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SJC-11920

            EVENTMONITOR, INC.   vs.   ANTHONY LENESS.1



        Suffolk.    November 3, 2015. - February 4, 2016.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk,
                                JJ.


Employment, Termination. Contract, Employment, Performance and
     breach, Termination, Indemnity. Indemnity. Massachusetts
     Wage Act. Damages, Employment contract.



     Civil action commenced in the Superior Court Department on
April 30, 2008.

    The case was heard by Jeffrey A. Locke, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Ronald W. Dunbar, Jr. (Andrew E. Goloboy with him) for the
plaintiff.
     Shana I. Kaplan (James E. O'Connell, Jr., with her) for the
defendant.
     David J. Fried, for Massachusetts Employment Lawyers
Association, amicus curiae, submitted a brief.



    1
      Before trial, Anthony Leness voluntarily dismissed all
claims against third-party defendant Sheldon Chang, who plays no
role in this appeal.
                                                                    2

    DUFFLY, J.     The plaintiff, EventMonitor, Inc.

(EventMonitor), is a Delaware corporation, established in 2000,

with headquarters in Boston.    It develops and markets software

for the financial industry.    The defendant, Anthony Leness, was

one of the early employees of the company.    Leness was hired as

EventMonitor's vice-president for business affairs in June,

2001, upon his graduation from Harvard Business School.    He

served in that position for approximately six years, until he

was terminated on December 5, 2007, two months after he had

proposed a plan to restructure EventMonitor into two related

entities, a proposal that Sheldon Chang, EventMonitor's

president and executive director, believed would undermine the

future of the company.    The termination was characterized as

"without cause."

    Under the terms of Leness's employment contract,

EventMonitor therefore was required to pay him one year's salary

and benefits, plus the value of any accrued but unused vacation

time.   Section 6(b) of the employment agreement provided that,

upon termination, Leness was to return "all items containing or

embodying Proprietary Information (including all copies)."

Before his departure, Leness returned, among other things, a

company laptop computer containing proprietary information that

he had used in the course of his work at EventMonitor.
                                                                     3

    Soon after Leness's termination, through a forensic

examination of the laptop computer, EventMonitor discovered that

Leness had copied all of the data on the computer, including

EventMonitor's customer information and proprietary business

plans, to a data backup and storage service accessed over the

Internet.   Leness had not informed EventMonitor about this

backup before his termination was effective.   To the contrary,

Leness had paid the subscription for the data storage service

with a personal credit card, and also had installed a "cleaning"

program in an effort (ultimately unsuccessful) to delete from

the laptop information related to the account subscription.

EventMonitor deemed Leness's actions to have been a defalcation

of company assets.    "Defalcation" was one of the only reasons in

the employment contract that would have allowed EventMonitor to

terminate Leness "for cause."   And, where a termination was for

cause, the contract did not require Eventmonitor to make any

severance payments.

    Retroactively characterizing the termination as having been

for cause, in mid-February, 2008, approximately five weeks after

Leness's departure, Eventmonitor stopped paying Leness any

severance payments, declined to pay him his accrued vacation,

and filed a complaint in the Superior Court asserting, among

other claims, breach of contract.   Leness asserted twelve
                                                                   4

counterclaims, among them breach of contract; breach of the

implied covenant of good faith and fair dealing; violations of

the Massachusetts Wage Act, G. L. c. 149, § 148 (wage act); and

indemnification under the terms of the employment contract.2

Leness argued that EventMonitor had no valid basis for treating

his termination as one "for cause," and had committed a breach

of the contract by refusing to pay his severance payments, as

well as violated the wage act by refusing to pay him the value

of his accrued and unused vacation.

     After a jury-waived trial, a Superior Court judge found

that Leness had not engaged in defalcation of EventMonitor's

assets, and had not committed a material breach of the

employment contract, and thus that his termination could not

have been for cause.   Judgment entered for Leness on

EventMonitor's claims for breach of contract, breach of the

covenant of good faith and fair dealing, and breach of fiduciary

duty.    The judge also entered judgment for Leness on his

counterclaims for breach of contract, breach of the covenant of

     2
       EventMonitor, Inc. (EventMonitor), also filed claims for,
inter alia, misrepresentation, declaratory judgment, unjust
enrichment, and negligence. Leness also filed counterclaims
alleging breach of fiduciary duty, self-dealing, intentional
interference with advantageous relations, conflict of interest,
defamation, a derivative shareholder claim, and a demand for
access to company books and records. Prior to trial, the
parties dismissed all but the four claims and corresponding
counterclaims at issue on appeal.
                                                                   5

good faith and fair dealing, and violations of the wage act, but

entered judgment for EventMonitor on Leness's claim for

indemnification.   EventMonitor appealed, and Leness cross-

appealed.   We transferred the matter to this court on our own

motion.

    EventMonitor contends that the judge erred in finding that

Leness did not commit a material breach of the employment

contract and did not engage in a defalcation of company assets.

In support of its assertion that Leness's employment properly

was terminated for cause, EventMonitor asks that we adopt the

"after-acquired evidence doctrine" used in some other

jurisdictions, which allows an employer to recharacterize the

nature of an employee's termination on the basis of information

learned after the termination has taken place.

    In the rare opportunities that this court and the Appeals

Court have had to consider the issue of after-acquired evidence

in the context of a termination from employment, neither of the

courts has adopted, or declined to adopt, this doctrine.    See

Flesner v. Technical Communications Corp., 410 Mass. 805, 815-

817 (1991); Prozinski v. Northeast Real Estate Servs., 59 Mass.

App. Ct. 599, 610-612 (2004).   We need not reach the question

here, because we agree with the trial judge that Leness did not

commit a material breach of the employment contract, and did not
                                                                    6

engage in defalcation of company assets.    Therefore, Leness

committed no act giving rise to a termination for cause, and the

after-acquired evidence doctrine would have had no impact on the

result we reach.    We affirm the judge's conclusion that Leness

is entitled to severance payments under the terms of the

contract, and remand the matter for entry of an amended judgment

correcting certain arithmetic errors in the calculation of

accrued vacation payments.3

     1.   Facts.   "We recite the essential facts found by the

judge, which we accept 'unless they are clearly erroneous,'

. . . and which the parties do not challenge, supplemented by

other undisputed information from the record."    Boyle v. Zurich

American Ins. Co., 472 Mass. 649, 651 (2015), quoting Weiler v.

PortfolioScope, Inc., 469 Mass. 75, 81 (2014).

     In June, 2001, EventMonitor hired Leness as vice-president

for business affairs.    Leness and EventMonitor entered into a

written employment agreement detailing how EventMonitor could

terminate Leness with or without cause.    Termination without

cause required thirty days' written notice; it also entitled

Leness to severance payments consisting of twelve months of

salary and benefits, unless he began full-time employment during

     3
       We acknowledge the amicus brief submitted by the
Massachusetts Employment Lawyers Association on behalf of
Anthony Leness.
                                                                   7

that period, and his accrued but unused vacation time.

Section 5 of the contract specified a very limited number of

reasons that EventMonitor could terminate Leness's employment

for cause, including if Leness "engaged in wilful fraud or

defalcation, either of which involved funds or other assets of

[EventMonitor]."

    Section 6(b) of the employment agreement, the non-

disclosure provision, required Leness to "hold in confidence and

not knowingly disclose or, except within the scope of his

employment, knowingly use any Proprietary Information."

"Proprietary Information" was defined as:

         "[A]ll [i]nventions and all other business, technical
    and financial information (including without limitation,
    the identity of and information relating to customers,
    investors, vendors, business partners or employees of
    [EventMonitor]) . . . that relate to [EventMonitor] or the
    business or demonstrably anticipated business of
    [EventMonitor] or that are received by or for
    [EventMonitor] in confidence."

The section provided further that, upon termination of his

employment, Leness was required "promptly [to] return to

[EventMonitor] all items containing or embodying Proprietary

Information (including all copies)."

    Leness worked at EventMonitor for approximately six years.

In the early years, the company grew substantially in terms of

revenue and number of employees.   In the fall of 2007, however,
                                                                     8

tensions developed between Leness and Chang over the direction

of the company.   Those tensions escalated significantly after

October 17, 2007, when Leness submitted a business proposal that

would have left Chang to focus on research and development,

using the existing software as a base product, and would have

created a spin-off company for sales and support, with Leness in

charge of that new entity.   The new entity would have taken the

majority of EventMonitor's revenue, which was derived largely

from service and licensing agreements with three large clients;

in exchange, the new entity would have lent EventMonitor startup

funds to develop several new products that were then being

considered.

    Chang initially agreed to Leness's suggestion that a new

business plan be considered.    After seeing the proposal,

however, Chang believed that the plan was developed to further

Leness's self-interest, and the proposal demonstrated that he

was not loyal to the company.    Consequently, in December, 2007,

EventMonitor notified Leness of his termination.    On December 5,

2007, Chang informed Leness verbally that his employment was

terminated "without cause," and sent him a copy of a written

termination letter, via electronic mail, stating that

EventMonitor was giving thirty days' notice.   As required by the

employment contract, prior to the effective date of his
                                                                   9

termination, Leness provided EventMonitor with information about

client accounts and agreements, as well as a written explanation

of the locations on the company computers where he had stored

proprietary information.

     After Leness's departure, Chang hired a forensic expert to

examine Leness's work-issued laptop computer.   The examination

revealed that in early October, 2007, at approximately the same

time that he submitted the proposal for restructuring

EventMonitor, Leness paid for a one-year subscription to an on-

line data storage service through a company called Carbonite.

Carbonite is a professional data storage service that encrypts

information for purposes of security.   Using this subscription,

Leness copied all of EventMonitor's files that had been on his

laptop to Carbonite's data storage system.   The uploaded data

included EventMonitor's "proprietary information," as defined by

the contract, including information related to its customers,

business documents, and financing.   Leness did not tell anyone

at EventMonitor about the Carbonite account or the copying of

EventMonitor's proprietary information to Carbonite's storage

system.4   Indeed, Leness used his personal electronic mail


     4
       The judge found that Leness otherwise had "cooperated"
with EventMonitor in his transition from the company, and had
returned all company equipment, including a "complete set of his
company files and data."
                                                                  10

address, and his personal credit card, to pay for the Carbonite

subscription.   Leness also downloaded a computer cleaning

program to the company laptop in an effort to erase evidence of

the Carbonite account from the laptop.

    When Chang learned of Leness's actions in copying

EventMonitor's proprietary information to the Carbonite system,

he retroactively changed Leness's termination to one "for

cause."   As a result, in early February, 2008, EventMonitor

stopped making the severance payments required under the

contract for a termination "without cause."   EventMonitor also

refused to pay Leness for his unused vacation time, which, under

the terms of the contract, it was required to pay regardless of

the type of termination.   Ultimately, Leness informed

EventMonitor that he would file a claim in the Superior Court if

his severance payments were not resumed by May 1, 2008.    On

April 30, 2008, without having made any further payments,

EventMonitor commenced this action.

    2.    Material breach of the employment agreement.

EventMonitor argues that Leness committed a material breach of

the employment agreement by violating section 6(b), which

required him to maintain the confidentiality of EventMonitor's

proprietary information and to return all such information,

including all copies, upon termination.
                                                                  11

    A breach of a contract is a material breach when it

involves "an essential and inducing feature of the contract."

Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 470

(1991), quoting Bucholz v. Green Bros., 272 Mass. 49, 52 (1930),

S.C., 290 Mass. 350 (1935).   Whether a party has committed a

material breach ordinarily is a question of fact.   See Cetrone

v. Paul Livoli, Inc., 337 Mass. 607, 610 (1958); Coviello v.

Richardson, 76 Mass. App. Ct. 603, 609 (2010); Prozinski v.

Northeast Real Estate Servs., LLC, 59 Mass. App. Ct. at 609.

See also 23 Williston on Contracts § 63:3 at 440 (4th ed. 2002).

But if "the evidence on the point is either undisputed or

sufficiently lopsided . . . the court must intervene and address

what is ordinarily a factual question as a question of law."

See Teragram Corp. v. Marketwatch.com, Inc., 444 F.3d 1, 11 (1st

Cir. 2006), quoting Gibson v. Cranston, 37 F.3d 731, 736 (1st

Cir. 1994).

    Thus, we accept a trial judge's findings as to the

materiality of a breach unless they are clearly erroneous.

Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996).     "We

are not bound, however, by the judge's conclusions of law, and

we must ensure that the judge's ultimate findings and

conclusions are consistent with relevant legal standards."

Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510
                                                                  12

(1996).   See Psy-Ed Corp. v. Klein, 459 Mass. 697, 710 (2011),

quoting Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992) ("In

reviewing a judge's decision after a jury-waived trial,

'we . . . scrutinize without deference the legal standard which

the judge applied to the facts'").     "If a judge's ultimate

findings are inconsistent with the subsidiary findings, we must

set them aside."   Demoulas v. Demoulas Super Mkts., Inc., supra.

Here, the evidence fully supports the judge's findings, and

there is no error in his determination, based on these findings,

that Leness did not commit a material breach of the employment

contract.

    The judge found that in copying EventMonitor's proprietary

information to Carbonite's data storage system, not disclosing

the upload to EventMonitor, and not returning the Carbonite

files upon his termination from employment, Leness violated

section 6(n) of the employment contract, in particular because

he did not return all copies of EventMonitor's proprietary

information.   Nonetheless, as the judge correctly concluded,

Leness's failure to return the information, while a "variance

from complete compliance" with the employment contract, did not

affect an essential and inducing feature of the contract, and

therefore was not a material breach.

    The judge found that there was no evidence that Leness had
                                                                   13

used the information for any purpose, before or after his

termination more than five years prior to the date of trial, or

intentionally had disclosed it to anyone.   The judge stated

further that, while he did not credit Leness's stated reasons

for having placed a copy of EventMonitor's proprietary

information on the Carbonite system (EventMonitor's purportedly

inadequate backup procedures), he also rejected EventMonitor's

suggestion that the copying had been done with a malicious

intent.   Indeed, the judge stated that, given the circumstances

and the state of the relationship between Leness and Chang in

October, 2007, when the copies were made, Leness might well have

wanted the copy in order to be able to demonstrate that he had

not neglected his duties or acted deliberately to the detriment

of EventMonitor's interests.

    The judge concluded that the essential purpose of

section 6(b) is to protect the confidentiality of EventMonitor's

proprietary information.   A breach of section 6(b) therefore

becomes material if it undermines that confidentiality.   Because

there was no evidence or indication that Leness had disclosed

EventMonitor's confidential information, Leness's breach was not

material.

    We observe that, while electronic copies of proprietary

information placed on third-party storage devices potentially
                                                                     14

could fall into the hands of competitors, or otherwise become

public or be disclosed, as the judge found, there was no showing

that such a result was likely to have, or had, occurred.

Carbonite maintains its clients' information in a secure and

encrypted manner, and its business model relies on its clients'

confidence in this assurance.   EventMonitor did not suggest, let

alone offer evidence to prove, that its information could more

readily be compromised because it temporarily had been stored on

Carbonite's servers.   Indeed, EventMonitor used similar data

backup services, indicating that it did not view the use of such

services as endangering the confidentiality of the information

stored thereon.5

     In any event, the possibility of unintentional disclosure

is not relevant under the terms of the employment contract.     As

the judge found, Leness did not "knowingly disclose" or

"knowingly use" any of EventMonitor's proprietary information.

Accordingly, because Leness's breach did not endanger the

confidentiality of EventMonitor's information, the breach was

not material, and EventMonitor was not entitled to stop making

severance payments.    See Anthony's Pier Four, Inc. v. HBC

     5
       We hasten to add that we make no determination regarding
the level of security provided by Carbonite's systems, or the
degree of risk that information a client stored there
inadvertently might be disclosed to, or obtained by, a third
party.
                                                                  15

Assocs., 411 Mass. at 470; Lease-It, Inc. v. Massachusetts Port

Auth., 33 Mass. App. Ct. 391, 396 (1992); 23 Williston on

Contracts §   63:3 at 438.

     3.   Whether termination could be amended to one "for

cause."   Having concluded that Leness did not commit a material

breach of the employment contract, we turn to EventMonitor's

argument that Leness's breach nonetheless provided adequate

grounds for EventMonitor to have converted the termination to

one for cause.   To support its decision to change the

termination to one "for cause," EventMonitor asks that we adopt

the after-acquired evidence doctrine that has been accepted in

some other jurisdictions.    This doctrine allows an employer

retroactively to characterize a termination as one for cause if

the employer shows that:     (1) an employee had committed

misconduct; (2) the employer learned of the misconduct only

after the employee's termination from employment; and (3) had

the employer known of the misconduct prior to the termination

without cause, the employer instead would have discharged the

employee for cause on that basis of that conduct.6    See McDill v.

Environamics Corp., 144 N.H. 635, 640-641 (2000) (citation

     6
       The United States Supreme Court has prohibited application
of the after-acquired evidence doctrine when a termination
without cause has been found to have occurred for impermissible
reasons, such as discrimination or retaliation. See McKennon v.
Nashville Banner Pub. Co., 513 U.S. 352, 359-360 (1995).
                                                                   16

omitted).    As noted, supra, we need not address this argument,

as we conclude that the information about Leness's activities

about which EventMonitor learned subsequent to his termination

without cause would not have supported a decision to terminate

him for cause.

     Under the terms of Leness's employment agreement,

defalcation of company assets permitted a "termination for

cause."7    EventMonitor argues that Leness's actions in uploading

EventMonitor's proprietary information to the Carbonite data

storage system constituted a defalcation of company assets, and

that the judge erred in concluding that there was no

defalcation.

     The interpretation of the meaning of a term in a contract

is a question of law, Eigerman v. Putnam Invs., Inc., 450 Mass.

281, 287 (2007), and thus we review the judge's determination de

novo.    Trace Constr., Inc. v. Dana Barros Sports Complex, LLC,

459 Mass. 346, 351 (2011).    "When the words of a contract are

clear they alone determine the meaning of the contract . . . ."

Merrimack Valley Nat'l Bank v. Baird, 372 Mass. 721, 723 (1977).


     7
       The contract provided that Leness could be terminated for
cause for "wilful fraud or defalcation." Leness argues that he
could only be terminated for cause under this provision if a
defalcation was wilful. The judge was not required to, and did
not make, a finding as to willfulness, however, because he found
that Leness had not engaged in any defalcation.
                                                                    17

A reviewing court considers extrinsic evidence only when a term

in a contract is ambiguous.    See Massachusetts Mun. Wholesale

Elec. Co. v. Danvers, 411 Mass. 39, 48 (1991).

     Relying in part on a detailed examination of Massachusetts

appellate decisions,8 and the common meaning of the term "asset,"

the judge determined that "defalcation" within the meaning of

the employment agreement did not include takings of nonmonetary

assets.    The judge concluded also that, even if intangible

assets had been subject to defalcation within the meaning of the

contract, Leness's actions in uploading information to Carbonite

did not deprive EventMonitor of the use or value of those

assets, and that there was no evidence that he had disclosed,

had intended to disclose, or had made use of the information for

his own benefit or to the detriment of EventMonitor.

     We agree that there was no defalcation here.    Regardless of

whether defalcation under Massachusetts law is limited solely to

the taking of funds, in ordinary usage defalcation requires at

least a temporary misuse or deprivation of the use or value of

an asset,9 and the employment agreement does not otherwise define


     8
       Although EventMonitor is a Delaware corporation, its
officers are in Boston, and the employment agreement specified
that it was to be interpreted in accordance with Massachusetts
law.
     9
         See Black's Law Dictionary 506 (10th ed. 2014) (defining
                                                                   18

the term.

     The judge found, and the finding is supported by the

evidence, that Leness did not misuse or deprive EventMonitor of

its proprietary information.   Leness merely retained a copy of

the information under circumstances that had no impact on

EventMonitor's use of its proprietary information, or on the

value of that information.   If Leness had disclosed or used the

information, his actions might have allowed a competitor to

offer a similar product without substantial development costs,

reduced the standing of the company in the eyes of its clients,

or provided a competitor with information about EventMonitor's

customers, any one of which possibly could have resulted in a


defalcation as "fraudulent misappropriation of money held in
trust; financial wrongdoing involving a breach of trust;
embezzlement"); The American Heritage Dictionary of the English
Language 488 (3rd ed. 1992) (defining "defalcate" as to "misuse
funds; embezzle").

     Although no Massachusetts case has defined the term
"defalcation" explicitly, where the term appears, it is used in
accordance with its ordinary and plain meaning, that is, a
misuse or deprivation of the use of an asset held in trust.
See, e.g., Indeck v. Clients' Sec. Bd., 450 Mass. 379, 380-381
(2008) ("defalcation" describes conduct of attorney who
misappropriated client funds entrusted for investment); Buster
v. George W. Moore, Inc., 438 Mass. 635, 652 (2003)
("defalcation" used to describe act of misappropriating
entrusted property, depriving property owner of its use); Matter
of Driscoll, 410 Mass. 695, 704 (1991) (Greaney, J., dissenting)
("defalcation" used to describe conduct of attorney who used
client funds to pay personal debts); Mickelson v. Barnet, 390
Mass. 786, 790 (1984) ("defalcation" used to describe
accountant's embezzlement of investors' funds).
                                                                 19

loss of revenue.   Such loss did not occur here.   We need not

decide whether actions that result in a loss of the exclusive

use of proprietary information could have amounted to a

"defalcation" within the meaning of the contract, because

Leness's secure storage of a copy of the proprietary

information, in the absence of any disclosure or use by anyone

other than EventMonitor, did not undermine EventMonitor's

exclusive use of its information.

     4.   Indemnification.   Leness argues that the judge erred in

concluding that EventMonitor was not required to indemnify him

for his costs incurred in defending against EventMonitor's

claims.   Leness's argument that he is entitled to

indemnification is not supported by the plain language of the

contract.   The employment agreement's indemnity clause,

section 10(h), states that EventMonitor must indemnify Leness if

he

          "is made a party . . . to any . . . action, suit or
     proceeding . . . by reason of the fact that [Leness] is or
     was an employee, officer or director of [EventMonitor]
     . . . in which capacity [Leness] is or was serving at
     [EventMonitor's] request."

Thus, under its plain language, the clause requires

indemnification only if a claim is brought against Leness as a

result of actions in his capacity as an employee, acting at

EventMonitor's request.   Here, Leness was made a party to an
                                                                    20

action only after EventMonitor discovered that he had uploaded

its proprietary information to a third-party data storage

service.    As the trial judge found, the filing of the lawsuit

was a direct result of Leness's actions with respect to the

Carbonite data storage subscription, undertaken in his personal

capacity and not in his capacity as EventMonitor's employee.

     These findings are well supported in the record and are not

clearly erroneous.    Leness's conduct in purchasing the

subscription using a personal credit card and personal

electronic mail account, uploading the information without

advising anyone at EventMonitor of his actions or his purported

reason for doing so (EventMonitor's supposedly inadequate backup

procedures),10 and then attempting to erase all traces of the

Carbonite subscription from his computer, supports the inference

that use of the Carbonite data storage service was undertaken in

Leness's personal capacity, rather than as an employee.    Leness

also committed a breach of the employment contract by not

returning or deleting the copy of EventMonitor's proprietary

information stored on the Carbonite system before his employment

ended.    EventMonitor was not required to indemnify Leness for


     10
       As noted, the judge rejected as not credible Leness's
explanation that he used Carbonite because he was worried about
the stability of EventMonitor's internal backup procedures, but
concluded that the copying was not with malicious intent.
                                                                21

defending against a lawsuit resulting from actions that were not

undertaken in his capacity as an employee.

     5.   Calculation of damages for violations of the wage act.

General Laws c. 149, § 148, requires timely payment of wages,

including payments due under the terms of an agreement for

accrued but unused vacation time.   The judge determined that

Leness was entitled to payment for 8.4 days of accrued and

unused vacation.11   Neither party disputes the judge's

calculation of the number of days at issue.   In his brief,

however, Leness contends that the judge's calculation of damages

for those days, in the amount of $4,732.10, trebled to

$14,196.30 (as required by G. L. c. 149, § 150), is erroneous

due to a mathematical error.   We agree that based on a daily

rate of $673.08, the damages for 8.4 days of accrued vacation

pay should have been $5,653.87, trebled to $16,961.62.12


     11
       The contract entitled Leness to fifteen vacation days per
year, and to accrue unused vacation days.
     12
       The judge stated that he derived the amount of damages by
multiplying Leness's daily rate by 8.4 days, then trebling that
amount. The result he reached in the initial multiplication
($4,732.10), however, is mathematically incorrect. Dividing
Leness's weekly rate of $3,365.38 by five results in a daily
rate of $673.08. Thus, the damages for 8.4 days at a rate of
$673.08 per day should have been $5,653.87. That the judge
calculated a daily rate based on a five-day work week is evident
from his finding that, in addition to his annual salary, Leness
was entitled to severance pay of $10,096.15 for fifteen days of
vacation benefits ($10,096.15 divided by fifteen equals
                                                                     22

    According to the Superior Court docket sheet, although, in

2012, Leness's motion pursuant to Mass. R. Civ. P. 59 (e), 365

Mass. 827 (1974), to amend the judgment in order to add costs

was allowed, Leness has not filed in the Superior Court a motion

for relief from judgment for a clerical mistake, pursuant to

Mass. R. Civ. P. 60 (a), 365 Mass. 828 (1974) or mistake or

inadvertence pursuant to Mass. R. Civ. P. 60 (b).     Nonetheless,

modification of a judgment to correct an inadvertent error of

this type, in a mathematical calculation, is appropriately

raised on appeal.   See Massachusetts Mun. Wholesale Elec. Co. v.

Springfield, 49 Mass. App. Ct. 108, 113-114 (2000).    Leness is

entitled to entry of an amended judgment to correct the

mathematical miscalculation.

    6.   Conclusion.   The judgment is affirmed as to all claims

and counterclaims other than the amount of damages awarded to

the plaintiff-in-counterclaim under G. L. c. 149, § 148, of the

wage act.   The matter is remanded to the Superior Court for

entry of an amended award of damages on the wage act claim,

consistent with this opinion.

                                    So ordered.




$673.08).
