The party opposing the motion may not rest upon mere allegations or denials in its pleading and has an affirmative duty to set forth specific facts showing a genuine issue of fact to be resolved at trial. Grande v. Almac's, Inc., 623 A.2d 971, 972 (R.I. 1993); Ouimette v. Moran, 541 A.2d 855, 856 (R.I. 1988). If the opposing party cannot establish the existence of a genuine issue of material fact, summary judgment should be granted.
In support of its argument, defendant mistakenly relies on a line of cases where the Court had no evidence as to the cause of the accident, and affirmed summary judgment for the defendant.See Hernandez, 697 A.2d at 1103-1104 (no evidence to determine from which tree a branch fell and damaged plaintiff's car during hurricane); Grande v. Almac's Inc., 623 A.2d 971, 972 (R.I. 1993) (no evidence that defendant supermarket caused defect in sidewalk which allegedly resulted in plaintiff's fall); Russian, 608 A.2d at 1147 (no evidence as to how plaintiff fell in garage). Hence, these cases are distinguishable from the case at bar.
A party opposing a motion for summary judgment has an affirmative duty to set forth specific facts to demonstrate the existence of a genuine issue of material fact to be resolved at trial. Grande v. Almac's, Inc., 623 A.2d 971 (R.I. 1993). The nonmoving party may not rest on allegations or denials found in the pleadings.
The party who opposes a motion for summary judgment has an affirmative duty to set forth specific facts to show that there is a genuine issue of fact to be resolved at trial. Grande v. Almac's, Inc., 623 A.2d 971, 972 (R.I. 1993). The opposing party may not rest upon allegations contained in the pleadings alone to establish a genuine issue of material fact. Nichola v. John Hancock Mutual Life Insurance Co., 471 A.2d 945, 948 (R.I. 1984).
The party opposing a summary-judgment motion has an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact to be resolved. Grande v. Almac's, Inc., 623 A.2d 971, 972 (R.I. 1993). The court is of the opinion that Mariner Square has failed to provide facts showing the existence and terms of another contract and that, therefore, the motion for summary judgment was properly granted.
To satisfy its burden, the nonmoving party may not rely upon mere allegations, conclusions, improbable inference and/or unsupported speculation. Grande v. Almaca's Inc., 623 A.2d 971, 972 (R.I. 1993). If the opposing party cannot establish the existence of a genuine issue of material fact, summary judgment must be granted.
Without the showing of a mistake for why Savage was not named as a defendant, the Plaintiffs' claims cannot relate back to the date of their initial filing. See Grande v. Almac's, Inc., 623 A.2d 971, 972 (R.I. 1993) (stating absent a showing of mistake for why a defendant was not named, the amended complaint cannot relate back). Therefore, since the Plaintiffs' amended complaint does not relate back, the remaining claims brought against Savage fall outside the three year statute of limitations.
When the moving party, in this case the Plaintiff, fails to carry its affirmative burden to set forth specific facts to demonstrate that there is a genuine issue of material fact to be resolved at trial, summary judgment is property entered. Grande v. Alamac's, Inc., 623 A.2d 971 (R.I. 1993). Thus, the averment that the signature on the assignment of the Mortgage interest is not actually Harmon's signature is conclusory and fails to raise a genuine issue of material fact sufficient to defeat Defendants' Motion for Summary Judgment.
Once the moving party has established the absence of material fact, the non-moving party has an "affirmative burden" to set forth specific facts, by affidavit or other means, to demonstrate the existence of a triable issue, and if the party fails to carry this burden, summary judgment is properly entered. See Grande v. Almac's, Inc., 623 A.2d 971 (R.I. 1993); Grissom v. Pawtucket Trust Co., 559 A.2d 1065 (R.I. 1989). "When opposing a motion for summary judgment, a party cannot merely cite the names of witnesses who will testify at trial and then hope the court will allow him [or her] to prove his or her claim at that time; rather, from an evidentiary standpoint, once a party files and serves a properly supported summary judgment motion, an alarm bell begins to toll and its time for the opposing party to put up their evidence or shut up their case."
If the opposing party cannot establish the existence of a genuine issue of material fact, summary judgment must be granted. Grande v. Almacs, Inc., 623 A.2d 971, 972 (R.I. 1993). Additionally, Rule 56(d) of the Superior Court Rules of Civil Procedure allows the Court to grant partial summary judgment and issue an order to establish the uncontroverted facts and leave the others for determination at the trial.Russo v. Cedrone, 118 R.I. 549, 375 A.2d 906 (1977).