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12/20/94 SHAWMUT COMMUNITY BANK v. DOMENIC T.

December 20, 1994

SHAWMUT COMMUNITY BANK, N.A.
v.
DOMENIC T. ZAGAMI.



Middlesex. Civil action commenced in the Superior Court Department on January 17, 1979. Following the decision of this court in Present: Liacos, C.j., Wilkins, Abrams, Nolan, & Lynch, JJ.

The opinion of the court was delivered by: Abrams

Practice, Civil, Motion to amend, Interest. Interest. Judgment, Amendment, Interest.

ABRAMS, J. After our decision in Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 586 N.E.2d 962 (1992), the question arose as to the appropriate date from which postjudgment interest should run on the judgment on the defendant's counterclaims. The defendant in counterclaim, Shawmut Community Bank, N.A. (Shawmut), claimed that the appropriate date was September 1, 1988, the date final judgment entered. Zagami claimed postjudgment interest should be computed from September 2, 1986, the date the jury verdict on the common law fraud claim was returned. A Judge in the Superior Court agreed with Shawmut and ordered postjudgment interest to be paid from September 1, 1988. The plaintiff in counterclaim, Domenic T. Zagami, appeals. We transferred the case on our own motion. We affirm.

We set forth the facts. In 1979, Shawmut Community Bank, N.A., filed a complaint, claiming that Zagami had failed to pay money due on a promissory note. Zagami filed a counterclaim against Shawmut, alleging fraud and violations of G. L. c. 93A (1992 ed.). On August 25, 1986, a jury returned a verdict for Zagami on his counterclaim for fraud. The docket indicates that a "judgment" on this claim entered on September 2, 1986. The judgment reflected prejudgment interest running from April 17, 1979, to the date of the jury's verdict. At a subsequent jury-waived trial, Zagami prevailed on his c. 93A claim. Concluding that Shawmut had not violated the statute wilfully or knowingly, the Judge did not award multiple damages under c. 93A, but did order the bank to pay Zagami's attorney's fees and costs. The docket indicates that judgment entered on this claim on September 1, 1988.

On the first appeal, we declined to consider most of the issues raised based on the poor quality of the record. See Shawmut Community Bank, N.A. v. Zagami, supra at 810-811. We did, however, order reversal of the judgment for Zagami pursuant to c. 93A. Id. at 815-816. We also said that the award of prejudgment interest at a rate of twelve per cent on the common law fraud claim was proper under G. L. c. 231, § 6B (1992 ed.). Id. at 813.

A deputy assistant clerk entered judgment after rescript. In that judgment, the clerk calculated prejudgment interest from the date of the filing of Zagami's counterclaim on April 17, 1979, until the date of entry of the judgment on the jury verdict on September 2, 1986, and calculated postjudgment interest from September 3, 1986, to the date of the judgment after rescript.

Shawmut filed a motion to alter or amend the judgment on the ground that postjudgment interest should run from the date that a final judgment, adjudicating all claims, entered, which was September 1, 1988. A Superior Court Judge allowed Shawmut's motion.

On appeal, Zagami alleges that: (1) it was not proper for Shawmut to challenge the clerk-entered judgment by filing a motion to alter or amend under Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), or Mass. R. Civ. P. 60 (a) and (b), 365 Mass. 828 (1974), rather than proceeding by appeal under Mass. R. App. P. 4 (a), as amended, 395 Mass. 1110 (1985); (2) consideration of the postjudgment interest issue is precluded by the prior litigation between the parties; and (3) under G. L. c. 235, § 8 (1992 ed.), *fn1 postjudgment interest should be computed on the common law fraud claim verdict from the date it was returned, and not from the date that judgment adjudicating all claims in the case entered.

1. The motion to alter or amend the judgment. Zagami contends that Shawmut did not properly challenge the clerk's computation of postjudgment interest because it did not appeal from the entry of the judgment after rescript within thirty days as required under Mass. R. A. P. 4 (a). However, "the action of a clerk in adding interest to a judgment is not a ruling of law, to which the time limits for appeal . . . would apply." Worsnop v. Texaco, Inc., 386 Mass. 1005, 1006, 436 N.E.2d 1227 (1982).

Rule 59 (e) "is designed for precisely such situations" where the judgment is incorrect because it lacks both legal and factual justification. Page v. New England Tel. & Tel. Co., 383 Mass. 250, 252, 418 N.E.2d 1217 (1981), quoting Mumma v. Reading Co., 247 F. Supp. 252, 260 (E.D. Pa. 1965). A motion to alter or amend a judgment under rule 59 (e) applies to the "erroneous computation of interest." *fn2 See J.W. Smith & H.B. Zobel, Rules Practice § 59.15, at 454 (1977). Within ten days of the entry of the judgment after rescript, Shawmut contested the clerk's calculation of interest by filing a motion to alter or amend the judgment under rule 59 (e). *fn3 There was no error.

2. The effect of earlier litigation. Zagami argues that consideration of the clerk's computation of postjudgment interest is barred by our decision in Shawmut Community Bank, N.A. v. Zagami, supra. In that case, we said that the award of prejudgment interest on the fraud judgment under G. L. c. 231, § 6B, was valid. Id. at 813. Zagami claims that we also ruled that the clerk was correct in computing postjudgment interest on the fraud claim from the date of the 1986 jury verdict. There is no merit to that contention.

This issue concerns the appropriate judgment entered after the rescript from this court. The parties obviously could have had no opportunity in the prior appeal to address that issue. Restatement Judgments § 1 (1942), states: "Where a reasonable opportunity has been afforded to the parties to litigate a claim before a [Judge] . . . and the [Judge] has finally decided the controversy, the interests of the State and the parties require that the validity of the claim and any issue actually litigated in the action shall not be litigated again by them." Comment (c) to § 1 is to the same effect. See Trustees of the Boston & Me. Corp. v. Massachusetts Bay Transp. Auth., 367 Mass. 57, 64, 323 N.E.2d 870 (1975) (no res judicata effect because the issue was irrelevant to prior litigation). Accordingly, consideration of the correct date for summary of postjudgment interest was not precluded.

3. The date for determining postjudgment interest. Zagami contends that postjudgment interest on the fraud claim should be computed from the date the jury verdict was docketed as a "judgment," September 2, 1986. We do not agree. "The nature of a paper entered on the record of a court must be determined according to its essential characteristics and not by its name." Kingsley v. Fall River, 280 Mass. 395, 398, 182 N.E. 841 (1932). A judgment "will be treated on the footing of its substance and not of its name." Check v. Kaplan, 280 Mass. 170, 176, 182 N.E. 305 (1932). "Finality does not hinge on the label that is placed on the Judge's action." Borman v. Borman, 378 Mass. 775, 779 n.8, 393 N.E.2d 847 (1979). Thus, the fact that the paper was labeled a judgment does not aid Zagami.

"A [judgment] and a counterclaim are different causes of action combined in one case, and ordinarily a [judgment] disposing of only one of them is not a final [judgment]." Blume v. Oil-O-Chron, Inc., 287 Mass. 52, 55, 191 N.E. 131 (1934). Federal law reaches a similar result. See Explosives Corp. of Am. v. Garlam Enters. Corp., 817 F.2d 894 (1st Cir.), cert. denied, 484 U.S 925 (1987) (it is inappropriate to allow postjudgment interest to begin running before entry of final judgment); Hooks v. Washington Sheraton Corp., 206 U.S. App. D.C. 209, 642 F.2d 614, 617 (D.C. Cir. 1980) (without a Fed. R. Civ. P. 54 (b) determination, clerk-entered judgment was not valid judgment to which interest could attach). See also Kaszuk Bakery & Confectionery Union & Indus. Int'l Pension Fund, 791 F.2d 548, 553 (7th Cir. 1986). Because the September 2, 1986, jury trial did not dispose of the G. L. c. ...


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