Weatherseal Home Improvements Inc v. Richard J Sable ( 2014 )

STATE OF MICHIGAN
COURT OF APPEALS
WEATHERSEAL HOME IMPROVEMENTS, UNPUBLISHED
INC., October 16, 2014
Plaintiff-Appellant/Cross-Appellee,
v No. 313078
Oakland Circuit Court
RICHARD J. SABLE, LC No. 2011-119024-CZ
Defendant-Appellee/Cross-
Appellant,
and
GRECO TITLE AGENCY, L.L.C., DIANA M.
SABLE, ANDY SAKMAR, and SAKMAR &
ASSOCIATES, INC.,
Defendants,
and
DEAN B. WATSON and DOW CHEMICAL
EMPLOYEES CREDIT UNION,
Defendants-Appellees.
WEATHERSEAL HOME IMPROVEMENTS,
INC.,
Plaintiff-Appellee,
v No. 314079
Oakland Circuit Court
RICHARD J. SABLE, LC No. 2011-119024-CZ
Defendant-Appellant,
and
GRECO TITLE AGENCY, L.L.C., DEAN B.
WATSON, DOW CHEMICAL EMPLOYEES
-1-
CREDIT UNION, DIANA M. SABLE, ANDY
SAKMAR, and SAKMAR & ASSOCIATES,
INC.,
Defendants.
Before: BOONSTRA, P.J., and METER and SERVITTO, JJ.
PER CURIAM.
In Docket Number 313078, plaintiff appeals as of right from the order memorializing the
jury’s verdict arising from plaintiff’s claim of the fraudulent transfer of real estate. In Docket
No. 314079, defendant Richard J. Sable appeals as of right from the order denying his motion for
an award of case-evaluation sanctions. We affirm.
Plaintiff contends that the trial court erred in failing to enter judgment in its favor
following a jury determination that Richard Sable had fraudulent intent towards plaintiff at the
time of the sale of the property to Dean B. Watson. Plaintiff contends that the trial court should
have awarded plaintiff a judgment on the proceeds obtained or a levy of execution on the
property and rendered the transaction to Watson void.
This Court reviews issues of statutory interpretation de novo. Radina v Wieland Sales,
Inc, 297 Mich. App. 369, 373; 824 NW2d 587 (2012). Similarly, the interpretation of court rules
presents questions of law subject to de novo review. Estes v Titus, 481 Mich. 573, 578-579; 751
NW2d 493 (2008). Issues pertaining to the priority of liens are also questions of law that are
reviewed de novo. Graves v American Acceptance Mtg Corp, 469 Mich. 608, 613; 677 NW2d
829 (2004). Similarly, this Court reviews de novo a trial court’s grant or denial of a motion for a
directed verdict or judgment notwithstanding the verdict; in reviewing these rulings, this Court
views the evidence and all legitimate inferences drawn from the evidence in the light most
favorable to the nonmoving party. Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich.
124, 131; 666 NW2d 186 (2003).
Initially, plaintiff argues that it is entitled to payment pursuant to the Michigan judgment-
lien act (MJLA), MCL 600.2801 et seq. Plaintiff specifically cites MCL 600.2819, which states:
There is no right to foreclose a judgment lien created under this chapter.
At the time the judgment debtor makes a conveyance, as that term is defined in
section 35 of 1846 RS 65, MCL 565.35, of, sells under an executory contract, or
refinances the interest in real property that is subject to the judgment lien, the
judgment debtor shall pay the amount due to the judgment creditor, as determined
under section 2807(3), to the judgment creditor.
The language of the MJLA is contrary to plaintiff’s position. “A ‘judgment lien’ is
defined as ‘an encumbrance in favor of a judgment against a judgment debtor’s interest in real
property, including, but not limited to, after acquired property.’” Thomas v Dutkavich, 290 Mich
App 393, 404; 803 NW2d 352 (2010), quoting MCL 600.2801(c) (emphasis added). “If a
-2-
judgment creditor records a notice of judgment lien with the register of deeds for the county in
which the real property is located, the judgment lien attaches to the judgment debtor’s interest in
the real property.” Id., citing MCL 600.2803 (emphasis added). Richard Sable, based on his
judgment of divorce from Diana Sable, lacked an interest in the property sufficient for plaintiff’s
execution on the property. This is consistent with MCL 600.2807(3), which provides:
If property subject to a judgment lien recorded under this chapter is sold or
refinanced, proceeds of the sale or refinancing due to a judgment creditor are
limited to the judgment debtor’s equity in the property at the time of the sale or
refinancing after all liens senior to the judgment lien, property taxes, and costs
and fees necessary to close the sale or refinancing are paid or extinguished.
[Emphasis added.]
Based on the Sables’ judgment of divorce, they were cotenants with rights of
survivorship in the subject property, with Diana Sable having a right to the first $500,000 in net
equity obtained from the property following sale. Contrary to plaintiff’s contention that the
judgment of divorce comprised a mere contractual promise, inferior to its judgment lien, the
Michigan Supreme Court in Estes, 481 Mich. at 579-580, stated: “A court may provide for the
distribution of property in a divorce judgment, and when it enters, the judgment has the same
effect as a deed or a bill of sale.” Specifically, as cited by the Estes Court, id. at 580 n 11, MCL
552.401 provides:
The circuit court of this state may include in any decree of divorce or of
separate maintenance entered in the circuit court appropriate provisions awarding
to a party all or a portion of the property, either real or personal, owned by his or
her spouse, as appears to the court to be equitable under all the circumstances of
the case, if it appears from the evidence in the case that the party contributed to
the acquisition, improvement, or accumulation of the property. The decree, upon
becoming final, shall have the same force and effect as a quitclaim deed of the
real estate, if any, or a bill of sale of the personal property, if any, given by the
party's spouse to the party.
The Supreme Court has discussed, in detail, the characteristics of joint tenancies with
rights of survivorship, stating:
The interest which was conveyed . . . “as joint tenants with full rights of
survivorship” was a joint life estate with dual contingent remainders. The
contingent remainder of either cotenant may not be destroyed by any act of the
other. Thus, we hold that either cotenant may transfer her interest in the joint life
estate and such a transfer has no effect on the contingent remainders. Upon the
death of either of the original cotenants, the other cotenant, or any person to
whom she has transferred her contingent remainder, takes the whole estate. We
further hold that the joint life estate may be partitioned without affecting the
contingent remainders. [Albro v Allen, 434 Mich. 271, 287; 454 NW2d 85
(1990).]
-3-
Absent a finding of fraud on the part of Diana Sable rendering her interest in the property subject
to the judgment lien, jurisdiction and authority existed only to effectuate the lien solely against
Richard Sable’s joint interest in the property. Given the respective rights of Diana Sable and
Richard Sable to the property, Richard Sable’s interest was limited and did not entitle plaintiff to
payment under the judgment lien following the sale to Watson.
Plaintiff also contends that, despite the sale, its judgment lien survives in accordance with
this Court’s ruling in Thomas, 290 Mich. App. at 410, citing MCL 600.2813(2) (“Again, this
language contemplates the continued attachment of a judgment lien on property despite new
ownership when the lien has not been fully discharged.”). The ruling in Thomas is, however,
factually distinguishable. In Thomas, 290 Mich. App. at 404, the judgment debtor was the titled
owner of the subject property, with his wife having only a dower interest. Upon the sale of the
property, the judgment debtor received monies that he failed to remit in payment of the judgment
creditor’s lien. Id. at 396. In contrast, Richard Sable was a joint tenant with rights of
survivorship in the property at issue and had a limited, and ultimately nonexistent, equity
interest, resulting in the realization of no monies from the proceeds of the sale. As noted in
Thomas:
[W]hen no payment whatsoever has been made to the judgment creditor from
available real estate sale proceeds, as was the case here, the judgment lien
remains attached to the property and is not dischargeable except upon full
payment. [Id. at 411 (emphasis added).]
Unlike the circumstances in Thomas, there were no “available real estate sale proceeds” for use
to remit to plaintiff. Based on this distinction, plaintiff’s reliance on this Court’s ruling in
Thomas is unavailing.
Plaintiff further asserts entitlement to relief pursuant to the Michigan Uniform Fraudulent
Transfer Act (MUFTA), MCL 566.31 et seq. Plaintiff asserts that the jury’s verdict that Richard
Sable had the intent to “hinder, delay, or defraud”1 plaintiff when effectuating the transfer of the
subject property is a determination of a fraudulent transfer and thus actionable, entitling him to
any of the remedies afforded by the MUFTA.
We note, as an initial matter, that plaintiff contended in its complaint that the transfer of
the property to Watson was fraudulent premised on MCL 566.35(1), which states:
A transfer made or obligation incurred by a debtor is fraudulent as to a
creditor whose claim arose before the transfer was made or the obligation was
incurred if the debtor made the transfer or incurred the obligation without
receiving a reasonably equivalent value in exchange for the transfer or obligation
1
MCL 566.34(1)(a) provides: “A transfer made or obligation incurred by a debtor is fraudulent
as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the
obligation was incurred, if the debtor made the transfer or incurred the obligation . . . [w]ith
actual intent to hinder, delay, or defraud any creditor of the debtor.”
-4-
and the debtor was insolvent at that time or the debtor became insolvent as a
result of the transfer or obligation. [Emphasis added.]
There was a failure to prove that Richard Sable was insolvent or became insolvent as a result of
the transfer. There was also a failure to demonstrate that Watson did not provide “reasonably
equivalent value” for the property. Indeed, there is no dispute that Watson paid $545,000 for the
subject property and plaintiff has not demonstrated that the price obtained was somehow unfair
or below the market value of the property at the time of the sale.
Significantly, MCL 566.38(1) states, “A transfer or obligation is not voidable under
section 4(1)(a) against a person who took in good faith and for a reasonably equivalent value or
against any subsequent transferee or obligee.” Based on In re Agricultural Research and
Technology Group, Inc, 916 F2d 528, 540 (CA 9, 1990) (discussing fraudulent transfers), “value
is to be determined in light of the act’s purpose, in order to protect the creditors.” In the
Michigan statutory scheme, the MUFTA does not define the phrase “reasonably equivalent
value,” other than in the language of MCL 566.33(2), which states:
For the purposes of sections 4(a)(2) and 5, a person gives a reasonably
equivalent value if the person acquires an interest of the debtor in an asset
pursuant to a regularly conducted, noncollusive foreclosure sale or execution of a
power of sale for the acquisition or disposition of the interest of the debtor upon
default under a mortgage, deed of trust, or security agreement.
The phrase “reasonably equivalent value” has its origin in 11 USC 548, part of the federal
Bankruptcy Code, 11 USC 548. Leibowitz v Parkway Bank & Trust Co (In re Image Worldwide,
Ltd), 139 F3d 574, 577 (CA 7, 1998). The Uniform Fraudulent Transfer Act has been interpreted
to require that the value provided in exchange for the transaction be received by and benefit the
debtor-transferor, and not some third party or entity. See Nat’l Westminster Bank NJ v Anders
Engineering, Inc, 289 NJ Super 602, 605-606; 674 A2d 638 (1996).2 In determining “reasonably
equivalent value” courts are to “consider all the facts and circumstances . . . keeping in mind that
any significant disparity between the value received and obligation assumed by the debtor-
transferor will significantly harm innocent creditors.” In re Mich Machine Tool Control Corp,
381 B.R. 657, 669 (ED Mich, 2008) (citation and internal quotation marks omitted). Reasonably
equivalent value has also been deemed to be interchangeable with the term “fair consideration.”
In re Auto Specialties Mfg Co, 153 B.R. 457, 498 (WD Mich, 1993). In In re Otis & Edwards,
PC, 115 B.R. 900, 908 (ED Mich, 1990), it was opined:
The key to understanding the concept of fair consideration is found not in the
form of the terms but rather the transactional context in which the issue arises. To
this court “fair consideration” equals “reasonably equivalent value.” What
2
“[C]ase law from other states, which admittedly is not binding on this Court . . . is highly
instructive.” A & E Parking v Detroit Metro Wayne Co Airport Auth, 271 Mich. App. 641, 645;
723 NW2d 223 (2006) (citation omitted).
-5-
constitutes fair consideration (or reasonably equivalent value), will change from
setting to setting.
In the context of bankruptcy, it has been observed:
[I]f the debtor receives property or discharges or secures an antecedent debt that is
substantially equivalent in value to the property given or obligation incurred by
him in exchange, then the transaction has not significantly affected his estate and
his creditors have no cause to complain. By the same token, however, if the
benefit of the transaction to the debtor does not substantially offset its cost to him,
then his creditors have suffered, and . . . the transaction was not supported by
“fair” consideration. [Rubin v Manufacturers Hanover Trust Co, 661 F2d 979,
991 (CA 2, 1981).]
“The touchstone is whether the transaction conferred realizable commercial value on the debtor
reasonably equivalent to the realizable commercial value of the assets transferred.” Mellon
Bank, NA v Metro Communications, Inc, 945 F2d 635, 647 (CA 3, 1991). In the circumstances
of this case, plaintiff has failed to demonstrate that the amount paid by Watson did not constitute
the “reasonably equivalent value” for the property.
In accordance with MCL 566.38(1), for a transfer not to be voidable it must also be
demonstrated that the recipient “took in good faith.” Plaintiff contends that Watson could not
qualify as a bona fide or good faith purchaser because he had notice of the existence of the
recorded judgment lien. See Oakland Hills Dev Corp v Lueders Drainage Dist, 212 Mich. App.
284, 297; 537 NW2d 258 (1995). In contrast, Watson contends that the definition of good faith,
for purposes of the MUFTA, is more in line with that found in MCL 440.1201(2)(t), which
defines “good faith” as “honesty in fact and the observance of reasonable commercial standards
of fair dealing.” In other words, Watson contends that because he did not conspire or collude to
engage in fraud and purchased the property in an arms-length transaction, he qualified as a good
faith purchaser.
We conclude that Watson qualified as having purchased the property in “good faith,”
thereby precluding the voidability of the transfer. A purchaser in good faith, or a bona fide
purchaser, is defined as “one who purchases without notice of a defect in the vendor’s title.”
Johnson Family Ltd Partnership v White Pine Wireless, LLC, 281 Mich. App. 364, 393; 761
NW2d 353 (2008). Notice of a defect depriving a purchaser of good faith may be either actual or
constructive, Richards v Tibaldi, 272 Mich. App. 522, 539; 726 NW2d 770 (2006), and has been
defined as follows:
When a person has knowledge of such facts as would lead any honest man, using
ordinary caution, to make further inquiries concerning the possible rights of
another in real estate, and fails to make them, he is chargeable with notice of what
such inquiries and the exercise of ordinary caution would have disclosed. [Kastle
v Clemons, 330 Mich. 28, 31; 46 NW2d 450 (1951).]
Watson had notice based on the recording by plaintiff of its judgment lien. However, according
to MCL 600.2801(c) (emphasis added), a judgment lien is “an encumbrance in favor of a
-6-
judgment creditor against a judgment debtor’s interest in real property . . . .” There is no
evidence to suggest or cited by plaintiff that Watson did not, through his title company, obtain
knowledge of the judgment lien and investigate its effect on rights to the property. Because the
judgment lien, by definition, only encompassed Richard Sable’s possible equitable interest in the
net proceeds obtained from the property, which would be deemed to comprise merely an
inchoate expectation and not a cognizable property interest, it did not serve to compromise
Watson’s bona fide or good faith purchaser status.
Plaintiff also challenges the trial court’s dismissal of Watson and Dow Chemical
Employees Credit Union (Watson’s bank) based on plaintiff’s voluntary dismissal of Diana
Sable, a necessary party to the litigation. MCR 2.205(A) defines necessary parties as “persons
having such interests in the subject matter of an action that their presence in the action is
essential to permit the court to render complete relief. . . .” Because plaintiff, in its complaint,
sought both an entitlement to the proceeds from the sale of the property and avoidance of the
transfer, the trial court did not err in finding that Diana Sable was a necessary party3 to the
litigation and that her absence necessitated the dismissal of Dow and Watson. Plaintiff contends
that if the trial court did not err in determining that Diana Sable was a necessary party, it did err
in failing to join Diana Sable rather than dismiss the claims. MCR 2.205(B) provides, in part:
When [necessary parties] have not been made parties and are subject to the
jurisdiction of the court, the court shall order them summoned to appear in the
action, and may prescribe the time and order of pleading. If jurisdiction over
those persons can be acquired only by their consent or voluntary appearance, the
3
As discussed in Mather Investors, LLC v Larson, 271 Mich. App. 254, 259-260; 720 NW2d 575
(2006),
a “debtor” under the [M]UFTA “means a person who is liable on a claim.” MCL
566.31(f). A claim need not be reduced to judgment or undisputed. MCL
566.31(c). However, the transferor must actually be liable for the claim to be a
“debtor.” Indeed, the remainder of the [M]UFTA appears to presume that liability
has already been established. A claim under the [M]UFTA cannot proceed
otherwise. . . . [T]he transferor here has ostensibly parted with any interest in the
assets. However, the transferor, or her estate, has not parted with an interest in an
adjudication of liability to another individual. Therefore, unless the transferor’s
liability has already been determined in a proceeding that afforded the transferor a
meaningful opportunity to defend, the transferor’s “presence in the action is
essential to permit the court to render complete relief . . . .” MCR 2.205(A). [Id.
at 259-260 (emphasis removed).]
While Richard Sable’s liability to plaintiff was determined by the judgment lien, Diana Sable’s
liability was not similarly established by that document.
-7-
court may proceed with the action and grant appropriate relief to persons who are
parties to prevent a failure of justice.
However, in this case, the absence of Diana Sable as a necessary party was directly attributable
to plaintiff’s voluntary dismissal of her from the litigation and not a failure to join her as a party.
This leads to the next argument, pertaining to the election of remedies. It is argued that
plaintiff’s election of a settlement with Diana Sable against the proceeds obtained from the sale
precluded its ability to also pursue a judgment against the property. The doctrine of election of
remedies comprises a procedural rule that prevents a party from pursuing inconsistent remedies.
Riverview Coop, Inc v First Nat’l Bank & Trust Co of Mich, 417 Mich. 307, 311; 337 NW2d 225
(1983). The doctrine’s purpose is to preclude a double recovery for a single injury. Id. at 312.
The doctrine is dependent upon the establishment of three prerequisites:
(1) at the time of the election, there must have been two or more remedies
available; (2) the alternative remedies must be inconsistent rather than consistent
and cumulative; and (3) the party must have chosen and pursued one remedy to
the exclusion of the other(s). [Barclae v Zarb, 300 Mich. App. 455, 486; 834
NW2d 100 (2013) (citation and internal quotation marks omitted).]
The doctrine serves only to preclude remedies that are “‘opposite and irreconcilable. . . . [O]ne
remedy must allege as fact what the other denies, or . . . the theory of one must necessarily be
repugnant to the other.’” Prod Finishing Corp v Shields, 158 Mich. App. 479, 494; 405 NW2d
171 (1987), quoting 25 Am Jur 2d, Election of Remedies, § 8, pp 653-654. A plaintiff is
permitted to pursue different legal remedies, as long as a double recovery is not obtained. See,
generally, Barclae, 300 Mich. App. at 486.
We find the election-of-remedies doctrine inapplicable in the circumstances of this case.
Settlement with Diana Sable did not preclude plaintiff from continuing to pursue available
remedies pertaining to Richard Sable as a judgment debtor. In addition, this Court has
previously recognized that a judgment creditor is permitted to pursue both a judgment lien under
the MJLA and an execution lien in accordance with Chapter 60 of the Revised Judicature Act,
MCL 600.101 et seq. See Thomas, 290 Mich. App. at 414-415. “[T]he MJLA provides that ‘[a]
judgment lien is in addition to and separate from any other remedy or interest created by law or
contract.’ MCL 600.2817. The Legislature did not repeal MCL 600.6018 and, therefore, the
MJLA and MCL 600.6018 are two different mechanisms by which a judgment creditor can
attempt collection on a judgment by going after real property.” Thomas, 290 Mich. App. at 414.
The present situation is analogous.
An additional issue was raised pertaining to plaintiff’s right to a jury trial in this matter.
Plaintiff contends that it was entitled to a jury trial on the issue of fraud, while Richard Sable
argues that plaintiff’s action was actually equitable in nature, precluding the right to a jury trial.
Both parties are correct in certain respects. Equitable claims are to be determined by a trial court
and do not implicate the right to a jury trial. Abner A Wolf, Inc v Walch, 385 Mich. 253, 260-261;
188 NW2d 544 (1971); ECCO, Ltd v Balimoy Mfg Co, Inc, 179 Mich. App. 748, 749; 446 NW2d
546 (1989). However, allegations of fraud comprise a legal claim that affords the right to a jury
trial. Schaffer v Eight-One Hundred Jefferson Avenue East Corp, 267 Mich. 437, 448; 255 NW
-8-
324 (1934). A factual issue existed pertaining to Richard Sable’s intent to defraud at the time of
the conveyance. Because this case involved both a factual issue and a legal claim, plaintiff was
entitled to a jury trial. Ultimately, however, this is irrelevant based on this Court’s determination
regarding the outcome of this case.
As a related matter, plaintiff contends that it was entitled to a special verdict, which
would then necessitate the trial court’s entry of a judgment or award consistent with the jury’s
determination. Special verdicts are discussed in MCR 2.515. Although the jury determined that
Richard Sable had fraudulent intent, this was the extent of the jury’s finding. Specifically, the
jury answered in the affirmative the following question:
When Diana M. Sable and Richard J. Sable sold 5763 Wellwood to Dean Watson
and all of the proceeds from the sale were paid to Diana M. Sable, did Richard
Sable have the actual intent to hinder, delay or defraud Weatherseal?
Standing alone, this determination did not entitle plaintiff to a judgment because it must be
placed in context and other criteria must be analyzed. Further, any inadequacy implied by
plaintiff in the special verdict is unavailing because the question posed to the jury was agreed to
by plaintiff. “A party is not allowed to assign as error on appeal something which his or her own
counsel deemed proper at trial since to do so would permit the party to harbor error as an
appellate parachute.” See Marshall Lasser, PC v George, 252 Mich. App. 104, 109; 651 NW2d
158 (2002) (citation and internal quotation marks omitted).
Plaintiff also contends that its judgment lien had priority over the Sables’ unrecorded
divorce judgment. Notably, the MJLA does not provide for foreclosure under a judgment lien.
MCL 600.2819. Instead, it provides, “[a]t the time the judgment debtor makes a conveyance . . .
of, sells under an executory contract, or refinances the interest in real property that is subject to
the judgment lien, the judgment debtor shall pay the amount due to the judgment creditor. . . .”
Id. The MJLA grants a judgment lien priority over liens recorded after the judgment lien, with
certain exceptions, MCL 600.2807, but is silent with regard to the priority status of a judgment
lien over earlier unrecorded conveyances. As discussed in 66 Am Jur 2d Records and Recording
Laws, § 134:
In jurisdictions where judgment creditors are not within the protection of
the recording laws as against unrecorded instruments, an unrecorded conveyance
of a specific parcel of land is entitled to priority over the lien of a subsequent
judgment against the vendor even though the judgment creditor had no notice of
the conveyance, and if the judgment creditor purchases the land at the sale under
the judgment, he or she can acquire no superior title by his or her purchase.
However, in jurisdictions where, by statute, judgment creditors are extended
protection against unrecorded instruments of which they had no notice at the time
their liens became fixed, the liens of subsequent judgments are entitled to priority
over prior unrecorded conveyances of which the judgment creditor had no notice.
This is the rule irrespective of the defenses that might have been interposed by the
judgment debtor prior to the entry of judgment but that are not available after the
docketing thereof. [Citations omitted.]
-9-
As such, plaintiff’s contention of the priority of his judgment lien with regard to the Sables’
judgment of divorce is without merit.
To the extent that it is suggested that plaintiff’s judgment lien has priority over the
Watson mortgage with Dow, this argument is also unavailing. While MCL 600.2807 grants a
judgment lien priority over liens recorded after the judgment lien, important exceptions are noted
within the statutory provision. Specifically, MCL 600.2807(2)(a) provides that a judgment lien
lacks priority over a subsequently recorded “purchase money mortgage.” Plaintiff’s judgment
lien, based on the statutory language, cannot be construed to have priority over the mortgage
held by Dow with Watson.
Finally, discussion ensued in the lower court based on plaintiff’s attempt to pursue a levy
of execution on the subject property. Black’s Law Dictionary (9th ed) defines a levy of
execution as “[t]he legally sanctioned seizure and sale of property; the money obtained from
such a sale.” MCL 600.6018 provides:
All the real estate of any judgment debtor, including, but not limited to,
interests acquired by parties to contracts for the sale of land, whether in
possession, reversion or remainder, lands conveyed in fraud of creditors, equities
and rights of redemption, leasehold interests including mining licenses, for mining
ore or minerals, but not including tenancies at will, and all undivided interests
whatever, are subject to execution, levy and sale except as otherwise provided by
law.
Plaintiff’s contention of entitlement to a levy of execution was premised on fraud, which had not
been affirmatively established, for purposes of a levy, other than by way of the jury’s verdict that
Richard Sable had fraudulent intent against Weatherseal. “Where there is no actual fraud or
collusion in a transfer of property or some right in it by the debtor to a third person even though
the third person is the debtor’s spouse, the actual ownership is in the transferee, and the property
or interest is not subject to execution against the transferor.” 7 Michigan Pleading & Practice
(2d ed), Executions, § 49:21, citing Loomis v Smith, 37 Mich. 595 (1877). Based on the absence
of a determination of such “actual fraud,” and given Watson’s status as a good faith purchaser,
the trial court properly declined to allow a levy of execution on the property.
In Docket No. 314079, Richard Sable contends that the trial court erred in failing to grant
him sanctions under MCR 2.403. “A trial court’s decision whether to grant case evaluation
sanctions presents a question of law, which this Court reviews de novo.” Tevis v Amex
Assurance Co, 283 Mich. App. 76, 86; 770 NW2d 16 (2009). As discussed by this Court in Van
Elslander v Thomas Sebold & Assoc, Inc, 297 Mich. App. 204, 211; 823 NW2d 843 (2012),
quoting Smith v Khouri, 481 Mich. 519, 526; 751 NW2d 472 (2008):
“A trial court’s decision whether to grant case-evaluation sanctions under
MCR 2.403(O) presents a question of law, which this Court reviews de novo. We
review for an abuse of discretion a trial court’s award of attorney fees and costs.
An abuse of discretion occurs when the trial court’s decision is outside the range
of reasonable and principled outcomes.”
-10-
The interpretation and application of a court rule also presents a question of law that is reviewed
de novo. Snyder v Advantage Health Physicians, 281 Mich. App. 493, 500; 760 NW2d 834
(2008).
MCR 2.403(O)(1) states, “If a party has rejected an evaluation and the action proceeds to
verdict, that party must pay the opposing party’s actual costs unless the verdict is more favorable
to the rejecting party than the case evaluation.” This Court has noted that MCR 2.403(O)(1) is a
mandatory rule that requires the party rejecting a case-evaluation award to pay the opposing
party’s actual costs under certain circumstances. Haliw v City of Sterling Hts (On Remand), 266
Mich. App. 444, 447; 702 NW2d 637 (2005). The parties do not dispute that Richard Sable
accepted the case-evaluation award of $10,000 in favor of plaintiff.
There are two aspects to this issue. Richard Sable first contends that he is entitled to
costs and fees under MCR 2.403(O)(1) based on the absence of any monetary award in favor of
plaintiff by the jury, comprising a less favorable result and justifying the award of sanctions.
The second point of contention is the applicability of MCR 2.403(O)(5), regarding the valuation
of equitable remedies to justify the award of sanctions.
Dealing first with MCR 2.403(O)(1), the difficulty that ensues is the absence of any
monetary award by the jury for comparison to determine whether it was “more favorable” than
the case-evaluation award. Richard Sable elects to interpret the absence of a monetary award as
the equivalent of an award of $0 or a no cause of action. We find that the absence of a monetary
award does not negate the value of plaintiff’s judgment lien, does not equate to a no cause of
action, and does not entitle Richard Sable to sanctions. MCR 2.403(O)(3) defines a verdict as
being “more favorable to a defendant if it is more than 10 percent below the evaluation, and . . .
more favorable to the plaintiff if it is more than 10 percent above the evaluation.” Given the
nature of the jury’s verdict in this matter, there can be no comparison to the case-evaluation
figure of $10,000 and, thus, a determination of favorability is inherently impossible under this
provision, rendering an award of sanctions inappropriate.
Subsection (O)(5) is also inapplicable. Plaintiff did not plead an equitable cause of action
and, further, the jury verdict did not encompass or provide for an equitable remedy—merely a
factual determination. Based on the absence of any monetary or equitable award from the jury,
there is no basis for comparison to the case-evaluation award, rendering an award of sanctions
inappropriate.
If the trial court implicitly denied sanctions in accordance with the “interest of justice
exception” contained in MCR 2.403(O)(11), this would comprise error because MCR
2.403(O)(11) is implicated only when the “‘verdict’ is the result of a motion . . . .” At any rate,
the denial of sanctions is affirmed because “[t]his Court ordinarily affirms a trial court’s decision
if it reached the right result, even for the wrong reasons.” Wickings v Arctic Enterprises, Inc,
244 Mich. App. 125, 150; 624 NW2d 197 (2000).
-11-
Affirmed.
/s/ Mark T. Boonstra
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
-12-