Cite as Senda v. Mid-Pacific Construction Co. ,
6 FSM Intrm. 440 (App. 1994)

[6 FSM Intrm. 440]



on assignment for the benefit of creditors,



Hearing:  April 26, 1994
Decided:  July 6, 1994

     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
     Hon. Martin Yinug, Associate Justice, FSM Supreme Court
     Hon. Edwel H. Santos, Temporary Justice, FSM Supreme Court*

     * Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

For the Appellant:     R. Barrie Michelsen, Esq.
                                    Law Offices of R. Barrie Michelsen
                                    P.O. Box 1450
                                    Kolonia, Pohnpei FM 96941

For the Appellee:      Daniel J. Berman, Esq.
                                    Rush, Moore, Craven, Sutton, Morry & Beh
                                    2000 Hawaii Tower
                                    745 Fort Street
                                    Honolulu, HI 96813-3862
*    *    *    *
[6 FSM Intrm. 441]

Civil Procedure ) Motions
     While it is true that failure to file a timely opposition is deemed a consent to the granting of the motion, FSM Civ. R. 6(d), proper grounds for the granting of the motion must still exist before the court may grant it.  Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 442 (App. 1994).

Civil Procedure
     When an FSM Rule of Civil Procedure is nearly identical to a U.S. Federal Rule of Civil Procedure and the FSM Rule has not previously been construed by the FSM Supreme Court it may look to the U.S. federal courts for guidance in interpreting the rule.  Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994).

Judgments ) Relief from Judgment
     While Civil Rule 60(a) may be used to correct clerical errors in a judgment such as those of transcription, copying, or calculation it cannot be used to obtain relief for acts deliberately done.  Therefore where the court deliberately intended to enter in a judgment the amount prayed for in a party's motion and that amount is based on a special master's report not before the court, the party cannot obtain relief under Rule 60(a) for errors in the special master's report.  Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444-45 (App. 1994).

Judgments ) Relief from Judgment
     When a motion for relief from judgment is made pursuant to Civil Rule 60(b)(1), (2), or (3) the court must consider whether it was made within a reasonable time even when it is made within the one year time limit.  Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 445-46 (App. 1994).

Appeal and Certiorari ) Standard of Review
     The standard of review of a trial court's ruling on a motion for relief from judgment is whether the trial court has abused its discretion.  Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 445 (App. 1994).

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RICHARD H. BENSON, Associate Justice:
     The issue presented is whether the plaintiff is entitled to relief from the judgment on the ground of clerical error, FSM Civ. R. 60(a), and for mistake, surprise, inadvertence or excusable neglect, FSM Civ. R. 60(b)(1).

     We conclude that relief is not proper since the alleged error was not clerical and because there is no determination that the relief was sought within a reasonable time.

     This case comes before us on direct appeal from the order of the trial division, entered October 5, 1993, granting relief from the judgment to the plaintiff pursuant to FSM Civil Rules 60(a) and 60(b)(1).

[6 FSM Intrm. 442]

     The judgment from which the plaintiff wants relief was entered December 19, 1990.  The opinion of the trial division, entered December 14, 1990, directs the judgment to be issued.  The judgment was affirmed on appeal on March 9, 1992.  Mid-Pac Construction Co. v. Senda, 4 FSM Intrm. 376 (Pon. 1990), aff'd, 5 FSM Intrm. 277 (App. 1992).  Reference to these two reports gives a background to the judgment adequate for this opinion.

     On December 13, 1991, the plaintiff filed its petition for relief from the judgment to allow an amendment in the amount.  The plaintiff relied on FSM Civil Rules 60(a) and 60(b)(1).

     The plaintiff said that its motion to take judicial notice filed January 15, 1990 had been based "nearly in whole" upon a report of a special master, dated March 30, 1988, and that both the report and the motion contained clerical errors ) "mistakes easily verified by the original court files in each instance."

     The plaintiff's 1990 motion contained 11 items which, less credit for collections made, were added to get the judgment amount requested ) $ 222,073.36.  The 1991 petition alleges that five of the 11 items are in error, and that two judgments entered prior to the date of the master's report were omitted by error from the tabulation.  The petition was served on the defendant, who did not file a response.  On April 21, 1992, in open court the defendant was given 10 days in which to file any opposition.  None was filed.

     On May 20, 1993 the plaintiff filed its motion to confirm statement of account.  The petition alleged, inter alia, that the 1991 petition had been granted.  The defendant filed his opposition on May 25, 1993.  The opposition denied that the 1991 petition had been granted, and asserted that the amendment sought in it was not for a reason of a clerical error, that FSM Civil Rule 60(b) could not correct a fact-finding error, and that FSM Civil Rule 59 is applicable to such an error.

     This motion was heard on June 11, 1993, and an order granting the motion was entered October 5, 1993.  Mid-Pac Construction Co. v. Senda, Civil Action No. 1988-099, (Pon. Oct. 5, 1993).  This is the order that is at issue in this appeal.

     In its order granting relief from the judgment the trial division noted that the 1991 petition had not been ruled on, and then considered that pending matter. It found that there were clerical errors in the master's report which were relied on by the court and the parties at the time of the judgment of January 19, 1990; that there is no time limit in FSM Civil Rule 60(a) for the correction of clerical errors; that FSM Civil Rule 60(b) imposes a one year time limit within which the defendant had filed its petition; that the defendant had filed no objection to the 1991 petition after the April 21, 1992 hearing; and that the defendant could no longer object.  The court then granted the 1991 petition.

     While it is true that failure to file a timely opposition is deemed a consent to the granting of the motion, FSM Civ. R. 6(d), proper grounds for the granting of the motion must still exist before the court may grant it.  In re Parcel No. 046-A-01, 6 FSM Intrm. 149, 152 (Pon. 1993).

[6 FSM Intrm. 443]

Clerical Errors
     1.  The trial court found, as stated above, that the court and the parties had relied upon the master's report.  The only source we know of for this finding is contained in the memorandums of the parties.  On page 3 of the plaintiff's points and authorities in support of their 1991 petition, plaintiff writes, "The Motion to Take Judicial Notice filed by Plaintiff on January 15, 1990 and was based nearly in whole upon the Special Master Report dated March 30, 1988."  However, this statement only says that the plaintiff relied on the report.

     On page 2 of the defendant's opposition, filed May 25, 1993, responding to the 1993 petition says, "This effort to make a $220,000 judgment into a $300,000 judgment is not a correction of a `mere clerical mistake.'  It is attacking the fact-finding of the special master, on which the court relied." (The defendant changed his position on this question on appeal, and now contends that the court relied on the plaintiff's 1990 motion.)

     From the two quoted passages in the two memorandums of counsel, it may be understandable that the court relied upon them and made the finding that it did.

     There is no showing that the trial court relied on the special master's report. It is not a part of the record.  (We have seen the report because, without objection, it was attached to plaintiff's opening brief.)

The opinion on appeal states,

     The record shows that the trial court at the conclusion of closing arguments invited memoranda on three questions.  One was whether the court can take judicial notice of the amount of the judgments in favor of the plaintiff creditors. The issue was briefed and presented to the trial court.  In addition to their brief the plaintiff creditors moved the court to take judicial notice and listed the case numbers and the amounts of each judgment for which notice was requested.

Senda v. Mid-Pac Construction Co., 5 FSM Intrm. 277, 280 (App. 1992).  The motion of the creditors referred to is the motion filed January 15, 1990, as stated earlier.  (The defendant filed no opposition to this motion.)  That motion totals the amounts of each judgment for which notice was requested.  The total, as related above, is the exact figure as appears in the judgment.

     The amounts for the judgments listed in the master's report were not totalled in the report, but the total is $208,460.06.  This is quite different from the figure in the motion and in the judgment.  In an effort to reconcile the amounts, if interest were added to the judgments in the master's report for the period between March 30, 1988, the date of the report, and January 15, 1990, and allowance made for the collections received a substantial disparity still remains.

     The special master was the National Justice Ombudsman of the Supreme Court.  It is understandable how the court could believe that these were correctable as clerical errors if the court judgment had relied on an internal court document prepared by the staff.  As stated, however, the court cannot be shown to have relied on the master's report in executing its judgment.  On the contrary, it is demonstrable that the court relied on the plaintiff's motion.

     2.  FSM Civil Rule 60(a) sets out the provisions permitting the correction of clerical errors:

[6 FSM Intrm. 444]

     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.

     When an FSM Rule of Civil Procedure is nearly identical to a U.S. Federal Rule of Civil Procedure and the FSM Rule has not previously been construed by this court we may look to the U.S. federal courts for guidance in interpreting the rule.  Jano v. King, 5 FSM Intrm. 326, 329 (App. 1992); Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984).

     The court arrived at an adjudicative fact, FSM Evid. R. 201, pursuant to the memorandum of law of the plaintiff, filed December 27, 1989, which supported the correctness of such a step through the court's review of its own records. The plaintiff then filed its 1990 motion setting out the judgments it requested notice be taken, giving the amounts owed, and the total balance remaining after credit for collections had been given.  The defendant failed to respond to this motion, and the court was entitled to deem the defendant had consented to it.  FSM Civ. R. 6(d).  The court then entered judgment for the amount claimed in the motion.

     U.S. courts presented with comparable fact situations have rejected later motions for correction of supposed "clerical errors."  In Ferraro v. Arthur M. Rosenberg Co., 156 F.2d 212 (2d Cir. 1946), the plaintiff, in response to the defendant's request, filed a bill of particulars setting out in detail each day and hour he worked during his 192 weeks of employment and specifying the amount of overtime worked and the compensation claimed.  The defendant failed to answer and its default was entered.  Some eight months later the plaintiff sought to set aside the default in order to alter the amounts claimed, pursuant to Rule 60(a).  The court held, "No clerical error was shown, however, and it changed nothing to call deliberate action accurately reflected in the record a clerical error for the purpose of attempting to invoke Rule 60." Ferraro, 156 F.2d at 212.

     Ferraro is cited with approval in Security Mutual Casualty Co. v. Century Casualty Co., 621 F.2d 1062, 1065 (10th Cir. 1980) for this proposition: "However Rule 60(a) may not be used to change something which has been deliberately done."  Cf. Bank of the FSM v. Bartolome, 4 FSM Intrm. 182, 184 (Pon. 1990) (relief from deliberate act of clerk of court in omitting attorney's fees from default judgment does not fall within the coverage of Rule 60(a) because it was not inadvertent, or error or oversight).

     In Bershad v. McDonough, 469 F.2d 1333 (7th Cir. 1972) the defendant appealed a denial of his motion to correct the dollar amount of the judgment entered against him.  The judgment was for the recovery of certain profits made by the defendant on the purchase and sale of 272,000 shares of stock of the corporation.  Similar to the present case, the judgment had been affirmed on appeal.  The defendant in his motion alleged that he had just discovered that on the sale of 10,000 shares of the stock he had made no profit, and thus the judgment should be reduced.

     The court held,

     Initially, we note that the characterization of the defendant's failure to discover or notify the court concerning the actual number of shares which he sold cannot be called a "clerical error" so as to invoke the operation of rule 60(a).  It is settled that this rule applies only to an error of transcription, copying, or calculation, and not to a fundamental failure of discovery or notification.  The district court's denial of [defendant's] petition as an assertion of "clerical error" was certainly

[6 FSM Intrm. 445]

correct.  Apparently recognizing this, defendant has sought to avail himself of subsection (b)(l) of rule 60 . . . .

Bershad, 469 F.2d at 1336 (citations omitted).

     Relief under Rule 60(a) is addressed to the discretionary judgment of the court.  The posture of the case was unusual in that representations were made to the court and relied on by it that we find are incorrect.  That is, it is not correct that the trial division relied on the report of the special master in issuing its judgment.  This same reliance may have led the court to conclude as a matter of law that the judgment contained clerical errors which could be corrected.

     The plaintiff particularly relies on the principle that clerical errors can be corrected to "reflect the actual intentions of the court."  In re Jee, 799 F.2d 532, 535 (9th Cir. 1986).  While it is true that the trial judge had a general intention to enter judgment for the correct total of the judgments, his specific intention, manifest from the record recited, was to enter the total appearing in the plaintiff's unopposed 1990 motion.  We conclude therefore that the principle relied on by the plaintiff does not reach as far as it wishes.

Mistake, Inadvertence, etc.
     The court also relieved the plaintiff from the judgment on the basis of Rule 60(b).  The rule, in pertinent part, reads,

     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; . . . .  The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken.

     We believe that the court was basing its relief on section 60(b)(1) for these reasons: 1) that is the authority given in plaintiff's 1991 petition; and 2) the court held that the one year limit was applicable, which thus limits the choices to subsections (1), (2) or (3).

     The order of the court recited that the motion was timely since it was filed within one year.  The time requirements of the rule require that it "shall be made within a reasonable time" and "not more than one year after the judgment."  The court did not consider whether the motion was made within a reasonable time.

     The standard of review is whether the court abused its discretion in considering relief under 60(a) and 60(b).  Our standard to resolve this issue is set out in Jano v. King, 5 FSM Intrm. 326, 330 (App. 1992).  The trial court's ruling on the Rule 60(a) ground was based on an erroneous conclusion of law ) that Rule 60(a) could cover deliberate actions, which in turn was based upon a clearly erroneous finding of fact (made with the parties' assistance) ) that the judgment was based on the special master's report.  The trial court's ruling on the Rule 60(b) ground was based on the

[6 FSM Intrm. 446]

erroneous conclusion of law that if the motion for relief was brought within one year of the judgment the court would not have to consider whether it was brought within a reasonable time.

     The order of the court is therefore reversed.  No relief is available to the plaintiff under FSM Civil Rule 60(a).  As to Rule 60(b) the order granting relief is reversed and remanded to the trial division so it may consider whether the motion was made within a reasonable time.

     The foregoing disposes of the issues presented to us on appeal.  When the matter comes up on remand as to 60(b) it would be appropriate for the trial division to identify the ground under consideration (whether mistake or inadvertence or surprise or excusable neglect).  The court may also wish to consider the effect of the ground for the relief being based on the act or omission of the counsel for the moving party.  See, e.g., Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969) (ignorance or carelessness of attorney will not provide a ground for 60(b) relief).

     This matter is remanded for further proceedings in conformity with this opinion.

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