Pecoy v. Colony Hills Capital, LLC.

• Decision Date: 14 February 2022
• Docket Number: 21-P-273
• Citation: 182 N.E.3d 341 (Table),100 Mass.App.Ct. 1124
• Parties: Kent W. PECOY v. COLONY HILLS CAPITAL, LLC.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 1124

182 N.E.3d 341 (Table)

Kent W. PECOY

v.COLONY HILLS CAPITAL, LLC.

21-P-273

Appeals Court of Massachusetts.

Entered: February 14, 2022.

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,² 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.

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).³ 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 Redev. 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]).

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...