
    Joseph S. Thomas vs. James F. McHugh
    Southern District
    March 18, 1996.
    Present: Martin, EJ., Hurley & Rivard-Rapoza, JJ.
    Gerald A Phelps for the plaintiff.
    Lewis Victor for the defendant.
   Hurley, J.

The plaintiff appeals from the denial of his motion to alter or amend judgment so as to award prejudgment interest.

The defendant executed a promissory note in connection with the plaintiff’s sale of his interest in an auto parts store. The defendant defaulted on the note and the plaintiff brought this action to recover the sums due pursuant to the note. The note provides for interest at the rate of 12% per annum on the amount remaining unpaid after default. After hearing, the plaintiff’s motion for summary judgment was allowed. The motion also sought dismissal of the defendant’s counterclaim. It does not appear that judgment entered on the counterclaim. Thereafter, the plaintiff filed a motion pursuant to G.L.C. 231, §6F seeking attorney fees, interest and costs jointly against the defendant and his attorney. This motion was denied. Thereafter, judgment entered in the sum of the unpaid principal due on the note. The plaintiff responded by filing a motion pursuant to Dist/Mun. R. Civ. R, Rule 59 (e) to include interest in accordance with the terms of the note. That motion should have been allowed.

G.L.C. 231, §6C provides in relevant part that on a judgment for money damages, interest shall he added “at the contract rate after default, if established, ...” The contract rate was established at 12%. The date of default on the note is January 16, 1992. Some confusion may have been occasioned by the Court’s denial of the plaintiff’s motion pursuant to G.L.C. 231, §6F. The denial of this motion imported a determination by the judge that the defenses asserted were not “wholly insubstantial, frivolous, and not advanced in good faith.” The denial of relief under §6F does not preclude the statutory interest computation pursuant to §6C. See O’Malley v. O’Malley, 419 Mass. 377 (1995).

The motion should have been allowed. Viewed as a clerical mistake only, the motion could have been filed pursuant to Dist./Mun. R. Civ. R, Rule 60(a). A new judgment is to enter -with interest computed by the Clerk at the rate of 12% per annum from January 16,1992 to April 3,1995.  