NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-218
JOHN BOURGAULT
vs.
ROBERT HALBEN & another. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, John Bourgault, appeals from a summary
judgment entered in the Superior Court in favor of the
defendants, Robert Halben and Lori Anderson-Halben, 2 on all
claims asserted in his complaint. We affirm.
Background. We summarize the facts from the summary
judgment record, viewing them "in the light most favorable to
the nonmoving party," Huang v. Ma, 491 Mass. 235, 239 (2023),
here, the plaintiff.
1 Lori Anderson-Halben.
2As the defendants share a last name, we refer to them by their first names for clarity. On March 10, 2020, the plaintiff visited the defendants'
home to view a camper that they had listed for sale on Facebook
Marketplace for $3,300. Robert showed the plaintiff around the
camper and told him that "everything works with normal wear and
tear." Robert pointed out some scratches on the exterior of the
camper and told the plaintiff, "This is the only physical damage
that I am aware of." He told the plaintiff that the camper was
twenty years old, that the defendants were not its original
owners, and that "the camper has never leaked for me but I
cannot attest to the previous owner." The plaintiff put down a
$400 deposit on the camper.
Two days later, the plaintiff returned to the defendants'
home, viewed the camper again, and paid Robert the balance of
the purchase price, which amounted to $2,900. Another two days
after that, on March 14, Robert transported the camper to the
plaintiff's home.
On March 28, two weeks after the camper had been delivered,
when the plaintiff opened a window in the camper, the window
handle fell off and the wall bowed outward. Upon further
inspection, he discovered a strip of tape duct tape covering a
seam in the wall. He found another strip of duct tape covering
a seam behind a cabinet. Under the tape, he discovered dampness
and rot in the camper's walls and ceiling. He eventually found
significant water damage throughout the camper, including
2 "multiple patches . . . [of] wet, rotted, slippery and soft
wood" on the roof. The defendants testified at their
depositions that Lori had applied two layers of tape to seams in
the wall and ceiling in 2016, or perhaps later, because the
seams had separated and ants had entered the camper. Lori
denied noticing any water damage or moisture when she taped the
wall and ceiling.
The following June, the plaintiff climbed onto the camper's
roof to inspect it and make repairs. He slipped and fell off
the top of the camper, fracturing his orbital bone. He
continues to suffer physical and mental symptoms related to the
fall.
Discussion. 1. Sufficiency of the pleadings. A defendant
may challenge the validity of the pleadings by moving to dismiss
the plaintiff's claims under Mass. R. Civ. P. 12 (b) (6), 365
Mass. 754 (1974). "However, a complaint is not properly
challenged by a motion for summary judgment under [Mass. R.
Civ. P.] 56[, 365 Mass. 824 (1974)]." Smith v. Massimiano, 414
Mass. 81, 85 (1993).
The plaintiff correctly argues that the defendants' motion
for summary judgment is ineffective insofar as it attacks the
sufficiency of the pleadings. See Smith, 414 Mass. at 85
("defendants were not entitled to summary judgment on the ground
that the complaint was defective"). Nevertheless, the judge's
3 summary judgment decision and the defendants' appellate brief
properly "focuse[d] on the merits of the controversy." Finn v.
National Union Fire Ins. Co. of Pittsburgh, Pa., 452 Mass. 690,
692 n.7 (2008). We therefore address the propriety of the
allowance of summary judgment.
2. Summary judgment. "Summary judgment is appropriate
where 'there are no issues of material fact, and . . . the
moving party is entitled to judgment as a matter of law.'"
Sourcing Unlimited, Inc. v. Cummings Props., LLC, 102 Mass. App.
Ct. 653, 657 (2023), quoting Mass. R. Civ. P. 56 (c), as
amended, 436 Mass. 1404 (2002). "We review a decision to grant
summary judgment de novo." Boazova v. Safety Ins. Co., 462
Mass. 346, 350 (2012).
Although the plaintiff's brief includes eight numbered
issues, five of which have several subissues, his arguments in
substance reduce to two points: first, the defendants failed to
meet their evidentiary burden as to each of the plaintiff's
claims, and second, the judge erroneously found that the
plaintiff had not made out a prima facie case on any of his
claims.
a. Defendants' motion. The plaintiff complains that
granting summary judgment in favor of the defendants was
reversible error where the defendants failed to support their
summary judgment motion with depositions or affidavits. In a
4 case where, as here, the party opposing summary judgment "will
have the burden of proof at trial," the movant "is entitled to
summary judgment if he demonstrates, . . . that the party
opposing the motion has no reasonable expectation of proving an
essential element of that party's case." Kourouvacilis v.
General Motors Corp., 410 Mass. 706, 716 (1991). Importantly,
"[t]o be successful, a moving party need not submit affirmative
evidence to negate one or more elements of the other party's
claim." Id. "[T]he motion may, and should, be granted so long
as whatever is before the [trial] court demonstrates that the
standard for the entry of summary judgment, as set forth in Rule
56 (c), is satisfied." Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). "In cases like the instant one, where the nonmoving
party will bear the burden of proof at trial on a dispositive
issue, a summary judgment motion may properly be made in
reliance solely on the 'pleadings, depositions, answers to
interrogatories, and admissions on file.'" Id. at 324, quoting
Fed. R. Civ. P. 56 (c). See Kourouvacilis, supra at 713 & n.2
(interpreting Mass. R. Civ. P. 56 [c] consistently with Federal
counterpart). Still, "the movant must discharge the burden the
Rules place upon him: It is not enough to move for summary
judgment without supporting the motion in any way or with a
conclusory assertion that the plaintiff has no evidence to prove
5 his case." Kourouvacilis, supra at 714, quoting Celotex Corp.,
supra at 328 (White, J., concurring).
The defendants' motion for summary judgment relied not only
on the allegations in the plaintiff's complaint, but also on a
joint statement of facts, the plaintiff's answers to
interrogatories, and the plaintiff's medical records. 3 The
plaintiff's opposition included a statement of additional facts,
the plaintiff's affidavit, excerpts from the defendants'
depositions, and photographs. Although the parties did not
strictly comply with the Superior Court rules regarding summary
judgment, the judge considered all the materials before him.
We, too, consider the entire summary judgment record in our de
novo review.
The plaintiff argues that the defendants' motion failed to
address all of his claims and that it was error for the judge to
grant summary judgment on grounds that had not been raised by
either party, including whether Robert's statements constituted
affirmative misrepresentation, whether the plaintiff's reliance
3 The defendants also cited in their memorandum a video recording allegedly provided to them by the plaintiff during discovery, which they claim showed the plaintiff walking on the roof of the camper. The video recording was not submitted to this court, and the plaintiff insists that it was not produced below, either. As the availability of the video recording is not essential to our conclusion, we need not resolve this nonmaterial dispute.
6 on these representations was unreasonable as a matter of law,
whether the plaintiff had a duty to inspect the camper, and
whether the plaintiff could prove damages. Contrary to the
plaintiff's assertion, at least two of these issues -- the
reasonableness of the plaintiff's reliance on Robert's
representations and his ability to produce evidence of damages
-- were duly raised in the defendants' motion and discussed at
the summary judgment hearing. But even if we agreed that the
judge's summary judgment decision was based on factors not fully
developed in the defendants' motion, this court has long
recognized a judge's "power, sua sponte, to enter full summary
judgment, provided that the parties had sufficient notice of his
intention to do so, opportunity to submit affidavits, and a
right to be heard on the matter." Gamache v. Mayor of N. Adams,
17 Mass. App. Ct. 291, 295 (1983). The defendants' motion and
supporting materials were sufficient to put the plaintiff on
notice that reliance and damages would be issues under
consideration on summary judgment. The plaintiff also had an
opportunity to be heard, and in fact was heard, on the remaining
issues -- the plaintiff's memorandum addressed whether Robert's
statements constituted affirmative misrepresentation and whether
he had a duty to inspect the camper. These factors are
essential elements of the plaintiff's claims. See Graphic Arts
Finishers, Inc. v. Boston Redev. Auth., 357 Mass. 40, 44 (1970)
7 ("elements necessary to maintain an action in deceit" include
"defendant's knowledge of [statement's] falsity, . . . the
defendant's intention to induce the plaintiff to act upon it,
the plaintiff's reliance on the misrepresentation, and the harm
suffered as a result"). See also Ravosa v. Zais, 40 Mass. App.
Ct. 47, 54 n.12 (1996) ("Proof of damages flowing from the
misrepresentations is essential to recovery"). The plaintiff
had ample warning and every opportunity to address these
questions. Contrast Monaco v. Lombard Bros., Inc., 24 Mass.
App. Ct. 941, 941 (1987) (judge should not have granted summary
judgment "on a ground not addressed by either party in
submissions on the motion . . . without giving the parties the
opportunity to address the question"). We discern no procedural
or evidentiary issue that prevents us from reaching the merits.
b. Plaintiff's expectation of proving his claims. The
plaintiff further argues that the judge erred in granting
summary judgment in favor of the defendants because the record
supports a prima facie case of fraud, negligence, and contract
and quasi-contract. 4 Because the summary judgment record shows
4 We summarily dispose of counts III, VIII, and XI of the plaintiff's complaint, alleging fraudulent concealment or omission resulting in personal injury, quantum meruit, and agency, respectively. None of these concepts constitutes a cause of action. See Machado v. System4 LLC, 471 Mass. 204, 209-210 & n.11 (2015) (discussing agency as theory of liability); J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 793 (1986) ("Quantum meruit is a theory of recovery, not a cause
8 that the plaintiff had no reasonable expectation of proving
essential elements of each of these claims at trial, the
defendants were entitled to summary judgment on all counts. See
Kourouvacilis, 410 Mass. at 716.
i. Fraud. Counts I, II, and V of the plaintiff's
complaint advance claims against Robert for, respectively, fraud
and deceit resulting in personal injury under G. L. c. 231,
§ 85J; intentional misrepresentation resulting in personal
injury; and fraud in the inducement. These claims all sound in
fraud. See Brewster Wallcovering Co. v. Blue Mountain
Wallcoverings, Inc., 68 Mass. App. Ct. 582, 605 (2007) (equating
intentional misrepresentation, common law fraud, and deceit);
Commerce Bank & Trust Co. v. Hayeck, 46 Mass. App. Ct. 687, 692
(1999) ("To establish fraud in the inducement, . . . [plaintiff
is] required to establish the elements of common law deceit").
To prevail on any of these claims, the plaintiff must be able to
"prove that the defendant made a false representation of a
material fact with knowledge of its falsity for the purpose of
of action"); Salinsky v. Perma-Home Corp., 15 Mass. App. Ct. 193, 196 (1983) (fraudulent concealment tolls statute of limitations on cause of action). When the facts set out in a complaint "do not support any claim entitling the plaintiff to relief, . . . it is appropriate to allow a defendant's motion for summary judgment because, in those circumstances, there can be no genuine issue of material fact." Smith v. Commissioner of Mental Retardation, 409 Mass. 545, 547 (1991).
9 inducing the plaintiff to act thereon . . . ." Kilroy v.
Barron, 326 Mass. 464, 465 (1950). The representation must
concern a matter of fact that is "not merely a matter of
opinion, estimate, or judgment, but is susceptible of actual
knowledge." Snyder v. Sperry & Hutchinson Co., 368 Mass. 433,
444 (1975), quoting Chatham Furnace Co. v. Moffatt, 147 Mass.
403, 404 (1888). The plaintiff must also show "that the
plaintiff relied upon the representation as true and acted upon
it to his damage." Kilroy, supra. "Such reliance by the
plaintiff must be reasonable." Masingill v. EMC Corp., 449
Mass. 532, 540 (2007). "Although usually a question for the
jury, whether the plaintiffs' reliance was reasonable and
justifiable can be a question of law where the undisputed facts
permit only one conclusion." Cumis Ins. Soc'y, Inc. v. BJ's
Wholesale Club, Inc., 455 Mass. 458, 474 (2009). Likewise,
"[t]he determination whether a statement is a factual assertion
or an opinion is a question of law if the statement
unambiguously constitutes either fact or opinion," based on the
language and the context in which it was used. Aldoupolis v.
Globe Newspaper Co., 398 Mass. 731, 733 (1986).
The plaintiff argues that Robert falsely represented that
the camper had no physical damage beyond visible scratches by
telling him that "everything works with normal wear and tear,"
and stating, "The camper had never leaked for me." First, these
10 statements -- limited as they are to Robert's personal opinion
of the camper's condition, and accompanied by an express
disclaimer of any knowledge of the prior owner's experience --
do not constitute statements of fact, upon which the plaintiff
could have relied, that the camper was free of water damage.
See Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438
Mass. 459, 468 (2003) (contemporaneous "qualifying language"
renders reliance on statement "unreasonable as a matter of
law"). Second, even if these statements could be construed as
factual, the plaintiff has produced no evidence that Robert's
statements were false, much less that he made them "with
knowledge of [their] falsity for the purpose of inducing the
plaintiff to act thereon." Kilroy, 326 Mass. at 465. The
plaintiff has produced excerpts from the defendants'
depositions, which establish that the defendants taped a seam on
the wall of the camper around 2016; however, both defendants
insisted that they were unaware of any water damage and that the
tape was intended to keep out ants. The plaintiff asks the
court to speculate, based on the placement of the tape alone,
that the camper had leaked while in the defendants' ownership.
Pure conjecture does not stand up to a motion for summary
judgment. See LaLonde v. Eissner, 405 Mass. 207, 209 (1989)
(party opposing summary judgment "cannot rest on his or her
11 pleadings and mere assertions of disputed facts to defeat the
motion").
Most problematic for the plaintiff, however, is his claim
that he "acted upon" Robert's representations "to his damage,"
Kilroy, 326 Mass. at 465; that is, that his fall from the roof
of the camper can be traced to his reliance on Robert's
statements. The plaintiff states in his affidavit that he
discovered "significant rot" and other damage throughout the
camper, including "multiple patches on the roof" of "wet,
rotted, slippery and soft wood," after which he climbed onto the
roof of the camper and sustained the fall. "The person claiming
justifiable reliance is 'required to use his senses, and cannot
recover if he blindly relies upon a misrepresentation the
falsity of which would be patent to him if he utilized his
opportunity to make a cursory examination or investigation.'"
Collins v. Huculak, 57 Mass. App. Ct. 387, 392 (2003), quoting
Restatement (Second) of Torts: Representation Known to Be or
Obviously False § 541 comment a, at 89 (1977). After the
plaintiff discovered water damage to the camper, any reliance on
Robert's assurances against leakage would have been plainly
unreasonable. In the absence of any possibility that the
plaintiff might prove this essential element of his fraud
claims, summary judgment was properly granted for Robert on
these counts.
12 On these grounds, we can also dispose of count X, alleging
that Lori aided and abetted Robert's fraud. To prove this
claim, the plaintiff must show, first, that Robert committed the
underlying fraud. See Go-Best Assets Ltd. v. Citizens Bank of
Mass., 463 Mass. 50, 64 (2012). Because the plaintiff failed to
establish a genuine dispute of material fact on any of his fraud
claims against Robert, the aiding and abetting claim against
Lori does not survive summary judgment.
ii. Negligence. The plaintiff also alleges in count VI of
his complaint that Robert negligently failed to disclose the
condition of the camper prior to sale. Because "justifiable
reliance is integral to a claim for negligent
misrepresentation," Marram v. Kobrick Offshore Fund, Ltd., 442
Mass. 43, 59 (2004), for the reasons already discussed, the
plaintiff's argument is unavailing to the extent he argues
Robert's representations constitute "false information for the
guidance of others in their business transactions" supplied
without "reasonable care or competence in obtaining or
communicating the information." Cumis Ins. Soc'y, Inc., 455
Mass. at 471-472, quoting Nycal Corp. v. KPMG Peat Marwick LLP,
426 Mass. 491, 496 (1998).
Besides, the premise of the plaintiff's negligence argument
-- that Robert's failure "to properly disclose the true
condition of the camper" constituted a breach of his duty to the
13 plaintiff -- is unfounded. A duty to disclose "arises only in a
number of discrete situations," none of which is present here.
Greenery Rehabilitation Group, Inc. v. Antaramian, 36 Mass. App.
Ct. 73, 78 (1994). See Restatement (Second) of Torts:
Liability for Nondisclosure § 551 (1977). In most cases,
"[s]ilence does not constitute a basis for claiming fraud and
misrepresentation, even where a seller may have knowledge of
some weakness in the subject of the sale and fails to disclose
it" (citation omitted). Urman v. South Boston Sav. Bank, 424
Mass. 165, 168 (1997). "Fragmentary information may be as
misleading . . . as active misrepresentation, and half-truths
may be as actionable as whole lies," but again, the plaintiff
here has presented no evidence that Robert's behavior was
"intentionally deceptive and fraudulent" so as to justify
departure from the longstanding "rule of nonliability for bare
nondisclosure" (citations omitted). Kannavos v. Annino, 356
Mass. 42, 48-49 (1969). Consequently, "the defendants were
entitled to a judgment as a matter of law" on the plaintiff's
claims sounding in negligence. See Sullivan v. Five Acres
Realty Trust, 487 Mass. 64, 75 (2021).
Because the plaintiff has no reasonable expectation of
proving negligence, count VII -- alleging that Robert
negligently inflicted emotional distress on the plaintiff --
also fails. See Payton v. Abbott Labs, 386 Mass. 540, 557
14 (1982) ("plaintiff in order to recover for negligently inflicted
emotional distress must prove . . . negligence").
iii. Contract and quasi-contract. The plaintiff also
complains that the judge erroneously granted summary judgment on
count IV, which alleges that Robert committed a breach of
contract "by delivering a camper that was substantially damaged,
leaking, wet and rotting," and that the plaintiff is therefore
entitled to damages for the injuries he sustained in falling
from the roof of the camper. As an initial matter, the
plaintiff has no reasonable expectation of proving a breach of
contract. Robert delivered a camper in exchange for $3,300, as
promised. As the judge observed, the plaintiff cannot identify
any term of the contract that Robert failed to perform. And, as
discussed supra, none of Robert's qualified and conditional
statements constituted an enforceable promise regarding the
camper's condition.
In addition, a plaintiff's recovery in contract is limited
to injuries that are "the natural and proximate consequences of
the breach . . . Damages not directly traceable to the
violation of the contract or which result from other causes are
not allowed." Stratton v. Posse Normal Sch. of Gymnastics, 265
Mass. 223, 225 (1928). The plaintiff not only fails to identify
a provision of the contract that Robert violated, but
furthermore fails to trace his injuries back to any such
15 violation. The plaintiff's decision to climb onto the roof --
despite knowing it was damaged -- "must be regarded as an
independent, intervening force, breaking the chain of causation
between" the alleged breach of contract and the injuries the
plaintiff sustained in the fall. Weeks v. Calnan, 39 Mass. App.
Ct. 933, 934 (1995).
Count IX, alleging that Robert was unjustly enriched by the
sale of the camper, is similarly unavailing. To withstand a
motion for summary judgment, a claim of unjust enrichment must
be accompanied by evidence of damages. See Tedeschi-Freij v.
Percy Law Group, P.C., 99 Mass. App. Ct. 772, 780 (2021)
(affirming summary judgment on unjust enrichment claim where
"[a]part from [plaintiff's] supposition, there is no evidence,
on this record, that [defendant] received any money or
quantifiable benefit"). Nothing in the summary judgment record
suggests that the twenty year old camper was worth any less than
the $3,300 the plaintiff paid for it. Therefore, the plaintiff
has no reasonable expectation of proving "not only that the
defendant received a benefit, but also that such a benefit was
unjust" -- essential elements of a claim for unjust enrichment.
Metropolitan Life Ins. Co. v. Cotter, 464 Mass. 623, 644 (2013).
In the absence of any reasonable expectation that the plaintiff
16 might prove the essential elements of his claims sounding in
contract or quasi-contract, summary judgment was proper.
Judgment affirmed.
By the Court (Massing, Singh & Grant, JJ. 5),
Clerk
Entered: May 20, 2026.
5 The panelists are listed in order of seniority.