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Fuoco v. Polisena

Superior Court of Rhode Island, Providence

August 16, 2018

EILEEN FUOCO
v.
JOSEPH POLISENA

          For Plaintiff: Gregory J. Acciardo, Esq.

          For Defendant: Paul J. Sullivan, Esq.

          DECISION

          LICHT, J.

         Defendant Mayor Joseph Polisena (Defendant, Mayor Polisena, or the Mayor) has renewed his motion for judgment as a matter of law, and in the alternative, has moved for a new trial. Also before the Court is Defendant's motion for a remittitur. The Court, sitting with a jury, heard the within matter, which concluded on June 7, 2018, with a verdict for Plaintiff Eileen Fuoco (Plaintiff or Councilwoman Fuoco) on her slander claim.[1] The jury awarded Councilwoman Fuoco compensatory damages of $20, 000, plus the stipend she would have earned for two additional terms on the Johnston Town Council. Jurisdiction is pursuant to G.L. 1956 § 8-2-14 and Rules 50 and 59 of the Superior Court Rules of Civil Procedure.

         For the reasons set forth herein, each of Defendant's motions is granted.

         I

         Facts and Travel

         This entire case revolves around the public meeting of the Town Council for the Town of Johnston, Rhode Island (the Town) held October 15, 2013 (the Meeting). A transcript of portions of the Meeting was introduced into evidence as Plaintiff's Exhibit 1.[2] A member of the public, Tammy Cardillo (Ms. Cardillo), questioned why certain roads in District One, Councilwoman Fuoco's district, had not been repaved. This inquiry led the Plaintiff and Defendant to take over the Meeting and engage in a spirited and heated interaction during which Mayor Polisena made a number of accusatory statements about Councilwoman Fuoco. Plaintiff alleges that Mayor Polisena claimed Councilwoman Fuoco (1) attempted to collect TDI from the Town; (2) attempted to collect unemployment compensation[3] from the Town; (3) was not properly fulfilling her duties on the Johnston Town Council; (4) missed many meetings while she was in Florida during the wintertime; (5) tried to put herself on the Town's health care plan; and (6) was only concerned about getting her own street paved in her district.

         On October 23, 2013, roughly one week after the Meeting, Councilwoman Fuoco brought the instant lawsuit. The lawsuit contained three counts: (1) deprivation of right to privacy; (2) slander and libel; and (3) intentional infliction of emotional distress.

         In addition to the transcript of the Meeting, other exhibits were introduced and the Court and the jury heard from the Plaintiff, the Defendant, a Town payroll clerk, the Town Council President at the time of the Meeting and another Councilman who was in attendance.

         To give context to the Meeting, the Court will summarize the evidence relevant to these motions. Plaintiff ran for the Town Council in 2010, and she unseated an incumbent who was supported by the Mayor. On May 4, 2011, Lucia Tracy, the Town's payroll clerk, received a letter from the Temporary Disability Insurance (TDI) Division of the State Department of Labor and Training referencing Eileen Fuoco. (Pl.'s Ex. 3 hereinafter referred to as "the TDI Letter"). The TDI Letter stated "The person above has filed a claim for Temporary Disability Insurance benefits." Since the Town does not participate in TDI, Ms. Tracy thought this unusual and brought it to the Mayor's attention by showing him a copy of the letter on which she had written that Ms. Fuoco was a Council member and did not contribute to TDI. The Mayor testified that he redacted the social security number and locked the copy of the letter in the top drawer of his desk.

         In 2012, Mayor Polisena supported Councilwoman Fuoco for reelection, even providing a message of endorsement for her campaign literature. Sometime in 2013, however, the relationship between Plaintiff and Defendant soured, apparently over the Town's road repaving program. The Town was not repaving the streets that Councilwoman Fuoco wanted done in her district. Mayor Polisena, at the Meeting and in his testimony, claimed he called Councilwoman Fuoco several times to obtain her priority list of five streets in her district she wanted paved. He and two Town employees claimed at the Meeting that she never submitted her list. Councilwoman Fuoco claimed in her testimony and at the Meeting that she had submitted the list.

         As a result, Ms. Cardillo, a resident of Councilwoman Fuoco's district, came to the Meeting to voice concerns about District One not having five streets repaved. She did not get much of a chance to air her grievance, however, as Mayor Polisena seized the opportunity to engage Councilwoman Fuoco. In their discourse, Plaintiff and Defendant repeatedly interrupted one another making it difficult to follow their respective arguments. The gist of Mayor Polisena's contentions were that Councilwoman Fuoco had a problem with his administration as she had called some of his appointees "the Three Stooges"; that she was not effectively representing her district; and that she had tried to "rip off" the Town. Obviously, Councilwoman Fuoco vigorously disputed those contentions, although she admitted at the Meeting using the term "the Three Stooges," but said she could have been referring to anyone, including herself, her husband, and her daughter.

         In 2014, Councilwoman Fuoco lost her bid for reelection to the son of the Town's Democratic Committee Chair who was supported by the Mayor.

         This Court granted Defendant's motion for judgment as a matter of law as to Plaintiff's deprivation of right to privacy claim prior to submitting the case to the jury. The jury found in favor of the Defendant on the question of intentional infliction of emotional distress and for the Plaintiff on the defamation count. As previously stated, the jury awarded Councilwoman Fuoco compensatory damages of $20, 000 plus the stipend she would have earned for two additional terms on the Johnston Town Council.

         II

         Standard of Review

         A

         Motion for Judgment as a Matter of Law

         Rule 50(a)(1) of the Rhode Island Superior Court Rules of Civil Procedure provides:

"If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue." Super. R. Civ. P. 50(a)(1).

         When ruling on a motion for judgment as a matter of law, this Court "must consider the evidence in the light most favorable to the party against whom the motion is made without weighing the evidence or considering the credibility of the witnesses and extract from the record only those reasonable inferences that support the position of the party opposing the motion." AAA Pool Serv. & Supply, Inc. v. Aetna Cas. & Sur. Co., 479 A.2d 112, 115 (R.I. 1984) (internal quotations omitted). This Court must deny the motion "if there are factual issues upon which reasonable people may have differing conclusions." Broadley v. State, 939 A.2d 1016, 1020 (R.I. 2008) (citing Trainor v. The Standard Times, 924 A.2d 766, 769 (R.I. 2007)).

         When, at the close of all the evidence, this Court submits a case to a jury without granting a pending motion for judgment as a matter of law, "the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion." Super. R. Civ. P. 50(b). The moving party may then renew his or her motion after the entry of judgment. Id. When ruling on a renewed motion for judgment as a matter of law, this Court may allow the verdict to stand or may direct the entry of judgment as a matter of law. Id. This Court may properly grant judgment as a matter of law when there is uncontradicted testimony that clearly establishes the operative facts. See Franco v. Latina, 916 A.2d 1251, 1263 (R.I. 2007).

         B

         Motion for a New Trial

         It is well established in Rhode Island that when ruling on a motion for a new trial, this Court acts as a "super-juror" and must "independently weigh, evaluate, and assess the credibility of the trial witnesses and evidence." Morrocco v. Piccardi, 713 A.2d 250, 253 (R.I. 1998). This Court's review is a three step process: this Court "'must (1) consider the evidence in light of the jury charge, (2) independently assess the credibility of the witnesses and the weight of the evidence, and then (3) determine whether [it] would have reached a result different from that reached by the jury.'" State v. Ferreira, 21 A.3d 355, 364 (R.I. 2011) (quoting State v. Prout, 996 A.2d 641, 645 (R.I. 2010) (internal quotations omitted)). In independently reviewing the evidence, this Court may reject testimony that is contradicted by other testimony or circumstantial evidence. Barbato v. Epstein, 97 R.I. 191, 193, 196 A.2d 836, 837 (1964). If this Court agrees with the jury's verdict or if "reasonable minds could differ as to the outcome," this Court must deny the motion for a new trial. Ferreira, 21 A.3d at 364-65 (quotation omitted). If, however, this Court disagrees with the jury's verdict, it must perform a fourth step of analysis whereby it must determine whether the jury's verdict is "against the fair preponderance of the evidence and fails to do substantial justice." Id. at 365 (citing State v. Guerra, 12 A.3d 759, 765-66 (R.I. 2011) (internal quotations omitted)). In the event this standard is satisfied, this Court must grant the motion for a new trial. Id.

         When ruling on a motion for a new trial, this Court need not engage in an exhaustive review and analysis of all of the evidence and testimony. Reccko v. Criss Cadillac Co., Inc., 610 A.2d 542, 545 (R.I. 1992) (citing Zarrella v. Robinson, 460 A.2d 415, 418 (R.I. 1983)). This Court must, however, reference the facts that have motivated its conclusion with enough specificity to allow the reviewing court to determine whether error was committed. Id. When this Court has properly performed the review required by Rule 59, the Supreme Court will afford this Court's decision great weight and will not overturn the decision unless this Court overlooked or misconceived material evidence, or was otherwise clearly wrong. Oliveira v. Jacobson, 846 A.2d 822, 826 (R.I. 2004) (citations omitted).

         C

         Motion for a Remittitur

         A remittitur has been defined by our Supreme Court as "'[a]n order awarding a new trial, or a damages amount lower than that awarded by the jury, and requiring the plaintiff to choose between those alternatives.'" Free & Clear Co. v. Narragansett Bay Comm'n,131 A.3d 1102, 1111 (R.I. 2016) (quoting Black's Law Dictionary 1486 (10th ed. 2014)). "The devices of remittitur and additur are designed to avoid the costs and delays that arise from relitigation of the same issues, while providing a just result for the litigants." Lennon v. Dacomed Corp., 901 A.2d 582, 590 (R.I. 2006) (citing Cotrona v. Johnson & Wales Coll.,501 A.2d 728, 733 (R.I. 1985)). "A remittitur is available only when the jury award clearly appears to be excessive or is found to be the result of the jury's passion and prejudice." Id. (citing Mazzaroppi v. Tocco, 533 A.2d ...


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