Opinion
Civil Action 2012-00658
06-07-2016
HELEN MASTROIANNI v. PAUL SULLIVAN & another [1]
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR ISSUANCE OF AN EXECUTION
Maynard M. Kirpalani, Justice
The plaintiff Helen Mastroianni (" Mastroianni") commenced this action against defendants Paul Sullivan (" Sullivan") and John J. McKenna for their alleged misconduct in a real estate transaction. Sullivan had previously pleaded guilty to one count of larceny by check over $250 (G.L. c. 266, § 30(1), § 37), arising out of that same real estate transaction (" criminal action"). In February 2014, after mediating their civil dispute, Mastroianni and Sullivan entered into an Agreement for Judgment (" Agreement") pursuant to which Sullivan was to make payments to Mastroianni. The Agreement entitles Mastroianni to file for the issuance of an execution, and this case is before the court on Mastroianni's motion for the issuance of an execution under G.L. c. 235 § 19. For the following reasons, Mastroianni's motion is ALLOWED.
The parties stipulated to the dismissal of John J. McKenna in June 2013. See Mass. R. Civ. P. 41(a)(2).
Commonwealth v. Sullivan, MICR2010-01322 (guilty plea), NOCR2012-00919 (probation transfer).
BACKGROUND
I. The Criminal Action
In 2010, Sullivan was charged with one count of larceny by check over $250. Sullivan pleaded guilty in October 2011, at which time he was sentenced to one year in the house of correction, and five years of probation; his probation conditions included, in pertinent part, making restitution to Mastroianni in the amount of $35,000. According to the Probation Department, as of the date of Mastroianni's motion, the amount remaining on Sullivan's restitution was $11,640.
II. The Agreement for Judgment
As noted, Mastroianni brought this civil action against Sullivan to recover money damages for Sullivan's alleged misconduct in the real estate transaction that had been the basis of the criminal action. On February 28, 2014, Mastroianni and Sullivan settled their civil dispute by entering into the Agreement for Judgment. In the Agreement, Mastroianni and Sullivan agreed to:
" enter into, and file with the Middlesex Superior Court, an Agreement for Judgment in favor of Helen Mastroianni in the sum of Fifty Thousand Dollars $50,000. Helen Mastroianni shall file for the issuance of an execution. Helen Mastroianni shall take no actions to collect on the judgment and/or the execution, until and unless Paul Sullivan defaults on any of [the] required payments and obligations set forth herein."
The parties filed the Agreement with this court on April 30, 2014. Mastroianni did not file for the issuance of an execution at that time.
The Agreement set forth Sullivan's required payments to Mastroianni, both to Mastroianni directly and through the Probation Department:
" Paul Sullivan shall make payments to Helen Mastroianni, and shall comply with the following obligations, as follows:
(a) The sum of $3,000.00, on or before March 17, 2014;
(b) The sum of $1,000.00, on or before April 17, 2014;
(c) Paul Sullivan shall continue to timely pay the monthly payments of $583.33 to the Superior Court Probation Department, until he completes payment of the $35,000 of restitution to Helen Mastroianni ordered by the Middlesex Superior Court in its disposition of the criminal action . . . . The parties acknowledge that, according to . . . the Superior Court Probation Department . . . [as of] November 15, 2013, Paul Sullivan had . . . paid the sum of $12,110.00 to Probation and that there was a balance of $22,890.00. . . .
(d) Upon Paul Sullivan's timely completion of his payments of restitution pursuant to subsection (c) hereof, which completion the parties estimate will be on or about February 1, 2016, Paul Sullivan shall make thirty-six (36) consecutive monthly payments of $583.33 to Helen Mastroianni, due on the first of each month."
Mastroianni does not assert that Sullivan failed to make the payments under subsections (a) and (b). As of the date of Mastroianni's motion, Sullivan was still making his restitution payments to the Probation Department under subsection (c), therefore he has not yet begun making his payments to Mastroianni directly under subsection (d).
Finally, the Agreement addressed defaults:
" If Paul Sullivan fails to timely pay any of his payments and obligations set forth [above] . . ., and such delinquency shall continue for thirteen (13) days from the date that Helen Mastroianni sends him Notice of Default . . ., then the entire Judgment will become immediately due and payable, with interest from the date of the Judgment pursuant to M.G.L. c. 235, Section 8, and less any payments which Paul Sullivan has paid pursuant hereto, other than the payments to the Probation Department pursuant to the disposition of the criminal action . . . ."
Mastroianni does not contend that she ever sent Sullivan a Notice of Default.
DISCUSSION
" Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise." Mass. R. Civ. P. 69. " 'An execution is a process issued from a court in which a judgment has been rendered, in a civil action, for the purpose of carrying the judgment into effect.'" Christakis v. D'Arc, 471 Mass. 365, 366 n.4 (2015), quoting Miller v. London, 294 Mass. 300, 304 (1936). 'The execution creates a lien which is then perfected by a levy of execution.'" Id. (citation omitted).
" An original execution shall not issue after the expiration of one year after the party is first entitled to take it out . . . ." G.L. c. 235, § 17; see First Nat'l Bank of Boston v. Bernier, 50 Mass.App.Ct. 756, 759 n.8 (2001) (" Generally, executions under § 17 are issued not by express judicial order but by ministerial action of the court's officers."). " [T]he use of the words 'shall not' in limiting the time of issuance of an original execution imports an absolute prohibition to public officers. . . . 'There is no judicial discretion to be exercised on the subject . . . .'" First Nat'l Bank of Boston, 50 Mass.App.Ct. at 757-758, quoting Boston v. Santosuosso, 308 Mass. 202, 206 (1941). Mastroianni did not obtain an execution under this provision, and, as one year has passed since the parties entered into the Agreement, an execution under this provision is not available to her.
Instead, Mastroianni has brought this motion under G.L. c. 235, § 19, which provides, " If a judgment remains unsatisfied after the expiration of the time for taking out execution thereon, the creditor may obtain a new execution by motion to the court in which such unsatisfied judgment was rendered . . . ." An execution issues under G.L. c. 235, § 19, then, " where a judgment is unsatisfied and no original execution [under G.L. c. 235, § 17, ] has been issued." First Nat'l Bank of Boston, 50 Mass.App.Ct. at 761; see id. at 759 (" A new execution under § 19 may be obtained where a judgment 'remains unsatisfied after the expiration of the time for taking out execution, ' but may be acquired only by motion." (emphasis in original)). As this provision " requires the level of process and judicial scrutiny commensurate with . . . motion practice[, ]" a debtor has " an opportunity to raise a claim of partial or total satisfaction of the judgment." Id. at 760.
The elements required for an execution to issue under G.L. c. 235, § 19, are present here: Mastroianni did not -- and now cannot -- obtain an original execution under G.L. c. 235, § 17; and, by operation of the Agreement, Sullivan's judgment debt to Mastroianni is unsatisfied. Sullivan's argument that Mastroianni is not entitled to an execution because he is not in default fails, as G.L. c. 235, § 19, does not require that the debtor be in default, only that the judgment be unsatisfied . An execution under G.L. c. 235, § 19, is therefore appropriate, and Mastroianni's motion for issuance of an execution is ALLOWED.
ORDER
For the foregoing reasons, Mastroianni's motion for issuance of an execution is ALLOWED.
SO ORDERED.
Dated at Wobum, Massachusetts this 11th day of December, 2013
ORDER FOR ENTRY OF DISMISSAL NISI
The above entitled action came on before the Court, Joseph M. Walker III, Justice and thereupon was REPORTED SETTLED to the Court by counsel of record.
Wherefore, it is ORDERED that an AGREEMENT FOR JUDGMENT or STIPULATION OF DISMISSAL, be filed in the Clerk's office by 01/10/2014.
If said Agreement or Stipulation is not filed by said date the Clerk is hereby directed to prepare, sign and enter Judgment dismissing the Complaint, and all other claims, without prejudice and without costs.