Corrente v. Town of CoventryAnnotate this Case
352 A.2d 654 (1976)
Victor CORRENTE et al. v. TOWN OF COVENTRY et al.
No. 74-120-M. P.
Supreme Court of Rhode Island.
March 11, 1976.
*655 John D. Lynch, Warwick, for plaintiffs-respondents.
Frank J. Williams, Town Sol., Coventry, Tillinghast, Collins & Graham, J. Peter Doherty, Providence, for defendants-petitioners.OPINION
On July 31, 1973 we reversed a Superior Court judgment declaring Twin Brook Lane in the town of Coventry a public highway and remitted the case to that court for further proceedings. Corrente v. Town of Coventry, 112 R.I. 102, 308 A.2d 350 (1973). On October 5, 1973 the plaintiffs moved "for permission to reopen their case to present additional evidence," and on April 19, 1974 the Superior Court justice who presided at the original proceeding authorized them "to reopen their case for the purpose of introducing additional evidence." The defendants then filed a petition for writ of certiorari and we ordered the writ to issue. Corrente v. Town of Coventry, 113 R.I. 931, 322 A.2d 57 (1974).
A motion to reopen and take additional testimony differs from a motion for a new trial on the ground of newly discovered evidence, and in a nonjury case is generally sought while the trial justice has the case under advisement. See, e.g., Caracci v. Brother Int'l Sewing Mach. Corp., 222 F. Supp. 769, 771 (E.D.La.1963), aff'd, 341 F.2d 377 (5th Cir. 1965); Schick Dry Shaver, Inc. v. General Shaver Corp., 26 F. Supp. 190 (D.Conn.1938). Although there is no statutory provision of substantive law or procedural rule expressly providing for such a motion, we have permitted it, following the lead of federal courts which "[i]n an attempt to comply with the mandate of Fed.R.Civ.P. 1 to construe the rules in order 'to secure the just, speedy, and inexpensive determination of every action' * * * have resorted to a crossbreeding or `cannibalization' of Rules 59 and 60 * * *." Oury v. Annotti, 113 R.I. 506, 511-12, 324 A.2d 325, 328 (1974).
In this case the relief that was both requested and granted was to reopen to take additional testimony. Notwithstanding, when the parties appeared before us in oral argument they treated the motion as one for a new trial on the ground of newly discovered evidence. In these circumstances and because defendants have not claimed to be prejudiced thereby, we treat the mislabeling as unimportant and consider the motion as if it were in fact one for a new trial on the ground of newly discovered evidence under Super.R.Civ.P. 60(b) (2). 7 Moore, Federal Practice ¶ 60.28 at 407 (2d ed. 1975). So viewed, it should not be granted unless the newly discovered evidence is of such a material and controlling nature that it would probably change the outcome of the case and unless it was not by the exercise of ordinary diligence discoverable in time to be presented at the original hearing. Addeo Loan Co. v. Manocchio, 112 R.I. 590, 596-97, *656 313 A.2d 649, 652 (1974). While that case set forth the controlling guidelines for a motion under Rule 59(a) (2), the standards for vacating a judgment under 60(b) (2) are not essentially different.Kent, R.I.Civ.Prac. § 60.4 at 454 (1969); see 7 Moore, supra ¶ 60.23 at 273.
In this case, we find neither supporting affidavits accompanying the motion nor anything on the scanty record of the hearing before the trial justice disclosing the nature of the newly discovered evidence or otherwise indicating whether it measured up to the requisite standards. In the circumstances it was error to grant the plaintiffs' motion. Kitchen v. Broadman, 119 A. 55 (R.I.1922); Dakin v. Chiappenelli, 103 A. 964 (R.I.1918); 1 Kent, supra § 59.5 at 443. We expressly refrain from expressing any view on the Superior Court's power to act on a Rule 60(b)(2) motion once this court has disposed of the case. 11 Wright & Miller, Federal Practice & Procedure § 2873 at 266-70 (1973).
The petition for certiorari is granted, the order of the Superior Court granting the motion to reopen on the ground of newly discovered evidence is quashed, and the records certified to this court are ordered returned to the Superior Court with our decision endorsed thereon.NOTES
 Super.R.Civ.P. 59(a) (2) provides that in a case tried without a jury, a new trial may be granted "* * * for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of this state." Super.R.Civ.P. 60(b) (2) permits a party to move for a new trial on the ground of newly discovered evidence * * which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b)."