Vallery v. Mauro

Decision Date17 May 2023
Docket Number22-P-742
PartiesEDWARD VALLERY v. JOSEPH MAURO.
CourtAppeals Court of Massachusetts

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Edward Vallery, appeals from an order denying his motion to amend the $320,000 default judgment he obtained in this case, and also from an order denying his motion for reconsideration. The motion to amend was beguilingly simple the plaintiff sought to change the name of the defendant -- from Joseph Mauro to Joseph Mauro, Jr. The basis for the plaintiff's motion was that the two names allegedly identify the same person; in his motion for reconsideration, the defendant asserted that "there is no contention that Joseph Mauro is not the same individual as Joseph Mauro, Jr." The reason for the plaintiff's motion was that absent the change of the name of the defendant, the plaintiff had been and would be denied the ability to execute on what he claims is the defendant's property in Medford. The motion judge was not convinced, however; he ruled that "[a]dding 'Jr.' to the defendant's name [wa]s material," and that he was "far from persuaded that the change [wa]s innocuous" or "consistent with due process."

On the record before us, we must affirm the denial of the motions. As we note below, however, there may be a means for the plaintiff to avoid the predicament in which he finds himself, if he can establish the facts regarding this litigation that he asserts on appeal to this court, but which were not in the record presented to the motion judge.

Background.

On November 24, 2019, the plaintiff was stabbed just outside the Sons of Italy social club in the City of Medford, after which he was hospitalized, and the police were called. The assault was captured on video and the perpetrator was identified as a person who frequented the club, one Joseph Mauro. Mauro was arrested and charged with armed assault with intent to murder, and assault and battery with a dangerous weapon. The police report of the incident, which included a photograph, identified the arrestee as "Joseph Mauro," with a "True Name" of "Joseph Mauro, Jr."

The plaintiff brought this tort suit some sixteen months later, in March of 2021. The defendant named in the complaint is "Joseph Mauro," with the same address shown on the police report -- 92 Whittier Road, Medford. The police report was not attached to the complaint, and the complaint does not mention "Joseph Mauro, Jr." The April 20, 2021, return of service, as reflected on the docket, is incomplete as it does not show how the complaint was served, or if it was served in hand. The plaintiff also moved for an attachment of real estate owned by the defendant in Middlesex County, which the court granted on April 21, 2021, and which was served, not in hand, but by leaving it at 92 Whittier Road, the defendant's alleged "last and usual place of abode." The motion for attachment did attach the police report, and for that reason the police report and booking record, designating the arrestee's "True Name" as "Joseph Mauro, Jr.," can be found in the record.

The defendant did not answer, the plaintiff moved for entry of a default, and the defendant was defaulted on July 13, 2021. The court scheduled an assessment of damages hearing for September 2021, which was continued to November 2021. After the November hearing, the court found damages of $290,000, and after adding interest and costs, final judgment entered on February 14, 2022 for $320,997.02.

We have not been provided a transcript of the assessment of damages hearing, and we have no record of who was present or testified. Nevertheless, we pause here to add some important alleged facts that are not in the record before us, but that the plaintiff's counsel has asserted both at argument and in his brief. Counsel represents that the plaintiff testified at the assessment of damages hearing. He also represents that the defendant Joseph Mauro appeared, both at the time originally scheduled in September of 2021, and again at the actual hearing in November of 2021. The defendant allegedly represented himself and was afforded, and apparently exercised, "the opportunity to cross-examine."

After final judgment entered, the plaintiff sought to execute on the judgment by first, recording it against the property at 92 Whittier Road. His attempt to record the judgment was rejected by the registry of deeds, however, because the 92 Whittier Road property was held under the name Joseph Mauro, Jr., which was not the name on the judgment. The plaintiff then filed a "motion to amend the judgment" on June 6, 2022. The motion stated that it was "to conform to the evidence" and asked that the judgment be "corrected" to name "Joseph Mauro, Jr." It stated that the plaintiff "only discovered that 'Jr.' was added to the [d]efendant's name on the deed to the home at the time the execution was served upon the registry."

The motion to amend contained no evidentiary proof that the defendant "Joseph Mauro" is the same person as "Joseph Mauro, Jr.," nor did it contain proof that "Joseph Mauro, Jr." of 92 Whittier Road ever had been notified of, or appeared in, this action. For example, the plaintiff did not attach or reference the police report, or the proceedings or transcript of the assessment of damages hearing. The judge who addressed the motion to amend was not the same judge who held the assessment of damages hearing, and not surprisingly, he denied the motion, noting: "The judgment and execution reflect what was adjudicated. Adding 'Jr[.]' changes the [d]efendant's identity."

Thereafter, the plaintiff filed a "motion to reconsider the denial to add Jr. to the judgment." This time, the plaintiff cited some case law under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), and also asserted that "there is no contention that Joseph Mauro is not the same individual as Joseph Mauro, Jr." Once again, however, the motion did not include an evidentiary basis for the assertion that the defendant Joseph Mauro was the same person as Joseph Mauro, Jr. of 92 Whittier Road. The motion was denied, and this appeal followed.

Discussion.

On the record before him, the judge correctly denied the motion to amend the judgment, as well as the motion to reconsider. A defendant nam...

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