Delaware

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

Acorn Construction LTD. v. George Eastman,
1984 DE 419 (DE 09/04/1984)

SUPERIOR COURT OF DELAWARE

Nos. 201-MR-T 83, Y-12-241

1984.DE.419

September 4, 1984

ACORN CONSTRUCTION LTD.

v.

GEORGE EASTMAN SUPERIOR COURT JUDGMENT

Jerome O. Herlihy, Esq., Herlihy, Herlihy & Harker, 805 Market Tower, Wilmington, DE 19801

Robert K. Pearce, Esq., Truzuskowski, Kipp, Kelleher & Pearce, P.a., 11th & Bancroft Parkway, P.o. Box 429, Wilmington, DE 19899

This is the Court's opinion in the above-referenced matter. Plaintiff has sought a Writ of Attachment in execution of a judgment obtained in the Court of Common Pleas. Defendant has filed a Motion to Quash the Writ.

The undisputed facts are as follows. The dispute which led to the original litigation and ultimate judgment arose over construction work done by plaintiff on a house solely owned by defendant. Subsequent to this suit being filed, the defendant conveyed the property to himself and his wife. The defendant and his wife then entered into a conditional sales agreement with a third party, who paid plaintiff a check in the amount of $144.00 per month. It was that check which plaintiff originally sought to attach. The third-party buyer has since exercised his option, made payment in full in the amount of $12,855.89, and settled on the property. Although there are no further payments to attach, plaintiff contends that the $12,855.89 is held in a constructive trust by the defendant for the plaintiff.

Plaintiff contends that the original payments were attachable and that the money is now held in trust, even though in the joint names of defendant and his wife, because, alleges plaintiff, defendant fraudulently conveyed the house to himself and his wife in an attempt to avoid payment of the judgment in this case.

In the case of Faircloth v. Rash, Del. Super., 373 A.2d 870 (1977), this Court held that a motion by a judgment creditor for payment of escrow funds from an allegedly fraudulent transfer must be treated as a summary judgment motion so that the Court could not resolve factual disputes or draw inferences other than in the light most favorable to the non-moving party. In the case of Computer Sciences Corp. v. Sci-Tek, Incorporated, Del. Super., 367 A.2d 658 (1976), this Court held that an evidentiary hearing was required to determine whether the transfer of assets in that case was fraudulent. The Court held that, "he allegation of fraud is premised upon factual controversies which cannot be resolved on this record of assertion and counter affidavits." Such is the case sub judice. A determination of whether the conveyance by defendant to himself and his wife was fraudulent is premature, absent an evidentiary hearing.

However, as noted above, the third-party buyer has exercised his option and is no longer making the $144.00 per month payment which was the target of the Writ of Attachment. The imposition of a constructive trust, an equitable remedy, is outside the jurisdiction of this Court.

For these reasons, defendant's Motion to Quash the Writ of Attachment is hereby granted.

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