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.
                                              -1-
                                                 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.
                                               -2-
       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.
                                              -3-
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.”
                                               -4-
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.
                                               -5-
       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.
                                                -6-
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.
                                               -8-
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.
                                                 -9-
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



                                              - 10 -
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



                                               - 11 -
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).



                                                - 12 -
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.
                                              - 13 -
        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



                                                  - 14 -
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.



                                                - 15 -
                                                  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



                                                - 16 -
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



                                             - 17 -
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.”
                                               - 18 -
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.



                                              - 19 -
                                                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.




                                                 - 21 -
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)
