Supreme Court

No. 2023-185-Appeal. 

 (PC 17-368) 

Louis Paolino et al. :

v. :

Commonwealth Engineers & 

Consulting, Inc.

:

 

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.
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Supreme Court

No. 2023-185-Appeal.

(PC 17-368)

Louis Paolino et al. :

v. :

Commonwealth Engineers & 

Consulting, Inc. 

:

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

O P I N I O N

Justice Lynch Prata, for the Court. 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 be summarily decided. The plaintiff, Louis 

Paolino,1 appeals from the Superior Court’s entry of summary judgment in favor of 

the defendant, Commonwealth Engineers & Consulting, Inc. (Commonwealth). 

After considering the parties’ written and oral submissions and reviewing the record, 

we conclude that cause has not been shown and that this case may be decided without 

1 Marie E. Issa, Louis Paolino’s wife, is listed as a plaintiff on the complaint, but 

only Mr. Paolino is listed as an appellant on the notice of appeal. Throughout this 

opinion we refer to Mr. Paolino and Ms. Issa, collectively as plaintiffs for ease of 

reference except when referring to the arguments made exclusively by Mr. Paolino 

in the present appeal. 
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further briefing or argument. For the reasons set forth herein, we affirm the 

judgment of the Superior Court. 

Facts and Travel

This dispute, concerning the contamination and remediation of two properties 

in Cumberland, Rhode Island, is not new to this Court. See Paolino v. Ferreira, 153 

A.3d 505 (R.I. 2017) (Paolino I). Because the facts of the underlying dispute are set 

forth in detail in our previous opinion, we relate here only the facts and procedural 

history that are relevant to the present appeal. 

The plaintiffs own property (the Paolino property) located on Curran Road in 

Cumberland, Rhode Island, which abuts a thirty-nine acre site (the Ferreira property) 

owned by J.F. Realty, LLC and operated as an automobile recycling business by 

LKQ Route 16 Used Auto Parts, Inc., d.b.a. Advanced Auto Recycling (LKQ 

Recycling). Joseph I. Ferreira (Ferreira) is the sole member of J.F. Realty, LLC, 

through the Joseph I. Ferreira Trust (the Ferreira Trust). Ferreira began operating 

his property as an automobile salvage yard in approximately 1984, and plaintiffs 

bought their property a year later. Ferreira, J.F. Realty, LLC, LKQ Recycling, and 

the Ferreira Trust (collectively, the Ferreira defendants) were named defendants in 

several prior lawsuits filed by plaintiffs. 

In 2005 the Department of Environmental Management (DEM) sent a letter 

of responsibility to the Ferreira Trust concerning contamination on the Ferreira 
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property. Ferreira subsequently hired the present defendant, Commonwealth, to 

design a stormwater remediation system that addressed the contamination issues. 

The stormwater remediation system, completed in 2008, includes two outflow pipes 

set in a headwall located close to Curran Road and at the border of the Ferreira and 

Paolino properties. The headwall and outflow pipes face Curran Road so that water 

carried through the system discharges into a drainage channel at the edge of the road. 

The water collects in the channel before draining through a culvert, carrying the 

water under Curran Road and away from the properties. The stormwater 

remediation system is designed such that water that settles on the surface of the 

Ferreira property is funneled into the stormwater remediation system. The water 

then passes through an underground oil/water separator and sits in an underground 

detention basin that allows contaminants to settle to the bottom of the chamber, 

resulting in a cleaner outflow. Riprap was also installed around the drainage channel 

for temporary sediment control.2

 Nevertheless, plaintiffs contend that the system 

continues to discharge contaminated stormwater onto their property. Moreover, 

Commonwealth did not complete a property boundary survey prior to commencing 

work on the project. As a result, the headwall and some of the riprap lining the 

drainage channel encroach onto the Paolino property.

2 Riprap is a “loose assemblage of broken stones erected in water or soft ground as 

a foundation.” The American Heritage Dictionary of the English Language 1514 

(5th ed. 2011). 
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In 2006 plaintiffs filed their first action, a complaint in the Superior Court 

(hereinafter the state action) alleging that the Ferreira defendants caused 

contaminants to flow onto their property. The plaintiffs subsequently amended their 

complaint to add a claim for continuing trespass. The complaint was removed to the 

United States District Court for the District of Rhode Island (the federal district 

court) on September 4, 2009, after plaintiffs’ fourth amended complaint included 

federal environmental claims. On March 30, 2011, the federal claims were 

dismissed due, in part, to lack of proper notice, and the state claims were remanded 

to the Superior Court. LM Nursing Service, Inc. v. Ferreira, No. 09-cv-413-SJMDLM, 2011 WL 1222894, at *8 (D.R.I. Mar. 30, 2011). 

On remand, plaintiffs proceeded on their trespass claims, and the case 

culminated in an eleven-day jury trial in the Superior Court. At trial, plaintiffs’ 

expert was precluded from giving testimony relevant to the cause of contamination 

on plaintiffs’ property, and thus there was insufficient evidence for the jury to 

consider awarding damages stemming from the alleged trespass of contaminants. 

Consequently, although the jury found that the headwall and riprap for the 

stormwater remediation system encroached on plaintiffs’ property, the jury awarded 

only nominal damages for the encroachment. After trial, plaintiffs requested 

injunctive relief to remedy the continuing trespass, and the first trial justice 

conducted an evidentiary hearing on plaintiffs’ motion.
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The first trial justice granted plaintiffs’ request for injunctive relief as to a 

metal building encroaching on the Paolino property and ordered its removal. 

However, with respect to the encroaching headwall and riprap, the first trial justice 

concluded that the encroachments were de minimis and that their removal would not 

benefit plaintiffs, but rather would disproportionally harm defendants. Therefore, 

she denied plaintiffs’ request for injunctive relief as to those encroachments. 

Judgment entered for plaintiffs, and plaintiffs filed their first appeal. 

In an opinion issued on February 16, 2017, we affirmed in part and vacated in 

part the decisions of the first trial justice. Paolino I, 153 A.3d at 529. This Court 

affirmed the first trial justice’s decision granting in part and denying in part 

injunctive relief, reasoning that she engaged in an appropriate balancing of the 

equities given that she determined that the headwall and riprap encroachments were 

de minimis. Id. at 515-16. We vacated in part, however, because we determined that 

the first trial justice inappropriately restricted the testimony of plaintiffs’ expert. Id.

at 525. We thus ordered a “new trial on all issues, excluding the issue of injunctive 

relief.” Id.

The case was once again tried before a jury in the Superior Court. The 

plaintiffs argued that there was a continuing trespass because contaminants had 

migrated to their property from the Ferreira property and because the stormwater 

remediation system contained contaminants. However, the jury found that there was 
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no continuing trespass. Moreover, although the jury found that portions of the 

stormwater remediation system encroached on plaintiffs’ property, plaintiffs were 

awarded no damages for the encroachment given that they declined to request 

compensatory damages and because the jury found that no punitive damages were 

warranted. In response, plaintiffs filed a motion for a new trial, arguing that the 

evidence clearly established that contamination had migrated onto the Paolino 

property from the Ferreira property. The second trial justice denied plaintiffs’ 

motion, finding that the jury appropriately found that plaintiffs failed to meet their 

burden of proof on the issue of trespass. The second trial justice reasoned that the 

jury weighed the conflicting expert opinions and accepted the testimony of 

defendants’ expert. The second trial justice noted that although there may have been 

some surface water that migrated from the Ferreira property to the Paolino property, 

there was simply no evidence demonstrating that contaminants had migrated from 

the Ferreira property to the Paolino property.

Meanwhile, litigation was ongoing in the federal courts. On January 20, 2012, 

plaintiffs filed a complaint in the federal district court under the Clean Water Act 

(the CWA) against the Ferreira defendants (the federal action). The complaint was 

a citizens’ enforcement action pursuant to 33 U.S.C. § 1251. In their complaint, 

plaintiffs alleged that the Ferreira defendants lacked a valid permit and that 

contaminated stormwater runoff was being discharged from the Ferreira property 
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into United States waters, violating the CWA. The federal district court initially 

dismissed the complaint due to defective pre-suit notice; however, the United States 

Court of Appeals for the First Circuit reversed in Paolino v. JF Realty, 710 F.3d 31, 

40 (1st Cir. 2013), and the case was remanded to the federal district court for a 

seven-day bench trial. 

In its decision, the federal district court noted that to succeed in their CWA 

claim, plaintiffs were required to prove that defendants “discharged a pollutant from 

a point source into navigable waters without a permit” or that defendants failed to 

comply with their permit’s conditions. Paolino v. JF Realty, LLC, C.A. No. 

12-039-ML, 2014 WL 6485842, at *20 (D.R.I. Nov. 19, 2014) (Paolino II). The 

federal district court determined that plaintiffs failed to prove defendants violated 

the CWA because the evidence at trial demonstrated that defendants made extensive 

efforts to comply both with the conditions imposed by the DEM and with the 

conditions imposed by the permit. Id. The federal district court summarized that 

“the evidence and testimony offered at trial establish that the [d]efendants, with the 

input and approval of RIDEM, built a state-of-the[-]art stormwater management 

system on the [Ferreira] [p]roperty, which was designed to address all aspects of 

stormwater runoff and to bring the [Ferreira] [p]roperty into compliance with 

environmental regulations.” Id. at *22. Therefore, plaintiffs failed to prove their 

CWA claim. Id. at *23. 
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Undeterred, plaintiffs filed the present action against Commonwealth in the 

Superior Court on January 23, 2017. In count one of their complaint, plaintiffs 

alleged that, between 2006 and 2009, Commonwealth negligently designed and 

constructed a stormwater remediation system on an abutting property such that the 

system disposes of contaminated stormwater from the Ferreira property onto 

plaintiffs’ property. In count two of their complaint, plaintiffs alleged that, between 

2006 and 2009, Commonwealth negligently designed and constructed the 

stormwater remediation system such that the system encroached on their property. 

On November 17, 2022, Commonwealth filed a motion for summary judgment 

premised on the doctrine of collateral estoppel. 

The hearing justice granted defendant’s motion for summary judgment. The 

hearing justice determined that there was an identity of issues between count one of 

the present action and the federal action because in the present action plaintiffs 

alleged that defendant negligently designed the stormwater remediation system such 

that it deposits contaminated stormwater onto plaintiffs’ property, and in their 

federal action, plaintiffs alleged that contaminated stormwater runoff was being 

discharged from the Ferreira property onto the Paolino property. The hearing justice 

further reasoned that because the federal district court noted that the Ferreira 

defendants built a state-of-the-art stormwater remediation system, the issue of 

whether Commonwealth negligently designed and constructed the stormwater 
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remediation system is identical to the issue previously decided by that court. 

Regarding count two, he determined that there was an identity of issues between the 

present case and the state action because “the issue of [the] stormwater system’s 

trespass on plaintiffs’ property was litigated extensively * * * in prior proceedings.” 

Thereafter, final judgment was entered, and Mr. Paolino filed a timely appeal. 

Standard of Review

“This Court reviews a decision granting a party’s motion for summary 

judgment de novo.” Nissensohn v. CharterCARE Home Health Services, 306 A.3d 

1026, 1033 (R.I. 2024) (quoting Citizens Bank, N.A. v. Palermo, 247 A.3d 131, 133 

(R.I. 2021)). “We assess the matter ‘from the vantage point of the trial justice, 

viewing the evidence in the light most favorable to the nonmoving party, and if we 

conclude that there are no genuine issues of material fact and that the moving party 

is entitled to judgment as a matter of law, we will affirm.’” Id. (brackets and 

deletions omitted) (quoting Citizens Bank, N.A., 247 A.3d at 133). “Although 

summary judgment is recognized as an extreme remedy, to avoid summary judgment 

the burden is on the nonmoving party to produce competent evidence that proves the 

existence of a disputed issue of material fact.” Id. (deletion omitted) (quoting 

Citizens Bank, N.A., 247 A.3d at 133).
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Discussion

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.” 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.” Providence Teachers Union, 

Local 958, American Federation of Teachers, AFL-CIO v. McGovern, 113 R.I. 169, 

172, 319 A.2d 358, 361 (1974). Mr. Paolino acknowledges that the latter two 

elements have been met in this case; therefore, the only issue before this Court is 

whether there is an identity of issues between the present action and the prior actions.

Mr. Paolino argues that the present issues are different from the issues in the 

federal action because the federal action determined whether the Ferreira defendants 

violated the CWA’s effluence standards, not whether the stormwater remediation 

system was negligently designed. Moreover, he asserts that the issue of whether the 

stormwater remediation system was negligently designed was not necessarily 

decided by the federal district court because that issue was not determinative of the 

outcome of that case. In response, Commonwealth argues that there is an identity 
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of issues between count one of this case and the federal action because the federal 

district court “rejected the contamination claim in [its] [b]ench [d]ecision in 2014.” 

The identity-of-issues requirement is subdivided “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.” 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. See Restatement (Second) Judgments § 27 

cmt. d (June 2024 Update). An issue is necessarily decided when it is essential to 

the judgment, rather than being resolved in mere dicta. See id. § 27 cmt. e.

The hearing justice reasoned that there was an identity of issues between count 

one of the present action and the federal action because the federal district court 

determined that the Ferreira defendants, with the aid of Commonwealth, built a 

“state-of-the-art” stormwater remediation system, designed to “bring the [Ferreira] 

property into compliance with environmental regulations.” (Quoting Paolino II, 

2014 WL 6485842, at *22.) However, while Commonwealth’s state-of-the-art 

design may be relevant to the issue of negligence in the present case, the two 

issues—whether Commonwealth designed a system to bring the property into 

compliance with federal environmental regulations and whether Commonwealth 
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was negligent in designing a system that outflows onto plaintiffs’ property—are 

simply not identical. See E.W. Audet & Sons, Inc., 635 A.2d at 1186 (“[T]he issue 

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

proceeding * * *.”); Mandella v. Mariano, 61 R.I. 163, 166, 200 A. 478, 479 (1938) 

(“[N]egligence, speaking generally, is a relative term implying failure to comply 

with an indefinite rule of conduct in the circumstances of any particular case.”) 

(emphasis added). 

The hearing justice also reasoned that there was an identity of issues because 

plaintiffs in the federal action alleged that contaminated stormwater runoff was 

being discharged from the Ferreira property onto the Paolino property. Although 

plaintiffs did make such an allegation in the federal action, the issue was not actually 

litigated. See E.W. Audet & Sons, Inc., 635 A.2d at 1186 (noting that in order to meet 

the identity-of-issues requirement, the issue must not only be identical to the issues 

in the prior proceeding, but also have been actually litigated in and necessarily 

decided by the prior proceeding). The plaintiffs alleged in their federal complaint 

that the improper treatment of stormwater on the Ferreira property was 

contaminating their property, but they did not submit this issue for determination to 

the federal district court. See Restatement (Second) Judgments § 27 cmt. d (June 

2024 Update) (noting that an issue is actually litigated when it is “properly raised, 

by the pleadings or otherwise, and is submitted for determination, and is 
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determined”). Instead, the federal district court noted in its summation of the facts 

that the DEM advised plaintiffs that stormwater was being discharged onto the 

Curran Road right-of-way, rather than on plaintiffs’ property, but the federal district 

court itself never determined that issue. Accordingly, the present issue—whether 

the stormwater remediation system was designed such that it deposits contaminated 

stormwater onto plaintiffs’ property—was not actually litigated in the federal action, 

and thus there is no identity of issues between the present action and the federal 

action. See E.W. Audet & Sons, Inc., 635 A.2d at 1186; Restatement (Second) 

Judgments § 27 (June 2024 Update). 

Nevertheless, we may affirm on other grounds. Miller v. Metropolitan 

Property and Casualty Insurance Co., 111 A.3d 332, 339 (R.I. 2015) (noting that 

this Court may affirm or overturn a trial justice’s legal determinations on other 

grounds). Commonwealth alternatively argues that the issue of whether 

contaminants flowed onto plaintiffs’ property by virtue of the stormwater 

remediation system was already decided by the second jury in the state action. We 

agree. 

In count one of the present action, plaintiffs alleged that Commonwealth 

negligently designed the stormwater remediation system such that it deposits 

contaminated stormwater from the Ferreira property onto the Paolino property. 

Likewise, in the state action, plaintiffs alleged that the Ferreira defendants 
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committed a trespass by causing contaminants to flow onto their property. At the 

second trial, plaintiffs’ expert testified that contaminated water was continuously 

being discharged from the headwall of the stormwater remediation system, causing 

contaminants to funnel onto plaintiffs’ property. The jury, however, found that 

plaintiffs had not committed a trespass, and the second trial justice declined to 

overturn the jury’s verdict, reasoning that plaintiffs failed to prove that contaminants 

had migrated from one property to the other. Further, the issue was actually litigated 

because plaintiffs raised the issue, offered evidence on the issue, and submitted it to 

the jury for determination. See Restatement (Second) Judgments § 27. Lastly, the 

issue was necessarily decided because determining whether contaminants were 

discharged from the Ferreira property onto plaintiffs’ property was essential to a 

finding of trespass in the state action. See id.; see also Mosby v. Goff, 21 R.I. 494, 

496, 44 A. 930, 930 (1899) (holding that a defendant trespassed when he entered 

plaintiff’s dwelling without a license). Accordingly, the issue of whether the 

stormwater remediation system discharges contaminants onto plaintiffs’ property is 

identical to the issue that was already decided by the jury in the state action. See

E.W. Audet & Sons, Inc., 635 A.2d at 1186. 

As such, there is an identity of issues between count one of the present action 

and the state action, and plaintiffs are precluded from relitigating their claim that the 

stormwater remediation system discharges contaminants onto plaintiffs’ property. 
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E.W. Audet & Sons, Inc., 635 A.2d at 1186. Therefore, we affirm the hearing 

justice’s grant of summary judgment as to count one of plaintiffs’ complaint under 

the doctrine of collateral estoppel. 

In regard to count two, the hearing justice reasoned that there was an identity 

of issues between count two of the present case—in which plaintiffs are alleging that 

Commonwealth negligently designed the stormwater remediation system such that 

it encroached on plaintiffs’ property—and the prior cases because the trespass was 

“litigated extensively * * * in prior proceedings.” Commonwealth argues that count 

two should be precluded because this Court has already affirmed the first trial 

justice’s determination that the encroachment was de minimis. 

In the state action, we affirmed the first trial justice’s finding that the damages 

stemming from the encroachment of the headwall and riprap were de minimis. 

Paolino I, 153 A.3d at 515-16. A de minimis injury is one that is “so insignificant 

that a court may overlook it in deciding an issue or case.” Black’s Law Dictionary 

544 (11th ed. 2019). In order to prove negligence in the present action, plaintiffs 

must prove that they suffered “actual loss or damage” stemming from the 

encroachment of the headwall and riprap. Curreri v. Saint, 126 A.3d 482, 486 (R.I. 

2015) (quoting Medeiros v. Sitrin, 984 A.2d 620, 625 (R.I. 2009)). Therefore, the 

issue to be decided in the present action—whether plaintiffs suffered “actual loss or 

damage” due to the encroachment of the stormwater remediation system—is 
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identical to the issue already decided in the state action—that “there would 

ultimately be no benefit to plaintiffs if the riprap and headwall were removed.” 

Paolino I, 153 A.3d at 514. 

Further, the issue was actually litigated because plaintiffs raised the issue in 

their motion for injunctive relief following the first trial, offered evidence on the 

issue, and submitted it to the first trial justice for a determination. See Paolino I, 153 

A.3d at 512-13; Restatement (Second) Judgments § 27. Lastly, the issue was 

necessarily decided because determining that the encroachment was de minimis and 

that its removal would not benefit plaintiffs was essential to this Court’s conclusion 

that there were exceptional circumstances that warranted a departure from the 

general rule that injunctive relief is the appropriate remedy for a continuing trespass. 

See Paolino I, 153 A.3d at 515-16; Restatement (Second) Judgments § 27. 

Moreover, the determination that the approximately thirteen-inch encroachment was 

de minimis in proportion to the harm that the Ferreira defendants would suffer was 

essential to this Court’s holding that the first trial justice engaged in an appropriate 

balancing of the equities in denying injunctive relief. Paolino I, 153 A.3d at 515-16. 

Accordingly, there is an identity of issues between count two of the present action 

and the state action, and plaintiffs are precluded from relitigating the issue of their 

damages stemming from the stormwater remediation system. See E.W. Audet & 

Sons, Inc., 635 A.2d at 1186. 
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Conclusion

For the reasons stated herein, we affirm the judgment of the Superior Court. 

The papers shall be returned to the Superior Court.
SU-CMS-02A (revised November 2022)

STATE OF RHODE ISLAND

SUPREME COURT – CLERK’S OFFICE

Licht Judicial Complex

250 Benefit Street

Providence, RI 02903

OPINION COVER SHEET

Title of Case Louis Paolino et al. v. Commonwealth Engineers & 

Consulting, Inc.

Case Number No. 2023-185-Appeal.

(PC 17-368)

Date Opinion Filed July 25, 2024

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

Long, JJ.

Written By Associate Justice Erin Lynch Prata 

Source of Appeal Providence County Superior Court 

Judicial Officer from Lower Court Associate Justice Kevin F. McHugh

Attorney(s) on Appeal

For Plaintiffs:

Ronald L. Bonin, Esq. 

For Defendant:

Mark P. Dolan, Esq.