Pasionek v. Pasionek

• Decision Date: 04 May 2022
• Docket Number: 1:21-cv-12651
• Citation: Pasionek v. Pasionek, 1:21-cv-12651 (E.D. Mich. May 04, 2022)
• Parties: JAMES E. PASIONEK, Plaintiff, v. ROBERT A. PASIONEK, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

JAMES E. PASIONEK, Plaintiff, v. ROBERT A. PASIONEK, Defendant.

No. 1:21-cv-12651

United States District Court, E.D. Michigan, Northern Division

May 4, 2022

OPINION AND ORDER (1) DENYING DEFENDANT'S MOTION TO QUASH NOTICE OF LIS PENDENS AND (2) GRANTING DEFENDANT'S UNOPPOSED MOTION TO AMEND

THOMAS L. LUDINGTON, UNITED STATES DISTRICT JUDGE

This is an action for breach of fiduciary duties, removed from Alcona County Circuit Court under diversity jurisdiction. ECF No. 1. Defendant has filed a motion to quash a notice of lis pendens filed by Plaintiff's counsel and an unopposed motion to amend his responsive pleading. ECF Nos 10; 11. For the reasons stated hereafter, Defendant's motion to quash will be denied, and his motion amend to amend will be granted.

I.

The background facts are largely undisputed. In 1986, Robert A Pasionek and his brother James formed a partnership to purchase a parcel of hunting property in Alcona County. ECF No. 1-1 at PageID.7. Thirteen years later, they purchased an adjoining parcel (the “Property”), which they apparently intended to improve with cabins and related structures. Id. at PageID.8; ECF No. 11 at PageID.296. Since then, the brothers' relationship has broken down. ECF No. 1-1 at PageID.8. In October 2021 Plaintiff brought this action against his brother for, among other things, breach of fiduciary duty and fraudulent misrepresentation for attempting to sell the Property without his permission.^[1] Id. at PageID.16-22.

The remaining facts, by contrast, are hotly contested. According to Defendant, he and Plaintiff agreed to jointly contribute capital to improve the Property, but Plaintiff did not “uph[old] his end of the bargain.” Id. at PageID.296. Despite reneging on his obligations, Plaintiff allegedly continued to use the Property with his sons for decades. Id. As a result, Defendant claims, the relationship between he and his brother-and their partnership-has broken down. Id. Defendant asserts that Plaintiff agreed to list the Property in 2015, and that “[u]ntil this lawsuit was filed, Defendant never received any objection to the sale of the Property from Plaintiff or his representatives.” Id.

Plaintiff paints a different picture of their relationship. Plaintiff alleges that due to his brother's 15-year absence from the Property, Plaintiff has become the Property's primary user, caretaker, and tax payor. ECF No. 1-1 at PageID.8. Although feelings had been souring for some time, Plaintiff claims that his relationship with his brother broke down in earnest only after he expressed an interest in bringing electricity to the Property and buying out his brother's share. What followed, in his words, was a “bizarre” campaign of “blackmail” and “extort[ion].” Id.

Along with his complaint, Plaintiff filed a “memo” that his brother-a licensed attorney- allegedly sent him in June 2021. Id. at PageID.35. The memo describes, in rather confounding detail, decades of family strife stemming from the Property, much of which precedes the formation of the partnership. See id. at PageID.35-49. At various points, the memo accuses Plaintiff and his son Mike of larceny and “numerous [other] wrongful and criminal acts.” Id. at PageID.35; see also id. at PageID.45 (“DOESN'T [Plaintiff] LOOK LIKE A DEADBEAT, CROOK, AND FELONY [sic] . . . ?”).

Defendant also apparently sent Plaintiff a letter demanding payment for certain property “wrongfully and feloniously converted by [Plaintiff]” and insinuating that he had called in “favors” from local prosecutors to bring criminal charges against Plaintiff. Id. at PageID.74 (“I have been waiting and gathering evidence against you and Mike for a long time, you dug a hole so deep that you'll never see the light of day except through bars. The prosecuting attorneys have some surprises for you and Mike too. It pays to have friends in the legal community and in all the right places and to be a member for the legal community, especially friends that owe you favors.”).

In short, Plaintiff alleges that “Defendant is attempting to unilaterally sell the [Property] over [his objection]” and, among other relief, seeks an order prohibiting him from doing so. Id. at PageID.17.

Since answering Plaintiff's complaint, Defendant has filed a motion to quash a notice of lis pendens that Plaintiff's counsel recorded with the Alcona County Register of Deeds. ECF No. 11. The notice describes the Property and nature of this action and states that “Plaintiff is objecting to the sale of the property and will pursue his property rights against any subsequent buyer.” ECF No. 11-1 at PageID.330. Defendant seeks to quash the notice because of its interference with a pending offer to buy the Property. ECF No. 11 at PageID.296. Defendant argues that the notice was improperly recorded because this case “does not involve the title, use, or enjoyment of land.” Id. at PageID.298-99 (quoting Patten Corp. v. Canadian Lakes Dev. Corp., 788 F.Supp. 975, 978 (W.D. Mich. 1991)). He adds that even if the notice was properly recorded, it should be quashed on equitable grounds because the harm that it causes “dwarfs any benefit to Plaintiff.” Id. at PageID.303.

In response, Plaintiff argues that the notice was recorded to “protect [his] property rights as a Partner, ” given that Defendant had “excluded [him] from the sale.” ECF No. 12 at PageID.349. Plaintiff also contends that “Defendant is not authorized to sell the [Property] and [that] any sale would be invalidated.” Id. at PageID.352.

Defendant has also filed a motion to amend his responsive pleading to “add several counterclaims against Plaintiff, including Breach of Partnership Agreement, Declaratory Judgment, Dissolution of Partnership, and Slander of Title.” ECF No. 10 at PageID.210. Plaintiff does not oppose the motion. Id.

Having reviewed the parties' briefing, this Court finds that a hearing is unnecessary and will proceed to address Defendant's motions on the papers. See E.D. Mich. LR 7.1(f)(2).

II.

A.

Defendant first argues that Plaintiff's notice of lis pendens should be quashed because this case “does not involve the title, use, or enjoyment of land.” ECF No. 11 at PageID.298-99 (quoting Patten Corp., 788 F.Supp. at 978).

A notice of lis pendens is a “notice, recorded in the chain of title to real property, . . . to warn all persons that certain property is the subject matter of litigation ....” Ruby & Assocs., P.C. v. Shore Fin. Servs., 741 N.W.2d 72, 75 (Mich. Ct. App. 2007) (quoting BLACK'S LAW DICTIONARY 950 (8th ed.)), vacated on other grounds, 745 N.W.2d 752 (Mich. 2008)). “While a notice of lis pendens may, as a practical matter, inhibit the alienation of the property in that it warns prospective purchasers that they take subject to the judgment rendered in litigation concerning the property, the lis pendens does not prohibit alienation.” Kauffman v. Shefman, 426 N.W.2d 819, 822 (Mich. Ct. App. 1988).

In Michigan, the filing of a notice of lis pendens is governed by Michigan Compiled Laws § 600.2701, which provides:

To render the filing of a complaint constructive notice to a purchaser of any real estate, the plaintiff shall file for record, with the register of deeds of the county in which the lands to be affected by such constructive notice are situated, a notice of the pendency of such action, setting forth the title of the cause, and the general object thereof, together with a description of the lands to be affected thereby.

MICH. COMP. LAWS § 600.2701(1) (emphasis added).

An action “affects” property if it “affect[s] the title to the property or the right to possess, use or enjoy it.” Ruby & Assocs., 741 N.W.2d at 77 (quoting 14 POWELL ON REAL PROPERTY, § 82A.02[2], p. 82A-9).

Defendant argues that this action does not “affect” the Property because Plaintiff does not “challenge the ownership of the Property, ” “seek to enforce the Partnership Agreement and preserve his ability to use and enjoy the Property, ” or “allege that he wishes to purchase the Property in his individual capacity after the Partnership is dissolved.” ECF No. 11 at PageID.299. Defendant elaborates that “Plaintiff's lawsuit is not about the ownership or use of the Property, ” but about “who gets to make decisions for the Partnership and how the proceeds of the Property's sale should be distributed once the Partnership is dissolved.” Id. at PageID.300.

Contrary to Defendant's claim, however, this case does affect the Property, as it involves Defendant's right to unilaterally alienate title to or possession of the Property over Plaintiff's objection. See Ruby & Assocs., 741 N.W.2d at 76 (noting that allegations of fraudulent transfer may support a notice of lis pendens when the transfer “affect[s] title, possession, or an interest in real property”); see also Michael v. Pelland, No. 229876, 2002 WL 31105082, at *3 (Mich. Ct. App. Sept. 20, 2002) (holding that partner had claim to recover property on behalf of partnership because partner conveyed property without authority). And Plaintiff has expressed an interest in purchasing the property in his individual capacity or, at the very least, keeping the Property within the family. See ECF Nos. 1-1 at PageID.8 (“[Plaintiff] wanted to buy out Defendant's share of the [Property].”); 12 at PageID.352-53 (“Th[e] Partnership agreement explicitly states that the Partnership is not profit motivated and that the land was purchased to remain in the Pasionek Family name. That is exactly what Plaintiff is trying to do-purchase Defendant's interest in the Partnership property to maintain as a Pasionek hunting camp.”).

Moreover though Defendant correctly notes that Plaintiff seeks to dissolve the partnership and appoint a receiver, see ECF No. 1-1 at PageID.21, he does not explain why,...