Mgic Indemnity Corporation v. Lawrence I. Weisman, Thomas P. Dunn, L.N. Nevels, Jr., and Henry K.F. Kersting

MGIC Indemnity Corporation (MGIC), a New York corporation, appeals the dismissal for failure to state a claim upon which relief can be granted of its suit against Lawrence I. Weisman, a citizen and resident of Maryland, and against Thomas P. Dunn, L.N. Nevels, Jr., and Henry K.F. Kersting, citizens and residents of Hawaii. MGIC also appeals the award of attorneys’ fees against it. We affirm the dismissal and the award of fees. We remand for a new hearing on the fees.

The Timeliness of MGIC’s Appeal. The clerk of the district court originally entered judgment dismissing MGIC’s amended complaint on November 29, 1984. This judgment contained a clerical error. The clerk corrected the error, whited out the November 29 date, and entered the date of judgment on the docket sheet as December 4, 1984.

If November 29, 1984 is the true date, MGIC was untimely in filing its appeal. Its counsel admittedly had notice of a memorandum from the clerk with November 29, 1984 indicated as the date of judgment. As the record now stands, however, December 4, 1984 is the correct date. In the circumstances of this case, we think it would be harsh, overtechnical, and contrary to substantive justice to…