Town of Hopkinton v. Keiser, 78-161-A

• Court: Rhode Island Supreme Court
• Writing for the Court: DORIS
• Citation: Town of Hopkinton v. Keiser, 409 A.2d 1220, 122 R.I. 524 (R.I. 1980)
• Decision Date: 10 January 1980
• Docket Number: No. 78-161-A,78-161-A
• Parties: TOWN OF HOPKINTON v. Clayton J. KEISER. ppeal.

Page 1220

409 A.2d 1220

122 R.I. 524

TOWN OF HOPKINTON v. Clayton J. KEISER.

No. 78-161-Appeal.

Supreme Court of Rhode Island.

Jan. 10, 1980.

[122 R.I. 529] Frank J. Williams, Town Sol., Hopkinton, Dean N. Temkin, Sp. Counsel, Providence, for plaintiff.

Clayton J. Keiser, pro se.

OPINION

DORIS, Justice.

This is a civil action to abate a public nuisance. The defendant, Clayton J. Keiser (Keiser), is appealing from a denial of a motion for relief from an order pursuant to Super.R.Civ.P. 60(b)(1). The order from which Keiser is appealing requires him to comply with two subsequent orders of the court regarding removal of debris and derelict motor vehicles from his property or to permit the plaintiff, town of Hopkinton (Hopkinton), to do so. Pending disposition of this appeal, a stay of the order was granted by this court.

The record indicates that on March 16, 1976, plaintiff filed a complaint against defendant to enjoin Keiser from maintaining a public nuisance on two lots, numbers 44 and 46, in Hopkinton. By agreement of parties, the court entered an order on April 6, 1976, specifying that Keiser would:

1) remove debris from the foundation on lot 44,

2) place a temporary floor on the foundation on lot 46,

3) remove all unregistered motor vehicles except one on each lot,

4) remove all debris from lot 46, and

5) remove the mill structure and renovate the blacksmith shop on lot 46.

On May 24, 1976, Hopkinton moved to adjudge Keiser in contempt. The court found there was insufficient evidence upon which to make a ruling and denied the town's motion.

Subsequently, on May 27, 1977, Hopkinton again moved to adjudge Keiser in contempt. A stipulation was entered on October 4, 1977, whereby Keiser agreed to:

1) allow Hopkinton to remove the debris from lot 44,

2) break up the foundation on lot 44 so it could be removed by Hopkinton,

3) put a temporary floor on the foundation on lot 44, and

4) remove all automobile and truck chassis from lots 44 and 46 except for one red van body and one unregistered motor vehicle on each lot.

The latest date by which all this work was to be completed was November 4, 1977.

On November 21, 1977, the court found Keiser in contempt of all orders of the court and indicated he could purge himself by completing items 2, 3, and 4 of the October 4 order.

On December 15, 1977, the court found Keiser had not purged himself of contempt and granted Hopkinton permission to remove all debris, excluding motor vehicles, from lots 44 and 46.

On January 9, February 16, and March 7, 1978, the court held hearings regarding Keiser's motor vehicles. Ultimately Keiser was found in contempt for maintaining unregistered motor vehicles on lots 44 and 46. He was allowed to purge himself of contempt by removing the motor vehicles by March 13, 1978.

On March 21, 1978, Keiser was found in contempt for failing to remove the motor vehicles as set forth in the order of October 4, 1977, and Hopkinton was given authority to remove the motor vehicles.

On March 28, 1978, Keiser filed a motion for relief from the order alleging that the November 21, 1977 order mistakenly used the term "orders" as opposed to "order" with respect to allowing plaintiff to perform his obligations, and that the December 15, 1977 order was not confined to the findings of the November 4, 1977 decision. This motion was denied on April 21, 1978.

On May 1, 1978, Keiser appealed to this court.

On May 4, 1978, this court issued a stay pending disposition of Keiser's appeal.

The defendant is appealing from the denial of his motion for relief filed pursuant to Super.R.Civ.P. 60(b)(1). He raises two issues.

First, he contends that the November 21, 1977 order was written incorrectly. He contends that this order should have only referred to the October 4, 1977 order and not to both the October 4, 1977 and April 6, 1976 orders.

Second, defendant contends that the December 15, 1977 order was incorrect. Again, Keiser contends that the December 15, 1977 order should have been limited to the October 4, 1977 order.

Both of these issues must be examined pursuant to Super.R.Civ.P. 60(b). The applicable provisions of this rule state:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect * * *."

This provision is applicable even when the mistake alleged is one made by a judge. 1 Kent, R.I.Civ.Prac., § 60.3 at 452 (1969). However,

" * * * judicial error of the trial judge, as contrasted with mechanical error, cannot be corrected under this rule, for it would constitute use of the rule as a substitute for an appeal or for a motion for a new trial, which in Rhode Island may not be addressed to the trial court on account of its own error."

In addition, it is necessary to examine these issues pursuant...