                            STATE OF MICHIGAN

                            COURT OF APPEALS



DAVID FERTEL,                                                         UNPUBLISHED
                                                                      March 2, 2017
               Plaintiff-Appellant,

v                                                                     No. 330169
                                                                      Oakland Circuit Court
VILLAGE OF WOLVERINE LAKE,                                            LC No. 2014-143691-CH

               Defendant-Appellee,

and

HOMEOWNERS ASSOCIATION,

               Defendant.


Before: JANSEN, P.J., and BECKERING and GADOLA, JJ.

PER CURIAM.

       In this property dispute, plaintiff, David Fertel, appeals as of right the trial court’s order
granting summary disposition to defendant, Village of Wolverine Lake, pursuant to MCR
2.116(C)(8) (failure to state a claim) and MCR 2.116(C)(10) (no genuine issue of material fact).
We affirm.

       Plaintiff and defendant own adjacent parcels of property in Oak Island Subdivision in the
Village of Wolverine Lake.1 Plaintiff acquired his parcel, which consists of lots 114 and 115 in
1992, after which he constructed a five- to six-foot wide berm where the previous owners had
maintained a garden. To the southwest of plaintiff’s parcel is a parcel consisting of lots 109-113.


1
  The parcels also include title to the centerline of a platted street known as Middle Drive that
had been vacated pursuant to resolution in 1989. The disputed property is located in what once
was Middle Drive. Plaintiff’s contention that, since 1989, the “real estate within the metes and
bounds of Middle Drive has been in titular limbo” is incorrect. Pursuant to MCL 560.227a(2)
where a platted roadway is vacated, “[i]f the lots on either side of the vacated street or alley
belong to different [owners], title up to the center line of the vacated street or alley shall vest in
the respective [owners] of the abutting lots on each side.”


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Defendant obtained this parcel by quitclaim deed in 1999, subsequently turning it into a public
park. Plaintiff’s berm encroached an unspecified distance onto defendant’s property. At some
point, plaintiff also began storing his boat on defendant’s property, near the berm he had
constructed. On August 19, 2014, defendant sent plaintiff a letter informing him that the boat
was parked on defendant’s property and that any continued trespass would result in a civil
infraction. Plaintiff refused to move the boat, and, as a result, defendant issued a citation against
him.

        On October 24, 2014, plaintiff brought a claim of adverse possession against defendant.2
After discovery, defendant filed a motion for summary disposition under MCR 2.116(C)(7)
(immunity granted by law), (8), and (10). Plaintiff failed to file an answer. At the hearing on
defendant’s motion, plaintiff addressed some of defendant’s arguments, mostly asserting that
plaintiff’s claims were not barred by governmental immunity and that plaintiff met the statutory
15-year period for adverse possession. Plaintiff did not call any witness or seek to introduce any
exhibits into evidence, nor did he assert any specific facts regarding the case; rather, plaintiff
generally maintained that he “ha[d] continuously and openly maintained” the berm “and ha[d]
made improvements to the said property.”

        The trial court granted defendant’s motion under MCR 2.116(C)(8), finding that
plaintiff’s claim that he had created, traversed, and maintained the berm did not indicate that he
had disseised defendant of the land. The trial court also granted defendant’s motion under MCR
2.116(C)(10), finding that plaintiff failed to establish a genuine issue of material fact regarding
his claim, and, therefore, that defendant was entitled to judgment as a matter of law.

        Plaintiff’s sole argument on appeal is that the trial court erred by not considering
evidence that he disseised defendant of the disputed land. We disagree. This Court reviews a
trial court’s grant of summary disposition de novo to determine whether the moving party was
entitled to judgment as a matter of law. Arabo v Michigan Gaming Control Bd, 310 Mich App
370, 382; 872 NW2d 223 (2015).

        “A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the
basis of the pleadings alone to determine if the opposing party has stated a claim for which relief
can be granted.” Hackel v Macomb Co Comm, 298 Mich App 311, 315; 826 NW2d 753 (2012)
(citation and quotation marks omitted). “A reviewing court must accept all well-pleaded
allegations as true and construe them in the light most favorable to the nonmoving party.” Id.
“The motion should be granted only if no factual development could possibly justify a recovery.”
Id. “However, a mere statement of conclusions that are not supported by allegations of fact will
not suffice to state a cause of action.” Golec v Metal Exch Corp, 208 Mich App 380, 382; 528
NW2d 756 (1995).

       “In reviewing an MCR 2.116(C)(10) motion, we are to consider all the documentary
evidence in the light most favorable to the nonmoving party.” Arabo, 310 Mich App at 382


2
 Plaintiff’s complaint also included a count to quiet title through acquiescence. Plaintiff does
not appeal the trial court’s dismissal of that count.


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(citation and quotation marks omitted). Summary disposition under MCR 2.116(C)(10) is proper
if there is “no genuine issue regarding any material fact and the moving party is entitled to
judgment as a matter of law.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868
(2008).

        “To establish adverse possession, the party claiming it must show clear and cogent proof
of possession that is actual, visible, open, notorious, exclusive, continuous and uninterrupted for
the statutory period of 15 years, hostile and under cover of claim of right.” Beach v Twp of
Lima, 489 Mich 99, 106; 802 NW2d 1 (2011). “The 15-year period begins when the rightful
owner has been disseised of the land.” Canjar v Cole, 283 Mich App 723, 731; 770 NW2d 449
(2009). “Disseisin occurs [for purposes of an adverse possession claim,] when the true owner is
deprived of possession or displaced by someone exercising the powers and privileges of
ownership.” Kipka v Fountain, 198 Mich App 435, 439; 499 NW2d 363 (1993) (alteration
added).

        In this case, the only specific factual allegations included in plaintiff’s complaint were
that he constructed a berm on defendant’s property, that he routinely traversed the berm to access
the public park, and that he maintained the berm year-round. In Kipka, 198 Mich App at 440,
this Court ruled that “[t]he mere act of building [a] retaining wall” and mowing the defendant’s
grass that lay on the plaintiff’s side of the retaining wall was not sufficient to prove that the
plaintiff disseised defendant of the disputed land. This case is analogous to Kipka; merely
constructing and maintaining a berm is insufficient to deprive the true owner of possession of his
or her property. Plaintiff did not use defendant’s property in a way that deprived defendant of
possession or that showed plaintiff was exercising the powers and privileges of ownership of that
property. Id. at 439. Rather, plaintiff merely maintained the property, which is insufficient to
show that he disseised defendant of it. Id. at 440.

        Plaintiff argues that this case is distinguishable from Kipka because he parked his boat
and vehicles on the disputed property and constructed a driveway and garden on the property.
However, this information was not contained in plaintiff’s complaint or any other lower court
file, and so we do not consider it when reviewing the trial court’s decision on defendant’s motion
for summary disposition. See Quinto v Cross & Peters Co, 451 Mich 358, 366 n 5; 547 NW2d
314 (1996) (finding that evidence submitted after the trial court ruled on a motion for summary
disposition could not be considered when reviewing the lower court’s decision). For the same
reason, we decline to consider the photographic evidence plaintiff attached to his brief to this
Court. Id. Therefore, based on the evidence submitted to the trial court, we conclude that the
trial court did not err by finding that plaintiff did not plead sufficient factual allegations to
support a claim of adverse possession.

        We also conclude that the trial court properly granted defendant’s motion under MCR
2.116(C)(10). Plaintiff did not file an answer to defendant’s motion for summary disposition,
nor did he present any testimony at the hearing to establish the existence of a genuine issue of
material fact. Plaintiff had the burden at trial to prove the elements of adverse possession. See
Beach, 489 Mich at 106. Therefore, once defendant met its initial burden by supporting its
motion with admissible evidence, in order to avoid summary disposition, plaintiff had to “go
beyond the pleadings to set forth specific facts showing that a genuine issue of material facts
exists.” Quinto, 451 Mich at 362. Plaintiff failed to do this. Specifically, plaintiff presented no

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evidence that his use of the disputed property was exclusive or hostile, i.e., “inconsistent with the
right of the owner, without permission asked or given, that would entitle the owner to a cause of
action against the intruder for trespassing.”3 Mulcahy v Verhines, 276 Mich App 693, 702; 742
NW2d 393 (2007). The only evidence before the trial court that plaintiff disseised defendant of
the land was in a sworn affidavit from plaintiff that he constructed and maintained the berm on
defendant’s land. However, as previously discussed, this was insufficient to establish disseisin.
Plaintiff failed to produce any other evidence before the trial court that established the existence
of a material factual dispute. See Quinto, 451 Mich at 362-363. Accordingly, the trial court
ruled on the undisputed facts before it and properly concluded that plaintiff failed to establish a
claim of adverse possession as a matter of law.

       We affirm.



                                                              /s/ Kathleen Jansen
                                                              /s/ Jane M. Beckering
                                                              /s/ Michael F. Gadola




3
 Even if we were inclined to consider and view as hostile plaintiff’s parking his vehicles and
boat on defendant’s property, plaintiff presented no evidence that he had parked these objects on
defendant’s property continuously for 15 years.


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