Opinion
13-P-1899
02-06-2015
GARY P. SILVA v. ASSOCIATED BUILDING WRECKERS, INC.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The primary issue on appeal is the allowance of the defendant's postjudgment motion, made pursuant to Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974), to correct a clerical error. The three issues presented are largely, if not exclusively, procedural. First, the plaintiff contends that the motion judge (who was not the trial judge) erred for two reasons in allowing the motion. He argues that the judge erred in concluding that there was a clerical error or mistake within the meaning of rule 60(a). He also argues that, where the original judgment had already been affirmed by this court and the rescript had issued, the lower court judge did not have the power to modify the original judgment under rule 60(a). Second, he argues that the defendant should have been barred from obtaining relief under rule 60(a) under the doctrine of judicial estoppel. Third, he argues that there is an error in the interest calculation in the amended judgment. We affirm.
The plaintiff filed notices of appeal from the order allowing the defendant's rule 60(a) motion, a subsequent amended judgment entered February 4, 2013, a second amended judgment entered March 7, 2013, and a third amended judgment entered August 13, 2013.
Rule 60(a). After a jury-waived trial, the trial judge issued a written memorandum containing his findings of fact and rulings of law. After concluding that the plaintiff had proved his contract claim, the judge found that the plaintiff had suffered contract damages of (a) the cost of repairing the damaged structure to its original condition ($324,207.36), (b) damage to personal property ($10,000), and (c) the cost of removing debris and demolishing the damaged building ($32,400), for a total of $366,607.36. The judge also held that the "plaintiff received insurance payments in the amount $186,464, and the defendant may offset the award by the amount received by [sic] the insurance company."
Although it is clear from his findings that the judge intended the plaintiff's recovery to be offset by the insurance proceeds, he did not repeat that intention in the final paragraph of his decision, which is entitled "Order." There, the judge wrote only that "the plaintiff, Gary Silva, is entitled to recover damages for breach of contract from the defendant in the amount of $366,607.36." Apparently relying solely on the final paragraph of the judge's decision without reference to the remainder of it, the clerk entered judgment on June 21, 2010, in the amount of $366,607.36, without incorporating the offset.
We mean no criticism of the clerk; the better practice would have been for the trial judge to restate the offset in his order for judgment.
Clerical error. The plaintiff first argues that there was no clerical error or mistake because the trial judge did not intend to offset the insurance proceeds he (the plaintiff) received, but only the amounts received by the defendant's insurer (something that was not proved). This argument rests entirely on the language of the footnote in which the judge stated that "the defendant may offset the award by the amount received by [sic] the insurance company" rather than "from" the insurance company (emphasis supplied).
We are not persuaded that the motion judge abused his discretion when he concluded that the trial judge intended to order an offset of the amount the plaintiff received from the insurer. See Dinsdale v. Commonwealth, 39 Mass. App. Ct. 926, 928 n.3 (1995) (review of decision under rule 60[a] is for abuse of discretion). The context, common sense, and the record all support the conclusion that "by" is a typographical error and should read "from" in order to correctly reflect the trial judge's intent. To conclude otherwise would require one to accept both that the trial judge intended the plaintiff to receive a windfall and that he intended to award an offset in an amount and of a type about which there had been no evidence. Neither of these options holds any appeal.
The plaintiff next argues that the error, if there was one, was substantive and, therefore, not subject to correction via rule 60(a). "There are different approaches to analyzing rule 60(a) issues, each representing a slightly different emphasis: (1) determining whether the judgment reflects the intent of the court at the time it was entered; and (2) determining whether the relief requested is essentially 'clerical' in nature rather than 'substantive' in nature. The two analyses are interrelated, not discrete." Gagnon v. Fontaine, 36 Mass. App. Ct. 393, 396 (1994). See O'Malley v. O'Malley, 419 Mass. 377, 379 (1995) ("The first issue is whether, assuming that there was a mistake, that mistake was a clerical one"); DeLuca v. DeLuca, 26 Mass. App. Ct. 191, 194 (1988) ("By its terms, . . . rule 60[a] permits the correction not only of clerical mistakes but also of errors arising from oversight or omission").
"Massachusetts and Federal cases provide no 'bright line' rule as to what distinguishes a 'substantive' error from a 'clerical' error." Gagnon, supra at 399-400. "An alteration has been deemed 'clerical,' in accordance with rule 60(a), when a portion of the judgment indicates on its face that the alteration reflects a judge's original intent." Id. at 400, and cases cited. "If the flaw lies in the translation of the original meaning to the judgment, then [r]ule 60(a) allows a correction." Id. at 398 (citation omitted). "[I]f the judgment captures the original meaning but is infected by error, then the parties must seek another source of authority to correct the mistake. . . . The [r]ule does not permit alterations of factual and legal decisions deliberately made, or correction of 'errors of substantive judgment.'" Ibid. (citations omitted).
Here, as we noted supra, the motion judge did not err in concluding that the trial judge intended that there be an offset for the insurance proceeds received by the plaintiff. That the offset did not appear in the judgment was an error of "translation": the trial judge did not repeat his offset in the final paragraph (the order) of his decision and therefore the clerk did not incorporate it in the judgment. The error was accordingly not substantive. Rule 60(a) "permits the correction not only of clerical mistakes but also of errors arising from oversight or omission," DeLuca, supra, such as occurred here. It matters not whether the oversight arose with the trial judge rather than the clerk. See D'Annolfo v. Stoneham Hous. Authy., 375 Mass. 650, 659 (1978) (omission by judge); O'Malley, supra at 380 (same); DeLuca, supra (same).
Rule 60(a) after appeal. The plaintiff appealed the original judgment entered on June 21, 2010; the defendant did not cross-appeal. We affirmed that judgment in an unpublished decision dated July 10, 2012 and issued pursuant to our rule 1:28. 82 Mass. App. Ct. 1106 (2012). Further appellate review was denied, 463 Mass. 1108 (2012), our rescript issued, and a judgment after rescript entered on October 11, 2012. At no point during the appellate process was the issue of the offset raised. The plaintiff on these facts argues that the motion judge was without power to correct the June 21, 2010, judgment because that judgment had already been affirmed and a judgment after rescript had entered.
Rule 60(a) provides that clerical mistakes may be "corrected by the court at any time" (emphasis supplied). Contrary to the plaintiff's argument, we do not read Frank D. Wayne Assocs., Inc. v. Lussier, 394 Mass. 619, 620-621 (1985), to confine rule 60(a) to motions brought before an appeal has been decided. Lussier relied exclusively on the interpretation by the United States Court of Appeals for the First Circuit of the cognate Federal rule in Elias v. Ford Motor Co., 734 F.2d 463 (1st Cir. 1984), which foreclosed rule 60(a) relief after an appeal only because the issue was decided by the appeal. Moreover, Lussier has instructed that we are to interpret rule 60(a) consistently with the Federal interpretation of the Federal analog:
"Nothing . . . divests the district court altogether of its ability to correct 'clerical mistake[s],' 'oversights,' or 'omission[s],' see Fed.R.Civ.P. 60(a). Rather '[s]o long as the court truly is correcting an error which falls within the scope of [Rule 60(a)], and so "long as the appellate court has not expressly or implicitly ruled on the issue,"' a district court is free to correct such mistakes. Klingman v. Levinson, 877 F.2d 1357, 1363 (7th Cir. 1989) (quoting Panama Processes, S.A. v. Cities Serv. Co., 789 F.2d 991, 994 [2d Cir. 1986]). This conclusion comports with our recognition that the mandate rule does not apply to 'any issue not expressly or impliedly disposed of on appeal.' Biggins [v. Hazen Paper Co.], 111 F.3d [205, 209 (1st Cir. 1997)]."Diaz v. Jiten Hotel Mgmt., Inc., 741 F.3d 170, 175 (1st Cir. 2013).
The plaintiff frankly acknowledges that the offset was neither raised nor decided in the previous appeal. As a result, the motion judge was not divested of authority to consider whether a clerical error, mistake, or omission had occurred nor to correct it after the first appeal. Moreover, the judge did not abuse his discretion to exercise that authority so as to avoid a windfall to the plaintiff.
Judicial estoppel does not arise in these circumstances.
That said, the judge would have been equally within his discretion to conclude that the defendant's failure to raise the issue earlier foreclosed relief. The better course would have been to raise the issue promptly, either after the trial judge's findings or after the original judgment. All of the issues raised in this appeal could have been prevented had defense counsel taken prompt action.
Interest calculation. The plaintiff's argument that he is entitled to prejudgment interest on the preoffset total of $366,607.36 is incorrect. See Bolman v. Plymouth Rock Assur. Corp., 82 Mass. App. Ct. 135, 143 (2012). Interest was properly calculated based on the corrected damages award, not on the uncorrected gross amount in the original judgment.
We deny the defendant's request for appellate attorney's fees.
Third amended judgment affirmed.
By the Court (Cohen, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 6, 2015.