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Trustmark v. Gallucci, 99-1386 (2000)

Court: Court of Appeals for the First Circuit Number: 99-1386 Visitors: 6
Filed: Aug. 16, 2000
Latest Update: Feb. 21, 2020
Summary: James A. Currier and Hodosh, Spinella & Angelone on brief, for appellant., Lauren E. Jones, David L. Krech and Jones Associates on, brief for appellee.interest pursuant to a New Hampshire statute).original judgment made no mention of prejudgment interest.Howley, 33 F.3d 376, 379 (4th Cir.
      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                    For the First Circuit


No. 99-1386

                 TRUSTMARK INSURANCE COMPANY,

                    Plaintiff, Appellant,

                              v.

         CARMINE J. GALLUCCI, a/k/a Michael Gallucci,

                     Defendant, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Ernest C. Torres, U.S. District Judge]


                            Before

                    Torruella, Chief Judge,
              Boudin and Lipez, Circuit Judges.




     James A. Currier and Hodosh, Spinella & Angelone on brief
for appellant.
     Lauren E. Jones, David L. Krech and Jones Associates on
brief for appellee.




                        July 14, 2000
         Per     Curiam.          Plaintiff-appellant        Trustmark

Insurance Co. appeals from the district court’s denial of

its motion for a writ of execution that included prejudgment

interest pursuant to R.I.Gen.Laws § 9-21-10. Trustmark’s

brief contains only one developed argument: that under the

governing Rhode Island statute, an award of prejudgment

interest is mandatory.      As to its failure to raise the issue

in a timely manner following entry of judgment, Trustmark

alludes to two arguments.

         Trustmark’s       main    argument    is   that    the   second

judgment entered in this case on February 9, 1998, denying

defendant’s    postjudgment       motions,    rendered     its    earlier

request for prejudgment interest (in its motion for writ of

execution) timely.    The second judgment did not modify the

first judgment in any way, but merely formalized the denial

of defendant’s postjudgment motions.           Moreover, the motion

seeking prejudgment interest was filed before entry of the

second judgment.     Under these circumstances, the second

judgment had no effect on the timeliness of Trustmark’s

motion. See McNabola v. Chicago Transit Authority, 
10 F.3d 501
, 521 (7th Cir. 1993).

         Trustmark suggests that the court erred in failing

to grant relief pursuant to Rule 60.           While Rule 60(a) has
sometimes been used to correct an omission of mandatory

prejudgment    interest,      those      cases     are    factually

distinguishable from this one.       Here, the computation of the

amount of prejudgment interest to which Trustmark would be

entitled   under   the   statute   was   not   “simple,   clear   and

mechanical.” Compare Aubin v. Fudala, 
782 F.2d 287
, 289 (1st

Cir. 1986)(applying Rule 60(a) to request for prejudgment

interest pursuant to a New Hampshire statute).            Here, the

original judgment made no mention of prejudgment interest.

And the parties disagree about the date that the cause of

action accrued under the statute. Compare Pogor v. Makita

U.S.A., Inc., 
135 F.3d 384
, 388 (6th Cir. 1998); Kosnoski v.

Howley, 
33 F.3d 376
, 379 (4th Cir. 1994); McNickle v. Bankers

Life and Cas. Co., 
888 F.2d 678
, 682 (10th Cir. 1989).            The

district court did not abuse its discretion in failing to

grant the requested relief under Rule 60(a).        See Paddington

Partners v. Bouchard, 
34 F.3d 1132
, 1141 (2d Cir. 1994).

           Any other possible grounds for appellate relief

have been waived by Trustmark’s failure to include developed

arguments in its brief.     See Airport Impact Relief, Inc. v.

Wykle, 
192 F.3d 197
, 205 (1st Cir. 1999) (“Issues adverted to

in a perfunctory manner, unaccompanied by some effort at




                               -3-
developed argumentation, are deemed waived for purposes of

appeal”).

            The district court’s Order Affirming Magistrate

Judge’s   Denial   of   Motion   for   Writ   of   Execution,   dated

January 15, 1999, is affirmed.         See Loc. R. 27(c).




                                 -4-

Source:  CourtListener

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