June 20, 2018



                                                                         Supreme Court

                                                                         No. 2017-156-Appeal.
                                                                         (NC 11-535)


                 William C. McLaughlin              :

                           v.                       :

          Zoning Board of Review of the Town of     :
                     Tiverton et al.




                      NOTICE: This opinion is subject to formal revision before publication in
                      the Rhode Island Reporter. Readers are requested to notify the Opinion
                      Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
                      Rhode Island 02903, at Tel. 222-3258 of any typographical or other
                      formal errors in order that corrections may be made before the opinion is
                      published.
                                                                Supreme Court

                                                                No. 2017-156-Appeal.
                                                                (NC 11-535)
                                                                (dissent begins on page 20)

         William C. McLaughlin                :

                     v.                       :

 Zoning Board of Review of the Town of        :
            Tiverton et al.


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                         OPINION

       Justice Flaherty, for the Court. When, close to a decade ago, William C. McLaughlin

built a garage on his property in Tiverton, he did so in violation of the setback requirements set

forth in Tiverton’s Zoning Ordinance. As the record indicates, and as is not in dispute, a portion

of McLaughlin’s garage was within seven feet of his property boundary, twenty-three feet short

of the side yard setback requirement of thirty feet. Those twenty-three feet have triggered a

yearslong process that McLaughlin now seeks to partially unwind.

       McLaughlin appeals from a September 2, 2016 order of the Superior Court denying his

motion to vacate an earlier court order, entered on April 7, 2014, that compelled him to remove

the garage from his property. As it stands now, over eleven years after McLaughlin first set out

to build a garage, the Town of Tiverton has had the garage removed, and it holds a $69,300 lien

on McLaughlin’s property arising from contempt fines that were imposed by a trial justice in




                                               -1-
August 2015. 1 In this appeal, we are tasked with resolving the following issues: whether to

vacate the April 7, 2014 order under Rule 60(b)(4) of the Superior Court Rules of Civil

Procedure; whether to vacate it under Rule 60(b)(6); and whether McLaughlin is barred by the

doctrine of res judicata from pursuing either of those two avenues.

       For the reasons set forth in this opinion, we reverse the Superior Court order denying

McLaughlin’s motion to vacate the April 7, 2014 order.

                                                I

                                       Facts and Travel

       The relevant facts of this case are not in dispute, but they tell a rather complicated tale.

In 2007, McLaughlin applied for and received a permit from the municipal Building Inspector to

build a 40-by-60 foot garage on his property. As he would later admit to the Tiverton Zoning

Board of Review and in a letter seeking a zoning variance, that permit was based on an erroneous

site plan that McLaughlin had provided to the town. That plan, which McLaughlin himself

prepared, inaccurately described the boundaries of his property.         Whether this error was

inadvertent or intentional is unknown, but it is clear that McLaughlin’s garage was built well

short of the side yard setback required by the Tiverton Zoning Ordinance.

                                                A

                                 McLaughlin’s Zoning Appeal

       In 2010, spurred to action by a notice of violation issued by the zoning official,

McLaughlin applied for a zoning variance from the Zoning Board of Review. 2 After a number




1
  At oral argument, counsel for the town indicated that he was unaware of any present intention
to place a lien on McLaughlin’s property for the cost of removing the garage.
2
   It appears from our review of the record that the notice of violation was prompted,
unsurprisingly, by one or more complaints from an abutting neighbor. In addition to skirting the
                                               -2-
of continuances, the zoning board held a hearing on McLaughlin’s variance request on

September 7, 2011. At that hearing, McLaughlin, who was represented by counsel, argued that

the zoning board should grant him a variance from the setback requirement because he had

exercised reasonable care in locating the area on which to build the garage. The financial

hardship associated with moving the garage, McLaughlin asseverated, justified relief from the

literal requirements of the ordinance.

       After hearing from McLaughlin and also after taking testimony from one of

McLaughlin’s abutting neighbors, the zoning board unanimously denied the variance application.

In a letter dated October 3, 2011, the zoning board explained, among other things, that not only

was McLaughlin’s garage in violation of the side yard setback requirement, but also that the

garage was in violation of the front yard setback requirement.

       Shortly after his variance request was denied, McLaughlin, now pro se, appealed to the

Superior Court for relief. But there, too, his appeal for zoning relief was unsuccessful. In an

October 4, 2013 bench decision, a justice of the Superior Court affirmed the zoning board’s

denial of McLaughlin’s variance request.         That justice concluded that the only hardship

McLaughlin faced was purely financial in nature, and the hearing justice held that such self-

created financial hardship was not a sufficient ground justifying a variance. McLaughlin, still

unsatisfied, then appealed that judgment to this Court. However, in January 2014, his appeal

was dismissed as procedurally improper. 3




setback requirements, McLaughlin also appears to have encroached onto that neighbor’s property
by clearing, filling, and grading the surrounding area.
3
  “It is well settled in this jurisdiction that there is no right of appeal to the Supreme Court from
decisions of the Superior Court with respect to zoning appeals.” Lupo v. Community Works
Rhode Island Inc., 57 A.3d 667, 667 (R.I. 2012) (mem.) (quoting Northern Trust Co. v. Zoning
Board of Review of Westerly, 899 A.2d 517, 519 (R.I. 2006) (mem.)). “The ‘proper procedure to
                                                -3-
       It is at this juncture that this seemingly run-of-the-mill zoning matter went astray. That is

so because on October 4, 2013, just after rendering his decision affirming the zoning board, the

hearing justice and counsel for the zoning board had engaged in the following colloquy:

              “[COUNSEL]:            Thank you, your Honor. Your Honor, I
              would also ask the Court to make part of the order that there be
              compliance with the Zoning Board’s decision. This is not an
              appeal from the Municipal Court, so it would be with this court to
              enter the order with respect to the applicable remedy as well.

              “THE COURT:           The only thing before me is the Zoning
              Board decision right now.

              “[COUNSEL]:             Okay. I have to do a separate motion.

              “THE COURT:          I would suggest a separate motion. I have
              every reason to believe that — I mean, that the decision of the
              Court upholding the Board’s decision, I assume that Mr.
              McLaughlin is going to comply or appeal, whatever. So I’ll await
              whatever request you want to formally make.

              “[COUNSEL]:             Thank you, your Honor.”

That colloquy, raising the specter of a forthcoming “separate motion,” was a foreshadowing of

things to come.

                                                B

                                     The Separate Motion

       On March 11, 2014, the same assistant town solicitor who represented the board in

defending McLaughlin’s zoning appeal filed a motion entitled “Motion for Order to Comply.”

That motion was filed in this case, captioned NC 11-535, the same case in which, as discussed

above, the hearing justice had affirmed the zoning board’s denial of the variance. In moving for

an order to comply, the zoning board asked the Superior Court to order McLaughlin to “either


review a judgment of the Superior Court on appeal from a decision of a zoning board is by writ
of certiorari.’” Id. (quoting Northern Trust Co., 899 A.2d at 519).

                                               -4-
move or remove the [garage] to comply with local zoning in accordance with the Decision of the

[zoning board], affirmed by this court[.]” As a penalty, the zoning board suggested “that if

[McLaughlin] does not effectuate such compliance by either moving or removing the structure

within ninety (90) days of this Order[,]” then he “shall be adjudged in contempt and subject to a

fine for each day thereafter that the [garage] remains out of compliance[.]”

       Furthermore, in its memorandum supporting the motion, the zoning board requested that

the Superior Court invoke its equitable powers under G.L. 1956 § 8-2-13 and order McLaughlin

to comply with the Tiverton Zoning Ordinance by moving or removing his garage. The matter

was scheduled for a hearing on April 7, 2014. Significantly, McLaughlin does not dispute that

he received notice of that hearing.

       However, McLaughlin did not appear on April 7. A brief hearing was presided over by

the same hearing justice who heard and denied McLaughlin’s zoning appeal. It went as follows:

               “[COUNSEL]:            Your Honor, this is a motion for, requesting
               motion to comply. This was a zoning case. The decision was
               appealed, the Zoning Board, in Superior Court. The Court upheld
               the decision of the Zoning Board. Defendant is pro se. He filed an
               appeal with the Supreme Court. That was dismissed as improper
               back in January, and there’s been no further filing. So at this time
               we’d ask for an order to move or remove the structure to comply
               with the zoning, and if that’s not done within 90 days, to order a
               daily fine. We left the fine to your discretion. We would request
               up to $500 a day for that fine if it’s not moved in the 90 days.

               “THE COURT:            Do you have an order prepared?

               “[COUNSEL]:             I do. Thank you, your Honor. We’ve left
               the blank for the dollar amount.

               “THE COURT:            $200 a day.

               “[COUNSEL]:            Thank you, your Honor.

               “THE COURT:            Motion’s granted.”



                                               -5-
And with that, the April 7 hearing concluded. An order entered, granting the zoning board’s

motion and setting a ninety-day clock for McLaughlin to comply with the setback requirements

of the Tiverton Zoning Ordinance.

       On the very next day, April 8, 2014, McLaughlin filed a motion of his own.               He

denominated his filing as a “Motion to Vacate Judgment/Reconsider[.]” However, a letter

accompanying that motion referred to his pleading as a “[m]otion to reconsider judgment * * *.”

A hearing on the motion was held on May 9, 2014.

       At the beginning of that hearing, the hearing justice sought to clarify what McLaughlin

was seeking in his motion. 4 After McLaughlin raised a host of grievances, many of which

related to his already-decided zoning appeal, the hearing justice told McLaughlin:

               “I know of no provision in the rules, assuming you’re filing a
               motion for reconsideration, I don’t know of any provision in the
               rules for a motion for reconsideration. I’m not prepared to change
               my mind, in any event. Your remedy, as you indicate, you expect
               to take advantage of is a petition for certiorari, review in the
               Supreme Court?”

McLaughlin replied, “Yes, sir.” 5

       After another back-and-forth with the hearing justice, McLaughlin then addressed what

appears to be the foremost reason that he wanted the hearing justice to reconsider his order of

April 7, 2014. According to McLaughlin, the notice he received appeared to inform him that the

hearing was to be held on April 17, a mix-up that, in his view, warranted the hearing justice




4
  Throughout the letter filed in support of his motion, McLaughlin asserted sporadic complaints
of unfair treatment and deceptive conduct.
5
  On July 22, 2014, McLaughlin did file a petition for a writ of certiorari in this Court; however,
his petition was denied on June 12, 2015.
                                               -6-
reconsidering the order. 6 Toward the conclusion of the hearing, the hearing justice finally

pinned down what McLaughlin’s core concern was: He needed more time to comply with the

April 7 order. Thus, McLaughlin assented to a partial remedy; the zoning board agreed to reset

the ninety-day timeline. Thereafter, on May 20, 2014, the hearing justice entered an order

affirming that McLaughlin would be required to move or remove his garage in compliance with

the Tiverton Zoning Ordinance. However, the order also gave him ninety days from the May 9,

2014 hearing to do so.

                                                C

                            The Removal of McLaughlin’s Garage

       Over the course of the next two years, the zoning board’s efforts to remove McLaughlin’s

garage plodded along. In October 2014, well after the ninety-day clock had struck midnight, the

zoning board moved to adjudge McLaughlin in contempt. In August 2015, after holding a

hearing on the zoning board’s contempt motion, a second justice of the Superior Court, whom

we shall refer to as the trial justice, found McLaughlin in contempt of the May 20, 2014 order.

As a result, the trial justice imposed fines totaling $69,300; $68,800 for McLaughlin’s failure to

comply with the court order and $500 for the zoning board’s legal fees accrued in pursuing the

motion. 7

       Yet McLaughlin remained recalcitrant, and, in October 2015, the zoning board filed a

motion to enforce, asking the Superior Court to allow the Town of Tiverton to remove the

garage. Unlike the zoning board’s earlier “Motion for Order to Comply[,]” which pointed to the



6
  This was apparently the result of a misreading on McLaughlin’s part. As the record makes
clear, the zoning board’s filing expressly stated that the hearing was to be held on April 7, 2014.
In any event, McLaughlin has conceded that he received notice of the hearing.
7
  Of note, at some point between when the zoning board filed its contempt motion and when the
trial justice granted it, counsel for the zoning board changed.
                                               -7-
Superior Court’s equity jurisdiction under § 8-2-13, this motion invoked G.L. 1956 §§ 45-24-

62(3) and (4). That statute vests the Superior Court with the jurisdiction to aid towns and cities

in their enforcement of their zoning ordinances. It provides, in pertinent part,

               “the superior court * * * shall, upon due proceedings in the name
               of the city or town, instituted by its city or town solicitor, have
               power to issue any extraordinary writ or to proceed according to
               the course of law or equity or both:
               “* * *
               “* * *
               “(3) To order the removal by the property owner of any building,
               structure, sign, or improvement existing in violation of any zoning
               ordinance enacted under the provisions of this chapter and to
               authorize some official of the city or town, in the default of the
               removal by the owner, to remove it at the expense of the owner;
               [and/or]
               “(4) To order the reimbursement for any work or materials done or
               furnished by or at the cost of the city or town[.]” Section 45-24-
               62.

       On November 18, 2015, the trial justice entered an order granting the zoning board’s

motion to enforce. The trial justice ordered McLaughlin to “immediately begin to bring [his

garage] into compliance with the Tiverton Zoning Ordinance,” giving him until February 7,

2016—“ninety (90) days from November 9, 2015”—to achieve full compliance. As the trial

justice ordered, if McLaughlin did not reach full compliance by that time, the Town of Tiverton

would be authorized to “enter [McLaughlin’s] property, remove the offending structure

therefrom, and charge the entire cost of removal to [McLaughlin], without any further action of

the [Superior] Court.”

       McLaughlin did not remove his garage in time. At February’s end in 2016, McLaughlin,

still pro se, filed suit in the United States District Court for the District of Rhode Island, seeking

a temporary restraining order to prevent the removal of his garage. That request was denied




                                                -8-
shortly thereafter.   On March 28, 2016, the Town of Tiverton removed the garage from

McLaughlin’s property.

         With his garage now dismantled, McLaughlin, at long last, obtained counsel. 8 It is worth

noting that, although the garage had been removed, the Town of Tiverton has placed a lien on

McLaughlin’s property for the $69,300 in fines imposed by the August 2015 contempt order.

                                                D

                                   The 2016 Motion to Vacate

         On May 25, 2016, McLaughlin filed a motion to vacate the April 7, 2014 order.

Significantly, that order served as the basis for all the subsequent court orders. McLaughlin

posited that the April 7, 2014 order should be vacated under Rules 60(b)(4) and 60(b)(6) of the

Superior Court Rules of Civil Procedure. He argued that, because the Superior Court lacked the

subject matter jurisdiction to order him to remove the garage, the order was void under Rule

60(b)(4). That argument rested on the fact that, pursuant to § 45-24-62, Tiverton had not filed a

separate action to obtain a removal order and thus the Superior Court did not have jurisdiction

when it acted. With respect to Rule 60(b)(6), McLaughlin averred that the lack of a separate

action brought by the town and the interests of justice justified relief from the operation of the

order.

         The zoning board opposed McLaughlin’s motion.          It argued that, not only did the

Superior Court have jurisdiction to issue the April 7, 2014 order, but also that McLaughlin was

barred from pursuing his motion to vacate by the doctrine of res judicata. As the zoning board




8
  McLaughlin’s first suit in federal court was dismissed without prejudice; after he obtained
counsel, it was refiled. In the refiled federal lawsuit—which, on representation of appellate
counsel, has been stayed pending resolution of this appeal—McLaughlin alleges myriad claims,
ranging from due process violations to abuse of process.
                                               -9-
observed, the May 2016 motion to vacate was not McLaughlin’s first attempt to obtain relief,

given his motion to reconsider/vacate on April 8, 2014.

       After hearing argument on McLaughlin’s motion, the trial justice issued a written

decision denying the motion in late August. The trial justice held that the doctrine of res

judicata barred McLaughlin’s motion to vacate. He concluded that McLaughlin’s April 8, 2014

motion to reconsider was, in effect, a motion to vacate and that any issues regarding the Superior

Court’s subject matter jurisdiction should have been raised at that time. 9 Although he decided

that the motion could be denied on that ground alone, the trial justice also opined that the

Superior Court did in fact possess subject matter jurisdiction to grant the “Motion for Order to

Comply”—thereby defeating McLaughlin’s argument that it was void under Rule 60(b)(4)—and

that McLaughlin failed to show a reason justifying relief under Rule 60(b)(6). 10 In sum, the trial

justice explained, “McLaughlin failed to prove that either the [April 7, 2014 order] was void or

that extraordinary circumstances existed to justify vacating [it] in the interest of justice.” An

order entered reflecting the trial justice’s decision denying McLaughlin’s motion to vacate on

September 2, 2016. It is from that order that McLaughlin appeals to this Court.

                                                II

                                           Discussion

       Before this Court, McLaughlin asserts three challenges to the 2016 order denying his

motion to vacate. As a threshold matter, he argues that the trial justice erred when he applied the

doctrine of res judicata. He also maintains that the April 7, 2014 order should be vacated under




9
  Although we stress that the Superior Court Rules of Civil Procedure say nothing of a motion to
reconsider, we do note that “a party’s motion to reconsider has been treated by this Court as a
motion to vacate a judgment under Rule 60(b).” Turacova v. DeThomas, 45 A.3d 509, 514-15
(R.I. 2012).
                                              - 10 -
Rule 60(b)(4) because it was void. Finally, he contends that the April 7, 2014 order should be

vacated under Rule 60(b)(6) in the interests of justice, given the unique circumstances of this

case.

                                                 A

                                           Res Judicata

         We need not dwell for long on whether res judicata applies here. In our judgment, it

quite clearly does not. To us, the zoning board’s argument that the trial justice correctly applied

res judicata sounds more in the doctrine of “law of the case” than it does in the doctrine of res

judicata. As we have explained, the law-of-the-case doctrine generally holds that “after one

judge has decided an interlocutory matter in a pending suit, a second judge on that same court,

when confronted at a later stage of the suit with the same question in the identical manner,

should refrain from disturbing the first ruling.” Richardson v. Smith, 691 A.2d 543, 546 (R.I.

1997). When the trial justice denied McLaughlin’s motion to vacate in 2016, he did so, in part,

because of his concern for the finality of the hearing justice’s April 7, 2014 order. That sort of

reasoning rings to the tune of law of the case, not res judicata. Compare id. with E.W. Audet &

Sons, Inc. v. Fireman’s Fund Insurance Co. of Newark, New Jersey, 635 A.2d 1181, 1186 (R.I.

1994) (noting that res judicata is “[u]sually asserted in a subsequent action based upon the same

claim or demand, [and] the doctrine precludes the relitigation of all the issues that were tried or

might have been tried in the original suit”). Indeed, “[a]lthough this law-of-the-case doctrine

does not have the finality of res judicata,” we have said that it “generally ought to be adhered to

for the principal reason that it is designed to promote the stability of decisions of judges of the

same court and to avoid unseemly contests and differences that otherwise might arise among



10
     Of note, the trial justice also found that, while it was without merit, McLaughlin’s May 25,
                                               - 11 -
them to the detriment of public confidence in the judicial function.” Richardson, 691 A.2d at

546 (quoting Salvadore v. Major Electric & Supply, Inc., 469 A.2d 353, 356 (R.I. 1983)). In

denying McLaughlin’s 2016 motion to vacate, the trial justice was correctly concerned with

grounding his decision in the interest of finality; however, it was a finality that should have been

based on the law-of-the-case doctrine, not the doctrine of res judicata, because the order was

made in the context of the same case. 11

                                                 B

                                           Rule 60(b)(4)

       Generally, “[a] Rule 60(b) motion to vacate is addressed to the trial justice’s sound

judicial discretion and will not be disturbed on appeal, absent a showing of abuse of discretion.”

Allen v. South County Hospital, 945 A.2d 289, 293 (R.I. 2008) (quoting Keystone Elevator Co. v.

Johnson & Wales University, 850 A.2d 912, 916 (R.I. 2004)). However, when a party moves to

vacate a judgment under Rule 60(b)(4), that deferential standard of review gives way to de novo

review. As we have explained, “[t]his Court reviews de novo an appeal from a denial of a

motion to vacate a judgment where the motion is based on an allegation that the judgment is void

pursuant to Rule 60(b)(4).” In re Quigley, 21 A.3d 393, 398 (R.I. 2011). This is so “because ‘[a]

judgment is either valid or it is not and discretion plays no part in resolving the issue.’” Id.

(quoting Nisenzon v. Sadowski, 689 A.2d 1037, 1047 (R.I. 1997)). For that reason, “a Rule

60(b)(4) motion may be brought at any time.” Id.




2016 motion to vacate was timely under Rules 60(b)(4) and 60(b)(6).
11
   Further, with particular respect to McLaughlin’s argument that the April 7, 2014 order should
be vacated under Rule 60(b)(4), we also note that “a claim of lack of subject matter jurisdiction
may be raised at any time.” Long v. Dell, Inc., 984 A.2d 1074, 1078 (R.I. 2009) (quoting
Pollard v. Acer Group, 870 A.2d 429, 433 (R.I. 2005)).
                                               - 12 -
        “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)). For a judgment to be vacated as void under Rule 60(b)(4), “the court

entering the judgment” either must have “lacked jurisdiction” or “the court’s action [must have]

amount[ed] to a plain usurpation of power constituting a violation of due process.” Id. (quoting

Hoult v. Hoult, 57 F.3d 1, 6 (1st Cir. 1995)). In this case, McLaughlin argues that the April 7,

2014 order is void for each of those reasons. He contends that the Superior Court lacked subject

matter jurisdiction to enter the order and that “the court’s action amount[ed] to a plain usurpation

of power constituting a violation of due process.” Id. (quoting Hoult, 57 F.3d at 6).

       We are satisfied that the April 7, 2014 order was not void. As this Court has explained,

there is a fine distinction between the absence of jurisdiction and the exercise of jurisdiction. See

Hartt v. Hartt, 121 R.I. 220, 227, 397 A.2d 518, 522 (1979). Indeed, we have remarked “that the

distinction between the ‘appropriate exercise of power and the absence of power’ may at times

be ‘blurry.’” Narragansett Electric Co. v. Saccoccio, 43 A.3d 40, 44 (R.I. 2012) (quoting

Mesolella v. City of Providence, 508 A.2d 661, 665 (R.I. 1986)). As pertains to this case, there is

a statute that clearly vests in the Superior Court the jurisdiction to order McLaughlin to remove

his garage. It bears repeating that § 45-24-62 states that:

               “[T]he superior court * * * shall, upon due proceedings in the
               name of the city or town, instituted by its city or town solicitor,
               have power to issue any extraordinary writ or to proceed according
               to the course of law or equity or both:
               “* * *
               “* * *
               “(3) To order the removal by the property owner of any building,
               structure, sign, or improvement existing in violation of any zoning
               ordinance enacted under the provisions of this chapter and to
               authorize some official of the city or town, in the default of the
               removal by the owner, to remove it at the expense of the owner;
               [and/or]

                                               - 13 -
               “(4) To order the reimbursement for any work or materials done or
               furnished by or at the cost of the city or town[.]”

Therefore, we are constrained to conclude that the Superior Court was vested with the subject

matter jurisdiction to order McLaughlin to remove the garage. The only remaining question as to

whether the order granting the zoning board’s “Motion for Order to Comply” is void under Rule

60(b)(4) centers on the manner in which the hearing justice exercised that jurisdiction.

       In the parlance of our caselaw, this brings us to decide whether the April 7, 2014 order

represents “a plain usurpation of power constituting a violation of due process.” See Allstate

Insurance Co., 773 A.2d at 869 (quoting Hoult, 57 F.3d at 6). In our opinion, it does not. As

McLaughlin admits, he received notice—albeit notice that he purportedly misread—of the April

7, 2014 hearing. Because it is undisputed that McLaughlin was provided with notice and

afforded an opportunity to be heard, we cannot conclude that the April 7, 2014 order went so

beyond the pale as to evince “a plain usurpation of power constituting a violation of due

process.” Id. (quoting Hoult, 57 F.3d at 6).

       Nevertheless, McLaughlin poses one last argument as to why that order is void. In

McLaughlin’s view, the procedural posture of the case at the time when the order was entered

justifies vacating it under Rule 60(b)(4). As McLaughlin correctly observes, when the zoning

board filed its motion in March 2014, the case—which was McLaughlin’s appeal from a denial

of his variance request—was already closed because final judgment had entered. The zoning

board’s denial of McLaughlin’s zoning appeal had been affirmed, and McLaughlin’s appeal to

this Court had been dismissed as procedurally improper. That posture, McLaughlin reasons,

renders the April 7, 2014 order granting the zoning board’s motion void.

       We do not agree. Because the Superior Court possessed the subject matter jurisdiction to

order McLaughlin to remove his garage, and because the granting of the April 7, 2014 order did

                                               - 14 -
not mark a “plain usurpation of power constituting a violation of due process[,]” the April 7,

2014 order was and is not void. See Allstate Insurance Co., 773 A.2d at 869 (quoting Hoult, 57

F.3d at 6).

                                                 C

                                          Rule 60(b)(6)

        In a final attempt to pry himself from the grasp of the April 7, 2014 order, McLaughlin

argues that the unique circumstances of this case present a manifest injustice “justifying relief

from the operation of the” order. See Super. R. Civ. P. 60(b)(6). We agree. At the outset, we

note that McLaughlin shoulders a heavy burden in appealing the trial justice’s denial of his Rule

60(b)(6) motion to vacate. While we review the grant or denial of motions to vacate brought

under Rule 60(b)(4) de novo, we employ a more deferential standard of review to motions

brought pursuant to Rule 60(b)(6). See Allen, 945 A.2d at 293 (explaining that “[a] Rule 60(b)

motion to vacate is addressed to the trial justice’s sound judicial discretion and will not be

disturbed on appeal, absent a showing of abuse of discretion” (quoting Keystone Elevator Co.,

850 A.2d at 916)).

        Rule 60(b) provides, in relevant part: “On motion and upon such terms as are just, the

court may relieve a party * * * from a final judgment, order, or proceeding for the following

reasons: * * * [including for] (6) [a]ny other reason justifying relief from the operation of the

judgment.” However, a Rule 60(b)(6) motion to vacate “shall be made within a reasonable time

* * *.” Super. R. Civ. P. 60(b); see also In re Quigley, 21 A.3d at 401-02. 12

        First, McLaughlin contends that the Superior Court lacked the authority to entertain the

zoning board’s request that he be ordered to remove his garage. In response, the zoning board




                                               - 15 -
points to the language of § 45-24-62. On this point, we are in agreement with the zoning board.

As explained above, pursuant to § 45-24-62(3), the Superior Court possessed the jurisdiction to

order the removal of McLaughlin’s garage.

       Second, McLaughlin posits that there was no competent evidence in the record

establishing that his garage was in violation of the Tiverton Zoning Ordinance. Without that

evidence, he argues, the zoning board had no grounds for obtaining the April 7, 2014 order. But,

the zoning board maintains, that is not so. It cites McLaughlin’s own testimony before the

zoning board from September 2011, when McLaughlin and the zoning board’s chairwoman

engaged in the following exchange:

              “MADAM CHAIRWOMAN:                   Mr. McLaughlin, when you
              submitted your site plan, you represented to the building inspector
              that the building met the setback requirements under the Tiverton
              Zoning Ordinances?

              “[MCLAUGHLIN]: Yes, ma’am.

              “MADAM CHAIRWOMAN:                       And after you had a survey,
              you realized that was inaccurate?

              “[MCLAUGHLIN]: Yes, ma’am.”

The zoning board cites that admission and the very fact that McLaughlin found it necessary to

seek a zoning variance as proof that McLaughlin’s garage was in violation of the Tiverton

Zoning Ordinance’s setback requirements. 13

       However, for purposes of determining whether the trial justice erred in denying

McLaughlin’s motion to vacate under Rule 60(b)(6), our analysis has less to do with the



12
   On appeal, the zoning board has not argued that McLaughlin’s 2016 motion to vacate was not
filed within a “reasonable time” pursuant to Rule 60(b).
13
   As a third basis for vacating the April 7, 2014 order, McLaughlin also avers that the zoning
board engaged in misleading, or even sanctionable, conduct in obtaining that order. However, on
the record before us, we see no merit to that argument.
                                              - 16 -
evidence of McLaughlin’s compliance (or lack thereof) with the setback requirements of the

Tiverton Zoning Ordinance than it does with the process by which the zoning board obtained the

April 7, 2014 order.

       As the zoning board sees it, the reasons McLaughlin advances for vacating the April 7,

2014 order under Rule 60(b)(6) are repetitive and a mere restatement of the reasons he set forth

in arguing that the order was void under Rule 60(b)(4). But in McLaughlin’s view, those

arguments are precisely why the trial justice should have granted his motion to vacate. He

contends that, because the zoning board failed to comply with § 45-24-62(3), the April 7, 2014

order should be vacated. According to McLaughlin, for the Town of Tiverton to have properly

obtained an order requiring him to remove the garage, it should have filed a separate action in the

Superior Court, not a motion for an order to comply filed by the zoning board in a zoning appeal.

       It is perhaps an understatement to say that Rule 60(b)(6) rarely is invoked with success.

Indeed, there is a dearth of cases in the jurisprudence of this Court in which we have found

grounds justifying vacation under that rule. As this Court has explained, “Rule 60(b)(6) was ‘not

intended to constitute a catchall and * * * circumstances must be extraordinary to justify relief.’”

Allen, 945 A.2d at 297 (quoting Bailey v. Algonquin Gas Transmission Co., 788 A.2d 478, 483

(R.I. 2002)). Although “[t]he language of [Rule] 60(b)(6) * * * does vest the Superior Court

with broad power to vacate judgments[,]” it is reserved for unique or extraordinary

circumstances. Bendix Corp. v. Norberg, 122 R.I. 155, 158, 404 A.2d 505, 506 (1979). “A Rule

60(b)(6) motion can be granted only for some ‘other reason justifying relief’ than the reasons

specified in Rule 60(b)(1) through (5) and ‘only in unique circumstances to prevent manifest

injustice.’” Bailey, 788 A.2d at 482 (quoting Vitale v. Elliott, 120 R.I. 328, 332, 387 A.2d 1379,

1382 (1978)). Therefore, to put it another way, Rule 60(b)(6)’s “other reason clause should not



                                               - 17 -
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.” Bendix Corp., 122 R.I. at 158, 404 A.2d at 506

(quoting Greco v. Safeco Insurance Co. of America, 107 R.I. 195, 198, 266 A.2d 50, 52 (1970)).

       In our opinion, this case presents one of those rare occasions when unique circumstances

do exist to justify relief under Rule 60(b)(6). The following facts, all of which are intertwined

with one another, are particularly relevant to our conclusion on this point. First, and of particular

significance, the removal action was not properly brought under § 45-24-62. As discussed

above, § 45-24-62 vests the Superior Court with the power to assist cities and towns, such as the

Town of Tiverton, in the enforcement of their zoning ordinances. To invoke that judicial aid,

however, § 45-24-62 provides that there must be “due proceedings in the name of the city or

town, instituted by its city or town solicitor * * *.” Although we have yet to squarely address

whether the language of § 45-24-62 contemplates the bringing of a separate action, we embrace

such a holding now. In a case remarkably similar to McLaughlin’s, this Court, in discussing

§ 45-24-62’s predecessor statute (G.L. 1956 § 45-24-7 (1970 Reenactment)), noted that the

parties in that case had “conceded that enforcement of [the order mandating removal of the

offending structure] would require a separate judicial proceeding.”          Zeilstra v. Barrington

Zoning Board of Review, 417 A.2d 303, 309 (R.I. 1980) (emphasis added). We agree with what

those parties long ago conceded: Section 45-24-62 requires a separate judicial proceeding. Thus

we are of the firm opinion that the zoning board’s “Motion for Order to Comply” was not a “due

proceeding” as required by the plain language of § 45-24-62. A motion to comply, filed by the

zoning board, not the town, at the conclusion of a zoning appeal, simply does not pass muster.




                                               - 18 -
       This leads us to the next significant fact driving our conclusion: the procedural posture of

the case. This case involved an appeal of a denied variance; it was not an action instituted by the

Town of Tiverton. In fact, the zoning board was a defendant in this case. In March 2014, when

the zoning board moved for an order to comply, the zoning board remained a defendant, and the

case remained postured as a zoning appeal. The solicitor did not file a separate complaint on

behalf of the town setting forth McLaughlin’s alleged noncompliance with the Tiverton Zoning

Ordinance.   Therefore, at no point did McLaughlin’s zoning appeal transform into a “due

proceeding[] in the name of [the Town of Tiverton], instituted by its * * * town solicitor * * *.”

       Furthermore, at the time the zoning board filed its motion, final judgment had entered. In

other words, the controversy before the Superior Court—revolving around whether there were

grounds justifying reversal of the zoning board’s denial of McLaughlin’s variance request under

§ 45-24-69(d)—had been resolved to a finality. The zoning board had prevailed, and this Court

had dismissed McLaughlin’s appeal as procedurally improper. The zoning board’s filing of the

“Motion for Order to Comply” was an effort to transform the case from a closed-out zoning

appeal to a request for permanent injunctive relief—relief to which the zoning board is not

entitled. See Zeilstra, 417 A.2d at 309. Although those facts do not, in our view, render the

April 7, 2014 order void under Rule 60(b)(4), we are nonetheless of the opinion that it should

have been vacated under Rule 60(b)(6).

       The unique and narrow facts of this case motivate this Court to conclude that enforcing

that order would constitute a manifest injustice. The interest of finality alone does not defeat the

clear language of § 45-24-62. Had the Town of Tiverton filed an action in the Superior Court

alleging that McLaughlin’s garage was out of compliance with the Tiverton Zoning Ordinance’s

setback requirements, it may well have prevailed given the evidence in the record before us. But



                                               - 19 -
the town did not do that. Process is important, and even though McLaughlin received notice and

an opportunity to be heard, the town’s failure to comply with § 45-24-62 in obtaining permanent

injunctive relief on April 7, 2014, is fatal. To uphold that order would permit, not prevent,

manifest injustice. See Bailey, 788 A.2d at 482.

       In other words, the confluence of the extraordinary facts in this case “establish[es] a

uniqueness that puts the case outside of the normal and usual circumstances accompanying

failures to comply with the rules.” See Bendix Corp., 122 R.I. at 158, 404 A.2d at 506 (quoting

Greco, 107 R.I. at 198, 266 A.2d at 52). Under these narrow facts, there are reasons “justifying

relief from the operation of the judgment.” Super. R. Civ. P. 60(b)(6). Accordingly, we hold

that McLaughlin’s motion to vacate should have been granted. 14

                                                  III

                                             Conclusion

       For the reasons set forth above, we reverse the Superior Court order denying

McLaughlin’s motion to vacate the April 7, 2014 order. The papers in this case shall be

remanded to the Superior Court.



       Chief Justice Suttell, with whom Justice Goldberg joins, dissenting. The majority

invokes Rule 60(b)(6) of the Superior Court Rules of Civil Procedure, which it admits “is

reserved for unique or extraordinary circumstances[,]” to prevent manifest injustice. In doing so,

I fear it has created a potential injustice to the Town of Tiverton and its taxpayers by exposing

the town to possible liability for the removal of Mr. McLaughlin’s garage. As I do not believe

that relief to plaintiff under Rule 60(b)(6) is warranted, I respectfully dissent.

14
  By the time McLaughlin filed his 2016 motion to vacate in Superior Court, the garage already
had been removed.
                                                - 20 -
         I fully agree with my colleagues that the April 7, 2014 order granting the zoning board’s

motion to move or remove the garage and imposing a fine for failure to do so was not void. As

the majority notes, “the Superior Court possessed the subject matter jurisdiction to order

McLaughlin to remove the garage[,]” even if it improperly exercised such jurisdiction.

Therefore, because the Superior Court had jurisdiction, it became incumbent upon McLaughlin

to articulate an objection to further proceedings, either because the removal action was not

properly brought by the town under G.L. 1956 § 45-24-62 or because the pending case, a zoning

appeal, had been resolved by a final judgment and therefore should have been closed. However,

McLaughlin did not object to the proceedings until over two years later, by which time the

garage had already been removed by the town.

         In my judgment, McLaughlin’s objections to the proceedings were not timely, based on

the facts and circumstances of this case. See Rule 60(b) (providing that a motion seeking relief

from a judgment or order “shall be made within a reasonable time, and for reasons (1), (2), and

(3) not more than one (1) year after the judgment, order, or proceeding was entered or taken”). 1



1
    Rule 60(b) of the Rhode Island Rules of Civil Procedure provides, in part:
                 “On motion and upon such terms as are just, the court may relieve
                 a party or a party’s legal representative from a final judgment,
                 order, or proceeding for the following reasons:
                 “(1) Mistake, inadvertence, surprise, or excusable neglect;

                 “(2) Newly discovered evidence which by due diligence could not
                 have been discovered in time to move for a new trial under Rule
                 59(b);

                 “(3) Fraud, misrepresentation, or other misconduct of an adverse
                 party;

                 “(4) The judgment is void;

                 “(5) The judgment has been satisfied, released, or discharged, or a
                 prior judgment upon which the judgment is based has been
                                               - 21 -
By the time McLaughlin raised his objections to the April 7, 2014 order, he had seemingly

acquiesced in the garage’s removal.

       Rather than objecting, McLaughlin participated in the proceedings for an additional two

years. The day after the April 7, 2014 order entered, he filed a motion to “reconsider.” At the

hearing on the motion, McLaughlin did not argue that the zoning board lacked authority to seek

removal of the garage. Instead, he explained that his primary concern was that he needed more

time to comply with the April 7, 2014 order. By an order dated May 20, 2014, he was ultimately

afforded an additional ninety days from May 9, 2014. By another order, dated August 5, 2015,

McLaughlin was found in contempt of the May 20, 2014 order; then, he was given another

ninety days from November 9, 2015, to remove the garage. He failed to do so; and, on March

28, 2016, the town removed the garage pursuant to the court order issued by a trial justice

exercising the jurisdiction of the Superior Court. In my judgment, McLaughlin has forfeited any

opportunity to seek redress for the removal of the garage based on procedural flaws.

       The majority, however, has, in effect, vacated the original order of April 7, 2014, and it

has thereby cast a shadow over the propriety of the town’s action in removing the garage. This

not only may frustrate the town’s ability to seek reimbursement for the costs of the removal, but

it exposes the town to potential liability for the removal itself. This, I believe, is a result not

warranted under the circumstances of this case.

       I recognize the procedural anomalies in these proceedings, and in the interest of justice, I

might be willing to employ the supervisory powers of this Court to absolve McLaughlin of the



               reversed or otherwise vacated, or it is no longer equitable that the
               judgment should have prospective application; or

               “(6) Any other reason justifying relief from the operation of the
               judgment.”
                                              - 22 -
fines imposed against him. Bates-Bridgmon v. Heong’s Market, Inc., 152 A.3d 1137, 1145 (R.I.

2017) (“[I]t is well-established that this Court under its general supervisory powers can exercise

its inherent power to fashion an appropriate remedy to serve the ends of justice.”) (quoting

Clarke v. Morsilli, 723 A.2d 785, 786 (R.I. 1998) (mem.)). But the garage is gone, and the

taxpayers of Tiverton should not be on the hook. Accordingly, I dissent.




                                              - 23 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     William C. McLaughlin v. Zoning Board of Review
Title of Case
                                     of the Town of Tiverton et al.
                                     No. 2017-156-Appeal.
Case Number
                                     (NC 11-535)
Date Opinion Filed                   June 20, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Francis X. Flaherty

Source of Appeal                     Newport County Superior Court

Judicial Officer From Lower Court    Associate Justice Walter R. Stone
                                     For Plaintiff:

                                     Danial Calabro, Jr., Esq.
Attorney(s) on Appeal
                                     For Defendants:

                                     Peter F. Skwirz, Esq.
                                     Anthony DeSisto, Esq.




SU-CMS-02A (revised June 2016)
