Bendix Corp. v. Norberg

• Decision Date: 02 August 1979
• Docket Number: No. 77-188-M,77-188-M
• Citation: 404 A.2d 505,122 R.I. 155
• Parties: The BENDIX CORPORATION et al. v. John H. NORBERG, Tax Administrator. P.
• Court: Rhode Island Supreme Court

Page 505

404 A.2d 505

122 R.I. 155

The BENDIX CORPORATION et al. v. John H. NORBERG, Tax Administrator.

No. 77-188-M.P.

Supreme Court of Rhode Island.

Aug. 2, 1979.

[122 R.I. 160] Hinckley, Allen, Salisbury & Parsons, H. Peter Olsen, John B. Rosenquest III, Howard E. Walker, Providence, for plaintiffs-respondents.

Dennis J. Roberts II, Atty. Gen., Allen P. Rubine, Asst. Atty. Gen., Perry Shatkin, Chief Legal Officer (Taxation), Providence, for defendant-petitioner.

OPINION

JOSLIN, Justice.

This is a petition for a writ of certiorari in a tax case. In June 1976, a judgment was entered in the Superior Court reversing a decision of the tax administrator and ordering him to refund taxes assessed by the administrator against and paid by the taxpayers. Instead of seeking review of that judgment by filing a petition for a statutory writ of certiorari pursuant to G.L. 1956 (1977 Reenactment) § 42-35-16, ¹ the administrator filed a motion for relief from judgment under Super.R.Civ.P. 60(b)(6). ² He asked that the case be reopened and remanded to the tax division for further consideration of the correctness of the tax in light of G.L. 1956 (1970 Reenactment) § 44-11-15, ³ that directs that the equities be balanced in allocating income to determine the proper tax, and so that justice might be accomplished. That section had not been considered at the original hearing before the tax administrator or at the Superior Court trial.

The trial justice reserved decision on that motion and in May 1977, in a written decision, denied it. Within 20 days thereafter, the administrator brought "his petition for a writ of certiorari to this Honorable Court pursuant to section 42-35-16," ⁴ alleging that both the June 1976 judgment ordering the refund and the May 1977 denial of the Rule 60(b)(6) motion were erroneous, and praying that both be corrected. ⁵ We ordered the writ to issue and directed the parties to argue the question of the timeliness of the petition.

At the outset is the procedural question of whether in these circumstances a petition for certiorari, be it for the statutory writ under § 42-35-16 or for the common-law writ, is the appropriate vehicle for obtaining review of the errors charged by the administrator. Even were we to resolve that issue in the administrator's favor, however, he could not prevail in this proceeding.

The language of Super.R.Civ.P. 60(b)(6) (the "other reason" clause) does vest the Superior Court with broad power to vacate judgments whenever that action is appropriate to accomplish justice. The discretion granted therein, however, is not without limitations and the clause is not intended to constitute a catchall. Professor Kent suggests that the "circumstances must be extraordinary to justify relief." 1 Kent, R.I.Civ.Prac. § 60.08 at 456 (1969). And in Greco v. Safeco Insurance Co. of America, 107 R.I. 195, 198, 266 A.2d 50, 52 (1970), we said that:

"We are persuaded, then, that the 'other reason' clause should not be applied unless there has been a showing by appropriate evidence of circumstances that would establish a uniqueness that puts the case outside of the normal and usual circumstances accompanying failures to comply with the rules." Accord, Vitale v. Elliott, R.I., 387 A.2d 1379, 1382 (1978); Stevens v. Gulf Oil Corp., 108 R.I. 209, 212-13, 274 A.2d 163, 165 (1971).

In this case the administrator is claiming, in essence, that, either through his own or counsel's inadvertence, he neither considered the applicability of § 44-11-15 when the case was originally heard before him nor brought it to the attention of the trial justice when the case was being reviewed in the Superior Court. Application for relief from that kind of mistake seems more appropriate under the "mistake, inadvertence, surprise, or excusable neglect" category of Rule 60(b)(1), than it does under Rule 60(b)(6). Action taken at trial in ignorance of the law, however, generally has not been regarded either as "excusable neglect" under Fed.R.Civ.P. 60(b)(1), 7 Moore, Federal Practice P 60.22(2) at 252-54 (2d ed 1971), or as a basis for relief under Fed.R.Civ.P. 60(b)(6). Id. P 60.27(2) at 370-71. In applying this principle courts have refused to grant relief under Rule 60(b) when a party or his counsel, after trial, discovers applicable law that he did not perceive or raise at trial. E. g., United States v. Erdoss, 440 F.2d 1221, 1223 (2d Cir. 1971) (failure to oppose default judgment because of error of law); Benton v. Vinson, Elkins, Weems & Searls, 255 F.2d 299, 300-01 (2d Cir.), Cert. denied, 358 U.S. 885, 79 S.Ct. 123, 3 L.Ed.2d 113 (1958) (tardy discovery of statute of limitations); Baker v. Southern Pacific Transportation Co., 22 F.R.Serv. 1251, 1252-53 (D.Or.1976) (failure to raise compulsory counterclaim); Torockio v. Chamberlain Mfg. Co., 56 F.R.D. 82, 85-87 (W.D.Pa.1972) (failure to file requisite notice to sue); Schattman v. Texas Employment Commission, 330 F.Supp. 328, 330 (W.D.Tex.1971), Rev'd on other grounds, 459 F.2d 32 (5th Cir. 1972), Cert. denied, 409 U.S. 1107, 93 S.Ct. 901, 34 L.Ed.2d 688 Rehearing denied, 410 U.S. 959, 93 S.Ct. 1414, 35 L.Ed.2d 695 (1973) (failure to raise a statutory exclusion); Weiler v. United States, 191 F.Supp. 601 (M.D.Pa.1961); United R. R. Operating Crafts v. New York, N. H. & H. R., 15 F.R.D. 365, 366 (S.D.N.Y.1953) (failure to raise constitutional issue at trial).

In Weiler the fact situation was substantially similar to that in this case. The claim was for a federal tax refund and the taxpayer was awarded judgment for the recovery of taxes illegally collected. The government then moved to amend the judgment to reduce the amount awarded, arguing for the first time that certain erroneously made refunds operated to reduce the amount in controversy. The District Court denied relief, holding that Fed.R.Civ.P. 60(b) does not provide an avenue for relief from judgment where the only justification for that relief is the litigant's failure to argue a legal theory or to interpose an arguably applicable defense.

We are unable to say that the...