Michael & Mary Holmes Trust v. James & Jody Mueller Trust ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL D. HOLMES and MARY JANE UNPUBLISHED
HOLMES, Individually and as trustees of the December 21, 2023
MICHAEL D. HOLMES AND MARY JANE
HOLMES REVOCABLE TRUST,
Plaintiffs-Appellees,
v No. 364145
Mecosta Circuit Court
JAMES J. MUELLER and JODY LYNN LC No. 2019-025060-CH
MUELLER, Individually and as trustees of the
JAMES JOSEPH MUELLER AND JODY LYNN
MUELLER TRUST,
Defendants-Appellants.
Before: FEENEY, P.J., and RICK and HOOD, JJ.
PER CURIAM.
Defendants appeal from a judgment of the circuit court in favor of plaintiffs following a
bench trial on their complaint to quiet title to certain real estate located in Morton Township,
Mecosta County. We affirm.
A number of witnesses testified at trial, beginning with plaintiff Michael Holmes
(“Michael”). He testified that he and his late wife resided on Lot 75 of the Oak Park 3 plat for 32
years. He purchased the lot, along with Lot 76, in 1990. He did not have the property surveyed at
the time of purchase, though he was shown one by the sellers. Lots 77 and 78, currently owned
by defendants, was at that time owned by one Mike Markey. In 1992, Michael employed a
contractor to build a channel seawall along both parcels. Markey went bankrupt and the Bellingers
purchased the property out of bankruptcy in 1993. Two years later, the Bellingers sold the property
to Dennis Lysakowski. Dennis’ parents, Don and Mary, moved onto the property in 1995, living
with Dennis. The Lysakowskis made a number of improvements to the property.
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The Lysakowskis approached Michael to sell Lot 76 so they could build a garage to provide
better access to their property.1 Apparently after the garage was built, rain runoff from the garage
roof started to cause erosion. Around this same time, two or three years after the purchase, Dennis
had moved to Lansing and his sister, Diane, was now living with the parents. The father and
daughter did landscaping on the property, including putting in what the parties refer to as a “stone
ravine” in order to combat the erosion. It is this stone ravine that is the subject of the location of
the property line. Michael testified that he took care the area between his house and the stone
ravine, while Don took care of the land on the other side of the ravine. At some point after
defendants bought the property, they removed the stones and put up a wall to deal with the runoff.
Michael testified that when he bought the property, he did not know where the lot line was
other than the seller pointing it out to him. He testified that he did know where the lot line between
Lot 76 and Lot 77 was at the channel because it was shown on the permits issued by the Department
of Natural Resources for the seawall. He further testified that if he had known where the lot line
between Lot 75 and Lot 76 actually was, he would have sold only a portion of the lot to Lysakowsi,
only enough for the garage to be built. On cross-examination, Michael testified that they had a
surveyor, Tom Sage, try to locate the lot line, but that Sage was unable to find the boundary-line
stake, but thought it should be near a large red oak tree. Don Lysakowski was also present and
they agree the boundary line was probably by a pipe with a ring in it. Dennis Lysakowski was not
part of the conversation. Michael also testified on cross-examination that defendants had put a
snow fence along the boundary line, which Michael left undisturbed. He further testified on
redirect that Dennis had provided his parents with plants that were planted only on defendant’s
side of the ravine.
Thomas Sage, a licensed land surveyor, testified regarding his survey of the property. He
testified that he was retained by Michael in 2011 to locate the lot corners so that Michael could cut
down trees and wanted to be sure to only cut down trees on his own property. He testified that
there were “a series of lot corners on the northern part of his lots I could not find.” He also testified
that he did not set any stakes on the boundary line between lots 75 and 76. Sage has subsequently
returned to the property, retained by defendants to set the boundary line between the two
properties. He stated that, consistent with current surveying standards, he set the required “irons”
in the ground at the lot corners.2 He further testified that another firm also subsequently surveyed
the property and that survey agreed with his own.
Next, Joseph Sheffer testified. He had worked for Michael doing yard work. He stated
that he did yard work for Michael beginning in 2015 and did the work on plaintiffs’ side of the
stone ravine. He did the yard work weekly between 2015 and 2017, then sporadically in 2018. He
1
According to Michael, he sold Lot 76 to Don and Mary, but learned from his attorney that they
had thereafter transferred the property to Dennis.
2
He described the “irons” as being a requirement by statute that iron markers, one-half inch in
diameter and 18 inches long, be set in the ground at the corners. He testified that surveyors might
also leave a wood stake above the ground to be easily seen.
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further stated that the lawns were noticeably different on the two sides of the ravine and that he
understood the ravine to be the property line.
Christopher Bennett testified that his mother had owned a house about one-half mile from
the subject property. He cut some trees for plaintiff in 2017 and did other work on the property
ever since. In doing the work, Michael told him not to cut any trees on the other side of the ravine
(i.e., defendant’s side) because that was someone else’s property.
Jody Mueller testified that she and her husband purchased their property in 2015.
Specifically, they purchased Lots 76, 77, 78, and 79. She testified that plaintiffs had never
indicated that they had an agreement with Dennis Lysakowski regarding the boundary line nor did
defendants acquiesce to a new boundary line. She further testified that since purchasing the
property in 2014, defendants took care of the area on plaintiffs’ side of the stone ravine. She also
testified that since purchasing the property she had not seen plaintiffs or anyone working for
plaintiffs do any maintenance on the side of the stone ravine on plaintiff’s side.
Defendants called Dennis Lysakowski as a witness on their behalf. He testified that while
they owned Lot 76, he and his father maintained the property on both sides of the stone ravine. At
no time did plaintiffs claim that the area was their property. He also stated that he never had an
agreement with plaintiffs where the boundary was nor did he ever hear Michael definitively say
where the boundary was. As for a pipe with a ring it, Lysakowski stated he thought it might mark
the boundary line, but that Michael stated that it was not.
Defendant James Mueller testified regarding the boundary line between the properties. He
testified that wife had spoken with plaintiffs’ daughter-in-law in 2017, but he had not spoken with
Michael until later. He testified that he and his wife measured from the marker on Lot 78 the 85
feet which was distance to the corner of Lots 77 and 76. The result of his measurement suggested
that there was a problem with encroachments which caused him to have the surveyor, Thomas
Sage, survey the property in November of 2017. They had a second survey done, which matched
the first. The parties did meet to discuss a resolution, but that was unsuccessful and this litigation
ensued. He further testified that since owning the property it was only defendants that maintained
the property on both sides of the stone ravine. And he testified that no survey was done when he
purchased the property.
Following a two-day bench trial, the trial court ruled against plaintiffs on their claim based
upon adverse possession, but ruled in their favor on their claim based upon acquiescence. With
respect to latter claim, the trial court opined as follows:
It would appear to this Court that due to the confusion between the parties
as to the actual boundary line at the time of the deed to Don and Mary Lysakowski,
it could be construed that the Plaintiff’s [sic] were not aware of the exact Lot line
for Lot 76 and were unaware of exactly what they deeded to the Lysakowski’s [sic].
As further evidence of this, the Plaintiff’s [sic] and the Lysakowski’s [sic] mutually
shared the waterfront area and never disputed that the Plaintiff’s [sic] could use the
portion of Lot 76 they maintained. It should further be noted that Dennis
Lysakowski never indicated the the Plaintiff’s [sic] could not use the portion of Lot
76 that they maintained after his parents deeded the property to him.
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This Court would also note that improvements were made to the Plaintiff’s
[sic] home in 2002. A survey done indicates that part of the improvements
encroached on Lot 76. There was no testimony presented that indicated any claims
or complaints were made that the improvements were on a portion of Lot 76. This
again would be evidence to this Court that there was acquiescence to a boundary
line someplace other than at the Lot line of Lot 75.
The statutory period for acquiring property by acquiescence is 15 years.
MCL 600.5801(4). This Court believes this time period clearly has been met.
The burden of proof as to acquiescence is preponderance of the evidence.
As such, this Court believes the Plaintiffs have met their burden of proof under the
theory of Acquiescence.
The trial court therefore granted plaintiffs title to that portion of Lot 76 which lies west of the stone
ravine. Defendants appeal and we affirm.
Defendants filed a combined motion for JNOV and new trial, which the trial court rejected.
At the hearing on the motion, the trial court opined as follows:
I will tell you that this Court took more than a day, about two days over a
weekend and rewatched the entire trial because this was during the time that we
were doing YouTube videos and I recorded the entire trial. I rewatched the entire
trial as I was making a decision in this case which is something that until recently,
we did not have the ability to do. Until covid, we didn’t have the ability to rewatch
and re-remember all of the testimony that was provided to the Court before making
a decision which I think is a great thing that the courts can do now.
While I was writing my opinion I could re-listen to testimony. I didn’t have
to remember it. I didn’t have to have a transcript. I could literally watch the people
re-testify so that the only thing that this Court considered was the testimony that
was presented to me at the trial. Not all these other deposition transcripts that were
presented as part of your argument, which I don’t think are relevant to this
Court’s—for this motion today because I never saw these deposition transcripts.
So based on that, the motions that have been brought today is as I indicated
a Motion Notwithstanding the Verdict in the case and I do not believe that the—
well, I’m not going to grant the motion in regards to the motion for judgment
notwithstanding the verdict. I’m also not going to grant a new trial in this matter.
I don’t think that the defendants in this case have met their burden to indicate to
this Court that the decision in this case was against the great weight of the evidence
or there was some sort of a miscarriage of justice done during the trial.
As I indicated, I re-watched all of the testimony before making a decision
in this case. I believe that this Court as I indicated, I took two days to make a
decision and reviewed the law, reviewed the testimony, and I believe also I’m
going—well, I’m also going to indicate that in regards to the argument unclean
hands, I do not think that that is an appropriate argument as well.
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I think it was clear from the testimony from Mr. Holmes that when he sold
lot 76, he didn’t know where the boundary line was. Then to argue that he started
trying to take the property back, I don’t think that that—I think that argument fails.
I clearly believe his testimony from the trial that he didn’t know where the boundary
line was. Based on that, the parties started treating shortly after that when this
ravine was put in place, the parties started to, and that was Don Lysakowski and
Mr. Holmes treating the boundary line in this case as or the ravine in this case as
the boundary line. Each side taking care of and maintaining the ravine area.
There was very, very, very limited testimony in this case about this pole
with a ring on it and I find it interesting that the argument today is that now it needs
to be this ring. That never was argued. Nobody ever said, hey, if you’re going to
find a property line being different than the survey, it needs to be that ring because
that’s what the parties were using. I find it interesting now that it comes in this
motion that it’s this pipe with a ring. There was extremely limited testimony
regarding it. All of the testimony in this case was the boundary line being the ravine
that was established shortly after the sale of the property.
And I think clearly based on that, that the 15-year time period had been
established in this Court’s mind. Therefore, whether we call it a motion for
judgment notwithstanding the verdict or for a motion for a new trial, I do not believe
that the defendants in this case have met their burden of proof. My opinion and the
judgment in this case will stand.
Defendants argue that the trial court erred both in denying the JNOV and a new trial. We disagree.
Our Supreme Court summarized the standards of review for motions for JNOV in Craig v
Oakwood Hosp, 471 Mich 67, 77; 684 NW2d 296 (2004):
We review de novo a trial court’s decision to grant or deny a motion for
judgment notwithstanding the verdict. In conducting this review de novo, we
“‘review the evidence and all legitimate inferences in the light most favorable to
the nonmoving party.’ ” Only when “the evidence viewed in this light fails to
establish a claim as a matter of law” is the moving party entitled to judgment
notwithstanding the verdict (JNOV). [Citations omitted.]
The parties submitted evidence that supported their claims and contradicted the opposing
parties’ claims. And the evidence certainly did not overwhelmingly support plaintiffs’ position.
But the standard is not whether the prevailing party overwhelmingly made their case, but whether
the evidence viewed in the light most favorable to the prevailing party nevertheless fails to
establish the claim as a matter of law. We cannot say that that is the case here.
There are three theories that fall under the doctrine of acquiescence: (1) acquiescence for
the statutory period; (2) acquiescence following a dispute and agreement; and (3) acquiescence
arising from intention to deed to a marked boundary. Sackett v Atyeo, 217 Mich App 676, 681;
552 NW2d 536 (2006). The trial court’s analysis reflects that it relied upon the first theory in
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reaching its decision. This Court elaborated on this theory in Kipka v Fountain, 198 Mich App
435, 438-439; 499 NW2d 363 (1993):
The law of acquiescence is concerned with a specific application of the
statute of limitations to cases of adjoining property owners who are mistaken about
where the line between their property is. Adjoining property owners may treat a
boundary line, typically a fence, as the property line. If the boundary line is not the
recorded property line, this results in one property owner possessing what is
actually the other property owner’s land. Regardless of the innocent nature of this
mistake, the property owner whose land is being possessed by another would have
a cause of action against the other property owner to recover possession of the land.
After fifteen years, the period for bringing an action would expire. The result is
that the property owner of record would no longer be able to enforce his title, and
the other property owner would have title by virtue of his possession of the land.
The trial court cited the confusion of the parties over where the actual boundary line was,3 as well
as the fact that plaintiffs maintained a portion of Lot 76 without objection by the Lysakowskis,
including both Dennis and his parents. And the court also noted that the subsequent survey
revealed that an improvement to plaintiffs’ property made in 2002 encroached into Lot 76, but
without the Lysakowski’s complaint..4
Defendants argue that the trial court erred because there was no evidence that Dennis
Lysakowski treated the stone ravine as the property line for fifteen years while he was the title
holder.5 But this overlooks the trial court’s determination that Dennis “never indicated that the
Plaintiff’s [sic] could not use the portion of Lot 76 that they maintained after his parents deeded
the property to him.” It also overlooks the principle that the agreement over where the boundary
line is may be tacit rather than overt. Houston v Mint Group, LLC, 335 Mich App 545, 568; 968
NW2d 9 (2021). The testimony presented by plaintiffs would support the conclusion that the
Lysakowskis, including Dennis, accepted that plaintiffs maintained that portion of Lot 76 on their
side of the stone ravine and the Lysakowskis maintained the portion on their side of the ravine,
thus reflecting a tacit agreement that the stone ravine was the property line.
Defendants also argue that the evidence does not support the parties treating the stone
ravine as the boundary line because it was put in place to address the erosion issue. While this is
certainly a strong argument on behalf of defendants, it apparently is one not accepted by the trial
court. Moreover, it is not the definitive argument that defendants believe it to be. The relevant
question is not whether the stones were placed as a monument to reflect the property line, but
3
We additionally note that it was not until sometime after plaintiffs deeded the lot to defendants’
predecessors in title that the property line was actually surveyed.
4
Defendants did raise the issue after having had their own survey done some time after their
purchase of the property.
5
Again, plaintiffs convey Lot 76 to Don and Mary Lysakowski in February 1997. Don and Mary
then conveyed the property to Dennis in December 1997. Dennis was the titled holder until he
convey his interest to the mortgagee in February 2015.
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rather whether the neighboring property owners treated it as being the property line. And the trial
court concluded that they did.
Finally, defendants point to various evidence offered in the trial court that supports their
position. While that evidence certainly supports defendants’ position and could ultimately have
justified a decision in defendants’ favor rather than in plaintiffs’ favor, ultimately the trial court
did not reach that conclusion. But whether we look to defendants’ discussion regarding the iron
pipe, an argument that got little attention until the motion for JNOV, or the extent to which Dennis
was involved with property after he became the title holder, we find guidance in this Court’s
decision in Walters v Snyder, 239 Mich App 453, 457-458; 608 NW2d 97 (2000), where we
observed the following:
Michigan precedent, however, has not defined an explicit set of elements
necessary to satisfy the doctrine of acquiescence. Rather, the courts have discussed
the doctrine in more general terms. For example, our Supreme Court has noted:
“It has been repeatedly held by this court that a boundary line long treated and
acquiesced in as the true line ought not to be disturbed on new surveys.... Fifteen
years’ recognition and acquiescence are ample for this purpose.” Johnson v
Squires, 344 Mich 687, 692; 75 NW2d 45 (1956), quoting Dupont v Starring, 42
Mich 492, 494; 4 N.W. 190 (1880) (citations omitted). This Court has most
recently indicated that applicability of the doctrine commonly arises where
“[a]djoining property owners [mistakenly] treat a boundary line, typically a fence,
as the property line.” Sackett, supra at 681–682, quoting Kipka v Fountain, 198
Mich App 435, 438; 499 NW2d 363 (1993).
These and other cases have merely inquired whether the evidence presented
establishes that the parties treated a particular boundary line as the property line.
We conclude, therefore, that in focusing its analysis on the necessity of
demonstrating plaintiff’s notice of an objective transaction continuously in
evidence, the trial court appears to have required a level of specificity in the parties’
perceptions and behavior not demanded by those cases previously applying the
doctrine. Viewing the evidence as a whole, as opposed to examining the various
occurrences in isolation, the conduct of the parties establishes that while a precise
line was never acknowledged, the boundary was understood to have run along a
line approximated by the bushes. Thus, in the absence of the heretofore
unnecessary “element” that appears to have guided the trial court’s analysis, we
believe that a preponderance of the evidence demonstrates that the parties “treated”
the bush line as the approximate property line.
The trial court focused on the picture as a whole, rejecting defendants attempt to focus on
individual facts or events (or lack thereof). The trial court’s broader perspective was the correct
one.
Even if defendants are able to persuade this Court that, had we sat as the trial court, we
would have ruled in defendants’ favor, we were not the trial court. As noted above, JNOV is
appropriate only when the evidence, viewed in the light most favorable to the nonmoving party,
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would conclude that the claim fails as a matter of law. in Craig, 471 Mich at 77. That is a high
burden to meet. The trial court was not persuaded that defendants met that burden, nor are we.
As for defendants’ motion for a new trial, the same analysis applies to that issue as above.
We review the trial court’s decision on a motion for new trial for an abuse of discretion. Kelly v
Builders Square, Inc, 465 Mich 29, 34; 632 NW2d 912 (2001). “An abuse of discretion occurs
when the trial court’s decision is outside the range of reasonable and principled outcomes.” Smith
v Khouri, 481 Mich 519; 751 NW2d 472 (2008). For the same reasons that we reject defendants’
argument that the trial court erred in denying the motion for JNOV, we conclude that the trial court
did not abuse its discretion in deny defendants a new trial.
In sum, we will not substitute our judgment for that of the trial court.
Affirmed. Plaintiffs may tax costs.
/s/ Kathleen A. Feeney
/s/ Michelle M. Rick
/s/ Noah P. Hood
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