David Fertel v. Village of Wolverine Lake
330169
| Mich. Ct. App. | Mar 2, 2017Background
- David Fertel owned lots 114–115 and constructed a berm that encroached onto adjacent property owned by the Village of Wolverine Lake (lots 109–113), which the Village converted to a public park.
- Fertel also parked a boat on the Village’s land; the Village notified him and issued a citation after he refused to remove it.
- Fertel sued to obtain title by adverse possession (and also pleaded quiet title by acquiescence, which he did not appeal).
- The Village moved for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10); Fertel did not file a formal written response or present witnesses/evidence at the hearing.
- The trial court granted summary disposition under (C)(8) (failure to state a claim) and (C)(10) (no genuine issue of material fact), finding Fertel’s pleadings and affidavit insufficient to show disseisin and the required elements of adverse possession.
- On appeal, Fertel argued the court erred by not considering evidence that he had disseised the Village; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fertel pleaded/proved disseisin to satisfy adverse possession | Fertel contended he continuously and openly maintained the berm (and later asserted parking/driveway/garden) showing disseisin | Village argued berm maintenance alone did not show dispossession or exercise of ownership rights | Court held berm construction/maintenance was insufficient to show disseisin; pleadings lacked factual allegations of exercising ownership |
| Whether summary disposition under MCR 2.116(C)(8) was proper | Fertel argued his complaint alleged facts supporting adverse possession | Village argued complaint failed to state facts that, if true, would constitute adverse possession | Court held (C)(8) dismissal proper because pleadings contained conclusions without sufficient factual support |
| Whether summary disposition under MCR 2.116(C)(10) was proper given record | Fertel argued evidence (including photos) proved factual disputes; he relied on assertions at hearing | Village submitted admissible evidence and argued Fertel produced no admissible contrary evidence at trial level | Court held (C)(10) dismissal proper because Fertel failed to present specific facts/evidence to create a genuine issue; after‑ruling materials on appeal not considered |
| Whether post‑judgment evidence may be considered on appeal | Fertel relied on materials not in lower court record (photos, later assertions) | Village relied on the record before the trial court | Court held it will not consider evidence submitted after the trial court’s ruling when reviewing summary disposition |
Key Cases Cited
- Arabo v. Michigan Gaming Control Bd., 310 Mich. App. 370 (discussing de novo review of summary disposition and (C)(10) standards)
- Hackel v. Macomb Co. Comm., 298 Mich. App. 311 (explaining MCR 2.116(C)(8) and that courts accept well‑pleaded allegations)
- Golec v. Metal Exch. Corp., 208 Mich. App. 380 (concluding conclusory allegations insufficient to state a claim)
- Latham v. Barton Malow Co., 480 Mich. 105 (standard for summary disposition under (C)(10))
- Beach v. Twp. of Lima, 489 Mich. 99 (elements required to establish adverse possession)
- Canjar v. Cole, 283 Mich. App. 723 (discussing when the statutory adverse possession period begins)
- Kipka v. Fountain, 198 Mich. App. 435 (building/maintaining improvements alone does not prove disseisin)
- Quinto v. Cross & Peters Co., 451 Mich. 358 (post‑ruling evidence cannot be considered on appeal from summary disposition)
- Mulcahy v. Verhines, 276 Mich. App. 693 (defining hostile, exclusive use for adverse possession)