Thе question posed in this appeal is whether the bankruptcy judge had authority to enter an order correcting (or amending, depending on one’s viewpoint) a judgment it had earlier entered in the same case, a judgment more than a year and a half old which had been affirmed by the district court and court of appeals.
The roots of this case go back almost twenty years. In 1970, Francine Klingman sued Melvin Levinson, a lawyer, in the Circuit Court of Cook County claiming that Mr. Levinson had misappropriated the assets of a trust of which Ms. Klingman was the beneficiary. Ms. Klingman and Mr. Levinson eventually reached a settlement, and the court entered an Agreed Judgment Order on April 11, 1975. In the Agreed Order, Mr. Levinson admitted to having violatеd his fiduciary duties as trustee in various ways, and judgment was entered in favor of Ms. Klingman and against Mr. Levinson for the following amounts:
(a) $37,550.00, representing the amount of the trust fund;
(b) $14,550.00, representing 5% interest on the $37,550.00 from July 17, 1967 to the date of the agreed order, April 11, 1975; and
(c) $10,000.00 attorneys’ fees pursuant to the parties’ stipulation.
The Agreed Order also stated that Mr. Levinson
has stipulated that it is his intention that the obligation to Plaintiff [Ms. Kling-man] created by this Agreed Judgment Order not be dischargeable in any bankruptcy or similar proceeding, and that in any subsequent proceeding all of the allegations of the Complaint and findings of this Court may be taken as true and correct without further proof.
Mr. Levinson filed for bankruptcy under Chapter 7 of the Bankruptcy Code on April 22, 1982. Apparently his debt to Ms. Klingman remained unpaid, for she asked the bankruptcy court to declare that the debt created by the Agreed Order was non-dischargeable under 11 U.S.C. § 523(a)(4) as one resulting from “fraud or defalcation while acting in a fiduciary capacity.” Mr. Levinson contested Ms. Klingman’s motion, claiming that public policy prohibits the waiving of nondischargeability in advance of a debtor’s bankruptcy proceeding, and thаt res judicata and collateral estoppel did not preclude relitigating the question whether he had in fact defrauded Ms. Klingman.
The bankruptcy court held that public policy did prevent Mr. Levinson’s waiver from being effective, but held that because of the factual findings contained in the Agreed Order, Mr. Levinson was “barred by the principle of collateral estoppel from relitigating the issue of whether his debt is nondischargeable based on fiduciary fraud or defalcation,” and granted the plaintiff’s motion for summary judgment.
In re Levinson,
The conclusion of the opinion stated that “[t]he plaintiff’s claim against the debtor for $37,550 is nondischargeable under § 523(a)(4). The plaintiff is entitled to interest on that amount from the date the debtor filed his bankruptсy petition and may recover attorneys’ fees awarded in paragraph 7 of the state court order.” Id. The judgment that was entered tracked this language. The issue before us arises from implications allegedly resulting from the opinion’s specific references to interest accruing after the filing of the bankruptcy petition, and to attornеys’ fees, and from its silence as to the interest included in the state judgment and the interest which accrued on the state judgment until the filing of the petition. Mr. Levinson now argues that the failure to mention pre-petition interest in the 1986 bankruptcy judgment allowed his liability for those amounts to be discharged.
The district court affirmed the bankruptcy court judgment, without mentioning the questiоn of the dischargeability of the pre-petition interest.
Klingman v. Levinson,
Mr. Levinson also states in his brief that “[t]he bankruptcy judge expunged the interest but retained the attorneys’ fees.” There is no support in the record for such an assertion. In fact, as Mr. Levinson acknowledges in his reply brief, the bankruptcy court decided that “[t]he plaintiff is entitled to interest on [the amount of $37,550] from the date the debtor filed his bankruptcy pеtition.” In his reply brief, he also appears to suggest — albeit opaquely — that, since the bankruptcy court did not specifically hold that the interest awarded in the settlement agreement was nondischargeable, it is discharged. While we see no merit in such an argument, see In re Hunter,771 F.2d 1126 , 1131 (8th Cir.1985), we need not specifically address the issue since it was not raised in Mr. Levinson’s opening brief. Mr. Levinson makes no further argument with respect to either the interest awarded by the settlement agreement or the interest awarded by the bankruptcy court. Accordingly, the bankruptcy court’s award of interest to Ms. Klingman remains undisturbed.
Id. at 1297 n. 4 (citations omitted).
After our mandate issued, Ms. Klingman filed a motion with the bankruptcy court to conform its judgment to our opinion, “in order to dispel any notion that this Bankruptcy Court impliedly discharged the $14,550.00 interest award contained in the Chancery Court’s order of April 11, 1975 or statutory interest accruing on that judgment subsequent to April 11, 1975.” Judge Ginsberg reopened the adversary proceeding, and claiming authority under Federal Rule of Civil Procedure 60(b)(6), granted Ms. Klingman’s motion, ordering that the state judgment, including interest awarded therein, with interest on the judgment from date of entry to satisfaction, is nondischargeable. 1 The district court affirmed Judge Ginsberg’s authority to enter the order on the basis of the equitable powers granted bankruptcy courts by 11 U.S.C. § 105(a). 2 We agree with the view of the bankruptcy judge and district court that Judge Ginsberg originally intended to declare the entire state court judgment debt nоn-dischargeable, along with interest thereon, both pre- and post-petition. We consider, however, Rule 60(a) as the appropriate source of authority for corrective action. 3
Rule 60(a) allows for a court which has entered a judgment to correct at any time “clerical mistakes ... and errors therein arising from oversight or omissiоn ... of its own initiative or on the motion of any party_”
4
Whether 60(a) is available depends upon whether the judgment said what the judge actually meant: “[i]f the
*1361
flaw lies in the translation of the original meaning to the judgment, then Rule 60(a) allows a correction; if the judgment captures the original meaning but is infected by error, then the parties must seek another means of authority to correct the mistake.”
United States v. Griffin,
The scope of Rule 60(a) is not limited to “clerical mistakes” in judgments; it also covers errors therein arising from “oversight or omission.” Indeed, a paradigm Rule 60(a) case is one where the court entering judgment has omitted reference to interest on a damage award. If there is no contest that the prevailing party is entitled to interest as a matter of law, the rule allows amendment to include interest,
see Hegger v. Green,
Mr. Levinson argues that if Judge Ginsberg’s failure to mention explicitly the two elements of pre-petition interest was a mistake, it can only be remedied by Rule 60(b)(1), which allows a court to give relief from judgment due to “mistake, inadvertance, surprise, or excusable neglect.” Since Ms. Klingman did not bring her motion within Rule 60(b)(1)’s one-year time limit, Mr. Levinson claims no relief is available. There is some question as to the scope of relief available under Rule 60(b) for mistakes made by the court, rather than by the parties or counsel, see 7 Moore’s Federal Practice 1160.22[3], but while Rule 60(b)(1) may overlap Rule 60(a) to the extent it allows for corrections of judicial clerical errors or those of oversight or omission, to say that Rule 60(b)(1) is the exclusive remedy for such mistakes would leave Rule 60(a) meaningless.
In deciding whether the bankruptcy judge intended to hold the entire state judgment debt with interest thereon non-dischargeable, we look for evidence of his contemporaneous intent to do so, as shown in the record.
Panama Processes, S.A.,
The only possible source of an inference that Judge Ginsberg intended to hold all pre-petition interest dischargeable is the part of the opinion’s concluding paragraph which we italicize:
This Court finds that the debtor is barred by the principle of collateral es-toppel from relitigating the issue of whether his debt is nondischargeable based on fiduciary fraud or defalcation. Consequently, the plaintiffs motion for summary judgment is granted because there are no genuine issues of material fact. See Fed.R.Civ.P. 56(c); Bankruptcy Rule 7056. The plaintiff’s claim against the debtor for $37,550 is nondis-chargeable under § 523(a)(4). The plaintiff is entitled to interest on that amount from the date the debtor filed his bankruptcy petition [n. 6] and may recover attorneys’ fees awarded in paragraph 7 of the state court’s order. [n. 7]
Mr. Levinson would have us believe that by mentioning the amount of $37,550, the post-petition interest thereon, and the attorneys’ fees included in the judgment-debt, Judge Ginsberg intended to hold those elements not mentioned — the interest included in the state court judgment, interest on the judgment from the date of entry to the date of the petition, and post-petition interest on the parts of the state court judgment other than the $37,550 — dis-chargeable, even though he stated no reason for so holding. We conclude that a fair reading of his opinion can support no inferencе other than the judge’s contemporaneous intention to hold the entire state judgment, with interest, nondischargeable.
The record indicates the reason for particular mention of attorneys’ fees and post-petition interest; thus, such mention does not support an inference of an intent to hold dischargeable other elements of the debt not mentioned. There was a dispute, renewеd on appeal, over whether the attorney’s fees contained in the state judgment were dischargeable, and Judge Ginsberg was resolving the issue. See
In re Levinson,
All that remains from which to infer an intent to discharge pre-petition interest is the specific reference that “[t]he plaintiff’s claim against the debtor for $37,550 is non-dischargeable under § 532(a)(4)” and that post-petition interest was awarded “on that amount.” The rest of the opinion, however, makes it clеar that Judge Ginsberg intended the whole debt represented by the Agreed Order to be nondischargeable.
The opinion’s first paragraph states that the “plaintiff claims that
the debt
owed her, which is
embodied in an agreed state court order,
is nondischargeable” (emphasis added). The opinion contains the entire text of the Agreed Order, which specifically includes the $14,550.00 pre-judgment interest.
This interpretation accords with the view of the bankruptcy court judgment taken by both courts which affirmed it. The district court stated that the agreemеnt between Mr. Levinson and Ms. Klingman “resulted in a consent judgment pursuant to which Levinson was to refund the $37,550 plus interest and pay $10,000 in attorneys’ fees to Klingman” and that “Judge Ginsberg ruled that the
judgement-debt
could not be discharged in bankruptcy.”
Klingman,
And, while we primarily look for objective evidence in the record for evidence of intent, we need not ignore explanations given at the time of correction by the judge who rendered the original judgment. In granting Ms. Klingman’s motion, Judge Ginsberg said
[w]hile the decision does not appear to [hold pre-petition interest nondischargeable] in haec verba, it is impossible to imply from the decision that such pre-pe-tition interest was discharged. The law is clearly contrary, and the Court intended to so hold by deciding [sic] Bruning v. United States,376 U.S. 358 [84 S.Ct. 906 ].... In re Oxford Investment Company, 246 Fed.Supp. 651 also cit[ed] in the March 18, 1986, decision is to the same effect. Reference to Bruning and Oxford make the intention of the Court in his March 18, 1986, decision clear.
Our affirmance of the 1986 bаnkruptcy court judgment does not bar relief under Rule 60(a). The rule allows for amendments “at any time.” So long as the court truly is correcting an error which falls within the scope of the rule, and so “long as the appellate court has not expressly or implicitly ruled on the issue, the district court has not transgressed any jurisdictional boundaries by amending after an appeal has been taken.”
Panama Processes, S.A.,
The district court’s judgment, affirming the bankruptcy court’s amended judgment, which now holds nondischargeable the entire state court judgment of April 11, 1975 (including the $14,550 interest), and which holds non-dischargeable statutory interest accruing under Ill.Rev.Stat. ch. 110, II2-1303 (1982), as amended, from April 11,1975 through the date of satisfaction of the state judgment, is Affirmed.
Notes
. Bankruptcy Rule 9024 makes Rule 60 applicable, with exceptions not relevant here, to bankruptcy proceeding. Rule 60(b)(6) allows a court, "on motion and upоn such terms as are just,” to "relieve a party or a party’s legal representative from a final judgment” for “any ... reason justifying relief from the operation of the judgment,” if the motion is made within a reasonable time.
. 11 U.S.C § 105(a) provides in part that the bankruptcy court “may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the bankruptcy code].”
. A reviewing court can affirm a judgment on any ground, if the record discloses a fair basis for doing so.
Ashland Oil, Inc. v. Arnett,
.Rule 60(a) reads in full:
Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the cоurt orders. ■ During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate *1361 court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
. Mr. Levinson does not seriously contest this conсlusion in his brief. In fact, in arguing that this case involves a "mistake” which can only be remedied by Rule 60(b)(1), he argues at some length that "the Bankruptcy Court itself recognized that it 'accidentally or unintentionally’ made an ‘error’ in its judgment because it left out the $14,550.00 in prepetition interest and failed to provide for interest from April 11, 1975 to April 22, 1982." (Appellant’s Brief at 19.)
. Post-judgment interest is available in Illinois as a matter of course. Ill.Rev.Stat. ch. 110, ¶ 2-1303 (1982), as amended.
. See also
U.S. v. Mansion House Center North Redevelopment Co.,