Asa S. Davis, III v. Wood Estates, Inc.; Asa S. Davis v. Town of Exeter

Supreme Court

Asa S. Davis, III : No. 2024-10-M.P.
(WC 23-139)
v. :

Wood Estates, Inc., et al. :

Asa S. Davis et al. : No. 2024-87-M.P.
(WC 20-515)
v. :

Town of Exeter 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 (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court

Asa S. Davis, III : No. 2024-10-M.P.
(WC 23-139)
v. :

Wood Estates, Inc., et al. :

Asa S. Davis et al. : No. 2024-87-M.P.
(WC 20-515)
v. :

Town of Exeter et al. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Lynch Prata, for the Court. These consolidated cases came before

the Supreme Court on December 10, 2025, pursuant to writs of certiorari issued upon

two petitions by the defendant, the Town of Exeter 1 (the town), seeking review of

two Superior Court orders, issued in cases both brought by the same plaintiff, Asa

S. Davis, III (Davis). The first order denied the town’s motion for judgment on the

pleadings in WC 20-515 (Due Process case) and the second denied the town’s

1
The Town of Exeter is the only defendant that filed a petition for a writ of certiorari
in WC 23-139. In WC 20-515, all defendants filed a petition for a writ of certiorari.
These defendants include: the Town of Exeter; Maria Lawler, in her capacity as the
Treasurer of the Town of Exeter; Michael A. Lefebvre, Calvin A. Ellis, Daniel W.
Patterson, Olivia DeFrancesco, and Francis T. Maher, Jr., in their capacities as
members of the Town of Exeter Town Council; and Francis P. DiGregorio. We refer
to these defendants in WC 20-515 collectively as “the town.”

-1-
motion to dismiss Davis’s claims in WC 23-139 (Adverse Possession case). 2 The

town asserts that the Superior Court erred in denying its motions because (1) the

claims were barred by res judicata and collateral estoppel, (2) the town did not

consent to proceeding with separate actions, (3) the disputed area is public property

and cannot be adversely possessed, and (4) the Adverse Possession case should have

been dismissed pursuant to the doctrine of judicial estoppel. For the reasons set forth

herein, we quash the orders of the Superior Court and remand for entry of orders

dismissing both cases.

Facts and Travel

Although many of the facts underlying this case were previously before this

Court, we repeat those necessary to the resolution of the issues currently before us.

See Davis v. Town of Exeter, 285 A.3d 15 (R.I. 2022) (Davis I). In 1997, Davis took

title to a parcel of real property located in Exeter, Rhode Island. In 2018, Davis

began working toward the development of DuTemple Solar, a solar farm he sought

to establish on his property. To get town approval for his project, Davis needed to

establish, among other things, safe access in and out of his property via a public road.

Davis’s property has frontage on Ten Rod Road with no driveway or access from

the public road. A town map revealed what looked to be a road extending from the

2
WC 20-515 contains several counts, detailed infra, and is not limited to due process
claims. Davis refers to WC 20-515 as the “Due Process” case, and we adopt that
description for ease of reading.

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cul-de-sac terminus of a nearby road, Estate Drive, to Davis’s property.3 Contrary

to the map, there was no road between the terminus of Estate Drive and Davis’s

property, only undeveloped woodland. The town considered the area an

undeveloped paper street extension of Estate Drive.4

In October 2018, Davis filed a master plan application with the town to initiate

the development of the DuTemple Solar project on his property. In his application,

Davis sought to access his property through the paper street extension of Estate Drive

(hereinafter the disputed area). Sometime prior to January 31, 2019, Davis had

excavated a clearing and laid down gravel in the disputed area without town

permission. When the town learned of Davis’s activities, it placed concrete barriers

blocking Davis’s access to the disputed area. Shortly thereafter, Davis began to

remove the barriers, which prompted a cease-and-desist letter from a town official

instructing Davis not to remove the barriers.

Throughout several meetings, the Town of Exeter Planning Board (planning

board) instructed Davis to resolve the issue of access via Estate Drive with the town

council; however, Davis refused. Ultimately, the planning board denied Davis’s

application, in part due to Davis’s lack of proper access to the property. Davis

3
Davis’s property does not abut the terminus of Estate Drive.
4
“A paper street is a street which appears on a recorded plat but which in actuality
has never been open, prepared for use, or used as a street.” Davis v. Town of Exeter,
285 A.3d 15, 18 n.3 (R.I. 2022) (Davis I) (quoting Robidoux v. Pelletier, 120 R.I.
425, 438 n.2, 391 A.2d 1150, 1157 n.2 (1978)).

-3-
appealed the denial of his master plan application to the Town of Exeter Zoning

Board (zoning board) on May 1, 2019.

Two days later, Davis filed suit in the Superior Court, asserting that the

disputed area was a public road accessible from Davis’s property (Road Access

case). In his complaint, Davis sought a declaration that the disputed area was a

public road (count 1) and injunctive relief to prevent the town from blocking his

access to the disputed area (count 2). While the Road Access case was pending, the

zoning board unanimously denied Davis’s master plan appeal, affirming the

planning board’s decision to reject his application. On July 19, 2019, Davis appealed

the zoning board’s decision to the Superior Court (Zoning Appeal case).

On December 8, 2020, while both the Road Access and Zoning Appeal cases

were pending, Davis filed another lawsuit against the town (Due Process case). 5 In

his complaint, Davis asserted a violation of his due process rights under the Rhode

Island Constitution (count 1), violation of the equal access to justice for small

businesses and individuals statute, G.L. 1956 chapter 92 of title 42 (count 2),

violation of due process rights pursuant to the United States Constitution and 42

5
DuTemple Solar LLC is also a plaintiff in the Due Process case. As noted, supra
note 1, in addition to the town, the town treasurer, several members of the town
council, and DiGregorio were named as defendants. Davis asserts that DiGregorio
was a member of the Town of Exeter Planning Board in 2018.

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U.S.C. § 1983 (count 3), violation of the Equal Protection and Takings Clauses of

the United States Constitution (count 4), and tortious interference (count 6). 6

Subsequently, on January 13, 2021, the trial justice granted summary

judgment to the town in the Road Access case, holding that the disputed area was

not a public roadway and that Davis had failed to exhaust his administrative remedies

because he never filed the proper permits to develop the disputed area. Davis

appealed that decision to this Court. On September 28, 2022, while the Road Access

appeal was pending, the Superior Court issued a decision in the Zoning Appeal case

affirming the zoning board’s denial of Davis’s master plan application. Shortly

thereafter, on November 18, 2022, Davis petitioned this Court for certiorari review

of the Zoning Appeal case, which we denied, thus concluding the travel of the

Zoning Appeal.

On December 1, 2022, this Court issued its opinion in the Road Access case,

affirming the Superior Court’s grant of summary judgment in favor of the town.

Davis I, 285 A.3d at 23. In Davis I, we agreed with the trial justice that the town

had not accepted the disputed area as a public road. Id. at 21. Specifically, we stated

that the disputed area “has never been used, maintained, or improved as a roadway

and consisted entirely of wooded vegetation before plaintiff’s self-help excavation.”

Id. This Court rejected Davis’s contention that the disputed area was a public road,

6
There is no count 5 listed in the complaint.

-5-
stating that “[a]t best, the property south of the cul-de-sac is a paper street, not a

public road, and thus may be certified as a public road pursuant to town standards,

or abandoned, should the town elect to do so.” Id. at 22. Ultimately, this Court

agreed with the Superior Court that Davis had failed to exhaust his administrative

remedies because he failed to apply for permits to excavate the disputed area. Id. at

22-23.

On March 21, 2023, after the resolution of the Road Access case, Davis filed

another action, the Adverse Possession case, against the town. 7 In his complaint,

Davis included claims for adverse possession (count 1), petition to quiet title (count

2), prescriptive easement (count 3), and boundary by acquiescence (count 4). He

also sought a declaratory judgment to reform a town map (count 5). In response, the

town filed a motion to dismiss based on the doctrines of res judicata and collateral

estoppel. That same day, the town filed a motion for judgment on the pleadings in

the still-pending Due Process case, similarly asserting that Davis’s claims were

barred by res judicata.

The trial justice heard argument on the town’s motion for judgment on the

pleadings in the Due Process case on July 17, 2023. The town argued that Davis’s

7
Davis also named as defendants in the Adverse Possession case: Wood Estates,
Inc. and its final shareholders if defunct; John Assalone, as the only known
shareholder of Wood Estates, Inc.; and several individual property abutters to the
disputed area and Estate Drive.

-6-
claims in the Due Process case all arose from the same transaction as the Zoning

Appeal, the Road Access case, and other lawsuits Davis had filed. The town pointed

out that all of the facts underlying the claims in the Due Process case were known to

Davis at the time he filed the Road Access case, and therefore his claims should have

been brought simultaneously. The town stated that under the broad transactional

rule, claims need not be identical to be barred by res judicata; rather, any claims that

had or might have been tried in the prior lawsuit are barred.

In response, Davis contended that the town could have moved to consolidate

the Road Access and Due Process cases but did not. Davis argued that the issues

raised in the Road Access case were narrow, and that the two cases did not come

under the same operative facts. In Davis’s view, the Road Access case dealt with

whether the disputed area between the end of the cul-de-sac and Davis’s property

was a public roadway, whereas the Due Process case focused on the actions of the

town council and planning board.

The trial justice suggested that the town had consented to separate lawsuits by

allowing Davis’s actions to linger without consolidating them; and thus, under

ElGabri v. Lekas, 681 A.2d 271 (R.I. 1996),8 it could not invoke the doctrine of res

judicata. The town denied that it had consented to the lawsuits and reiterated that it

8
In ElGabri v. Lekas, 681 A.2d 271 (R.I. 1996), discussed infra, this Court adopted
the Restatement (Second) Judgments § 26(1)(a), which specifies that res judicata is
not applicable when a defendant consents to split claims. ElGabri, 681 A.2d at 277.

-7-
had met all three elements of res judicata. The trial justice ultimately denied the

town’s motion for judgment on the pleadings in the Due Process case without further

explanation. An order reflecting the denial of the town’s motion was entered on

August 24, 2023. The town later petitioned this Court for a writ of certiorari, which

we granted.

On August 31, 2023, the trial justice heard argument on the town’s motion to

dismiss the Adverse Possession case. The town argued that, because this Court held

in Davis I that no one had used the disputed area until 2018, it would be impossible

for Davis to prove ten years of use, an essential element of his adverse possession

claim. Specifically, the town explained that under the doctrine of collateral estoppel,

Davis was barred from relitigating the ownership and control of the disputed area

because the issue had already been decided by this Court in Davis I.

The town next argued that res judicata barred Davis’s claims entirely. The

town asserted that every claim before the Superior Court in the Adverse Possession

case could have been brought in Davis’s prior lawsuits, as they arose from the same

transaction or series of transactions. The town pointed out that the crux of both the

Road Access case and the Adverse Possession case was a dispute over the legal

status of Estate Drive. Further, the town reiterated that in both the Road Access and

Zoning Appeal cases, the issues of road access and ownership had already been

litigated.

-8-
Third, the town argued that the disputed area is public property and therefore

cannot be adversely possessed. Further, the town argued that this Court’s holding

in Davis I solidified that the disputed area was public property, dedicated to the town

for future development. The town stated that no one had ever submitted a permit to

open the disputed area as a public roadway and that the town had never abandoned

it. Until either of those two things happened, the town argued, the disputed area

remained public property which could not be adversely possessed.

Lastly, the town argued that Davis should be judicially estopped from raising

his claims because they contradicted his previous position in the Road Access case.

The town contended that Davis had “completely and totally contradicted his

allegations from the prior lawsuit,” and because the previous facts were accepted

and established by a final judgment, it would be appropriate for the court to invoke

judicial estoppel.

In response, Davis argued that both the town’s collateral estoppel and res

judicata arguments should fail because the Road Access case was limited only to the

issue of whether the disputed area was a public road. In Davis’s view, by arguing

that the disputed area was not a public roadway, the town had essentially disclaimed

ownership of the disputed area. According to Davis, when this Court agreed with

the town that the disputed area was not a public roadway, that gave Davis the

opportunity to argue adverse possession. Davis argued that, because he had not

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previously argued adverse possession in either the Road Access or Zoning Appeal

cases, res judicata and collateral estoppel were not applicable to the Adverse

Possession case.

Further, Davis asserted that he was not required to file inconsistent and

alternative pleadings in the Road Access case. Davis contended that to argue that

the disputed area was a public street, but that in the alternative Davis had adversely

possessed the disputed area, would be “tricky” because the court looks at all the

allegations and accepts them in good faith. According to Davis, Rule 8(e) of the

Superior Court Rules of Civil Procedure allows for, but does not require, inconsistent

alternative pleadings. Under his interpretation of the rule, Davis argued that he was

not obligated to bring his alternative claims in the Road Access case.

Davis then expanded on his argument that, because this Court held that the

disputed area was a paper street, it was not public property. Davis agreed with the

town that public property cannot be adversely possessed, but asserted that a paper

street is not public property because it has not been accepted by the town. Because,

according to Davis, the town had not accepted the disputed area, it was “up for

grabs.” Davis argued that, although there was evidence of his use of the disputed

area in the Road Access case, the assertions in each case did not contradict each

other or overlap. Although Davis conceded that use of the disputed area was at issue

- 10 -
in the Road Access case, he also asserted that the other elements of adverse

possession were not.

Next, Davis argued that, because the town had failed to assert that the disputed

area was public property in the Road Access case, that issue was waived. Davis

alleged that the town had gone to “great extents” in the prior case to establish that

the area was not a roadway, which in Davis’s view contradicted the town’s position

that the disputed area was public property. Davis stated that this Court’s opinion

made clear to the town the potential consequences of arguing that it had not accepted

dedication of the disputed area; and, in his view, one consequence was his adverse

possession claim.

The trial justice asked whether Davis was required to have pled his alternative

claims in the prior litigation. In response, Davis reiterated his position that he could

have permissibly pled those claims but was not required to do so. Davis stated that

failing to present an alternative argument did not preclude him from raising it later

and that raising inconsistent statements would dilute the claims’ respective strength.

The trial justice asked Davis if this Court’s decision in the Road Access case opened

the door to the adverse possession claim, which Davis answered in the affirmative.

The trial justice then questioned what constituted the transaction or series of

transactions under the transactional rule. In response, Davis stated that the trial

justice should consider “whether or not the transaction that was the subject of the

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initial complaint, the road case, was broad enough to encompass and include the

concept of adverse possession.” Davis went on to state that the Road Access case

could not have been broad enough to encompass his adverse possession argument

because that claim would have been inconsistent. In closing, Davis disagreed with

the town’s contention that this Court had determined that he had not used the road

for ten years, but asserted separately that under the motion to dismiss standard,

Davis’s present allegations of exclusive use of the disputed area were “cast in stone.”

The town responded, arguing that Davis’s description of the motion to dismiss

standard was inaccurate because he was estopped from asserting facts contradictory

to those asserted in the prior litigation. Further, the town argued that its position on

whether the disputed area was public property had remained consistent throughout

the entirety of the litigation. The town clarified its position, explaining that the

disputed area was dedicated and held in public trust until someone files a proper

application to open and improve it as a road. The town pointed out that this Court

stated that the town had the option to abandon the disputed area, which by

implication meant the town must own it.

Lastly, the town pointed out that, in its view, Davis had essentially admitted

that the issues in both cases were the same. The trial justice clarified that Davis

conceded only that the use of the disputed area was at issue in both cases, with which

Davis agreed. The town responded that, even if that were the case, this Court had

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already determined that the disputed area had never been used, thus precluding Davis

from proving an element essential to each of his claims. With that, the hearing

adjourned.

On November 15, 2023, the trial justice issued a bench decision denying the

town’s motion to dismiss the Adverse Possession case. The trial justice held that

collateral estoppel did not bar Davis’s adverse possession claim. The trial justice

held that Davis could still prevail in his adverse possession claim because “the

public’s right-of-way in a paper street can be adversely possessed as long as the

[t]own has not accepted the incipient dedication by action or by public use * * *.”

Therefore, the trial justice determined that the application of collateral estoppel to

the Adverse Possession case would be inappropriate.

The trial justice next held that res judicata did not bar Davis’s action. First,

the trial justice held that there was an identity of the parties between the Road Access

case and the Adverse Possession case as to the town, some of the individual

defendants, and Davis. The trial justice next determined that, although both cases

arose from the use of the disputed area, the legal analysis and operative facts of the

two cases were vastly different. The trial justice reasoned that the underlying facts

were dissimilar, Davis’s claims were “not an attempt to repackage the facts under a

new legal theory,” and that the claims would not have “constitute[d] a convenient

trial unit.” Moreover, the trial justice concluded that an application of res judicata

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would “lead to an unjust or unfair result,” leaving the issue of the right to use private

property undetermined. Accordingly, the trial justice denied the town’s motion to

dismiss. She did not address the town’s judicial estoppel argument. On January 9,

2024, an order was entered denying the town’s motion.

The town then petitioned this Court for a writ of certiorari, which we granted,

consolidating the matter with the Due Process case. Before this Court, the town

asserts that the Superior Court erred: (1) by failing to dismiss the complaints

pursuant to res judicata and collateral estoppel; (2) in concluding that the town had

consented to proceeding with separate actions; (3) in failing to dismiss the Adverse

Possession Case because public property cannot be adversely possessed; and (4) in

failing to dismiss the Adverse Possession case pursuant to the doctrine of judicial

estoppel.

Standard of Review

“[T]his Court limits its review on certiorari to examining the record to

determine if an error of law has been committed.” Mile v. Kirkbrae Country Club,

331 A.3d 1003, 1006 (R.I. 2025) (quoting Noonan v. Sambandam, 296 A.3d 670,

673 (R.I. 2023)). “The sole function of a motion to dismiss is to test the sufficiency

of the complaint.” Maltais v. Maltais, 306 A.3d 449, 452 (R.I. 2024) (quoting

Jenkins v. City of East Providence, 293 A.3d 1267, 1270 (R.I. 2023)). “In passing

on a Rule 12(b) dismissal, this Court applies the same standard as the trial justice.”

- 14 -
Id. (quoting Jenkins, 293 A.3d at 1270). “When reviewing the decision of a hearing

justice on a motion for judgment on the pleadings pursuant to Rule 12(c), we utilize

the Rule 12(b)(6) motion-to-dismiss test.” Houle v. Liberty Insurance Corporation,

271 A.3d 591, 593 (R.I. 2022) (quoting Nugent v. State Public Defender’s Office,

184 A.3d 703, 706 (R.I. 2018)).

“[W]e confine ourselves to the four corners of the complaint, assume that the

allegations set forth are true, and resolve any doubts in favor of the complaining

party.” Montaquila v. Flagstar Bank, FSB, 288 A.3d 967, 971 (R.I. 2023) (quoting

Chase v. Nationwide Mutual Fire Insurance Company, 160 A.3d 970, 973 (R.I.

2017)). “[A]llegations that are more in the nature of legal conclusions rather than

factual assertions are not necessarily assumed to be true.” Rosario v. Nationstar

Mortgage, LLC, 332 A.3d 173, 177 (R.I. 2025) (quoting DiLibero v. Mortgage

Electronic Registration Systems, Inc., 108 A.3d 1013, 1016 (R.I. 2015)). “A motion

to dismiss may be granted only if it appears beyond a reasonable doubt that a plaintiff

would not be entitled to relief under any conceivable set of facts.” Id. (quoting

Narragansett Electric Company v. Minardi, 21 A.3d 274, 278 (R.I. 2011)).

“Ordinarily, when ruling on a motion to dismiss brought under Rule 12(b)(6)

or Rule 12(c), a court may not consider any documents that are outside of the

complaint, or not expressly incorporated therein, unless the motion is converted into

one for summary judgment.” Montaquila, 288 A.3d at 971 (quoting Chase, 160 A.3d

- 15 -
at 973). However, “we have acknowledged a narrow exception for documents the

authenticity of which are not disputed by the parties; for official public records; for

documents central to plaintiffs’ claim; or for documents sufficiently referred to in

the complaint.” Rosario, 332 A.3d at 176-77 (quoting EDC Investment, LLC v.

UTGR, Inc., 275 A.3d 537, 542-43 (R.I. 2022)).

Discussion

Res Judicata

Before this Court, the town argues that res judicata bars Davis’s Adverse

Possession and Due Process cases, because they arose from the same transaction as

both the Road Access and Zoning Appeal cases, which both ended in final judgments

on the merits. The town emphasizes that both the Due Process case claims and the

Adverse Possession case claims could have been properly raised by Davis in the

Road Access case and are thus barred by res judicata.

In response, Davis argues that the Road Access case “gives rise” to the

Adverse Possession case and concerns a different issue. Davis asserts that his

Adverse Possession case does not put the Road Access case at risk of inconsistency,

because the two share a pivotal relationship. Davis also asserts that the cases have

“markedly different issues, times, spaces, and origins.” Further, Davis contends

before this Court that forcing him to plead adverse possession alternatively in the

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Road Access case would “entrap [his] credibility” as the claims could not have been

brought simultaneously in good faith.

“Res judicata serves as a bar to a second cause of action where there exists:

(1) identity of parties; (2) identity of issues; and (3) finality of judgment in an earlier

action.” Runey v. Faring, 336 A.3d 16, 20 (R.I. 2025) (quoting Mello v. Killeavy,

242 A.3d 53, 56 (R.I. 2020)). To determine “the scope of the issues to be precluded

in the second action, we have adopted the broad transactional rule.” Town of Warren

v. Bristol Warren Regional School District, 159 A.3d 1029, 1036 (R.I. 2017)

(quoting Ritter v. Mantissa Investment Corp., 864 A.2d 601, 605 (R.I. 2005)). “This

rule precludes the re-litigation of all or any part of the transaction, or series of

connected transactions, out of which the first action arose.” Id. (brackets omitted)

(quoting Ritter, 864 A.2d at 605). We determine what comprises a single transaction

or series of transactions “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 Ritter, 864 A.3d at 605).

“[A] party defeated in one action cannot maintain a second action based on a

ground which could properly have been, but was not, set forth and relied upon in the

former action.” ElGabri, 681 A.2d at 275 (quoting Wholey v. Columbian National

Life Insurance Co., 69 R.I. 254, 262, 32 A.2d 791, 795 (1943)). Under res judicata,

- 17 -
the expectation is that “parties who are given the capacity to present their entire

controversies shall in fact do so.” Id. at 276 (quoting 1 Restatement (Second)

Judgments § 24 cmt. a). Failure to adhere to these principles “extinguish[es] a

plaintiff’s claim against a defendant even though the plaintiff would be prepared in

a second action to present evidence or grounds or theories of the case not presented

by the plaintiff in the first action, or to seek remedies or forms of relief not demanded

in that action.” Id.

There is no meaningful dispute as to whether the first (identity of the parties)

and third (finality of judgment) elements of res judicata have been met. Identity of

parties is met because Davis and the town were opposing parties in the previous

actions. The third element is also met because final judgment entered in both the

Road Access case and the Zoning Appeal. See Davis I, 285 A.3d at 23. Accordingly,

we place our focus on the second element: identity of the issues. Davis asserts,

simultaneously, that the Road Access case gave rise to the Adverse Possession case

but also that the cases are markedly different in time, space, and origin. We are not

persuaded.

Contrary to Davis’s argument, the claims presented in the Adverse

Possession, Due Process, and Road Access cases “necessarily rely upon the same

bricks and mortar.” ElGabri, 681 A.2d at 277. All of Davis’s claims arise from his

insistence that he had a right to access the disputed area. The three actions, although

- 18 -
based on different legal theories, are “strikingly similar.” Id. at 278. In ElGabri, this

Court rejected a plaintiff’s argument that causes of action not raised in his federal

court litigation, which was fully adjudicated prior to a state court action, should

survive res judicata. Id. at 280. In determining that the plaintiff’s claims were

precluded, this Court explained that the plaintiff “certainly could have included” his

additional claims in his federal court lawsuit. Id. at 278. Because the plaintiff chose

not to do so, his state court action was barred by res judicata. Id. at 280.

Similarly, all of Davis’s claims in the Adverse Possession case could have

been raised in the Road Access case. At the hearing on the town’s motion to dismiss,

Davis stated that he “could have pled [his adverse possession claim] in the

alternative, permissibly, but he was not obligated to, and there is no law that says

that if you fail to plead an alternative pleading or an inconsistent statement, that

you’re waived from that.” Davis maintains that position before this Court, directing

our attention to the Restatement (Second) Judgments § 24 and Rule 8(e)(2) of the

Superior Court Rules of Civil Procedure, which in his reading provide that

inconsistent pleadings are “essentially optional.”

Davis is correct; he is not required to make alternative pleadings. However,

as established unequivocally by this Court, a litigant chooses not to do so at his or

her own peril. See ElGabri, 681 A.2d at 280 (“[The plaintiff] should have undertaken

to join all of his related transactional claims in one judicial proceeding. He did not,

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and once his federal action was fully litigated * * *, he was thereafter foreclosed in

his state action from going forward with any cause of action that could have been

joined in his previously litigated federal action.”); Bossian v. Anderson, 991 A.2d

1025, 1027 (R.I. 2010) (“Trial on an installment-plan basis cannot be

countenanced.”) (deletion omitted) (quoting Thomas v. Ross, 477 A.2d 950, 953

(R.I. 1984)). Davis’s assertion that the Restatement (Second) of Judgments and the

Rules of Civil Procedure save his subsequent claims is without merit. 9

Davis’s contention that the Road Access case gave rise to the Adverse

Possession case is also without merit. Under the transactional rule, all of Davis’s

9
In fact, a closer reading of the comments to which Davis directs us warns litigants
against taking Davis’s course of action. Restatement (Second) Judgments § 24,
comment c states, in pertinent part:

“That a number of different legal theories casting liability
on an actor may apply to a given episode does not create
multiple transactions and hence multiple claims. This
remains true although the several legal theories depend on
different shadings of the facts, or would emphasize
different elements of the facts, or would call for different
measures of liability or different kinds of relief.”

Restatement (Second) Judgments § 24, comment h provides that the

“plaintiff is under some compulsion not to split a claim.
* * * This still leaves the possibility that a plaintiff,
actually having a single claim but mistakenly believing
that he has a number of them, may commence a limited
lawsuit and then run afoul of the rule against splitting. A
plaintiff must take this risk into account in framing his
action.”

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claims stemming from Davis’s access to the disputed area are extinguished “even

though [he] would be prepared in a second action to present evidence or grounds or

theories of the case not presented * * * in the first action, or to seek remedies or

forms of relief not demanded in that action.” ElGabri, 681 A.2d at 276. Davis cannot

revive his prior action by repackaging the same facts to suit an adverse possession

claim. See Mills v. Toselli, 916 A.2d 756, 757 (R.I. 2006) (mem.) (“The plaintiff

cannot, however, resurrect her action by craftily characterizing defendant’s remarks

as ‘acts,’ or by slyly substituting a slander claim with one for tortious interference.”).

Res judicata applies equally to the Due Process case which also relies on facts

that developed as a direct result of Davis’s mission to access the disputed area.

Several of the facts that make up the Due Process complaint, such as Davis’s alleged

access to the disputed area and the town’s sending of a cease-and-desist letter, appear

on the face of the Road Access complaint.10 Although Davis did not allege all of the

facts contained in the Due Process complaint in the Road Access complaint, he

certainly could have done so. See Bossian, 991 A.2d at 1027 (“In spite of plaintiff’s

assertion that the specific * * * allegations against defendant have not been

authoritatively and legally ruled upon, it is absolutely clear that the fourth count

arose from the same transaction that was at issue in the previous litigation, and it

could have been raised therein.”) (brackets and internal quotation marks omitted).

10
Notably, Davis did raise constitutional violations in the Zoning Appeal case.

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Accordingly, Davis fails to persuade us that his claims survive the preclusive effects

of res judicata.

Acquiescence

There is an exception to res judicata when “the parties have agreed in terms

or in effect that the plaintiff may split his claim, or the defendant has acquiesced

therein.” ElGabri, 681 A.2d at 277 (brackets omitted) (quoting 1 Restatement

(Second) Judgments § 26(1)(a)). If a “plaintiff is simultaneously maintaining

separate actions based upon parts of the same claim, and in neither action does the

defendant make the objection that another action is pending based on the same claim,

judgment in one of the actions does not preclude the plaintiff from proceeding and

obtaining judgment in the other action.” Id. (emphasis omitted) (quoting 1

Restatement (Second) Judgments § 26 cmt. a). A defendant’s failure to object to a

plaintiff’s separate actions “is effective as an acquiescence in the splitting of the

claim.” Id. (quoting 1 Restatement (Second) Judgments § 26 cmt. a).

At the conclusion of the hearing below, the trial justice denied the town’s

motion for judgment on the pleadings in the Due Process case without explanation.

Although she did not directly indicate so, the hearing transcript suggests that the

acquiescence exception to res judicata may have been the basis of the trial justice’s

decision. The town argues, as it did below, that it did not consent to separate

litigation in Davis’s claims. Before this Court, the town asserts that, because it pled

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res judicata as an affirmative defense, it did not acquiesce to Davis’s separate

lawsuits. 11

In ElGabri, this Court held that the defendants’ raising of res judicata as an

affirmative defense in their answer “was sufficient to rebut [the plaintiff]’s appellate

allegation that [the defendants] had acquiesced in the splitting of his state court

claim.” ElGabri, 681 A.2d at 277. Identically, here, the town asserted res judicata

in its first responsive pleading in the Due Process case, raising the affirmative

defense in their answer. Therefore, the town has not acquiesced to the splitting of

Davis’s claims. To the extent that the trial justice may have based her decision on

acquiescence, the denial of the town’s motion was in error.

We are of the opinion that Davis was required to bring all his related claims

in one proceeding. Because he failed to do so, the conclusion of the Road Access

case bars both the Due Process and Adverse Possession cases. The acquiescence

exception to res judicata does not apply. Accordingly, the trial justice erred in

denying both the town’s motion to dismiss the Adverse Possession case and its

motion for judgment on the pleadings in the Due Process case.

11
Davis did not meaningfully argue, before this Court or below, that the town had
acquiesced to separate lawsuits. Davis did briefly state at the hearing below that the
town could have, but did not, move to consolidate the matters.

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Collateral Estoppel

“Under the doctrine of collateral estoppel, ‘an issue of ultimate fact that has

been actually litigated and determined cannot be re-litigated between the same

parties or their privies in future proceedings.’” Paolino v. Commonwealth Engineers

& Consulting, Inc., 318 A.3d 209, 215 (R.I. 2024) (quoting Commercial Union

Insurance Company v. Pelchat, 727 A.2d 676, 680 (R.I. 1999)). “The application

of collateral estoppel requires ‘(1) an identity of issues; (2) a final judgment on the

merits; and (3) an establishment that the party against whom collateral estoppel is

asserted was a party or in privity with a party to the prior action.’” Id. (quoting

Providence Teachers Union, Local 958, American Federation of Teachers,

AFL-CIO v. McGovern, 113 R.I. 169, 172, 319 A.2d 358, 361 (1974)).

The second element, identity of issues, is divided “into three factors: (1) the

issue sought to be precluded must be identical to the issue determined in the earlier

proceeding, (2) the issue must actually have been litigated in the prior proceeding,

and (3) the issue must necessarily have been decided.” Paolino, 318 A.3d at 215

(quoting E.W. Audet & Sons, Inc. v. Fireman’s Fund Insurance Company of Newark,

New Jersey, 635 A.2d 1181, 1186 (R.I. 1994)). “An issue is actually litigated when

it is properly raised, submitted for determination, and actually determined.” Id. “An

issue is necessarily decided when it is essential to the judgment, rather than being

resolved in mere dicta.” Id.

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Before this Court, the town contends that in the Road Access case, the legal

status of the disputed area was actually litigated and decided. The town points to

several findings of fact made by the Superior Court in the Road Access case that, it

contends, cannot be relitigated in the Adverse Possession case: (1) that the developer

of the area intended the disputed area to be a paper street; (2) that aerial photos

showed that the disputed area was undeveloped from 1999 until 2018; and (3) that

from 1988 until 2018 the disputed area was not publicly accessible. Further, the

town points out that, in Davis I, this Court determined the disputed area “has never

been used, maintained, or improved as a roadway and consisted entirely of wooded

vegetation before plaintiff’s self-help excavation.” (Quoting Davis I, 285 A.3d at

21.) Accordingly, the town argues that Davis is estopped from relitigating these

factual findings, and that because ownership and use of the disputed area has already

been litigated, decided, and affirmed by this Court on appeal, Davis’s adverse

possession claim fails as a matter of law.

In response, Davis argues that collateral estoppel is not applicable to the

Adverse Possession case because his claims are “harmonious” with the Road Access

case, and therefore pose no risk of inconsistent judgments. In his briefing before

this Court, Davis does not directly address the town’s argument that the facts it

specified are precluded from relitigation. Rather, according to Davis, the town’s

prior arguments “made clear” that the land was “rural, wild and remote, wooded,

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unimproved, never accepted and essentially a ‘No Man’s Land,’” thus exposing the

disputed area to his adverse possession claim.

In assessing the town’s collateral estoppel argument below, the trial justice

determined that there was no identity of issues because the Road Access case focused

on whether the town had accepted the disputed area as a public road by public user.

The trial justice reasoned that the issue of whether the general public had used the

road for the statutory period was markedly different from the issue of whether Davis

had exclusively used the land for the statutory period. Further, the trial justice stated

that this Court’s determination that the disputed area was a paper street was not

determinative of or identical to the issue of whether Davis had adversely possessed

the disputed area. 12

While the trial justice correctly stated that the Road Access case focused on

whether the public utilized the disputed area, she incorrectly determined that there

was no identity of issues.13 The town contends, correctly, that the issue of use of the

disputed area was litigated in the Road Access case. In Davis I, this Court

determined that the disputed area “ha[d] never been used, maintained, or improved

as a roadway and consisted entirely of wooded vegetation” until Davis’s excavation

12
This Court determined that the disputed area was “[a]t best * * * a paper street
* * *.” Davis I, 285 A.3d at 22 (emphasis added).
13
As in our res judicata discussion supra, there is no dispute as to the other two
elements of collateral estoppel: finality of judgment and identity of parties. We limit
our analysis to the identity of issues.

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in 2018. Davis I, 285 A.3d at 21. In so holding, Davis’s use was actually litigated

and necessarily decided. Contrary to Davis’s interpretation, our finding of non-use

did not open the door to his adverse possession claim. Rather, our prior

determination precludes Davis’s assertions that he cleared and exclusively utilized

the disputed area as early as 1997 and made significant use of the area until 2019.

See Plunkett v. State, 869 A.2d 1185, 1188 (R.I. 2005) (“Although issue preclusion

generally operates to bar relitigation of only those issues that actually were decided

in the prior lawsuit, it may even apply when the second lawsuit asserts a different

claim.”) (quoting Foster-Glocester Regional School Committee v. Board of Review,

854 A.2d 1008, 1014 n.2 (R.I. 2004)). Davis’s arguments are without merit and do

not insulate his new claims from the preclusive effects of collateral estoppel.

Accordingly, the trial justice erred in determining Davis’s claims were not

barred by collateral estoppel. Davis is estopped from relitigating the use of the

disputed area, and as a result his adverse possession claim fails as a matter of law.

Judicial Estoppel

The doctrine of judicial estoppel is “driven by the important motive of

promoting truthfulness and fair dealing in court proceedings.” D & H Therapy

Associates v. Murray, 821 A.2d 691, 693 (R.I. 2003). “Ordinarily, the application

of estoppel is an extraordinary form of relief, that ‘will not be applied unless the

equities clearly are balanced in favor of the party seeking relief.’” Gaumond v.

- 27 -
Trinity Repertory Company, 909 A.2d 512, 519 (R.I. 2006) (brackets omitted)

(quoting Southex Exhibitions, Inc. v. Rhode Island Builders Association, Inc., 279

F.3d 94, 104 (1st Cir. 2002)). “‘[J]udicial estoppel focuses on the relationship

between the litigant and the judicial system as a whole’ rather than solely on the

‘relationship between the parties.’” Id. (quoting D & H Therapy Associates, 821

A.2d at 693). In determining whether to apply judicial estoppel, this Court must

consider “whether the ‘party seeking to assert an inconsistent position would derive

an unfair advantage if not estopped.’” Id. (deletion omitted) (quoting New

Hampshire v. Maine, 532 U.S. 742, 751 (2001)).

Davis previously claimed in the Road Access case, in his verified complaint,

that he, neighbors, and the public regularly used the disputed area. However, in the

Adverse Possession case, Davis asserts that he exclusively utilized and improved the

disputed area, in direct contradiction of his previous allegations. The town argues

that, because these positions are irreconcilable, Davis should be judicially estopped

from pursuing his Adverse Possession case. We agree.

The town raised the doctrine of judicial estoppel before the trial justice in the

proceedings below, arguing that, under Gaumond, Davis should be barred from

raising his contradictory arguments to protect the integrity of the judicial process.

Although he does not clearly address the town’s judicial estoppel argument in his

briefing before this Court, in his memorandum below, Davis asserted that because

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his prior arguments in the Road Access case did not prevail, the Adverse Possession

case was not subject to judicial estoppel. 14 The trial justice did not address judicial

estoppel at either the hearing on the motion to dismiss or in her decision. We deem

that declining to do so constituted error.

In the Adverse Possession case, Davis asserts claims that plainly contradict

his prior sworn allegations in the Road Access case, facts which he may not now

ignore. See D & H Therapy Associates, 821 A.2d at 694 (“Having eaten his cake,

defendant may not renounce its calories.”). This Court employs judicial estoppel

“when a litigant is playing fast and loose with the courts, and when intentional

self-contradiction is being used as a means of obtaining unfair advantage in a forum

provided for suitors seeking justice.” Gaumond, 909 A.2d at 520 (quoting Patriot

Cinemas, Inc. v. General Cinemas Corp., 834 F.2d 208, 212 (1st Cir. 1987)).

Davis’s new claims are in direct contradiction of the facts he previously alleged, and

it would be unfair to permit him to pursue them. 15

14
In his briefing before this Court, Davis cites New Hampshire v. Maine, 532 U.S.
742 (2001), in support of his contention that the town should be judicially estopped
from asserting ownership of the disputed area. However, Davis does not argue
before us that judicial estoppel should not be applied to his own claims.
15
We reiterate our position that Davis could have, and should have, pled his adverse
possession claims in the alternative in the Road Access case. As the Superior Court
Rules of Civil Procedure make clear, Davis and all litigants are permitted to raise
inconsistent alternative pleadings. Super. R. Civ. P. 8(e)(2). However, a litigant may
not repackage previously litigated facts and positions for a second, more favorable
bite at the apple. See D & H Therapy Associates, 821 A.2d at 694. Davis asserts no
tenable reason he could not have pled that the disputed area was a public road, but

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We deem Davis’s position in the Adverse Possession case wholly inconsistent

with his prior position in the Road Access case. Davis’s sworn declaration that he,

neighbors, and the public regularly accessed the disputed area is misleading when

compared with his subsequent claims that he exclusively used and maintained it.

Davis would derive an unfair advantage if allowed to proceed. See New England

Property Services Group, LLC v. Vermont Mutual Insurance Company, 331 A.3d

730, 737 (R.I. 2025) (“The plaintiff’s actions make clear its willingness to use every

judicial avenue available to it, irrespective of efficient conflict resolution. The

plaintiff is searching for, and would derive an unfair advantage if it were permitted

to now claim that the appraisal proceeding is not an arbitration after previously

attempting to confirm the appraisal award in the Superior Court under that same

theory.”) (footnote omitted).

Conclusion

For the reasons set forth herein, we quash the orders of the Superior Court.

The record will be remanded to the Superior Court for entry of orders dismissing

both cases.

Justice Goldberg participated in the decision but retired prior to its

publication.

that if it were not, he had adversely possessed it. Doing so would have comported
with the longstanding principles underlying both the doctrines of judicial estoppel
and res judicata.

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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

Asa S. Davis, III v. Wood Estates, Inc., et al.
Title of Case
Asa S. Davis et al. v. Town of Exeter et al.
No. 2024-10-M.P. (WC 23-139)
Case Number
No. 2024-87-M.P. (WC 20-515)

Date Opinion Filed April 23, 2026

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice Erin Lynch Prata

Source of Appeal Washington County Superior Court

Judicial Officer from Lower Court Associate Justice Sarah Taft-Carter

For Plaintiff:

John O. Mancini, Esq.
Attorney(s) on Appeal For Defendant:

Kathleen M. Daniels, Esq.
Kenneth J. Sylvia, Esq.

SU-CMS-02A (revised November 2022)