dissenting.
I respectfully dissent. The grounds for my disagreement with the majority are as follows:
(1) Rule 37 of the Superior Court Rules of Civil Procedure, not Rule 55, is the operative rule governing the judgments
that entered in this case. Applying Rule 55, the majority declares that the “final judgments” that entered in this case as sanctions for the town’s noncompliance with the court’s orders concerning plaintiffs’ discovery demands were void to the extent that they purported to award the relief that plaintiffs had requested in the complaints, and to the extent they included a specific mandate for the town to begin paying plaintiffs 100 percent of a town police officer’s current salary and benefits. But “‘[a] judgment is not void merely because it is erroneous.’ ” Allstate Insurance Co. v. Lombardi, 773 A.2d 864, at 869 (R.I.2001). Moreover, the basis for the majority’s conclusion is its belief that, under Rule 55, the entry of a default entitles a plaintiff only to a judgment for liability, but it is not considered an admission of damages. I believe, however, that this analysis is inappropriate for evaluating the judgments that entered in this case as a sanction for the town’s violation of the court’s discovery orders. Under Rule 37(b)(2), if a party “fails or refuses to obey an order to provide or permit discovery * * * the court may make such orders and enter such judgment in regard to the failure or refusal as are just * * (Emphasis added.) Thus, among the specific sanctions that the Superior Court may impose against a party who is guilty of failing to obey a discovery order is “a final judgment * * * rendering a judgment by default against the disobedient party.” Super.R.Civ.P. 37(b)(2)(C). No prior entry of a default is required, nor is there any requirement that the judgment adjudicate only liability but not damages. As one commentator has noted with regard to the analogous federal rule:
“Rule 37 is flexible. The court is directed to make such orders ‘as are just’ and is not limited in any case of disregard of the discovery rules or court *84orders under them to a stereotyped response. The sanctions enumerated in the rule are not exclusive and arbitrary but flexible, selective, and plural.” 8A Wright, Miller, & Marcus, Federal Practice and Procedure, § 2284 at 612 (1994).
Hence, “[w]ith a rule as flexible as Rule 37, inevitably a broad discretion must be given the trial judge with regard to sanctions.” Id. at 614; accord 1 Kent, R.I. Civ. Prac., § 37.1 at 304 (1969) (“Rule 37 arms the court with a wide variety of devices ranging from the very mild to the severe sanctions of dismissal and default, and it confers upon the court’s broad discretion as to their use.”). Moreover, in addition to allowing the entry of final judgments rendering a judgment by default against the disobedient party, Rule 37(b)(2)(A) also allows the court to enter “[a]n order that the matters regarding which the order was made, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.” Further, pursuant to Rule 37(b)(2)(B), such a discovery-sanctions order can bar the disobedient party from supporting or opposing designated claims or defenses, and it can prohibit the “disobedient party from introducing designated matters in evidence.”
Here, the final judgments that entered following defendants’ persistent failure to obey the court’s discovery orders were consistent with the Superior Court’s broad discretion to fashion an appropriate remedy for such violations, and they were also perfectly consistent with the factual allegations and the theory of liability set forth in the complaints. The complaints alleged that plaintiffs had been police officers of the town who were disabled while they were employed and that their disabilities continued to the present. If those allegations were true, then plaintiffs would be entitled to the relief afforded them in the judgments unless some affirmative defense existed that would restrict or bar such relief. But Rule 37 authorized the court to enter a form of “final judgment” for defendants’ discovery violations that precluded such affirmative defenses. Thus, I disagree with the majority’s conclusion that any portion of these judgments was void or inappropriate or inconsistent with the type of sanctions that can be imposed upon the failure of a party to provide discovery as ordered by the court. In my judgment, Rule 65 simply does not apply in this situation. Rather, Rule 55 concerns defaults and default judgments that are entered after one party has failed to answer or to defend a lawsuit in a timely manner. But it does not apply to the judgments that entered here as a sanction for the town’s discovery violations.
(2) The refusal to vacate these judgments. I also do not believe that the three different Superior Court justices who were involved in this matter abused their discretion either in entering the discovery-sanctions judgments or in refusing to vacate them. A review of the record indicates that, in three of the cases below, the defendants failed to submit any objection whatsoever to the final judgments that plaintiffs proposed as sanctions for defendants’ violation of the court’s discovery orders. Although defendants did object to the proposed “final judgment” in the action brought by Stephen Riccitelli, the objection only included assertions that the town’s failure to comply with discovery orders resulted from clerical errors that amounted to excusable neglect. In sum, when plaintiffs moved the court to enter these judgments as sanctions for the town’s discovery violations, defendants never objected by raising any of the grounds that they now assert on appeal as reasons to vacate the judgments and over*85turn the Superior Court’s Rule 60 determinations. As a result, these arguments have been waived. Moreover, defendants simply were unable to demonstrate any excusable neglect after their repeated failure to comply with the court’s discovery orders. In an appeal from an order denying a motion to vacate under Rule 60(b) of the Superior Court Rules of Civil Procedure, this Court reviews only the correctness of that order, but not issues concerning the correctness of the judgment sought to be vacated. See Astors’ Beechwood v. People Coal Co., 659 A.2d 1109, 1115 (R.I.1995); Pari v. Pari, 558 A.2d 682, 634 (R.I.1989).
(3) Law of the case doctrine. With respect to plaintiffs Webster, Bolton, and Ferrante, I do not believe they should have been allowed to bring successive motions to vacate the judgment, even on grounds not initially raised, after the first Superior Court justice denied their initial motion to vacate. Otherwise, litigants will be encouraged to bring multiple motions to vacate judgments; trying one motion justice after another — and one argument after another — until they find one that is amenable to their client’s position. The law-of-the-case doctrine should have precluded reconsideration of the earlier denial of the motions to vacate. Ferguson v. Marshall Contractors, Inc., 745 A.2d 147, 151 (R.I.2000) (“The law-of-the-case doctrine 'states that ordinarily, after a judge has decided an interlocutory matter in a pending suit, a second judge, confronted at a later stage of the suit with the same question in the identical manner, should refrain from disturbing the first ruling.’ ”). Thus, I concur with the decisions of the two Superior Court justices who refused to vacate the judgments.
(4) The judgments entered under Rule 37 properly barred defendants from arguing the propriety of awarding injured-on-duty benefits to incapacitated police officers who have voluntarily retired. For the reasons previously indicated, I do not believe that the legal merit of the judgments that entered in this case is even properly before us. Nevertheless, even if we were able to reach this issue, the theory of liability in plaintiffs’ complaints was that they were entitled to damages based upon the town’s failure to pay their full salary and other benefits as provided for in G.L.1956 § 45-19-1 and in the applicable collective-bargaining agreement. The complaints alleged that they were injured on duty and remained incapacitated as of the time they sought relief from the town via their complaints. Although their voluntary retirement from the police force after their incapacitating injury may or may not have been a valid affirmative defense to that portion of their complaint that sought injured-on-duty benefits after their retirement, that fact did not appear in any of the complaints, and the judgments that entered in this case “operated as an unqualified admission of [defendants’] liability to the plaintiffs and precluded them from raising any affirmative defenses, all of which had been waived * * Calise v. Hidden Valley Condominium Association, 773 A.2d 834, 839 (R.I.2001). Thus, the “final judgments” in this case effectively barred defendants from raising any voluntary-retirement defense after they had disobeyed the court’s discovery orders and suffered the sanction of damage judgments being entered against them that were consistent with plaintiffs’ liability theory. “The entire theory of a default is that a defaulting defendant has forfeited the privilege of disputing liability.” Id. at 841. Thus, at the hearing to calculate the damages specified in the previously entered judgments, defendants should not have been permitted to introduce evidence concerning plaintiffs’ alleged voluntary retirement from the po*86lice force in an effort to defeat or limit plaintiffs’ theory of liability or the measure of damages specified in the judgments. Even though defaults entered under Rule 55 may be limited to liability determinations, default judgments entered under Rule 37 can and often do award damages and other relief that the non-defaulting party may be entitled to recover pursuant to the well-pleaded allegations in the complaint. See, e.g., Securities Exchange Commission v. First Financial Group of Texas, Inc., 659 F.2d 660, 664-66 (5th Cir.1981) (upholding entry of default judgment providing injunctive relief for persistent failure to respond to discovery requests). Thus, the Superior Court did not err by entering default judgments that provided, inter alia, for injunctive relief and for a particular measure of calculating the damages in this case.
(5) The plaintiffs’ collective-bargaining agreement trumped any voluntary-retirement restrictions on collecting injured-on-duty benefits. Moreover, on the merits, I do not agree with the majority that § 45-19-1 is necessarily inconsistent with awarding injured-on-duty benefits to disabled police officers who have retired when, as here, it was alleged that the parties’ collective-bargaining agreement provided them with such benefits. In Chester v. aRusso, 667 A.2d 519 (R.I.1995), this Court held that the provisions of a collective-bargaining agreement between this same town and its police officers called for injured-on-duty benefits to be paid to the town’s retired police officers and that this agreement trumped any special legislation to the contrary. Moreover, the Court expressly noted that such an agreement was consistent with the general legislation (namely, § 45-19-1) providing for injured-on-duty benefits to be paid. Id. at 521 (“[H]ere, there exists a valid and enforceable collective-bargaining agreement whose terms provide greater disability benefits than is afforded by the special [retirement] legislation but are in accordance with the provisions of the general legislation * * *.”). This was the same liability theory that plaintiffs invoked in their complaints. Thus, I can discern no reason to overrule or to distinguish this Court’s Chester ruling. Moreover, on its face, § 45-19-1 does not contain any requirement of continued employment during the period when injured-on-duty benefits are paid, so long as the disabled officer’s incapacity continues. See, e.g., Brissette v. Potter, 560 A.2d 324 (R.I.1989). Indeed, both Chester and Brissette involved former police officers — that is, police officers who were no longer employed by the town — who this Court ruled were nonetheless entitled to benefits under collective-bargaining agreements that tracked the terms of § 45-19-1.
In Brissette, this Court held that the mere fact that the municipality had terminated the disabled police officer after he was injured on duty did not disqualify that officer from thereafter receiving benefits under § 45-19-1. 560 A.2d at 326. In that case, the municipality argued that the injured-on-duty statute “implies that a town may place such a disabled police officer on a disability pension” providing for lesser benefits than § 45-19-1. Brissette, 560 A.2d at 325. But we said there as follows:
“It is true that reference is made to a disability pension in the statute, but there is no clear delineation in respect to when and in what circumstances an officer’s pay may be reduced when he is wholly or partially incapacitated due to injuries received in the performance of his duties. The language within § 45-19-1 clearly states that the town ‘shall, during the period of such incapacity, pay *87such police officer * * * the salary or wage to which the said police officer * * * would be entitled had he not been so incapacitated.’ The statute is so clear and straightforward that we are unable by construction to import a different meaning into those words.” Id. at 325-26.
As a result, this Court held that “under the clear language of the controlling statute and under the clear language of the provision of the contract [collective-bargaining agreement] that simply tracks the statute, plaintiff [the former police officer] is entitled to receive the salary to which he would have been entitled had he not been so incapacitated.” Id. at 826. Thus, under Chester and Brissette any requirement of contemporaneous employment at the time injured-on-duty benefits are to be paid does not appear to be a precondition for recovery under § 45-19-1. For this reason, I respectfully disagree with the majority’s analysis concerning the merits of these complaints, even if it were appropriate to reach the merits (and, for the reasons previously stated, I do not believe it is).
(6) Prejudgment interest. The majority concludes that because “the compensation of police officers pursuant to § 45-19-1 is a governmental function,” the town (as an agent of the state) is protected by sovereign immunity and is therefore not liable to the plaintiffs for prejudgment interest as provided by G.L.1956 § 9-21-10. Although I fully agree with the majority that “[t]he exercise of police power is a purely governmental function,” I do not agree that by entering into and then breaching employment contracts with its police officers and/or their union that a municipality is thereby exercising its police power. A municipality’s entry into and then its breach of an employment contract or a collective-bargaining agreement with its police force is a proprietary function and no more an exercise of its police power than its entry into a contract to paint the station house or its signing of a purchase and sale agreement to acquire squad cars. “[A] proprietary function is one which is not ‘so intertwined with governing that the government is obligated to perform it only by its own agents or employees.’ ” Housing Authority of Providence v. Oropeza, 713 A.2d 1262, 1263 (R.I.1998) (quoting Lepore v. Rhode Island Public Transit Authority, 524 A.2d 574, 575 (R.I.1987)).
To distinguish between municipal conduct that is governmental or proprietary, “[t]he appropriate inquiry is “whether the activity [at issue] was one that a private person or corporation would be likely to carry out.’ ” Id. (quoting DeLong v. Prudential Property and Casualty Insurance Co., 583 A.2d 75, 76 (R.I.1990)). “If the answer is affirmative, then [the conduct is proprietary and] liability will attach.” O’Brien v. State, 555 A.2d 334, 338 (R.I.1989). In this case, although investigating and arresting criminal suspects is not an ‘“activity * * * that a private person or corporation would be likely to carry out,’ ” a private person or corporation frequently and quite regularly enters into employment and collective-bargaining contracts with employees. Oropeza, 713 A.2d at 1263. Therefore, because the town failed to abide by the collective-bargaining agreement and breached its contract with the plaintiffs, it should be liable for prejudgment interest pursuant to § 9-21-10.
This Court so concluded in North Smithfield Teachers Association v. North Smithfield School Committee, 461 A.2d 930 (R.I.1983). There, we held that the Town of North Smithfield was liable to pay prejudgment interest, in accordance with § 9-21-10, because it refused to abide by a collective-bargaining agreement and breached its contract with the plaintiff *88teachers association. 461 A.2d at 933. Just as exercising police power is a governmental function, we have held that providing public education “is a governmental function and not a proprietary one.” Chakuroff v. Boyle, 667 A.2d 1256, 1258 (R.I.1995). Thus, implicit in our holding in North Smithfield — that the town was liable for prejudgment interest because of its breach of contract — is the conclusion that when a municipality contracts with and then breaches its agreement with a public teachers association it has engaged in a proprietary rather than governmental function. Otherwise, the Court could not have held that the town was hable to pay prejudgment interest in North Smithfield because “pursuant to § 9-21-10, prejudgment interest may [only] be awarded against a municipality on a breach of contract claim where a municipality acts in a proprietary or enterprise capacity.” Fleet Construction Co. v. Town of North Smithfield, 713 A.2d 1241, 1245 (R.I.1998); see also Reagan Construction Corp. v. Mayer, 712 A.2d 372, 374 n. 2 (R.I.1998) (“Because the municipality in [Jolicoeur Furniture Co. v. Baldelli, 653 A.2d 740 (R.I.1995)] had acted in a proprietary capacity when it breached a contract to transfer real estate to the plaintiff and not as a governmental agent of the state, the municipality was not entitled to assert sovereign immunity as a shield against the imposition of interest on a judgment”). Therefore, because in North Smithfield this Court held that the act of a municipality in breaching its contract with a public-school teachers association constituted a proprietary function such that the town was hable to pay prejudgment interest, we should hold here that the act of a municipahty breaching a contract with its police officers is also a proprietary function that exposed the town to prejudgment interest liability.
Finally, I do not agree that Connelly v. Retirement Board of Providence, 633 A.2d 1352 (R.I.1993) (Connelly II), is apphcable here. In Connelly v. City of Providence Retirement Board, 601 A.2d 498, 500-01 (R.I.1992) (Connelly I), the Court held that because there was no dispute that the plaintiff firefighter suffered his disability while on duty, he was entitled to accidental disability retirement benefits instead of ordinary disability retirement benefits. Yet, because “determination of benefits was not an award of damages to which the statute [§ 9-21-10] would apply[, the Court held in Connelly IP\ that the plaintiff [was] not entitled to [prejudgment] interest” on the underpaid amounts. Connelly II, 633 A.2d at 1352-53. Here, however, the Rule 37 judgments contained a measure of damages that was not merely a “determination of benefits” but rather a determination that the town had breached the collective-bargaining agreement and, as a result, owed plaintiffs money damages. The measure of damages specified in the final judgments was “the difference between what [the town] paid [plaintiffs] since [the date of their injuries] and 100 percent of the salary and other benefits [they] would have received since [the date of injury] if [they] had continued to receive a salary and benefits.” Thus, Connelly II is not controlling here.
Therefore, I believe that the Superior Court erred in refusing to award prejudgment interest to the plaintiffs in this case. For these reasons, I would affirm the judgments below in all respects, except with regard to the ruling denying prejudgment interest. On that issue, I would reverse and remand the case to the Superior Court for the calculation and award of interest.