THOMAS B. WHEATLEY & others vs. PLANNING BOARD OF HINGHAM & others.

The defendants-appellants, the owners of a proposed subdivision, appeal from a trial judge's denial of their motion to amend the judgment that was entered in conformity with our rescript in Wheatley v. Planning Bd. of Hingham, 7 Mass. App. Ct. 435, 451 (1979). The motion was filed pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 828

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(1974). It was based upon an assertion that our opinion contemplated further consideration by the planning board of the previously submitted plan rather than submission of a new plan and that to that extent our rescript was inconsistent with the principles expressed in our opinion. Compare McCarthy v. Daggett, 351 Mass. 337, 338-339 (1966). This court, of course, could have directed that the case be remanded to the planning board for further consideration of the already submitted plan. Smith v. Building Commr. of Brookline, 367 Mass. 765, 772 (1975). But instead the rescript stated that "[t]he judgment is reversed, and a new judgment is to enter annulling the board's approval of the plan." Wheatley, 7 Mass. App. Ct. at 451. Contrast Pinecrest, Inc. v. Planning Bd. of Billerica, 350 Mass. 336, 339 (1966); Canter v. Planning Bd. of Westborough, 4 Mass. App. Ct. 306, 310 (1976). The plaintiffs did not file a petition for rehearing, Mass.R.A.P. 27, 365 Mass. 874 (1974), or take any other action to have this court amend or modify the rescript. The motion was addressed exclusively to issues which had been considered by this court in the first appeal, and the judge was bound to enter a final judgment that conformed to our rescript. Carchidi v. Kalayjian, 264 Mass. 230, 232 (1928). Carilli v. Hersey, 303 Mass. 82, 84 (1939), and cases cited. Mass.R.A.P. 28, 365 Mass. 877 (1974), as amended, 378 Mass. 925 (1979). Compare Standard Oil Co. of California v. United States, 429 U.S. 17, 18 (1976); King v. Allen, 9 Mass. App. Ct. 821, 822 (1980).

Order affirmed.