NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-442
BRIAN ERNST1 & another2
vs.
CATHERINE A. BAKER & others.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Brian Ernst and Victoria Ernst
(plaintiffs), appeal from a judgment entered following their
acceptance of an offer of judgment pursuant to Mass. R. Civ. P.
68, 365 Mass. 835 (1974) (Rule 68) by Homeowners Choice Property
& Casualty Insurance Company, Inc. (Homeowners Choice),
Catherine Baker, and Julie Baker (collectively defendants). A
Superior Court judge concluded that all three defendants
1 Individually and as Next Friend of C.E.
2 Victoria Ernst, Individually and as Next Friend of C.E.
3Julie Baker and Homeowners Choice Property & Casualty Insurance Company, Inc. tendered the offer of judgment for a total of $150,000,
inclusive of prejudgment interest. We affirm.
Background. On May 8, 2022, C.E., a minor, was bit by a
dog. Her parents brought suit against the homeowner, Catherine
Baker, and the dog owner, Julie Baker, in July of 2022. The
suit was twice dismissed on jurisdictional grounds, but
eventually proceeded in the Superior Court against the
defendants including claims under G. L. c. 93A and c. 176D. On
February 27, 2024, a Superior Court judge severed and stayed the
plaintiffs' claims against Homeowners Choice pending
adjudication of the claims against the Bakers. On June 24,
2024, partial judgment on the pleadings for an undetermined
amount entered against Julie Baker.
On January 2, 2025, the plaintiffs received an offer of
judgment pursuant to Rule 68. They filed their notice of
acceptance of the offer of judgment with the court on January 6,
2025. On January 8, 2025, the judge entered an order requiring
the parties to file an agreement for judgment with the court
"consistent with the terms expressed in the [o]ffer of
[j]udgment," which was "for resolution of all claims for the
full amount of [$150,000], inclusive of costs and interest." No
agreement for judgment was filed. Rather, the plaintiffs filed
a motion for entry of judgment for $150,000, assessment of
2 prejudgment interest, and either entry of a separate $150,000
judgment against Homeowners Choice or a lifting of the stay of
the claims against Homeowners Choice. The defendants filed a
cross-motion for entry of judgment. The judge granted the
defendants' cross-motion ordering that "[j]udgment against
defendants Catherine Baker, Julie Baker, and [Homeowners Choice]
shall enter in the total amount of $150,000.00, with no costs
and no interest and no fees to be added. Judgment shall enter
after hearing to approve settlement." The judgment entered on
April 1, 2025. This appeal followed.
Discussion. The plaintiffs argue that the judge erred by
not including prejudgment interest calculated from the date of
the filing of their first Superior Court action, by not
beginning the accrual of postjudgment interest on June 24, 2024,
and by construing the offer of judgment to include Homeowners
Choice. The plaintiffs further argue that a separate judgment
in the amount of $150,000 against Homeowners Choice should
enter, or in the alternative, the stay of their claims against
Homeowners Choice should be lifted to permit the plaintiffs to
pursue the claims. We are not persuaded.
Questions of statutory interpretation and issues of
contract construction are reviewed de novo on appeal. See
Genworth Life Ins. Co. v. Commissioner of Ins., 95 Mass. App.
3 Ct. 392, 395 (2019); see also A.L. Prime Energy Consultant,
Inc., v. Massachusetts Bay Transp. Auth., 479 Mass. 419, 424
(2018).
"In general, principles of contract law apply to determine the
terms and effect of offers of judgment under Rule 68." Nortek,
Inc. v. Liberty Mut. Ins. Co., 65 Mass. App. Ct. 764, 772
(2006). When reviewing a disputed contract, "[t]he terms stated
by the parties will be taken in their plain and ordinary sense
unless otherwise indicated by the contract. It is not the role
of the court to alter the parties' agreement" (citation
omitted). Rogaris v. Albert, 431 Mass. 833, 835 (2000).
1. Prejudgment Interest. The plaintiffs argue that they
are entitled to prejudgment interest calculated from the date
their first action was filed in Superior Court, accruing until
June 24, 2024 for the claims against Julie Baker and until
January 6, 2025 for the claims against Catherine Baker. They
rely on G. L. c. 231, § 6B and G. L. c. 235, § 8. They further
argue that the offer was ambiguous and should be construed
against the defendants. "[W]hen the language of a contract is
clear, it alone determines the contract's meaning, . . . . The
determination of ambiguity in a contract is also a question of
law. Contractual language is ambiguous when it can support a
reasonable difference of opinion as to the meaning of the words
4 employed and the obligations undertaken" (quotation and
citations omitted). Balles v. Babcock Power Inc., 476 Mass.
565, 571 (2017). We disagree that the offer is ambiguous and
conclude that no prejudgment interest is due.
The offer of judgment is comprised of four paragraphs, only
one of which sets forth the financial terms. Within that
paragraph, the offer states that the defendants will "allow
entry of [a] judgment . . . in the sum of $150,000.00" and "that
the total judgment amount, including recoverable costs, which
the [d]efendants shall be obligated to pay shall be
$150,000.00." The paragraph concludes with a further statement
that this shall be the "total amount [to] be paid by the
defendants . . . . " We conclude that these terms are clear and
unambiguous, and the total amount due, as of the entry of
judgment, is $150,000.00.4
2. Postjudgment Interest. The plaintiffs further argue
that they are entitled to postjudgment interest beginning on
June 24, 2024 as to the claims against Julie Baker and on
January 6, 2025 as to the claims against Catherine Baker.5
4 Because the plaintiffs are not entitled to prejudgment interest, we need not reach the issue of which date dictates the beginning of the accrual of prejudgment interest.
5 The defendants argue that the issue of the date on which postjudgment interest should be assessed was not raised below and was thus not properly preserved for appeal. See Century
5 As to Julie Baker, the plaintiffs rely on G. L. c. 235, § 8
which states, "[w]hen judgment is rendered. . . interest shall
be computed upon the amount of the award, . . . . Every
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-442
BRIAN ERNST1 & another2
vs.
CATHERINE A. BAKER & others.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Brian Ernst and Victoria Ernst
(plaintiffs), appeal from a judgment entered following their
acceptance of an offer of judgment pursuant to Mass. R. Civ. P.
68, 365 Mass. 835 (1974) (Rule 68) by Homeowners Choice Property
& Casualty Insurance Company, Inc. (Homeowners Choice),
Catherine Baker, and Julie Baker (collectively defendants). A
Superior Court judge concluded that all three defendants
1 Individually and as Next Friend of C.E.
2 Victoria Ernst, Individually and as Next Friend of C.E.
3Julie Baker and Homeowners Choice Property & Casualty Insurance Company, Inc. tendered the offer of judgment for a total of $150,000,
inclusive of prejudgment interest. We affirm.
Background. On May 8, 2022, C.E., a minor, was bit by a
dog. Her parents brought suit against the homeowner, Catherine
Baker, and the dog owner, Julie Baker, in July of 2022. The
suit was twice dismissed on jurisdictional grounds, but
eventually proceeded in the Superior Court against the
defendants including claims under G. L. c. 93A and c. 176D. On
February 27, 2024, a Superior Court judge severed and stayed the
plaintiffs' claims against Homeowners Choice pending
adjudication of the claims against the Bakers. On June 24,
2024, partial judgment on the pleadings for an undetermined
amount entered against Julie Baker.
On January 2, 2025, the plaintiffs received an offer of
judgment pursuant to Rule 68. They filed their notice of
acceptance of the offer of judgment with the court on January 6,
2025. On January 8, 2025, the judge entered an order requiring
the parties to file an agreement for judgment with the court
"consistent with the terms expressed in the [o]ffer of
[j]udgment," which was "for resolution of all claims for the
full amount of [$150,000], inclusive of costs and interest." No
agreement for judgment was filed. Rather, the plaintiffs filed
a motion for entry of judgment for $150,000, assessment of
2 prejudgment interest, and either entry of a separate $150,000
judgment against Homeowners Choice or a lifting of the stay of
the claims against Homeowners Choice. The defendants filed a
cross-motion for entry of judgment. The judge granted the
defendants' cross-motion ordering that "[j]udgment against
defendants Catherine Baker, Julie Baker, and [Homeowners Choice]
shall enter in the total amount of $150,000.00, with no costs
and no interest and no fees to be added. Judgment shall enter
after hearing to approve settlement." The judgment entered on
April 1, 2025. This appeal followed.
Discussion. The plaintiffs argue that the judge erred by
not including prejudgment interest calculated from the date of
the filing of their first Superior Court action, by not
beginning the accrual of postjudgment interest on June 24, 2024,
and by construing the offer of judgment to include Homeowners
Choice. The plaintiffs further argue that a separate judgment
in the amount of $150,000 against Homeowners Choice should
enter, or in the alternative, the stay of their claims against
Homeowners Choice should be lifted to permit the plaintiffs to
pursue the claims. We are not persuaded.
Questions of statutory interpretation and issues of
contract construction are reviewed de novo on appeal. See
Genworth Life Ins. Co. v. Commissioner of Ins., 95 Mass. App.
3 Ct. 392, 395 (2019); see also A.L. Prime Energy Consultant,
Inc., v. Massachusetts Bay Transp. Auth., 479 Mass. 419, 424
(2018).
"In general, principles of contract law apply to determine the
terms and effect of offers of judgment under Rule 68." Nortek,
Inc. v. Liberty Mut. Ins. Co., 65 Mass. App. Ct. 764, 772
(2006). When reviewing a disputed contract, "[t]he terms stated
by the parties will be taken in their plain and ordinary sense
unless otherwise indicated by the contract. It is not the role
of the court to alter the parties' agreement" (citation
omitted). Rogaris v. Albert, 431 Mass. 833, 835 (2000).
1. Prejudgment Interest. The plaintiffs argue that they
are entitled to prejudgment interest calculated from the date
their first action was filed in Superior Court, accruing until
June 24, 2024 for the claims against Julie Baker and until
January 6, 2025 for the claims against Catherine Baker. They
rely on G. L. c. 231, § 6B and G. L. c. 235, § 8. They further
argue that the offer was ambiguous and should be construed
against the defendants. "[W]hen the language of a contract is
clear, it alone determines the contract's meaning, . . . . The
determination of ambiguity in a contract is also a question of
law. Contractual language is ambiguous when it can support a
reasonable difference of opinion as to the meaning of the words
4 employed and the obligations undertaken" (quotation and
citations omitted). Balles v. Babcock Power Inc., 476 Mass.
565, 571 (2017). We disagree that the offer is ambiguous and
conclude that no prejudgment interest is due.
The offer of judgment is comprised of four paragraphs, only
one of which sets forth the financial terms. Within that
paragraph, the offer states that the defendants will "allow
entry of [a] judgment . . . in the sum of $150,000.00" and "that
the total judgment amount, including recoverable costs, which
the [d]efendants shall be obligated to pay shall be
$150,000.00." The paragraph concludes with a further statement
that this shall be the "total amount [to] be paid by the
defendants . . . . " We conclude that these terms are clear and
unambiguous, and the total amount due, as of the entry of
judgment, is $150,000.00.4
2. Postjudgment Interest. The plaintiffs further argue
that they are entitled to postjudgment interest beginning on
June 24, 2024 as to the claims against Julie Baker and on
January 6, 2025 as to the claims against Catherine Baker.5
4 Because the plaintiffs are not entitled to prejudgment interest, we need not reach the issue of which date dictates the beginning of the accrual of prejudgment interest.
5 The defendants argue that the issue of the date on which postjudgment interest should be assessed was not raised below and was thus not properly preserved for appeal. See Century
5 As to Julie Baker, the plaintiffs rely on G. L. c. 235, § 8
which states, "[w]hen judgment is rendered. . . interest shall
be computed upon the amount of the award, . . . . Every
judgment for the payment of money shall bear interest from the
date of its entry." However, only partial judgment on the
pleadings, as to liability and in an undetermined amount, was
entered for the plaintiffs on June 24, 2024, and where the
judgment was not a "judgment for the payment of money" under
§ 8, accrual of postjudgment interest did not begin.
As to Catherine Baker, the plaintiffs argue that
postjudgment interest should begin accruing as of January 6,
2025, the date on which the plaintiffs filed the notice of
acceptance of the offer of judgment. Again, we disagree. An
acceptance of an offer of judgment does not operate as an entry
of judgment by the court on the docket. "[I]nterest shall be
computed upon the amount of the award" on the date on which
"judgment is rendered." G. L. c. 235, § 8. The judgment
against both Julie Baker and Catherine Baker entered on April 1,
Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) ("An issue not raised or argued below may not be argued for the first time on appeal"). The plaintiffs properly preserved the issue of postjudgment interest by including it in the motion filed with the Superior Court on January 31, 2025.
6 2025, which is the proper date from which postjudgment interest
shall accrue.
3. Claims Against Homeowners Choice. Finally, the
plaintiffs argue that they are entitled to either a separate
judgment against Homeowners Choice in the amount of $150,000.00,6
or, the lifting of the stay of their claim against Homeowners
Choice to continue litigation, because the language of the offer
varies between referring to the defendants in the singular and
the plural, and because the offer fails to mention the
previously severed claims, thereby rendering it ambiguous.
Again, we disagree.7
The offer of judgment clearly states that "[d]efendants
Catherine A. Baker, Julie Baker, and Homeowners Choice. . .
offer to allow entry of judgment. . . ." (emphasis omitted).
The offer also references that it encompasses settlement of
claims brought pursuant to G. L. c. 176D and G. L. c. 93A,
causes of action that were only brought against Homeowner's
Choice. We agree with the Superior Court judge that "[t]he
6 The plaintiffs do not explain why, even if we agreed the offer was ambiguous, they would be entitled to a second $150,000.00 payment.
7 The plaintiffs also argue that the offer is ambiguous because some parts reference "all claims" while others reference a "disputed claim." We find this argument equally unpersuasive.
7 [o]ffer of [j]udgment is clear in its terms that a single amount
would be paid on behalf of all defendants, including [Homeowners
Choice]." Thus, the plaintiffs are not entitled to a second
$150,000 judgment, nor to the lifting of the stay of the claims
against Homeowners Choice.
Judgment dated April 1, 2025, affirmed.
By the Court (Neyman, D'Angelo & Allen, JJ.8),
Clerk
Entered: January 30, 2026.
8 The panelists are listed in order of seniority.