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Supreme Court
No. 2001-210-Appeal.
(PC 99-1505)
Joyce Labossiere                                                                             :
v.                                                                                           :
Jason Berstein, M.D.                                                                         :
Present:  Williams, C.J., Lederberg, Flanders, and Goldberg, JJ.
O P I N I O N
PER CURIAM.   This case came before the Supreme Court on September 25,
2002, pursuant to an order directing the parties to appear and show cause why the issues
raised in this appeal should not be summarily decided. After hearing arguments of
counsel and reviewing the memoranda submitted by the parties, we are satisfied that
cause has not been shown.  Accordingly, we shall decide the appeal at this time.
The plaintiff, Joyce Labossiere (Labossiere or plaintiff), appeals from a Superior
Court order denying her motion to vacate a default judgment in favor of defendant, Dr.
Jason Berstein (Berstein or defendant). Labossiere filed a complaint against Berstein on
March 23, 1999, alleging medical negligence during the delivery of her child and related
post-operative care. During the course of pretrial discovery, plaintiff sought alternative
representation  from  her  attorney  of  record,  Gregory  J.  Acciardo                      (Acciardo),  and
requested  that  all  further  proceedings  be  handled  by  attorney  Peter  P.  D’Amico
(D’Amico).
The defendant was given notice of the change of attorney by Acciardo in a letter
dated July 12, 2000, which requested that all future pleadings and correspondence be
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directed to D’Amico.   However, no withdrawal of appearance was entered by Acciardo,
and no entry of appearance was filed by D’Amico. Although aware of Labossiere’s
change  of  counsel,  defendant  continued  to  direct  all  correspondence  exclusively  to
Labossiere’s original attorney, Acciardo.   According to defendant’s counsel, Acciardo
received notice in July 2000, informing him that no documents would be forwarded to
D’Amico until D’Amico formally entered an appearance in the case.
As pretrial discovery proceeded without notice to plaintiff’s new attorney, a
discovery dispute arose.   Berstein filed a motion to compel a more responsive answer to
an interrogatory, seeking information on Labossiere’s medical experts. The motion was
granted; however, it incorrectly referenced interrogatory question No. 24, rather than No.
18.  Labossiere  was  ordered  to  provide  a  more  responsive  answer  to  interrogatory
question No. 24 on or before September 19, 2000.   Although the case file was forwarded
to  D’Amico  sometime  in  September,  he  never  received  notice  of  the  motion  or
subsequent order.  Consequently, as might be expected, D’Amico made no appearance or
response in the case.   All pleadings were directed exclusively to Acciardo, who failed to
respond or take any action to protect his client’s interests, notwithstanding his erroneous
belief that he was no longer her attorney.
On September 13, 2000, Berstein filed a motion to dismiss the action because of
Labossiere’s  failure  to  file  a  more  responsive  answer  to  interrogatory  No.           24.  A
conditional order of dismissal was granted on October 13, 2000, providing that plaintiff
had until October 31, 2000, to provide a more responsive answer. Upon receiving no
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further response from Labossiere, final judgment was entered in Berstein’s favor on
November 27, 2000.1
Upon  initial  review  of  Labossiere’s  file  on  February                                    12,       2001,  D’Amico
discovered that final judgment had entered. On February 16, 2001, D’Amico made a
belated entry of appearance as counsel and moved to vacate the judgment pursuant to
Rule 60(b) of the Superior Court Rules of Civil Procedure.   After a hearing on April 12,
2001, plaintiff’s motion to vacate was denied.  Consequently, this appeal ensued.
In support of his motion to vacate, D’Amico argued to the trial justice that
plaintiff’s  unresponsiveness,  which  resulted  in  the  harsh  consequence  of  a  default
judgment, was the result of excusable neglect.   He relied on Rule 60(b)(1) that affords
relief from a final judgment for “mistake, inadvertence, surprise, or excusable neglect.”
Principally, D’Amico argued that Acciardo had relied on the letter sent to defendant’s
counsel  informing  him  of  his  withdrawal  and  requesting  that  future  documents  be
forwarded to D’Amico as an effective withdrawal from the case.   D’Amico argued that
such reliance, coupled with his failure to make a formal entry of appearance with the
court and the decision of defense counsel declining to forward pending documents to
D’Amico, was ample grounds to vacate the default judgment on the ground of excusable
neglect. Additionally, plaintiff’s counsel argued that Rule 60(b)(4), which affords relief
when  “the judgment is void,” and Rule  60(b)(6), providing for relief for  “any other
reason,” were applicable.   Further, D’Amico argued that the default judgment was void
because of the inconsistent and erroneous reference to interrogatory No. 24, a question
that  previously  had  been  adequately  answered  and  was  not,  in  fact,  the              “expert
1 The defendant’s motion for entry of final judgment made reference to the interrogatory
question at issue as the “expert interrogatory,” rather than No. 24.
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interrogatory” question later referenced.   Counsel for plaintiff argued that confusion was
caused by this error and that the more complete answer sought had been adequately
answered.   D’Amico questioned the equity of denying his client her day in court under
circumstances of mutual confusion, as might be remedied under Rule 60(b)(6) for “any
other reason justifying relief from the operation of the judgment.”
The  motion  justice  disagreed  with  plaintiff’s  arguments,  noting  that  defense
counsel was not obligated to forward documents to any attorney other than counsel of
record,  and  that  any  reliance  on  Acciardo’s  representations  would  have  been  at
defendant’s own peril.
In the appeal now before us, plaintiff argues that the hearing justice abused her
discretion in denying plaintiff’s motion to vacate. She reasserts her original Rule 60(b)
grounds for relief, and underscores the manifest injustice that would result if the final
default judgment remains intact. The defendant asserts that excusable neglect was not
shown; he argues that Acciardo was well aware of defense counsel’s plans to continue
forwarding  documents  exclusively  to  his  office  until  D’Amico  filed  an  entry  of
appearance.  Additionally, defendant argues that either Acciardo or D’Amico should have
had  the  professional  wherewithal  to  appear  on  plaintiff’s  behalf  and  stave  off  an
inevitable entry of final judgment. The defendant asserts that the initial order for a more
responsive answer on medical experts, despite the erroneous number reference, was
warranted.   Regardless, defendant asserts that plaintiff failed to comply with the Superior
Court’s conditional order of dismissal.   Lastly, defendant argues that plaintiff’s assertion
that the judgment was void is without merit because any attack on the underlying
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judgment is handled by a direct appeal, not by a motion to vacate pursuant to Rule
60(b)(4).
It is well settled that motions to vacate a judgment are left to the sound discretion
of the motion justice and will not be disturbed on appeal unless an abuse of discretion or
error of law is shown. See, e.g., Bailey v. Algonquin Gas Transmission Co., 788 A.2d
478, 482 (R.I. 2002); Webster v. Perrotta, 774 A.2d 68, 75 (R.I. 2001). In this case,
plaintiff maintains that her attorneys’ neglect was excusable and that she is a victim both
of miscommunication over an interrogatory and the transition between the retention of
one lawyer and the termination of another.   Although this Court has weighed the equities
in the victimized client’s favor under similar circumstances and granted relief to a
defaulted plaintiff, Palazzolo v. Coastal Resources Management Council, 657 A.2d 1050,
1052 (R.I. 1995), it is with great infrequency that relief from a final default judgment is
obtained.   We consistently have upheld the Superior Court in cases in which unexplained
neglect fails to excuse a party’s noncompliance with procedural requirements.   Iddings v.
McBurney,  657  A.2d  550  (R.I.  1995).  Relief  from  a  default  judgment  caused  by
counsel’s failure to comply with a conditional order of dismissal will be granted only if it
first  is  established  that  the  attorney’s  neglect  was  coupled  with  some  significant
extenuating circumstances.   King v. Brown, 103 R.I. 154, 235 A.2d 874 (1967).   This
case falls light on excuse and heavy on neglect.   The record in this case fails to disclose
any significant extenuating circumstances.   Unfortunately, plaintiff fails to point to any
occurrence sufficient to warrant vacating the Superior Court order of final judgment.
The case of Palazzolo is distinguishable from the appeal at hand.   In that case, the
plaintiff’s complaint against the defendant was dismissed after the plaintiff’s attorney
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failed to appear for a series of court hearings, most notably the hearing on the defendant’s
motion to dismiss. Palazzolo, 657 A.2d at 1052. The record disclosed that Palazzolo
worked tirelessly to terminate counsel, actively seeking transfer of his case files to his
new counsel, whom he had retained well before the dismissal motion was granted.   Id. at
1051-52.   His efforts were severely hindered by previous counsel. This Court determined
the circumstances unusual, stating that it seemed “unfair to impute to this plaintiff the
continuing dereliction of this attorney.” Id. at                                               1052. We declined to invoke agency
principles, finding that an agency relationship no longer existed between plaintiff and
prior counsel.   Although similarities are noted in the present appeal, Labossiere and
D’Amico were not actively engaged in this litigation either through efforts to respond to
the pressing discovery or to seek a continuance.   Rather, a general lack of responsiveness
resounded  on  plaintiff’s  side.  The  neglect  was,  on  its  face,  mere  neglect.  The
noncompliance by counsel was neither excusable, nor did it rise to such a level of
reprehension to warrant intervention by this Court in the interest of justice.   Although in
both cases the opposing side took obvious advantage of plaintiff’s plight, knowing full
well the likelihood that no one would make an appearance to salvage the case, in
Palazzolo this strategy bordered on trickery.   In this case, defense counsel, although
opportunistic, was entitled to rely upon the provisions of the Superior Court Rules of
Practice2 in declaring that no pleadings would be sent to D’Amico unless he formally
entered an appearance.   The defendant was not required to rely on the communication of
2  Rule                                                                                        1.5(a)  of  the  Superior  Court  Rules  of Practice  provides  that   “[n]o  attorney
appearing in any case will be allowed to withdraw without the consent of the court.
Except where another attorney enters an appearance at the time of such withdrawal, all
withdrawals shall be upon motion with reasonable notice to the party represented.”
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Acciardo requesting that documents be forwarded to D’Amico without a corresponding
entry of appearance by D’Amico.  Parrillo v. Chalk, 681 A.2d 916, 920-21 (R.I. 1996).
Based on the standards of Rule 60(b)(1), plaintiff’s counsel has failed to show
sufficient extenuating circumstance to warrant relief.  This is a case of dereliction of duty
by plaintiff’s original counsel and her subsequent attorney.                                      “Excusable neglect that
would qualify for relief from judgment is generally that course of conduct which a
reasonably prudent person would take under similar circumstances.”   Pari v. Pari, 558
A.2d  632,  635  (R.I.  1989). Counsels’ actions do not satisfy this reasonably prudent
person  standard.    Each  attorney  neglected  to  file  proper  notices  with  the  court  as
governed by Rule 1.5 of the Superior Court Rules of Practice.   Having received written
notification that defense counsel would refrain from forwarding documents until a proper
withdrawal was accomplished, Acciardo ignored this notice.   As hearing dates came and
went, and a myriad of notices came through Acciardo’s office declaring that final
judgment was imminent, Acciardo owed Labossiere, at the very least, an appearance on
her behalf or a call to D’Amico indicating the status and urgency of the case.   As a
servant first and foremost to the client, Acciardo was not relieved of all obligation upon
initial termination of his services; he owed his client a duty to properly terminate his
representation on her behalf.   His duties did not end with a simple letter to defense
counsel.   As misfortune would have it, Labossiere consequently retained D’Amico, who
also was neglectful by failing to file an appearance or keep apprised of the case status.
Further, we are satisfied that the hearing justice did not abuse her discretion in
denying plaintiff’s motion to vacate on the basis of “any other reason justifying relief”
found in Rule 60(b)(6).   If inexcusable neglect precludes relief under Rule 60(b)(1), then
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the same inexcusable neglect cannot constitute the “other” grounds under Rule 60(b)(6)
unless “other extraordinary and unusual factors also are present.”   Bailey, 788 A.2d at
483.  The  record  discloses  only  unreasonable  neglect  and  mistake,  but  nothing
extraordinary.
Finally, the hearing justice did not abuse her discretion in denying the plaintiff’s
motion to vacate on the grounds of a void judgment.   The plaintiff’s argument centers on
the correctness of the underlying judgment.   However, “‘[a] judgment is not void merely
because it is erroneous.’” Allstate Insurance Co. v. Lombardi, 773 A.2d 864, 869 (R.I.
2001)  (quoting  Jackson  v.  Medical  Coaches,                                             734  A.2d  502,  506  (R.I.  1999)).  An
erroneous judgment is subject only to direct attack, as the defendant correctly asserted.
When an error of law has been committed by a hearing justice, relief is available under
Rule  60(b)(4) only when the court entering the judgment lacked jurisdiction, or the
court’s actions amounted to “a plain usurpation of power constituting a violation of due
process.”   Allstate Insurance Co., 773 A.2d at 869 (quoting Hoult v. Hoult, 57 F.3d 1, 6
(1st Cir. 1995)).  The plaintiff has asserted neither argument.
Accordingly, for the reasons stated herein, we deny and dismiss the plaintiff’s
appeal and affirm the order of the Superior Court.   The case is remanded to the Superior
Court.
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COVER SHEET
TITLE OF CASE:   Joyce Labossiere v. Jason Berstein, M.D.
DOCKET NO:                                                          01-210-A.
COURT:                                                              Supreme
                                                                    DATE OPINION FILED:   November 12, 2002
Appeal from
SOURCE OF APPEAL:    Superior                                       County: Providence
JUDGE FROM OTHER COURT:                                             Hurst, J.
JUSTICES:  Williams, C.J., Lederberg, Flanders, and Goldberg, JJ.
Not Participating
Dissenting
WRITTEN BY:      Per Curiam
ATTORNEYS:                                                          Peter P. D’Amico
For Plaintiff
ATTORNEYS:                                                          Paul F. Galamaga
For Defendant
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