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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 crossappealed. 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 nondisclosure 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 online 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).