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 Supreme Court

 

No. 2019-302-Appeal. 

(PC 16-4593)

 

Joshua Mello :

v. :

Sean Killeavy. :

O R D E R

The plaintiff, Joshua Mello, appeals from an order of the Superior Court 

denying his motion to amend his complaint. In an earlier opinion on the same facts, 

this Court addressed the plaintiff’s appeal from the entry of summary judgment in 

favor of the defendant, Sean Killeavy, 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 reviewing the record, 
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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 in the Superior 

Court to amend his complaint. 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” because that argument 

had not been raised in the Superior Court and because plaintiff had alleged in his 

complaint that he was performing duties for his employer at the time of his injuries.2

 

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

It should be noted that, prior to plaintiff’s motion to amend his complaint that is 

the subject of this appeal, plaintiff had also filed an amended complaint while Mello

v. Killeavy, 205 A.3d 454 (R.I. 2019), was pending in this Court. He also alleged in 

that amended complaint that he was on an uncompensated lunch break at the time of 

his injury. The defendant moved to strike plaintiff’s amended complaint, and the 

hearing justice correctly declined to rule on that motion because the appeal had been 

docketed in this Court, thereby depriving the Superior Court of jurisdiction. 
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See id. 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 plaintiff’s motion after finding that she did not agree with plaintiff’s 

interpretation of the footnote in Mello, and she further determined that plaintiff had 

waived the new argument he sought to advance. The plaintiff timely appealed. 

On appeal, plaintiff maintains that the hearing justice erred in denying his 

motion to amend because this Court in Mello never determined whether plaintiff and 

defendant were properly classified as employees during their purported unpaid lunch 

break. Consequently, he argues, the Workers’ Compensation Act, which this Court 

determined to bar plaintiff’s claims in Mello, would have no relevance to plaintiff’s 

claims if the parties were not, in fact, actually engaged as employees at the time 

plaintiff was injured. See Mello, 205 A.3d at 460, 462. The plaintiff also points to 

our long-standing jurisprudence providing that amendments to pleadings be liberally 

permitted as authority that plaintiff’s post-judgment motion to amend should have 

been allowed. 

“[T]he decision to grant or to deny a motion to amend a complaint is confided 

to the sound discretion of the trial justice.” Lomastro v. Iacovelli, 56 A.3d 92, 94 

(R.I. 2012) (brackets omitted) (quoting Harodite Industries, Inc. v. Warren Electric 

Corp., 24 A.3d 514, 529 (R.I. 2011)). “‘Accordingly, we afford great deference to 
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the trial justice’s ruling on a motion to amend,’ and we ‘will not disturb that ruling 

unless the trial justice committed an abuse of discretion.’” Id. (brackets omitted)

(quoting Harodite Industries, Inc., 24 A.3d at 529).

This Court in Mello affirmed a grant of summary judgment in favor of the 

defendant because the plaintiff accepted workers’ compensation benefits for an 

injury that occurred on the job site as a result of the acts of a co-employee. Mello, 

205 A.3d at 462. Accordingly, all the plaintiff’s claims against the defendant were, 

therefore, either resolved by this Court or waived; thus, the hearing justice did not 

abuse her discretion in denying plaintiff’s post-judgment motion to amend. 

For the reasons set forth in this order, we affirm the order of the Superior 

Court. The record may be returned to that tribunal.

Entered as an Order of this Court this day of 

 By Order,

 

 _____________________________

 Clerk

/s/

14th December, 2020.
SU-CMS-02B (revised June 2020)

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.

Case Number No. 2019-0302-Appeal.

(PC 16-4593)

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

Attorney(s) on Appeal

For Plaintiff:

Ronald J. Resmini, Esq.

For Defendant:

David E. Maglio, Esq.

Scott F. Bielecki, Esq.

Kathryn Hopkins, Esq.

Mark T. Reynolds, Esq.