Edward Vallery v. Joseph Mauro.

NOTICE: 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-742

EDWARD VALLERY

vs.

JOSEPH MAURO.

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

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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

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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

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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 named Joseph Mauro, Jr. of 92

Whittier Road, Medford is, manifestly, not necessarily the same

person as the defendant Joseph Mauro of 92 Whittier Road.

Assuming arguendo that those two names identify the same person,

the plaintiff needed to make an evidentiary showing to that

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effect, sufficient to satisfy the motion judge that it was

reasonable and consistent with the rules of civil procedure and

due process, to amend the judgment as requested. Cf. Labor v.

Sun Hill Indus., Inc., 48 Mass. App. Ct. 369, 373 (1999)

(amendment of plaintiff's name allowed where other party was on

"actual notice of the amendment"); Robinson v. Sanctuary Music,

383 Fed. Appx. 54, 57 (2d Cir. 2010) (amendment of defendant's

name allowed under Fed. R. Civ. P. 60 [a] when "plaintiffs did

not select the wrong defendant but committed the lesser sin of

mislabeling the right defendant" [citation omitted]); 11 Wright,

Miller & Kane, Federal Practice and Procedure §§ 2854-2855, at

307-308, 316 (3d ed. 2012) (rule 60 [a] may be used to correct a

misnomer of a party; evidence must be "clear and convincing to

justify alteration of the judgment"). The motion judge could

not amend the defendant's name after judgment unless he was

satisfied, at least, that the person identified by the amended

name had been served with the complaint, and had been afforded a

full and fair opportunity to appear and to defend against the

claims. Cf. Fluoro Elec. Corp. v. Branford Assocs., 489 F.2d

320, 325-326 (2d Cir. 1973) (amending defendant's name in the

judgment after trial where "it [was] clear that it was [the

amended defendant] which the plaintiff sought to hold liable").

The material presented with the motion to amend and the motion

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for reconsideration did not make this showing. The motions thus

were properly denied.

As noted, in his appellate brief and at oral argument, the

plaintiff asserts that Joseph Mauro, Jr. (also known as Joseph

Mauro) actually appeared before the court twice in this case,

pro se, as the defendant. Most importantly, we are told that a

person of the name Joseph Mauro, Jr. was present at the

assessment of damages hearing, appeared as the defendant, and

was offered and took the opportunity to cross-examine the

plaintiff. These facts were not stated in the motion to amend

or the motion for reconsideration, nor was any transcript of the

hearing provided to the motion judge, or to this court. The

facts as represented, however, indicate that the evidence at

trial may have showed that the proper defendant was in fact,

Joseph Mauro, Jr. They thus might provide a basis for action,

inter alia, under Mass. R. Civ. P. 15 (b), 365 Mass. 761 (1974)

(perhaps in conjunction with other rules, see Mass. R. Civ. P.

60[a] and [b]).1 Rule 15 (b) states in pertinent part:

"When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to

1 Cf. Labor, 480 Mass. App. Ct. at 370 (deciding similar issue
under rule 60(a) "to correct the pleadings and judgment to
reflect the true identity of the plaintiffs"); Robinson, 383
Fed. Appx. at 57 (judge may employ rule 60(a) to correct a
misnamed defendant after judgment).

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raise these issues may be made upon motion of any party at
any time, even after judgment; but failure so to amend does
not affect the result of the trial of these issues"
(emphasis added).
As discussed herein, the motions under review did not set

forth the alleged facts regarding the assessment of damages

hearing mentioned above. The orders denying the motion to amend

the judgment, and the motion for reconsideration, are

accordingly affirmed.

So ordered.

By the Court (Meade,
Englander & Walsh, JJ.2),

Clerk

Entered: May 17, 2023.

2 The panelists are listed in order of seniority.

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