Wrong Standard Applied To ‘Hostility’ Element Of Adverse Possession
In this boundary dispute between neighbors, the trial court applied an incorrect legal standard to the “hostility” element of adverse possession, the Michigan Court of Appeals has ruled, thereby vacating the quiet title judgment that had been issued and remanding the case for further factual findings.
The property line dispute in Cheshure, et al. v Marrero (Docket No. 370662) involved an estimated 20-by-10-foot area along neighboring parcels. The defendant claimed ownership of the disputed parcel based on long-term encroachment that included a fence and related improvements. The trial court quieted title in favor of the plaintiff, finding the defendant did not prove adverse possession or acquiescence. In addition, the trial court 1) awarded no damages, although it ruled there was indeed a trespass and 2) denied post-trial motions for trespass damages and attorney fees. The defendant appealed.
The Court of Appeals affirmed in part, vacated in part and remanded the case for additional factual findings.
“[I]n light of the testimony presented and the trial court’s failure to resolve the factual dispute regarding when the fence was built, we conclude that remand for additional factual findings is required,” the Court of Appeals said. “We believe that the factual disputes can be resolved on the existing record, but leave it to the sound discretion of the trial court whether to take additional arguments from the parties.”
Judge Thomas C. Cameron, Judge Michael J. Kelly and Judge Adrienne N. Young were on the panel that issued the unpublished opinion.
Background
The plaintiff, Charles Cheshure, filed a quiet-title action in Oakland County Circuit Court, claiming he owned the property located at 2815 Devondale in Rochester Hills, Michigan, which he had purchased on January 31, 2020. The plaintiff alleged the defendant, Elaine Marrero, who owned the adjacent parcel, had been placing her personal property on a portion of the parcel he owned since approximately 2012. In addition to seeking a quiet title judgment, the plaintiff filed claims for trespass and nuisance.
The defendant filed a counterclaim, seeking a declaratory judgment that she had acquired the disputed portion of property by adverse possession. She also claimed the plaintiff had wrongfully destroyed her personal property and, as a result, she sought damages, attorney fees and costs. The defendant later added an acquiescence claim.
Both parties filed motions for summary disposition. When the plaintiff did not respond to the defendant’s motion and did not appear at the motion hearing, the trial court granted summary disposition for the defendant. The plaintiff subsequently filed a motion for reconsideration, arguing that he did not receive a copy of the motion and claiming he sold the subject property to Nazek Gappy in June 2021. Gappy, a licensed attorney, then sought permission to join the case as a co-plaintiff, with the plaintiff (Cheshure) assigning his rights and obligations in the litigation to Gappy. The trial court granted Gappy permission to join the case but refused to set aside the summary disposition order in the defendant’s favor. Gappy appealed that decision and the Court of Appeals ordered, in part, that the summary disposition motion be reconsidered. On reconsideration, the trial court set aside the order granting summary disposition for the defendant.
Thereafter, the parties filed additional motions for summary disposition. The trial court denied those motions, finding that genuine issues of material fact existed. A three-day bench trial was held remotely, where the trial court took judicial notice of its orders, opinions and the pleadings but indicated the attachments to filed documents would not be automatically admitted. Instead, the trial court ruled the exhibits had to be verified through witness testimony and that no affidavits would be admitted without the affiant’s testimony.
Accordingly, deeds were admitted establishing the chain of title for each property. As it related to the defendant’s property, known as 2771 Devondale (“the Marrero property”), the record reflected the property was conveyed to the defendant on December 16, 1998, by Brian Bishop. As it related to Gappy’s property, known as 2815 Devondale (“the Gappy property”), the chain of title reflected several owners: 1) Brian Bishop and Brandy Bishop conveyed the property to Michael Phelps on January 5, 2001; 2) Phelps conveyed the property to Peter Zwirko on December 22, 2005; 3) Zwirko lost the property to foreclosure and, after a sheriff’s sale, the property was conveyed to the Federal National Mortgage Association; 4) the Federal National Mortgage Association conveyed the property to Lek Kalaj on May 30, 2013; 5) Kalaj conveyed the property to John Brochue on March 3, 2016; 6) Brochue conveyed the property to the plaintiff, Cheshure, on February 6, 2020; 7) and the plaintiff, Cheshure, conveyed the property to Gappy on June 9, 2021.
The trial court also heard testimony from several property owners, as well as testimony from the defendant’s handyman, Randy Miller, and from various witnesses relating to the plaintiff’s alleged destruction of the defendant’s fence and property. Further, the trial court heard testimony from Doris and Tara Lemcool, who testified regarding their observations of the boundary dispute and to the defendant’s alleged trespass and destruction of vegetation in the disputed area. The plaintiff did not appear at trial. Gappy then informed the trial court that she was not representing him.
The trial court ultimately entered an order quieting title in favor of Gappy. The trial court held 1) the defendant did not establish title to the disputed area by adverse possession or acquiescence and 2) the claims against the plaintiff were moot. The trial court further found that Gappy had established a claim for trespass but did not prove any damages. Gappy subsequently filed motions for damages and attorney fees, which the trial court denied.
The defendant appealed. Gappy cross-appealed.
Adverse Possession
On appeal, the defendant asserted that her claim for adverse possession accrued in December 1998 because she used “walking trails” in the disputed area. Alternatively, she argued her claim accrued in 2004 when she built a fence along what she believed was the property line and installed landscaping and other pieces of fence to “extend” the property line.
As to the walking trails, the Court of Appeals noted the trial court found there were “inconsistencies” in the defendant’s testimony. “Regardless, the [trial] court found credible [the defendant’s] testimony that she had used the walking trails that existed when she purchased her property in 1998, but it did not find her use to be exclusive,” the Court of Appeals said. “Exclusive use is a necessary element of adverse possession. … As such, she did not present clear and cogent evidence that disseisin of the true owner occurred in 1998.”
Regarding the fence installation, the defendant’s testimony “was corroborated by Miller, who testified that he built it … in the spring of 2004,” the Court of Appeals said. “He added that he had also built a shed in 2004. Miller stated that the fence that was depicted in trial exhibit 3 was the fence that he built for [the defendant].”
Meanwhile, “Gappy presented testimony disputing [the defendant’s] and Miller’s testimony that the fence was built in 2004,” the Court of Appeals observed, pointing to the testimony of the purchaser of the Gappy property in December 2005 (lost to foreclosure in 2011) that “the only fence on the property was an ‘L’ shaped fence on his ‘side’ of the property that had been built by his predecessor in interest.” That individual testified the photograph in trial exhibit 3 “was not the same L-shaped fence” that was on the property when it belonged to him.
“The trial court did not resolve this factual dispute,” the Court of Appeals said. “Instead, the court recognized Miller’s testimony that he built a fence and a deck in the disputed area in 2004. Yet, in its findings of fact, the court noted that the fence was only ‘allegedly’ built in 2004, and the court recognized that there was a ‘material dispute’ as to whether the fence existed in 2004. Then, when addressing the claim for adverse possession, the court prefaced its analysis by stating that even if Miller had built the fence in 2004, ‘no one acted hostile’ toward [the defendant’s] use until June 2013. Based upon the court’s statements in its opinion, it does not appear that the trial court found the fence’s installation date to be dispositive as to the adverse-possession claim. We disagree.”
Further, the trial court “erroneously focused on the true owner’s hostility toward [the defendant]” when finding hostility began in June 2013, the Court of Appeals explained. “An adverse possession claim, however, considers whether the person possessing or using the property is hostile to the true owner. … Indeed, ‘[t]he term “hostile” as employed in the law of adverse possession is a term of art and does not imply ill will; rather, hostile use is that which is inconsistent with the right of the owner, without permission asked or given, and which would entitle the owner to a cause of action against the intruder.’ … Accordingly, the trial court’s finding that the adverse-possession claim accrued in June 2013 is based upon an erroneous application of the law.”
Therefore, in light of the testimony presented and the trial court’s failure to resolve the factual dispute regarding when the fence was built, “we conclude that remand for additional factual findings is required,” the Court of Appeals stated. “If the trial court finds the [defendant’s] fence was built in the spring of 2004, that finding would be sufficient to establish the hostility element of her adverse possession claim. It is undisputed that the fence encroached on Gappy’s property. The erection of the fence is plainly inconsistent with the rights of the true owner of the Gappy property. There is no testimony that [the defendant] had asked for or obtained permission to build the fence. And given that the addition of the fence was an unauthorized intrusion upon the Gappy property, it formed the basis for a trespass action against [the defendant]. … If the trial court were to find that the fence was built in the spring of 2004, then the 15-year statutory period for adverse possession would run until the spring of 2019. Alternatively, if the court finds that the fence was constructed at a later date, the statutory period would run from that date until 15 years later. Until the accrual date of [the defendant’s] claim for adverse possession is determined, it is impossible to determine whether the elements of adverse possession were satisfied for the duration of that period.”
Accordingly, “[w]e … vacate the [trial] court’s decision on adverse possession and remand for further factual findings,” the Court of Appeals held, noting the factual disputes “can be resolved on the existing record” but leaving it to the trial court’s “sound discretion” as to whether “additional arguments from the parties” should be allowed.
Acquiescence
Next, the Court of Appeals rejected the defendant’s claim that the trial court wrongly denied her claim for acquiescence.
At issue in this case is the theory of acquiescence for the statutory period, the Court of Appeals explained. “The statutory period for acquiring property by acquiescence is 15 years. MCL 600.5801(4). To prevail, the party claiming acquiescence must show ‘that the property owners treated a boundary line or marker as the property line for 15 years.’”
In light of certain testimony from prior property owners that challenged the boundary line after the property was measured to determine whether there was an encroachment, as well as testimony regarding a phone call to police in an attempt to enforce property rights, “the [trial] court’s finding that [certain individuals] did not acquiesce to the boundary line is not clearly erroneous,” the Court of Appeals said. “On appeal, [the defendant] suggests that none of the owners of Gappy’s property took legal action against her during the 15-year period between 2004 and 2019. That is true. However, acquiescence requires both parties to treat a boundary line as the property line. … [The] testimony [of certain prior property owners] is sufficient to establish that he did not treat the boundary line as the property line. On this record, the trial court did not clearly err by finding that [the defendant] failed to establish title to the disputed area by acquiescence.”
Other Claims
The Court of Appeals continued by addressing the defendant’s statutory conversation claim under MCL 600.2919a.
“The trial court concluded that the claims against [the plaintiff] were rendered moot by its decision to quiet title in favor of Gappy,” the Court of Appeals observed. “On appeal, [the defendant] does not argue that the court’s finding that the claim was moot is erroneous. We conclude this issue is abandoned in light of Marrero’s failure to challenge the legal basis for the court’s ruling. … However, should the court on remand determine that [the defendant] established the elements of adverse possession and therefore acquired title to the disputed area, the trial court should reconsider [the] conversion claim against [the plaintiff]. That reconsideration should include evaluation of [the defendant’s] request for a default judgment against [the plaintiff] and her argument that [the plaintiff] and Gappy should be held jointly and severally liable for any damages.”
Next, the Court of Appeals denied Gappy’s assertion that the trial court erred by not awarding her damages for trespass. “[A] party asserting a claim ‘has the burden of proving damages with reasonable certainty, and damages predicated on speculation and conjecture are not recoverable.’ … In denying the motion for damages, the [trial] court reasoned that Gappy had been given an opportunity to present evidence in support of her claims during the trial. … No exhibits relating to damages were admitted. Given the lack of evidence related to damages, the court determined that Gappy had failed to prove her damages with reasonable certainty. Given that no evidence was admitted as to the value of Gappy’s claim, we conclude that the court’s finding is not clearly erroneous. The court did not err by denying Gappy’s motion for damages.”
The Court of Appeals continued by rejecting Gappy’s various arguments that the trial court had erroneously denied her motion for attorney fees.
First, the Court of Appeals denounced Gappy’s claim that she was entitled to attorney fees on behalf of the plaintiff (Cheshure). “We disagree. When she placed her appearance on the record on the first day of trial, Gappy indicated that she was ‘Nazek Gappy, and I’m alone.’ She then indicated that she had tried many times to ‘reach’ [the plaintiff] but had not heard anything back. … On the third day of trial, … Gappy responded [to the trial court] that … [the plaintiff] ‘isn’t even here to defend himself.’ She did not indicate that she was, in fact, representing him. … In light of Gappy’s express representations that she did not represent [the plaintiff], she has waived any argument that she is entitled to recover attorney fees based upon her representation of him at trial.”
Second, the Court of Appeals rejected Gappy’s contention that she was entitled to attorney fees under both MCL 600.2591 and MCR 1.109.
MCR 1.109(E)(6) provides that, if a document is signed in violation of MCR 1.109, the court shall impose sanctions and the sanctions “may include an order to pay to the other party … the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees.” Meanwhile, MCL 600.2591 says: “(1) 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. (2) The amount of costs and fees awarded under this section shall include all reasonable costs actually incurred by the prevailing party and any costs allowed by law or by court rule, including court costs and reasonable attorney fees.”
Here, Gappy did not incur any attorney fees as a pro se party, the Court of Appeals explained. “[N]otwithstanding that Gappy is both a lawyer and a pro se litigant, she cannot act as an ‘attorney’ for herself. … [A]n attorney who acts in propria persona is not entitled to recover her attorney fees under MCL 600.2591 because she neither acts as an attorney for herself nor incurs attorney fees. … The same reasoning applies to an award of attorney fees under MCR 1.109(E), which, like MCL 600.2591, predicates an award of attorney fees on the idea that the fees are actually incurred. Although the trial court did not decide the case on this ground, we nevertheless affirm the trial court’s order denying Gappy’s request for her attorney fees on this alternate ground.”
Lastly, “we conclude that the trial court did not abuse its discretion by denying Gappy’s motion for attorney fees under MCR 2.3[]12 and MCR 2.313(C),” the Court of Appeals said. “[T]he record reflects that the court denied subsequent motions for summary disposition because material issues of disputed fact continued to exist. Indeed, even now, there remain factual disputes that need to be resolved in order to fully evaluate the validity of [the defendant’s] claim for adverse possession. The [trial] court’s decision not to award sanctions under MCR 2.313 was not in error. The trial court did not err by denying Gappy’s motion for attorney fees.”
Based on the foregoing, “[w]e affirm the court’s determination as to [the defendant’s] claim for acquiescence and the [trial] court’s denial of Gappy’s requests for damages and attorney fees,” the Court of Appeals held. “We vacate the judgment quieting title in favor of Gappy and its determination that [the defendant] failed to establish title to the disputed area by adverse possession and remand for further factual and legal findings consistent with this opinion.”
