Opinion
Case No. C-3-99-402
August 20, 2003
CORRECTED JUDGMENT IN A CIVIL CASE
[ ] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
[X] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
Judgment is entered in favor of Plaintiff USA and against Defendants Darrell Billheimer, Joan Billheimer, John Huber, Phil Caldwell and Clark County Treasurer, finding that the conveyance from Darrell and Joan Billheimer to the Pea Chee Blue Trust was fraudulent as to the USA, that the Pea Chee Blue Trust is the alter ego/nominee of Darrell Billheimer and that the be and hereby is entitled to foreclosure of its liens on the subject property.
DECISION AND ENTRY SUSTAINING PLAINTIFF'S MOTION TO CORRECT JUDGMENT AND TO ENLARGE TIME TO SUBMIT FURTHER PROPOSED ORDER (DOC. #88); DECISION AND ENTRY OVERRULING DEFENDANTS' MOTION FOR RECONSIDERATION (DOC. #89); JUDGMENT ORDERED CORRECTED
The Government brought this litigation in order to reduce income tax assessments of Defendants Darrell and Joan Billheimer to judgment; to set aside the transfer of certain real property to the Pea Chee Blue Trust, as fraudulent; and to declare that the Pea Chee Blue Trust is an alter ego of Defendant Darrell Billheimer. In its Decision of January 15, 2003 (Doc. #85), this Court adopted the Report and Recommendations of the United States Magistrate Judge and, as a result, sustained the Government's Motion for Summary Judgment. Judgment was entered thereon.See Doc. #86. This case is now before the Court on the Government's Motion to Correct Judgment and to Enlarge Time to Submit Further Proposed Order (Doc. #88) and Defendants' Motion for Reconsideration (Doc. #89). As a means of analysis, the Court rules upon those motions in the above order.
I. Government's Motion to Correct Judgment and to Enlarge Time to Submit Further Proposed Order (Doc. #88)
With this motion, the Government initially requests, pursuant to Rule 60(a) of the Federal Rules of Civil Procedure, that the Court correct a clerical error contained in the Judgment (Doc. #86). In its Decision sustaining the Government's Motion for Summary Judgment, the Court referred to the Pea Chee Blue Trust, Defendant's alter ego, by its correct name. See Doc. #85 at 2. The Judgment, however, refers to that entity as the Pea Chee Trust, omitting the word "Blue." The Government requests that the Court correct that obvious clerical error. The Defendants have not opposed this motion.
Rule 60(a) permits the correction of clerical errors in judgments at any time. In pertinent part, Rule 60(a) provides:
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.
Omitting "Blue" from the Judgment was an obvious clerical mistake which this Court corrects by sustaining the first branch of the Government's Motion to Correct Judgment and to Enlarge Time to Submit Further Proposed Order (Doc. #88). The Court directs that the Judgment be corrected so that the Trust is referred to by its proper name, to wit: the "Pea Chee Blue Trust."
The Government has also requested an extension of 14 days from the date upon which the corrected Judgment is filed in which to file a proposed order. Rule 6(b)(1) of the Federal Rule of Civil Procedure, which permits District Courts to enlarge time, provides:
In its Decision of January 15, 2003, the Court directed the Government to file a more detailed judgment entry within 10 days from that date. See Doc. #85 at 2.
(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order. . . .
Herein, the Court's Order was filed on January 15, 2003, and the Government's request for enlargement of time was filed on January 28, 2003. However, computing the time in accordance with Rule 6(a), the request was made within 10 days, as required by the Court's Order. In addition, the Government has demonstrated good cause, given that it has explained that it is not possible to submit a proper proposed order until after this Court has corrected its judgment. Therefore, the Court will grant the Government's request for enlargement of time. The proposed order must be filed within 14 days of the date upon which the corrected Judgment is filed.
Rule 6(a) provides:
(a) Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Indepe ndence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or by the state in which the district court is held.
Accordingly, the Court sustains Government's Motion to Correct Judgment and to Enlarge Time to Submit Further Proposed Order (Doc. #88) in its entirety.
II. Defendants' Motion for Reconsideration (Doc. #89)
With this motion, the Defendants argue that the Court erroneously granted summary judgment to the Government, because the Government failed to produce an assessment certificate which complied with Form 23C. For reasons which follow, this Court overrules the Defendants' motion.
Although the Court's judgment was entered on January 15, 2003, the Defendants did not file their motion until February 10, 2003, which is more than 10 days after the Judgment was entered, computed in accordance with Rule 6(a). The Sixth Circuit has held that a motion seeking reconsideration which is filed more than 10 after entry of judgment is to be treated as a motion under Rule 60(b). Coffey v. Chattanooga-Hamilton County HOSP. Authority, 1999 WL 824870 (6th Cir. 1999): Peterman v. United States, 1996 WL 719401 (6th Cir. 1996).
Rule 60(b) provides, in pertinent part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence: Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
To be entitled to relief under Rule 60(b), a party must demonstrate the existence of one of the six grounds listed in that Rule. Stephens v. Crabtree, 2003 WL 21801441 (6th Cir. 2003);Johnson v. Zent, 1999 WL 1336068 (6th Cir. 1999). Herein, the Defendants have failed even to mention any of those six grounds for relief. Accordingly, they have failed to demonstrate that they are entitled to relief under Rule 60(b).
Moreover, the Defendants are not entitled to the relief they seek, regardless of their failure to comply with Rule 60(b). The Defendants argue that the Court erroneously granted summary judgment to the Government, because it failed to provide a Form 23C Record of Assessment. The Government provided certified, computer generated assessments, rather than Forms 23C. See Doc. #23 at Exhibits C-E. However, courts have uniformly held that it is perfectly acceptable for the Internal Revenue Service to utilize computer generated assessments, rather than a Form 23C. March v. IRS, 335 F.3d 1186 (10th Cir. 2003);Roberts v. C.I.R., 329 F.3d 1224 (11th Cir. 2003).
Accordingly, the Court overrules the Defendants' Motion for Reconsideration (Doc. #89).