                          STATE OF MICHIGAN

                           COURT OF APPEALS



MELISSA SEYMORE,                                                   UNPUBLISHED
                                                                   November 1, 2016
               Plaintiff-Appellant,

v                                                                  No. 326924
                                                                   Wayne Circuit Court
ADAMS REALTY and MICHAEL REGAN,                                    LC No. 14-015731-CZ

               Defendants-Appellees,


Before: GADOLA, P.J., and WILDER and METER, JJ.

PER CURIAM.

       In this case brought under MCL 600.2918, the Michigan anti-lockout statute, plaintiff
Melissa Seymore appeals as of right the trial court’s order granting defendants’ motions for
summary disposition pursuant to MCR 2.116(C)(8).1 We affirm.

        This case arose from an incident in which plaintiff was allegedly locked out of a house
located in Detroit after defendants allegedly changed the locks on or about October 9 or 10,
2014. Defendant Michael Regan purchased the house on or about October 2, 2014, from the
Bank of America, which itself had purchased the property on December 19, 2013, by way of a
sheriff’s sale.

        Plaintiff first claims that MCL 600.2918, the Michigan anti-lockout statute, clearly
applies to a person, such as plaintiff, who remains in possession of property after the redemption
period following a mortgage sale has expired. This Court reviews questions of statutory
interpretation de novo. Feyz v Mercy Mem Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006).

        MCL 600.2918 provides damages for forcible ejectment from property or unlawful
interference with a possessory interest in property:

               (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


1
  “The opposing party has failed to state a claim on which relief can be granted.” MCR
2.116(C)(8).


                                               -1-
       force, is entitled to recover 3 times the amount of his or her 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 is entitled to recover the amount of
       his or her actual damages or $200.00, whichever is greater, for each occurrence
       and, if possession has been lost, to recover possession. Subject to subsection (3),
       unlawful interference with a possessory interest includes 1 or more of the
       following:

               (a) Use of force or threat of force.

              (b) Removal, retention, or destruction of personal property of the
       possessor.

               (c) Changing, altering, or adding to the locks or other security devices on
       the property without immediately providing keys or other unlocking devices to
       the person in possession.

               (d) Boarding of the premises that prevents or deters entry.

               (e) Removal of doors, windows, or locks.

               (f) Causing, by action or omission, the termination or interruption of a
       service procured by the tenant or that 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 . . . .

        Plaintiff urges this Court to interpret MCL 600.2918(2) by reference to a catch-line title
for MCL 600.5714 that refers to “holding over by tenant” and by reference to MCL 600.5714(g),
which deals with summary proceedings to recover possession by “a person [who] continues in
possession of premises sold by virtue of a mortgage or execution, after the time limited by law
for redemption of the premises.” Firstly, we note that the catch-line heading of a statute is not
part of the statute itself and is not to be used to alter clear statutory language. See MCL 8.4b and
People v Al-Saiegh, 244 Mich App 391, 396-397; 625 NW2d 419 (2001).

        Moreover, in Nelson v Grays, 209 Mich App 661, 663-664; 531 NW2d 826 (1995), this
Court considered “[t]he question whether the term ‘tenant’ found in § 2918(2) refers to all
persons occupying the premises under a lease or is limited to the person or persons actually
obligated to pay rent[.]” The Nelson court concluded that for the purposes of MCL 600.2918(2),
“the determination that an occupier of property is a tenant depends upon the existence of a
contractual relationship between the owner and the possessor wherein the possessor pays
consideration in exchange for the right to occupy the property.” Id. at 665. This Court is bound
under the rule of stare decisis to follow the previous decision of this Court in Nelson interpreting
the term “tenant” for the purposes of MCL 600.2918(2). MCR 7.215(C)(2). This means that,
                                                 -2-
contrary to plaintiff’s contentions, MCL 600.2918(2) does not provide relief for a person, such as
plaintiff, who remained in possession of property after a foreclosure but who had no contractual
relationship with the owner of the property; the trial court did not err by determining that MCL
600.2918(2) does not provide relief to such persons. Nelson, 209 Mich App at 665.

       Plaintiff alleges that the trial court erred by relying on MCR 2.116(C)(8) to grant
summary disposition to defendants with regard to plaintiff’s claims under MCL 600.2918(1) and
(2). We review de novo the decision of a trial court to grant or deny summary disposition.
Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). “A motion for
summary disposition brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the
complaint on the allegations of the pleadings alone.” Feyz, 475 Mich at 672. “When a challenge
to a complaint is made, the motion tests whether the complaint states a claim as a matter of law,
and the motion should be granted if no factual development could possibly justify recovery.” Id.

        As already discussed, for the purposes of MCL 600.2918(2), “the determination that an
occupier of property is a tenant depends upon the existence of a contractual relationship between
the owner and the possessor wherein the possessor pays consideration in exchange for the right
to occupy the property.” Nelson, 209 Mich App at 665. Plaintiff did not allege any facts to show
that she was a tenant, i.e., that there was a contractual relationship between her and either
defendant involving the payment of consideration in exchange for the right to occupy the
property. Therefore, plaintiff’s complaint as it relates to her claim under MCL 600.2918(2) was
legally insufficient and failed to state a claim as a matter of law. Feyz, 475 Mich at 672.

         According to plaintiff, the trial court erred by asserting that MCL 600.2918(1) requires a
physical threat of violence because the legal conception of force has evolved over time, such that
merely locking plaintiff out of her house constituted sufficient force for liability under MCL
600.2918(1). However, as noted by defendants, plaintiff has waived this claim. At the hearing
on defendants’ motions for summary disposition, the trial court addressed plaintiff’s counsel
regarding the claim pursuant to MCL 600.2918(1), and plaintiff’s counsel conceded that MCL
600.2918(1) did not apply in this case. “[I]t is fundamental that a party may not create error in a
lower court, and then claim on appeal that the error requires reversal.” Clohset v No Name Corp,
302 Mich App 550, 566; 840 NW2d 375 (2013). To do so “ ‘would permit the party to harbor
error as an appellate parachute.’ ” Id., quoting Dresselhouse v Chrysler Corp, 177 Mich App
470, 477; 442 NW2d 705 (1989). Because plaintiff stated on the record before the trial court that
MCL 600.2918(1) did not apply in this case, plaintiff is prohibited from claiming on appeal that
the trial court erred by finding that plaintiff failed to state a claim under MCL 600.2918(1).

       Moreover, plaintiff’s claim that the fact that she was locked out of her residence
represented forcible ejectment under MCL 600.2918(1) is unsustainable based on binding
precedent interpreting the statute. In 1872, the Michigan Supreme Court interpreted a similar
predecessor version of MCL 600.2918(1)2 and concluded that




2
    The predecessor version of the statute applicable at that time was 1857 CL 4717, which stated:


                                                 -3-
       the statute was not intended to apply to a mere trespass, however wrongful; but
       the entry or the detainer must be riotous, or personal violence must be used or in
       some way threatened, or the conduct of the parties guilty of the entry or detainer
       must be such as in some way to inspire terror or alarm in the persons evicted or
       kept out; in other words, the force contemplated by the statute is not merely the
       force used against, or upon the property, but force used or threatened against
       persons as a means, or for the purpose of expelling or keeping out the prior
       possessor. [Shaw v Hoffman, 25 Mich 162, 168-169 (1872).]


In 1953, the Supreme Court reaffirmed the holding in Shaw, stating that the rule laid down in
Shaw was consistently followed in later decisions that required forcible entry or detainer for the
statute to be violated. Patterson v Dombrowski, 337 Mich 557, 562; 60 NW2d 456 (1953).

        Despite this binding precedent, plaintiff claims that MCL 600.2918(1) requires nothing
more than an allegation that plaintiff was locked out of the house for her to state a viable claim
under MCL 600.2918(1). In support of her claim, plaintiff relies only on nonbinding caselaw
and provides no citation to any authority overruling Shaw or Patterson. “It is the duty of the
Supreme Court to overrule or modify caselaw if and when it becomes obsolete, and the Court of
Appeals and the lower courts are bound by the precedent established by the Supreme Court until
it takes such action.” People v Metamora Water Serv, Inc, 276 Mich App 376, 387-388; 741
NW2d 61 (2007). Thus, the interpretation of MCL 600.2918(1) as provided by Shaw and its
progeny is binding upon this Court. Because plaintiff failed to allege any use of force as
required to state a claim under MCL 600.2918(1), the trial court did not err by granting
defendants’ motions for summary disposition pursuant to MCR 2.116(C)(8).

        Plaintiff also claims that she is entitled to actual damages, including damages for mental
distress and anguish, because of defendants’ violations of MCL 600.2918(1) and (2). As
discussed, the trial court properly granted defendants’ motions for summary disposition of
plaintiff’s claims under MCR 2.116(C)(8). The trial court thus had no reason to consider what
damages defendants would owe plaintiff if defendants were liable for a violation of MCL
600.2918, and there is no reason for this Court to consider the question either.

        Finally, plaintiff claims that she was entitled to amend her complaint as a matter of law
under MCR 2.118(A)(1), because defendants did not file a responsive pleading. To the extent
this issue requires the interpretation of a court rule, this Court reviews such questions of law de
novo. CAM Construction v Lake Edgewood Condominium Ass’n, 465 Mich 549, 553; 640
NW2d 256 (2002). This Court reviews a trial court’s decision to deny leave to amend pleadings

       “If any person shall be ejected or put out of any lands or tenements in a forcible
       and unlawful manner, or, being put out, be afterward holden and kept out by
       force, or with strong hand, he shall be entitled to maintain an action of trespass,
       and shall recover therein three times the amount of damages assessed by the jury
       or a justice of the peace in the cases provided by law.” [Shaw v Hoffman, 25
       Mich 162, 168 (1872), quoting 1657 CL 4717.]



                                                -4-
for an abuse of discretion. Ormsby v Capital Welding, Inc, 471 Mich 45, 53; 684 NW2d 320
(2004).

       MCR 2.118(A) provides the general rule regarding amendment of pleadings:

              (1) A party may amend a pleading once as a matter of course within 14
       days after being served with a responsive pleading by an adverse party, or within
       14 days after serving the pleading if it does not require a responsive pleading.

               (2) Except as provided in subrule (A)(1), a party may amend a pleading
       only by leave of the court or by written consent of the adverse party. Leave shall
       be freely given when justice so requires . . . .


In addition, MCR 2.116(I)(5) provides for amendment of pleadings in certain circumstances after
a party moves for summary disposition:

               (5) If the grounds asserted are based on subrule (C)(8), (9), or (10), the
       court shall give the parties an opportunity to amend their pleadings as provided by
       MCR 2.118, unless the evidence then before the court shows that amendment
       would not be justified.

        A motion for summary disposition is not a responsive pleading. See MCR 2.110(A).3
“When a trial court grants summary disposition pursuant to MCR 2.116(C)(8), or (C)(10), the
opportunity for the nonprevailing party to amend its pleadings pursuant to MCR 2.118 should be
freely granted, unless the amendment would not be justified,” and a futile amendment would not
be justified. Ormsby, 471 Mich at 52-53.

         Plaintiff’s appellate argument is not supported. No responsive pleading was filed;
instead, defendants moved for summary disposition in lieu of filing an answer. See MCR
2.116(D)(4) (stating that a motion for summary disposition under MCR 2.116(C)(8) generally
may be raised at any time). Even assuming, arguendo, that MCR 2.118(A)(1) somehow applies
in this situation, plaintiff did not submit an amended complaint at any time, much less within 14
days of her complaint or defendants’ motions. Accordingly, the entire premise of plaintiff’s
appellate argument is faulty.

       Even if we were to consider court rules other than the one relied upon by plaintiff, we
would find no basis for reversal. MCR 2.118(A)(2) indicates that when subsection (A)(1) is
inapplicable, “a party may amend a pleading only by leave of the court or by written consent of
the adverse party.” While the trial court had the discretion to allow plaintiff leave to amend her
complaint under MCR 2.116(I)(5), see Ormsby, 471 Mich at 52-53, plaintiff’s failure to


3
  “The term ‘pleading’ includes only: (1) a complaint, (2) a cross-claim, (3) a counterclaim, (4) a
third-party complaint, (5) an answer to a complaint, cross-claim, counterclaim, or third-party
complaint, and (6) a reply to an answer. No other form of pleading is allowed.” MCR 2.110(A).


                                                -5-
specifically indicate in what manner her complaint would be amended4 leaves this Court with no
trial court rationale to review and no basis on which to determine whether amendment of the
complaint would have been justified or futile.5 Ormsby, 471 Mich at 52-53; see also, generally,
Fuga v Comerica Bank—Detroit, 202 Mich App 380, 383; 509 NW2d 778 (1993), abrogated on
other grounds as stated in Xu v Gay, 257 Mich App 263, 267-268, 668 NW2d 166 (2003)
(finding that this Court was unable to consider the merits of the plaintiff’s proposed amended
complaint because the plaintiff never moved for leave to amend). There is no basis for reversal.

       Affirmed.



                                                           /s/ Michael F. Gadola
                                                           /s/ Kurtis T. Wilder
                                                           /s/ Patrick M. Meter




4
  Indeed, plaintiff did not file a motion to amend her complaint. She merely argued, in her
responses to defendants’ motions for summary disposition, that she was entitled to amend her
complaint, but she did not state, with specificity, how she wanted the complaint to be amended
or how the amendment would rectify the issues that led to the grant of summary disposition. Nor
does she do so on appeal.
5
  In granting defendants’ motions, the trial court specifically acknowledged that plaintiff had
requested an amendment but stated that “[t]here’s been no motion filed for leave to amend” and
“[t]here’s been no amended complaint filed in this matter.”


                                              -6-
