JOHN BOURGAULT v. ROBERT HALBEN & Another.

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

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"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

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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

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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

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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.

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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)

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("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

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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).

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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

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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

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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.

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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

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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

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(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

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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

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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.

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