Opinion
SUCV2016-00713-C 138152
09-21-2017
Ralph Desiano v. Envision Foods, Inc
MEMORANDUM OF DECISION AND ORDER ON (1) DEFENDANT'S MOTION TO DISMISS AND (2) PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT
Robert B. Gordon, Justice of the Superior Court.
The plaintiff, Ralph Desiano (" Desiano"), has brought this action to enforce a Florida judgment against the defendant, Envision Foods, Inc. (" Envision"). In his Verified Complaint, Desiano seeks to reach and apply any amounts due or that may become due to Envision from the reach and apply defendant, Cosi, Inc. (" Cosi") under G.L.c. 214, § 3(6). Presented for decision are Envision's Motion to Dismiss the Verified Complaint pursuant to Mass.R.Civ.P. 12(b)(2) and (6), and Desiano's Cross-Motion for Summary Judgment pursuant to Mass.R.Civ.P. 56(c). For the reasons which follow, Envision's Motion to Dismiss shall be DENIED, and Desiano's Cross Motion for Summary Judgment shall be ALLOWED.
Cosi has defaulted in this case.
Desiano has also filed a Motion to Strike certain affidavits and documentary evidence submitted by Envision with respect to a third party's purportedly superior interest in the assets Desiano seeks to reach and apply. As set forth infra, however, Envision's priority of interest argument is unavailing as a matter of law. For that reason, the Court need and will not address Desiano's Motion to Strike.
BACKGROUND
Desiano is a Florida resident. Envision is a dissolved Florida corporation, with no contacts (past or present) with the Commonwealth of Massachusetts. Reach and apply defendant Cosi is a Massachusetts corporation.
On January 3, 2013, the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County Florida awarded Desiano a $195,130.55 judgment against Envision (the " Florida judgment"), the validity of which is not contested. In accordance with Florida law, Desiano filed a judgment lien against Envision with the Florida Department of State on January 31, 2013.
Desiano filed the present action on March 3, 2016, at which time the Florida judgment remained outstanding. By this action, Desiano seeks to reach and apply Envision's interest in all or a portion of a $500,000 debt owed to Envision by reach and apply defendant Cosi (the " Cosi obligation"). Envision does not dispute the existence of the Cosi obligation, which accrued several years ago in connection with an unspecified business transaction in a foreign state. The Cosi obligation is Envision's sole asset.
At the time this obligation came into being, Cosi's principal place of business was in Illinois.
DISCUSSION
Envision has moved to dismiss the Complaint for lack of personal jurisdiction, and Desiano has cross moved for summary judgment. Under Mass.R.Civ.P. 12(b), the reviewing judge may treat a motion to dismiss brought pursuant to Mass.R.Civ.P. 12(b)(6) as a motion for summary judgment if matters outside the pleadings are presented to, and not excluded by, the Court. In the case at bar, the Court has been presented with and will consider materials extrinsic to the pleadings. Therefore, Envision's Motion to Dismiss will be treated as a motion for summary judgment, and disposed of as provided for in Rule 56.
I. Standard of Review
Summary judgment shall be granted where there are no genuine issues of material fact, and where the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c). See Cassesso v. Commissioner of Corr., 390 Mass. 419, 422, 456 N.E.2d 1123 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976). The moving party bears the burden of establishing that there is no dispute of material fact on every relevant issue. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39, 825 N.E.2d 522 (2004). A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a genuine dispute of material fact either by submitting affirmative evidence negating an essential element of the non-moving party's case, or by showing that the non-moving party has no reasonable expectation of proving an essential element of its case at trial. See Flesner v. Technical Commc'ns Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991).
II. Analysis
Resolution of the parties' competing motions in this case turns on two issues. Envision's principal argument is that the Court lacks personal jurisdiction over it, and that the case must therefore be dismissed. Envision additionally argues that, in the event the Court declines to dismiss the case for lack of jurisdiction, it must nevertheless deny summary judgment to the plaintiff because issues of fact remain with respect to whether Desiano's right to the Cosi obligation is subordinate to a superior interest of a third party. The Court will address each issue in turn.
A. Jurisdiction
Envision argues that the Court lacks personal jurisdiction over it, and that such lack of jurisdiction is fatal to Desiano's reach and apply claim. Envision is correct insofar as it contends that the Court does not have personal jurisdiction over it. However, as will be explained below, lack of personal jurisdiction does not warrant the dismissal of Desiano's reach and apply claim.
Personal jurisdiction exists where the assertion of jurisdiction is both authorized by statute and consistent with the due process requirements of the United States Constitution. See Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 6-7, 389 N.E.2d 76 (1979). The Massachusetts Long-Arm Statute, G.L.C. 223A, § 3, authorizes personal jurisdiction to the limits allowed by the U.S. Constitution " only when some basis for jurisdiction enumerated in the statute has been established." Id. at 6. The facts underlying the case at bar indisputably do not satisfy any of the enumerated criteria for the conferral of personal jurisdiction. See G.L.C. 223A, § 3(a)-(h) (enumerated bases of jurisdiction include, inter alia, transacting business or contracting to supply goods or services in the Commonwealth, causing tortious injury by an act or omission inside the Commonwealth, having an interest in or possessing real property in the Commonwealth, and contracting to insure persons, properties, or risks in the Commonwealth). Here, the record evidence stands uncontradicted that Envision is a non-resident corporation that has never transacted any business of any kind in the Commonwealth, including the transaction that gave rise to the Cosi obligation. The Court thus lacks personal jurisdiction over this defendant.
While the majority of civil actions brought in Superior Court depend for their viability on the assertion of personal jurisdiction, the Court is also empowered, in certain circumstances, to entertain actions based on quasi in rem jurisdiction. In an action founded on quasi in rem jurisdiction, " the plaintiff seeks not to determine the existence of interests in the thing but rather to apply the thing to the satisfaction of a claim against the defendant[.]" See Restatement (Second) of Judgments § 32 (1982). Desiano's present effort to reach and apply the Cosi obligation to the satisfaction of his Florida judgment is, therefore, premised on quasi in rem jurisdiction. See Rosenthal v. Maletz, 322 Mass. 586, 590-91, 78 N.E.2d 652 (1948) (action to reach and apply property of non-resident constitutes proceeding quasi in rem ). As with personal jurisdiction, however, the Court must find that, in the circumstances of the case presented, the exercise of quasi in rem jurisdiction is fundamentally fair and thus consistent with constitutional due process requirements. See Shaffer v. Heitner, 433 U.S. 186, 209-11, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (exercise of in rem and quasi in rem jurisdiction must be fair and consistent with constitutional due process).
The related concept of in rem jurisdiction involves a litigant's asserted interest in a particular thing, but " [d]oes not bind anyone with respect to a personal liability." See Restatement (Second) of Judgments § 30(2) (1982).
In Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), the U.S. Supreme Court held that the exercise of quasi in rem jurisdiction is consistent with due process requirements if the factual circumstances of the case satisfy the minimum contacts standard applicable to personal jurisdiction that was initially established by International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). See Shaffer, 433 U.S. at 207. Under this standard, a non-resident defendant may only be subject to judgment in a foreign state if the defendant has " certain minimum contacts with [the forum] such that maintenance of the suit does not offend traditional notions of fair play and substantial justice." Shaffer, 433 U.S. at 203, 207 (quoting International Shoe Co., 326 U.S. at 316) (citation omitted)). The Court reasoned that application of the minimum contacts standard to quasi in rem actions was necessary to prevent the indirect assertion of personal jurisdiction over defendants having no physical presence or other contacts within a plaintiff's preferred foreign state. See Shaffer, 433 U.S. at 209 (stating that where a direct assertion of personal jurisdiction would be unconstitutional, " it would seem that an indirect assertion of that jurisdiction, " based solely on the presence of the defendant's property in the forum state, " should be equally impermissible"). Shaffer, 433 U.S. at 209 (internal quotations omitted). Frequently cited dicta in Shaffer, however, suggests that the Supreme Court views the matter of jurisdiction in post-judgment cases quite differently.
The Shaffer Court recognized that allowing postjudgment enforcement actions based solely on jurisdiction over a defendant's property is necessary to prevent defendants from evading judgments by holding their property in a state where they are not otherwise subject to personal jurisdiction. See Shaffer, 433 U.S. at 210 (defendants cannot move property out of state to avoid civil judgment because " [t]he Full Faith and Credit Clause . . . makes the valid in personam judgment of one State enforceable in all other States"); see also Kulko v. Superior Ct. of California, 436 U.S. 84, 95 n.9, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978) (" A final judgment entered by a . . . court having jurisdiction over the defendant's person and over the subject matter of the lawsuit would be entitled to full faith and credit in any State"). In a footnote, the Court added that, " [o]nce it has been determined by a court of competent jurisdiction that the defendant is a debtor of the plaintiff, there would seem to be no unfairness in allowing an action to realize on that debt in a State where the defendant has property, whether or not that State would have jurisdiction to determine the existence of the debt as an original matter ." Shaffer, 433 U.S. at 210 n.36 (emphasis supplied). The logic of this dictum is inescapable. What is fundamentally fair, and thus consistent with constitutional due process, in post -judgment circumstances (such as those presented in the case at bar) necessarily differs from what is fair and consistent with due process in the pre-judgment context. After all, the burden on a non-resident defendant reflected in " the practical problems resulting from litigating in [an unfamiliar] forum" and " the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question, " is significantly reduced after a judgment against such a defendant has already been rendered. Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773, 1780, 198 L.Ed.2d 395 (2017) (citations omitted). Stated differently, a postjudgment quasi in rem enforcement action against a non-resident debtor is constitutional, because such debtor has already had a full, fair and adequate proceeding during which it had the opportunity to contest the creditor's underlying claim. The constitutionality of the judgment-producing action effectively carries over to the enforcement proceeding, even where the non-resident debtor's sole connection to the forum state is the presence of an asset therein. See Shaffer, 433 U.S. at 210 n.36.
Accordingly, although Envision is a non-resident corporation lacking the minimum contacts with Massachusetts required to satisfy International Shoe analysis, declining to assert quasi in rem jurisdiction over it on this basis would plainly not further the constitutional concerns identified in Shaffer . The present action is not a serpentine effort to assert personal jurisdiction over an entity that could not, constitutionally, be subjected to personal jurisdiction in Massachusetts directly. Rather, the case at bar is an action to enforce a judgment that was properly entered against Envision by a court of competent jurisdiction, and to which judgment full faith and credit is constitutionally owed.
Although the Supreme Judicial Court has yet to explicitly endorse the exercise of quasi in rem jurisdiction to enforce a judgment against a party lacking minimum contacts with Massachusetts, an overwhelming number of federal and foreign state courts have done so in directly parallel circumstances. See, e.g., Office Depot, Inc. v. Zuccarini, 596 F.3d 696, 700 (9th Cir. 2010) (" In an action to execute on a judgment, due process concerns are satisfied, assuming proper notice, by the previous rendering of a judgment by a court of competent jurisdiction"); Smith Barney, Inc. v. Ekinci, (1st Cir. 1997) (holding that Shaffer's minimum contacts requirement is inapplicable where court is merely enforcing a judgment of another court that had proper personal jurisdiction over the parties); Smith v. Lorillard, Inc., 945 F.2d 745, 746 (4th Cir. 1991) (Shaffer inapplicable where court merely enforcing valid judgment of court with personal jurisdiction over parties); Crescendo Maritime Co. v. Bank of Commc'ns Co., (S.D.N.Y. 2016) (exception to minimum contacts rule " applies where a petitioner seeks to recover on a judgment already adjudicated in a forum with personal jurisdiction over the respondent"); Blach v. AFLAC, Inc., (M.D.Ga. 2016) (court may enforce judgment against non-resident's in-state property regardless of whether court has personal jurisdiction over property owner itself); Pure Fishing, Inc. v. Silver Star Co., 202 F.Supp.2d 905, 909-10 (N.D. Iowa 2002) (" [I]n the context of the recognition and enforcement of other state judgments, the minimum contacts requirement of the Due Process Clause does not prevent a state from enforcing another state's valid judgment against a judgment-debtor's property located in that state, regardless of the lack of other minimum contacts by the judgment-debtor"); JP Morgan Chase Bank, N.A. v. Herman, 175 Conn.App. 662, 669-70 (Conn.App.Ct. 2017) (minimum contacts standard set forth in Shaffer " does not apply in the same manner to postjudgment enforcement proceedings"); Arbor Farms, LLC v. GeoStar Corp., 305 Mich.App. 374, 853 N.W.2d 421, 427 (Mich.Ct.App. 2014) (" [W]hen a judgment debtor owns property in Michigan, jurisdiction is proper in postjudgment enforcement proceedings without the necessity of demonstrating personal jurisdiction over the debtor"); Lenchyshyn v. Pelko Elec, Inc., 281 A.D.2d 42, 48, 723 N.Y.S.2d 285 (N.Y.App.Div. 2011) (citing cases from fifteen states permitting exercise of in rem jurisdiction to enforce judgment against party lacking minimum contacts); Koh v. Inno-Pac. Holdings, 114 Wn.App. 268, 54 P.3d 1270, 1271 (Wash.Ct.App. 2002) (" [O]nce it has been determined by a court of competent jurisdiction that a defendant is a debtor of the plaintiff, an action to realize on that debt in Washington, where the defendant has a property interest . . . is proper whether or not Washington would have had jurisdiction to determine the existence of the debt as an original matter"); UMS Partners, Ltd. v. Jackson, (Del.Super.Ct. 1995) ( Shaffer " makes clear" that plaintiffs' valid in personam judgment permits them to enforce judgment in Delaware " regardless of whether" Delaware court can assert personal jurisdiction over defendant); Tabet v. Tabet, 644 So.2d 557, 559 (Fla.Dist.Ct.App. 1994) (" The minimum contacts requirement of the due process clause does not prevent Florida from enforcing another state's valid judgment against a judgment-debtor's property located here, regardless of the lack of other minimum contacts by the judgment-debtor"); Ruiz v. Lloses, 233 N.J.Super. 608, 559 A.2d 866 (N.J.Super.Ct.App.Div. 1989) (Full Faith and Credit Clause permitted plaintiff to levy on defendant's Florida property based on judgment entered by New Jersey court); State ex rel. Dept. of Revenue v. Control Data Corp., 300 Ore. 471, 713 P.2d 30, 32 n.3 (Ore. 1986) (" The exemption of proceedings to realize on judgments from the minimum contacts standard of International Shoe is pragmatically necessary if judgment debtors are to be prevented from shielding their assets from judgment creditors by shipping the assets to a state with which the underlying litigation had no prior connection") (citation omitted); Bank of Babylon v. Quirk, 192 Conn. 447, 472 A.2d 21, 22-23 (Conn. 1984) (where defendant was " given fair notice and an opportunity to defend the action on the merits in the state of New York, " he cannot " complain because the plaintiff seeks to enforce that judgment" against defendant's property in Connecticut); Berger v. Berger, 138 Vt. 367, 417 A.2d 921, 922 (Vt. 1980) (" Recognizing that, under the facts in Shaffer, the footnote in question is dicta, we are nonetheless inclined to follow it. There is nothing in the concept of justice and fair play that requires a second opportunity to litigate the liability established by a valid judgment").
Although the SJC has yet to address this issue squarely, its holding in Prudential-Bache Secur., Inc. v. Commissioner of Revenue, 412 Mass. 243, 588 N.E.2d 639 (1992), seems at least implicitly to recognize the validity of postjudgment in rem enforcement actions against parties lacking minimum contacts with Massachusetts. In Prudential, the SJC considered whether the Commissioner of Revenue had authority under G.L.c. 62C, § 53 to reach assets held in a brokerage account in Illinois. 412 Mass. at 245-46. The Court declared that, although " [t]he presence in Massachusetts of property of a debtor is not alone a sufficient basis for a creditor to assert jurisdiction over that property, " there is " good reason to justify, as consistent with due process, a levy on Massachusetts property of a nonresident in order to collect unpaid Massachusetts taxes . . ." Id. at 247. In support of its distinction between unspecified debts and unpaid tax obligations, the Court cited an Oregon case, State ex rel. Dept. of Revenue v. Control Data Corp., 300 Ore. 471, 713 P.2d 30 (1986). Id. Control Data, in turn, relied on the Shaffer footnote to distinguish pre judgment in rem actions seeking to litigate a claim against a party lacking the requisite minimum contacts from postjudgment in rem actions merely seeking to collect a judgment previously rendered by a court of competent jurisdiction. 713 P.2d at 32. In view of the holding of Control Data, it appears that the reason the SJC found that a levy on the Massachusetts property of a non-resident to collect unpaid taxes was consistent with due process is that the Commissioner of Revenue's assertion that a tax debt remained unpaid represents a final agency determination that is binding upon the debtor. See Commissioner of Revenue v. A.W. Chesterton Co., 406 Mass. 466, 468, 548 N.E.2d 883 (1990) (Massachusetts Revenue Commissioner is only government authority to whom aggrieved taxpayers can appeal for relief from erroneous tax assessment); see also G.L.C. 62C, § § 36-37. In this sense, an in rem action against a non-resident to enforce administratively adjudicated tax obligations and an action against a non-resident to enforce a validly issued judgment of a court of competent jurisdiction appear analogous. Prudential-Bache thus reinforces this Court's forecast that, when presented with the issue, the SJC will join the chorus of state and federal courts that have upheld against constitutional challenge the assertion of post-judgment quasi in rem jurisdiction notwithstanding the absence of minimum contacts.
In accordance with the foregoing, the Court concludes that constitutional due process requirements are satisfied where a judgment debtor, such as Envision, has already had a full and fair process in the action which produced the underlying obligation and ensuing lien. In such circumstances, and in the context of an assertion of quasi in rem jurisdiction, no minimum contacts analysis need be applied to the judgment enforcement action. Envision's Motion to Dismiss for lack of personal jurisdiction, therefore, shall be DENIED .
B. Interest in the Cosi Obligation
Envision next argues that the Court must deny summary judgment to the plaintiff because issues of fact remain with respect to whether Desiano's right to the Cosi obligation is subordinate to a superior interest held by Envision's sister entity, Envision Foods, LLC. As a threshold matter, it bears noting that " a statutory bill to reach and apply is pursued for the sole benefit of the creditor who brings it and not for the benefit of other creditors . . ." National Radiator Corp. v. Parad, 297 Mass. 314, 318, 8 N.E.2d 794 (1937); McCarthy v. Rogers, 295 Mass. 245, 246, 3 N.E.2d 787 (1937) (statutory reach and apply proceedings exist to enable creditors to satisfy his or her claim " without reference to the claims of others . . ."). Accordingly, the competing interests of third parties have no bearing on a statutory reach and apply action where, as here, the alleged third-party creditor has not sought to intervene. Compare Charles Construction Co. v. Leisure Resources, Inc., 1 Mass.App.Ct. 755, 307 N.E.2d 336 (1974) (permitting intervention of party with competing interest in property that plaintiff sought to reach and apply). Even assuming, arguendo, that Envision has standing to assert the rights of third-party creditor Envision Foods, LLC, and this appears doubtful, the arguments Envision asserts on behalf of its sister entity lack merit as a matter of law.
Envision's core contention is that Desiano's 2013 judgment lien was defective because it misidentified Envision as " Envision Foods Corporation" rather than " Envision Foods, Inc." Envision thus argues that a UCC statement filed by Envision Foods LLC (securing a loan allegedly made to Envision in 2007) created an interest in the Cosi obligation superior to Desiano's. By reason of Desiano's filing defect, Envision argues, the UCC statement filed by Envision Foods, LLC in 2016 (three years after Desiano filed his judgment lien) stands in superior priority. The Court does not agree.
The purpose of notice filing in this context is to protect security interests while simultaneously giving " subsequent potential creditors and other interested persons information and procedures adequate to enable the ascertainment of the facts they need[ ] to know." National Cash Reg. Co. v. Firestone & Co., 346 Mass. 255, 261, 191 N.E.2d 471 (1963). See also In re Kenco Consol., 153 B.R. 348, 349-50 (Bankr.M.D.Fla. 1993) (" The determination of whether a Financing Statement puts searchers on further inquiry or is 'seriously misleading' turns on the factual considerations of a particular case, and the effect on potential creditors who reasonably relied on the information obtained through search of the records of the Secretary of State"). Envision has not set forth any evidence, and could not seriously maintain, that Desiano's use of the word " Corporation" rather than " Inc." in its public filing failed to afford Envision Foods, LLC adequate notice of the Florida judgment lien. Under Florida Stat. § 55.203(5), " [a] judgment lien certificate substantially satisfying the requirements of this section is effective even if it has minor errors or omissions that make the filing seriously misleading." A literal reading of this statute appears to suggest that a minor error would not negate the efficacy of a judgment lien certificate even if such error were " seriously misleading." Strange. However, even if one interprets the statute to invalidate a judicial lien certificate unless the minor error is seriously misleading (which would seem to be the logical intent of the Florida law), in no rational sense could the error at issue in this case render Desiano's judgment lien " seriously misleading." Although the fact that Desiano named Envision as " Envision Foods Corporation " on the judgment lien certificate (rather than " Envision Foods, Inc. ") is, indeed, a minor error, common sense dictates that " Envision Foods Inc." and " Envision Foods Corporation" are virtually indistinguishable. Cf. Fla. Stat. § 607.0401(4)(e) (a corporation name using a " recognized abbreviation of a root word" is indistinguishable from a corporate name that is similar in all respects other than the fact that it does not abbreviate the root word). Competing creditors of Envision Foods, Inc. had abundantly fair and non-misleading notice of Desiano's 2013 judgment lien. The plaintiff's lien was thus not defective as a matter of Florida law, and created an interest in the Cosi obligation superior to the putative interest of Envision Foods, LLC.
II. Desiano's Right to Relief
Envision contends that Desiano has not satisfied its burden to show that it is entitled to a preliminary injunction, and, therefore, that Desiano's request to reach and apply the Cosi obligation must be denied. See Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 617, 405 N.E.2d 106 (1980) (party seeking preliminary injunction must show that it faces a risk of irreparable harm, lacks other adequate remedies at law, and has a likelihood of success on the merits of its case). This argument is unpersuasive.
The showing required to obtain a pre judgment preliminary injunction is immaterial to statutory reach and apply claims to enforce a judgment such as Desiano's, which are brought pursuant to G.L.C. 214, § 3(6). See In re Rare Coin Galleries, Inc., 862 F.2d 896, 903 n.5, 904-05 (1st Cir. 1988) (distinguishing prejudgment bills to reach and apply, which typically involve requests for injunctive relief, from bills to reach and apply brought by judgment creditors under Massachusetts law). Statutory reach and apply claims fall within a category of actions over which this Court has special equity jurisdiction that allow for the satisfaction of a valid common-law claim out of a debtor's property. See Cavadi v. DeYeso, 458 Mass. 615, 625, 941 N.E.2d 23 (2011). A creditor seeking to reach and apply the debtor's assets does not need to show that he or she has exhausted all legal remedies to be entitled to this form of equitable relief. See id.; Blumenthal v. Blumenthal, 303 Mass. 275, 278, 21 N.E.2d 244 (1939). The Legislature created statutory reach and apply actions in 1851, and conferred special jurisdiction upon the Court in order to provide " a more efficient remedy for creditors than the equitable procedure known at common law." Foster v. Evans, 384 Mass. 687, 692, 429 N.E.2d 995 (1981). Prior to that time, a reach and apply action could only succeed if the plaintiff persuaded the Court that it was appropriate to exercise its general equity jurisdiction, which typically requires a more rigorous showing. Accordingly, Desiano need not establish the elements for obtaining preliminary injunctive relief in order to reach and apply Envision's assets in satisfaction of his Florida judgment.
Desiano must satisfy just two elements to succeed on his statutory reach and apply claim. See Papamechail v. Holyoke Mut. Ins. Co., 8 Mass.App.Ct. 849, 852, 397 N.E.2d 1153 (1979). He has indisputably done so. The first element requires Desiano to demonstrate that Envision is indebted to him. See id. The second requires Desiano to show that the property he seeks to reach and apply cannot be reached on execution. See id. Desiano has met the first requirement by presenting the Court with a valid judgment lien against Envision, thereby establishing a debt owed to him by this defendant that is immediately due and payable. Id. The second requirement is satisfied because Envision's interest in the Cosi obligation is capable of assignment, but cannot be attached or reached on execution. See Lewenstein v. Forman, 223 Mass. 325, 327, 111 N.E. 962 (1916) (vested interest in a contingent right falls within the ambit of a judgment creditor's reach and apply claim). Accordingly, Desiano's Motion for Summary Judgment on his claim to reach and apply the Cosi obligation, up to the amount of the Florida judgment plus interest, shall be ALLOWED .
As a final point, the Court observes that, even if Desiano were required to demonstrate a risk of irreparable harm and a lack of other adequate remedies at law, the record in fact so reflects. It is undisputed that Envision's sole asset is the contingent debt owed to it by Cosi. A reach and apply remedy is thus in every real sense Desiano's only recourse, the failure of which is irreparable.
ORDER
For the foregoing reasons, Envision's Motion to Dismiss is DENIED and Desiano's Motion for Summary Judgment is ALLOWED . Judgment shall enter for Desiano on his claim to reach and apply the Cosi obligation payable to Envision up to the amount of $238,833.31 (said amount inclusive of interest due under Florida law).
SO ORDERED.