Concept
Clerical Versus Judicial Error
Correction of clerical mistakes
Clerical Versus Judicial Error
Rule 60(a) lets a court correct “a clerical mistake or a mistake arising from oversight or omission” in a judgment, order, or other part of the record, and everything turns on which kind of mistake the court is looking at.1 The text asks about the type of error. It says nothing about how large the change is or what it does to the parties. Some mistakes occur when a decision already made is written down; others occur in making the decision. Rule 60(a) reaches the first group, and a change in the second group needs some other source of authority.
The line matters because Rule 60(a) has no deadline. The court may correct a mistake “whenever one is found,” on motion or on its own, “with or without notice.”2 A power with no clock and no notice requirement is safe only if using it takes nothing from anyone. A correction that makes the paper say what the court decided takes nothing, because the party who relied on the slip never held a ruling that said so. A change that alters the decision takes away something the court actually gave, and the deadlines for appeals, new-trial motions, and Rule 60(b) relief exist to control exactly that. If every change could pass through Rule 60(a), a party who missed those deadlines could call the request a typographical fix and start over.
Neither side’s label settles the question. A movant has every reason to describe a substantive change as clerical, and a court inclined to revisit its own ruling may do the same. Courts describe the task as “essentially one of characterization,”3 and every dispute reduces to one question: does the requested change implement what the court intended when it ruled, or does it alter what the court decided? The first subsection gives the test courts use to answer it. The second applies the test to oversights, omissions, and ambiguity. The third marks the substantive changes that stay outside the rule whatever they are called.
The Contemporaneous-Intent Test
The rule’s words do not say how to tell a clerical mistake from a change of mind, so courts supply a method: they ask what the court intended when it ruled. If the judgment as written departs from that intent, correcting it is clerical. If the court meant what it wrote and now wants a different result, the change is judicial. Courts therefore distinguish “between changes that implement the result intended by the court at the time the order was entered and changes that alter the original meaning to correct a legal or factual error,” because Rule 60(a) allows the former but not the latter.4 Intent anchors the test because it is the one fact that separates a slip from a second thought, and it was fixed when the court ruled.
Kite Ranch, LLC v. Powell Family of Yakima, LLC shows how a reviewing court organizes the inquiry. Following a two-part process drawn from an earlier Wyoming decision, the court first asks whether the correction or clarification related to a clerical or a judicial mistake, and then reviews the order to see whether it clarified or modified the original judgment; both questions are issues of law reviewed de novo.5 The court added that the rule was not designed as a substitute for appeal or to affect the substantive portions of a judgment, and that it is not intended to correct judicial, as opposed to clerical, error.6
In Rezzonico v. H & R Block, Inc., a single missing word reversed the meaning of a sentence, and the correction was still clerical. The amended judgment added the word “not.” The Rezzonicos argued that the addition was a material change that restarted their time to appeal and to file tolling motions, while Block answered that it merely corrected a clerical error.7 The appellate court agreed with Block. The omission, considered by itself, “concededly changed the meaning of the sentence,” but the district court’s memorandum and order, together with the preceding sentence of the judgment, made clear that the appellants were not permitted the discounted rate.8 The amended judgment therefore did not restart the time to appeal or to file tolling motions.9 The case shows that the test looks to the court’s intent and not to how far the correction shifts the words.
Evidence of intent usually sits in the court’s own earlier pronouncements, and courts “often examine in detail the text of the district court’s prior pronouncement.”10 One decision treated a judgment that substituted another party for the party in whose favor the order granted judgment as a clerical error, because the court’s intent was clear from its order.11 The useful sources are the memorandum or opinion, the surrounding text of the judgment, and, in some settings, the judge’s own notes and correspondence.
Guyer v. State adds contemporaneous records to that list. Reviewing a correction under Rule 36, the court examined “the court’s expressed intent at the time of sentencing and any tangible evidence of that intent,” and it treated a letter from the judge to defense counsel as dispositive. The letter showed that at sentencing the judge knew his two-year sentences might later have to be reassigned to different indictment numbers because of merger, so the sentence ultimately imposed “merely manifested his original intent.”12 In an earlier decision affirming a Rule 36 correction, the court had looked to the judge’s recollection and to contemporaneous notations in his handwriting on the presentence report.13 Records made at the time carry weight because they were written before anyone had a stake in the correction.
A court’s own documents can also reveal a slip by disagreeing with each other. In Davis v. Bruk, a Maine trial court’s findings of fact placed a shore easement on the land of the co-plaintiffs, while its conclusions of law, entered the same day, placed the same easement on the defendant’s land.14 One easement cannot sit on two parcels, so one document recorded something the judge did not mean, and the court concluded that the findings were the mistaken one. The defendant had moved to amend the conclusions to match the findings, and when the court instead corrected the findings, he objected that no party had moved for that and that Rule 52(b) provides for amendment of findings “upon motion of a party.” The court answered that Rule 60(a) permits correction of “clerical mistakes” on the court’s own motion, and that where a trial justice makes “a slip of the tongue” and uses the name of one party where he meant another, the rule empowers him to correct his own mistake on his own initiative.15
A losing party’s argument that the judge obviously misjudged the matter is therefore an argument about judicial error. So is the judge’s later statement of what should have been decided, which shows what the judge now thinks and not what the court intended when it ruled. The record decides the question one of two ways: it shows that the paper departs from the ruling, or it shows that the paper says what the court meant.
Oversights, Omissions, and Ambiguity
Rule 60(a) names two kinds of correctable error, and the second, “a mistake arising from oversight or omission,” keeps the power from shrinking to literal typographical slips.17 A record can misreport a decision by leaving something out as surely as by writing something wrong, and a rule confined to misspelled words and transposed digits would force parties into appeals over errors nobody disputes. Courts therefore read the rule to reach omissions, wrong cross-references, and ambiguity that the court’s own record can resolve. Each reading stays tied to the intent test, and that tie also marks the point where a correction stops being a correction.
An omission is correctable when the court’s own record shows what was left out. In Gibbs v. State, as Guyer describes it, a sentencing judge expressed his intent to impose five consecutive five-year sentences, to be served concurrently with a life sentence. The docket entry stated in part “imprisonment for five (5) years on each charge. Sentence to be concurrent with the one for life imprisonment,” which created the mistaken impression that the five-year sentences were to run concurrently with one another rather than consecutively as intended.18 The court applied the rule to affirm the judge’s correction of his “ambiguous or erroneous recording of a sentence.”19 The entry had left out what the judge pronounced, and the correction restored it.
The same logic covers a wrong cross-reference. In Agnes M. Gassmann Revocable Living Trust v. Reichert, the appellate court affirmed the judgment but remanded for correction of clerical errors in the district court’s corrected judgment, among them a reference to “Article Six, Paragraph 7(a)” where the correct trust provision was “Article Five, Paragraph 7(a).”20 That correction came from an appellate remand and not from a trial judge acting under Rule 60(a), so the case shows what kind of error counts as clerical and does not show how a trial court proceeds.
Ambiguity is a third situation. In Kite Ranch, the original order granted Powell the power to lease and mortgage company property under § 17-15-104(a)(ii) and (vi) but denied those powers when it withheld authority under § 17-15-104(a)(ii), so the order was ambiguous on its face.21 The court reviewed the later order by asking whether it clarified the original judgment or modified it,22 which is the intent test in different words. A clarification resolves the doubt by consulting what the court decided when it ruled; a modification supplies a decision the court did not make.23 It follows that a record containing no sign of how the court meant to resolve the question leaves nothing to clarify. Choosing between the two readings would create a new decision and restore no old one.
The omitted settlement credit is the hardest application. When one defendant settles before judgment and the case against another goes to verdict, the remaining defendant may be entitled to a credit so that the plaintiff does not recover twice for a single loss, yet the judgment is sometimes entered without mentioning the settlement. The omission looks mechanical, because the subtraction follows from a legal duty and calls for no discretion. It also looks substantive, because the court wrote nothing about a credit, and subtracting one reduces what the plaintiff collects. Courts have split on which description controls.
West Virginia treats the omission as an oversight. In Savage v. Booth, the plaintiffs settled with one defendant for $50,000 while a sexual-harassment trial was pending, and the court concluded “as a matter of law” that on the other defendant’s motion the trial court was required to deduct the settlement from the jury verdict before entering final judgment.24 The trial court’s initial failure to give the credit was “a mere oversight and does not arise to the level of more substantial errors which must be considered pursuant to Rule 59(e) or Rule 60(b).”25 In Quicken Loans, the plaintiff resisted a similar credit, and the court held that the offset was governed by Rule 60(a) and Savage. Because the plaintiff had suffered a single indivisible loss arising from the actions of Quicken and the settling co-defendants, Quicken was entitled to the credit.26
Gath v. M/A-Com, Inc. reached the opposite classification. Judgment was entered on a $14,250,000 jury verdict on February 5, 2001. Nearly a year later, on January 25, 2002, M/A-COM moved under rule 60 to reduce the judgment by $500,000, a setoff for a pretrial settlement reached between Gath and Burns, relying on G. L. c. 231B, § 4.27 The court concluded that Rule 60(a) did not apply and proceeded under Rule 60(b)(1),28 which allows relief for “mistake, inadvertence, surprise, or excusable neglect,” requires the motion to be made “within a reasonable time, not to exceed one year,” and puts on the movant “the considerable burden of showing that the mistake was indeed excusable, and not due simply to its own carelessness.”29
The label therefore decides which restrictions apply. Under the West Virginia view, the omitted credit sits outside the more substantial errors that Rule 59(e) and Rule 60(b) govern, so the defendant who seeks it is not held to those rules’ requirements.30 Under the Massachusetts view, the defendant had to bring the motion within Rule 60(b)(1)’s limits and carry the burden of showing excusable neglect.31 Savage and Gath both apply state counterparts of Rule 60(a), so they display the competing arguments and do not state a federal answer. When a problem turns on an omitted credit or offset, look first to the governing jurisdiction’s decisions; where none exists, argue both characterizations and ask whether the record shows the court actually addressed the credit when it ruled.
Substantive Changes Outside the Rule
Rule 60(a) conforms the paper to the court’s decision, and it cannot reach a change in the decision itself. The rule’s own terms explain why. It lets the court act “on motion or on its own, with or without notice,” and without any deadline,33 and Wyoming’s court has reasoned that when a correction involves only a clerical mistake, no notice or hearing is required and no due process violation occurs.34 Those dispensations are justified only by the clerical character of the change. A party who stands to lose a ruling ordinarily gets a genuine second look, with a motion filed within a deadline, a chance to respond, and review on appeal. If the word “clerical” were enough to invoke the rule, a movant or a court could obtain a new result with none of that, which is why the rule was “not designed as a substitute for appeal.”35
The court’s own earlier record is the check on that move. A statement the court made when it ruled shows what it meant to decide, and a requested change that contradicts the statement would make a new decision. A legal mistake by the court, however plain in hindsight, is judicial error, and the routes to it are appeal, a new-trial motion, and the other motions that later sections describe.36
The Fifth Circuit’s decision in Logan v. Burgers Ozark Country Cured Hams Inc. shows the line drawn in practice. An order entered May 17 purported to correct the district court’s earlier dismissal of the plaintiff’s patent claims. The court of appeals held that the district court lacked jurisdiction to enter it and that the correction was “not clerical but substantive.”37 It relied on a rule drawn from an earlier decision, Rutherford, in which the district court’s failure to make findings and to award back pay or prejudgment interest was “not clerical in nature because correction of an error in substantive judgment is outside the reach of Rule 60(a).”38 The dismissal of the patent claims therefore remained without prejudice, and that classification decided where the appeal belonged: under the Federal Circuit’s precedent on dismissals without prejudice, jurisdiction lay in the court of appeals that decided Logan and not in the Federal Circuit.39 The first ground, lack of jurisdiction, connects to the rule’s limit on corrections once an appeal is pending, which a later section takes up.
Hatch v. Hatch marks the boundary from the other side. The reviewing court held that the court below was “wholly without jurisdiction” to apply its order retroactively to March 6, 1969 and to refuse to enter judgment for the recipient in the sum of $3,875 for accrued and back-due support.40 An order that reaches back to erase support already due conforms nothing to an earlier decision; it rewrites a debt that had accrued.
Not every request to change the record is substantive. In Crye v. Edwards, the record did not show that a critical document had been filed on the date the party claimed, but the evidence supported the claim that the party had submitted the document to the clerk on that date, and the court could correct the error as clerical.41 A correction of that kind makes the record report what already happened. A request for a new hearing differs in kind, because it asks the court to create a record and not to correct one.
The same boundary governs motion practice. A motion to alter the judgment is strictly limited to clerical errors and matters of clear oversight, and it does not reach questions involving the right to additional recovery or a reduction in an award.42 A party who wants more or less because the court got the result wrong must seek a new trial or appeal.43 Whether the request seeks a larger award, as in Rutherford, a correction of substantive judgment, as in Logan, or relief from support already due, as in Hatch, it asks the court to decide something again, and Rule 60(a) offers no route for that.