Opinion
21-P-273
02-14-2022
KENT W. PECOY v. COLONY HILLS CAPITAL, LLC.
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, Kent. W. Pecoy, appeals from an order of a judge of the Superior Court, allowing the motion of defendant Colony Hills Capital, LLC (Colony Hills), for relief from judgment under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). We discern no error of law or abuse of discretion, and we affirm the order allowing the motion.
Background.
The order at issue in the present appeal followed the decision by a panel of this court in an appeal from a judgment after a jury verdict entered in the Superior Court on August 17, 2016. Together with its codefendant in the underlying action, Glenn Hanson, Colony Hills filed a notice of appeal, and Colony Hills and Hanson filed a joint brief and, later, reply brief, on appeal. This court's decision issued on September 26, 2019, affirming the jury verdict in the underlying action but vacating the award of attorney's fees against Hanson. See Pecoy v. Hanson, 96 Mass.App.Ct. 1103 (2019). The panel based its conclusion regarding attorney's fees on an interpretation of the language of the contract between the parties. In a footnote, however, the panel observed that "Colony Hills has not advanced any argument opposing the award of attorney's fees to Pecoy," and accordingly did not disturb the award of attorney's fees against Colony Hills. The judgment after rescript, which modified the order awarding attorney's fees, entered in the Superior Court on October 31, 2019, and on December 3, 2019, Colony Hills filed its motion for relief from judgment in the Superior Court. After hearing, a judge of the Superior Court allowed the motion, and Pecoy's timely appeal followed.
While the order at issue in the present appeal did not pertain to Hanson, he filed a motion requesting (1) to join in Colony Hills's brief and (2) appellate attorney's fees.
Discussion.
Though Colony Hills styled its motion as one brought under Mass. R. Civ. P. 60 (b) (6), we consider it properly brought instead under subsection (1) of that rule, which is directed to "mistake, inadvertence, surprise, or excusable neglect." See, e.g., Bromfield v. Commonwealth, 400 Mass. 254, 256 (1987). Contrary to Pecoy's argument, however, the motion was not time barred, as it was filed only a little more than a month after entry of the judgment after rescript, which modified the order awarding attorney's fees against both Colony Hills and Hanson, and was therefore well within the one-year time limit imposed by Mass. R. Civ. P. 60 (b) (1). Contrast Roberts v. Worcester Rede v. Auth., 53 Mass.App.Ct. 454, 462 n.10 (2001) (where "appeal result[s] in an affirmance of the judgment without any change, substantive or otherwise, the date of judgment is the date judgment originally entered in the trial court" [quotation and citation omitted]).
Though Colony Hills cited the Appeals Court's decision as the basis for its request for relief, the need for its requested relief was its failure to challenge the award of attorney's fee in the first appeal. See, e.g., Spadorcia v. South Shore Oral Surgery Assocs., Inc., 17 Mass.App.Ct. 362, 363 (1984).
We likewise are unpersuaded by Pecoy's contention that the motion judge was without authority to grant relief, following appeal, on a basis that could have been raised on appeal but was not. See Bromfield, 400 Mass. at 257. The plaintiff in Bromfield did not appeal from the judgment entered in that case, and first requested relief from the judgment more than three years after the appeal, and more than a year after "an agreement for judgment satisfied" was filed in the trial court. The mistake from which the plaintiff sought relief was in the calculation of prejudgment interest, a matter generally considered clerical in nature, any mistake in which appears on the face of the judgment. In the present case, by contrast, Colony Hills sought relief promptly after the Appeals Court's decision on a contractual interpretation revealing the error in the award of attorney's fees against it. The motion judge may not have been compelled to grant the requested relief, but we do not view it as an abuse of discretion for him to have granted relief to reconcile the treatment of two parties to the same contract under the same contractual provision, following an appeal they prosecuted jointly together.
The parties' requests for appellate attorney's fees are denied.
Order allowing relief from judgment affirmed.
Green, C.J., Sullivan & Henry, JJ.
The panelists are listed in order of seniority.