Harold W. Merrill Post No. 16 Am. Legion v. Heirs-at-Law, Next-of-Kin and Devisees of Smith, HEIRS-AT-LA

• Citation: 360 A.2d 110,116 R.I. 646
• Decision Date: 13 July 1976
• Docket Number: NEXT-OF-KIN,HEIRS-AT-LA,No. 75-36-A,75-36-A
• Parties: HAROLD W. MERRILL POST NO. 16 AMERICAN LEGION v.AND DEVISEES OF Orlando SMITH, et al. ppeal.
• Court: Rhode Island Supreme Court

Page 110

360 A.2d 110

116 R.I. 646

HAROLD W. MERRILL POST NO. 16 AMERICAN LEGION v. HEIRS-AT-LAW, NEXT-OF-KIN AND DEVISEES OF Orlando SMITH, et al.

No. 75-36-Appeal.

Supreme Court of Rhode Island.

July 13, 1976.

[116 R.I. 649] Victor J. Orsinger, II, Westerly, for plaintiff.

John R. Payne, Jr., Thornton, Thornton & Naccarato, Inc., Westerly, for defendants.

OPINION

JOSLIN, Justice.

In this civil action the plaintiff seeks to utilize the statute on quieting title (G.L.1956 (1969 Reenactment) chapter 16 of title 34) ¹ for the purpose of relieving real estate owned by it from a covenant or restriction limiting its use to the maintenance thereon of '* * * a district shoolhouse & its appertenances (sic) & for no other use or purpose whatever.' That language first appeared in an 1867 deed from the defendants' ancestors to the plaintiff's predecessor in title, and, though not repeated verbatim in the 1946 deed to the plaintiff, is referred to and incorporated therein by reference. In the Superior Court the plaintiff's motion for a summary judgment was granted and the defendants appealed.

On a motion for summary judgment we look first to the pleadings to ascertain the issues, and then to the affidavits, admissions, answers to interrogatories and other similar matters to determine whether there are any genuine issues of material fact. Only if there are none, do we then decide whether applicable law dictates the entry of summary judgment. Belanger v. Silva, 114 R.I. 266, 267, 331 A.2d 403, 404 (1975); Trustees of the Sheppard & Enoch Pratt Hosp. v. Smith, 114 R.I. 181, 183, 330 A.2d 804, 805 (1975); Cardente v. Travelers Ins. Co., 112 R.I. 713, 715-16, 315 A.2d 63, 64 (1974).

Here the record consists only of (1) plaintiff's complaint, which, because it is sworn to, will for the purposes of this opinion be assumed to have the force and effect of an affidavit; (2) a collective answer of all defendants consisting of a general denial; and (3) interrogatories posed by plaintiff and the answers of one defendant to those interrogatories.

In its sworn complaint, plaintiff alleges that it has uninterruptedly, openly, fully and exclusively held possession of the subject property adversely to all the world under a claim of right and as the sole and absolute owner thereof in fee simple continuously for more than 10 years. Those allegations, however, although obviously intended to bring its case within the purview of § 34-16-7 ² are barren of particularized factual support and fail to set forth any specific facts that would be admissible in evidence. In short, plaintiff's allegations constitute in their totality nothing more than naked conclusionary assertions that there may be underlying but unarticulated admissible and supporting evidentiary facts which, if uncontroverted, might serve as grounds for the relief sought. Under Super.R.Civ.P. 56(e) conclusory allegations like these are inadequate to establish the absence of a genuine issue of material fact and are therefore unavailable as a basis for summary judgment. 1 Kent, R.I.Civ.Prac. § 56.5 (1969); 6 Moore, Part 2, Federal Practice 56.22(1) at 1316-18 (2d ed. 1976); 10 Wright & Miller, Federal Practice and Procedure: Civil § 2738 at 695-96 (1973); see Coro, Inc. v. R. N. Koch, Inc., 112 R.I. 371, 377, 310 A.2d 622, 625 (1973); Egan's Laundry & Cleaners, Inc. v. Community Hotel Corp., 110 R.I. 719, 723, 297 A.2d 348, 351 (1972); Gallo v. National Nursing Homes, Inc., 106 R.I. 485, 488-89, 261 A.2d 19, 21-22 (1970); Cottrell Employees Credit Union v. Pavelski, 106 R.I. 29, 34, 255 A.2d 162, 164-65 (1969). Indeed, these allegations do not even satisfy the § 34-16-5 requirement that a complaint recite the '* * * acts performed as a normal incident of the...