COMMERCIAL CREDIT GROUP INC v. KERRISSEY (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Commercial Credit Group, Inc. (Commercial), brought this reach and apply action to recover amounts owed by the defendant, Joseph P. Kerrissey, III, on a North Carolina default judgment. Summary judgment entered in favor of Commercial. Kerrissey appeals, and we affirm.

In 2017, Commercial loaned money to J. Kerrissey, LLC (JKLLC), and JDHE Holding, LLC (JDHE). Kerrissey personally guaranteed both loans, and the guaranties provided as follows, in capitalized and bolded letters:

“Each of the guarantors hereby agree to the exclusive venue and jurisdiction of any state or federal court presiding in ․ North Carolina for all actions ․ in any way related to this guaranty, with the sole exceptions that an action to recover possession of all or part of the security or any other assets of subject or any of the guarantors however denominated, may, in the sole discretion of creditor, be brought in a state or federal court having jurisdiction over such security and/or assets, and that judgments may be confessed, entered, or enforced in any jurisdiction where subject, or any guarantor, or security and/or any other assets of subject, or guarantor may be located.”

In addition, JKLLC and JDHE executed security instruments giving Commercial security interests in various pieces of construction equipment.

On March 19, 2019, Commercial brought an action in North Carolina (1) claiming that JKLLC and JDHE had defaulted on their loan obligations and (2) seeking to enforce the personal guaranties against Kerrissey (personal guaranties case). That same day, Commercial also brought an action in Massachusetts seeking to enforce its security interests in two pieces of unrecovered construction equipment (secured equipment case). While the secured equipment case was pending, a North Carolina default judgment entered in favor of Commercial in the personal guaranties case. That judgment went unpaid, so Commercial brought this action on September 14, 2021, seeking to reach and apply Kerrissey's ownership interests in four different Massachusetts companies.

Kerrissey brought a motion to consolidate this action with the secured equipment case. He argued that nothing was owed on the loans and that he faced the risk of inconsistent results if the two actions were not consolidated. While that motion was pending, Commercial moved for summary judgment. Commercial claimed that the North Carolina default judgment was entitled to full faith and credit. In a memorandum of decision and order on both motions, a Superior Court judge denied the motion to consolidate and allowed the motion for summary judgment, noting that Kerrissey had an opportunity to appear in the North Carolina action and failed to do so.

In this appeal, Kerrissey's sole claim is that summary judgment should have been denied, and his motion to consolidate should have been allowed, because there were genuine issues of material fact regarding whether anything was owed on the loans, and thus whether Commercial could recover on the personal guaranties. This argument misapprehends the nature of this action, which is a reach and apply action to recover on amounts owed on the North Carolina judgment, not an action to recover on the personal guaranties. To the extent Kerrissey wished to argue that he was not liable on the personal guaranties because nothing was owed on the loans, he needed to do so in the personal guaranties case in North Carolina. Once the North Carolina default judgment entered, and Commercial sought to recover on that judgment through this action, the question became whether the North Carolina default judgment was entitled to full faith and credit. Where Kerrissey does not argue that the North Carolina court lacked personal jurisdiction over him or subject matter jurisdiction over the dispute,³ the North Carolina default judgment was entitled to full faith and credit and summary judgment properly entered in Commercial's favor. See Bishins v. Richard B. Mateer, P.A., 61 Mass. App. Ct. 423, 428 (2004).

Moreover, where summary judgment properly entered in Commercial's favor, there was no abuse of the judge's discretion in denying Kerrissey's motion to consolidate. See Springfield v. Civil Serv. Comm'n, 403 Mass. 612, 615 n.3 (1988). As the judge noted, consolidating this action with the secured equipment case would have served only to unduly delay enforcement of the North Carolina default judgment.⁴

Judgment affirmed.

FOOTNOTES

3.   In the Superior Court, Kerrissey appears to have argued that the North Carolina default judgment was not entitled to full faith and credit because the North Carolina court lacked personal jurisdiction over him. Kerrissey does not press that argument on appeal.

4.   Commercial's request for appellate attorney's fees is denied. See Mass. R. A. P. 16 (a) (10), as appearing in 481 Mass. 1628 (2019) (“Any request for appellate attorney's fees and costs must be included in the brief, with a citation to the authority therefor”).