BETTY ODEN V CHALMERS APARTMENTS LTD DIVIDEND HOUSING ASSN
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STATE OF MICHIGAN
COURT OF APPEALS
BETTY ODEN,
UNPUBLISHED
April 23, 2002
Plaintiff/CounterdefendantAppellant,
v
CHALMERS APARTMENTS LIMITED
DIVIDEND HOUSING ASSOCIATION
LIMITED PARTNERSHIP, and MANAGEMENT
SYSTEMS,
No. 229118
Wayne Circuit Court
LC No. 99-901324-NZ
Defendants/CounterplaintiffsAppellees.
Before: Gage, P.J., and Griffin and Buth*, JJ.
PER CURIAM.
Plaintiff appeals as of right from orders granting summary disposition for defendants
pursuant to MCR 2.116(C)(8) and (10). We affirm.
This is an action to recover for personal property lost when plaintiff tenant was evicted
from an apartment owned and managed by defendants. The property was removed pursuant to a
writ of restitution issued following the entry of a consent judgment in district court. Under the
terms of the consent judgment, an order evicting plaintiff would be issued unless she paid $558
by July 3, 1998. The judgment further provided that acceptance of partial payment would not
prevent a writ of restitution from being issued. Plaintiff alleged that the parties orally modified
judgment to allow a $300 payment by July 3, 1998 and the balance to be paid later. After
plaintiff paid $300, defendants obtained a writ of restitution and a bailiff removed her personal
property. According to plaintiff, the property was stolen before she discovered that it had been
removed.
On appeal, plaintiff argues that her eviction was improper because she was never notified
that it was actually going to occur, because defendants orally agreed that she could pay the full
amount owed after July 3, 1998, and because she made a partial payment. The trial court
rejected these arguments when it granted defendants’ initial motion for summary disposition
under MCR 2.116(C)(10). This Court’s review of a decision regarding a motion for summary
* Circuit judge, sitting on the Court of Appeals by assignment.
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disposition is de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201
(1998). In deciding a motion brought under this subrule, the trial court considers the
documentary evidence submitted by the parties in the light most favorable to the party opposing
the motion. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). If the evidence
fails to establish a genuine issue regarding any material fact, the moving party is entitled to
judgment as a matter of law. Id.
The trial court correctly concluded that defendants could not be held liable for damages
caused by the removal of plaintiff’s property pursuant to the writ of restitution under MCL
600.2918(3)(a). While MCL 600.2918(1) and (2) allow a tenant whose possessory interest has
been unlawfully interfered with to recover damages, MCL 600.2918(3)(a) provides that those
subsections “shall not apply where the owner” “acted pursuant to a court order.” This exception
covers all actions taken pursuant to a court order, regardless of the order’s legal soundness.
Robinson v Michigan Consolidated Gas Co, Inc, 918 F2d 579, 590 (CA 6, 1990). Here,
defendants acted pursuant to the consent judgment entered by the district court and a writ of
restitution issued by the district court. The consent judgment specifically provided that a partial
payment would not prevent the issuance of a writ of restitution and plaintiff admits she did not
pay the full amount before she was evicted. Plaintiff claims that the parties orally modified the
terms of the consent judgment, but the judgment was never amended to reflect that allegation.
Accordingly, we find no error.
Summary disposition of plaintiff’s third-party beneficiary claim was also appropriate. To
be recoverable, a third-party beneficiary’s injury must be a consequence of the breach. Koenig v
South Haven, 221 Mich App 711, 721; 562 NW2d 509 (1997), reversed on other grounds 460
Mich 667, 597 NW2d 99 (1999). In the absence of a breach or injuries arising from the breach,
plaintiff’s claim was properly dismissed.
Affirmed.
/s/ Hilda R. Gage
/s/ Richard Allen Griffin
/s/ George S. Buth
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