Slater v. Cueny

• Docket Number: 355914
• Decision Date: 10 February 2022
• Parties: RICHARD SLATER and PEGGY SLATER, Plaintiffs/Counterdefendants-Appellees, v. MARK CUENY and POLLY CUENY, Defendants/Counterplaintiffs-Appellants, and WILLIAM A. CLINE and LAURINE M. CLINE, Third-Party Defendants, and BEACH FOREST SUBDIVISION ASSOCIATION, Defendant.
• Court: Court of Appeal of Michigan — District of US

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RICHARD SLATER and PEGGY SLATER, Plaintiffs/Counterdefendants-Appellees, v. MARK CUENY and POLLY CUENY, Defendants/Counterplaintiffs-Appellants, and WILLIAM A. CLINE and LAURINE M. CLINE, Third-Party Defendants, and BEACH FOREST SUBDIVISION ASSOCIATION, Defendant.

No. 355914

Court of Appeals of Michigan

February 10, 2022

UNPUBLISHED

Oakland Circuit Court LC No. 2015-150158-CH

Before: Sawyer, P.J., and Riordan and Redford, JJ.

PER CURIAM.

In this boundary dispute between neighbors defendants/counterplaintiffs, Mark and Polly Cueny (defendants), appeal as of right the trial court's December 14, 2020 order clarifying its judgment respecting the boundary line between their property and plaintiffs/counterdefendants, Richard and Peggy Slater (plaintiffs). We affirm.^[1]

I. FACTUAL AND PROCEDURAL BACKGROUND

This is the second appeal in this case.^[2] Plaintiffs lived next door to third-party defendants ("the Clines") for nearly 20 years. During that time, plaintiffs installed certain landscaping features along what they believed to be the boundary between the properties. The Clines never objected to the landscaping. Soon after defendants bought the Cline property in 2015, they complained that plaintiffs' landscaping infringed on their property, which prompted plaintiffs to file suit for adverse possession, acquiescence, and trespass, which in turn prompted defendants to file a countercomplaint against plaintiffs asserting the same claims and for quiet title. The trial court conducted a site visit and a bench trial after which it granted judgment in favor of plaintiffs, holding that they had established title to disputed property along the boundary line by acquiescence.

The trial court's judgment stated the trial court's findings of fact and conclusions of law and ordered among other things the following:

• The Slaters established by a preponderance of the evidence their claim for acquiescence (Complaint at Count II) such that this Court finds that the parties recognized and treated the black line on the Plot Plans (Slaters' Exhibits 2 and 16) as the boundary line between their residences. . . . As such, a judgment in favor of the Slaters is appropriate as to this cause of action.

* * *

• Both parties shall file an amended deed to their respective properties that reflects the new boundary line as reflected by the black line on the Plot Plans (Slaters' Exhibits 2 and 16).

The "Plot Plans (Slaters' Exhibits 2 and 16)" referred to surveyor drawings prepared in 1995 that depicted Lots 221 and 222 of the Beach Forest Subdivision in Troy, Michigan, respectively the plaintiffs' and defendants' properties.^[3] Testimony indicated that plaintiffs and Laurine Cline treated the straight boundary line shown on the Plot Plan drawings as the boundary between their properties, though testimony also indicated that the Plot Plan drawings did not depict landmarks on the property-like manhole covers and houses-as actually built. Rather the Plot Plans depicted planned versions that later changed slightly in location or design. Richard Slater's testimony indicated that he believed that plaintiffs' landscaping existed on plaintiffs' side of the Plot Plan boundary line.

In a portion of the trial court's judgment, the court adopted plaintiffs' proposed findings of fact which included plaintiffs' description of the boundary that plaintiffs and the Clines had recognized:

Both the Clines and Slaters treated and recognized as the boundary between their houses, a line between the two electrical boxes in the front yard by the sidewalk . . . back along the black diamond border of the bed containing the burning bushes to a space in the back corner approximately five (5) feet south (towards the Clines' Property) of the manhole cover in the backyard . . . .

After entry of the trial court's judgment, the parties continued disputing where the new boundary between the properties should run for purposes of their respective uses of the properties and definitions of the legal descriptions of their properties. Defendants took the position that the Plot Plan boundary represented the original legal boundary between the properties-meaning plaintiffs had not actually gained any land by acquiescence. Plaintiffs believed that the new postjudgment boundary should follow the specific description in their proposed findings of fact, and that, in any event, the new boundary would run along the outer edge of plaintiffs' landscaping, since that constituted the basis of plaintiffs' acquiescence claim on which they prevailed.

Neither party moved for clarification, modification, or relief from judgment, or appealed the trial court's judgment. Plaintiffs commissioned a survey to follow the specific line described in plaintiffs' findings of facts-though in fact plaintiffs appear to have exercised some discretion in directing the surveyor where the line would run. In ruling on plaintiffs' motion to enforce the judgment and find defendants in contempt, the trial court orally stated that plaintiffs' survey (which depicted a "poly line" boundary made up of five line segments oriented in slightly different directions) did not comply with the trial court's judgment which referenced the single straight Plot Plan drawings boundary line. The trial court, however, cautioned defendants that plaintiffs had gained land by acquiescence, the consequence of which required that the boundary line could not simply remain the same.

After the parties continued disagreeing where the judgment's boundary line ran, defendants moved for enforcement of the judgment and requested that the trial court appoint an independent surveyor to determine the proper boundary line based upon the judgment. Defendants argued that the boundary line had to conform to the Plot Plan drawings. Defendants requested that, after the court-appointed surveyor defined the boundary line, if any party objected to that designation, the trial court hold an evidentiary hearing at which the parties' respective surveyors and the court-appointed surveyor testify, after which the trial court would "make a decision either to affirm the line or re-mark the line consistent with its instruction." Defendants asserted that the appointment of a court-appointed surveyor would be the only way to finally resolve the boundary dispute. Plaintiffs opposed the motion on the grounds that their surveyor defined the boundary line according to the judgment and his survey had been recorded as required by the court. They argued that defendants sought to define the boundary line as the original property line and not the new boundary line set forth in the judgment. Plaintiffs stated that the trial court had opined in a previous hearing that "the line that was originally platted on this property changed by acquiescence."

The trial court held a hearing and at its conclusion appointed a special master who hired a surveyor. This surveyor created a survey that attempted to follow the specific property line description from plaintiffs' proposed findings of fact as adopted by the trial court in its judgment. The survey depicted a boundary between the properties composed of two connected line segments, one of which slightly angled to show a new boundary line featuring the land gained by acquiescence by plaintiffs according to the judgment and divergent from the straight lot line as originally platted.

In his letter reporting his recommendation, the special master explained to the parties and the trial court that this boundary line "took into account Exhibits 2 and 16, but was guided ultimately by the Judgment." The special master explained further:

This is the only appropriate approach. It is mandated by the Judgment.

It has been suggested that the "black line" was the intended boundary of the Court. For the reasons stated above, the Special Master does not agree. The black line was a starting point from which the new boundary line was to be "reflected." See Judgment, page 7, final bullet point. That is the only way to read the Judgment as a consistent whole.

At a status conference held after the parties and trial court were informed of the special master's recommendation, defendants argued that the special master's boundary line did not match the Plot Plan boundary. The trial court responded that the special master's boundary line was "not a modification and . . . not a change." Defendants argued that the special master's boundary line curved, unlike the boundary line on the Plot Plan. The trial court responded:

My original opinion in this case and order and judgment found consistent with the Plaintiffs' argument in this case, and I found based on the record that there had been acquiescence in the change of the boundary lines over a period of time based on the record that was established. . . . [T]herefore, my judgment in determining the issues in this case determined that the line was consistent basically with what the Plaintiffs' position was.

The trial court further chided defendants for arguing for the first time after the judgment's entry that implementing the Plot Plan boundary line would result in no change in the legal boundary line. The trial court issued a written order adopting the special master's proposed boundary.

Defendants appealed to this Court arguing that the special master's boundary line lacked consistency with the trial court's judgment. This Court agreed with defendants and found that the trial court sua sponte modified the judgment by approving a "curved" boundary line after its April 24, 2017 judgment defined a specific straight-line boundary between the properties. Slater I, unpub op at 3. This Court ruled that the trial court lacked authority under MCR 2.612 to so modify the judgment with "substantive, rather than...