Thomas Shannahan v. Charles D. Moreau , 202 A.3d 217 ( 2019 )

March 11, 2019
Supreme Court
No. 2018-22-Appeal.
(PC 07-5714)
Thomas Shannahan et al. :
v. :
Charles D. Moreau 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
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2018-22-Appeal.
(PC 07-5714)
Thomas Shannahan et al. :
v. :
Charles D. Moreau et al. :
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
OPINION
Justice Indeglia, for the Court. In this action, which involves various allegations
against Charles D. Moreau (Moreau), the former mayor of the City of Central Falls, the
plaintiffs, Thomas Shannahan (Shannahan), Thomas Wilson (Wilson), Donald D. Twohig
(Donald D.), and the Estate of Donald P. Twohig (Donald P.) (collectively plaintiffs),1 appeal
from the grant of summary judgment in favor of the defendant, The Rhode Island Interlocal Risk
Management Trust (the Trust).2 This matter came before the Court on January 15, 2019,
pursuant to an order directing the parties to appear and show cause why the issues raised should
not be summarily decided. After considering the arguments set forth in the parties’ memoranda
and at oral argument, we are convinced that cause has not been shown. Thus, further argument
or briefing is not required to decide this matter. For the reasons outlined below, we affirm the
judgment of the Superior Court.
1
Because two of the plaintiffs in this case are named “Donald Twohig,” we will refer to each by
their first name and middle initial. No disrespect is intended.
2
Pursuant to a consent order entered in 2013, Moreau was dismissed from this case.
Additionally, pursuant to that order, the insurer for the City of Central Falls, The Rhode Island
Interlocal Risk Management Trust, was substituted as a party defendant for the city. The Trust is
the only remaining defendant in this case.
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I
Facts and Travel
Today we close the book on what was a sad and scandal-plagued chapter in the history of
the City of Central Falls (the city or Central Falls). The facts of this litigation, which has
persisted for over fifteen years, are as follows. In 2003, Moreau ran as a candidate for mayor of
Central Falls against the then-incumbent mayor, Lee Matthews (Matthews). During his
campaign, Moreau stated several times that, should he win, he would seek to remove Wilson
from Wilson’s position as the chief of the Central Falls Police Department.3 Moreau also
became aware that plaintiffs had, in one form or another, supported Matthews’ re-election
efforts.4 Eventually, the campaign culminated in a victory for Moreau in November 2003, and
he was sworn in as the mayor of the city on January 5, 2004. Prior to Moreau taking office,
however, in December 2003, in response to Moreau’s previous threats, Wilson filed for
injunctive relief in the United States District Court for the District of Rhode Island (the District
Court) to prevent Moreau from removing him from his position. See Wilson v. Moreau, 440 F.
Supp. 2d 81, 86 (D.R.I. 2006). In a stipulation entered in that case on December 19, 2003, the
parties agreed that “the [District Court] case would be held in abeyance for 120 days, at which
point the case would be dismissed without prejudice if Moreau had not taken any adverse
employment action against Wilson during that time period.” Id.
3
Wilson, who was appointed to the position of chief of police by Matthews in 2003, was the
former deputy chief of police in the City of Warwick. In the October 30, 2003 edition of The
Pawtucket Times, Moreau was quoted as stating: “Chief Wilson is a great guy, but I’d replace
him and it wouldn’t be hard because he’s working without a contract”; “We need to address the
problems better”; and “[Wilson] leaves every day at 4 p.m. and heads home to Warwick, so
while people are being beat up on Broad and Dexter streets at night, he’s on the couch. Why was
he even hired?” Wilson v. Moreau, 440 F. Supp. 2d 81, 86 (D.R.I. 2006).
4
Plaintiffs also claim that Moreau requested Shannahan’s support during the campaign and that
Shannahan refused.
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During the first few months of his troubled tenure, Moreau’s relationship with Wilson
was tense. See Wilson, 440 F. Supp. 2d at 86. On several occasions, Moreau, in his capacity as
the city public safety director, called meetings with Wilson’s subordinates without including
Wilson. Id. In March 2004, Moreau suspended Wilson, without pay, for insubordination,
publicly citing Wilson’s abuse of vacation and leave time as the rationale for such suspension.
Id. at 87. Moreau was quoted in several newspapers at the time regarding this incident, faulting
Wilson for attending out-of-state conferences in Kansas and Connecticut without permission
from the city.5 Id. at 86-87. Later, Moreau ordered Wilson to bring his city-owned vehicle to
city hall because Moreau wanted to trade vehicles with him. Id. at 87. Upon Wilson’s arrival,
Moreau took possession of Wilson’s car and told Wilson that his replacement car was not yet
ready. Id. Wilson eventually received another vehicle—“a rusted old car.” Id.
While in office, Moreau also engaged in public spats with Shannahan, Donald P., and
Donald D. See Wilson, 440 F. Supp. 2d at 87-88. Shannahan and Donald D. were city employees
working at the Adams Library in Central Falls,6 as a librarian and a systems administrator,
respectively; Donald P. was not an employee of the city, but he worked at the library as an
independent contractor. Id. at 87, 88. In January 2004, the city stopped all payments to Donald
P. for seven weeks, due to his purported failure to obtain the proper registration card and
insurance. Id. at 87. Donald P. alleges that Moreau had also placed a padlock on a shed near the
library where Donald P. had kept his work tools.7 Around that same time, without informing
Wilson, Moreau ordered a police investigation into the larceny of certain blank checks from
Donald P.’s home in Smithfield, Rhode Island, despite the fact that the Smithfield police had
5
Wilson claimed that he had obtained approval from the Moreau administration to attend these
conferences.
6
The Adams Library is a privately owned building that is staffed by city employees.
7
This alleged act forms the basis of Donald P.’s conversion claim in Count VII of the complaint.
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already concluded that Donald P. was the victim of that crime. Id. at 88. Moreau also publicly
questioned the library’s payment of nearly $400,000 to Donald P. for non-bid work over a six-
year period, and Moreau was quoted in the April 22, 2004 edition of The Pawtucket Times as
stating: “Tom Shannahan has done a great job, but it appears the purchasing procedure has been
circumvented. We’re bringing that to light. Policies have to be followed.” Id. at 87, 112.
On April 12, 2004, citing the poor treatment of his staff under the Moreau administration,
Shannahan announced that he would be stepping down from his position as librarian of the
Adams Library at the end of that month. Wilson, 440 F. Supp. 2d at 88. Then, on April 20, 2004,
acting on a tip from a former mayor of Central Falls that Matthews had run his campaign out of
the Adams Library, Moreau ordered the police department to conduct a search of the library. Id.
During this search, the police focused their efforts on Donald D.’s computer, even going so far as
to delve into his personal email account.8 Id. When Shannahan contacted Wilson to find out
what was going on, Wilson replied that he had not been informed of the raid. Id. at 89. For his
part, Wilson, as chief of police, sought a determination from the Rhode Island Department of the
Attorney General regarding whether the raid was legal. Id. After being informed that there was
no basis for a criminal investigation and finding no evidence of criminality, and despite orders
from Moreau to the contrary, Wilson declined to pursue the library investigation further. Id.
Eventually, in early May 2004, Moreau sent a letter to Wilson explaining that Moreau
was considering removing Wilson from his position as chief of police because of Wilson’s
failure to investigate alleged violations of the city charter at the Adams Library. Wilson, 440 F.
8
In an article that ran in The Pawtucket Times on April 22, 2004, Moreau stated that the police
had found materials supporting Matthews on the computer and that Moreau’s legal team was
conducting an investigation into the matter. The article read, in part: “[Detective] Brayall,
Moreau said, pulled three documents from [Donald D.’s] files in [Donald D.’s] computer, all of
them letters written for the Matthews campaign. Several hours later, those files were gone from
the computer, Moreau said.”
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Supp. 2d at 89. In response, Wilson obtained a temporary restraining order from the District
Court to delay any action in this regard, which led Moreau to suspend Wilson, with pay, for an
indefinite period of time.9 Id. at 89-90. On May 12, 2004, Wilson resigned in light of his
ongoing contentious relationship with Moreau. Id. at 90.
On May 24, 2004, Wilson amended his complaint in the District Court to include
Shannahan, Donald P., and Donald D. as plaintiffs. Wilson, 440 F. Supp. 2d at 90. The
complaint alleged twelve counts, including constitutional claims for violations of the right to
substantive and procedural due process and to equal protection, violations of the Charter of the
City of Central Falls, and claims under 42 U.S.C. § 1983 for violations of the First, Fourth, Fifth,
and Fourteenth Amendments to the United States Constitution. Id. at 90, 92, 93, 101, 108-09,
110, 111. The plaintiffs also brought Rhode Island state law claims for defamation, invasion of
privacy, intentional infliction of emotional distress, and computer trespass. Id. at 111. After the
grant of summary judgment in favor of the defendants on several counts, only two federal claims
brought by Donald P. and Donald D., as well as the state law claim for computer trespass by
Donald D., survived. Id. at 117. However, the remaining federal claims were then resolved in
favor of the defendants at or after trial. Wilson v. Moreau, 492 F.3d 50, 52 (1st Cir. 2007).
Because the federal claims by Wilson and Shannahan did not withstand summary judgment
review, the District Court declined to exercise pendent jurisdiction over their claims brought
under state law, dismissing them without prejudice. Wilson, 440 F. Supp. 2d at 111-12. The
District Court judgment became final after the First Circuit heard and denied plaintiffs’ appeal on
June 29, 2007. Wilson, 492 F.3d at 54.
9
The city had also scheduled a pre-termination hearing for Wilson, which did not take place; a
hearing in the District Court was scheduled on a preliminary injunction, but Wilson resigned and
that hearing was canceled. Wilson, 440 F. Supp. 2d at 90.
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After the dust had settled following the resolution of the federal case, plaintiffs filed the
instant action in Providence County Superior Court on October 26, 2007. The complaint, which
was subsequently amended, alleged seven causes of action against Moreau and the city under
Rhode Island state law: defamation (Count I); invasion of privacy based on false light and public
disclosure of private facts (Count II); intentional or negligent infliction of emotional distress
(Count III); intentional interference with contract/economic advantage (Count IV); invasion of
privacy based on intrusion upon privacy and seclusion (Count V); civil conspiracy (Count VI);
and conversion (Count VII).10
The city filed for bankruptcy in 2011, and a state-appointed receiver was designated to
oversee the city’s finances. Later, in September 2013, the Superior Court entered a consent order
dismissing Moreau as a party defendant and substituting the Trust as defendant on behalf of the
city, leaving “the City of Central Falls, through [t]he Trust as a substituted Defendant * * * the
only remaining Defendant in the action[.]” The consent order also stated that the Trust would
retain “all defenses that would have been available to the [city], both statutorily and otherwise[.]”
On February 26, 2016, the Trust filed two motions for summary judgment, one pertaining
to the old claims, while the other focused on the new claims.11 In opposition to the motions,
plaintiffs submitted fourteen volumes of depositions, along with a memorandum of law in
10
The parties refer to the first three counts (for defamation, invasion of privacy, and intentional
or negligent infliction of emotional distress) as “the old claims” because they had first been
brought in federal court in 2004. In the instant case, these claims were brought solely by Wilson
and Shannahan, as Donald P. and Donald D. had these causes of action fully adjudicated in
federal court. For ease of reference, we will similarly refer herein to Counts I through III
collectively as “the old claims.” Counts IV, V, and VI (for interference with contract, invasion of
privacy and conspiracy) were brought by all plaintiffs. Count VII (for conversion) was brought
exclusively by Donald P. The parties refer to Counts IV through VII, collectively, as “the new
claims” because these claims were not brought in federal court. For ease of reference, we will
similarly refer to Counts IV through VII collectively as “the new claims.”
11
The Trust explained that this was done in order to aid the hearing justice in managing the
numerous claims involved.
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support of their opposition. A hearing on the summary-judgment motions was held on
December 1, 2016. The Trust first argued that the new claims were barred by the doctrine of res
judicata or, in the alternative, that they were barred by the statute of limitations for tort actions
against cities and towns contained in G.L. 1956 § 9-1-25.12 The Trust asserted that it had not
waived the statute of limitations defense because the Trust had raised the defense in its answers
to both the original and amended complaints in Superior Court and had pressed the statute of
limitations issue prior to trial.
With regard to the old claims, the Trust first averred in support of summary judgment that
plaintiffs had not put forth any admissible evidence that Moreau had committed the alleged torts
within the scope of his employment with the city. The Trust further contended that these acts, as
alleged by plaintiffs, were born out of a “personal political vendetta” propagated by Moreau and
therefore could not be imputed to the city. Turning to plaintiffs’ claim of negligent infliction of
emotional distress, the Trust argued that plaintiffs did not fall into either of the two classes of
persons who may maintain a cause of action for that tort. On the claim of intentional infliction
of emotional distress, the Trust averred that plaintiffs had failed to prove that Moreau’s conduct
was extreme and outrageous. The Trust next asserted that the defamation claims failed as a
matter of law because: (1) plaintiffs failed to submit admissible evidence in support of the
12
General Laws 1956 § 9-1-25 provides:
“When a claimant is given the right to sue the state of Rhode
Island, any political subdivision of the state, or any city or town by
a special act of the general assembly, or in cases involving actions
or claims in tort against the state or any political subdivision
thereof or any city or town, the action shall be instituted within
three (3) years from the effective date of the special act, or within
three (3) years of the accrual of any claim of tort. Failure to
institute suit within the three (3) year period shall constitute a bar
to the bringing of the legal action.”
-7-
claims; (2) the statements were not false or defamatory; (3) some of the statements were made
before Moreau was inaugurated; (4) plaintiffs were public figures; and (5) Moreau was entitled
to absolute and qualified privilege.
The plaintiffs replied, in opposition to summary judgment, that the Trust’s statute-of-
limitations and res judicata arguments should have been litigated at an earlier time, and that
summary judgment was not appropriate at that moment. While being peppered with questions
from the hearing justice, plaintiffs proclaimed that the statute-of-limitations defense had been
waived because, even though the limitations defense had been included in defendants’ answers to
plaintiffs’ original and amended complaints, the city had not pressed the defense during the
entirety of the case.13 The plaintiffs then claimed that, even if not required by the Superior Court
Rules of Civil Procedure, the Trust should have included an undisputed statement of facts with
its motions for summary judgment. The hearing justice replied, stating that it was plaintiffs’
burden to show an issue of material fact and that all that plaintiffs had offered was “a stack of
depositions about two-feet high with a memo that said because this case is so complicated,
summary judgment should not issue.” The plaintiffs replied that the depositions of Moreau and
the newspaper articles, as a whole, created issues of material fact; but, when pressed, they could
not recite which portions of those documents supported their claims.14 Furthermore, plaintiffs
claimed that Moreau’s statements and actions were made in the course of his employment
because, as mayor, he set the policy of the city. In conclusion, plaintiffs requested that the court
13
The plaintiffs’ attorney admitted that the new claims “stand on a weaker legal foundation than
the first ones” with regard to the statute of limitations.
14
The plaintiffs’ counsel also seemed to concede at the hearing that the newspaper articles that
plaintiffs had submitted in support of their opposition to the Trust’s motions for summary
judgment were precluded under the hearsay rule.
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look at the totality of the evidence to find that genuine issues of material fact existed as to their
claims.
The hearing justice issued a bench decision on August 1, 2017.15 The hearing justice first
noted that plaintiffs had simply offered a blanket objection to the motions for summary
judgment, in which they stated generally that there were genuine issues of material fact that
should prevent the entry of summary judgment. The hearing justice found at the outset that
plaintiffs’ lack of objection alone provided a basis for her to grant summary judgment, but she
nevertheless reviewed the substance of the motions. In doing so, she went on to decide each of
plaintiffs’ claims individually. The hearing justice determined that the new claims of Donald P.
and Donald D. in Counts IV through VII were barred by res judicata because the federal courts
had fully adjudicated the claims by those plaintiffs, and the new claims could have been brought
by Donald P. and Donald D. in the federal case but were not. However, she decided that the
claims brought by Wilson and Shannahan were not barred by res judicata, because the District
Court had dismissed their claims without prejudice.
The hearing justice next turned to the Trust’s statute-of-limitations argument. She stated
that the old claims of Wilson and Shannahan were timely because the statute of limitations was
tolled during the pendency of the District Court litigation. Nevertheless, the hearing justice
noted that there was no tolling for their new claims, Counts IV through VI. Next, the hearing
justice reviewed the new claims and determined that the last actionable event (Donald D.’s
termination) occurred on August 10, 2004, and that, therefore, the statute of limitations under
§ 9-1-25 had run on August 10, 2007. She concluded that, because they had not filed their action
15
While it appears from a review of the dockets in this case that a transcript of the August 1,
2017 bench decision was not filed in the Superior Court or in this Court, a copy was appended to
plaintiffs’ brief.
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until October 26, 2007, the new claims by Wilson and Shannahan were barred by the statute of
limitations.
The hearing justice indicated that the discovery materials that plaintiffs had provided
demonstrated that Moreau may have been acting within the scope of his employment with the
city. Even though the hearing justice noted that it was plaintiffs’ obligation to draw the hearing
justice’s attention to specific evidence to counter the Trust’s motions for summary judgment, she
performed an exhaustive review of the fifty-one newspaper articles, as well as a cable television
program transcript, that plaintiffs had submitted along with their memorandum in support of their
objection to the motions for summary judgment. She found that twelve of the articles referred to
statements that Moreau had made before his inauguration, all of which therefore could not be
imputed to the city. The hearing justice concluded, after looking at the alleged defamatory
statements that occurred during Moreau’s tenure as mayor that, as a matter of law, none qualified
as being defamatory. She also reasoned that Moreau had qualified immunity when he made
those statements because they were all regarding matters of public concern. The hearing justice
noted that plaintiffs had failed to meet their burden of establishing that Moreau had acted with
malice, which was a requirement to overcoming the qualified privilege that Moreau enjoyed.
Because she determined that none of Moreau’s statements could be construed as defamatory, the
hearing justice granted the Trust’s summary-judgment motion as to Count I.
The hearing justice likewise granted summary judgment as to Count II because plaintiffs
had not demonstrated a material issue of fact as to how Moreau had placed them in a false light.
The hearing justice further decided that summary judgment was also appropriate as to Count III.
She found that the claim of negligent infliction of emotional distress was unavailing because
Wilson and Shannahan were not within the two classes of persons who may maintain an action
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for that tort under Rhode Island law. Furthermore, the hearing justice reasoned that Wilson and
Shannahan could not recover on a claim for intentional infliction of emotional distress because
they had not proven that Moreau’s conduct went beyond the bounds of conduct tolerated in a
civilized society and also because plaintiffs had not alleged physical injury.
On September 6, 2017, an order entered granting summary judgment in favor of the Trust
on all counts, and final judgment entered in favor of the Trust. The plaintiffs timely appealed to
this Court on September 25, 2017.
II
Standard of Review
“A motion for summary judgment ‘is designed to decide in an expeditious fashion cases
presenting groundless claims.’” Hexagon Holdings, Inc. v. Carlisle Syntec Incorporated, 199
A.3d 1034, 1038 (R.I. 2019) (deletion omitted) (quoting Gallo v. National Nursing Homes, Inc.,
106 R.I. 485, 487, 261 A.2d 19, 21 (1970)). “When we review a hearing justice’s grant of a
motion for summary judgment, we conduct our analysis de novo.” Id. “If we determine that
‘there exists no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law,’ then we will affirm the grant of the motion.” Id. (alteration omitted) (quoting
Sisto v. America Condominium Association, Inc., 68 A.3d 603, 611 (R.I. 2013)). “In this
endeavor, ‘we view the evidence in the light most favorable to the nonmoving party.’” Id.
(alteration omitted) (quoting Narragansett Indian Tribe v. State, 81 A.3d 1106, 1109 (R.I.
2014)). “However, once the moving party establishes ‘the absence of a material factual issue,
the party opposing the motion has an affirmative duty to establish either by affidavit or by other
means the material issue of fact to be decided.’” Id. (quoting Grissom v. Pawtucket Trust Co.,
559 A.2d 1065, 1066 (R.I. 1989)). “The party opposing the motion cannot establish a genuine
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issue of fact merely by resting on denials in its pleadings. Id. Rather, the opposing party must
‘respond with specific facts that would constitute a genuine issue for trial.’” Id. (quoting Volino
v. General Dynamics, 539 A.2d 531, 533 (R.I. 1988)).
III
Discussion
In their papers to this Court, plaintiffs aver that “there are numerous facts alleged and
denied by the Trust which demand adjudication[,]” but they do not direct our attention to what
those facts might be. The plaintiffs’ first and overriding contention for overturning the hearing
justice’s decision is their assertion that the complexity of this case precluded consideration of the
Trust’s motions for summary judgment. While we agree that this case does display a certain
level of complexity—with four plaintiffs and twenty-two claims—we find this argument to be
without merit.
In Kirshenbaum v. Fidelity Federal Bank, F.S.B., 941 A.2d 213 (R.I. 2008), we held that
“[the] plaintiff’s contention that summary judgment was inappropriate because the facts are
‘ridiculously convoluted’ is utterly devoid of merit.” Kirshenbaum, 941 A.2d at 218 (footnote
omitted). There, we explained that
“[t]he very nature of our judicial system requires courts to confront
cases that touch on virtually every aspect of our society; and, in so
doing, judges often must deal with extremely difficult and intricate
factual questions. There is no necessary correlation between the
‘convoluted’ nature vel non of a case’s factual background and the
appropriateness of disposition pursuant to Rule 56 of the Superior
Court Rules of Civil Procedure. It is the duty of the courts, when
presented with a motion for summary judgment, to determine
whether or not material issues of fact remain to be resolved, and, if
not, whether judgment should be granted as a matter of law. As a
perusal of decided cases reveals, that duty can be (and often is)
carried out even when the factual background is ‘convoluted.’” Id.
(internal citations omitted).
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Accordingly, we hold that the complex nature of the case at bar alone did not preclude the
hearing justice from considering the Trust’s summary-judgment motions.
Next, plaintiffs argue that the hearing justice erred in rendering a decision while biased.
This argument is similarly without merit because plaintiffs “neither moved for recusal nor raised
the alleged issue of bias on the record * * *.” Huntley v. State, 109 A.3d 869, 874 (R.I. 2015).
Thus, under this Court’s well-settled raise-or-waive rule, we deem this argument waived.16 See
id.
A
The New Claims
1
Res Judicata
We now address plaintiffs’ contention that summary judgment was not appropriately
granted in this case. We deal first with the preclusive effect of the District Court judgment in
Wilson with respect to plaintiffs’ new claims in Counts IV through VII.17 Under Rhode Island
law, claim preclusion, or res judicata, “serves as a bar to a second cause of action where there
exist: (1) identity of parties; (2) identity of issues; and (3) finality of judgment in an earlier
action.” Goodrow v. Bank of America, N.A., 184 A.3d 1121, 1126 (R.I. 2018) (quoting Torrado
Architects v. Rhode Island Department of Human Services, 102 A.3d 655, 658 (R.I. 2014)).
16
In any event, we are satisfied that the hearing justice was not at all biased in rendering her
decision. At worst, the hearing justice was frustrated at counsel’s inability to point to specific
evidence in the record to support the denial of the motions for summary judgment. However, the
hearing justice clearly scoured the record to find triable issues of fact to aid plaintiffs—as
evidenced by her thorough decision, which spanned forty-two transcript pages.
17
Although plaintiffs’ counsel seemed to concede at oral argument before this Court that res
judicata barred the new claims of Donald P. and Donald D., we shall nonetheless conduct our
own review to give their claims in Counts IV through VII due consideration.
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First, “[d]etermining whether there is ‘identity of parties’ requires resolving ‘whether the
parties to this second action are identical to or in privity with the parties involved in the prior
action.’” Reynolds v. First NLC Financial Services, LLC, 81 A.3d 1111, 1115 (R.I. 2014)
(alteration omitted) (quoting E.W. Audet & Sons, Inc. v. Fireman’s Fund Insurance Co. of
Newark, New Jersey, 635 A.2d 1181, 1186 (R.I. 1994)). “Privity exists where there is ‘a
commonality of interests’ such that one party adequately represents the other’s interests.”
Huntley v. State, 63 A.3d 526, 531 (R.I. 2013) (alteration omitted) (quoting Lennon v. Dacomed
Corp., 901 A.2d 582, 591 (R.I. 2006)). Here, all four plaintiffs were involved in the federal case;
therefore it is clear that there is identity of parties on the plaintiffs’ side. Additionally, while the
Trust was not involved in the federal case, the Trust is in privity with the city, which was a party
to the federal case, because, as the city’s insurer, the Trust is directly representing the interests of
the city. Also, pursuant to the consent order entered in the Superior Court, the Trust has retained
all defenses that the city would have had in the instant matter. Therefore, the first requirement for
the application of res judicata, identity of the parties, is satisfied here.
Second, “[t]his Court has adopted the transactional rule governing the preclusive effect of
the doctrine of res judicata.” Goodrow, 184 A.3d at 1127 (deletion omitted) (quoting Bossian v.
Anderson, 991 A.2d 1025, 1027 (R.I. 2010)). “The transactional rule provides that all claims
arising from the same transaction or series of transactions which could have properly been raised
in a previous litigation are barred from a later action.” Id. (quoting Bossian, 991 A.2d at 1027).
“What constitutes a transaction or a series of connected transactions is to be determined
pragmatically, giving weight to such considerations as whether the facts are related in time,
space, origin, or motivation, whether they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties’ expectations.” Id. (deletion omitted) (quoting Town of
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Warren v. Bristol Warren Regional School District, 159 A.3d 1029, 1036 (R.I. 2017)). Here, it
is clear that the new claims arose out of the same set of facts that plaintiffs relied upon when they
brought the old claims in federal court—namely, Moreau’s actions during the first few months of
his tenure as the mayor of Central Falls. Therefore the second requirement for res judicata,
identity of the issues, is satisfied here.
“Finally, the application of res judicata requires that there be finality of judgment in the
earlier action.” Goodrow, 184 A.3d at 1128 (quoting Reynolds, 81 A.3d at 1116). Because all of
the claims of Donald P. and Donald D. in the federal court resulted in a final judgment—either
through the grant of a motion for summary judgment or a jury verdict in favor of the city—the
third and final requirement for the application of res judicata, finality of judgment, is satisfied as
to Donald P. and Donald D. Accordingly, we agree with the hearing justice’s determination that
the new claims are barred by the doctrine of res judicata as to Donald P. and Donald D. and that
summary judgment was therefore appropriately granted as to their claims in Counts IV through
VII.
Likewise, we agree with the hearing justice’s determination that res judicata does not bar
the new claims in Counts IV through VI by Wilson and Shannahan. Although “a dismissal, with
prejudice, constitutes a final judgment on the merits[,]” Goodrow, 184 A.3d at 1128 (alteration
omitted), a dismissal, without prejudice, does not. In the federal court action, the District Court
declined to exercise pendent jurisdiction over the state claims by Wilson and Shannahan because
their federal claims had been disposed of by the grant of a motion for summary judgment before
trial. Wilson, 440 F. Supp. 2d at 111. As the District Court stated, its dismissal of the state-law
claims was without prejudice. Id. at 112. Therefore, we hold that the doctrine of res judicata
does not bar the new claims by Wilson and Shannahan.
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2
Statute of Limitations
Although the new claims by Wilson and Shannahan are not barred by the application of
res judicata, they were not timely made. In her bench decision, the hearing justice applied
§ 9-1-25, which provides for a three-year statute of limitations for claims sounding in tort against
a city or town in Rhode Island, to the new claims. The hearing justice first determined that the
Trust, through the city, had properly raised the statute-of-limitations defense in its answer, and,
thus, the defense had not been waived. Next, she determined that the last possible date of accrual
of any cause of action in this matter occurred on August 10, 2004, when Donald D.’s
employment was terminated. Because the instant case was filed on October 26, 2007, more than
three years after the causes of action for Wilson and Shannahan had accrued, we hold that § 9-1-
25 applies to bar the new claims of Wilson and Shannahan and that the hearing justice properly
granted summary judgment on this basis in favor of the Trust on Counts IV through VI of
plaintiffs’ complaint as to Wilson and Shannahan.
B
The Old Claims
1
Negligent and Intentional Infliction of Emotional Distress
Regarding the old claims by Wilson and Shannahan, in Counts I through III, we deal first
with their claims for negligent and intentional infliction of emotional distress. First, with respect
to negligent infliction of emotional distress, “[i]t is well settled that ‘only two classes of persons
may bring claims for negligent infliction of emotional distress: those within the zone-of-danger
who are physically endangered by the acts of a negligent defendant, and bystanders related to a
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victim whom they witness being injured.’” Gross v. Pare, 185 A.3d 1242, 1246 (R.I. 2018)
(internal alteration and quotations omitted) (quoting Jalowy v. Friendly Home, Inc., 818 A.2d
698, 710 (R.I. 2003)).
Putting aside for a moment the fact that plaintiffs claim that Moreau’s acts were
intentional rather than negligent, the claims by Wilson and Shannahan for negligent infliction of
emotional distress must fail as a matter of law because Wilson and Shannahan have put forth no
evidence that they either: (1) were in a zone of physical danger from Moreau’s words or actions;
or (2) saw a close relative negligently injured by Moreau’s words or actions. See Gross, 185
A.3d at 1246-47. Accordingly, we hold that the hearing justice appropriately granted summary
judgment in favor of the Trust on the claims by Wilson and Shannahan for negligent infliction of
emotional distress.
Second, regarding claims of intentional infliction of emotional distress, under Rhode
Island law:
“In order to impose liability on a defendant for intentional
infliction of emotional distress: ‘(1) the conduct must be
intentional or in reckless disregard of the probability of causing
emotional distress, (2) the conduct must be extreme and
outrageous, (3) there must be a causal connection between the
wrongful conduct and the emotional distress, and (4) the emotional
distress in question must be severe.’” Gross, 185 A.3d at 1245-46
(emphasis in original) (quoting Swerdlick v. Koch, 721 A.2d 849,
862 (R.I. 1998)).
“Furthermore, ‘this Court has required at least some proof of medically established physical
symptomatology for both intentional and negligent infliction of mental distress.’” Id. at 1246
(quoting Swerdlick, 721 A.2d at 863).
While we might agree with plaintiffs that some of Moreau’s actions arguably border on
outrageous—such as taking Wilson’s city-issued car and replacing it with a rusted old car, as
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well as ordering a raid on the Adams Library based on a tip—this claim still fails. The plaintiffs
did not put forth any evidence of physical symptomatology resulting from the alleged extreme
and outrageous conduct by Moreau such that they have established any factual issue on this
necessary element of an intentional infliction of emotional distress claim. Therefore, we hold
that the hearing justice was correct in granting summary judgment in favor of the Trust on Count
III of plaintiffs’ complaint.
2
Public Disclosure of Private Facts and False Light
Next, Wilson and Shannahan bring claims for public disclosure of private facts18 and
false light,19 under § 9-1-28.1. “In examining what constitutes a ‘private fact,’ this Court has
determined that ‘the plaintiffs must demonstrate that they actually expected a disclosed fact to
18
Section 9-1-28.1(a)(3), which creates the cause of action for public disclosure of private facts,
states:
“(i) In order to recover for violation of this right, it must be
established that:
“(A) There has been some publication of a private
fact;
“(B) The fact which has been made public must be
one which would be offensive or objectionable to a
reasonable man of ordinary sensibilities;
“(ii) The fact which has been disclosed need not be of any benefit
to the discloser of the fact.”
19
Section 9-1-28.1(a)(4), which creates the cause of action for false light, provides:
“(i) In order to recover for violation of this right, it must be
established that:
“(A) There has been some publication of a false or
fictitious fact which implies an association which
does not exist;
“(B) The association which has been published or
implied would be objectionable to the ordinary
reasonable man under the circumstances;
“(ii) The fact which was disclosed need not be of any benefit to the
discloser.”
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remain private, and that society would recognize this expectation of privacy as reasonable and be
willing to respect it.’” Swerdlick, 721 A.2d at 858 (alteration omitted) (quoting Pontbriand v.
Sundlun, 699 A.2d 856, 865 (R.I. 1997)). “To prevail in an action [for false light], a plaintiff
must prove that ‘there has been some publication of a false or fictitious fact which implies an
association which does not exist; and the association which has been published or implied would
be objectionable to the ordinary reasonable person under the circumstances.’” Alves v.
Hometown Newspapers, Inc., 857 A.2d 743, 752 (R.I. 2004) (alterations omitted) (quoting
Cullen v. Auclair, 809 A.2d 1107, 1112 (R.I. 2002)).
In their opposition to the Trust’s motions for summary judgment, as well as in their
papers submitted to this Court on appeal, plaintiffs do not direct us specifically to any evidence
that would create a genuine issue of material fact regarding how Moreau placed them in a false
light or unreasonably disclosed private facts about them through his words or actions. As we
have often stated, “[a] party who opposes summary judgment has a duty to establish that a
genuine issue of material fact exists and may not rest solely upon allegations and denials in the
pleadings.” Urena v. Theta Products, Inc., 899 A.2d 449, 452 (R.I. 2006). The plaintiffs’
opposition to the Trust’s motions for summary judgment essentially stated that there were
material issues of fact contained in the voluminous discovery materials that they placed before
the hearing justice, but they did not point out what those facts were or where in the record the
facts were contained. In essence, they relied on allegations and denials in the pleadings to carry
them past the Trust’s motions for summary judgment. This is not enough to meet plaintiffs’
burden of establishing that a genuine issue of material fact exists. Accordingly, we hold that the
hearing justice appropriately granted summary judgment in favor of the Trust on Count II of
plaintiffs’ complaint.
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3
Defamation
Having disposed of plaintiffs’ other claims, we arrive at the defamation claims brought
by Wilson and Shannahan. “The elements of a cause of action for defamation are: (1) the
utterance of a false and defamatory statement concerning another; (2) an unprivileged
communication to a third party; (3) fault amounting to at least negligence; and (4) damages.” 20
Cullen, 809 A.2d at 1110 (deletion omitted) (quoting Nassa v. Hook-SupeRx, Inc., 790 A.2d 368,
373 n.10 (R.I. 2002)). “Whether the meaning of a particular communication is defamatory is a
question of law for the court to decide rather than a factual issue for a jury to determine.”21 Id.
(quoting Beattie v. Fleet National Bank, 746 A.2d 717, 721 (R.I. 2000)).
Here, plaintiffs aver that “[w]here the question is whether the [p]laintiffs * * * have come
forth with sufficient evidence to give rise to a question of whether the alleged torts were
committed, the [p]laintiffs * * * are entitled to full consideration of the proffered body of
evidence.” The plaintiffs make this statement in light of their contention that the depositions,
when viewed as a whole, establish a genuine issue of material fact as to whether Moreau had
20
Avoidance of a defamation cause of action can best be summed up with the following words
attributed to former President Calvin Coolidge, and previously quoted by this Court: “I have
noticed that nothing I never said ever did me any harm.” Burke v. Gregg, 55 A.3d 212, 215 (R.I.
2012).
21
Although not necessary to the disposition of this case, it is nonetheless our view that Moreau
had a qualified privilege to speak in the interest of the citizens of Central Falls, and that the
proffered evidence does not establish a genuine issue of fact regarding whether the “primary
motivating force for the communication was [Moreau’s] ill will or spite toward” plaintiffs.
Avilla v. Newport Grand Jai Alai LLC, 935 A.2d 91, 96 (R.I. 2007) (emphasis added) (quoting
Swanson v. Speidel Corp., 110 R.I. 335, 341, 293 A.2d 307, 311 (1972)). We have stated that
“where * * * the causative factor was the common interest, a publisher’s resentment toward the
person defamed is immaterial and any incidental gratification is without legal significance.” Id.
(alteration omitted) (quoting Swanson, 110 R.I. at 341, 293 A.2d at 311).
- 20 -
defamed them. However, we are mindful of the following language from the case of Nedder v.
Rhode Island Hospital Trust National Bank, 459 A.2d 960 (R.I. 1983):
“It is clearly the obligation of the party opposing the motion to
direct the motion justice’s attention to the specific portions of the
discovery materials upon which such party relies and to
supplement those materials, where needed, by an affidavit * * *.”
Nedder, 459 A.2d at 962.
Wilson and Shannahan have failed in this task, making summary judgment appropriate
on their defamation claims. While the plaintiffs did call the hearing justice’s attention to certain
discovery materials, we fail to see how placing fourteen volumes of depositions and fifty-one
newspaper articles in front of the court, without pointing to how these documents created
specific factual issues regarding the elements of defamation, satisfied the plaintiffs’ burden for
purposes of overcoming summary judgment. Additionally, when the hearing justice called upon
the plaintiffs to do so, they failed to respond with any specific instances in the proffered
depositions and articles that would create issues of material fact, and they failed to supplement
that information with affidavits or other discovery. Moreover, although she did so, it was not the
responsibility of the hearing justice to scour the depositions and newspaper articles in an attempt
to find triable issues of fact. Accordingly, we hold that summary judgment was appropriately
granted in favor of the Trust on Count I of the plaintiffs’ complaint.
IV
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
We remand the papers to that tribunal.
Justice Flaherty did not participate.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case Thomas Shannahan et al. v. Charles D. Moreau et al.
No. 2018-22-Appeal.
Case Number
(PC 07-5714)
Date Opinion Filed March 11, 2019
Justices Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
Written By Associate Justice Gilbert V. Indeglia
Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Sarah Taft-Carter
For Plaintiffs:
Philip E. Irons, Esq.
For Defendants:
Attorney(s) on Appeal
Patrick K. Cunningham, Esq.
Michael A. DeSisto, Esq.
Marc DeSisto, Esq.
Elizabeth M. Noonan, Esq.
SU-CMS-02A (revised June 2016)