Shadow Woods Subdivision Ass'n v. Mando

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SHADOW WOODS SUBDIVISION ASSOCIATION, Plaintiff/Counterdefendant-Appellee, v. DEAN MANDO and CLAUDIA MANDO, Defendants/Counterplaintiffs-Appellants.

No. 363651

Court of Appeals of Michigan

November 30, 2023

UNPUBLISHED

Oakland Circuit Court LC No. 2020-182764-CZ

Before: RIORDAN, P.J., and CAVANAGH and GARRETT, JJ.

PER CURIAM.

Defendants/counterplaintiffs appeal as of right the order granting summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact) to plaintiff/counterdefendant in a boundary dispute. On appeal defendants argue that the trial court erred in granting summary disposition and dismissing their counterclaims because: (1) the use of the subject area by the previous homeowners can be tacked to defendants' use to establish their claim of adverse possession; (2) defendants produced evidence to establish a genuine issue of material fact regarding the hostility required for a claim of adverse possession; and (3) the evidence presented also establishes defendants' counterclaims of acquiescence and easement by prescription. We reverse and remand to the trial court for further proceedings.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is a nonprofit corporation for the promotion and protection of the interests of residents in the Shadow Woods Subdivision. Defendants are owners and residents of a home in Shadow Woods Subdivision, located at 461 Timberline Drive. Defendants purchased the property from William Gross and Kimberly Gross on December 19, 2008. The property is subject to deed restrictions, which dedicate common areas, conveying "to each Owner a right and easement of enjoyment in and to the Common Area."

In the spring of 2018, defendants retained a contractor to construct a stone firepit structure, which included a surrounding patio and walled bench, near the rear boundary line of their property.

Approximately a year later, plaintiff's board of directors requested that defendants submit a permit, plan, or survey to verify the stone firepit structure was located entirely within defendants' property. Defendants did not comply with the request. The firepit structure and property was surveyed by a surveyor retained by plaintiff, and found to be located, for the most part, outside of the rear boundary line of defendants' property and encroaching on Shadow Woods Park, a common area of the subdivision. Plaintiff requested removal of the structure and restoration of the subject area.

After making this request, plaintiff filed its complaint for injunctive relief and damages against defendants, claiming that the firepit structure encroached and trespassed on the common area and defendants failed to remove it after notice and demand from plaintiff, in violation of the deed restrictions. Defendants answered, claiming that a firepit existed in the area of the current stone firepit structure for at least 15 years before plaintiff demanded the removal of the stone structure. Defendants also counterclaimed alleging that "the area that is the subject of this matter has been cleared and used as part of the Mando property for a period exceeding 15 years." Defendants brought claims to quiet title by acquiescence and adverse possession, and for a prescriptive easement. Defendants argued: (1) the subject area was established as a firepit area when defendants purchased the property, (2) they always believed it to be part of their property, and (3) they used and maintained it as such. Defendants additionally contended that the use of the subject area was exclusive to the owners of their home during the prior 15 years.

During his deposition, Dean Mando testified that it was his understanding "the boundary was the treeline in the back of the house." When asked further about why he believed he owned the disputed subject area, Dean Mando answered:

It has always been in my care; it has always been maintained by me. When trees fall in that area or on the property in general, it is me to clean it up, no one else. It has always been in my use for entertainment and use of the fire pit, and there-if you stand out there, there is no reason to think that it is anything but mine.

Dean Mando also stated that he knew about the state and use of the subject area during the three years immediately before purchasing the property because he saw pictures "the Grosses had left at closing, which pictured the fire pit at the time," and because of information shared by his neighbors. When asked about what existed in the subject area when he purchased the property, Dean Mando stated:

A. I recall the fire pit, some stumps, maybe, that looked like cut logs to me that were used as seats and chairs presumably around the fire pit, and that's about all that was back there.

Q. When you make reference to a fire pit, can you tell me what you mean by that?

A. Fire pit was a dug out hole in the ground, there looked to be steel ring inside of it, and then large rocks or small boulders, whatever you might call it, which surrounded that to make the ring around it.

Dean Mando went on to say that he and his family used the firepit "[s]everal times a month," from the time they purchased the property to 2018, when they began using the new structure that he contended was built in the same location.

After taking Dean Mando's deposition, plaintiff obtained an affidavit by William Gross, which stated, in pertinent part:

3. I am aware of a circle of natural rocks that was located near the rear of the 461 Timberline Drive property.... Our attempts to use the circle of rocks for a recreational fire were thwarted several years prior to selling our house when we received notice from the City of Rochester Hills that such use was prohibited. The circle of rocks were never imbedded in the ground.

4. After receiving notice from the City of Rochester Hills we only built fires in a portable metal container designed for recreational fires that could be moved from our home to the back yard. At no time did we use the common area that borders the rear of the 461 Timberline property for recreational fires.

5. I am an attorney licensed to practice law in the State of Michigan and I am familiar with the legal concept of adverse possession. During the entire period of our ownership of the 461 Timberline Drive property it was never my wife Kimberly nor my intention to claim any part of the common area at the rear border of the property as our own through adverse possession or otherwise.

Plaintiff moved for summary disposition of its claims and defendants' counterclaims under MCR 2.116(C)(10). Plaintiff argued that because defendants failed to produce evidence the Grosses used the subject area, and because the presence of any firepit in the area was not actual, visible, open, notorious, or hostile before the 2018 construction, no genuine issue of material fact remained to save defendants' defenses and counterclaims.

In response to plaintiff's motion, defendants produced affidavits by Dean Mando, Claudia Mando, and Edward Pennington, defendants' next-door neighbor. Also attached to defendants' affidavits and their response to plaintiff's motion are photographs defendants claim were supplied by William Gross, and show a ring of rocks in the backyard area near two trees. Defendants compared these photographs to a photograph of the stone firepit structure, situated near two trees that could be the same trees present in the Gross photographs, stating: "The firepit is in the same location as the ring of rocks, in front of the same small tree." Pennington's affidavit states that he lived at the house adjacent to 461 Timberline Drive since 1989. Pennington stated that the subject area, which he called the "firepit area," had been "exclusively and continuously used and maintained by the Mandos and all of the prior owners of the [461 Timberline Drive] Property," at least since he purchased his home.

In their brief in response to plaintiff's motion, defendants argued that the issue concerned the maintained area surrounding and including the firepit, not the firepit alone. Because defendants and the previous owners continuously and exclusively used this area, up to a natural tree-line boundary, as part of their backyard for over 15 years, the area was acquired through adverse possession, regardless of their intent. Defendants also argued that they were entitled to the subject area through acquiescence to the boundary line by plaintiff. Alternatively, defendants argued that they established an interest in the subject area through prescriptive easement.

At a hearing, the trial court stated that it viewed William Gross's affidavit as materially damaging to defendants' claims because it indicated that the Grosses did not use the common area for recreational fires. The trial court also cited William Gross's testimony that he and his wife did not intend to claim any part of the common area as their own, stating: "[I]t has to be open, notorious and he's specifically saying he wasn't doing that." Defendants responded that denial of firebuilding did not equate with denial of use of the area as part of the Grosses' backyard, and that the intent of the Grosses was irrelevant. The trial court rejected these arguments, stating:

I find no evidence that rises to the level of adverse possession. I have an affidavit from the previous owner saying specifically they were not using that property. They're not claiming that property as their own. Yes, they placed some rocks there. They certainly weren't using those for years before. They sold the house, just the placement of rocks (indiscernible) rises to the level of adverse possession; therefore, I am granting plaintiff's motion.

Thus the trial court granted plaintiff's motion for summary disposition, dismissed defendants...