Supreme Court
No. 2024-344-Appeal.
(PC 22-6418)
Reagan Marine Construction, LLC :
v. :
Victor Costa 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 Telephone (401) 222-3258 or
Email [email protected], of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court
No. 2024-344-Appeal.
(PC 22-6418)
Reagan Marine Construction, LLC :
v. :
Victor Costa et al. :
Present: Suttell, C.J., Robinson, Lynch Prata, Long, and Indeglia (ret.), JJ.
OPINION
Justice Lynch Prata, for the Court. The defendants, Victor Costa and Costa
Companies, Inc., appeal from a default judgment in favor of the plaintiff, Reagan
Marine Construction, LLC, in the amount of $716,001.83, inclusive of costs,
prejudgment interest, and attorney’s fees. On appeal, the defendants argue that the
trial justice erred in entering a default judgment because, according to them, the
plaintiff’s service of motions for conditional order of default, default judgment, and
attorney’s fees were defective. This case came before the Supreme Court pursuant
to an order directing the parties to appear and show cause why the issues raised in
this appeal should not be summarily decided. After considering the parties’ written
and oral submissions and reviewing the record, we conclude that cause has not been
shown and that this case may be decided without further briefing or argument. For
the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
-1-Facts and Travel
The plaintiff, Reagan Marine Construction, LLC (plaintiff or Reagan), was
the general contractor on a construction project (the project) for the expansion of the
Church Street Marina in Bristol, Rhode Island. On November 3, 2021, plaintiff
entered into a subcontract (the subcontract) to have electrical work performed on the
project. Victor Costa (Costa) signed the subcontract as “CEO” of Costa Companies,
Inc. (Costa Companies) (collectively defendants), and, on appeal, it is uncontested
that Costa had the authority to bind Costa Companies to the subcontract. Notably,
under the terms of the subcontract, the parties agreed that time was of the essence
and that Reagan would be provided with timely written notices of delays that could
postpone the project’s completion. The subcontract also included an
indemnification clause that outlined that Costa Companies “shall fully and
completely indemnify [Reagan] * * * from and against all claims, damages, losses
and expenses, including but not limited to attorney’s fees, arising out of, caused by,
or resulting from the performance of the [w]ork associated with this [c]ontract or
other conduct of [Costa Companies] * * *.” Reagan alleges that after execution of
the subcontract, Costa Companies delayed commencement of work on the project.
We are advised that during the summer of 2022—to comply with state
electrical and building code requirements—Reagan and Costa Companies
negotiated to expand the scope of work in the subcontract. Costa Companies
-2-conditioned acceptance of the expanded scope of work on Reagan’s payment of a
twenty percent deposit, which Reagan submits it paid. According to Reagan, Costa
accepted the expanded scope of work and provided Reagan with an estimated
completion schedule.
Reagan avers that in reliance on the terms of the subcontract, it formally
executed a change schedule order with the Town of Bristol on September 8, 2022.
Thereafter, Reagan represented that, Costa Companies neither complied with the
estimated completion schedule for the expanded scope of work nor did defendants
provide Reagan with written notices of delays. As a result, Reagan represented that,
the Town of Bristol threatened to terminate the general contract if Reagan did not
provide a remedy within thirty days. In turn, Reagan advises that it informed
defendants of its intent to terminate the subcontract unless Costa Companies
complied with a modified schedule. Reagan alleges that Costa Companies failed to
timely comply, so it terminated the subcontract and hired a replacement electrical
subcontractor. Consequently, Reagan filed a complaint in Providence County
Superior Court alleging counts of breach of contract, negligent misrepresentation,
and fraud against Costa Companies; a count of fraud against Costa; and a count of
conversion against defendants. Reagan sought damages, and attorney’s fees
-3-pursuant to G.L. 1956 § 9-1-45. In response, defendants filed an answer, denied
certain allegations in Reagan’s complaint, and asserted six affirmative defenses.1
Reagan served defendants with a request for production of documents. An
order directing defendants to comply with the production was entered on March 10,
2023. Thereafter, Reagan moved to compel production of answers to certain
interrogatories and additional documents, to which defendants timely objected. At
the hearing on the motion, counsel appeared on behalf of defendants and asserted
that, with respect to defendants’ production issue, “a collection of e-mails * * * had
subsequently been rectified and produced to the [p]laintiff * * *.” Counsel conceded
that “[t]here [were] other issues with respect to the interrogatories[,]” and he stated
that he could not “go into any further detail regarding those specific requests” due
to his pending motion to withdraw. On July 3, 2023, the trial justice entered separate
orders granting defense counsel’s motion to withdraw and granting Reagan’s motion
to compel. The trial justice, however, stayed discovery for twenty days, effectively
affording defendants the opportunity to retain new counsel. Subsequently, on
October 18, 2023, the trial justice entered an order, giving Costa an additional thirty
days to comply with the July 3, 2023 order and granting Costa Companies thirty
1
The affirmative defenses pled by defendants were: (1) failure to state a claim upon which relief may be granted; (2) failure to state a cause of action upon which relief may be granted; (3) improper subject matter jurisdiction; (4) frustration of purpose; (5) the doctrine of laches; and (6) the parties failed to reach an agreement on terms.
-4-days to procure new counsel. According to Reagan, defendants did not comply with
the court’s order to produce discovery and did not retain new counsel.
Consequently, Reagan moved for a conditional order of default against
defendants and requested an award of attorney’s fees. In its motion, Reagan asserted
that defendants “[willfully violated] multiple [c]ourt [o]rders compelling the
production of sufficient discovery responses and requiring the corporate [d]efendant,
Costa Companies, Inc., to retain counsel * * *.” A hearing on the motion was held,
at which defendants did not appear. The trial justice informed Reagan’s counsel that
the court received a letter from a medical provider that morning indicating that, due
to a medical condition, Costa was unable to return to work until March 25, 2024.
The trial justice continued with the proceeding, reasoning that defendants did not
file an objection to the motion. The trial justice granted Reagan’s motion and entered
a conditional order of default on March 28, 2024. The order afforded defendants
twenty days from the issuance of the order to comply with its prior orders.
On April 22, 2024, Reagan filed a motion for entry of judgment and related
attorney’s fees. On the same day, a hearing was held on Reagan’s previous motion
for attorney’s fees. At this hearing, Costa appeared before the court pro se, and
Costa Companies was not represented by counsel. Costa argued that he was not
receiving communications related to the litigation and that Reagan was required to
-5-send all notice to Costa Companies’ registered agent.2 The trial justice explained to
Costa that the court had already issued a conditional order of default and that Costa
would need to file a motion pursuant to Rule 60 of the Superior Court Rules of Civil
Procedure to address the reasons why the court should vacate the order, and if such
motion was filed, the court could hold a hearing on the matter. The trial justice
clarified that he could not “make a determination on notice or whatever else without
[Costa] filing the motion before the [c]ourt.” Costa affirmed to the trial justice that
he understood. At a subsequent hearing, at which defendants did not appear, Reagan
asserted that Costa sent e-mails to the court that he was going to file a motion to
vacate but that Costa had not done so. Thereafter, Reagan filed an application for
an entry of default judgment, alleging damages in the amount of $540,787.66,
exclusive of costs, attorney’s fees, and statutory interest.
The matter was again before the court via WebEx on August 29, 2024. Costa
appeared at the hearing pro se; Costa Companies was still not represented by
counsel. At the hearing, Costa asserted that he had been outside of the United States
2
At the hearing held on April 22, 2024, Costa first raised the issue of notice to the trial justice. Costa represented that, due to malware on his computer system, he was not receiving e-mails related to the litigation, only telephone calls. Costa argued that two months prior to the hearing, he notified plaintiff’s counsel to send all documentation pertaining to the case to Costa Companies’ registered agent. Costa asserted to the trial justice that, because plaintiff’s counsel did not serve the motions to Costa Companies’ registered agent, service was defective as to both him and Costa Companies.
-6-since June 8, 2024, and that he was “kind of lost in this whole scenario and
everything that is going on.” He also represented to the court that he had paid off
some debt, “which now is going to allow us to procure an attorney in this matter.”
The trial justice explained to Costa that a conditional default judgment had entered
and that, if Costa sought legal counsel, there were certain actions the attorney could
take to contest the notice issue, including filing a motion to vacate the judgment.
On October 1, 2024, the trial justice entered an order granting Reagan’s
motion for attorney’s fees against Costa Companies; and, on the same day, default
judgment was entered for Reagan in the total amount of $716,001.83, including
$535,357.53 in adjusted damages; $180.75 in costs; $133,766.05 in prejudgment
interest; and $46,697.50 in attorney’s fees. The defendants filed timely notices of
appeal to this Court on October 18, 2024. After docketing the appeal, Reagan filed
a motion to remand to the Superior Court for the purpose of seeking a post-judgment
preliminary injunction pursuant to Article I, Rule 7(a) of the Supreme Court Rules
of Appellate Procedure. Likewise, defendants, after procuring legal counsel, filed a
response to Reagan’s motion and a cross-motion to remand to pursue a Rule 60
motion to vacate in the Superior Court. This Court granted Reagan’s motion,
allowing thirty days to pursue its post-judgment preliminary injunction in the
Superior Court, which the trial justice ultimately denied. We denied defendants’
motion without prejudice to the filing of a cash bond in the amount of $716,001.83—
-7-the amount awarded in the default judgment—within fifteen days. The record
contains no evidence that defendants filed a cash bond.
Standard of Review
“We review a Superior Court entry of default for abuse of discretion or error
of law.” Ferris v. Progressive Casualty Insurance Company, 263 A.3d 1247, 1249
(R.I. 2021) (quoting Reyes v. Providence Place Group, L.L.C., 853 A.2d 1242, 1246
(R.I. 2004)). Likewise, “[a] motion to vacate default ‘is addressed to the sound
discretion of the trial justice and will not be disturbed on appeal absent a showing of
an abuse of discretion or an error of law.’” Id. (brackets and deletion omitted)
(quoting Clark v. Dubuc, 486 A.2d 603, 604 (R.I. 1985)). “In an appeal seeking
relief from a default judgment, it is the appellant’s burden to show ‘that the trial
justice abused his or her discretion or committed an error of law.’” Marchionte v.
Jaramillo, 182 A.3d 1146, 1147 (R.I. 2018) (mem.) (brackets omitted) (quoting
Rodriguez v. Virgilio, 58 A.3d 914, 915 (R.I. 2012) (mem.)).
Discussion
Before this Court, defendants argue that the trial justice erred in entering a
default judgment because, according to defendants, Reagan’s service of motions
related to default was defective. Specifically, defendants contend that Reagan did
-8-not serve notice on Costa Companies’ registered corporate agent.3 The defendants
assert that, prior to default, Costa expressed to plaintiff’s counsel that any documents
pertaining to the litigation should be served on Costa Companies’ registered agent
for notice as to Costa and Costa Companies. Accordingly, defendants aver that
Reagan’s failure to comply with this method rendered the service of the motions
related to the conditional order of default, default judgment, and attorney’s fees
defective.
The defendants further contend that this Court’s imposition of a cash bond as
a condition for remand to file a Rule 60 motion violated their due-process rights.
Specifically, defendants argue that “due process compels an unconditional remand
to the trial court to permit [Costa] to litigate the notice issue.”
Conversely, Reagan argues that the trial justice did not abuse his discretion in
entering judgment. Reagan contends that service of motions on defendants was
proper because Reagan served defendants “electronically using multiple email
addresses on file and used by the Superior Court clerk in transmitting notices of
hearings and other docket entries.” Reagan argues that defendants have not
presented evidence to this Court that they were not on notice of the pleadings and
3
The defendants contend that, in accordance with G.L. 1956 § 7-1.2-501, Costa Companies was required to have a registered corporate agent for service. The defendants argue that Reagan was aware of Costa Companies’ registered agent because Reagan’s initial complaint was served on the agent at the listed registered office.
-9-hearings scheduled in the Superior Court. Likewise, Reagan argues that it had no
obligation to effectuate service by the means that defendants requested given that
Reagan “served all papers upon [defendants] consistent with the trial court’s rules,
protocols, and course of conduct.” Reagan further notes that “[defendants] cannot
explain why Mr. Costa appeared at some hearings, but not at others, where the means
of service was consistent throughout.” Reagan asserts that “the purpose of service
rules is to provide litigants with notice and an opportunity to pursue and defend their
rights.” Thus, according to Reagan, defendants’ receipt of electronic notifications
and Costa’s appearance at in-person and WebEx hearings make clear that Costa was
properly notified of court proceedings.
Additionally, Reagan argues that defendants had multiple opportunities to
properly raise the issue of notice in the lower court and failed to do so. Thus, they
should be precluded from presenting the issue before this Court on appeal. Reagan
asserts that, at the hearing on August 29, 2024, Costa represented to the court that
he was in a position to retain counsel and declared that he would move forward with
an appeal. The trial justice had advised Costa that the proper avenue to pursue relief
from the conditional default judgment and properly raise his notice argument before
the court was to file a motion to vacate pursuant to Rule 60. Reagan contends that,
despite this instruction from the trial justice, defendants “[f]or whatever reason, * * *
opted not to pursue that course in the period following entry of judgment and
- 10 -docketing of this appeal.” Reagan cites to this Court’s opinion in Marchionte and
avers that a defaulted party’s failure to file a Rule 60(b) motion or otherwise defend
its requested relief in the lower court requires this Court to deny the party’s request
on that issue. See Marchionte, 182 A.3d at 1147. Thus, according to Reagan,
because “[t]he arguments [defendants] raise now were equally available to them
before[,]” this Court should preclude their present request to vacate the default
judgment or remand the case to the Superior Court so that defendants may file a Rule
60 motion.
Finally, Reagan argues that defendants’ due-process rights were not violated
when this Court conditioned remand upon the filing of a cash bond. Reagan asserts
that the imposition of a cash bond was consistent with Article I, Rule 8(b) of the
Supreme Court Rules of Appellate Procedure, and, thus, defendants’ due-process
argument is unfounded. See Article I, Rule 8(b) of the Supreme Court Rules of
Appellate Procedure. Reagan alternatively argues that, if this Court were to remand
this matter to allow defendants the opportunity to file a Rule 60 motion, the outcome
would not change. To support its argument, Reagan cites to Seaport Studios, Inc. v.
Waldo, 245 A.3d 1231 (R.I. 2021) (mem.), to assert that a Rule 60 motion must be
brought within a “reasonable time, but no later than one year of entry of judgment
for certain bases for relief.” See Seaport Studios, Inc., 245 A.3d at 1232. Reagan
asserts that in this case more than sixteen months have passed since the entry of
- 11 -default judgment. Therefore, Reagan argues that “[g]ranting [a] remand at this stage
would constitute an improper third bite at the apple.”
Notice
“It is well settled that, in accordance with this Court’s longstanding
raise-or-waive rule, if an issue was not properly asserted, and thereby preserved, in
the lower tribunals, this Court will not consider the issue on appeal.” Patel v. Patel,
252 A.3d 1221, 1232 (R.I. 2021) (quoting Heneault v. Lantini, 213 A.3d 410, 416
(R.I. 2019)). The raise-or-waive rule requires a litigant to make “a specific objection
to preserve an issue for appeal.” State v. Parrillo, 228 A.3d 613, 625 (R.I. 2020)
(emphasis omitted). “We require a specific objection so that the allegation of error
can be brought to the attention of the trial justice, who will then have an opportunity
to rule on it.” Patel, 252 A.3d at 1232 (quoting State v. Pona, 66 A.3d 454, 468 (R.I.
2013)); see State v. Ricker, 252 A.3d 721, 730 (R.I. 2021). Accordingly, “a litigant
cannot raise an objection or advance a new theory on appeal if it was not raised
before the trial court.” Ricker, 252 A.3d at 730 (quoting Parrillo, 228 A.3d at 623).
On March 28, 2024, the trial court issued an order granting Reagan’s motion
for conditional entry of default. This order required defendants to comply with the
trial court’s previous orders to produce documents and answers to interrogatories
within twenty days of the issue date. The defendants did not comply with the order.
Nonetheless, at a subsequent hearing held on April 22, 2024, Costa appeared pro se
- 12 -and, for the first time, raised the notice issue. During that hearing, Costa represented
to the court that he was frequently out of state and that malware on his computer
prevented him from accessing his personal e-mail. Costa asserted that he
communicated to Reagan’s counsel, prior to the hearing, that all notices related to
the litigation should be served on Costa Companies’ registered agent to be effective
as to both Costa and Costa Companies. In response, the trial justice explained to
Costa that the court had already issued an order of conditional default and that if
Costa sought to vacate the order on the grounds of defective notice, then he was
required to file a Rule 60 motion, at which point the court could address his
arguments on the matter. Specifically, the trial justice stated: “The purpose of today
is the assessment of attorney’s fees. The [c]ourt did issue an order on conditional
order of default. * * * There is a rule called Rule 60 and that outlines the reasons
why the [c]ourt should vacate or do away with an order that you may have.” The
trial justice explained that he could not “make a determination on notice * * *
without [Costa] filing the motion before the [c]ourt.” Costa affirmed to the trial
justice that he understood the necessity of filing a Rule 60 motion in order for the
trial justice to consider the issues that Costa raised at the hearing. A similar
discussion between the trial justice and Costa occurred again on August 29, 2024.
Rule 60(b), in relevant part, provides that “[o]n motion and upon such terms
as are just, the court may relieve a party or a party’s legal representative from a final
- 13 -judgment, order, or proceeding for the following reasons * * *.” Super. R. Civ. P.
60(b). Thereafter, the rule lists six reasons justifying relief from a final judgment.
See id. Notably, Rule 60(b) requires that “[t]he motion shall be made within a
reasonable time * * *. The procedure for obtaining any relief from a judgment shall
be by motion as prescribed in these rules or by an independent action.” Id.
Costa, however, neither filed a Rule 60(b) motion to vacate on behalf of
himself nor did he retain legal counsel to file a motion on behalf of Costa Companies.
Rather, defendants appealed to this Court. The trial justice informed Costa, more
than once, of what needed to be done. Thus, because the trial justice was not
afforded the opportunity to adjudicate defendants’ notice argument through an
appropriately filed motion, the issue was not properly presented to the trial justice
or preserved for appellate review. See Marchionte, 182 A.3d at 1147 (“Following
the entry of a default judgment, [defendant] did not seek relief from that judgment
pursuant to Rule 60(b). Therefore, the issue before us for review is solely the entry
of a default judgment.”). Accordingly, the sole issue for our review is whether the
trial justice abused his discretion in entering default judgment.
Default Judgment
The defendants contend that the trial justice erred in entering a default
judgment because Reagan’s failure to effectuate proper service on Costa Companies’
corporate agent rendered the motions relative to the default judgment defective. We
- 14 -disagree. We view this as a clear attempt by defendants to repackage their notice
argument in an effort to contest the trial justice’s conditional entry of default. We
have addressed defendants’ notice argument herein and reiterate that the proper
avenue for defendants to raise their issue of notice was by means of a Rule 60 motion
to vacate the judgment.
With respect to the judgment itself, we discern no error in the trial justice’s
finding. The record reveals that defendants’ attorney withdrew from representation
in June of 2023, and the trial justice issued an order to that effect on July 3, 2023.
On the same day, the trial justice entered a separate order staying discovery for
twenty days, effectively affording defendants the opportunity to retain new legal
counsel. The order also granted an additional twenty days (after the expiration of
the stay) to comply with certain outstanding discovery requests. In this forty-day
window, defendants did not comply with the order to compel discovery or retain
counsel. Approximately two months after that deadline, the trial justice entered a
second order directing defendants to comply with discovery requests within thirty
days. The order granted Costa Companies another thirty days to procure counsel.
The defendants, again, did not comply with the court order. Once more, on March
28, 2024, the trial justice issued a conditional order of default, giving defendants
twenty days to comply with the court’s prior orders. The defendants neither
complied with this order nor submitted any appropriate objections to the court. The
- 15 -trial justice gave defendants ample opportunity to comply. As a result, at a hearing
held on April 22, 2024, at which Costa was present, the trial justice stated that the
court had already issued a conditional order of default and that, if Costa intended to
object to the order, he was required to file a motion to vacate. He did not.
While we acknowledge that “[w]hen an individual elects to proceed as a
self-represented litigant, they undertake a difficult task[,] * * * the courts ‘cannot
and will not entirely overlook established rules of procedure’ just because a litigant
is self-represented.” E.H. Turf Supply Co., Inc. v. Tavares, 337 A.3d 1019, 1028
(R.I. 2025) (quoting Jacksonbay Builders, Inc. v. Azarmi, 869 A.2d 580, 585 (R.I.
2005)); see id. (“Although pro se litigants are often granted greater latitude by a
court, they are not exempt from our rules.”) (brackets omitted) (quoting Oliveira v.
Levesque, 294 A.3d 994, 998 (R.I. 2023)). Here, it is clear that the trial justice was
patient and courteous in affording defendants multiple opportunities to respond to
discovery and to obtain legal counsel prior to the entry of default. Yet, defendants
continuously ignored court orders to comply with discovery, resulting in the entry
of conditional default. Therefore, “[w]hile the drastic remedy of judgment by default
is not to be employed lightly,” we perceive no abuse of discretion in the trial justice’s
entry of default judgment in this instance. See Providence Gas Company v. Biltmore
Hotel Operating Co., 119 R.I. 108, 114, 376 A.2d 334, 337 (1977) (finding no abuse
- 16 -of discretion in entry of a default judgment when “the Superior Court justice gave
[the defendant] every opportunity before using it”).
Due-Process Argument
Costa raises a collateral argument to the effect that this Court’s imposition of
a cash bond, in the amount of $716,001.83, as a condition of remand, deprived him
of due process because “due process compels an unconditional remand” to allow
them to file a motion to vacate in the lower court. We are not convinced.
Article I, Rule 2 of the Supreme Court Rules of Appellate Procedure provides
that “[i]n the interest of expediting decision, or for other good cause shown, the
Supreme Court may suspend the requirements or provisions of [the Supreme Court
Rules of Appellate Procedure] on application of a party or on its own motion and
may order proceedings in accordance with its direction.” Accordingly, Rule 2 gives
this Court authority to impose a bond on the defendants’ request for a remand to
protect Reagan’s judgment in the lower court while the matter is on appeal. In doing
so, the defendants’ due-process rights were not violated.4
Conclusion
For the reasons set forth herein, we affirm the judgment of the Superior Court.
The papers may be remanded thereto.
4
The defendants did not specifically challenge the constitutionality of Article I, Rule 2 of the Supreme Court Rules of Appellate Procedure, only that a cash bond was required for a remand.
- 17 -STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Reagan Marine Construction, LLC v. Victor Costa et
Title of Case
al.
No. 2024-344-Appeal.
Case Number
(PC 22-6418)
Date Opinion Filed July 7, 2026
Suttell, C.J., Robinson, Lynch Prata, Long, and
Justices
Indeglia (ret.), JJ.
Written By Associate Justice Erin Lynch Prata
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Brian P. Stern
For Plaintiff:
Michael Dickman, Esq.
Attorney(s) on Appeal
For Defendants:
Thomas M. Dickinson, Esq.
SU-CMS-02A (revised November 2022)