United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S AMENDED MOTION FOR
CANCELLATION OF NOTICE OF LIS PENDENS [Doc. 31]
Victoria A. Roberts United States District Judge.
Motor Company (“Ford”), filed a breach of
contract claim against Trident Barrow Management, LLC
(“Trident”) on November 11, 2016. Ford alleges
that Trident's refusal to execute a restrictive covenant
upon Ford's request breaches the express terms of an
agreement between the parties. On July 21, 2017, Ford filed a
notice of lis pendens, stating that the
action had commenced and that it affects the real property
concerning the restrictive covenant.
filed an amended motion for cancellation of the notice of
lis pendens (“Motion”). That motion is
December 2012, Ford sold Trident the majority of the acreage
of the former Wixom Assembly Plant (“Wixom
Site”), where Ford assembled automobiles from 1957
through 2007. On December 21, 2012, Ford and Trident entered
into an Environmental Cooperation Agreement
(“ECA”). It sets forth the obligations of Ford
and Trident in remediating the environmental conditions of
the Wixom Site. Under the ECA, Ford agreed to complete
remedial actions to ensure that the Wixom Site complied with
Michigan's Natural Resources and Environmental Protection
26, 2016, Ford sent Trident a letter saying that Ford had
completed its on-site remediation work. Ford asked Trident to
execute a restrictive covenant that would, inter
alia, prohibit the Wixom Site from being developed for
residential purposes, and for its groundwater to be used for
drinking or irrigation purposes. The letter stated that the
restrictive covenant to be signed by Trident, would need to
be submitted to the Michigan Department of Environmental
Quality (“MDEQ”) as required by the NREPA.
refused to execute the restrictive covenant, arguing that it
was not obligated to because Ford had first materially
breached the ECA by submitting erroneous reports to the MDEQ.
Trident also argues that Ford's remediation activities
had not been completed, meaning Trident's obligation to
execute the restrictive covenant had not yet been triggered.
This lawsuit followed.
Motion, Trident argues that Ford's notice of lis
pendens should be canceled because: 1) Ford's breach
of contract suit does not affect title to real property; and
2) the harms to Trident caused by the notice far outweigh any
purported benefit to Ford. Trident also argues that the Court
should award it fees and costs it incurred in connection with
contends that: 1) the restrictive covenant does affect title
to the Wixom Site; and 2) the notice protects the interests
of the public and Ford, and does not impose more than an
existing contractual duty on Trident.
filing of a notice of lis pendens notifies
prospective purchasers of real property of a legal action
concerning the property, and warns potential purchasers that
they take the property subject to any judgment rendered in
the litigation. Chirco v. S. R. Acquisitions, LLC,
2000 U.S. Dist. LEXIS 23821, *6-7 (E.D. Mich. Aug. 2, 2000)
(citing M.C.L. § 600.2701(1)). “Such a notice may
be filed even if the action is brought in a federal
court.” Id. at *7 (citing M.C.L. §
600.2735(1), which “applies to suits affecting title to
real property in the federal courts”).
Restrictive Covenant Affects Title To The Wixom Site
argues that the Court should enter an order cancelling
Ford's notice of lis pendens because Ford's
suit does not affect Trident's title to the Wixom Site.
Instead, according to Trident, the case concerns whether Ford
completed the environmental remediation activities at the
Wixom Site, such that Trident's obligations to execute
the restrictive covenant ripened. Trident says its obligation
to execute and file a restrictive covenant once remediation
efforts are complete, is memorialized in the ECA, which
itself is recorded and makes clear that the ...