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### STATE OF MICHIGAN

COURT OF APPEALS

MARY ANN LAMKIN,

Plaintiff-Appellant, UNPUBLISHED November 15, 2016

v No. 329630 Livingston Circuit Court CATHERINE BARRETT, LC No. 15-28694-NZ

Defendant-Appellee.

Before: B OONSTRA , P.J., and S HAPIRO and G ADOLA , JJ.

P ER C URIAM

.

Plaintiff appeals by right the trial court’s order, following a show cause hearing, granting summary disposition in favor of defendant pursuant to MCR 2.116 (I)(2), and dismissing plaintiff’s case. Plaintiff also appeals the trial court’s ear lier denial of plaintiff’s request for a temporary restraining order, and its order denying plaintiff’s motion for reconsideration of the summary disposition order. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises out of a dispute between neighbors over the o wnership of an approximately one-foot wide strip of land that runs between a f ence located on defendant’s property and the property line between plaintiff’s and defendan t’s parcels. Plaintiff filed her complaint on August 25, 2015, asserting that she owned the disp uted property, and the fence, by virtue of adverse possession, an d that she so acquired that own ership interest in 2006. 1 Plaintiff

1 Plaintiff’s complaint alleges a single count, labeled “Injunct ive Relief.” Injunctive relief, is not, however, a legal theory or cause of action; it is merely a type of relief that may be awarded when a party prevails on a cause of action. Terlecki v Stewart , 278 Mich App 644, 663; 754 NW2d 899 (2008). Nonetheless, giving plaintiff the benefit of the d oubt, and looking to the gravamen of the claim that is asserted, Adams v Adams , 276 Mich App 704, 710; 742 NW2d 399 (2007),

we conclude that the trial court properly construe d plaintiff’s complaint as asserting a claim of adverse possession. We will discuss the doctrines of “adverse possession” and “acquiescence” in greater detail later in this opi nion; for now, however, we note that plaintiff’s complaint repeatedly refers to plaintiff’s assertion of a “claim of adver se possession,” and that, by our-2- sought monetary damages in part fo r the destruction of property as well as an ex parte temporary restraining order (TRO) in part enjoining defendant from removi ng the fence or trespassing on the strip of disputed land. The trial court declined to grant plaintiff a TRO, but ordered that a show cause hearing be held on September 3, 2015, regarding plai ntiff’s request for injunctive

relief.

At the show cause hearing, plaint iff, acting in pro per, state d that she had filed her suit the same day that defendant had begun tearing down the fence in ord er to build a new fence on the property line. By the time of the hearing, the old fence had b een torn down. Plaintiff stated that Harvey and Jean Vincent, who at one time had owned defendant’s property, erected the fence in 1991 and had “put on the land use permit requesting that they s et a new boundary one foot off their property line.” According to plaintiff, the offsetting o f the fence by one foot from the property line was to ensure that she did not “touch their fence in any way, shape or form.” Plaintiff then stated that all of defendant’s relevant predeces sors in title, i.e., the Vincents, Betty Krupa-Miller, and BJD Developmen t Corporation (BJD) (in chronol ogical order), were aware that the fence did not mark the actual deeded boundary line bet ween the properties. Plaintiff

stated that she did not touch the fence until she filed with th e Register of Deeds, in 2002, an affidavit that she called a “notice of adverse possession.” Pl aintiff also stated that “if there’s recognition of a new boundary tha t is acquiesce [sic] to a boun dary.” Plaintiff stated that she told Krupa-Miller, who succeeded the Vincents as the owner of d efendant’s prope rty, that the fence was off the property line, and alleged that Krupa-Miller stated that she was going to “leav[e] it.” Plaintiff also stated that she had repaired the fence and used the strip of land, and that defendant and her predecessors in title had never done so.

The trial court found that plain tiff had not established the e lements of adverse possession sufficiently to warrant the grant of an injunction. The trial court also orally granted summary disposition in favor of defendant, pursuant to MCR 2.116(I)(2). The trial court held that “the hostile element of an adverse possession has not been met here. ” Plaintiff responded that her claim was “not strictly adverse possession” but was “an acquies cence to a boundary case.” The trial court stated with regard to acquiescence that “the partie s put the fence—they recognized where the boundary line was a nd they put that fence in a foot . . . .”

The trial court issued an order denying plaintiff’s request fo r an injunction and granting summary disposition in favor of defendant. 2 Plaintiff moved the trial court for reconsideration,

count, plaintiff’s complaint refers to “adverse possession” no fewer than 14 times; on three additional occasions, the complaint appears to conflate the doc trines of adverse possession and acquiescence by using the phrase “adverse possession by [ or “t hrough” or “by and through”] acquiescence of a boundary line.”

2 In the midst of the show cause hearing, plaintiff indicated th at she had prepared (but not filed) a motion to disqualify Judge Hatty, t he trial judge. The record reflects that plaintiff brought a copy of a written motion to the hearing, but it does not appear this motion was ever filed. Plaintiff does not explicitly seek relief on appeal from the denial of an y motion to disqualify, or request that on remand her case be assigned to a different judge, altho ugh she spends a great portion of her brief on appeal detailing Judge Hatty’s alleged misconduct. We note that the record before-3- arguing that the trial court had erred by granting summary disp osition without defendant having filed a motion for summary disposition, and had further erred by basing its holding on its finding that plaintiff had not established the hostility of her possess ion, which is not an element of an acquiescence claim.

The trial court denied plainti ff’s motion for reconsideration in a written opinion and order, stating that “[p]lainti ff has failed to establish that s he is entitled to an injunction to prohibit Defendant from removing her fence, as Plaintiff has failed to e stablish that she has satisfied the requisite elements of adverse possession for the statutory peri od, or that the doctrine of acquiescence applies in this case.”

This appeal followed.

II. GRANT OF SUMMARY DISPOSITION

Plaintiff first argues that the trial court erred by granting summary disposition in favor of defendant, because the trial court failed to recognize that her claim was for acquiescence and thus did not require proof of hostility. We disagree. We revi ew a trial court’s decision on a motion for summary disposition de novo. Moser v Detroit , 284 Mich App 536, 538; 772 NW2d 823 (2009). If it appears that the opposing party is entitled to judgment, the court may render judgment in favor of the opposing party. MCR 2.116(I)(2); Bd of Trustees of Policemen & Firemen Retirement Sys v Detroit , 270 Mich App 74, 77-78; 714 NW2d 658 (2006). Moreover, “[i]f the pleadings show that a party is entitled to judgment a s a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without dela y.” MCR 2.116(I)(1).

Although the trial court referenced MCR 2.116(I)(2), it did no t otherwise specify the grounds under which it granted summary disposition. 3 However, given the fact that summary disposition was granted before discovery, and the fact that the trial court did not consider any affidavits or documentary evidence beyond that appended to the pleadings, we conclude that the trial court determined that plaintiff had failed to state a cla im on which relief could be granted. MCR 2.116(C)(8). A grant of summary disposition is appropriate under MCR 2.116(C)(8) “when a claim is so clearly unenforceable as a matter of law th at no factual development could possibly justify recovery.” Gorman v Am Honda Motor Co, Inc , 302 Mich App 113, 131-132; 839 NW2d 223 (2013) (internal citations omitted). The trial co urt reviewing the motion must accept as true all factual allegations supporting the claim, an d any reasonable inferences or conclusions that might be drawn from those facts. Id

. However, “the mere statement of a

this Court is devoid of any evidence that Judge Hatty treated p laintiff poorly or displayed any favoritism or bias against plai ntiff or toward defendant or her counsel.

3 It appears that the trial court’s grant of summary disposition was actually pursuant to MCR 2.116(I)(1), which allows the trial court to grant judgment to a party “if the pleadings show that a party is entitled to judgment as a matter of law,” rathe r than (I)(2) (which authorizes a trial court to “render judgment in favor of the opposing party” “rath er than the “moving party”). In any event, MCR 2.116(C) sets forth the grounds for determining whether a party is entitled to summary disposition.-4- pleader's conclusions, unsupporte d by allegations of fact, will not suffice to state a cause of

action.” ETT Ambulance Serv Corp v Rockford Ambulance, Inc , 204 Mich App 392, 395; 516 NW2d 498 (1994).

As stated, we conclude that the trial court properly construed plaintiff’s complaint as asserting a claim of adverse possession. And the trial court i ndeed held that plaintiff had not established the “hostile” element of an adverse possession clai m. See Gorte v Dep’t of Transp

, 202 Mich App 161, 170; 507 NW2d 797 (1993). Plaintiff does not challenge the accuracy of this holding, and in fact on appeal repeatedly denies that her posse ssion of the disputed land was

hostile. 4 Accordingly, plaintiff essentially concedes that summary disp osition was appropriate in favor of defendant on plaintiff’s adverse possession claim. We agree.

Rather, plaintiff argues that her claim was actually one not o f adverse possession, but of acquiescence, and that hostility is not an element of an acquie scence claim. We agree that hostility is not an element of a claim for acquiescence, but di sagree that the trial court believed erroneously that hostility was r equired, or erred by finding th at plaintiff had not stated a claim for acquiescence. To the contrary, the trial court expressly h eld that, in addition to failing to establish the requisite element s of adverse possession, plainti ff had “failed to establish . . . that the doctrine of acquiescence appl ies in this case.” We agree.

Acquiescence may be based on three theories; at issue here is acquiescence for the statutory period, which requires a showing that the parties acq uiesced to a line (other than the recorded property line) as the boundary between their propertie s for the requisite period of time. Walters v Snyder , 239 Mich App 453, 456; 608 NW2d 97 (2000) (citation omitted); Sackett v Atyeo , 217 Mich App 676, 682; 552 NW2d 536 (1996). Possession need not be hostile or nonpermissive. Walters , 239 Mich App at 456. This type of acquiescence typically arises when adjoining property owners mistakenly treat a line, such as a li ne marked by a fence, as the property line. Id . (citations omitted); Sackett , 217 Mich App at 682. This requires some evidence that the parties either believed that the line was the property line or treated it as such.

Id

. The 15-year statutory period may be satisfied by tacking the ac quiescence of predecessors in

title onto the current holder of title to the property. Siegel v Renkiewicz’ Estate , 373 Mich 421, 426; 129 NW2d 876 (1964).

We note that the word “acquiesce nce” appears rarely in plaintif f’s complaint, which makes numerous allegations consistent with a claim for adverse possession, including claims alleging continuity and openness of use. See Gorte , 202 Mich App at 170. Plaintiff’s objection to the trial court’s discussion of the elements of adverse poss ession therefore seems misplaced. In any event, were we to further construe (as we believe the tr ial court did) plaintiff’s complaint as additionally alleging a claim of acquiescence, the complaint does not allege that defendant or her predecessors in title treated the fence as the property lin e. To the contrary, plaintiff’s complaint alleges that the Vincents constructed a fence in 1991 with full knowledge of where the

4 Plaintiff has repeatedly assure d this Court on appeal that her possession of the land was not

hostile and that she was not s eeking to possess the land throug h adverse possession.-5- actual property line was; in fact, the complaint alleges that t he land use permit contained a notation indicating the Vincents’ full awareness that the fence was being erected off the property line. The complaint also allege s that, at some point between 1 994 and 1996, Krupa-Miller, the Vincent’s successor in title, “dis covered” that the fence did n ot run along the property line. The complaint then makes no allegations concerning whether BJD Deve lopment Corporation, KrupaMiller’s successor in title, tr eated the fence as the property line; however, plaintiff indicated at the show cause hearing that all of defendant’s predecessors in title were aware of the actual property line. Plaintiff’s compla int further clearly asserts t hat defendant did not treat the fence as the property line; in fact, plaintiff’s complaint alleges that defendant sought to ensure that plaintiff did not acquire the d isputed property by adverse poss ession by asking plaintiff to

remove her affidavit filed w ith the Register of Deeds.

In sum, plaintiff’s complaint does not allege that the parties or any of defendant’s predecessors treated the fence as a property line. Indeed, it expressly asserts to the contrary for every relevant owner of defendant ’s property except BJD Develop ment Corporation, which according to the complaint owned the property from an unspecifi ed date in 1996 to an unspecified date in 2011. And as to BJD, the complaint alleges that BJD “began development of an open space condominium in 2002” and that plaintiff filed an affidavit seeking to establish her interest in the property that same year, thus supporting the in ference that in 2002 BJD’s actions led plaintiff to conclude that BJD also did not (or would not) equate the fence with the property line. More importantly, plaintiff’s complaint is devoid of eve n a bare allegation that any party acquiesced to, or treated, the fe nce as the property line. The trial court did not err by holding that plaintiff did not state a claim f or which relief could be grant ed, even under an acquiescence theory. MCR 2.116(C)(8). Further, because a grant of summary disposition under MCR 2.116(C)(8) is based on the legal sufficiency of the pleadi ngs, the trial court did not err by failing to sua sponte order an e videntiary hearing on the matte r.

A grant of summary dispositi on based on grounds found in MCR 2 .116(C)(8) requires a trial court to give the parties an opportunity to amend their p leadings “unless the evidence then before the court shows that amendment would not be justified.” MCR 2.116(I)(5). A trial court need not grant amendment if such amendment would be futile. Lane v KinderCare Learning
Centers, Inc , 231 Mich App 689, 719; 588 NW2d 715 ( 1998). Here, plaintiff herself stated at the show cause hearing that all of defendant’s predecessors in titl e were aware that the fence did not run along the property line. Thus, although the trial court di d not address allowing plaintiff to amend her complaint, we conclude that any amendment to allege a claim of acquiescence would

have been futile.

III. DENIAL OF INJUNCTION

Finally, plaintiff argues that the trial court erred by failin g to grant her request for a TRO or preliminary injunction. We di sagree. We review the trial c ourt decision to grant or deny an injunction for an abuse of discretion. See Freeman v Mitchell , 198 Mich 207, 210; 164 NW 445 (1917).

An injunction may be issued by a tri al court when justice requ ires, when the plaintiff does not have an adequate remedy at law, and when the plaintiff is i n real and imminent danger of irreparable harm. Charter Twp of Bloomfield v Oakland Co Clerk , 253 Mich App 1, 15; 654-6- NW2d 610 (2002). Again, an injunction is an equitable remedy, not an independent cause of

action. Terlecki v Stewart , 278 Mich App 644, 663; 754 NW2d 899 (2008). Thus, a plaintif f must allege some wrongful conduct on the part of a defendant fo r which the requested injunction is an appropriate remedy. Id

. (Quotation marks and citation omitted). Because plaintiff’s request for an injunction stemmed from defendant’s alleged intr usion onto her property, and because plaintiff’s complaint did not allege a legally cognizab le claim for either acquiescence or adverse possession, equitable relief in the form of an injuncti on was not available and the trial court properly denied p laintiff’s request. Id

.

Affirmed. As the prevailing part y, defendant may tax costs. M CR 7.219(A).

/s/ Mark T. Boonstra /s/ Douglas B. Shapiro

/s/ Michael F. Gadola