If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

CARLO P. GINOTTI, as Trustee of the THE 

GINOTTI LIVING TRUST,

Plaintiff/Counterdefendant-Appellant,

UNPUBLISHED

January 26, 2023

v No. 360522

Oakland Circuit Court

MICHAEL LIESS and LINDA LIESS, LC No. 2020-183654-CH

Defendants/CounterplaintiffsAppellees.

Before: HOOD, P.J., and CAMERON and GARRETT, JJ.

PER CURIAM.

In this boundary dispute, plaintiff/counterdefendant Carlo P. Ginotti, as trustee of the 

Ginotti Living Trust, appeals as of right the trial court’s final judgment and order that denied 

plaintiff’s motion for summary disposition, granted summary disposition in favor of 

defendants/counterplaintiffs Michael and Linda Liess, and quieted title to the “Disputed Area”1in 

favor of defendants. Plaintiff argues that the trial court erred by concluding that defendants 

obtained title to the Disputed Area by adverse possession and acquiescence for the statutory period. 

Instead, plaintiff contends that the trial court should have quieted title in his favor. We affirm the 

trial court’s order with respect to quieting title in defendants’ favor to the concrete parking area 

and landscaping display, reverse the trial court’s order quieting title to the remainder of the

Disputed Area, and remand for further proceedings.

 

1 Unless otherwise specified, we use “Disputed Area” to refer to the triangular area identified in 

the Kem-Tec survey (produced below) to which the trial court quieted title in defendants’ favor.
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I. BACKGROUND

The Ginotti family has owned a vacant lot, Lot 40 (hereinafter, “Ginotti Property”), in 

White Lake Township, Michigan for over 50 years. In 1971, Mary Ginotti sold the Ginotti 

Property to Philip and Barbara Ginotti. Philip and Barbara later conveyed the property to the 

Ginotti Living Trust, naming themselves as trustees.2 They passed away in 2019, and plaintiff 

took over as trustee. East of the Ginotti Property is Lot 41 (hereinafter, “Liess Property”), which 

Michael purchased in September 1990. At that time, sections of a red fence existed between the 

Liess and Ginotti Properties. Michael removed the red fence at a later point, likely around the 

mid-1990s. Michael conveyed the Liess Property to himself and his wife, Linda, in August 1993. 

The properties run along Longcroft Drive to the north, with Long Lake on the south.

In 1995, defendants constructed additions on their home on the Liess Property after 

obtaining variances from White Lake Township. In April 1996, defendants hired a contractor to 

replace the gravel parking area, which existed at the time of Michael’s 1990 purchase, with a 

concrete parking area. That same year, defendants installed an irrigated sprinkler system along 

the western side of their home. Defendants also added a landscaping installation next to the 

parking area with hosta plants. Sometime later, defendants placed a small portion of white picket 

fence behind the hostas to control a grapevine plant on the Ginotti Property. The white picket 

fence has since been removed. Throughout this period of construction in the 1990s, defendants 

relied on or obtained four mortgage surveys. Mortgage surveys from 1990, 1994, and 1995 

mortgage surveys each identify a 19-foot gravel area along Longcroft Drive on the north side of 

the Liess Property. These three mortgage surveys also state that the surveys are “not to be used 

for the purpose of establishing property lines . . . .”

More recently, the parties obtained certified surveys to determine the boundary lines 

between the properties. Philip and Barbara retained Dekeyser Surveying in 2018 to conduct a 

survey. The survey shows a portion of landscaping from the Liess Property encroaching on the 

Ginotti Property, as well as a sliver of concrete near Longcroft Street that encroaches on the Ginotti 

Property. In November 2020, defendants retained a certified survey from Kem-Tec and surveyor 

Daniel Jackson. The Kem-Tec survey focuses in on the Liess Property and shows the concrete 

and landscaping encroachments identified in the Dekeyser survey. The Kem-Tec survey also 

identifies a larger “Disputed Area” running along the entire boundary between the Ginotti and 

Liess Properties. This triangular area along the western boundary of the Liess Property is the 

subject of significant dispute on appeal. For ease of understanding the dispute, we produce the 

Kem-Tec survey below.

 

2 Throughout this opinion, we will use first names to distinguish between individuals sharing the 

Ginotti and Liess surnames.
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In September 2020, plaintiff filed a quiet-title action against defendants, seeking entry of 

an order requiring defendants to remove any encroachments on the Ginotti Property identified in 

the Dekeyser survey, including the encroaching portion of the driveway and landscaping. The 

next month, defendants brought a counterclaim for quiet title, adverse possession, and 

acquiescence. Defendants sought title over the concrete parking area, the sprinkler system, and 

the landscaping installed in 1996. In their request for relief, defendants did not assert entitlement

to the larger “Disputed Area” in the Kem-Tec survey; this survey had not yet been completed when 

the counterclaim was filed.

Following discovery, the parties cross-moved for summary disposition under MCR 

2.116(C)(10). Defendants argued in their motion that they obtained title to the “Disputed Area”3—

which defendants described as a “very small strip of land including a parking area, landscaping 

and a sprinkler system”—through adverse possession and acquiescence. On the claim of adverse 

possession, defendants contended that they had maintained the Disputed Area as their own since 

at least 1996 and their possession had been actual, visible, open, notorious, exclusive, continuous, 

uninterrupted, and hostile for more than 15 years. Defendants noted that the Ginottis never 

challenged the location or installation of the original gravel parking area or updated concrete 

parking area, the original or updated landscaping, or the sprinkler system. Defendants also argued 

that they obtained title to the Disputed Area by acquiescence. Defendants claimed that Philip and 

Barbara treated the concrete parking area, landscaping, and sprinkler system as part of the Liess 

Property, and a white picket fence established the boundary line between the properties. 

Defendants noted that Michigan courts have long held that a boundary line long acquiesced in 

should not be disturbed based on new surveys, so plaintiff’s 2018 survey should not be used to 

upend the decades-long status quo. In sum, defendants requested that the trial court enter judgment 

in their favor and declare that they were the lawful owners of the Disputed Area, including the 

concrete parking area, landscaping, and sprinkler system.

Plaintiff responded, arguing that there was no genuine issue of material fact that the 

Disputed Area—which plaintiff defined as a three-to-five-foot portion of concrete parking pad and 

four-foot section of seasonal landscaping—encroached onto the Ginotti Property. Plaintiff argued 

further that defendants did not acquire this area by adverse possession because their use of the area 

was not visible, continuous, exclusive, and hostile for the required 15 years. Plaintiff disputed the 

claim of acquiescence, arguing that the parties did not agree to treat defendants’ claimed boundary 

line as the property line for at least 15 years. Thus, plaintiff requested that the trial court deny 

defendants’ motion for summary disposition. Plaintiff separately filed his own motion for 

summary disposition, which largely mirrored the arguments raised in response to defendants’ 

 

3 Throughout the summary disposition briefing, the parties sometimes assigned different 

definitions to “Disputed Area.” Defendants described it as the “Disputed Area” identified in the 

Kem-Tec survey, but plaintiff at times described it as limited to the specific encroachments of the 

parking area and landscaping. As stated in footnote 1, unless otherwise specified, we use 

“Disputed Area” to refer to the triangular area identified in the Kem-Tec survey to which the trial 

court quieted title in defendants’ favor.
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motion. Plaintiff’s motion requested that the trial court quiet title in his favor and dismiss 

defendants’ counterclaim.

At a hearing on the competing motions for summary disposition, the parties argued 

consistently with their briefing. The trial court concluded that defendants were entitled to 

summary disposition on their claims of adverse possession and acquiescence. The court

subsequently entered an order denying plaintiff’s motion for summary disposition and granting 

defendants’ motion for summary disposition. The court entered judgment for defendants and 

ordered that title to the “Disputed Area” identified in the Kem-Tec survey be quieted in defendants’ 

name. Plaintiff moved for reconsideration, arguing that the trial court quieted title to an arbitrarily 

selected area beyond the concrete parking area and landscaping that defendants directed their 

surveyor to include on the Kem-Tec survey. Plaintiff further requested that the court reconsider 

its summary disposition rulings and quiet title to the concrete parking pad and landscaping in 

plaintiff’s name. The trial court denied plaintiff’s motion for reconsideration.

This appeal followed.

II. STANDARD OF REVIEW

The trial court granted defendants’ motion for summary disposition under MCR 

2.116(C)(10) and quieted title in defendants’ name. We review de novo a trial court’s decision on 

a motion for summary disposition, as well as a trial court’s equitable rulings on actions to quiet 

title. Houston v Mint Group, LLC, 335 Mich App 545, 557; 968 NW2d 9 (2021). De novo review 

means that we review the legal issues independently and without deference to the trial court.

Wright v Genesee Co, 504 Mich 410, 417; 934 NW2d 805 (2019). A trial court may only grant 

summary disposition under MCR 2.116(C)(10) if, considering all evidence submitted by the 

parties in the light most favorable to the nonmoving party, there is no genuine issue of material 

fact and the moving party is entitled to judgment as a matter of law. Houston, 335 Mich App at 

557. “A genuine issue of material fact exists when the record, giving the benefit of reasonable 

doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” 

West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).

III. ADVERSE POSSESSION

Plaintiff first argues that the trial court erred by awarding summary disposition in 

defendants’ favor on their claim of adverse possession.

The statutory basis for a claim of adverse possession arises under MCL 600.5801:

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.” Wengel v Wengel, 270 Mich App 86, 92; 714 NW2d 371 (2006), citing MCL 
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600.5801(4). In Kipka v Fountain, 198 Mich App 435, 439; 499 NW2d 363 (1993), this Court set 

forth the elements of a successful adverse possession claim:

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. [Citation 

omitted.]

Plaintiff contends that defendants’ possession was not hostile because defendants 

mistakenly believed that the disputed land was their own property.

“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.” Houston, 335 Mich App at 559 (quotation marks and citations omitted). In Gorte v 

Dep’t of Transp, 202 Mich App 161, 170; 507 NW2d 797 (1993), this Court further explained the 

nuances of the hostility element:

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, however, does not defeat a claim of 

adverse possession. As noted by this Court in DeGroot [v Barber, 198 Mich App 

48, 53; 497 NW2d 530 (1993)], 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.

Put differently, when a party “respected a line that they believed to be the true boundary, but which 

proved not to be the true boundary,” the hostility element is established. Gorte, 202 Mich App at

171. “A party seeking to prove hostility need only demonstrate an intent to hold to a visible, 

preexisting, and recognizable boundary, and if there is evidence that the party did not believe that 

the boundary was the true line, it would make his or her case stronger because it would reflect true 

hostility.” Houston, 335 Mich App at 563.

Defendants established that their possession of the concrete parking area and landscaping 

area was hostile. Michael testified that he relied on the preexisting gravel parking area, “the 

plantings and the [red] fence and the edge of the road that were in place when [he] purchased the 

house to designate the edge of the property.” He explained that these markers “represented what 

[he] believe[d] to be the edge of [his] property.” Linda similarly testified that defendants relied 

on plantings from the previous property owners to determine the property lines. Defendants also 
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relied on the mortgage surveys to bolster their belief that the preexisting landmarks were contained 

within the Liess Property. The record shows that defendants, by relying on the plantings, parking 

area, and red fence left by the previous owners, “respected a line that they believed to be the true 

boundary, but which proved not to be the true boundary.” Gorte, 202 Mich App at 171. While 

defendants were ultimately mistaken in their assessment of the boundary lines, “[s]imply being 

mistaken with regard to the true boundary line . . . does not defeat a claim of adverse possession.” 

Id. at 170. Defendants showed that their encroachments onto the Ginotti Property were 

“inconsistent with the right of the owner” and therefore sufficiently established the element of 

hostility. See Houston, 335 Mich App at 559.

Plaintiff also argues that defendants’ possession was not open, visible, and continuous. 

Plaintiff does not dispute that the concrete parking area installed by defendants was open, visible, 

and continuous. Defendants upgraded the parking area to concrete in 1996, and it has continuously 

and visibly existed for more than 15 years since. Instead, plaintiff focuses on the landscaping and 

sprinkler system. Plaintiff argues that the landscaping was not permanently visible because it was 

seasonal and did not extend the length of the purported boundary line. We note that it is unclear 

to what extent permanent visibility is a required element of adverse possession. That is particularly 

so in the context of landscaping and other plantings that mark boundary lines, as their level of 

visibility will naturally change with the weather. In any event, defendants presented evidence that 

they installed landscaping alongside the concrete parking area in 1996 to beautify their home. 

Jackson, the Kem-Tec surveyor, noted that his crew located the exterior points of the landscaping 

area in 2020, 24 years later. And the boundaries of the landscaping display were clearly identified 

on the certified surveys in 2018 and 2020. While Jackson testified that there was no vegetation in 

the landscaping area when he visited the Liess Property, there was a line between the mulch and 

the grass that crossed over the property line. In our view, while the extent of visibility of the 

landscaping may have varied throughout the year, there is no genuine issue of material fact that 

the boundaries of the landscaping area were visible for at least 15 years. Plaintiff has presented 

no evidence creating a factual dispute on this point. In particular, plaintiff’s assertion in briefing 

that the landscaping was seasonal and not permanent is not evidence and does not suffice to 

establish a genuine issue of material fact. Thus, defendants adversely possessed the landscaping 

area identified in the Kem-Tec survey by 2011.

As for the sprinkler system, we agree that defendants have not established a claim of 

adverse possession. Crucially, nowhere in the record is there any clear indication where the 

underground sprinklers are even located. The surveys do not identify any sprinkler heads or 

irrigation system. Defendants offered a handwritten diagram, purportedly drawn at the time of 

installation in 1996, labeling various sprinkler heads throughout the Liess Property. But Michael 

conceded this diagram had no markers showing the actual property lines. And Michael testified 

vaguely that the irrigation “runs along the edge of the concrete” and “all the way down the side of 

the house.” Without clear and cogent evidence that the sprinkler heads even encroach on the 

Ginotti Property, defendants are not entitled to judgment as a matter of law on their claim of 

adverse possession over the property on which the sprinkler system sits.

The trial court, however, found that defendants adversely possessed the entire Disputed 

Area identified in the Kem-Tec survey. We reject that conclusion for purposes of entitlement to 

summary disposition under MCR 2.116(C)(10). First, as noted earlier, defendants’ counterclaim 

did not even seek possession of the Disputed Area as relief, and thus on that basis alone, we 
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question whether the trial court should have granted summary disposition in defendants’ favor 

over this larger strip of land. But even assuming that defect is not fatal, the record is absent of 

evidence establishing the western boundary of the Disputed Area. Consider this exchange during 

Jackson’s deposition:

Q. Okay. So there was no marking at the edge of the property boundary 

that would denote that disputed area?

A. No, we did not set anything on the disputed area.

Q. You didn’t set anything?

A. That is correct.

Q. Okay. So that disputed area basically was a dimension that was given to 

you, but you don’t have any independent opinion as to what that’s based upon?

A. Correct.

Michael was also asked about the bounds of the Disputed Area at his deposition:

Q. . . . [Jackson’s] testimony was that you told him to place that shaded 

area there, correct?

A. Correct.

Q. Okay. He did not place that there as part of the certified survey 

describing the Lot 41?

A. He prepared the document. I gave the direction based on the 28 years of 

maintenance and continued improvement on the property without objection from 

Ginotti family, Phillip Ginotti in particular.

Q. Now, you had this wedge. You told him to draw this wedge that goes 

all the way down to the property line at the water, correct?

A. Yes.

Q. Okay. And you had him draw that wedge out. What indicators were 

there that would put anybody on notice that you were claiming that property?

A. Taking the fence down from the original house, putting in sod, 

landscaping, sprinkler systems, new concrete, all in 28 years without objections 

from the Ginottis.

As best we can disern, the boundaries of the Disputed Area drawn on the Kem-Tec survey 

were entirely determined by defendants and added at their direction to the survey. Defendants did 

not identify markers or monuments along the border of the Disputed Area that reveal how its edges 

were determined. Neither the concrete nor the landscaping installation extends to the western 
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boundary of the Disputed Area and together these markers are merely a small section of the 

Disputed Area as identified on the Kem-Tec survey. Even accepting defendants’ assertion that the 

parties treated the white picket fence as the boundary line between the properties, defendants only 

had a small section of this fence up on the northern end of the boundary with the Ginotti Property. 

Thus, the white picket fence could not possibly establish that the parties treated the entire western 

boundary of the Disputed Area as the property line between the two lots. Nor was the white picket 

fence even in place for the 15-year statutory period. In sum, defendants have fallen far short of 

their burden to present clear and cogent evidence that they adversely possessed the entire Disputed 

Area, beyond the concrete parking area and landscaping installation. Because defendants failed to 

show that their possession over this area was “actual, visible, open, notorious, exclusive, 

continuous, and uninterrupted for the statutory period of fifteen years,” Kipka, 198 Mich App at 

439, the trial court erred by concluding as a matter of law that defendants adversely possessed the 

Disputed Area.

IV. ACQUIESCENCE

Plaintiff next argues that the trial court erred by granting summary disposition in 

defendants’ favor on the theory of acquiescence for the statutory period.

“Under Michigan law, parties may acquiesce to a new property boundary line” that is 

distinct from the titled property line. Houston, 335 Mich App at 567. “The law of acquiescence 

is concerned with a specific application of the statute of limitations to cases of adjoining property 

owners who are mistaken about where the line between their property is.” Kipka, 198 Mich App 

at 438. Again, the statute of limitations for an action for the recovery or possession of land is

generally 15 years after the cause of action first accrues. MCL 600.5801(4). Acquiescence for the

statutory period, one of the three theories of acquiescence,4is therefore met “when a preponderance 

of the evidence establishes that the parties treated a particular boundary line as the property line” 

for the 15-year statutory period. Houston, 335 Mich App at 567-568 (quotation marks and citation 

omitted). “Unlike adverse possession, a claim of acquiescence does not require that possession of 

the land was hostile or without permission.” Id. at 568.

Genuine issues of material fact exist whether the parties treated the boundary of the 

Disputed Area as the property line for 15 years. As discussed, the factual basis for the boundary 

lines of the Disputed Area is unclear and poorly-defined. While defendants, through their 

deposition testimony and declarations, presented evidence that they exclusively maintained the 

Disputed Area and treated its boundary as their property line for more than 25 years, plaintiff 

presented evidence, primarily through the affidavit of Jim Kirn, contesting defendants’ assertions. 

Kirn’s family lived on Lot 39, west of the Ginotti Property, beginning in 1956. Kirn attested that 

he, along with his brother and father, maintained the Ginotti Property each week for nearly 60 

years. Kirn stated that Barbara occasionally called Michael to “tell him to stop crossing the 

property line and mowing a portion of the Ginotti Property.” Barbara told Kirn to let her know 

 

4 The three theories of acquiescence are “(1) acquiescence for the statutory period; 

(2) acquiescence following a dispute and agreement; and (3) acquiescence arising from intention 

to deed to a marked boundary.” Houston, 335 Mich App at 567 (quotation marks and citation 

omitted).
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any time that Michael put anything on the Ginotti Property, and Kirn did so on at least one 

occasion. Thus, Kirn’s affidavit contains evidence that the Ginottis did not acquiesce to

defendants’ alleged encroachment across the entire Disputed Area, and in fact, objected to 

defendants crossing over the property line. At the very least, Kirn’s affidavit creates a genuine 

issue of material fact regarding whether the parties treated the western boundary of the Disputed 

Area as the property line between the Ginotti and Liess Properties. Accordingly, the trial court 

erred by concluding that defendants had established a claim of acquiescence.

V. PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION

Relatedly, plaintiff argues that the trial court erred by denying his motion for summary 

disposition, which sought an order quieting title in his name. Because we have concluded that 

defendants adversely possessed the encroaching portions of the concrete parking area and 

landscaping installation, the trial court did not err by refusing to quiet title in plaintiff’s name over

these encroachments. To the extent that plaintiff seeks an order quieting title to the rest of the 

Disputed Area identified in the Kem-Tec survey, genuine issues of fact remain regarding whether

defendants gained title to that area by adverse possession or acquiescence. Thus, for reasons 

discussed throughout, triable factual issues preclude us from granting judgment as a matter of law 

to plaintiff over the rest of the Disputed Area. See Houston, 335 Mich App at 557. The trial court 

did not err by denying plaintiff’s motion for summary disposition.

VI. CONCLUSION

We affirm the trial court’s summary disposition order with respect to the quieting of title

for defendants in the concrete parking pad and landscaping area identified in the Kem-Tec survey. 

We reverse the trial court’s order quieting title for defendants in the rest of the Disputed Area in 

the Kem-Tec survey, and we remand for further proceedings consistent with this opinion. We do 

not retain jurisdiction.

/s/ Noah P. Hood

/s/ Thomas C. Cameron

/s/ Kristina Robinson Garrett