Houston v. Mint Grp., LLC, 353082

CourtCourt of Appeal of Michigan (US)
Writing for the CourtMarkey, J.
Citation968 N.W.2d 9,335 Mich.App. 545
Parties Denise HOUSTON, Plaintiff-Appellee, v. MINT GROUP, LLC, and Jacob Wielhouwer, Defendants-Appellants.
Docket NumberNo. 353082,353082
Decision Date28 January 2021

335 Mich.App. 545
968 N.W.2d 9

Denise HOUSTON, Plaintiff-Appellee,
MINT GROUP, LLC, and Jacob Wielhouwer, Defendants-Appellants.

No. 353082

Court of Appeals of Michigan.

Submitted January 7, 2021, at Grand Rapids.
Decided January 28, 2021, at 9:20 a.m.

Legal Aid of Western Michigan (by Karen Merrill Tjapkes and Mikhail Albuseiri, Grand Rapids) for Denise Houston.

Rockford Law, PLLC (by Jake Lombardo ) for Mint Group, LLC, and Jacob Wielhouwer.

Before: Redford, P.J., and Markey and Boonstra, JJ.

Markey, J.

335 Mich.App. 549

Plaintiff, Denise Houston, and defendant Mint Group, LLC (MGL) own neighboring properties in a residential area of Grand Rapids. A retaining wall and a strip of land landscaped with a garden, trees, and shrubs located on Houston's side of the retaining wall are both situated on MGL's land according to legal descriptions and surveys. This boundary dispute concerns the ownership of the strip of land bordering the retaining wall. In a quiet-title action, Houston alleged claims of adverse

968 N.W.2d 12

possession and acquiescence, contending that her predecessor parents had cared for and tended the strip of land up to the retaining wall for more than 15 years and that she also had maintained the area. On cross-motions for summary disposition, the trial court determined as a matter of law that Houston

335 Mich.App. 550

had obtained title to the disputed property by adverse possession. The trial court, therefore, declined to address the claim of acquiescence. On appeal, defendants argue that the element of "hostility" was not established, nor could it be, for purposes of adverse possession; consequently, the trial court erred by ruling in Houston's favor on the doctrine of adverse possession. Houston challenges defendants’ position, but she also asserts that we can affirm on the alternate ground of acquiescence. We conclude that the trial court did not err by determining that Houston obtained title to the disputed strip of land under the doctrine of adverse possession; however, we also hold that Houston obtained title to the property by acquiescence. Accordingly, we affirm.


The best way to quickly grasp the layout of the properties is by examination of the following survey from 2018:

335 Mich.App. 551

Houston owns Lot 4, which is located on Union Avenue. To the north of and adjacent to Lot 4 is Lot 1,1 which is owned by MGL and located on Pleasant Street (an east-west street to the north of Lot 1 and not shown in the survey). The two lots are

968 N.W.2d 13

improved properties with residential structures. The retaining wall is specifically identified in the survey, and plaintiff submitted a photograph of the retaining wall, looking at it from Union Avenue, which is attached as Appendix A to this opinion. At issue in this case is a strip of land of about 120 square feet located between the retaining wall and the legally described boundary line to the south of the wall that separates Lots 1 and 4.

Houston's property, Lot 4, has been owned by her family since 1952—at first by her parents George and Mable Houston under land contract (equitable title) and later by deed in 1960,2 then by her mother Mable when her father George died in 1978, then by Mable and Houston jointly from 1990 to 1996, and then solely by Houston from 1996 forward under a quitclaim deed. MGL's property, Lot 1, was owned by Eugene and Virginia Proctor starting in 1968 when they purchased it by warranty deed. The Proctors conveyed the property to Vernon Proctor in 1977 by land contract, but Vernon transferred his interest back to Eugene and Virginia Proctor in 1981 by quitclaim deed. In 1990, the Proctors sold the property to Vincent Ingerson by land contract; however, he transferred his interest back to the Proctors by quitclaim deed in 1996. And in 2001, the Proctors conveyed Lot 1 by warranty deed to Kenneth Schaafsma, divesting the Proctors of their fee interest in the property. Schaafsma immediately transferred

335 Mich.App. 552

the property by warranty deed to Michael Van Dyke. Subsequently, Van Dyke defaulted on a mortgage that was granted in 2003, and the property was foreclosed on in 2009. Lot 1 was acquired in a sheriff's sale in 2009 by Bank of New York Melon Trust Company, which then conveyed the property to JPMorgan Chase Bank by quitclaim deed. Still in 2009, JPMorgan deeded the property to defendant, Jacob Wielhouwer, who was a member of MGL and its resident agent. There were apparently some conveyances of Lot 1 between Wielhouwer and his wife, Tory Wielhouwer, and MGL after 2009. Then, in 2016, MGL acquired sole ownership of the property by warranty deed from Wielhouwer and his wife. MGL leases the house on the property to multiple tenants.

In April 2019, Houston filed a complaint to quiet title to the strip of land in dispute. She alleged that in 1952, her parents planted a garden, bushes, and trees on the disputed strip of land, and she attached a 1952 photograph of the area. Houston contended that her parents and then Houston herself maintained the strip of land continuously ever since 1952. She alleged that ownership was obtained by adverse possession and acquiescence around 1983, at the latest, which was 15 years after the Proctors had purchased Lot 1. Houston claimed that the Proctors and Houston's parents had always treated the retaining wall as the boundary line between the properties.

In January 2020, defendants moved for summary disposition under MCR 2.116(C)(10). With respect to the claim of acquiescence, defendants argued that the claim failed because Houston could not demonstrate that all owners of both parcels had treated the retaining wall as the true boundary line for any continuous period of 15 years given that the Proctors’ ownership was interrupted

335 Mich.App. 553

by land contracts held by vendees who never indicated acceptance of the retaining wall as the boundary line. Defendants further maintained that 15 continuous years of acquiescence could not be established in regard to the owners of Lot 4 itself, considering that Houston could not speak to what her deceased

968 N.W.2d 14

parents believed or did not believe with respect to the location of the boundary line and retaining wall. As to adverse possession, defendants contended that Houston could not establish the required element of "hostility" because Houston took the position that her family's use of the disputed strip of land was always with the permission of the owners of Lot 1.3

Houston moved for summary disposition under MCR 2.116(C)(10). She argued that her mother had obtained title by acquiescence based on her parents’ use of the disputed strip of land and that Mable subsequently and necessarily transferred that title to Houston. Houston contended that her parents and Eugene and Virginia Proctor treated the retaining wall as the boundary line for more than 15 years. Houston relied on an affidavit by Virginia Proctor, who averred, in relevant part, as follows:

2. My husband, Eugene Proctor, and I purchased [Lot 1] ... in January 1968 from Peter and Theresa Tiddens.

3. I believed at the time we purchased [Lot 1] that the boundary line between [Lots 1 and 4] ... was marked by the retaining wall between the two properties.
335 Mich.App. 554
4. I continued to treat the retaining wall as the property boundary line during my thirty-three (33) year period of ownership.

5. For the entire period of my ownership, I knew that George, Mable, and Denise Houston maintained a garden on the southern side of [the] retaining wall and I did not object to their possession and use of that strip of property.

6. Eugene Proctor and I did not take any legal action to claim title to the strip of property disputed in this case when we owned [Lot 1].

7. Eugene Proctor and I sold our interest in [Lot 1] in March 2001.

In conjunction with Virginia Proctor's affidavit, Houston relied on the 1952 photograph that ostensibly showed that her parents had maintained the disputed strip of land as a garden-type area. In the alternative, Houston argued that she obtained title based solely on her own period of ownership, absent consideration of her parents’ ownership, because Houston had maintained the strip of land for the requisite 15-year period.

With respect to adverse possession, Houston argued that the evidence established all of the requisite elements as a matter of law, including hostility, on which issue Houston argued:

...[T]he possession was hostile in that it was adverse to the title originally owned by the Proctors. The element of hostility does not require an attitude of ill will, but rather activity adverse, or hostile, to another's rights. When two parties are unaware of the true boundary line and instead rely on a recognizable boundary marker (often a wall or fence) that

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