Eno v. McGinn

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23-P-17 Appeals Court

WALTER J. ENO vs. NANCY E. McGINN.

No. 23-P-17.

Plymouth. July 12, 2023. - January 10, 2024.

Present: Sacks, Grant, & Smyth, JJ.

Judgment, Satisfaction. Practice, Civil, Judgment, Attachment,
Trustee process. Trustee Process. Commonwealth, Officers
and employees, Trustee process. Governmental Immunity.
Immunity from Suit. Waiver. Statute, Construction.

Civil action commenced in the Superior Court Department on
April 9, 2019.

A motion to amend an attachment of wages and renew a
trustee process order, filed on August 3, 2022, was heard by
William F. Sullivan, J.

Nancy E. McGinn, pro se.
Walter J. Eno, pro se, submitted a brief.
Amy L. Nable, Special Assistant Attorney General, for the
Comptroller of the Commonwealth, amicus curiae, submitted a
brief.

SMYTH, J. In an effort to collect on an unpaid judgment,

the plaintiff, Walter J. Eno, representing himself, filed a

motion seeking an amended writ of attachment of the wages of the
2

defendant, Nancy E. McGinn, and to renew a trustee process order

directed to her employer, the Commonwealth of Massachusetts.

After hearings at which the parties and assistant attorneys

general on behalf of the Comptroller of the Commonwealth

(comptroller) appeared, a judge of the Superior Court denied the

motion on the basis that G. L. c. 29, § 31, bars the attachment

of a State employee's wages in these circumstances. The

plaintiff now appeals from that order. We affirm.1

Background. In 1994, the plaintiff's son, Gregory Eno

(Gregory), was severely injured when the defendant drove her

motor vehicle over him three times.2 In 1997, Gregory commenced

a personal injury action against the defendant in the Superior

Court. The defendant defaulted and a damages assessment hearing

was held. The original default judgment in the amount of $1.35

million entered in November 1999. In January 2000, an execution

issued in excess of $1.7 million.

Gregory passed away in 2015 having never received payment

from McGinn. In 2018, the plaintiff moved to substitute himself

for Gregory as plaintiff in the personal injury action, to renew

1 We acknowledge the amicus memorandum and attachments
thereto filed on behalf of the Comptroller of the Commonwealth
(comptroller).

2 The defendant was criminally charged in connection with
this incident. She was convicted of leaving the scene of an
accident involving personal injury and negligent operation of a
motor vehicle.
3

the judgment and for a new writ of execution for an additional

twenty years, and to attach the defendant's wages as she had

made no payments toward the judgment. All three motions were

allowed. A writ of attachment of the defendant's wages entered

in March 2019, but it did not name the Commonwealth as the

defendant's employer. An amended default judgment in the amount

of $4,825,473 entered in April 2019,3 and a writ of execution as

to the amended judgment entered in May 2019.4

The March 2019 writ of attachment of wages in the amount of

$135,000 was served on the comptroller in May 2019. In

response, an assistant attorney general wrote to the plaintiff

advising him that the comptroller would not honor the wage

garnishment request for three reasons. First, the writ was

procedurally improper because it did not name either the

comptroller or a relevant State entity. Second, the plaintiff

did not comply with Mass. R. Civ. P. 4.2, 365 Mass. 740 (1974),

governing trustee process, which the assistant attorney general

explained was "the legal mechanism by which a third-party [sic],

such as an employer, can be brought into a case named as the

'trustee' of a defendant's wages and ordered to garnish those

3 This amount reflects damages of $1.35 million plus
interest from November 1997 to April 2019.

4 As the Superior Court judge noted, the record is unclear
why the May 2019 writ of execution is roughly one-tenth the
amount of the amended judgment.
4

wages." Finally, even if the plaintiff had complied with the

trustee process procedure, the assistant attorney general wrote

that the comptroller was "legally prohibited" by G. L. c. 29,

§ 31, from honoring the wage garnishment.

Shortly thereafter, the defendant filed a voluntary

petition for bankruptcy under Chapter 7 of the Bankruptcy Code

in the United States Bankruptcy Court for the District of

Massachusetts. Through the bankruptcy proceedings, the

defendant sought to discharge the judgment she owed to the

plaintiff, which she reported to be $4,004,110. Following a

trial, a bankruptcy judge held that one-third of the judgment

debt was excepted from discharge and ordered that the remaining

balance of the judgment debt be discharged.

After judgment entered in the bankruptcy action, the

plaintiff filed a motion in the Superior Court seeking to amend

the March 2019 writ of attachment of wages to reflect what he

asserted was one-third of the outstanding judgment,

$1,622,203.93 (inclusive of interest and costs)5 and to "[r]enew

the 2019 [s]ummons to [t]rustee, naming the Comptroller of the

Commonwealth to garnish the wages of [the defendant], a [S]tate

5 The judge noted that in light of the bankruptcy discharge,
the revised amount of the Superior Court judgment should be
$1,608,491.25. Given the disposition of this appeal, we need
not resolve the discrepancy.
5

employee."6 Following two hearings on the motion in the fall of

2022, the judge entered an order dated October 7, 2022, denying

the motion. The judge explained in his written decision that

"[w]hile the equities of this case weigh heavily in favor of

[the plaintiff]'s argument," G. L. c. 29, § 31, precluded the

plaintiff from using trustee process to garnish the defendant's

wages. This appeal followed.7

Discussion. The plaintiff advances two interrelated

arguments in this appeal. He asserts that he is entitled to an

amended writ of attachment that includes the revised amount of

the judgment following the bankruptcy proceedings and that the

comptroller is obligated to comply with that amended writ by

attaching the defendant's wages. The plaintiff further argues

that he is not required to utilize the trustee process procedure

to attach the defendant's wages. For the reasons that follow,

we conclude that although trustee process is the appropriate

mechanism for a plaintiff to seek to attach a defendant's wages

6 The parties do not dispute that the defendant is a State
employee due to her employment by the Massachusetts Maritime
Academy. See G. L. c. 15A, § 5.

7 As of the date of the appellate argument, the defendant
had not paid any money toward the judgment.
6

directly from her employer, that avenue is foreclosed in the

circumstances here by G. L. c. 29, § 31, sixth par.8

A prevailing plaintiff may seek to collect on a judgment in

various ways, including through the procedures for attachment

under G. L. c. 223, §§ 42 to 83A, and Mass. R. Civ. P. 4.1, 365

Mass. 737 (1974), and trustee process under G. L. c. 246 and

Mass. R. Civ. P. 4.2, 365 Mass. 740 (1974).9 These two

procedures bear some similarities, but there are important

distinctions. "Attachment concerns itself with chattels or

realty not merely belonging to [the] defendant, but in his

possession and control." J.W. Smith & H.B. Zobel, Rules

Practice § 4.1.5 (2d ed. 2006) (hereinafter Smith & Zobel). See

8 Following argument in this appeal, the plaintiff filed a
letter (with two subsequent letters of corrections) wherein he
argues that the March 2019 writ of attachment was properly
served on the comptroller and was enforceable such that it
required the comptroller to garnish the defendant's wages. To
the extent the plaintiff argues that the assistant attorney
general improperly rejected that writ, we disagree for the
reasons described herein. Moreover, our review of the record
finds no support for the plaintiff's accusations of misconduct
attributed to the assistant attorney general who appeared on
behalf of the comptroller before the Superior Court.

9 While both attachment and trustee process procedures offer
a mechanism to obtain prejudgment security, the procedures also
are used postjudgment. See, e.g., Borne v. Haverhill Golf &
Country Club, Inc., 58 Mass. App. Ct. 306, 326 (2003)
(postjudgment attachment of real property or interest in
personal property permissible while appeal pending). Notably,
trustee process may be used to attach wages only after a
judgment has entered. See G. L. c. 246, § 32, eighth par.;
Mass. R. Civ. P. 4.2 (a).
7

G. L. c. 223, § 42 (permitting attachment of "[a]ll real and

personal property" with certain exceptions); Mass. R. Civ.

P. 4.1 (a) (permitting attachment of "real estate, goods and

chattels and other property"). By contrast trustee process

enables a plaintiff to attach goods or credits of the defendant

that are in the hands of a third person. See Goodspeed's Book

Shop, Inc. v. State St. Bank & Trust Co., 8 Mass. App. Ct. 147,

149 (1979). See also Smith & Zobel, supra ("plaintiff may

regard the custodian as a kind of trustee for plaintiff's

benefit, and may attach defendant's goods in the hands of the

third party"); Gilleran, Massachusetts Prejudgment Security

Devices: Attachment, Trustee Process, and Reach and Apply, 69

Mass. L. Rev. 156, 157 (1984) ("Generally, the defendant's

property is not subject to attachment where it is held by a

third party [, but] . . . security may be obtained over tangible

assets held by a third party in a trustee process action").

Ordinarily, credits attachable through trustee process include

wages that are "due to the defendant absolutely and without any

contingency." G. L. c. 246, § 24.10 Trustee process then is an

10 The amount of wages that may be recovered is limited by
G. L. c. 235, § 34, Fifteenth, which provides that the following
are exempt from seizure on execution: "[W]ages equal to the
greater of [eighty-five percent] of the debtor's gross wages or
[fifty] times the greater of the [F]ederal or the Massachusetts
hourly minimum wage for each week or portion thereof . . . ."
8

appropriate mechanism for a plaintiff to seek to attach a

defendant's wages directly from her employer.

The use of trustee process is subject to certain

limitations, including the long-recognized principle "that

trustee process actions against the Commonwealth are barred by

sovereign immunity."11 Seneca One, LLC v. Geulakos, 88 Mass.

App. Ct. 439, 442 (2015), and cited cases. Consequently, the

general rule is that "'the Commonwealth cannot be summoned as a

trustee under trustee process without statutory authorization

and, therefore, there can be no attachment by trustee process'

absent such an authorization." Randall v. Haddad, 468 Mass.

347, 354 (2014), quoting MacQuarrie v. Balch, 362 Mass. 151, 152

(1972).

The issue then is whether the Legislature has enacted any

statute that expressly or by necessary implication waives

sovereign immunity and authorizes the Commonwealth to be

summoned as trustee in this action. "The rules of construction

11"Sovereign immunity is an ancient doctrine [that] . . .
protects the public treasury against money judgments and public
administration from interference by the courts at the behest of
litigants except in instances and by procedures the Legislature
has authorized." New Hampshire Ins. Guar. Ass'n v. Markem
Corp., 424 Mass. 344, 351 (1997). Cf. Dugan v. Rank, 372 U.S.
609, 620 (1963) ("The general rule is that a suit is against the
sovereign if the judgment sought would expend itself on the
public treasury or domain, or interfere with the public
administration, . . . or if the effect of the judgment would be
to restrain the Government from acting, or to compel it to act"
[quotations and citations omitted]).
9

governing statutory waivers of sovereign immunity are

stringent." Woodbridge v. Worcester State Hosp., 384 Mass. 38,

42 (1981). See Harrison v. Massachusetts Bay Transp. Auth., 101

Mass. App. Ct. 659, 662 (2022), quoting Commonwealth v. Exxon

Mobil Corp., 489 Mass. 724, 731 (2022) ("[W]aiver[s] of

sovereign immunity must be expressed by the terms of the

statute, or appear by necessary implication from them"

[quotations omitted]).

General Laws c. 29, § 31, sixth par., provides,

"The comptroller or other [S]tate official authorized to
expend money on behalf of the [C]ommonwealth may comply
with administrative wage garnishments for child support,
student loans, [S]tate or [F]ederal tax liens, court order
bankruptcy orders or other garnishments as determined by
the comptroller which name the [C]ommonwealth as employer
and mandating deductions under [S]tate or [F]ederal law for
employees of the [C]ommonwealth in amounts not more than
the percentage allowable under [S]tate or [F]ederal law or
a greater amount as authorized by the employee, provided
that the [C]ommonwealth shall not use [S]tate resources or
be compelled to comply with voluntary private garnishments
or trustee process orders" (emphases added).

The assistant attorney general who appeared in Superior

Court on behalf of the comptroller, informed the judge that

G. L. c. 29, § 31, "expressly bars the Comptroller's Office from

garnishing a state employee's wages for trustee process or

private garnishment." In fact, as emphasized above, § 31

directs that the comptroller "may comply" with certain wage

garnishments, but "shall not use [S]tate resources or be

compelled to comply with . . . trustee process orders." At the
10

request of the panel after oral argument of this appeal, the

comptroller informed the court that the comptroller had not

complied with the trustee process order in this case, because

"the debt at issue here does not clearly fall within the

statute's delineated categories for which garnishment is

permitted, and therefore the general rule of immunity from

trustee process applies." The comptroller further stated that

"the bankruptcy court decision in this case did not order

garnishment of McGinn's wages; it only declared a portion of her

debt to Eno non-dischargeable."

The Legislature's directive on the issue is clear and

unequivocal: the Commonwealth shall not be compelled to comply

with trustee process orders. See Massachusetts Broken Stone Co.

v. Weston, 430 Mass. 637, 640 (2000) ("Where the language of a

statute is clear, courts must give effect to its plain and

ordinary meaning and the courts need not look beyond the words

of the statute itself"). To the extent that the plaintiff

relies on the statutory language that authorizes the comptroller

to expend money to comply with "court order bankruptcy orders or

other garnishments," the statute provides that the comptroller

"may" comply with such orders, but it does not require the

comptroller to do so. G. L. c. 29, § 31, sixth par. See

Cepulonis v. Superintendent, Mass. Correctional Inst., Cedar

Junction, 61 Mass. App. Ct. 699, 702 (2004) ("While the word
11

'shall' is one of command, the word 'may' is one of permission,

and it does not impose an obligation but simply authorizes an

act").

Moreover, § 31 pertains to bankruptcy and court orders that

"name the [C]ommonwealth as employer and mandat[e] deductions

under [S]tate or [F]ederal law for employees of the

[C]ommonwealth." G. L. c. 29, § 31, sixth par. None of the

orders and judgments in the appellate record, including those

issued in the bankruptcy proceedings, meets those criteria.

They do not name the Commonwealth as the defendant's employer,

nor do they mandate the Commonwealth to garnish from the

defendant's wages.12,13

Although we do not rely on legislative history in reaching

our conclusion because the statute is plain and unambiguous, we

note that what little, unofficial history we have supports our

reading of G. L. c. 29, § 31. See, e.g., AIDS Support Group of

12The bankruptcy order and judgment dealt only with the
discharge of two-thirds of Superior Court judgment debt; they
were not directed to the Commonwealth and did not mandate
deductions from the defendant's wages.

13The March 2019 writ of attachment of the defendant's
wages and the related finding and order for approval of
attachment of wages do not name the Commonwealth as the
defendant's employer. Therefore, the comptroller was not
obligated to consider attaching the defendant's wages after
being served with those documents. As discussed supra, even if
the plaintiff had served the comptroller with a trustee process
summons (as he asserts in his brief), the comptroller was
permitted to contest the summons on sovereign immunity grounds.
12

Cape Cod, Inc. v. Barnstable, 477 Mass. 296, 301 (2017) ("Where

'the language of the statute is plain and unambiguous, . . .

legislative history is not ordinarily a proper source of

construction'" [citation omitted]). Prior to 2012, the statute

authorized wage garnishments only for repayment of student loans

issued by the Federal government. See St. 1998, c. 319, § 5.

As evidenced by an e-mail message from the general counsel for

the comptroller,14 the relevant revisions to the statute,

including those pertaining to trustee process and "court order

bankruptcy orders or other garnishments," were proposed by the

general counsel for the comptroller to Senate staff in 2011.

Those changes ultimately were accepted by the Legislature in the

enacted version of the statute effective January 1, 2013. See

G. L. c. 29, § 31, sixth par., as amended through St. 2012,

c. 165, § 112. In reference to those statutory changes, the

general counsel explained as follows:

"[C]hanges to this section clarify the type of mandated
wage garnishments that [the comptroller] currently supports
through the payroll system. Only court ordered
garnishments should be deducted using [S]tate resources.
Private garnishments for credit card payments, mortgages,
car loans or other non-[S]tate or [F]ederal government
related debts should not be deducted using [S]tate
resources. Employees can set up voluntary direct deposit
payments for these payments." (Emphasis added.)

14The comptroller included this e-mail message, dated March
17, 2011, in their amicus brief addendum in support of their
position that G. L. c. 29, § 31, did not contain a waiver of
sovereign immunity.
13

This explanation clarifies that the amendment was meant to

reflect the types of payments the comptroller was deducting

through the payroll system at that time. Indeed, a written

policy by the comptroller predating the statutory amendment

reflects that the Commonwealth processed garnishments in

circumstances beyond those related to the repayment of Federal

student loans. See Office of the Comptroller, Mandatory and

Voluntary Deductions: Wage Garnishments (rev. Nov. 1, 2006),

https://www.mass.gov/doc/poprwagegarnishpdf/download

[https://perma.cc/VAN3-PFN6] (hereinafter Mandatory and

Voluntary Deductions). Relevant here is that for "[c]ourt

[o]rdered [e]mployer [w]age [g]arnishments,"15 the policy

provided that the comptroller would follow the same procedure

undertaken in this action, namely that the summons for trustee

process "be submitted immediately to the Attorney General's

office for review to determine if there is a legal obligation

for the Commonwealth to honor the wage garnishment." Id. at 2.

15The policy also discusses garnishments for orders entered
under Chapter 13 of the Bankruptcy Code, tax levies from the
Federal Internal Revenue Service, orders from the State
Department of Revenue, child support and spousal support orders,
overpayments from the Department of Transitional Assistance, and
reimbursements for certain services provided by the Division of
Medical Assistance. See Mandatory and Voluntary Deductions, at
1-2. As noted above, the bankruptcy proceedings here were under
Chapter 7 of the Bankruptcy Code, not Chapter 13.
14

Nothing in the policy may be read to mandate the comptroller to

attach a State employee's wages through trustee process.

In sum, we conclude that based on the doctrine of sovereign

immunity and the plain language of G. L. c. 29, § 31, sixth

par., the Commonwealth as the defendant's employer cannot be

compelled to comply with trustee process in this action.16, 17

Conclusion. The judge's October 7, 2022 order denying the

plaintiff's motion to amend the March 2019 writ of attachment of

wages and renew the 2019 summons to the trustee to attach the

defendant's wages is affirmed.

So ordered.

16We take no position on whether the plaintiff would be
permitted to collect on the judgment, including by using the
trustee process procedure to attach the defendant's wages after
they are deposited in a bank account, or by filing an
application for supplementary process under G. L. c. 224, § 14.
See Birchall, petitioner, 454 Mass. 837, 844 (2009).

17The plaintiff's arguments regarding holding the defendant
in contempt of court are waived because the record before us
does not reflect that the plaintiff initiated contempt
proceedings before the Superior Court. See Weiler v.
PortfolioScope, Inc., 469 Mass. 75, 86 (2014) (argument raised
for first time on appeal waived).