Miller v. Irwin, Docket No. 120618

• Decision Date: 14 August 1991
• Docket Number: Docket No. 120618
• Citation: 476 N.W.2d 632,190 Mich.App. 610
• Parties: James N. MILLER and Arleen Miller, Plaintiffs-Appellants, v. Geraldine W. IRWIN, Defendant-Appellee, and The Estate of Robert Irwin, a/k/a Bob Irwin, d/b/a Irwin Real Estate, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 632

476 N.W.2d 632

190 Mich.App. 610

James N. MILLER and Arleen Miller, Plaintiffs-Appellants, v. Geraldine W. IRWIN, Defendant-Appellee and The Estate of Robert Irwin, a/k/a Bob Irwin, d/b/a Irwin Real Estate, Defendant.

Docket No. 120618.

Court of Appeals of Michigan.

Submitted Dec. 4, 1990, at Detroit.

Decided Feb. 28, 1991.

Approved for Publication

Aug. 14, 1991, at 9:00 a.m.

Released for Publication Nov. 18, 1991.

Balfour Peisner, Southfield, for plaintiffs-appellants.

John K. Irwin, Pontiac, for defendant-appellee.

Before HOLBROOK, P.J., and WAHLS and KAVANAGH, ^* JJ.

PER CURIAM.

Plaintiffs appeal as of right an order of the Oakland Circuit Court granting defendant Geraldine W. Irwin summary disposition pursuant to MCR 2.116(C)(8) as well as awarding costs and fees for defending a frivolous action. We affirm in part and reverse in part.

Plaintiffs, interested in purchasing a parcel of real estate, gave defendant Robert Irwin, doing business as Irwin Real Estate, a deposit of $2,500. Because of the sellers' refusal to make certain repairs plaintiffs demanded, the transaction was never consummated. Robert Irwin, however, refused to refund the deposit, and plaintiffs filed suit in district court. On December 8, 1988, plaintiffs received a judgment against Robert Irwin and Irwin Real Estate in the amount of $7,843.36, including costs and interest.

After garnishing Mr. Irwin's bank account, which was devoid of funds, plaintiffs obtained a writ of execution on property belonging to Mr. Irwin and Irwin Real Estate. The seized property yielded only $410 at auction, and two more writs were obtained. On May 31, 1989, plaintiffs filed the instant action in the Oakland Circuit Court.

In their complaint, plaintiffs alleged that Robert Irwin had an interest in several parcels he owned with his wife, defendant Geraldine Irwin, as tenants by the entirety. They also alleged the Irwins were trying to sell a parcel to place it beyond the reach of execution. Plaintiffs also filed notices of lis pendens on two parcels, and on July 20, 1989, filed an entry of default. Defendant Geraldine Irwin moved to set aside the default judgment on July 26, 1989, citing a lack of personal service. The defendant also indicated in her motion that defendant Robert Irwin had died on May 22, 1989, and that plaintiffs had been sent a copy of his death certificate. Defendant moved for summary disposition on the basis of insufficient service of process and failure to state a claim, MCR 2.116(C)(3) and (8).

Before the hearing on defendant's motions, plaintiffs filed an amended complaint, adding a claim under M.C.L. Sec. 566.19; M.S.A. Sec. 26.889, which provides for the setting aside of fraudulent conveyances intended to defeat creditor's rights, except as against a purchaser for value.

At the hearing on defendant's motions, plaintiffs conceded improper service, thereby disposing of the default issue. Regarding the two parcels, defendant maintained that they were transferred to a tenancy by the entirety in 1974 and 1975. The trial court found that the property had been deeded a "long time ago" and that plaintiffs "had no basis for going against the wife." Defendant was granted summary disposition pursuant to MCR 2.116(C)(8) and was awarded attorney fees and costs for defending a frivolous action.

On appeal, the issue presented by plaintiffs is whether a complaint that claims that a defendant is the beneficiary of fraudulent conveyances and that seeks to subject the property so conveyed to a judgment previously entered against the conveyor states a cause of action.

M.C.L. Sec. 566.19(1); M.S.A. Sec. 26.889(1) provides:

Where a conveyance or obligation is fraudulent as to a creditor, such creditor, when his claim has matured, may, as against any person except a purchaser for fair consideration without knowledge of the fraud at the time of the purchase, or one who has derived title immediately or mediately from such purchaser:

(a) Have the conveyance set aside or obligation annulled to the extent necessary to satisfy his claim, or

(b) Disregard the conveyance and attach or levy execution upon the property conveyed.

A fundamental rule of statutory construction is that courts may not speculate regarding the Legislature's probable intent beyond the words employed in a statute. A word or phrase in a statute is to be given its plain and ordinary meaning. Winiecki v. Wolf, 147 Mich.App. 742, 744, 383 N.W.2d 119 (1985). When the language of a statute is clear and unambiguous, judicial construction is neither permitted nor required. Such a statute must be applied, not interpreted, because it speaks for itself. City of Lansing v. Lansing Twp., 356 Mich. 641, 648-649, 97 N.W.2d 804 (1959); Attard v. Adamczyk, 141 Mich.App. 246, 250, 367 N.W.2d 75 (1985).

By its language, M.C.L. Sec. 566.19(1); M.S.A. Sec. 26.889(1) applies where "a conveyance is fraudulent as to a creditor." It is uncontroverted that the conveyance of the two lots in question occurred long before any alleged fraud against plaintiffs. Clearly the statute is inapplicable to the plaintiffs at bar because the conveyances were not made to...