Attorney Fee Provisions

"Michigan adheres to the general rule that attorney fees are not recoverable, either as an element of costs or as an item of damages, unless expressly authorized by statute, court rule, or a recognized exception. A party cannot contest the other party’s entitlement to attorney fees when payment of attorney fees is part of the settlement agreement. Parties to an agreement may include within the agreement a provision respecting the payment of reasonable attorney fees, which courts will enforce like any other term unless contrary to public policy. Michigan Civil Proc. Benchbook Ch. 8, §8.6.

Upon motion of any party, if a court finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by assessing the costs and fees against the nonprevailing party and their attorney. MCLA § 600.2591"

Michigan courts generally enforce attorney fee provisions in contracts, provided the contracts are not unconscionable. Michigan courts have generally only enforced contract provisions providing for "reasonable" attorneys fees even if the contract calls for "actual" attorneys fees or does not contain a requirement of reasonableness. Zeeland Farms Services, Inc. v. JBL Enterprises, Inc., 219 Mich. App. 190, 195-196; 555 N.W.2d 733 (1996); Papo v. Aglo Restaurants of San Jose, Inc., 149 Mich. App. 285, 299; 386 N.W.2d 177 (1986). Despite established law a recent unpublished opinion held that "where the contract language plainly and unambiguously provides for the recovery of actual attorneys fees, we must simply enforce the contract language as written." Estate of Cargas v. Bednarsh, 2003 W.L. 21716463 (Mich. App.).