Opinion
No. 16–P–58.
11-16-2016
Leslie B. CHARM & others v. Eugene H. KOHN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this action to resolve disputes among three long-term business partners, the defendant, Eugene H. Kohn, appeals from the denial of his amended motion under Mass.R.Civ.P. 60(b)(1) and (6), 365 Mass. 828 (1974), for relief from a judgment and an order that were entered following a jury-waived trial in the Superior Court. We affirm.
Background. Beginning in approximately 1977, plaintiffs Leslie B. Charm and Carl M. Youngman formed a business partnership with Kohn (Youngman, Charm & Kohn Associates), to pursue a variety of opportunities. In or around 1991, the partners agreed to dissolve the partnership. In June, 2008, after the partners were unable to agree on the terms of dissolution, Charm and Youngman brought suit against Kohn for breach of contract, dissolution of the partnership, an accounting, and breach of fiduciary duty. Kohn counterclaimed for dissolution of the partnership, breach of fiduciary duty, and for a setoff against the plaintiffs. He also filed a third-party claim for an accounting and dissolution of the partnership.
Following a bench trial that took place over the course of three nonconsecutive days, the trial judge found that all three partners had breached the partnership agreement and their fiduciary duties to one another. A decree entered dissolving the partnership, and a receiver was appointed to conduct a final accounting.
In his first report to the court, the receiver analyzed and made recommendations regarding over forty claims made by the parties. The judge heard the parties' objections to the first report and ruled on each of their claims. She then ordered a final accounting. In his final report and accounting, the receiver recommended that the judge "[o]rder that the [p]rofessional [f]ees be allocated in equal one-third shares to each [p]artner, resulting in a net payment due from [d]efendant Kohn to [p]laintiffs Charm and Youngman in the amount of $28,227.92." Kohn objected to the final report and accounting; however, following review, the judge adopted it "without modification." On October 1, 2014, judgment entered on all claims, awarding $24,443.17 to Kohn, and ordering that Charm and Youngman take nothing (the judgment).
On November 4, 2014, Charm and Youngman moved pursuant to Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974), to correct the judgment to reflect the receiver's recommendation that judgment enter in favor of Charm and Youngman in the amount of $28,227.92. Kohn objected to the motion but, through inadvertence, counsel for Youngman and Charm failed to file the objection as required by Superior Court Rule 9A. On November 14, 2014, the judge denied the rule 60(a) motion, stating, in part, that "[t]he judgment is correct on its face."
On January 8, 2015, Youngman, Charm, and the receiver moved for clarification of the judgment. Kohn opposed the motion. On January 13, 2015, the judge issued the following ruling on the motion for clarification:
"It's the Court's view that its prior orders are clear: [e]ach of the three parties is obliged to pay 1/3 of receivership and legal fees. How that payment by Kohn is accomplished should not and need not be part of a judgment. The parties are each obliged to carry out whatever ‘offsets' are necessary among them to be certain that they have shared this cost equally, pursuant to the court's initial receivership order."
On February 4, 2015, the parties executed a stipulation with respect to the motion for clarification. The judge accepted the stipulation and, on February 5, 2015, the following order was entered: Youngman and Charm owe $24,443.17 to Kohn; Kohn owes $52,671.09 to the receiver and his counsel, less $10,749.62 already paid; and Kohn is liable to Youngman and Charm in the amount of $12,478.30 (the 2015 order). On March 4, 2015, Kohn filed a notice of appeal from the 2015 order, and the record on appeal was assembled by June of that year. Kohn did not pursue that appeal; instead, on October 22, 2015, he filed an amended motion pursuant to Mass.R.Civ.P. 60(b)(1) and (6), for relief from the judgment and the 2015 order. The judge denied the motion, and Kohn timely appealed.
Discussion. " Rule 60(b)(1) authorizes relief from a final judgment for ‘mistake, inadvertence, surprise, or excusable neglect.’ " Hermanson v. Szafarowicz, 457 Mass. 39, 46 (2010). " Rule 60(b)(6) authorizes relief from a final judgment in cases involving ‘extraordinary circumstances.’ " Id. at 48. The burden was on Kohn to establish that he was entitled to relief. Id. at 46–48. "We [do] not overturn the judge's decision absent a clear showing of abuse of discretion." Gath v. M/A–Com, Inc., 440 Mass. 482, 497 (2003).
Kohn does not argue that the judge abused her discretion in denying his motion for relief. Nor does he challenge the judge's factual findings, her rulings of law, or the legal standards she applied. Instead, he again challenges the receiver's calculations. His objections twice were rejected by the judge, who noted that she "[wa]s the finder of fact, [and] well [knew her] own prior [f]indings and [r]ulings." She clearly "intended to write the figure[s] used" in the judgment, Gath v. M/A–Com, Inc., supra at 496 n. 13, from which Kohn did not appeal. He cannot use rule 60 as a substitute therefor. Jones v. Boykan, 464 Mass. 285, 291–292 (2013).
Failure by the plaintiffs' counsel to file Kohn's opposition to the rule 60(a) motion is not grounds to set aside the 2015 order. The opposition sought substantive relief, which is "beyond the purview of rule 60(a)," Lopes v. Peabody, 430 Mass. 305, 313 (1999), and it merely restated arguments that the judge already had rejected. See Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Commn., 394 Mass. 233, 236 (1985) (" Rule 60 does not provide for general reconsideration of an order or a judgment"). Kohn stipulated to the 2015 order knowing that the judge considered the judgment to be "correct on its face," and he did not perfect an appeal from that order. The judge considered the rule 60(a) opposition, which was an exhibit to the rule 60(b) motion; she was "well acquainted with the circumstances of these labyrinthian proceedings," Rezendes v. Rezendes, 46 Mass.App.Ct. 438, 441 (1999), and her determination that Kohn was not entitled to relief "is entitled to deference." Ibid.
Order denying amended motion for relief from judgment affirmed.