Eileen Fuoco v. Joseph Polisena

January 29, 2021

Supreme Court

No. 2019-54-Appeal.
(PC 13-5356)

Eileen Fuoco :

v. :

Joseph Polisena. :

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Supreme Court

No. 2019-54-Appeal.
(PC 13-5356)

Eileen Fuoco :

v. :

Joseph Polisena. :

Present: Suttell, C.J., Goldberg, and Robinson, JJ.

OPINION

Justice Goldberg, for the Court. This case came before the Supreme

Court on December 2, 2020, pursuant to an order directing the parties to appear

and show cause why the issues raised in this appeal should not be summarily

decided. The plaintiff, Eileen Fuoco, appeals from a final judgment entered in

favor of the defendant, Joseph Polisena, following the grant of the defendant’s

motion for judgment as a matter of law pursuant to Rule 50 of the Superior Court

Rules of Civil Procedure and, in the alternative, the defendant’s motions for new

trial and remittitur, based on the trial justice’s conclusion that the plaintiff failed to

present sufficient evidence that the defendant made defamatory statements. The

plaintiff contends that the trial justice erred by granting judgment as a matter of

law and that the jury verdict should be reinstated because the evidence presented at

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trial established, by clear and convincing evidence, that the defendant made

defamatory statements concerning her performance as a member of the Town

Council of the Town of Johnston. After examining the record and memoranda

submitted by the parties, we are satisfied that cause has not been shown and, thus,

the appeal may be decided at this time. For the reasons stated herein, we affirm the

judgment of the Superior Court.

Facts and Travel

The facts of this case are not in dispute. The plaintiff was first elected to the

Johnston Town Council on November 2, 2010, and was thereafter re-elected in

2012. The defendant, at all relevant times, was and remains the Mayor of the

Town of Johnston. On October 15, 2013, plaintiff and defendant were in

attendance at a meeting of the town council. During that meeting, plaintiff raised a

concern about street paving in her district and inquired why only two streets in her

district were selected for repaving and repair. Similarly, a member of the public

requested to be heard regarding the “2012 Road List” and inquired why only two

streets in plaintiff’s district were scheduled for repair.1 The defendant responded

that he had attempted to contact plaintiff to encourage her to submit her list of

1
Apparently, each town council member was asked to submit a list of five streets
in his or her district to be repaired. The plaintiff claimed that she submitted a list
of five streets for repair to the Department of Public Works, but defendant
maintained otherwise. Whether plaintiff did in fact submit a list of selective roads
to be repaired is immaterial to our analysis.
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roads, but that she either failed to submit a list or did not respond in a timely

manner.

The defendant then inquired whether the member of the public “would be

concerned if someone tried to rip the system off[.]” As defendant’s comments

continued, he suggested that plaintiff had “a problem” with his administration

because “she tried to get health care” from the town and “because on [April 28,

2011] she tried to put in for temporary disability, unemployment insurance.” The

defendant, over plaintiff’s objections, continued to assert that he did not know how

plaintiff was injured as a councilwoman; but that she “put in against the Town[,]”

and that she “put in for unemployment compensation.” The defendant also

informed plaintiff that her “problem” was that she “spend[s] three months in

Florida” and that she had “been missing in action[,]” based on her attendance

record at council meetings.

The plaintiff responded that defendant was making “an incorrect statement”

because she had not sought disability compensation from the town. The defendant

then produced a letter addressed to the town from the Temporary Disability

Insurance (TDI) Division of the Rhode Island Department of Labor and Training

(DLT); the letter notified the town that plaintiff had “filed a claim for [TDI]

benefits.” The record discloses that the town’s payroll clerk, Lucia Tracy, had

brought the letter to defendant’s attention when she received it two years earlier,

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on or about May 4, 2011; Ms. Tracy provided a copy of the letter to defendant,

who redacted plaintiff’s Social Security number and locked the copy in the top

drawer of his desk. Thereafter, on the evening of October 15, 2013, defendant

brought the redacted letter to the town council meeting and presented it to the town

council President, Robert Russo, who perused the document and acknowledged

that the document defendant handed him was “for Temporary Disability

Insurance—verification from the Town of Johnston personnel * * *.” Mr. Russo

then returned the letter to defendant. After the discussion regarding street paving

and repair concluded, the meeting adjourned.

On October 23, 2013, plaintiff filed a three-count verified complaint in

Superior Court, alleging deprivation of her right to privacy, slander and libel, and

intentional infliction of emotional distress. The defendant in response filed a two-

count counterclaim for abuse of process and immunity pursuant to the Limits on

Strategic Litigation Against Public Participation (anti-SLAPP) statute, G.L. 1956

chapter 33 of title 9. In June 2018, a jury trial commenced in Superior Court. At

the conclusion of plaintiff’s case-in-chief, defendant moved for judgment as a

matter of law pursuant to Rule 50. The trial justice reserved decision on the Rule

50 motion, and defendant proceeded with his witnesses. At the close of the

evidence, the trial justice entertained Rule 50 motions from both parties. He

dismissed defendant’s counterclaim for abuse of process but allowed his

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counterclaim which sought immunity under the anti-SLAPP statute to proceed to

the jury. The trial justice dismissed plaintiff’s claim alleging a deprivation of her

right to privacy and reserved judgment as to whether judgment as a matter of law

was appropriate as to the claims for slander and intentional infliction of emotional

distress.

The jury concluded that the anti-SLAPP statute did not cloak defendant with

immunity, and it returned a verdict in favor of plaintiff on the slander claim. The

jury awarded plaintiff $20,000 in damages, plus the stipend she would have earned

had she served two additional terms on the town council. After the jury verdict

was rendered, the trial justice granted defendant’s motion for judgment as a matter

of law and, in the alternative, granted defendant’s motions for a new trial and a

remittitur. This appeal by plaintiff ensued.

Standard of Review

“Our review of a trial justice’s decision on a motion for judgment as a matter

of law is de novo.” O’Connell v. Walmsley, 93 A.3d 60, 65 (R.I. 2014) (quoting

McGarry v. Pielech, 47 A.3d 271, 279 (R.I. 2012)). This Court, like the trial

justice, “examine[s] the evidence in the light most favorable to the nonmoving

party, without weighing the evidence or evaluating the credibility of witnesses, and

draw[s] from the record all reasonable inferences that support the position of the

nonmoving party.” Free & Clear Company v. Narragansett Bay Commission, 131

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A.3d 1102, 1112 (R.I. 2016) (quoting O’Connell, 93 A.3d at 66).

“Judgment as a matter of law is appropriate if, after conducting this examination,

the trial justice ‘determines that the nonmoving party has not presented legally

sufficient evidence to allow the trier of fact to arrive at a verdict in his [or her]

favor.’” O’Connell, 93 A.3d at 66 (punctuation omitted) (quoting McGarry, 47

A.3d at 280).

Analysis

Before this Court, plaintiff assigns error to the trial justice’s posttrial rulings

and argues that the jury verdict should be reinstated.2 Specifically, plaintiff

contends that three statements made by defendant at the October 2013 town

council meeting at issue were defamatory.

Whether a statement “alleged to be defamatory is, in fact, defamatory is a

question of law for the court to decide.” Alves v. Hometown Newspapers, Inc., 857

A.2d 743, 750 (R.I. 2004). Accordingly, the court must determine whether a

plaintiff carried his or her “burden of proving that a defendant communicated a

‘false and defamatory’ statement about him or her.” Id. (quoting Beattie v. Fleet

National Bank, 746 A.2d 717, 721 (R.I. 2000)). Moreover, where, as here, the

plaintiff is a public official, there must be clear and convincing evidence “that the

statement was made with ‘actual malice’—that is, with knowledge that it was false

2
Unfortunately, plaintiff’s submissions to this Court are somewhat perfunctory.
Nonetheless, we address the merits of this appeal.
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or with reckless disregard of whether it was false or not.” Cullen v. Auclair, 809

A.2d 1107, 1110 (R.I. 2002) (quoting New York Times Company v. Sullivan, 376

U.S. 254, 279-80 (1964)).

Temporary Disability Insurance

The plaintiff first challenges the trial justice’s conclusion that there was “no

evidentiary basis for finding” that defendant’s statement that she sought TDI

benefits from the town and attempted to “rip the system off” was false.

Specifically, the trial justice found that the evidence presented supported

defendant’s statement that plaintiff did, in fact, apply for TDI benefits and “that the

Town was involved in the benefit determination, as demonstrated by the

Department of Labor and Training sending the TDI Letter to the Town * * *.”

Critically, the trial justice also noted that, because plaintiff failed to submit into

evidence her application for TDI benefits, she failed to carry the burden of proving

that defendant made a false statement, as the court could not determine exactly

what benefits plaintiff had sought. The trial justice also concluded that, even if

plaintiff had succeeded in establishing that defendant’s statement was false, she

failed to provide any “evidence whatsoever, let alone clear and convincing

evidence, that would establish that [defendant] knew that she had not applied for

‘TDI against the Town[.]’” We agree with these conclusions.

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Viewing the evidence in the light most favorable to plaintiff, and drawing all

reasonable inferences in plaintiff’s favor, it is clear that plaintiff’s evidence was

insufficient to enable a reasonable jury to assign liability to defendant. The

defendant testified that his comment about plaintiff trying to “rip the system off”

was related to the TDI letter that the town had received in May 2011. However,

plaintiff failed to submit any affirmative evidence showing that she did not apply

for TDI benefits from the town. Although plaintiff testified that she never applied

for TDI benefits from the town, she failed to produce the application for TDI

benefits that resulted in DLT sending the letter to the town. Accordingly, the trial

justice was correct in concluding that plaintiff failed to establish that defendant’s

statement was false.

Moreover, defendant’s testimony revealed that he never contacted DLT or

received further information from Ms. Tracy regarding the letter from DLT and

that he simply assumed that plaintiff was not entitled to TDI benefits from the

town. As such, defendant’s uncontroverted testimony supports the conclusion that

there is no evidence in the record that he knew the statement he made at the town

council meeting was false or that he acted with actual malice in stating that

plaintiff had filed for TDI benefits from the town. Rather, defendant’s

understanding was that the TDI letter was directed at the town and that plaintiff

was attempting to collect benefits to which she was not entitled. Because

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defendant’s alleged defamatory statement was not proven to be false, nor was it

uttered with actual malice, the trial justice did not err in finding that plaintiff failed

to prove defamation.

Unemployment Insurance

Next, plaintiff maintains that defendant’s statement that she applied for

unemployment insurance was knowingly false because there was no evidence that

plaintiff applied for unemployment insurance with the town. However, as the trial

justice aptly noted, defendant’s statements about unemployment insurance were

clearly linked to the letter to the town from DLT. During the town council

meeting, defendant stated that “on [April 28, 2011, plaintiff] tried to put in for

temporary disability, unemployment insurance.” Later in the meeting, defendant

repeated that plaintiff “put in for unemployment compensation[,]” and told plaintiff

“[i]t’s right there[,]” referring to the aforementioned letter. Although defendant

may have conflated TDI with unemployment compensation, plaintiff failed to

examine defendant regarding unemployment insurance at trial. Accordingly, the

evidence presented at trial supports the trial justice’s conclusion that defendant’s

statements conflated TDI with unemployment insurance. Thus, plaintiff failed to

present sufficient evidence that defendant made a false statement with actual

malice.

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Missing Meetings

Finally, plaintiff argues that defendant’s statement that she was “missing in

action” was an actionable defamatory statement because, she contends, defendant

failed to present evidence “as to the number of meetings that the [p]laintiff had

missed during the time period in question.” However, it was not defendant’s

burden to prove that his statements regarding plaintiff’s attendance were truthful.

Rather, plaintiff bore the burden of proving, by a preponderance of the evidence,

that defendant’s statements were false. See Ferreira v. Child and Family Services,

222 A.3d 69, 74 (R.I. 2019). Moreover, plaintiff, as a public figure, bore the

additional burden of proving, by clear and convincing evidence, that defendant’s

statements were made with actual malice. See Alves, 857 A.2d at 750.

Here, plaintiff failed to introduce her attendance record to substantiate how

many town council meetings, if any, she had missed, and during the town council

meeting on October 15, 2013, she admitted that she “missed one meeting” that

year. The plaintiff also acknowledged at trial that, from December through March,

plaintiff and her husband “would go down to Florida to this condominium [they]

had in Fort Lauderdale[.]” At trial, plaintiff again failed to examine defendant

about his statement that plaintiff was “missing in action.” Thus, we discern no

error with the trial justice’s conclusion that plaintiff failed to prove that

defendant’s statement was false.

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In sum, the trial justice’s decision in this case rests on a failure of proof.

The plaintiff failed to prove that the defendant’s statements were false or that he

made those statements with actual malice. Although the defendant’s statements at

the town council meeting were perhaps unfortunate, the plaintiff simply failed to

present evidence that the remarks were false or were made with actual malice.

Conclusion

For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court. The papers in this case may be returned to the Superior Court.

Justices Flaherty, Lynch Prata, and Long did not participate.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case Eileen Fuoco v. Joseph Polisena.

No. 2019-54-Appeal.
Case Number
(PC 13-5356)

Date Opinion Filed January 29, 2021

Justices Suttell, C.J., Goldberg, and Robinson, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Richard A. Licht

For Plaintiff:

Gregory J. Acciardo, Esq.
Attorney(s) on Appeal For Defendant:

Lauren E. Jones, Esq.
Robert S. Thurston, Esq.

SU-CMS-02A (revised June 2020)