Plaintiff: Gregory J. Acciardo, Esq.
Defendant: Paul J. Sullivan, Esq.
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. 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
reasons set forth herein, each of Defendant's motions is
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. 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 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.
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
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.
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
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.
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.
2014, Councilwoman Fuoco lost her bid for reelection to the
son of the Town's Democratic Committee Chair who was
supported by the Mayor.
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.
for Judgment as a Matter of Law
50(a)(1) of the Rhode Island Superior Court Rules of Civil
"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).
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)).
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).
for a New Trial
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.
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
for a Remittitur
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