
    Berkshire Health Systems, Inc.
      vs. Debra Green, Estate of Mary Lovato
    Southern District
    December 21, 1999.
    Present: Aguiar, P.J., Crimmins & Welsh, JJ.
    Paul R. Tardif and Matthew J. Dupuy for the plaintiff.
    Anthony S. Porcello and David F. Driscoll for the defendant.
    
      
       Doing business as Pilgrim Rehabilitation & Skilled Nursing Center.
    
    
      
       Judge Aguiar resigned before this case was decided.
    
   Crimmins, J.

Plaintiff brought this action to recover payment for nursing care provided to Mary Lovato, now deceased. Defendant, Nancy Green, defaulted and judgment entered against her in the amount of $37,533.47 including interest. Upon execution of the judgment, plaintiff levied upon, and arranged a sheriff’s sale of, defendant’s residence. Defendant filed a motion to clarify the judgment and/or remove the default claiming that suit was filed against her in a representative capacity and that she is not individually liable on the judgment. This motion was denied. The defendant then filed this expedited appeal pursuant to Rule 8A Dist./ Mun. Cts. R.A.D.A. The issue before us is whether the motion was properly denied.

There was no error.

The denial of a motion for relief from judgment will not be disturbed except upon a clear showing of an abuse of discretion by the trial court. Nolan v. Weiner, 345 N.E.2d 703 (1976). ‘There is no error of law amounting to an abuse of discretion simply because a reviewing court might have reached a different result.” Scannell v. Ed. Ferreirinha & Irmao, IDA, 401 Mass. 155, 160 (1987). “The party claiming abuse of discretion has the burden of demonstrating that no conscientious judge acting intelligently with full knowledge of the circumstances would have denied the motions.” Barrett v. Pereira, 1997 Mass. App. Div. 45, 46. We conclude that the judge was within his discretion to deny the motion.

While the caption of the case is best described as ambiguous, the judge was warranted in concluding that the complaint and the summons served upon the defendant gave sufficient notice that she was being sued in an individual capacity. Neither the complaint nor the summons states that the defendant is being sued in a representative capacity. If the defendant felt that she was not individually liable on the complaint the proper course of action would be to assert that as an affirmative defense in her answer to the complaint. The judge was within his discretion to deny the motion. As such, the appeal is dismissed.

So ordered.  