Plaintiff: Robert M. Paroskie, pro se
Defendant: Steven J. Hirsch, Esq.
Linda A. Rhault (Defendant) seeks summary judgement in the
above-entitled matter. Defendant asserts that there are no
genuine issues of material fact, and that she is entitled to
judgment as a matter of law. Plaintiff Robert Michael
Paroskie (Plaintiff) objects to Defendant's motion
arguing that there are genuine issues of material fact for
trial. In the alternative, and in response to Defendant's
motion, Plaintiff also filed a Cross-Motion for Summary
Judgment against Defendant contending that there are no
genuine issues of material fact, and that he is entitled to
judgment as a matter of law.
underlying claim stems from a romantic relationship between
Plaintiff and Defendant. Plaintiff and Defendant were
involved romantically for some time between October 2001 and
February 2009-approximately seven (7) years-when Defendant
ended the relationship.
filed the underlying action against Defendant on May 31,
2017, alleging that Defendant falsely represented to
Plaintiff that his life would be enhanced and secure if he
remained with Defendant as a companion partner and that, but
for this representation, Plaintiff would not have devoted his
time, energy and expertise to Defendant. Plaintiff also
alleges that he provided financial advice to Defendant at
her behest that will someday result in a substantial positive
tax impact for the Defendant and, therefore, it is now
inequitable for the Defendant to retain the benefit without
conferring the value of the lifetime security promised to the
Plaintiff. As a result, Plaintiff's three-count Complaint
alleges (1) fraud; (2) negligent misrepresentation; and (3)
unjust enrichment against Defendant.
Court held a hearing on the dueling Motions for Summary
Judgment on November 27, 2017, to entertain oral arguments
and ascertain the positions of the parties on the issues now
before the Court. At the conclusion of the hearing, this
Court indicated that it did not find any basis for
Plaintiff's claims of fraud and negligent
misrepresentation but sought more information concerning the
Plaintiff's claim for unjust enrichment.
Court scheduled a second hearing meant to address the issue
of unjust enrichment as it pertains to this case. In the
meantime, Defendant filed a supplemental memorandum
addressing the issue of unjust enrichment with regard to her
Motion for Summary Judgment and Plaintiff filed a
supplemental affidavit in response. The Court held a second
hearing on February 26, 2018 to determine the parties'
positions on the issue of unjust enrichment only. At the
conclusion of the hearing, the Court reserved on the instant
deciding a motion for summary judgment, the trial justice
must keep in mind that it '"is a drastic remedy and
should be cautiously applied."' Steinberg v.
State, 427 A.2d 338, 339-40 (R.I. 1981) (quoting
Ardente v. Horan, 117 R.I. 254, 366 A.2d 162, 164
(1976)). When ruling on a motion for summary judgment, the
preliminary question before the court is "whether there
is a genuine issue as to any material fact which must be
resolved." R.I. Hospital Trust Nat'l Bank v.
Boiteau, 119 R.I. 64, 376 A.2d 323 (1977);
O'Connor v. McKanna, 116 R.I. 627, 359 A.2d 350
(1976). However, "[i]f an examination of the pleadings,
affidavits, admissions, answers to interrogatories, and other
similar matters, viewed in the light most favorable to the
opposing party, reveals no such issue, then the suit is ripe
for summary judgment." R.I. Hospital Trust Nat'l
Bank, 119 R.I. at 66, 376 A.2d at 324; Harold W.
Merrill Post. No. 16 Am. Legion v. Heirs-at-Law Next-of-Kin
and Devisees of Smith, 116 R.I. 646, 360 A.2d 110
face of summary judgment, the party opposing summary judgment
cannot rest on mere allegations of pleadings alone but must
submit specific, competent evidence. The party who opposes
the motion "carries the burden of proving by competent
evidence the existence of a disputed material issue of fact
and cannot rest on allegations or denials in the pleadings or
on conclusions or legal opinions." Accent Store
Design, Inc. v. Marathon House, Inc., 674 A.2d 1223,
1225 (R.I. 1996); see also McAdam v. Grzelczyk, 911
A.2d 255, 259 (R.I. 2006). It is not sufficient "simply
[to] show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather,
Rule 56 "requires the nonmoving party to go beyond the
[unverified] pleadings" and present some type of
evidentiary material in support of its position. Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986).
"Although inferences may be drawn from underlying facts
contained in material before the trial court, neither vague
allegations and conclusory statements, nor assertions of
inferences not based on underlying facts will suffice."
First Nat'l Bank of Boston v. Slade, 379 Mass.
243, 246, 399 N.E.2d 1047, 1050 (Mass. 1979).
instant Motion, the non-movants must set forth specific facts
showing that there is a genuine issue of material fact for
trial. They bear "the burden of producing
specific facts sufficient to deflect the swing of the summary
judgment scythe." Mulvihill v. Top-Flight Golf
Co., 335 F.3d 15, 19 (1st Cir. 2003). Rule 56
mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial; in such a
situation, there can be no genuine issue as to any material
fact, since a complete failure of proof concerning an
essential element of the non-moving party's case
necessarily renders all other facts immaterial. Celotex
Corp., 477 U.S. at 317 (alteration in original).
establish a prima facie fraud claim, 'the
plaintiff must prove that the defendant made a false
representation intending thereby to induce [the] plaintiff to
rely thereon and that the plaintiff justifiably relied
thereon to his or her damage.'" McNulty v.
Chip, 116 A.3d 173, 182- 83 (R.I. 2015) (quoting
Parker v. Byrne, 996 A.2d 627, 634 (R.I. 2010)).
However, '"the general rule is that mere unfulfilled
promises to do a particular thing in the future do not
constitute fraud in and of themselves."' Cote v.
Aiello, 148 A.3d 537, 548 (R.I. 2016) (quoting 37 Am.
Jur. 2d Fraud and Deceit § 87 at 122 (2013)).
or fraudulent representation is a tort action, and requires
some degree of culpability on the misrepresentor's
part." Francis v. Am. Bankers Life Assur. Co. of
Fla., 861 A.2d 1040, 1046 (R.I. 2004) (citing Prosser
& Keeton, The Law of Torts § 105 at 728
(5th ed. 1984). "To recover on this claim,
plaintiff had the burden of proving that defendant 'in
making the statement at issue, knew it to be false and
intended to deceive, thereby inducing [plaintiff] to rely on
the statements to [her] detriment.'"
Francis, 861 A.2d at 1046 (quoting Katz v.
Prete, 459 A.2d 81, 84 (R.I. 1983)). Likewise, a
prima facie case of negligent misrepresentation
requires that plaintiff "establish the following
elements: '(1) a misrepresentation of a material fact;
(2) the representor must either know of the
misrepresentation, must make the misrepresentation without
knowledge as to its truth or falsity or must make the
representation under circumstances in which he ought to have
known of its falsity; (3) the representor must intend the
representation to induce another to act on it; and (4) injury
must result to the party acting in justifiable reliance on
the misrepresentation.'" Id. at 1046
(quoting Zarrella v. Minnesota Mut. Life Ins. Co.,
824 A.2d 1249, 1257 (R. I. 2003) (quoting Mallette v.
Children's Friend and Service, 661 A.2d 67, 69 (R.I.
assessing allegations regarding fraud, the Court's
judgment is particularly tempered, and the Court finds it
appropriate to hold the Defendant to a heightened pleading
standard. Super. R. Civ. P. 9(b). Indeed, where the
allegations of a complaint contain averments of fraud or
mistake, courts have followed Rule 9(b)'s particularity
requirements. See Powers v. Boston Cooper Corp., 926
F.2d 109, 111 (1st Cir. 1991). Although Rule 9(b) "does
not require the pleadings of detailed evidentiary matter, but
it does require identification of circumstances constituting
fraud." Town of Hooksett Sch. Dist. v. W.R. Grace
& Co., 617 F.Supp. 126 (D.N.H. 1984) (citing
Trussell v. U.S. Underwriters, Ltd., 228 F.Supp.
757, 774 (D.C. Colo. 1964) (granting motion for more definite
statement where plaintiff's complaint alleged
insufficient particulars or circumstances in connection with
fraud count)). Rule 9(b) provides: "In all averments of
fraud or mistake, the circumstances constituting fraud or
mistake shall be stated with particularity. Malice, intent,
knowledge, and other condition of mind of a person may be
averred generally." Super. R. Civ. P. 9(b).
constitutes sufficient particularity necessarily depends upon
the nature of the case and should always be determined in the
light of the purpose of the rule to give fair notice to the
adverse party and to enable him to prepare his responsive
pleading." Women's Dev. Corp. v. City of Cent.
Falls, 764 A.2d 151, 161 (R.I. 2001) (quoting 1 Robert
B. Kent et al., Rhode Island Civil and Appellate
Procedure § 9:2 (West 2006)); see also
Feinstein v. Resolution Trust Corp., 942 F.2d 34, 43
(1st Cir. 1991). Although neither the text of the rule, nor
opinions of our Supreme Court, explicitly set forth the
degree of particularity required, the First Circuit, when
applying Rule 9(b), requires a pleader to specify the time,
place, and content of the alleged false or fraudulent
representations. Feinstein, 942 F.2d at 42-43
(citing New England Data Servs., Inc. v. Becher, 829
F.2d 286, 291-92 (1st Cir. 1987)); see also Powers,
926 F.2d at 111. Additionally, when faced with claims
sounding in fraud, the First Circuit has found that
"allegations based on 'information and belief' .
. . do not satisfy the particularity requirement unless the
complaint sets forth the facts on which the belief is
founded." New England Data Servs., Inc., 829 F.2d at
288 (citing Wayne Inv., Inc. v. Gulf Oil Corp., 739 F.2d
11, 13 (1st Cir. 1984)). Further, the pleading of supporting
facts is necessary "even when the fraud relates to
matters peculiarly within the knowledge of the opposing
party." Wayne Inv., Inc., 739 F.2d at 14.
based on the evidence presented-including Defendant's
admissions and Plaintiff's affidavits-it appears that
Plaintiff has failed to satisfy any of the elements of fraud.
Plaintiff has seemingly provided no evidence beyond the fact
that he was involved romantically with the Defendant and
during their relationship performed common relationship
duties (i.e., interacting with Defendant's
children and spending quality time with Defendant). In fact,
during the hearing held on November 27, 2017, Plaintiff made
no attempt to argue in favor of his claim for fraud. There is
virtually no mention of his fraud claim and as a result, the
Court ultimately found the facts alleged confirmed "a
long, loving and mutual beneficial relationship to [both
Plaintiff and Defendant] that ended" and ultimately
Plaintiff could not "make [Defendant] stay in a
relationship if [she did] not wish to stay in a
relationship." (Tr. 13-14, Nov. 27, 2017) (Tr. I.)
is no evidence to show that any false or misleading
statements were made or that the Defendant knew she was making
any false or misleading statements. All that has been shown
is that Plaintiff and Defendant were romantically involved
and that said relationship ended. It should go without saying
that there is no cause of action in Rhode Island for ending a
personal, romantic relationship. Therefore, Defendant's
Motion for Summary Judgment as to fraud is granted.
establish a prima facie damages claim in a fraud
case, the plaintiff must prove that the defendant "made
a false representation intending thereby to induce plaintiff
to rely thereon" and that the plaintiff justifiably
relied thereon to his or her damage. Cliftex Clothing Co.
v. DiSanto,88 R.I. 338, 344, 148 A.2d 273, 275 (1959);
accord LaFazia v. Howe, 575 A.2d 182, 185 (R.I.
1990). A misrepresentation is '"any manifestation by
words or other conduct by one person to another that, under
the circumstances, amounts to an assertion not in accordance
with the facts."' Halpert v. Rosenthal, 107
R.I. 406, 413, 267 A.2d 730, 734 (1970) (quoting Restatement
(First) Contracts § 470 at 890-91 (1932)). The
"justifiable reliance" element requires a plaintiff