JUDITH DUNBAR V FELICIA DUNBAR
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STATE OF MICHIGAN
COURT OF APPEALS
JUDITH DUNBAR,
UNPUBLISHED
June 24, 2003
Plaintiff-Appellant,
v
FELICIA DUNBAR, a/k/a FELECIA WALKER,
No. 232307
Wayne Circuit Court
LC No. 00-016580-AV
Defendant-Appellee.
Before: Smolenski, P.J., and Talbot and Wilder, JJ.
PER CURIAM.
Plaintiff appeals by leave granted an order of the circuit court awarding damages to
defendant in the amount of $11,623.78. We affirm.
I.
In November 1998, plaintiff filed a complaint for summary proceeding against defendant,
seeking to evict defendant from a rental house for nonpayment of $1,455.00 in rent. Defendant
answered the complaint, requested a jury trial, and placed $1,504.05 in escrow. The matter
proceeded forward to a bench trial, rather than a jury trial, without objection from defendant.
Defendant testified that she and plaintiff had an oral agreement that defendant would initially
reside in the house for free, and that, in exchange, defendant would repair the house and pay for
the labor and supplies to do so. According to defendant, the oral agreement also contemplated
that once the work was complete, the rent would be set at $385 a month, and a lease agreement
to this effect was not signed by she and plaintiff until after the work on the house was completed.
Defendant acknowledged that she had not paid rent during her occupancy, but provided the
district court with receipts totaling $1,752.27 as evidence of the repairs, including labor and
supplies, made on the unit. Plaintiff did not dispute the main thrust of defendant’s assertion, that
there had been an oral agreement that defendant would make repairs to the unit in exchange for
forgiveness of rent, but claimed that the specific details of the agreement differed from those
testified to by defendant.
At the close of proofs, the district court ruled orally from the bench and in the presence of
both parties, finding that, because the repair costs exceeded the rent plaintiff claimed was owed,
no rent was owed and the case would be dismissed. The district court added that plaintiff would
be “unjustly enriched” if she was awarded the rent while retaining the benefit of the repairs to the
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rental unit. The district court also ordered that the $1,504.50 in escrow monies be returned to
defendant.
Following the bench trial, an order dated December 16, 1998, was entered by the district
court that was inconsistent with the district court’s ruling from the bench. The order was
contained on a State Court Administrative Office (SCAO) standard judgment form for landlordtenant actions (form DC 105). The form contains, inter alia, a heading to identify whether the
district court findings are being entered following a hearing, a default, or by consent, and
numbered boxes under additional headings that announce the disposition of the court as a
possession judgment or a money judgment. The district court wrote on the form, consistent with
its rulings from the bench, that the escrow was to be returned to defendant and that the case was
to be dismissed. However, the order contains three checked boxes that are inconsistent with the
handwritten portion of the order. One of the boxes checked indicates that the district court found
that plaintiff had a right to possession. A second box reflected a purported district court finding
that plaintiff was owed rent and costs totaling $1,504.50. A third checked box stated that “[a]n
order evicting [defendant] (writ of restitution) will be issued unless you [defendant] pay the
plaintiff or court the amount due . . . above or unless you move out on or before 12-29-98.”
Neither party filed objections to the entry of the judgment, despite the fact that the entry of a
judgment awarding possession, rent, and costs to plaintiff was inconsistent with the trial court’s
findings and disposition on the record.
On December 30, 1998, plaintiff filed an application for an order of eviction, in which
she attested that, to the best of her information, knowledge, and belief, the judgment in the case
had awarded her possession of the premises, that defendant had not made payments on the
judgment, that plaintiff had not received any rent, and that plaintiff had complied with all the
terms of the judgment. The district court signed a writ of restitution the same day, and on
January 21, 1999, the writ of restitution was executed, and defendant was evicted from the
premises.
Defendant filed a motion for sanctions, damages, costs, and attorney fees for violation of
the “anti-lockout statute,” MCL 600.2918, and for defrauding the court. The district court heard
arguments on defendant’s motion and entered an order finding that plaintiff had obtained the writ
of restitution despite having knowledge that the complaint had been dismissed and that,
therefore, defendant would be awarded $100 in damages, $100 in court costs, and $100 in
attorney fees. The district court’s order did not include factual findings establishing the basis for
the amounts awarded. Defendant moved for reconsideration, seeking the opportunity to present
testimony on the question of damages and urging the district court to rule on the request in her
original motion for treble damages available under the anti-lockout statute, MCL 600.2918. The
district court denied the motion, and defendant appealed the denial to the circuit court. The
circuit court ordered the case reinstated and remanded for an evidentiary hearing.
On remand, the district court heard testimony describing the eviction and the resulting
damages. Defendant testified that her daughter initially called to tell her that an eviction notice
had been posted at the house, and that, later that day, defendant’s daughter contacted defendant
to tell her that she and defendant’s other children were on the porch of the house while a bailiff
was in the process of removing defendant’s belongings from the house. Defendant also testified
that she called the police and hurried home and that, when she arrived, the police were already
there. According to defendant, she showed the December 16, 1998, order to the bailiff and
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police, and after the officers spoke with the bailiff, the police decided that the bailiff could
continue to enforce the writ and kept defendant from entering the premises during the eviction.
Terrence Couch, a bailiff for the district court who executed the writ of restitution with
his crew, testified that he was in the process of removing defendant’s belongings from the house
when defendant arrived and that, because defendant was upset, hostile, and enraged, he called
the police and requested backup assistance. Officer Couch also testified that during other
evictions he had conducted, he had the evicted tenant “restrained” because the tenant was upset
and enraged.
Defendant testified that she and her children suffered emotional trauma, embarrassment,
and humiliation because of the eviction; that some of her personal property was damaged; that
she incurred hotel expenses for substitute housing; that she lost income when she missed work to
look for new housing; that she incurred additional expenses transporting her children to school
because of the eviction; and that she paid $3,000 in attorney fees. In closing arguments, plaintiff
conceded that defendant was entitled to modest reimbursement for damages directly related to
the eviction. However, plaintiff challenged defendant’s entitlement to treble damages under
MCL 600.2918, asserting that the eviction was not “forceful” within the meaning of the statute.
Plaintiff also asserted that, even if defendant was entitled to treble damages under MCL
600.2918, lost wages, hotel expenses, and damages for emotional distress or humiliation are not
included in the category of damages that may be trebled under the act. Plaintiff also argued that
defendant was entitled to recover no more than a nominal statutory attorney fee.
The district court found that the eviction was unlawful, that defendant incurred actual
damages in the amount of $2,531.26, and that defendant was entitled to an award of treble
damages pursuant to MCL 600.2918. The district court also awarded defendant $2,500 for
emotional distress and $3,000 for attorney fees. The district court also found that defendant
owed rent for the months of December 1998 and January 1999, thus reducing the amount of the
award to defendant by $770. A final judgment was entered by the district court in favor of
defendant in the amount of $12,323.78.
Plaintiff appealed the judgment to the circuit court, challenging the amount of actual
damages awarded to defendant and challenging the treble damages award. The circuit court
affirmed the district court’s finding that defendant was entitled to actual damages, but found that
the actual damages incurred by defendant totaled $2,231.26 instead of $2,531.26. The circuit
court also found that treble damages were appropriate because plaintiff, being aware that the
district court had actually ruled that the summary proceeding action was dismissed, proceeded to
intentionally and wrongfully seek the writ of restitution and obtained defendant’s eviction,
nevertheless. The circuit court affirmed the award of $2,500 for emotional distress and found
that the $3,000 award of attorney fees was warranted because of plaintiff’s intentional
wrongdoing. The circuit court entered an order affirming the district court’s judgment and
remitting the award from the amount of $12,323.78 to $12,193.00.1 After rehearing, a
subsequent order reduced the damages awarded to defendant by $700 to $11,623.78, reflecting
1
While the amounts awarded by the circuit court total $12,193.78 rather than $12,193.00, it is
unclear from the record why the $.78 was not reflected in the order.
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the two month’s rent that the district court found that defendant owed.2 This appeal ensued.
II.
Plaintiff asserts two claims on appeal. Plaintiff first claims that defendant is not entitled
to treble damages under MCL 600.2918 because defendant’s eviction was not “forcible and
unlawful” as required by the statute. We conclude that defendant’s eviction was accomplished
with force within the meaning of the statute and agree that although plaintiff’s conduct was
reprehensible, defendant’s eviction was not “unlawful” within the meaning of the statute.
Nevertheless, we affirm the circuit court’s conclusion that defendant was entitled to treble
damages because defendant was “held and kept out” of the house by force, in violation of MCL
600.2918(1).
Resolution of this case requires us to first interpret MCL 600.2918 as it applies to the
facts presented. Questions of statutory interpretation are reviewed de novo. Omelenchuk v City
of Warren, 466 Mich 524, 527; 647 NW2d 493 (2000). In our interpretation of the statute, we
seek to reflect the intent of the Legislature and enforce clear and unambiguous language as it is
written. Id. at 528. The circuit court’s factual findings are reviewed for clear error. MCR
2.613(C); Christiansen v Gerrish Twp, 239 Mich App 380, 384, 387; 608 NW2d 83 (2000).
MCL 600.2918 provides in relevant part:
(1) Any person who is ejected or put out of any lands or tenements in a
forcible and unlawful manner, or being out is afterwards held and kept out, by
force, if he prevails, is entitled to recover 3 times the amount of his actual
damages or $200.00, whichever is greater, in addition to recovering possession.
(2) Any tenant in possession of premises whose possessory interest has
been unlawfully interfered with by the owner, lessor, licensor, or their agents shall
be entitled to recover the amount of his actual damages or $200.00, whichever is
greater, for each occurrence and, where possession has been lost, to recover
possession. Unlawful interference with a possessory interest shall include:
(a) The use of force or threat of force.
(b) The removal, retention, or destruction of personal property of the
possessor.
(c) A change, alteration, or addition to the locks or other security devices
on the property without forthwith providing keys or other unlocking devices to the
person in possession.
(d) The boarding of the premises which prevents or deters entry.
2
Although the record establishes that rent for two months totaled $770, plaintiff only requested a
$700 adjustment in the award to defendant on rehearing.
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(e) The removal of doors, windows, or locks.
(f) Causing, by action or omission, the termination or interruption of a
service procured by the tenant or which the landlord is under an existing duty to
furnish, which service is so essential that its termination or interruption would
constitute constructive eviction, including heat, running water, hot water, electric,
or gas service.
(g) Introduction of noise, odor or other nuisance.
(3) The provisions of subsection (2) shall not apply where the owner,
lessor, licensor, or their agents can establish that he:
(a) Acted pursuant to court order . . . . [Emphasis added].
Under MCL 600.2918(1), an eviction is forcible if the landlord obtains possession by
stratagem or trick, carried out under a false pretense, and the tenant is prevented by force from
reentering the premises. Pelavin v Misner, 241 Mich 209, 213-214; 217 NW 36 (1928).
Although the evidence does not support a finding that defendant was forcibly removed from the
premises by the bailiff,3 consistent with the first clause of subsection (1), the evidence does
support the finding that, in violation of the second clause of subsection (1), defendant was held
and kept out of the premises by force. Plaintiff testified that the police kept her from entering the
premises during the eviction. Officer Couch testified that the circumstances of defendant’s
eviction were similar to other evictions where the tenant was “restrained” from entering the
premises during the eviction. We find that these facts support the conclusion that defendant,
being out of her premises, was “afterwards held and kept out . . . by force” in violation of MCL
600.2918(1). The trial court did not clearly err in finding that defendant was entitled to treble
damages as the result of the eviction.4
3
The testimony was inconclusive as to whether there had been a forcible entry of the premises.
Defendant testified that she was told by her daughter that the daughter and defendant’s other
children were on the porch while the bailiff removed items from the premises, but the testimony
did not establish whether the children were inside or outside of the premises when the bailiff
arrived, nor did it establish how the children ended up on the porch.
4
While not necessary to our conclusion here, we note that the eviction was “lawful” only
because there is no evidence that Officer Couch had any knowledge when he executed the writ of
restitution that the district court had in fact dismissed the summary proceeding rather than
granting possession to plaintiff. Rather, the evidence showed that, to his knowledge, the writ of
restitution was a valid order of the court. Thus, his enforcement of that order was lawful,
regardless of the legal soundness of the order. Robinson v Michigan Consolidated Gas Co, Inc,
918 F2d 579, 590 (CA 6, 1990). But see People v Sobczak-Obetts, 463 Mich 687, 699; 625
NW2d 764 (2001), citing People v Galnt, 235 Mich 646; 209 NW 915 (1926), for the
proposition that where a search warrant failed to recite material facts and therefore was void, the
resulting search was “unlawful.”
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III.
Plaintiff also asserts that even if defendant is entitled to treble damages under MCL
600.2918, the statute permits defendant to recover only damages resulting to her personal
property during the eviction, and does not permit the recovery of lost wages, hotel expenses, or
exemplary damages as actual damages. We disagree. Plaintiff’s reliance on Carman v Scott,
172 Mich 44; 137 NW 655 (1912), is misplaced. In that case, the Supreme Court interpreted a
predecessor statute to MCL 600.2918, Comp. Laws. 1857, § 4717, which provided that upon a
violation of the statute the aggrieved tenant “shall recover therein three times the amount of
damages assessed by the jury . . . .”
The present statute provides that the tenant is entitled to recover “3 times the amount of
his actual damages.” At common law, the term actual damages includes economic loss and noneconomic loss, including compensation for shame, mortification, mental pain, and anxiety.
Veselenak v Smith, 414 Mich 567, 573-574; 327 NW2d 261 (1982). Exemplary damages, which
allow for compensation for injury to feelings, are a class of compensatory damages. McPeak v
McPeak, 233 Mich App 483, 487; 593 NW2d 180 (1999). While there must be a basis in the
statute for awarding exemplary damages, the language of the statute should be read in light of the
common law, which is not abolished by implication. B & B Investment Group v Gitler, 229
Mich App 1, 6-7; 581 NW2d 17 (1998). We conclude that the term “actual damages” as used in
MCL 600.2918 encompasses all forms of compensatory damages that are the natural and
probable consequences of the trespass and eviction, including exemplary damages See Shaw v
Hoffman, 21 Mich 151, 156-157 (1872); Black’s Law Dictionary (4th ed) p 467.
Plaintiff also claims that the language of the statute does not permit an award of attorney
fees. Even if plaintiff is correct, attorney fees were properly awarded here. The record shows
that plaintiff intentionally pursued defendant’s eviction while knowing that the district court had
denied this relief and dismissed the case. This conduct by plaintiff was flagrant and fraudulent.
We reject as unsupported by the record plaintiff’s claims that she was instructed to
proceed with the eviction by the staff of the district court. Specifically, plaintiff claims that she
attempted to file a summons and complaint to recover rent owed for December 1998 and January
1999, but that the district court staff would not permit her to do so and instructed her that
because she had prevailed in the summary proceeding, she should obtain a writ of restitution.
Plaintiff does not explain, however, why she did not attempt to file another summary proceeding
action, using the same SCAO form she used to file the first summary proceeding action, rather
than a summons and complaint. Further, plaintiff offers no explanation for how the January
1999 rent could be past due on December 30, 1998, or why the summons and complaint contains
a 1999 case number (99-100070) when she purportedly attempted to file this new action on
December 30, 1998, the date she obtained the fraudulent eviction order.
We conclude from this record that plaintiff was guilty of an abuse of process and that the
award of attorney fees was consistent with the inherent authority of the district court to impose
sanctions against plaintiff because of this misconduct. Persichini v William Beaumont Hosp, 238
Mich App 626, 639-641; 607 NW2d 100 (2000).
IV.
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For the reasons outlined herein, we affirm the order of the circuit court awarding
damages to defendant in the amount of $11,623.78.
/s/ Michael R. Smolenski
/s/ Michael J. Talbot
/s/ Kurtis T. Wilder
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