The Ginotti Living Trust v. Michael Liess

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
CARLO P. GINOTTI, as Trustee of the THE UNPUBLISHED
GINOTTI LIVING TRUST, January 26, 2023
Plaintiff/Counterdefendant-Appellant,
v No. 360522
Oakland Circuit Court
MICHAEL LIESS and LINDA LIESS, LC No. 2020-183654-CH
Defendants/Counterplaintiffs-
Appellees.
Before: HOOD, P.J., and CAMERON and GARRETT, JJ.
PER CURIAM.
In this boundary dispute, plaintiff/counterdefendant Carlo P. Ginotti, as trustee of the
Ginotti Living Trust, appeals as of right the trial court’s final judgment and order that denied
plaintiff’s motion for summary disposition, granted summary disposition in favor of
defendants/counterplaintiffs Michael and Linda Liess, and quieted title to the “Disputed Area”1 in
favor of defendants. Plaintiff argues that the trial court erred by concluding that defendants
obtained title to the Disputed Area by adverse possession and acquiescence for the statutory period.
Instead, plaintiff contends that the trial court should have quieted title in his favor. We affirm the
trial court’s order with respect to quieting title in defendants’ favor to the concrete parking area
and landscaping display, reverse the trial court’s order quieting title to the remainder of the
Disputed Area, and remand for further proceedings.
1
Unless otherwise specified, we use “Disputed Area” to refer to the triangular area identified in
the Kem-Tec survey (produced below) to which the trial court quieted title in defendants’ favor.
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I. BACKGROUND
The Ginotti family has owned a vacant lot, Lot 40 (hereinafter, “Ginotti Property”), in
White Lake Township, Michigan for over 50 years. In 1971, Mary Ginotti sold the Ginotti
Property to Philip and Barbara Ginotti. Philip and Barbara later conveyed the property to the
Ginotti Living Trust, naming themselves as trustees.2 They passed away in 2019, and plaintiff
took over as trustee. East of the Ginotti Property is Lot 41 (hereinafter, “Liess Property”), which
Michael purchased in September 1990. At that time, sections of a red fence existed between the
Liess and Ginotti Properties. Michael removed the red fence at a later point, likely around the
mid-1990s. Michael conveyed the Liess Property to himself and his wife, Linda, in August 1993.
The properties run along Longcroft Drive to the north, with Long Lake on the south.
In 1995, defendants constructed additions on their home on the Liess Property after
obtaining variances from White Lake Township. In April 1996, defendants hired a contractor to
replace the gravel parking area, which existed at the time of Michael’s 1990 purchase, with a
concrete parking area. That same year, defendants installed an irrigated sprinkler system along
the western side of their home. Defendants also added a landscaping installation next to the
parking area with hosta plants. Sometime later, defendants placed a small portion of white picket
fence behind the hostas to control a grapevine plant on the Ginotti Property. The white picket
fence has since been removed. Throughout this period of construction in the 1990s, defendants
relied on or obtained four mortgage surveys. Mortgage surveys from 1990, 1994, and 1995
mortgage surveys each identify a 19-foot gravel area along Longcroft Drive on the north side of
the Liess Property. These three mortgage surveys also state that the surveys are “not to be used
for the purpose of establishing property lines . . . .”
More recently, the parties obtained certified surveys to determine the boundary lines
between the properties. Philip and Barbara retained Dekeyser Surveying in 2018 to conduct a
survey. The survey shows a portion of landscaping from the Liess Property encroaching on the
Ginotti Property, as well as a sliver of concrete near Longcroft Street that encroaches on the Ginotti
Property. In November 2020, defendants retained a certified survey from Kem-Tec and surveyor
Daniel Jackson. The Kem-Tec survey focuses in on the Liess Property and shows the concrete
and landscaping encroachments identified in the Dekeyser survey. The Kem-Tec survey also
identifies a larger “Disputed Area” running along the entire boundary between the Ginotti and
Liess Properties. This triangular area along the western boundary of the Liess Property is the
subject of significant dispute on appeal. For ease of understanding the dispute, we produce the
Kem-Tec survey below.
2
Throughout this opinion, we will use first names to distinguish between individuals sharing the
Ginotti and Liess surnames.
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In September 2020, plaintiff filed a quiet-title action against defendants, seeking entry of
an order requiring defendants to remove any encroachments on the Ginotti Property identified in
the Dekeyser survey, including the encroaching portion of the driveway and landscaping. The
next month, defendants brought a counterclaim for quiet title, adverse possession, and
acquiescence. Defendants sought title over the concrete parking area, the sprinkler system, and
the landscaping installed in 1996. In their request for relief, defendants did not assert entitlement
to the larger “Disputed Area” in the Kem-Tec survey; this survey had not yet been completed when
the counterclaim was filed.
Following discovery, the parties cross-moved for summary disposition under MCR
2.116(C)(10). Defendants argued in their motion that they obtained title to the “Disputed Area”3—
which defendants described as a “very small strip of land including a parking area, landscaping
and a sprinkler system”—through adverse possession and acquiescence. On the claim of adverse
possession, defendants contended that they had maintained the Disputed Area as their own since
at least 1996 and their possession had been actual, visible, open, notorious, exclusive, continuous,
uninterrupted, and hostile for more than 15 years. Defendants noted that the Ginottis never
challenged the location or installation of the original gravel parking area or updated concrete
parking area, the original or updated landscaping, or the sprinkler system. Defendants also argued
that they obtained title to the Disputed Area by acquiescence. Defendants claimed that Philip and
Barbara treated the concrete parking area, landscaping, and sprinkler system as part of the Liess
Property, and a white picket fence established the boundary line between the properties.
Defendants noted that Michigan courts have long held that a boundary line long acquiesced in
should not be disturbed based on new surveys, so plaintiff’s 2018 survey should not be used to
upend the decades-long status quo. In sum, defendants requested that the trial court enter judgment
in their favor and declare that they were the lawful owners of the Disputed Area, including the
concrete parking area, landscaping, and sprinkler system.
Plaintiff responded, arguing that there was no genuine issue of material fact that the
Disputed Area—which plaintiff defined as a three-to-five-foot portion of concrete parking pad and
four-foot section of seasonal landscaping—encroached onto the Ginotti Property. Plaintiff argued
further that defendants did not acquire this area by adverse possession because their use of the area
was not visible, continuous, exclusive, and hostile for the required 15 years. Plaintiff disputed the
claim of acquiescence, arguing that the parties did not agree to treat defendants’ claimed boundary
line as the property line for at least 15 years. Thus, plaintiff requested that the trial court deny
defendants’ motion for summary disposition. Plaintiff separately filed his own motion for
summary disposition, which largely mirrored the arguments raised in response to defendants’
3
Throughout the summary disposition briefing, the parties sometimes assigned different
definitions to “Disputed Area.” Defendants described it as the “Disputed Area” identified in the
Kem-Tec survey, but plaintiff at times described it as limited to the specific encroachments of the
parking area and landscaping. As stated in footnote 1, unless otherwise specified, we use
“Disputed Area” to refer to the triangular area identified in the Kem-Tec survey to which the trial
court quieted title in defendants’ favor.
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motion. Plaintiff’s motion requested that the trial court quiet title in his favor and dismiss
defendants’ counterclaim.
At a hearing on the competing motions for summary disposition, the parties argued
consistently with their briefing. The trial court concluded that defendants were entitled to
summary disposition on their claims of adverse possession and acquiescence. The court
subsequently entered an order denying plaintiff’s motion for summary disposition and granting
defendants’ motion for summary disposition. The court entered judgment for defendants and
ordered that title to the “Disputed Area” identified in the Kem-Tec survey be quieted in defendants’
name. Plaintiff moved for reconsideration, arguing that the trial court quieted title to an arbitrarily
selected area beyond the concrete parking area and landscaping that defendants directed their
surveyor to include on the Kem-Tec survey. Plaintiff further requested that the court reconsider
its summary disposition rulings and quiet title to the concrete parking pad and landscaping in
plaintiff’s name. The trial court denied plaintiff’s motion for reconsideration.
This appeal followed.
II. STANDARD OF REVIEW
The trial court granted defendants’ motion for summary disposition under MCR
2.116(C)(10) and quieted title in defendants’ name. We review de novo a trial court’s decision on
a motion for summary disposition, as well as a trial court’s equitable rulings on actions to quiet
title. Houston v Mint Group, LLC, 335 Mich App 545, 557; 968 NW2d 9 (2021). De novo review
means that we review the legal issues independently and without deference to the trial court.
Wright v Genesee Co, 504 Mich 410, 417; 934 NW2d 805 (2019). A trial court may only grant
summary disposition under MCR 2.116(C)(10) if, considering all evidence submitted by the
parties in the light most favorable to the nonmoving party, there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Houston, 335 Mich App at
557. “A genuine issue of material fact exists when the record, giving the benefit of reasonable
doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.”
West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
III. ADVERSE POSSESSION
Plaintiff first argues that the trial court erred by awarding summary disposition in
defendants’ favor on their claim of adverse possession.
The statutory basis for a claim of adverse possession arises under MCL 600.5801:
No person may bring or maintain any action for the recovery or possession of any
lands or make any entry upon any lands unless, after the claim or right to make the
entry first accrued to himself or to someone through whom he claims, he
commences the action or makes the entry within the periods of time prescribed by
this section.
“Generally, an action for the recovery or possession of land must be brought within 15 years after
it accrues.” Wengel v Wengel, 270 Mich App 86, 92; 714 NW2d 371 (2006), citing MCL
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600.5801(4). In Kipka v Fountain, 198 Mich App 435, 439; 499 NW2d 363 (1993), this Court set
forth the elements of a successful adverse possession claim:
A claim of adverse possession requires clear and cogent proof that possession has
been actual, visible, open, notorious, exclusive, continuous, and uninterrupted for
the statutory period of fifteen years. These are not arbitrary requirements, but the
logical consequence of someone claiming by adverse possession having the burden
of proving that the statute of limitations has expired. To claim by adverse
possession, one must show that the property owner of record has had a cause of
action for recovery of the land for more than the statutory period. [Citation
omitted.]
Plaintiff contends that defendants’ possession was not hostile because defendants
mistakenly believed that the disputed land was their own property.
“The 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.” Houston, 335 Mich App at 559 (quotation marks and citations omitted). In Gorte v
Dep’t of Transp, 202 Mich App 161, 170; 507 NW2d 797 (1993), this Court further explained the
nuances of the hostility element:
Where a landowner possesses the land of an adjacent owner with the intent to hold
to the true line, the possession is not hostile and cannot establish adverse
possession. By contrast, where a person possesses the land of another intending to
hold to a particular recognizable boundary regardless of the true boundary line, the
possession is hostile and adverse possession may be established. Simply being
mistaken with regard to the true boundary line, however, does not defeat a claim of
adverse possession. As noted by this Court in DeGroot [v Barber, 198 Mich App
48, 53; 497 NW2d 530 (1993)], it would be unjust to limit the application of the
doctrine of adverse possession to those adverse possessors who knew the
possession was wrong, while excluding those whose possession was by mistake,
thereby rewarding the thief while punishing the person who was merely mistaken.
Put differently, when a party “respected a line that they believed to be the true boundary, but which
proved not to be the true boundary,” the hostility element is established. Gorte, 202 Mich App at
171. “A party seeking to prove hostility need only demonstrate an intent to hold to a visible,
preexisting, and recognizable boundary, and if there is evidence that the party did not believe that
the boundary was the true line, it would make his or her case stronger because it would reflect true
hostility.” Houston, 335 Mich App at 563.
Defendants established that their possession of the concrete parking area and landscaping
area was hostile. Michael testified that he relied on the preexisting gravel parking area, “the
plantings and the [red] fence and the edge of the road that were in place when [he] purchased the
house to designate the edge of the property.” He explained that these markers “represented what
[he] believe[d] to be the edge of [his] property.” Linda similarly testified that defendants relied
on plantings from the previous property owners to determine the property lines. Defendants also
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relied on the mortgage surveys to bolster their belief that the preexisting landmarks were contained
within the Liess Property. The record shows that defendants, by relying on the plantings, parking
area, and red fence left by the previous owners, “respected a line that they believed to be the true
boundary, but which proved not to be the true boundary.” Gorte, 202 Mich App at 171. While
defendants were ultimately mistaken in their assessment of the boundary lines, “[s]imply being
mistaken with regard to the true boundary line . . . does not defeat a claim of adverse possession.”
Id. at 170. Defendants showed that their encroachments onto the Ginotti Property were
“inconsistent with the right of the owner” and therefore sufficiently established the element of
hostility. See Houston, 335 Mich App at 559.
Plaintiff also argues that defendants’ possession was not open, visible, and continuous.
Plaintiff does not dispute that the concrete parking area installed by defendants was open, visible,
and continuous. Defendants upgraded the parking area to concrete in 1996, and it has continuously
and visibly existed for more than 15 years since. Instead, plaintiff focuses on the landscaping and
sprinkler system. Plaintiff argues that the landscaping was not permanently visible because it was
seasonal and did not extend the length of the purported boundary line. We note that it is unclear
to what extent permanent visibility is a required element of adverse possession. That is particularly
so in the context of landscaping and other plantings that mark boundary lines, as their level of
visibility will naturally change with the weather. In any event, defendants presented evidence that
they installed landscaping alongside the concrete parking area in 1996 to beautify their home.
Jackson, the Kem-Tec surveyor, noted that his crew located the exterior points of the landscaping
area in 2020, 24 years later. And the boundaries of the landscaping display were clearly identified
on the certified surveys in 2018 and 2020. While Jackson testified that there was no vegetation in
the landscaping area when he visited the Liess Property, there was a line between the mulch and
the grass that crossed over the property line. In our view, while the extent of visibility of the
landscaping may have varied throughout the year, there is no genuine issue of material fact that
the boundaries of the landscaping area were visible for at least 15 years. Plaintiff has presented
no evidence creating a factual dispute on this point. In particular, plaintiff’s assertion in briefing
that the landscaping was seasonal and not permanent is not evidence and does not suffice to
establish a genuine issue of material fact. Thus, defendants adversely possessed the landscaping
area identified in the Kem-Tec survey by 2011.
As for the sprinkler system, we agree that defendants have not established a claim of
adverse possession. Crucially, nowhere in the record is there any clear indication where the
underground sprinklers are even located. The surveys do not identify any sprinkler heads or
irrigation system. Defendants offered a handwritten diagram, purportedly drawn at the time of
installation in 1996, labeling various sprinkler heads throughout the Liess Property. But Michael
conceded this diagram had no markers showing the actual property lines. And Michael testified
vaguely that the irrigation “runs along the edge of the concrete” and “all the way down the side of
the house.” Without clear and cogent evidence that the sprinkler heads even encroach on the
Ginotti Property, defendants are not entitled to judgment as a matter of law on their claim of
adverse possession over the property on which the sprinkler system sits.
The trial court, however, found that defendants adversely possessed the entire Disputed
Area identified in the Kem-Tec survey. We reject that conclusion for purposes of entitlement to
summary disposition under MCR 2.116(C)(10). First, as noted earlier, defendants’ counterclaim
did not even seek possession of the Disputed Area as relief, and thus on that basis alone, we
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question whether the trial court should have granted summary disposition in defendants’ favor
over this larger strip of land. But even assuming that defect is not fatal, the record is absent of
evidence establishing the western boundary of the Disputed Area. Consider this exchange during
Jackson’s deposition:
Q. Okay. So there was no marking at the edge of the property boundary
that would denote that disputed area?
A. No, we did not set anything on the disputed area.
Q. You didn’t set anything?
A. That is correct.
Q. Okay. So that disputed area basically was a dimension that was given to
you, but you don’t have any independent opinion as to what that’s based upon?
A. Correct.
Michael was also asked about the bounds of the Disputed Area at his deposition:
Q. . . . [Jackson’s] testimony was that you told him to place that shaded
area there, correct?
A. Correct.
Q. Okay. He did not place that there as part of the certified survey
describing the Lot 41?
A. He prepared the document. I gave the direction based on the 28 years of
maintenance and continued improvement on the property without objection from
Ginotti family, Phillip Ginotti in particular.
Q. Now, you had this wedge. You told him to draw this wedge that goes
all the way down to the property line at the water, correct?
A. Yes.
Q. Okay. And you had him draw that wedge out. What indicators were
there that would put anybody on notice that you were claiming that property?
A. Taking the fence down from the original house, putting in sod,
landscaping, sprinkler systems, new concrete, all in 28 years without objections
from the Ginottis.
As best we can disern, the boundaries of the Disputed Area drawn on the Kem-Tec survey
were entirely determined by defendants and added at their direction to the survey. Defendants did
not identify markers or monuments along the border of the Disputed Area that reveal how its edges
were determined. Neither the concrete nor the landscaping installation extends to the western
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boundary of the Disputed Area and together these markers are merely a small section of the
Disputed Area as identified on the Kem-Tec survey. Even accepting defendants’ assertion that the
parties treated the white picket fence as the boundary line between the properties, defendants only
had a small section of this fence up on the northern end of the boundary with the Ginotti Property.
Thus, the white picket fence could not possibly establish that the parties treated the entire western
boundary of the Disputed Area as the property line between the two lots. Nor was the white picket
fence even in place for the 15-year statutory period. In sum, defendants have fallen far short of
their burden to present clear and cogent evidence that they adversely possessed the entire Disputed
Area, beyond the concrete parking area and landscaping installation. Because defendants failed to
show that their possession over this area was “actual, visible, open, notorious, exclusive,
continuous, and uninterrupted for the statutory period of fifteen years,” Kipka, 198 Mich App at
439, the trial court erred by concluding as a matter of law that defendants adversely possessed the
Disputed Area.
IV. ACQUIESCENCE
Plaintiff next argues that the trial court erred by granting summary disposition in
defendants’ favor on the theory of acquiescence for the statutory period.
“Under Michigan law, parties may acquiesce to a new property boundary line” that is
distinct from the titled property line. Houston, 335 Mich App at 567. “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.” Kipka, 198 Mich App
at 438. Again, the statute of limitations for an action for the recovery or possession of land is
generally 15 years after the cause of action first accrues. MCL 600.5801(4). Acquiescence for the
statutory period, one of the three theories of acquiescence,4 is therefore met “when a preponderance
of the evidence establishes that the parties treated a particular boundary line as the property line”
for the 15-year statutory period. Houston, 335 Mich App at 567-568 (quotation marks and citation
omitted). “Unlike adverse possession, a claim of acquiescence does not require that possession of
the land was hostile or without permission.” Id. at 568.
Genuine issues of material fact exist whether the parties treated the boundary of the
Disputed Area as the property line for 15 years. As discussed, the factual basis for the boundary
lines of the Disputed Area is unclear and poorly-defined. While defendants, through their
deposition testimony and declarations, presented evidence that they exclusively maintained the
Disputed Area and treated its boundary as their property line for more than 25 years, plaintiff
presented evidence, primarily through the affidavit of Jim Kirn, contesting defendants’ assertions.
Kirn’s family lived on Lot 39, west of the Ginotti Property, beginning in 1956. Kirn attested that
he, along with his brother and father, maintained the Ginotti Property each week for nearly 60
years. Kirn stated that Barbara occasionally called Michael to “tell him to stop crossing the
property line and mowing a portion of the Ginotti Property.” Barbara told Kirn to let her know
4
The three theories of acquiescence are “(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.” Houston, 335 Mich App at 567 (quotation marks and citation
omitted).
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any time that Michael put anything on the Ginotti Property, and Kirn did so on at least one
occasion. Thus, Kirn’s affidavit contains evidence that the Ginottis did not acquiesce to
defendants’ alleged encroachment across the entire Disputed Area, and in fact, objected to
defendants crossing over the property line. At the very least, Kirn’s affidavit creates a genuine
issue of material fact regarding whether the parties treated the western boundary of the Disputed
Area as the property line between the Ginotti and Liess Properties. Accordingly, the trial court
erred by concluding that defendants had established a claim of acquiescence.
V. PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION
Relatedly, plaintiff argues that the trial court erred by denying his motion for summary
disposition, which sought an order quieting title in his name. Because we have concluded that
defendants adversely possessed the encroaching portions of the concrete parking area and
landscaping installation, the trial court did not err by refusing to quiet title in plaintiff’s name over
these encroachments. To the extent that plaintiff seeks an order quieting title to the rest of the
Disputed Area identified in the Kem-Tec survey, genuine issues of fact remain regarding whether
defendants gained title to that area by adverse possession or acquiescence. Thus, for reasons
discussed throughout, triable factual issues preclude us from granting judgment as a matter of law
to plaintiff over the rest of the Disputed Area. See Houston, 335 Mich App at 557. The trial court
did not err by denying plaintiff’s motion for summary disposition.
VI. CONCLUSION
We affirm the trial court’s summary disposition order with respect to the quieting of title
for defendants in the concrete parking pad and landscaping area identified in the Kem-Tec survey.
We reverse the trial court’s order quieting title for defendants in the rest of the Disputed Area in
the Kem-Tec survey, and we remand for further proceedings consistent with this opinion. We do
not retain jurisdiction.
/s/ Noah P. Hood
/s/ Thomas C. Cameron
/s/ Kristina Robinson Garrett
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