Supreme Court
No. 2020-83-Appeal. (PC 19-7255)
Joshua Mello :
v. :
Sean Killeavy. :
ORDER
The plaintiff, Joshua Mello, appeals from a final judgment of the Superior
Court in favor of the defendant, Sean Killeavy, following an order dismissing the
plaintiff’s complaint pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil
Procedure, for failure to state a claim on which relief can be granted. In a prior
opinion, on the same facts but in a separate case, this Court addressed the plaintiff’s
appeal from the entry of summary judgment in favor of the defendant in which we
affirmed the judgment of the Superior Court. See Mello v. Killeavy, 205 A.3d 454
(R.I. 2019). This case came before the Supreme Court pursuant to an order directing
the parties to appear and show cause why the issues raised in this appeal should not
summarily be decided. After considering the parties’ written submissions, and after
-1- reviewing the record, we conclude that cause has not been shown and that this case
may be decided without further briefing.1
Because the facts of the underlying dispute are set forth in detail in our
previous opinion, we shall relate here only the facts that are directly relevant to the
present appeal. After this Court issued its decision in Mello, in which we held that
the exclusivity provision of the Workers’ Compensation Act barred plaintiff’s claim
against defendant, see Mello, 205 A.3d at 460, 462, plaintiff moved the Superior
Court to amend his complaint in that case, PC-2016-4593. In that proposed
amendment, plaintiff claimed that his injuries were sustained while he was on an
“unpaid lunch break[.]” The plaintiff maintained that his revised argument was in
response to a footnote in Mello, in which we expressed that we were disinclined to
address plaintiff’s argument “that he was on an uncompensated lunch break at the
time of the injury” in light of plaintiff’s allegation in his complaint that he was
performing duties on behalf of his employer at the time of his injury and because
that argument had not been raised in the Superior Court. Mello, 205 A.3d at 460 n.8.
Seizing on that language, plaintiff claimed that that footnote “left open” an
opportunity for that argument to be raised and litigated in the Superior Court. On
June 27, 2019, at a hearing on plaintiff’s motion to amend, the hearing justice denied
1 In an order dated September 15, 2020, this Court granted the plaintiff’s motion for leave to waive oral argument. As a result, this case has been decided on the papers submitted by the parties.
-2- plaintiff’s motion after finding that she did not agree with plaintiff’s interpretation
of the footnote in Mello and that plaintiff had waived the new argument he sought
to advance.2
Less than one week after his motion to amend was denied, plaintiff filed a
second action in the Superior Court, the present case. That action, which is the
subject of this appeal, is in all material respects identical to the complaint filed in the
earlier action, except that plaintiff now alleges that he sustained his injury while he
was on an unpaid lunch break. Indeed, plaintiff’s complaint in this action endeavors
to assert the same argument that the Superior Court found to be waived when it
denied his motion to amend his complaint in the earlier action.
In response to the new complaint in the present case, defendant filed a motion
to dismiss. On January 29, 2020, the hearing justice granted defendant’s motion to
dismiss after finding that plaintiff’s claim was barred by the doctrine of res judicata.
In doing so, the hearing justice ruled that the complaint raised issues that could have
been asserted in plaintiff’s very first action, the judgment which was affirmed by
this Court in Mello. See Mello, 205 A.3d at 460, 462. The plaintiff timely appealed.
On appeal, plaintiff maintains that the hearing justice erred in granting
defendant’s motion to dismiss on res judicata grounds because, according to
2 The plaintiff subsequently appealed that decision, which this Court affirmed in an order contemporaneously issued with this order, in Mello v. Killeavy, No. 2019-302- A., __ A.3d __.
-3- plaintiff, identity of issues between the first and second action is lacking. He claims
that this is so because “the question of ‘an uncompensated lunch break’ was not
actually litigated in the prior action[.]” Alternatively, plaintiff argues that the
footnote in Mello created a “mandate to the Superior Court that the uncompensated
lunch break should be considered as a separate matter and left open for the purposes
of litigation.”
“The sole function of a motion to dismiss is to test the sufficiency of the
complaint.” DiLibero v. Mortgage Electronic Registration Systems, Inc., 108 A.3d
1013, 1015 (R.I. 2015) (brackets omitted) (quoting Narragansett Electric Co. v.
Minardi, 21 A.3d 274, 277 (R.I. 2011)). “In passing on a Rule 12(b) dismissal, this
Court applies the same standard as the trial justice.” Id. (quoting Narragansett
Electric Co., 21 A.3d at 278). “We thus are confined to the four corners of the
complaint and must assume all allegations are true, resolving any doubts in
plaintiff’s favor.” Id. (quoting Narragansett Electric Co., 21 A.3d at 278). “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.
(brackets omitted) (quoting Narragansett Electric Co., 21 A.3d at 278).
The plaintiff first asserts that it was error for the hearing justice to dismiss his
complaint on res judicata grounds. “Res judicata, or claim preclusion, bars the
relitigation of all issues that were tried or might have been tried in an earlier action.”
-4- JHRW, LLC v. Seaport Studios, Inc., 212 A.3d 168, 177 (R.I. 2019) (quoting
Reynolds v. First NLC Financial Services, LLC, 81 A.3d 1111, 1115 (R.I. 2014)).
“[R]es 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.” Id. (quoting Goodrow v. Bank of America, N.A., 184 A.3d 1121, 1126 (R.I.
2018)). With respect to the identity of issues prong, “this Court has adopted the
transactional rule governing the preclusive effect of the doctrine of res judicata.” Id.
at 178 (brackets omitted) (quoting Goodrow, 184 A.3d at 1127). “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 Goodrow, 184 A.3d at 1127).
Our review of the record leads us to conclude that the issue of whether or not
plaintiff was actually engaged in furtherance of his employer’s business or was
engaged in personal pursuit at the time he sustained his injury could have been raised
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Supreme Court
No. 2020-83-Appeal. (PC 19-7255)
Joshua Mello :
v. :
Sean Killeavy. :
ORDER
The plaintiff, Joshua Mello, appeals from a final judgment of the Superior
Court in favor of the defendant, Sean Killeavy, following an order dismissing the
plaintiff’s complaint pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil
Procedure, for failure to state a claim on which relief can be granted. In a prior
opinion, on the same facts but in a separate case, this Court addressed the plaintiff’s
appeal from the entry of summary judgment in favor of the defendant in which we
affirmed the judgment of the Superior Court. See Mello v. Killeavy, 205 A.3d 454
(R.I. 2019). This case came before the Supreme Court pursuant to an order directing
the parties to appear and show cause why the issues raised in this appeal should not
summarily be decided. After considering the parties’ written submissions, and after
-1- reviewing the record, we conclude that cause has not been shown and that this case
may be decided without further briefing.1
Because the facts of the underlying dispute are set forth in detail in our
previous opinion, we shall relate here only the facts that are directly relevant to the
present appeal. After this Court issued its decision in Mello, in which we held that
the exclusivity provision of the Workers’ Compensation Act barred plaintiff’s claim
against defendant, see Mello, 205 A.3d at 460, 462, plaintiff moved the Superior
Court to amend his complaint in that case, PC-2016-4593. In that proposed
amendment, plaintiff claimed that his injuries were sustained while he was on an
“unpaid lunch break[.]” The plaintiff maintained that his revised argument was in
response to a footnote in Mello, in which we expressed that we were disinclined to
address plaintiff’s argument “that he was on an uncompensated lunch break at the
time of the injury” in light of plaintiff’s allegation in his complaint that he was
performing duties on behalf of his employer at the time of his injury and because
that argument had not been raised in the Superior Court. Mello, 205 A.3d at 460 n.8.
Seizing on that language, plaintiff claimed that that footnote “left open” an
opportunity for that argument to be raised and litigated in the Superior Court. On
June 27, 2019, at a hearing on plaintiff’s motion to amend, the hearing justice denied
1 In an order dated September 15, 2020, this Court granted the plaintiff’s motion for leave to waive oral argument. As a result, this case has been decided on the papers submitted by the parties.
-2- plaintiff’s motion after finding that she did not agree with plaintiff’s interpretation
of the footnote in Mello and that plaintiff had waived the new argument he sought
to advance.2
Less than one week after his motion to amend was denied, plaintiff filed a
second action in the Superior Court, the present case. That action, which is the
subject of this appeal, is in all material respects identical to the complaint filed in the
earlier action, except that plaintiff now alleges that he sustained his injury while he
was on an unpaid lunch break. Indeed, plaintiff’s complaint in this action endeavors
to assert the same argument that the Superior Court found to be waived when it
denied his motion to amend his complaint in the earlier action.
In response to the new complaint in the present case, defendant filed a motion
to dismiss. On January 29, 2020, the hearing justice granted defendant’s motion to
dismiss after finding that plaintiff’s claim was barred by the doctrine of res judicata.
In doing so, the hearing justice ruled that the complaint raised issues that could have
been asserted in plaintiff’s very first action, the judgment which was affirmed by
this Court in Mello. See Mello, 205 A.3d at 460, 462. The plaintiff timely appealed.
On appeal, plaintiff maintains that the hearing justice erred in granting
defendant’s motion to dismiss on res judicata grounds because, according to
2 The plaintiff subsequently appealed that decision, which this Court affirmed in an order contemporaneously issued with this order, in Mello v. Killeavy, No. 2019-302- A., __ A.3d __.
-3- plaintiff, identity of issues between the first and second action is lacking. He claims
that this is so because “the question of ‘an uncompensated lunch break’ was not
actually litigated in the prior action[.]” Alternatively, plaintiff argues that the
footnote in Mello created a “mandate to the Superior Court that the uncompensated
lunch break should be considered as a separate matter and left open for the purposes
of litigation.”
“The sole function of a motion to dismiss is to test the sufficiency of the
complaint.” DiLibero v. Mortgage Electronic Registration Systems, Inc., 108 A.3d
1013, 1015 (R.I. 2015) (brackets omitted) (quoting Narragansett Electric Co. v.
Minardi, 21 A.3d 274, 277 (R.I. 2011)). “In passing on a Rule 12(b) dismissal, this
Court applies the same standard as the trial justice.” Id. (quoting Narragansett
Electric Co., 21 A.3d at 278). “We thus are confined to the four corners of the
complaint and must assume all allegations are true, resolving any doubts in
plaintiff’s favor.” Id. (quoting Narragansett Electric Co., 21 A.3d at 278). “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.
(brackets omitted) (quoting Narragansett Electric Co., 21 A.3d at 278).
The plaintiff first asserts that it was error for the hearing justice to dismiss his
complaint on res judicata grounds. “Res judicata, or claim preclusion, bars the
relitigation of all issues that were tried or might have been tried in an earlier action.”
-4- JHRW, LLC v. Seaport Studios, Inc., 212 A.3d 168, 177 (R.I. 2019) (quoting
Reynolds v. First NLC Financial Services, LLC, 81 A.3d 1111, 1115 (R.I. 2014)).
“[R]es 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.” Id. (quoting Goodrow v. Bank of America, N.A., 184 A.3d 1121, 1126 (R.I.
2018)). With respect to the identity of issues prong, “this Court has adopted the
transactional rule governing the preclusive effect of the doctrine of res judicata.” Id.
at 178 (brackets omitted) (quoting Goodrow, 184 A.3d at 1127). “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 Goodrow, 184 A.3d at 1127).
Our review of the record leads us to conclude that the issue of whether or not
plaintiff was actually engaged in furtherance of his employer’s business or was
engaged in personal pursuit at the time he sustained his injury could have been raised
in the first action that plaintiff filed in the Superior Court. Under our “transactional
rule,” it is of no consequence that the issue that plaintiff now seeks to assert in a
second action was not “actually litigated” in the earlier litigation; it is enough that
the issue could have been raised, but was not. See Seaport Studios, Inc., 212 A.3d at
178. Because plaintiff now seeks to litigate an issue arising from the same facts as
those in controversy in a previous action that was not, but could have been, raised in
-5- that earlier action, the hearing justice did not err when she dismissed his complaint
on the basis of res judicata.
Moreover, we disagree that any mandate was created by the footnote in Mello.
As this Court explained in an order contemporaneously issued with this order, in
Mello v. Killeavy, No. 2019-302-A; __ A.3d __, the footnote to which the plaintiff
points us merely expressed that we were disinclined to address the plaintiff’s
argument that he was on an “uncompensated lunch break at the time of the injury”
solely because plaintiff did not raise that issue before the Superior Court in the first
instance, thus waiving that argument. See Mello, 205 A.3d at 460 n.8.
For the reasons set forth in this order, we affirm the judgment of the Superior
Court. The record may be returned to that tribunal.
Entered as an Order of this Court this 14th day of December, 2020.
By Order,
/s/ _____________________________ Clerk
-6- STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
ORDER COVER SHEET
Title of Case Joshua Mello v. Sean Killeavy.
No. 2020-0083-Appeal. Case Number (PC 19-7255)
Date Order Filed December 14, 2020
Justices Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Melissa E. Darigan
For Plaintiff:
Ronald J. Resmini, Esq. Attorney(s) on Appeal For Defendant:
Kathryn Hopkins, Esq.
SU-CMS-02B (revised June 2020)