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STATE OF MICHIGAN 

COURT OF APPEALS 

PRUDENTIAL PROTECTIVE SERVICES, LLC, 

 Plaintiff-Appellee/Cross-Appellant, 

UNPUBLISHED 

March 24, 2015 

v No. 318957 

Wayne Circuit Court 

THE NRP GROUP, LLC, LC No. 13-001027-CK 

 Defendant-Appellant/CrossAppellee. 

Before: BOONSTRA, P.J., and SAWYER and O’CONNELL, JJ. 

PER CURIAM. 

 Defendant appeals as of right an order granting summary disposition to plaintiff in this 

contract dispute. We affirm the trial court’s grant of summary disposition to plaintiff, but 

remand for the trial court to provide further explanation regarding plaintiff’s request for attorney 

fees. 

 On appeal, defendant argues that it is not liable for any amount to plaintiff under the 

contract between the parties because defendant was acting as an agent for a disclosed principal. 

Specifically, defendant contends that there was a genuine issue of material fact regarding 

whether it was personally liable, because plaintiff was aware that it was actually dealing with 

defendant’s principals. Defendant argues that plaintiff accepted payments from defendant’s 

principals, and that it was informed during contract negotiations that defendant was merely an 

agent for individual property owners. We disagree. 

 Plaintiff moved for summary disposition pursuant to MCR 2.116(C)(9) and MCR 

2.116(C)(10). This Court reviews a trial court’s decision on a motion for summary disposition 

de novo. Hoffner v Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012). “A motion for summary

disposition brought pursuant to MCR 2.116(C)(9) tests the sufficiency of the defendant’s 

pleadings by accepting all well-pleaded allegations as true. Summary disposition under this rule 

is proper if the defendant fails to raise a valid defense to a claim.” Wheeler v Charter Twp of 

Shelby, 265 Mich App 657, 663; 697 NW2d 180 (2005). ‘“If the defenses asserted are so clearly 

untenable as a matter of law that no factual development could possibl[y] deny the plaintiff’s 

right to recovery,’ then summary disposition under this rule is proper.” Id., quoting Dimondale v 

Grable, 240 Mich App 553, 564; 618 NW2d 23 (2000). A motion for summary disposition 

pursuant to MCR 2.116(C)(10) “requires this Court to review the pleadings, affidavits, and other 
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documentary evidence submitted, make all reasonable inferences therefrom, and determine 

whether a genuine issue of material fact exists, giving the nonmoving party the benefit of 

reasonable doubt.” Id. (citations omitted). In order to survive a motion for summary disposition 

under this rule, the nonmoving party is required to produce evidence demonstrating a material 

dispute of fact left for trial. Id.

 “Unless otherwise agreed, a person making or purporting to make a contract with another 

as agent for a disclosed principal does not become a party to the contract.” Riddle v Lacey & 

Jones, 135 Mich App 241, 246; 351 NW2d 916 (1984), quoting 2 Restatement Agency, 2d, 

§ 320, p 67. Further: 

Whether or not a person purporting to act as agent for another becomes a party to 

the contract depends upon the agreement between such person and the other party. 

. . . [A] principal is disclosed if, at the time of making the contract in question, 

the other party to it has notice that the agent is acting for a principal and of the 

principal’s identity. One who purports to contract on behalf of a designated 

person does not manifest by this that he is making a contract on his own account, 

and only where he so manifests does the agent become a party to the contract 

which he makes for the principal. In the absence of other facts, the inference is 

that the parties have agreed that the principal is, and the agent is not, a party. [Id.

at 246-247, quoting 2 Restatement Agency, 2d, § 320, comment a.] 

This Court has stated that “an agent may work on behalf of a principal within the scope of the 

agency agreement as if the agent had stepped into the shoes of the principal without incurring 

any personal liability.” PM One, Ltd v Dep’t of Treasury, 240 Mich App 255, 266-267; 611 

NW2d 318 (2000). However, this Court has also held that where a principal is disclosed and the 

agent is known to be working on behalf of the principal, the agent may still agree to be held 

personally liable under the terms of a contract. National Trout Festival, Inc v Cannon, 32 Mich 

App 517, 521; 189 NW2d 69 (1971). Moreover, a “contract must be interpreted according to its 

plain and ordinary meaning.” Holmes v Holmes, 281 Mich App 575, 593; 760 NW2d 300 

(2008). 

 Defendant presented no evidence regarding its own contracts, if any existed, between it 

and the individual property owners for which defendant managed residential properties. 

Accordingly, the only evidence included in the lower court record is the parties’ contract itself, 

Holly Powell’s deposition and affidavit, and Theodore Einhorn’s affidavit. Under the terms of 

the contract, there is no mention of any property owners; defendant is expressly noted as the 

“Client” for the purposes of the contract. Further, under the plain terms of the contract, 

defendant agreed “to pay [plaintiff] . . . fees” based on the services provided. Defendant 

essentially relies on one piece of evidence to support its assertion that plaintiff was aware that 

defendant was an agent not subject to personal liability: Powell’s statements that during contract 

negotiations, plaintiff was made aware that it was actually contracting with individual property 

owners, not defendant. Defendant also argues that plaintiff’s practice of accepting payment in 

the form of checks from the property owners signifies that it knew it was dealing with the 

property owners as principals. 
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 Even though plaintiff accepted checks from parties other than defendant for services 

provided under the contract, it appears from the record that defendant was responsible for 

actually making those payments. Defendant accepted invoices from plaintiff, defendant inputted 

the invoices into its internal computer systems, and defendant actually sent out the checks to 

plaintiff. Further, when invoices stopped being paid on time, plaintiff sought payment from 

defendant, and one of defendant’s employees traveled to plaintiff’s offices to discuss having 

some of the amount due reduced. Based on the language of the contract, the only parties to the 

contract were plaintiff and defendant. There was no evidence presented that plaintiff ever 

worked or communicated with any other party relating to the contract, except for accepting 

checks emanating from the bank accounts of property owners. Even giving defendant the benefit 

of reasonable doubt, defendant expressly agreed to make payments for services provided under 

the contract, without mention of any principal. Accordingly, the trial court’s decision to grant 

plaintiff’s motion for summary disposition under MCR 2.116(C)(10) was correct because there 

was no genuine issue of material fact regarding whether defendant was personally liable under 

the contract. 

 On cross-appeal, plaintiff argues that the trial court abused its discretion when it denied 

plaintiff’s request for attorney fees. Specifically, plaintiff contends that the contract expressly 

provides for defendant to pay plaintiff’s reasonable attorney fees in the event of a dispute arising 

from the contract. Plaintiff argues that the trial court erred when it denied plaintiff’s request for 

attorney fees without providing any explanation or rationale. We agree. 

 Regarding an award of attorney fees, this Court reviews underlying findings of fact for 

clear error. In re Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008). 

Questions of law are reviewed de novo. Id. However, “we review the court’s decision whether 

to award attorney fees and the determination of reasonableness of the fees for an abuse of 

discretion.” Id.

 Generally, attorney fees are not recoverable in Michigan as an element of costs or 

damages unless an express legal exception applies. Fleet Business Credit v Krapohl Ford 

Lincoln Mercury Co, 274 Mich App 584, 589; 735 NW2d 644 (2007). “The parties to a contract 

may include a provision that the breaching party will be required to pay the other side’s attorney 

fees and such provisions are judicially enforceable.” Zeeland Farm Services, Inc v JBL 

Enterprises, Inc, 219 Mich App 190, 195; 555 NW2d 733 (1996). “However, recovery is limited 

to reasonable attorney fees.” Id. at 195-196. The party claiming the right to an award of 

attorney fees is responsible for introducing evidence of the reasonableness of the attorney fees. 

Id. at 196. Attorney fees that are awarded pursuant to a contractual provision are considered 

damages, not costs. Fleet Business Credit, 274 Mich App at 589. 

 In determining what amount of attorney fees is reasonable, this Court considers: 

(1) the professional standing and experience of the attorney; (2) the skill, time and 

labor involved; (3) the amount in question and the results achieved; (4) the 

difficulty of the case; (5) the expenses incurred; and (6) the nature and length of 

the professional relationship with the client. [Wood v Detroit Auto Inter-Ins 

Exchange, 413 Mich 573, 588; 321 NW2d 653 (1982).] 
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This Court also considers “the fee customarily charged in the locality for similar legal services” 

which should be “multiplied by the reasonable number of hours expended in the case.” Smith v 

Khouri, 481 Mich 519, 530-531; 751 NW2d 472 (2008). Under the terms of the contract, 

defendant agreed to “pay reasonable attorney and all collection agency and other fees and 

expenses which may be incurred by [plaintiff] in the collection of unpaid invoices or any part 

thereof.” Further, in plaintiff’s motion for summary disposition, plaintiff specifically addressed 

the Wood factors, ultimately requesting $3,500 in attorney fees. Though the trial court stated that 

plaintiff’s request for attorney fees was denied, it provided no rationale or explanation, either at 

the hearing or in its order. Because the parties specifically included language in their contract 

regarding attorney fees, the trial court abused its discretion when it denied the request without 

explanation. Accordingly, the case is remanded so that the trial court can provide its reasoning 

on the record. 

 Affirmed in part, but remanded for further proceedings regarding plaintiff’s request for 

attorney fees. We do not retain jurisdiction. 

/s/ Mark T. Boonstra 

/s/ David H. Sawyer 

/s/ Peter D. O’Connell