Roger Sauvageau & Another1 v. Detroit Diesel Corp.

• Decision Date: 16 December 2014
• Docket Number: 13-P-1645
• Parties: ROGER SAUVAGEAU & another v. DETROIT DIESEL CORPORATION & others.
• Court: Appeals Court of Massachusetts

ROGER SAUVAGEAU & another¹
v.
DETROIT DIESEL CORPORATION & others.²

13-P-1645

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

December 16, 2014

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiffs, Roger and Helen Sauvageau, appeal from an order of the Superior Court allowing a motion to alter or amend a judgment against the defendant, Johnson & Towers, Inc. We affirm.

Background. In November, 2002, the Sauvageaus purchased a forty-eight-foot pleasure boat named "Reel Estate" (boat).³ The boat was equipped with twin diesel engines that had been manufactured by the Detroit Diesel Corporation (Detroit Diesel) and distributed by Johnson & Towers (J&T). In January, 2003,

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Detroit Diesel issued a "Modification Bulletin," notifying its distributors of a potential defect in the type of engines installed in the Sauvageaus' boat. The bulletin required the distributors, including J&T, to repair the potentially defective engine part at no cost to the consumer by January 28, 2004. Although George Patton, a J&T employee in charge of servicing engines, contacted the Sauvageaus regarding the bulletin, no repairs were made before the deadline.⁴ The boat's engine malfunctioned the following summer and the Sauvageaus then spent $41,346 to repair it.

The Sauvageaus filed suit and, on November 29, 2010, a jury returned a verdict in their favor on the claims against J&T only⁵; judgment entered for $41,346, "together with statutory interest and costs."⁶,⁷ That judgment was affirmed in this court in a memorandum and order pursuant to our rule 1:28.⁸

On May 6, 2013, a judgment after rescript entered in the trial court, noting this court's decision affirming the

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judgment. On May 16, 2013, J&T served the Sauvageaus with a motion to alter or amend the judgment, arguing that, under applicable Federal maritime law, the Sauvageaus were not entitled to prejudgment interest. See Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974). The judge allowed the motion and ordered an award of postjudgment interest only, agreeing that the interest be calculated according to Federal law.

Discussion. Timeliness. The Sauvageaus first argue that J&T's motion to amend the judgment was untimely and, thus, erroneously allowed. In their view, the time for filing the motion expired ten days after the trial court judgment entered on November 29, 2010 - almost two and one-half years before the motion was filed. We disagree. "A motion to alter or amend the judgment shall be served not later than [ten] days after entry of the judgment." Mass.R.Civ.P. 59(e). Here, the judgment after rescript was entered on the trial court docket on May 6, 2013. J&T served on the Sauvageaus its motion to alter or amend the judgment on count III of Sauvageaus' complaint on May 16, 2013.

Under the rules of appellate procedure, a rescript is issued to the trial court twenty-eight days after the date of the rescript, unless other factors, not present here, apply. See Mass.R.A.P. 23, as appearing in 367 Mass. 921 (1975). "[W]hen a rescript does issue to the lower court -- whether the

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rescript is issued by the Appeals Court or [the Supreme Judicial Court] -- that signals the end of the direct review process for the case." Foxworth v. St. Amand, 457 Mass. 200, 206 (2010). "Accordingly, the final judgment reflected in the entry of the rescript on the trial court's docket remains the final judgment." Id. at 207. Cf. Shawmut Community Bank, N.A. v. Zagami, 419 Mass. 220, 223 (1994) ("A motion to alter or amend a judgment under rule 59(e) applies to the 'erroneous computation of interest.' 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...