaintiff 

any commission associated with the Vedanta sale. All other commissions were paid on time. 

On June 22, 2009, Plaintiff filed a two-count complaint in Saginaw County Circuit Court 

alleging that Defendant breached a contract for the payment of his sales commission and bonus. 

The complaint references only one sales project by name — the “Vedanta Project.” See Compl.

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¶¶ 22–27, ECF No. 1-2. Count one alleged breach of contract; specifically, that Plaintiff was 

owed $17,325 “in accordance with the terms of the Compensation Plan regarding Acquisition 

Commissions” and $39,773 as a “bonus commission.” Id. ¶¶ 14, 15. Count two alleged a 

violation of the Act; specifically, that Defendant “intentionally failed to pay the commission 

when due,” entitling Plaintiff to $100,000 in statutory damages. See Mich. Comp. Laws § 

600.2961(5)(b). Thus, the complaint sought $157,098 in damages, plus attorney fees and costs. 

The case was removed to this Court by Defendant on July 10, 2009. ECF No. 1. 

Defendant then moved for summary judgment, which was denied on September 21, 2010. ECF 

No. 24. The case proceeded to a bench trial. At the conclusion of the trial, the Court issued 

certain findings from the bench, concluding that Plaintiff was entitled to the sales commissions 

he was seeking, but requesting supplemental briefing on the bonus commission and statutory 

damages claims. After reviewing the supplemental briefing, the Court concluded that Plaintiff 

was entitled to both the bonus commission and statutory damages under the Act. ECF No. 35. 

On August 18, 2011, judgment was entered in Plaintiff’s favor in the amount of “$158,748 in 

damages, together with $10,420.81 in prejudgment interest through August 9, 2011 and all costs 

allowed by law.” ECF No. 37. 

Plaintiff now moves for attorney fees and costs pursuant to subsection six of the Act, 

which provides: “If a sales representative brings a cause of action pursuant to this section, the 

court shall award to the prevailing party reasonable attorney fees and court costs.” Mich. Comp. 

Laws § 600.2961(6). Specifically, he seeks $26,979.75 in attorney fees (119.91 hours at $225 

per hour), $178 in costs, and post-judgment interest at the statutory rate. Defendant opposes the 

motion, arguing that Plaintiff was not a “prevailing party” as defined by the Act. Defendant does 

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not contend, however, that the $225 hourly rate or the number of hours billed is unreasonable. 

The Court will grant Plaintiff’s motion for the following reasons. 

II. 

“Prevailing party” is defined by the Act as “a party who wins on all the allegations of the 

complaint or on all of the responses to the complaint.” Mich. Comp. Laws § 600.2961(1)(c). On 

its face, this provision appears to require that, in order to be the “prevailing party,” the party 

succeed on all of the factual allegations and legal theories pled in the complaint or answer. Such, 

however, is not the law. Instead, the statute has been construed liberally. See, e.g., H.J. Tucker 

and Assocs., Inc. v. Allied Chucker and Eng’g Co., 595 N.W.2d 176, 182 (Mich. Ct. App. 1999). 

In Tucker, for example, the court rejected the defendant’s argument that the plaintiff was 

not the prevailing party as the plaintiff had pled alternative theories of liability and had not 

prevailed on all of the theories, explaining: 

Because each theory sought to recover for the same injury and recovery under any 

theory would have allowed recovery of the full measure of her damages, our 

Court [has established] that it was necessary for the plaintiff to “prevail only on 

one theory in order to be considered a prevailing party.”

Id. at 182 (quoting Van Zanten v. H. Vander Laan Co., Inc., 503 N.W.2d 713, 714 (Mich. Ct. 

App. 1993); accord Kenneth Henes Special Projects Procurement v. Continental Biomass Indus., 

Inc., 86 F. Supp. 2d 721, 736 (E.D. Mich. 2000). 

Likewise, a plaintiff need not recover the full amount of damages sought in the complaint 

to qualify as a “prevailing party.” Peters v. Gunnell, Inc., 655 N.W.2d 582, 589–90 (Mich. Ct. 

App. 2002). In Peters, the court rejected the defendant’s argument that the plaintiff was not a 

prevailing party because he “alleged damages in excess of $25,000, but was found to have 

suffered actual damages in the amount of only $8,102.” Id. at 589. The court explained: 

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The fact that plaintiff is entitled to $8,102.26 in actual damages is not dispositive 

of whether he prevailed on all aspects of his claim to the extent that he is entitled 

to an award of attorney fees and costs under . . . § 600.2961(6). Plaintiff merely 

alleged that he was owed past-due commissions and that the amount in 

controversy exceeded $25,000. When considering all the statutory grounds for 

relief under the [Act], we conclude that plaintiff prevailed on his jurisdictional 

allegation as well as on his claim for past-due commissions. 

Id. at 590. 

In accord with these precedents, when a court of this district was confronted with a claim 

for attorney fees under the Act, the court broadly construed the “prevailing party” provision. 

Kenneth Henes, 86 F. Supp. 2d at 736. The plaintiff sought to recover four unpaid commissions 

on two theories — breach of contract and a violation of § 2961. Id. For one of the transactions, 

the plaintiff prevailed on the breach of contract theory, but not the § 2961 theory; it prevailed on 

the other transactions under its breach of contract theory and § 2961 theory. Id. “Pursuant to 

Tucker,” the court concluded, “Plaintiff should be considered a ‘prevailing party’ for purposes of 

an award of attorneys’ fees under the Sales Representative Statute.” Id. (citing Tucker, 595 

N.W.2d at 182). 

In this case, Plaintiff is a prevailing party based on the plain language of the statute, as 

well as the precedents discussed above. Plaintiff’s complaint put forth two theories — breach of 

contract and a violation of § 2961. Plaintiff obtained a verdict on both. The complaint 

references only one sales project by name — the “Vedanta Project.” See Compl. ¶¶ 22–27. 

Plaintiff prevailed on his claim to a commission on this project, as well as a bonus. The 

complaint sought $157,098 in damages. And Plaintiff won $158,748 in damages, plus 

prejudgment interest. Under the Act, Plaintiff is a “prevailing party.” 

Defendant’s argument that Plaintiff is not the prevailing party because he also raised 

issues regarding commissions for “Outotec, Yellow River, and Shadong” projects at trial is 

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unpersuasive. As a preliminary matter, the Act’s “prevailing party” provision does not reference 

issues raised at trial, but rather “allegations of the complaint.” § 600.2961. As noted above, the 

complaint makes no reference to these specific projects; it identifies only the “Vedanta Project.” 

Moreover, under the above precedents, Plaintiff qualified as the “prevailing party” because he 

prevailed on theories which “allowed recovery of the full measure of [his] damages.” Tucker, 

595 N.W.2d at 182. Indeed, Plaintiff recovered a greater dollar amount than was pled in the 

complaint. 

Finally, Defendant does not object to the reasonableness of the amount of the fee 

requested. The Sixth Circuit instructs that it is “utterly inappropriate for the court to abandon its 

position of neutrality in favor of a role equivalent to champion for the non-moving party: seeking 

out facts, developing legal theories, and finding ways to defeat the motion.” Guarino v. 

Brookfield Twp. Trs., 980 F.2d 399, 406 (6th Cir. 1992). Moreover, an independent review 

demonstrates that the amount of attorney fees requested, $26,979.75 (119.91 hours at $225 per 

hour), is reasonable.

III. 

Accordingly, it is ORDERED that Plaintiff’s motion for attorney fees (ECF No. 43) is 

GRANTED. 

It is further ORDERED that judgment is entered in favor of Plaintiff and against 

Defendant in the amount of $27,157.75, plus post-judgment interest at the statutory rate. 

 

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It is further ORDERED that the hearing scheduled for October 31, 2011, at 3:30 p.m. is 

CANCELED because the parties’ papers provide the necessary factual and legal information to 

decide the motion. See E.D. Mich. L.R. 7.1(f)(2). 

Dated: October 28, 2011 

 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on October 28, 2011. 

 s/Tracy A. Jacobs 

 TRACY A. JACOBS 

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