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

DEREK PENCAK and MELISSA PENCAK,

Plaintiffs/CounterdefendantsAppellants,

UNPUBLISHED

November 21, 2023

v No. 361875

St. Clair Circuit Court

LISA RICHARDSON, DAVID JAY RIEDEL, and 

CAROLYN RIEDEL,

LC No. 21-000299-CH

Defendants/CounterplaintiffsAppellees.

Before: MURRAY, P.J., and CAMERON and PATEL, JJ.

PER CURIAM.

In this property dispute, plaintiffs/counterdefendants (plaintiffs), appeal as of right the trial 

court’s final judgment and order awarding a disputed strip of land to defendants/counterplaintiffs 

(defendants). On appeal, plaintiffs argue that (1) the trial court erred by not recusing itself; and 

(2) the trial court’s judgment was contrary to the facts and the law. We affirm.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

This case involves a boundary dispute between two adjacent residential properties. 

Plaintiffs asserted claims of encroachment and infliction of emotional distress in connection with 

defendant Lisa Richardson’s erection of a wooden fence over plaintiffs’ property, and her allegedly 

threatening, coercive, and harassing behavior related to the parties’ disputed property line. 

Defendants counterclaimed, claiming adverse possession and acquiescence. 

Before trial, plaintiffs moved to disqualify the trial court judge alleging the court had 

displayed actual and/or perceived bias against plaintiffs and plaintiffs’ counsel throughout the 

pretrial proceedings. The trial court denied the motion. 

After a bench trial, the trial court entered an opinion finding that the parties’ predecessors 

in interest acquiesced for a period greater than 15 years to a new property line marked by the old 

and new fences. Accordingly, the trial court entered its final judgment and order awarding 
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defendants the disputed strip of land between the parties’ properties. The court entered a judgment 

of no cause of action on all plaintiffs’ claims. This appeal followed.

II. MOTION TO DISQUALIFY

Plaintiffs argue the trial court erred in denying their motion for disqualification. We 

disagree.

A. PRESERVATION AND STANDARD OF REVIEW

“Generally, to preserve this issue for appellate review, a motion to disqualify must be filed 

within 14 days after the moving party discovers the basis for disqualification . . . .” Kloian v 

Schwartz, 272 Mich App 232, 244; 725 NW2d 671 (2006). Plaintiffs did not file the motion within 

14 days of discovering the alleged grounds for disqualification. Therefore, this issue is 

unpreserved for our review.

“In reviewing a motion to disqualify a judge, this Court reviews the trial court’s findings 

of fact for an abuse of discretion and reviews the court’s application of those facts to the relevant 

law de novo.” In re Contempt of Henry, 282 Mich App 656, 679; 765 NW2d 44 (2009). An abuse 

of discretion occurs when a decision falls outside the range of reasonable and principled outcomes. 

In re MKK, 286 Mich App 546, 564; 781 NW2d 132 (2009).

B. LAW AND ANALYSIS

Parties are entitled to unbiased, impartial decision-makers. Mitchell v Mitchell, 296 Mich 

App 513, 523; 823 NW2d 153 (2012). “A trial judge is presumed unbiased, and the party asserting 

otherwise has the heavy burden of overcoming the presumption.” Id. Accordingly, parties must 

submit an affidavit with their motion for disqualification. Kloian, 272 Mich App at 244; see also 

MCR 2.003(D)(2).

It is undisputed plaintiffs failed to submit an affidavit along with their motion for 

disqualification. The failure to submit an affidavit constitutes a waiver of the issue. See Davis v 

Chatman, 292 Mich App 603, 615; 808 NW2d 555 (2011) (declining to consider the issue of 

disqualification for a party’s failure to file an affidavit); Cadle Co v Kentwood, 285 Mich App 240, 

255; 776 NW2d 145 (2009) (waiver extinguishes any error and precludes appellate review). 

Plaintiffs’ arguments on appeal fail to explain why this Court should not consider this issue 

waived. Thus, this issue is waived and we decline to consider it.

III. PROPERTY LINE DISPUTE

Next, plaintiffs argue that the trial court erred in resolving the parties’ property dispute. 

We disagree.

A. STANDARD OF REVIEW

“This Court reviews a trial court’s findings of fact in a bench trial for clear error and its 

conclusions of law de novo. A finding is clearly erroneous where, after reviewing the entire record, 
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this Court is left with a definite and firm conviction that a mistake has been made.” Bayberry 

Group, Inc v Crystal Beach Condo Ass’n, 334 Mich App 385, 392; 964 NW2d 846 (2020).

B. LAW AND ANALYSIS

Defendants argued they acquired title to the disputed strip of land either through 

acquiescence or adverse possession. The trial court awarded the property to defendants under the 

acquiescence theory. Plaintiffs’ arguments on appeal conflate the requirements of acquiescence1

and adverse possession2and they offer no substantive analysis explaining why the trial court erred 

in awarding title under a theory of acquiescence. 

It is not enough for an appellant in his brief simply to announce a position 

or assert an error and then leave it up to this Court to discover and rationalize the 

basis for his claims, or unravel and elaborate for him his arguments, and then search 

for authority either to sustain or reject his position. [Yee v Shiawassee Co Bd of 

Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002).]

We decline to consider this argument given plaintiffs’ failure to explain their opposition to the trial 

court’s ruling.

Affirmed. Because defendants are the prevailing party in this appeal, they may tax costs 

under MCR 7.219(A).

/s/ Christopher M. Murray 

/s/ Thomas C. Cameron 

/s/ Sima G. Patel 

 

1

“The doctrine of acquiescence provides that where adjoining property owners acquiesce to a 

boundary line for at least fifteen years, that line becomes the actual boundary line.” Killips v 

Mannisto, 244 Mich App 256, 260; 624 NW2d 224 (2001).

2

“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) (quotation marks and citation omitted).