Summary
In King v. Brown, 103 R.I. 154, 235 A.2d 874 (1967), this Court held that a party was not entitled to relief from a default judgment resulting from the failure of his counsel to comply with procedural requirements unless it is first established that the attorney's neglect was occasioned by some extenuating circumstances of sufficient significance to render it excusable.
Summary of this case from Bailey v. Algonquin Gas Transmission Co.Opinion
November 29, 1967
Present: Roberts, C.J., Paolino, Powers, Joslin and Kelleher, JJ.
1. JUDGMENT. Relief Based Upon Mistake, etc. Liberal Application. Under amended statute and new rules of civil procedure whereby default judgment may be removed by reason of "mistake, inadvertence, surprise, or excusable neglect" the liberal application which the inadvertence and excusable neglect standard has received in the federal courts suggests that a trial justice may now have a wider latitude for the exercise of his discretion. The new standard is not available, however, to circumvent other procedural requirements nor is it so latitudinous as to permit relief where neglect is without excuse. G.L. 1956, § 9-21-2, as amended; R.C.P., rule 60 (b).
2. ATTORNEY AND CLIENT. Neglect of Counsel. Liability of Counsel. Law of Agency. A client who handed writ to his attorney should not be relieved of a default judgment resulting from the failure of his selected counsel to comply with procedural requirements, unless it is first factually established that his neglect was occasioned by some extenuating circumstances of sufficient significance to render it excusable. G.L. 1956, § 9-21-2, as amended.
ASSAULT AND BATTERY action, before supreme court on plaintiff's exception to decision removing a default judgment against defendant, heard and exception sustained, judgment reinstated, and case remitted to superior court for further proceedings.
John S. Brunero, for plaintiff.
Harry F. McKanna, Jr., for defendant.
In this action for assault and battery, we consider for the second time the plaintiff's exception to the decision of a superior court justice, removing a judgment entered by default against the defendant. When the case was first here, King v. Brown, 102 R.I. 42, 227 A.2d 589, we reaffirmed our rule that neglect or inattention of counsel without more will not constitute "cause shown" or "mistake" within the contemplation of G.L. 1956, § 9-21-2, as it read when the default was removed. We found that the trial justice abused his discretion in vacating a default judgment upon the limited showing that the defendant "did turn over this writ of summons to his attorney * * * and did engage * * * as attorney to represent him in this matter." Because the standards controlling the right to be relieved from a default judgment had been changed, however, prior to the case being argued in this court, we did not overrule. Instead, we directed reargument and gave the parties leave to present their views on whether the newly adopted guidelines were relevant to our considerations, and if so, whether they entitled defendant to relief. Inasmuch as the parties agree that the new standards control, the only question is whether the unexplained neglect and inattention of defendant's counsel constitute such "mistake, inadvertence, surprise, or excusable neglect" as will justify vacating the default judgment.
The amendment of G.L. 1956, § 9-21-2, as well as rule 60(b) of the rules of civil procedure of the superior court by P.L. 1965, chap. 55, sec. 36, permit the court on motion to relieve a party from a final judgment for "mistake, inadvertence, surprise, or excusable neglect."
The liberal application which the inadvertence and excusable neglect standard has received in the federal courts suggests that a trial justice may now have a wider latitude for the exercise of his discretion than he had under the test which heretofore prevailed. The new standard, however, is neither available to circumvent other procedural requirements nor is it so latitudinous as to permit relief where the neglect is without excuse. 3 Barron Holtzoff, § 1325, p. 402 et seq.; 7 Moore, Federal Practice (2d ed.) ¶ 60.22 [2] at 230.
Here defendant in substance concedes that he may have been neglectful in the selection of his attorney, but he argues, nonetheless, that he did all that could reasonably have been expected of him when he gave the writ of summons to his legal representative, and he says that his counsel's inattention and neglect, even though unexplained, should not be attributed to him. Were we to accept that contention, consistency would demand that we reject that fundamental of agency law which imputes the neglect of an attorney in professional matters to his client and considers the omissions of the attorney as though they were the neglect of the client himself. Wheiles v. Aetna Life Ins. Co., 68 F.2d 99; Dumas v. Hartford Accident Indem. Co., 94 N.H. 484, 56 A.2d 57; Mosher v. Mutual Home Sav. Ass'n, 35 Ohio L. Abs. 445, 41 N.E.2d 871. See 1 Restatement, Agency 2d § 253, pp. 553-54. That principle points to the conclusion that a client should not be relieved of a default judgment resulting from the failure of his selected counsel to comply with procedural requirements, unless it is first factually established that his neglect was occasioned by some extenuating circumstance of sufficient significance to render it excusable. Unexplained neglect, standing alone and without more, whether it be of a party or of his attorney, will not automatically excuse noncompliance with orderly procedures. Frank v. New Amsterdam Casualty Co., 27 F.R.D. 258; Ledwith v. Storkan, 2 F.R.D. 539. An efficient administration of the judicial system permits no other result. Ohliger v. United States, 308 F.2d 667.
Within these concepts counsel's unexplained failure in this case to tend to the writ of summons given to him to defend does not constitute a ground for relieving the defendant from the default, and it was, therefore, an abuse of discretion to vacate the judgment.
The plaintiff's exception is sustained, the judgment vacated is reinstated, and the case is remitted to the superior court for further proceedings.