                          STATE OF MICHIGAN

                           COURT OF APPEALS


CRAIG A. MARTYN and DIANE L. MARTYN,                                UNPUBLISHED
                                                                    August 9, 2018
               Plaintiffs/Counterdefendants-
               Appellees,

v                                                                   No. 337867
                                                                    Lapeer Circuit Court
MEL WHITE and BARBARA WHITE,                                        LC No. 15-048596-CH

               Defendants/Counterplaintiffs-
               Appellants.


Before: O’BRIEN, P.J., and METER and RIORDAN, JJ.

PER CURIAM.

        Defendants, Mel and Barbara White, appeal as of right the trial court’s opinion and order,
entered after a bench trial, holding that plaintiffs, Craig and Diane Martyn, had obtained by
adverse possession a portion of the Whites’ property on which the Martyns’ predecessors-in-
interest, Mark and Kimberly Rich, had constructed a shed. The court also awarded the Martyns a
prescriptive easement to enter the Whites’ property to access and use the shed. In addition, the
court found that the Whites established their counterclaim for trespass, but awarded them only
nominal damages of $10.1 We conclude that the trial court clearly erred by finding that the
Martyns established the 15-year period of land use required for adverse possession.
Accordingly, we reverse in part.

        The Martyns and the Whites are neighbors in Hadley Township in Lapeer County. The
Martyns’ property is pie-shaped, making it wider in the back than in the front. When the
Martyns’ predecessors-in-interest, Mark and Kimberly Rich, owned the property, they added two
sheds,2 a patio composed of brick pavers, and a garden area at the back portion of the property,

1
  The trial court did not directly address the Martyns’ alternative theory of acquiescence, but did
state, in its findings of fact, that there was never an agreement between the parties to hold to a
boundary other than the true boundary.
2
  Sale and appraisal documents refer to only one large shed. However, the shed consists of two
separate portions that were constructed at different times. Because the period in which each
portion was constructed is relevant to this case, we refer to them as separate structures.


                                                -1-
in an area that Mark Rich (hereinafter “Rich”) believed was part of their lot. The Martyns
purchased the property from the Riches in 2013. An advertisement prepared by the Riches’ real-
estate agent described the property as including a large shed, and an appraisal for the property
listed the shed and patio area as part of the property. After purchasing the property, the Martyns
continued to use the sheds, patio, and garden areas.

        In July and August 2014, Craig Martyn (hereinafter “Martyn”) cleared an area bordering
his property and the Whites’ property of trees, stumps, and vines. He intended to put a garden in
that area, which he believed was part of his property. Mel White (hereinafter “White”) helped
Martyn remove a tree stump. Martyn maintained that he only cleared trees that were dead or
dying.

        In September 2014, White informed Martyn that the sheds, patio, and garden were all on
his property, which surprised Martyn. Both parties had surveys performed and they confirmed
that the patio and sheds had been constructed on the Whites’ property. The parties were not able
to resolve their disagreement over the disputed property. In 2015, the Martyns filed this action to
quiet title to the disputed areas, alleging title to the disputed portions under theories of adverse
possession or acquiescence. The Whites filed a counter-complaint, alleging a claim for trespass
based on Martyn’s removal of trees from the Whites’ property, and a claim for slander of title
because the Martyns had filed a notice of lis pendens shortly after the Whites listed their property
for sale. The Whites also requested costs and attorney fees on the ground that the Martyns’
complaint was frivolous.

        After a bench trial, the trial court found that the Martyns had established their claim for
adverse possession with respect to “the portion of the real property on which the old shed was
built to the extent the shed intruded onto land formerly owned by [the Whites] . . . .” The court
denied the Martyns’ claims with respect to the other areas for failure to show that they and their
predecessors-in-interest encroached on the Whites’ property for the necessary period of 15 years.
The court awarded the Martyns a prescriptive easement to enter the Whites’ property “to access,
use, maintain and enjoy the old shed consistent with the level of burden that has been imposed on
the servient estate for those purposes over the last 15 years.” The court also found that Martyn
had trespassed on the Whites’ property, but awarded the Whites only nominal damages of $10
for the destruction of trees. The court rejected the Whites’ counterclaim for slander of title, and
denied their request for costs and attorney fees. This appeal followed.

         The Whites challenge the trial court’s findings of fact and conclusions of law with regard
to its ruling that the Martyns established their claim for adverse possession regarding the older
shed. The Whites also challenge the trial court’s rulings that they failed to establish their claim
for slander of title, and were entitled to only nominal damages of $10 concerning their claim for
trespass. This Court reviews a trial court’s findings of fact in a bench trial for clear error. Ligon
v Detroit, 276 Mich App 120, 124; 739 NW2d 900 (2007). A factual finding is clearly erroneous
when this Court is left with a definite and firm conviction that a mistake has been made. Castro
v Goulet, 312 Mich App 1, 3; 877 NW2d 161 (2015). The trial court’s conclusions of law are
reviewed de novo. Ligon, 276 Mich App at 124.

       In Wengel v Wengel, 270 Mich App 86, 91-93; 714 NW2d 371 (2006), this Court
addressed the general requirements for proving adverse possession:

                                                -2-
              The basis for a claim of adverse possession is found in MCL 600.5801,
       which provides, in pertinent part:

                       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. MCL 600.5801(4); Kipka v Fountain,
       198 Mich App 435, 438; 499 NW2d 363 (1993). The Kipka panel, addressing the
       principles of adverse possession, stated:

                       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. A cause of action does not
               accrue until the property owner of record has been disseised of the
               land. MCL 600.5829. Disseisin occurs when the true owner is
               deprived of possession or displaced by someone exercising the
               powers and privileges of ownership. [Kipka, supra at 439
               (citations omitted).]

               Other cases additionally indicate that the possession must be hostile and
       under cover of a claim of right. McQueen v Black, 168 Mich App 641, 643; 425
       NW2d 203 (1988), quoting Connelly v Buckingham, 136 Mich App 462, 467-468,
       357 NW2d 70 (1984). “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.” Mumrow v Riddle, 67 Mich App 693, 698; 242 NW2d 489 (1976).

        The Whites argue that the trial court clearly erred by finding that the use of the older shed
existed continuously and uninterrupted for the requisite period of 15 or more years. See MCL
600.5801(4) and Wengel, 270 Mich App at 92.3 Specifically, they contend that the trial court

3
 We note that a 15-year period also applies for the Martyns’ alternative theory of acquiescence.
Sackett v Atyeo, 217 Mich App 676, 681; 552 NW2d 536 (1996).


                                                 -3-
clearly erred in finding that the 15-year period commenced no later than March 31, 2000. We
agree. Martyn admitted that he did not know when the older shed was constructed. Rich
testified that he thought he constructed the older shed in either 1999 or 2000. Rich further
testified that he thought he built the second shed two years later, and White testified that
construction of the second shed occurred sometime after his mother moved in with his family in
June 2002. Neither the trial court nor the Martyns point to anything in the record supporting the
trial court’s finding that the older shed was built no later than March 31, 2000. There appears to
be no basis for the trial court’s having picked this date.4 This action was filed in April 2015, and
the Whites filed an answer and counterclaim contesting the Martyns’ claims on May 7, 2015.
Because the older shed could have been constructed in, for example, June 2000,5 there was not
“clear and cogent proof” of 15 years of continuous and uninterrupted use. Kipka, 198 Mich App
at 439.6 As such, the Martyns failed to establish that they were entitled to the older shed by
virtue of adverse possession.

       The Whites argue that the statutory period ended in late 2014, after White had a survey
performed and discovered that the shed encroached onto the Whites’ property. The Whites
contend that the parties reached an agreement or understanding at that time that the property
belonged to the Whites and that Martyn would remove all items that encroached onto the
Whites’ land. Therefore, the Whites argue, any continued use of the property after September
2014 was with the Whites’ permission and could not support a claim for adverse possession.

        The trial court acknowledged that the parties learned of the encroachment in 2014, after
both sides obtained surveys. The court found, however, that the parties thereafter attempted to
negotiate a resolution of their dispute and were unable to reach an agreement. The trial court
stated: “Specifically, this [c]ourt does not find that the parties mutually agreed to removal of the
shed in exchange for forbearance of enforcement of the [d]efendants’ property rights.” The court
therefore rejected the Whites’ claim that any continued use after September 2014 was
permissive.

       The Whites have failed to show that the parties’ negotiations were sufficient to render the
Martyns’ claim to the subject property a permissive use. See Rozmarek v Plamondon, 419 Mich
287, 296; 351 NW2d 558 (1984) (holding that the plaintiffs’ involvement in negotiations to buy


4
  The trial court stated that Rich testified that he constructed the shed “in the spring of either
1999 or 2000,” but Rich’s testimony does not refer to construction in the “spring.” At any rate,
even if Rich had testified about construction in the “spring,” “spring” encompasses months
beyond March and lasts into June.
5
  Indeed, nothing in the record supports a higher probability of the shed having been constructed
in March 2000 rather than June 2000.
6
  Despite the Martyns’ failure to establish this required element of adverse possession (and the
resultant failure of their claim), we will address the additional arguments relating to adverse
possession because the reasonableness of the Martyns’ positions relates to the issues of sanctions
and slander of title, discussed later in this opinion.


                                                -4-
the property at issue did not defeat their claim to title for the same property by way of adverse
possession). After the surveys were performed by both sides, the parties were aware that the
sheds, patio, and garden encroached onto the Whites’ land. While the parties discussed the
situation and tried to work out a solution, the only action taken was that Martyn removed some
planter boxes. The Martyns’ offer to purchase the disputed portions of land was rejected. The
Whites made no effort to assert their rights to the land before this action was filed. Accordingly,
the trial court did not clearly err by rejecting the Whites’ argument that the Martyns’ continued
use of the shed transitioned into a permissive use after September 2014 and thus defeated their
claim for adverse possession.

       The Whites also argue that the trial court erred by finding that the Martyns were
permitted to tack their approximate two-year possession of the property onto the Riches’ prior
possession to satisfy the requisite 15-year period. The trial court found that privity with the
Riches existed because of parol representations made by the Riches’ real-estate agent when the
property was sold to the Martyns. The court stated:

               In the immediate case, privity between [p]laintiffs and their predecessors
       in interest is established by parole [sic] statements made by the predecessors’
       agents at the time of conveyance indicating that the land to be transferred
       included the shed and had a width of 260 feet, which is greater than the property
       dimensions in the legal description. Although the agents disclaimed any liability
       arising from reliance on these representations, these parole [sic] statements
       indicate an intent to transfer land beyond what is specified in the deed, including
       the disputed land. This is sufficient to establish privity for purposes of tacking.

       As explained in Siegel v Renkiewicz Estate, 373 Mich 421, 425; 129 NW2d 876 (1964):

       [I]t has long been the rule in Michigan that the statutory period of possession or
       user [sic] necessary for obtaining title by adverse possession or easement by
       prescription is not fulfilled by tacking successive periods of possession or user
       [sic] enjoyed by different persons in the absence of privity between those persons
       established by inclusion by reference to the claimed property in the instruments of
       conveyance or by parol references at time of the conveyances.

        The Martyns presented evidence that representations were made by the Riches’ real-
estate agent that the property included the two sheds and the patio. Indeed, the real-estate listing
described the property as including a “large storage shed.” An appraisal report prepared for the
property also listed “a storage shed” as an additional feature of the property. Rich acknowledged
that he assumed that the sale of the property to the Martyns included the shed. Thus, Rich
intended for the shed to be transferred to the Martyns by the sale, and the Martyns were led to
believe that they were acquiring the area that included the shed. In light of this evidence, the
trial court did not clearly err by finding that there was privity between the Martyns and the
Riches, sufficient to allow the Martyns to tack on the Riches’ prior possession of the property in
order to attempt to satisfy the requisite 15-year period for adverse possession. Id.; see also
Dubois v Karazin, 315 Mich 598, 605; 24 NW2d 414 (1946). Although the Whites emphasize
that the area encompassing the shed was not included in the deed transferring title to the


                                                -5-
Martyns, parol statements at the time the property was conveyed can establish privity.
Therefore, we reject this claim of error.

        The Whites argue that the trial court erred by finding that the element of hostility was
established because Rich testified that when he built the first shed, he intended for it to be
located fully on his own property and did not know that it encroached onto the Whites’ property.
The Whites contend that because Rich believed that the shed was on his own land, trial court
erred by finding that his construction and use of the shed was hostile to the Whites’ property
rights.

       In Gorte v Dep’t of Transp, 202 Mich App 161, 170-171; 507 NW2d 797 (1993), the
Court stated:

               Adverse possession requires a showing of clear and cogent proof that
       possession has been actual, visible, open, notorious, exclusive, continuous, and
       uninterrupted for the applicable statutory period. The possession must also be
       hostile to the title of the true owner. 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 . . . does not defeat a clam of adverse possession. [Citations
       omitted.]

It is not easy to see the difference between the “first group” (“[w]here a landowner possesses the
land of an adjacent owner with the intent to hold to the true line”) and the “second group”
(“where a person possesses the land of another intending to hold to a particular recognizable
boundary regardless of the true boundary line”) as discussed in Grote. In DeGroot v Barber, 198
Mich App 48, 52-53; 497 NW2d 530 (1993), the Court explained the difference as follows:

       [W]e have come to the conclusion that there is a distinction between the two
       concepts, albeit a subtle one. In our view, the distinction is between (1) failing to
       respect the true line, while attempting to do so, and (2) respecting the line
       believed to be the boundary, but which proves not to be the true line. Thus, in
       Warner [v Noble, 286 Mich 654; 282 NW 855 (1938)], the parties missighted along
       survey stakes in locating the boundary line before the building of a cottage, which
       proved to encroach on the neighboring lot. The Court concluded that there was
       no adverse possession inasmuch as the parties intended to hold to the true line.
       That is to say, they failed to respect the true line while attempting to do so and,
       therefore, there could be no adverse possession. An example of the second
       principle enunciated above, that adverse possession is established where the intent
       is to claim title to a visible, recognizable boundary, is illustrated in Connelly[,
       supra]. In Connelly, the defendants claimed ownership of property to a fence
       line, apparently under the mistaken belief that the fence accurately depicted the
       boundary between their property and the plaintiff’s property.               In fact,
       approximately 627 square feet over which the plaintiff held title was located on

                                                -6-
         the defendants’ side of the fence. The trial court concluded that defendants had
         established title by adverse possession, and this Court affirmed. Thus, adverse
                             { "pageset": "S1a
         possession by the                 defendants was established despite the fact that
         they were respecting the line believed to be the boundary, but that proved not to
         be the true line.

In the present case, Rich testified about respecting a “stake” that “had always been there” and
that he assumed represented the property line. As stated by the Whites themselves on appeal,
“Rich clearly testified that he knew where the property line was at the road and believed he was
following the line when he built the shed.” Accordingly, this case falls into the second category
as discussed in DeGroot, and the possession was hostile. To the extent other cases, such as
McQueen, suggest a different result, we note that DeGroot is binding under MCR 7.215(J)(1).7

       As stated in Gorte, 202 Mich App at 170, “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.” The trial court did not clearly err by
finding that the Martyns established the element of hostility in support of their claim for adverse
possession.

        The Whites next argue that the trial court erred by awarding them only nominal damages
of $10 on their trespass claim. In their counterclaim for trespass, the Whites alleged that Martyn
trespassed on their land to intentionally cut down trees, entitling them to treble damages under
MCL 600.2919. The trial court agreed that Martyn trespassed on the Whites’ property to cut
down several trees, but disagreed that the Whites were entitled to statutory treble damages,
finding that the trespass arose from a mistake regarding the scope of permission granted, not
willful misconduct. The Whites do not challenge the trial court’s ruling that they were not
entitled to treble damages because Martyn’s trespass was not willful. See Boylan v Fifty Eight
LLC, 289 Mich App 709, 725; 808 NW2d 277 (2010). They argue, however, that the trial court
erred in awarding them damages of only $10, representing $1 for each wrongfully-removed tree.

        At trial, conflicting testimony was presented regarding the condition of the wrongfully-
removed trees. White believed that the removed trees were alive, although they may have had
some damage. Martyn testified that “everything I cut down was dead or dying.”8 Although the
Whites presented an expert who testified that the replacement value of the removed trees was
$9,600, the expert did not actually see the trees before they were cut down and he did not offer
an opinion on their condition, other than his belief that they were not dead. It was up to the trial
court to resolve the conflicting testimony regarding the condition of the trees that were cut down.
The trial court found that Martyn cut down 10 living trees with a trunk diameter of two inches or


7
    See also Walker v Bowen, 333 Mich 13, 17, 22-23; 52 NW2d 574 (1952).
8
  Martyn also testified that he did not cut “all of [the] trees” for which stumps remained; he
stated that “[t]here were stumps already there.”


                                                 -7-
more, but stated that “the trees at issue . . . were not healthy when cut.” Given the testimony
presented, this finding was not clearly erroneous. Castro, 312 Mich App at 3. In light of the
trial court’s finding that none of the trees were healthy when cut, the court did not clearly err in
finding that they had only nominal value. Accordingly, we affirm the trial court’s award of only
$10 for the value of the removed trees.

         The Whites also argue that the trial court erred by rejecting their counterclaim for slander
of title. We disagree. The Whites alleged that the Martyns filed this lawsuit, including a notice
of lis pendens, one week after the Whites listed their home for sale in April 2015. The Whites
alleged that the filing of the notice of lis pendens forced them to remove their property from the
market. A claim for slander of title may be established only where a person files a notice of lis
pendens for a false or improper purpose, without lawful cause. MCL 565.108; MCL 565.25(3);
MCL 600.2907a(1); Fed Nat'l Mtg Ass'n v Lagoons Forest Condo Ass'n, 305 Mich App 258,
269-270; 852 NW2d 217 (2014). Slander of title requires malice, which may not be inferred
merely from the filing of an invalid claim. Id. The trial court found no malice, and this finding
was not clearly erroneous. Because the Whites had expressed a desire to sell their home, it was
reasonable for the Martyns to file the notice of lis pendens to protect their alleged interest in the
property that the Whites intended to sell, 9 and there was no evidence that the Martyns filed the
notice with the intent to injure the Whites. See id. The trial court did not err when it rejected the
Whites’ counterclaim for slander of title.

        In their final issue, the Whites argue that the trial court erred by rejecting their request for
sanctions under MCR 2.114 and MCL 600.2591. MCR 2.114(D) carries a mandatory sanction
for violation, and a trial court’s ruling regarding whether a party or an attorney violated MCR
2.114(D) is reviewed for clear error. Kitchen v Kitchen, 465 Mich 654, 661; 641 NW2d 245
(2002); Guerrero v Smith, 280 Mich App 647, 677-678; 761 NW2d 723 (2008); Contel Sys Corp
v Gores, 183 Mich App 706, 710-711; 455 NW2d 398 (1990). A decision whether to award
attorney fees under MCL 600.2591 is also reviewed for clear error. Ladd v Motor City Plastics
Co, 303 Mich App 83, 103; 842 NW2d 388 (2013).

       An attorney or a party is under an affirmative duty, pursuant to MCR 2.114(D), to
conduct a reasonable inquiry into both the factual and legal viability of a pleading before it is
signed. LaRose Market, Inc v Sylvan Ctr, Inc, 209 Mich App 201, 210; 530 NW2d 505 (1995).
“The reasonableness of the inquiry is determined by an objective standard and depends on the



9
  We note that a document filed in the lower-court record demonstrates that the Martyns’ belief
in having an interest in the property was not unreasonable. As discussed, the only area on which
the Martyns’ claim of adverse possession fails concerns the commencement date of the 15-year
period, but they were relying, in part, on an “affidavit by owner in lieu of survey” in which the
Riches stated that “[t]here has not been any construction on the land of any buildings, additions
or improvements since purchasing the property[.]” In other words, the Martyns had reason to
believe the sheds had existed since the Riches’ purchase of the land in 1995 and had been in use
for the requisite 15-year period.


                                                  -8-
particular facts and circumstances of the case.” Id. MCL 600.2591 permits a trial court to
impose sanctions for the filing of a frivolous action.

               The question whether a claim is frivolous is evaluated at the time the
       claim was raised. The objective of sanctions is to deter parties and attorneys from
       filing documents or asserting claims and defenses that have not been sufficiently
       investigated and researched or that are intended to serve an improper purpose.
       Sanction provisions should not be construed in a manner that has a chilling effect
       on advocacy, that prevents a party from bringing a difficult case, or that penalizes
       a party whose claim initially appears viable but later becomes unpersuasive.
       [Sprenger v Bickle, 307 Mich App 411, 423-424 n 6; 861 NW2d 52 (2014)
       (quotation marks and citations omitted).]

        The only area on which the Martyns’ claim for adverse possession of the older shed fails
is the commencement date of the 15-year period. Even though the Martyns may not have been
certain regarding the commencement date, the trial court did not clearly err by finding that the
claim for adverse possession was not frivolous, considering that the shed existed before the
Martyns purchased the property and considering the “affidavit by owner in lieu of survey,”
mentioned above in footnote 9. With regard to the Martyns’ claims as a whole, the trial court
stated:

               At the time of filing their lawsuit, the Martyns knew that the property
       purportedly conveyed to them by the [Riches] included land that, according to
       survey measures, belonged to the Whites. The physical evidence of the [Riches’]
       possession and use of this land showed areas of apparently uncontested and
       exclusive use for a period of 15 years. The affidavit in lieu of survey stated that
       there had been no construction or improvements made since the property was
       purchased in 1995. There was no reason to believe that the boundaries of the
       property had changed at any time. From these facts the Martyns could reasonably
       infer that their predecessors in interest had always used and possessed the
       disputed land in much the same way. . . . [T]his [c]ourt finds that there was a
       sufficient factual basis for the complaint.

We find no clear error with respect to this finding.

       We affirm the trial court on the issues of sanctions and slander of title but reverse the trial
court with regard to the finding of adverse possession and the granting of a prescriptive
easement.



                                                              /s/ Colleen A. O'Brien
                                                              /s/ Patrick M. Meter
                                                              /s/ Michael J. Riordan




                                                 -9-
