Kenneth Loffredo v. Stephen A. Shapiro

May 25, 2022

Supreme Court

No. 2020-233-Appeal.
(NC 18-102)

Kenneth Loffredo et al. :

v. :

Stephen A. Shapiro et al. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court

No. 2020-233-Appeal.
(NC 18-102)

Kenneth Loffredo et al. :

v. :

Stephen A. Shapiro et al. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Robinson, for the Court. The plaintiffs, Kenneth Loffredo and

Michelle Loffredo (the Loffredos), appeal from the Newport County Superior

Court’s grant of summary judgment in favor of the several defendants on all eight

counts set forth in their third amended complaint. On appeal, the Loffredos contend

that the hearing justice: (1) improperly interpreted and applied G.L. 1956 § 9-1-4

(the Statute of Frauds) in deciding that that statute could properly be invoked as a

defense to claims stemming from an alleged agreement concerning the purchase and

sale of a particular residential condominium owned by Stephen A. Shapiro and Lisa

R. Shapiro (the Shapiros) in Newport, Rhode Island; (2) erroneously granted

summary judgment against the Loffredos with respect to their several claims of

tortious conduct; and (3) erroneously ruled that G.L. 1956 § 5-20.5-17(b) does not

-1-
provide a private right of action to an aggrieved party “unless and until there has first

been a [Department of Business Regulation] * * * finding of a violation of

§ 5-20.5-14(a).”

For the reasons set forth in this opinion, it is our view that the hearing justice

correctly granted summary judgment with respect to all counts except for Count

Eight, as to which we consider fact-finding to be necessary. Accordingly, we affirm

the judgment of the Superior Court in part, and we vacate the judgment in part.

I

Facts and Travel1

We glean the following facts from: the third amended complaint (the

complaint); the parties’ motions for summary judgment; the oppositions thereto; and

the transcript of the hearing held on May 21, 2020.

1
The following brief description of the roles of the various parties to this appeal
should serve as helpful guidance to the reader. The Shapiros were the owners and
potential sellers of a particular residential condominium in Newport (the Property).
Kathleen Greenman and Michelle Kirby were the Shapiros’ real estate agents; both
were at the pertinent time employed by Gustave J.S. White Real Estate Co. d/b/a
Gustave White Sotheby’s International Realty (the Gustave White entity). In
January of 2018, Kenneth Loffredo and Michelle Loffredo (the Loffredos) on the
one hand and John A. Krichavsky and Alys Krichavsky (the Krichavskys) on the
other hand were actively seeking to purchase the Property. Kendra Toppa was the
real estate agent for the Loffredos; she was at the pertinent time employed by Lila
Delman Real Estate. Amy L. Hoag was the real estate agent for the Krichavskys;
she was at the pertinent time employed by Maximum Return, Inc. d/b/a Re/Max
Professionals of Newport (Re/Max).

-2-
A

The Underlying Transaction

On January 30, 2018, the Loffredos, accompanied by their real estate agent

(Ms. Toppa), attended a showing of the Property. At that showing, the Loffredos

learned that the sellers (the Shapiros) had already received an offer from certain

prospective buyers. (It eventually became clear that those prospective buyers were

the Krichavskys.) Later that same day, the Loffredos submitted to the Shapiros a

proposed purchase and sales agreement, offering to purchase the Property for

$1,475,000.2 In view of the competing offers, the Shapiros requested that both the

Loffredos and the Krichavskys submit their “highest and best” offers by 4:00 p.m.

on January 31.3

At approximately 12:00 p.m. on January 31, the Loffredos submitted to the

Shapiros a proposed purchase and sales agreement, which constituted their “best and

2
It is clear from the record that all communications and offers by the Loffredos
and the Krichavskys relating to the Property were channeled through their respective
real estate agents to one or both of the Shapiros’ real estate agents. As such, in
describing the various communications regarding the Property, we will not
specifically mention the various real estate agents, except when a special
circumstance requires us to do so.
3
It is not clear from the record whether or not the terms “highest and best” and
“best and final” were used interchangeably in communications relative to the
potential purchase of the Property. However, that terminological issue has no
bearing on our resolution of the instant case; and we shall treat the two terms as
being synonymous.

-3-
final” offer, in which they increased their earlier offer by $50,000 and proposed an

earlier closing date than they had formerly proposed and also “waived the

inspections contingency provision.” At approximately 5:07 p.m. on that same day,

the Krichavskys submitted their “highest and best” offer to the Shapiros.4

Shortly thereafter, according to the complaint, Ms. Toppa (the Loffredos’ real

estate agent) received a telephone call from Ms. Greenman (one of the Shapiros’ real

estate agents), in which Ms. Greenman allegedly stated that the Shapiros had

accepted the Loffredos’ offer.5 During that telephone call, Ms. Toppa requested that

the Shapiros sign and return the Loffredos’ proposed purchase and sales agreement

as soon as possible. Ms. Greenman allegedly assured Ms. Toppa that the proposed

purchase and sales agreement “definitely would be returned by the next morning”

and that it had “been decided” that the Property would belong to the Loffredos.6

4
Originally, the Loffredos and the Krichavskys were told by the Shapiros to
submit their “highest and best” offers by 4:00 p.m. on January 31. However, it is
undisputed that, prior to the Krichavskys submitting their offer, Ms. Hoag (their
agent) contacted Ms. Greenman (one of the Shapiros’ agents) to inquire whether a
late offer would be considered by the Shapiros. Ms. Greenman responded that “it
was not too late” to do so and that the Krichavskys could still submit their offer even
though that would be after the original 4:00 p.m. deadline.
5
We note that, in their answers, all of the defendants deny the allegation that
the Shapiros orally accepted the Loffredos’ highest and best offer.
6
When her deposition was taken by the Loffredos’ attorney, Ms. Greenman
stated that she did not recall telling Ms. Toppa that a “decision [had] been made;”
her recollection was that she told Ms. Toppa that the Shapiros “wanted to accept”
-4-
At approximately the same time as Ms. Greenman contacted Ms. Toppa, Ms.

Kirby (another of the Shapiros’ real estate agents) contacted Ms. Hoag (the

Krichavskys’ real estate agent) and allegedly told her that the Shapiros had accepted

the Loffredos’ offer.7 In addition, Ms. Kirby revealed to Ms. Hoag that the two

offers were “close monetarily.” Given our eventual holding in Part IV.H, infra, it is

of potential significance that Ms. Kirby also allegedly informed Ms. Hoag that the

Loffredos’ offer had “no contingency for a home inspection.”8

Ms. Hoag then called her clients, the Krichavskys, and shared with them the

information that Ms. Kirby had disclosed to her. Upon learning the particulars of

the Loffredos’ offer, the Krichavskys decided to submit another offer and to waive

the home inspection contingency that had been part of their prior offer. At

approximately 6:43 p.m. on January 31, the Krichavskys submitted their revised

offer to both of the Shapiros’ agents, who conveyed it to the Shapiros. Later that

night, at approximately 9:15 p.m., Ms. Greenman contacted Ms. Toppa and

the Loffredos’ offer “subject to [their] sons approving it, and they wouldn’t sign
anything until that happened.”
7
When her deposition was taken by the Loffredos’ attorney, Ms. Kirby stated
that she did not remember whether she actually used the word “accepting” or if she
instead told Ms. Hoag that the Shapiros were “working with” the other potential
purchasers of the Property.
8
Ms. Kirby also stated in her deposition that she did not remember telling Ms.
Hoag that the two offers were “close monetarily” or that “the other offer had no
contingencies[.]”
-5-
explained that the Krichavskys had submitted another offer and that, although she

did not know what was going to happen, she would contact Ms. Toppa once again

the following morning. Ms. Toppa then called the Loffredos to inform them that the

Krichavskys had been allowed to submit another offer.

Following the just-described sequence of events, Ms. Greenman and Ms.

Kirby (on behalf of the Shapiros) contacted Ms. Toppa to inquire whether the

Loffredos would be willing to increase their offer by $100,000. However, the

Loffredos chose not to do so. Ultimately, the Krichavskys agreed to purchase the

Property for $1,600,000, with no home inspection contingency.

B

The Proceedings in Superior Court

On March 27, 2018, the Loffredos filed a complaint in the Superior Court,

naming as defendants, in addition to the Shapiros: Ms. Greenman, Ms. Kirby, and

the Gustave White entity (collectively, the Gustave White defendants). In due

course, on February 8, 2019, the Loffredos filed their third amended complaint.9

9
As of the time of the filing of the third amended complaint, the following
persons or entities were named as defendants in one or more of the complaint’s eight
counts: the Shapiros, Ms. Greenman, Ms. Kirby, the Gustave White entity, the
Krichavskys, Ms. Hoag, and Re/Max.
Jonathan A. Shapiro was also named as a defendant, but only in his capacity
as trustee of the Stephen A. Shapiro Trust and not in his individual capacity. Any
collective reference in this opinion to “the Shapiros” refers only to the sellers,
Stephen A. Shapiro and Lisa R. Shapiro, and not to Jonathan A. Shapiro.

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That complaint contained counts sounding in breach of contract; promissory

estoppel; equitable estoppel; and fraud and deceit against the Shapiros. The

complaint also included counts sounding in fraud and deceit and negligent

misrepresentation against the Gustave White defendants. The complaint also alleged

that Ms. Hoag, Re/Max, and the Krichavskys were liable for tortious interference

with contractual relations or, in the alternative, tortious interference with prospective

contractual relations. Finally, the complaint alleged that Ms. Greenman, Ms. Kirby,

and Ms. Hoag, in their individual capacities, had violated § 5-20.5-14(a) and were

therefore subject to the penalty provisions of § 5-20.5-17(b).10

1. The Motions for Summary Judgment

On August 20, 2019, Ms. Hoag and Re/Max jointly filed a motion for

summary judgment on all counts. Thereafter, the Shapiros, the Gustave White

defendants, and the Krichavskys filed their own separate motions for summary

judgment on all counts. On May 21, 2020, a hearing was held on the several motions

for summary judgment, to each of which the Loffredos had objected.

10
The various counts in the third amended complaint were titled as follows:
Count One—“Breach of Contract;” Count Two—“Promissory Estoppel;” Count
Three—“Equitable Estoppel;” Count Four—“Fraud and Deceit;” Count Five—
“Negligent Misrepresentation;” Count Six—“Violation of R.I. Gen. Laws Chapter
5-20.5;” Count Seven—“Tortious Interference with Contractual Relations;” and
Count Eight—“Tortious Interference with Prospective Contractual Relations.”
-7-
The Shapiros for their part argued that the allegations of breach of contract,

promissory estoppel, equitable estoppel, and fraud and deceit were all barred by the

Statute of Frauds. Relying on this Court’s precedent, they pointed out that “the very

purpose for which the statute of frauds was enacted * * * [was] protection against

the assertion of unfounded claims” and that, accordingly, said statute “must be

enforced as drafted.”

The Gustave White defendants contended that the Loffredos’ claims of fraud

and deceit and negligent misrepresentation were barred by the Statute of Frauds.

They argued that “allegations of fraud standing alone are insufficient to circumvent

the statute of frauds * * *.” They further argued that the “mere agreement on terms,

the preparation of [a] purchase and sale agreement and even the signing of that

agreement by one party” were insufficient to overcome the principle that the “statute

of frauds must be strictly construed.”

With respect to the Loffredos’ allegation of tortious interference with

contractual relations, Ms. Hoag and Re/Max argued that that claim was also barred

by the Statute of Frauds. They contended that, because “the statute of frauds requires

that an agreement for the purchase of real estate * * * be in writing” and because

there was “no such writing,” there was “no contract with which [Ms. Hoag and

Re/Max] could have interfered.” As for the claim of tortious interference with

prospective contractual relations, Ms. Hoag and Re/Max argued that the Loffredos

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had “not satisfied the elements of that claim” because there was neither evidence of

a “business relationship” between the Shapiros and the Loffredos nor was there

evidence that either Ms. Hoag or Re/Max had “intentionally interfered” with any

such alleged relationship.

The Krichavskys advanced the same argument as did the Gustave White

defendants with respect to the Loffredos’ allegation of tortious interference with

contractual relations. As for the claim of tortious interference with prospective

contractual relations, the Krichavskys argued that the nature of the “competitive

bidding process” in which the parties had been engaged “simply [did] not rise to the

level of [intentional] interference” necessary to prove tortious interference with

prospective contractual relations.

With respect to the Loffredos’ statutory claim, Ms. Hoag argued that

§ 5-20.5-14(a) does not authorize an aggrieved party “to file a private right of action

as a result of any such violations,” but rather vests in the director of the Department

of Business Regulation the authority “to determine whether or not a violation has

occurred” and to levy penalties. Ms. Hoag further contended that neither does

§ 5-20.5-17(b) authorize a private right of action. The Gustave White defendants

relied on the same arguments as those articulated by Ms. Hoag with respect to the

statutory claim.

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In response to the defendants’ arguments, the Loffredos argued that the

Shapiros were liable for breach of contract because they had “accepted [the]

Loffredos’ offer” and that, therefore, there was a valid oral contract between the two

parties that the Shapiros breached when they sold the Property to the Krichavskys.

As for the requirement of the Statute of Frauds that there be a writing, the Loffredos

contended that the “combination of written documents and communications”

between the parties, when considered “as a whole,” was “sufficient to raise an issue

of fact as to [the] sufficiency of a memorandum to satisfy the statute of frauds.”

With respect to their claim of fraud and deceit, the Loffredos argued that there

was “more than sufficient evidence in the record that establishes a genuine issue of

material fact” and that the burden was on the defendants to show the absence of a

genuine issue of material fact.

The Loffredos also argued that the Statute of Frauds did not bar the two

tortious interference counts; they contended that an oral contract cannot “be

interfered with regardless of whether it’s enforceable.”

As for the statutory claims, the Loffredos argued that the “plain language” of

§ 5-20.5-17(b) “provides for an express right of action to a court in cases where a

licensed real estate agent acts with dishonesty, bad faith, false promises and so forth

* * *.” The Loffredos further contended that a prior determination by the director

of the Department of Business Regulation was not necessary and that, if the General

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Assembly had wanted aggrieved parties to “have [to] go to the [Department of

Business Regulation] first before going to court, [the General Assembly] could have

said that clearly in the statute * * *.” The Loffredos argued that, there being no such

express precondition, an aggrieved “party has the right to go to court for relief if

there’s a violation” of § 5-20.5-14(a).

2. The Hearing Justice’s Decision

On May 21, 2020, after reviewing the arguments of the parties and the

evidence submitted in support of those arguments, the hearing justice considered

each of the eight counts and held that the Loffredos’ claims for breach of contract,

promissory estoppel, fraud and deceit, and tortious interference with contractual

relations were all barred by the Statute of Frauds. Accordingly, he granted summary

judgment against the Loffredos on those counts.

With respect to the Loffredos’ allegations of equitable estoppel, negligent

misrepresentation, and tortious interference with prospective contractual relations,

the hearing justice ruled that, because the Loffredos had failed to offer evidence that

they could establish all of the essential elements necessary to succeed on those

claims, summary judgment should enter against them.

As for the statutory count, the hearing justice held that neither § 5-20.5-14(a)

nor § 5-20.5-17(b) provided aggrieved parties with a private right of action, and he

therefore granted summary judgment against the Loffredos on that count.

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In rendering his decision, the hearing justice commented that the Loffredos’

complaint was “an interesting and complex attempt to circumvent the statute of

frauds * * *.” He added that, if he were to allow the Loffredos’ complaint to proceed,

that “would undermine all [of] the public policy decisions [and] reasons for the

statute of frauds * * *.”

For these several reasons, the hearing justice granted summary judgment in

favor of defendants on all counts, and a final judgment was entered against the

Loffredos on September 15, 2020. A timely notice of appeal was filed three days

later.

II

Standard of Review

“We review Superior Court rulings with respect to summary judgment

motions in a de novo manner.” Papudesu v. Medical Malpractice Joint

Underwriting Association of Rhode Island, 18 A.3d 495, 497 (R.I. 2011). In doing

so, we employ “the same standards and rules used by the hearing justice.” Newstone

Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016) (quoting

Daniels v. Fluette, 64 A.3d 302, 304 (R.I. 2013)); see also Fogarty v. Palumbo, 163

A.3d 526, 532 (R.I. 2017). It is also well established that “[w]e review the evidence

in a light most favorable to the nonmoving party and will affirm the judgment if

there exists no genuine issue of material fact and the moving party is entitled to

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judgment as a matter of law.” Henry v. Media General Operations, Inc., 254 A.3d

822, 834 (R.I. 2021) (quoting Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d 417, 424

(R.I. 2009)).

It is a basic principle that “[o]nce the party seeking summary judgment has

alleged the absence of any disputed issues of material fact, the opposing party, to

avoid summary judgment, must come forward with proof sufficient to establish the

existence of a specific, material, triable fact.” Barrett v. Barrett, 894 A.2d 891, 894

(R.I. 2006). We have expressly stated that “[a]lthough summary judgment is

recognized as an extreme remedy, * * * to avoid summary judgment the burden is

on the nonmoving party to produce competent evidence that prove[s] the existence

of a disputed issue of material fact[.]” Sullo v. Greenberg, 68 A.3d 404, 407 (R.I.

2013) (internal quotation marks omitted). Moreover, the nonmoving party “cannot

rest upon mere allegations or denials in the pleadings, mere conclusions or mere

legal opinions.” Newstone Development, LLC, 140 A.3d at 103 (quoting Daniels,

64 A.3d at 304). Rather, “the requirement is that there be no genuine issue of

material fact.” Henry, 254 A.3d at 835 (emphasis in original) (quoting Deutsche

Bank National Trust Co. for Registered Holders of Ameriquest Mortgage Securities,

Inc. v. McDonough, 160 A.3d 306, 311 (R.I. 2017)).

As for issues of statutory interpretation, it is a basic principle that “questions

about the meaning of statutes are reviewed de novo by this Court.” Planned

- 13 -
Environments Management Corp. v. Robert, 966 A.2d 117, 121 (R.I. 2009); see also

In re Kapsinow, 220 A.3d 1231, 1233 (R.I. 2019).

III

The Statute of Frauds

Since the Statute of Frauds is crucial to our analysis of many issues in this

case, we begin by setting forth the relevant provisions of that venerable and

significant statute. After an introductory clause declaring: “No action shall be

brought,” the pertinent language of the statute reads as follows:

“(6) [w]hereby to charge any person upon any agreement
or promise * * * upon the sale of any interest in real estate;

“(7) * * * unless the promise or agreement upon which the
action shall be brought, or some note or memorandum
thereof, shall be in writing, and signed by the party to be
charged therewith, or by some other person by him or her
thereunto lawfully authorized.” Section 9-1-4(6), (7).

It is well settled that “‘[t]he statute of frauds does not require contracts for the sale

of land to be in writing[,]’ but if such a contract be an oral agreement, it will be

enforced only if evidenced by a ‘sufficient memorandum.’” UXB Sand & Gravel,

Inc. v. Rosenfeld Concrete Corp., 641 A.2d 75, 78 (R.I. 1994) (emphasis added)

(quoting Preble v. Higgins, 43 R.I. 10, 16, 109 A. 707, 710 (1920)); see also

MacKnight v. Pansey, 122 R.I. 774, 782, 412 A.2d 236, 241 (1980) (“Such

memoranda must set out who are the seller and the buyer, their respective intention

to sell and to purchase, a description of the subject matter of the sale, the purchase
- 14 -
price, and terms of payment.”). We have also explained that the required note or

memorandum “need not comprise a single writing: essential terms of a sale can be

included in the writing itself or by a reference in that writing to another document

which supplies the missing information.” UXB Sand & Gravel, Inc., 641 A.2d at 78.

It should at all times be borne in mind that the Statute of Frauds expressly requires

that the required note or memorandum be “in writing” and that it be “signed by the

party to be charged * * *.” Section 9-1-4(7) (emphasis added).

Finally, “it remains axiomatic that[,] in order to satisfy the statute of frauds, a

memorandum must contain evidence that ‘a contract has been made by [the parties]

or offered by the signatory [of the memorandum] to the other [party].’” UXB Sand

& Gravel, Inc., 641 A.2d at 79 (quoting 2 E. Allan Farnsworth, Farnsworth on

Contracts § 6.7, at 136 (1990)). Moreover, we have expressly stated that “[t]he

Statute of Frauds * * * must be strictly construed and strictly applied * * *.” Brochu

v. Santis, 939 A.2d 449, 453 (R.I. 2008); see also Mutual Development Corp. v.

Ward Fisher & Co., LLP, 47 A.3d 319, 324 (R.I. 2012); Heyman v. Adeack Realty

Co., 102 R.I. 105, 111, 228 A.2d 578, 582 (1967). These principles of statutory

construction are derived from our “policy of affording parties to business

transactions the freedom to negotiate without fear that they will be bound by mere

discussion.” UXB Sand & Gravel, Inc., 641 A.2d at 80 (internal quotation marks

omitted).

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IV

Analysis

A

The Breach of Contract Claim (Count One)

The Loffredos contend that the hearing justice improperly interpreted the

Statute of Frauds in deciding that said statute could properly be invoked with respect

to the alleged oral contract concerning the purchase and sale of the Property.

However, it is our definite opinion that, because the alleged oral contract at issue

clearly involves the purchase and sale of real property (thereby falling squarely

within the purview of the Statute of Frauds), it is clear beyond peradventure that any

reliance on an alleged oral agreement without more flies in the face of the

unequivocal language of the Statute of Frauds.

We are likewise unpersuaded by the Loffredos’ further contention that their

proposed purchase and sales agreement together with: (1) “telephone calls and

confirming text messages” between Ms. Greenman and Ms. Toppa; (2) Mr.

Shapiro’s text message to his son in which he stated that it “looks like we’ve sold

Bonniecrest [i.e., the Property];”11 (3) an e-mail from the Shapiros (which was

11
The actual words of the text message sent by Mr. Shapiro to his son with
respect to the Property are noteworthy; they read as follows:

“looks like we’ve sold Bonniecrest. I’ll send docs to Luke
tomorrow for his comments…1,525 cash; no
- 16 -
signed by Mr. Shapiro) to Ms. Greenman in which he stated that “we’re looking for

the offer from [the] Loffredo[s];” and (4) Ms. Greenman’s reply e-mail to the

Shapiros, attaching the Loffredos’ proposed purchase and sales agreement, and also

providing the fax number of the Gustave White entity “so the Shapiros could sign

and return” it that night are “collectively * * * sufficient” to satisfy the “writing”

requirement of the Statute of Frauds.

It is clear to us, as it was to the hearing justice, that there is in the record of

this case no note or memorandum (even when the just-referenced communications

are viewed as a totality) sufficient to satisfy the Statute of Frauds. See MacKnight,

412 A.2d at 241. We are entirely unpersuaded by the Loffredos’ contention that the

mélange of telephone calls, text messages, and e-mail communications somehow

constitutes a “note or memorandum * * * in writing, and signed by the party to be

charged therewith,” as the Statute of Frauds so explicitly requires. Section 9-1-4(7).

The document at the center of this case is the Loffredos’ proposed purchase

and sales agreement, which undoubtedly sets forth the Loffredos’ understanding of

what they believed should be the terms of the anticipated real estate transaction,

including a description of the Property, the purchase price, and the parties to be

contingencies; out end of March[.] 2 offers, both maxed
out at same number; 2 different agencies; 1 buyer from W.
Hartford; other from Naples, FL”

- 17 -
charged. Very significantly, however, as the Loffredos conceded in their answers to

interrogatories, the proposed purchase and sales document lacks a signature from the

Shapiros, who were the parties to be charged.12

Bearing in mind the basic principle that the Statute of Frauds is to “be strictly

construed and strictly applied,” it is clear that the record contains no writing

sufficient to satisfy the Statute of Frauds. Brochu, 939 A.2d at 453; see also Mutual

Development Corp., 47 A.3d at 324. Accordingly, we perceive no error on the part

of the hearing justice in granting summary judgment on this count.

B

The Promissory Estoppel Claim (Count Two)

The Loffredos also contend that, in spite of the writing requirement in the

Statute of Frauds, the alleged oral agreement at issue is enforceable pursuant to the

doctrine of promissory estoppel. We are unpersuaded by this contention. This Court

has consistently held that “an oral agreement [for the purchase and sale of real estate]

precludes recovery * * * ‘irrespective of whether the action is based on the contract,

12
We have described as follows the “widespread real estate practice” relative to
purchase and sales agreements:

“[A]n offer to purchase realty is made in writing by the
purchaser’s signature on a purchase-and-sales-agreement
form, and a contract formed by the seller’s
countersignature on the same document.” Smith v. Boyd,
553 A.2d 131, 134 (R.I. 1989) (emphasis added).
- 18 -
* * * or on a theory of estoppel.’” Brochu, 939 A.2d at 453 (quoting Zexter v.

Cerrone, 107 R.I. 92, 94, 265 A.2d 328, 328-29 (1970)). As such, “any attempt to

apply the doctrine of promissory estoppel to real estate * * * agreements so as to

take them out of the statute would, in the absence of fraud, defeat the very purpose

for which clause Sixth [of the Statute of Frauds] was enacted, specifically, protection

against the assertion of unfounded claims.”13 Id. at 453-54 (quoting Heyman, 102

R.I. at 108, 228 A.2d at 580). Because the alleged oral agreement at issue is

unenforceable due to the lack of a sufficient writing signed by the party to be

charged,14 we are completely satisfied that the Shapiros were entitled to summary

judgment on this count.

13
In their brief, the Loffredos contend that the facts of the instant case are
distinguishable from those at issue in Brochu v. Santis, 939 A.2d 449 (R.I. 2008).
They aver that, in contrast to the facts set forth in Brochu, “[h]ere, there are claims
of fraud, and there is ample evidence in the record to support such claims.”
(Emphasis in original.) However, that argument is meritless—since, as we point out
in Part IV.D, infra, there is no evidence in the record which supports the contention
that a false representation was made by any of the defendants.
14
The Loffredos quote at length from our recent opinion in Salvatore v.
Palangio, 247 A.3d 1250 (R.I. 2021), which upheld a jury finding that a piece of
property was acquired pursuant to the doctrine of promissory estoppel. Salvatore,
247 A.3d at 1263. The facts of Salvatore are quite different from those in the instant
case; but, for present purposes, we need not focus on those differences. It suffices
to note that the Statute of Frauds was not raised by the appellant in Salvatore.

- 19 -
C

The Equitable Estoppel Claim (Count Three)

The Loffredos also contend that the hearing justice erred in granting summary

judgment on Count Three, which invoked the doctrine of equitable estoppel.

It is important to keep in mind that we have expressly stated that the

“[i]ndispensable” requirements for the successful invocation of the doctrine of

equitable estoppel are the establishment of: first, “an affirmative representation or

equivalent conduct on the part of the person against whom the estoppel is claimed

which is directed to another for the purpose of inducing the other to act or fail to act

in reliance thereon; and secondly, that such representation or conduct in fact did

induce the other to act or fail to act to his injury.” Faella v. Chiodo, 111 A.3d 351,

357 (R.I. 2015) (quoting Cigarrilha v. City of Providence, 64 A.3d 1208, 1213 (R.I.

2013)).

We have consistently emphasized that “[e]quitable estoppel is ‘extraordinary’

relief, which ‘will not be applied unless the equities clearly [are] balanced in favor

of the part[y] seeking relief.’” Sturbridge Home Builders, Inc. v. Downing Seaport,

Inc., 890 A.2d 58, 67 (R.I. 2005) (emphasis in original) (quoting Southex

Exhibitions, Inc. v. Rhode Island Builders Association, Inc., 279 F.3d 94, 104 (1st

Cir. 2002)). And we have bluntly stated that “equitable estoppel is not a favored

doctrine * * * [and should be] applied carefully and sparingly and only from

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necessity.” Faella, 111 A.3d at 357 (quoting 28 Am. Jur. 2d Estoppel and Waiver

§ 166 at 633 (2011)). We have also made it clear that “[e]ach of the elements of

[equitable] estoppel must be proved with the requisite degree of certainty; no

element may be left to surmise, inference, or speculation.” Id. (internal quotation

marks omitted).

It is our opinion that the Loffredos failed to raise a genuine issue of material

fact relative to their claim of equitable estoppel. Upon careful consideration of the

record, it is clear to us that the Loffredos’ allegations concerning their claim of

equitable estoppel are entirely conclusory in nature. See Newstone Development,

LLC, 140 A.3d at 103 (“[T]he nonmoving party bears the burden of proving by

competent evidence the existence of a disputed issue of material fact and cannot rest

upon mere allegations or denials in the pleadings, mere conclusions or mere legal

opinions.”) (emphasis added) (internal quotation marks omitted); see also Great

American E & S Insurance Co. v. End Zone Pub & Grill of Narragansett, Inc., 45

A.3d 571, 574 (R.I. 2012). As the hearing justice stated in his bench decision, there

was no evidence before him “that any statement induced the plaintiffs to act.”

For that reason, it is our opinion that the hearing justice did not err in holding

that the Loffredos failed to present evidence sufficient to withstand a motion for

summary judgment on this count. See Greenwich Bay Yacht Basin Associates v.

Brown, 537 A.2d 988, 992 (R.I. 1988) (recognizing that there are instances where

- 21 -
there are insufficient facts “to warrant the application of the doctrine of equitable

estoppel”); see also 28 Am. Jur. 2d Estoppel and Waiver § 166 (2022) (“[W]hen the

facts and the reasonable inferences therefrom are undisputed, it is a question of law

whether equitable estoppel has been established.”) (footnote omitted).

D

Fraud and Deceit (Count Four)

The Loffredos next contend that the hearing justice erred in holding that the

Statute of Frauds barred their claim for fraud and deceit. They argue that they

“reasonably relied” on the statements of the Shapiros, Ms. Greenman, and Ms. Kirby

concerning the “highest and best offer process” in which, according to the complaint,

said defendants affirmatively represented that the Shapiros “intended to accept and

would accept the offer which they decided was the better of the two best and final

offers.”

In support of that contention, the Loffredos rely on this Court’s decision in

Bourdon’s, Inc. v. Ecin Industries, Inc., 704 A.2d 747 (R.I. 1997), in which we

explicitly held that the Statute of Frauds “is inapplicable to a claim of

misrepresentation, fraud, and/or deceit * * *.” Bourdon’s, Inc., 704 A.2d at 757. In

Bourdon’s, Inc., the plaintiffs alleged that the defendants had failed to pay on a

promissory note. Id. at 750. In response, the defendants counterclaimed, alleging

“misrepresentation, fraud, and/or deceit,” and the plaintiffs contended on appeal that

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the trial justice erred in failing to charge the jury on the Statute of Frauds. Id. at 750,

757. In contrast with the case before us, the record in Bourdon’s, Inc. was replete

with evidence to support a claim for fraud and deceit, including several oral

misrepresentations made by the plaintiffs. Id. at 750, 754-55, 757. In the instant

case, the Loffredos have failed to present any evidence that the defendants made

false representations of fact relative to the highest and best offer process.

Given the failure of plaintiffs to have presented such evidence, we view this

case as being far closer from a legal perspective to Brochu than to Bourdon’s, Inc.,

with which it has only superficial similarities. In Brochu, we noted that we have

historically “refused to allow allegations of fraud, standing alone, to circumvent the

Statute of Frauds because in so doing we ‘would reopen the floodgates of litigation

which were closed when clause sixth [of the Statute of Frauds] became law.’”

Brochu, 939 A.2d at 453 (quoting Dooley v. Lachut, 103 R.I. 21, 25, 234 A.2d 366,

368 (1967)). We went on to say that, with respect to the Statute of Frauds, “mere

allegations of fraud, without accompanying evidence, are insufficient to remove an

oral contract from [that statute’s] purview.” Id.

As previously discussed, there is no signed note or memorandum sufficient to

satisfy the Statute of Frauds in the instant case. Moreover, the record does not

contain evidence that would show that a false representation was made by any of the

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defendants.15 Accordingly, we perceive no error in the hearing justice’s grant of

summary judgment on this count.

E

Negligent Misrepresentation (Count Five)

In their complaint, the Loffredos allege that the Gustave White defendants

“made misrepresentations of material fact to plaintiffs” in which they represented

that the Shapiros “intended to and would accept the better of the two best and final

offers to be submitted” by the Loffredos and the Krichavskys. Furthermore, the

Loffredos allege that Ms. Greenman and Ms. Kirby “knew of the misrepresentations,

made the misrepresentations without knowledge as to their truth or falsity, or made

the misrepresentations under circumstances in which they ought to have known of

their falsity.” Moreover, the Loffredos contend that “[i]n making such

misrepresentations,” Ms. Greenman and Ms. Kirby “failed to exercise reasonable

care or competence to obtain or communicate true information.”

On appeal, the Loffredos aver that there “are genuine issues of material fact

to be decided by a jury at trial” relative to their claim of negligent misrepresentation.

On that basis, they contend that the hearing justice erred in granting summary

judgment as to this count.

15
With respect to the “best and final” offer issue, see also Part IV.E, infra.
- 24 -
In order to set forth a prima facie case of negligent misrepresentation, the

plaintiff must 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 [or she] 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.” Zarrella v. Minnesota Mutual Life Insurance Co., 824 A.2d

1249, 1257 (R.I. 2003) (quoting Mallette v. Children’s Friend and Service, 661 A.2d

67, 69 (R.I. 1995)).

It is clear from the record that, in the words of the hearing justice, “[t]here is

no evidence * * * that [the] Gustave White defendants misrepresented a material fact

in this case.” Because the Loffredos failed to establish the elements necessary to

state a claim for negligent misrepresentation, it is our view that the hearing justice

did not err in granting summary judgment in defendants’ favor on this count.

F

The Statutory Count (Count Six)

In their appeal from the grant of summary judgment as to Count Six (which

invoked chapter 20.5 of title 5 of the General Laws), the Loffredos contend that the

hearing justice erroneously construed § 5-20.5-17(b) when he ruled that that

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provision does not provide a private right of action to an aggrieved party “unless and

until there has first been a [Department of Business Regulation] disciplinary

proceeding against the licensed agent or broker and a finding of a violation of

§ 5-20.5-14(a).”

The Loffredos argue that Ҥ 5-20.5-17(b) provides for an express private right

of action and a civil remedy for an aggrieved person against a licensed agent or

broker who violates any of the provisions contained in Chapter 5-20.5, including the

various subsection[s] of § 5-20.5-14(a) * * * without the person having to first bring

a disciplinary proceeding with the [Department of Business Regulation] and obtain

an administrative determination that the licensed professional has committed a

violation of § 5-20.5-14(a).” We are unpersuaded by the Loffredos’ reading of the

statutory provisions at issue.

The pertinent subsections of § 5-20.5-14 of the General Laws read as follows:

“(a) The director [of the Department of Business
Regulation] may, upon his or her own motion, and shall,
upon the receipt of the written verified complaint of any
person initiating a cause under this section, ascertain the
facts and, if warranted, hold a hearing for the suspension
or revocation of a license. * * *

“* * *

“(b) The director is authorized to levy an administrative
penalty not exceeding two thousand dollars ($2,000) for
any violation under this section or the rules and regulations
of the department of business regulation.”

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Additionally, the relevant subsection of § 5-20.5-17 of the General Laws reads

as follows:

“(b) In case any person has received any money, or the
equivalent, as a fee, commission, compensation, or profit
by or in consequence of a violation of any provision of this
chapter, he or she, in addition, is liable to a penalty of not
less than the amount of the sum of money received and not
more than three (3) times the sum received, as may be
determined by the court, which penalty may be recovered
in any court of competent jurisdiction by any person
aggrieved.”

Pursuant to the statutory scheme, an aggrieved party may seek to recover the

penalty referenced in § 5-20.5-17(b) only when such a party “has received any

money, or the equivalent, as a fee, commission, compensation, or profit by or in

consequence of a violation of any provision of this chapter * * *.”

Section 5-20.5-17(b) (emphasis added). This language is plain and unambiguous;

as such, it should be applied as written. See Unistrut Corp. v. State Department of

Labor and Training, 922 A.2d 93, 98 (R.I. 2007) (“When a statute is clear and

unambiguous we are bound to ascribe the plain and ordinary meaning of the words

of the statute and our inquiry is at an end.”); see also DeMarco v. Travelers

Insurance Co., 26 A.3d 585, 616 (R.I. 2011). Accordingly, to recover the penalty

referenced in § 5-20.5-17(b) on the basis that a licensed professional has violated

- 27 -
§ 5-20.5-14(a),16 there must have already been a determination by the director of the

Department of Business Regulation that that licensed professional has committed

one of the thirty-seven “acts or practices” listed in § 5-20.5-14(a).17

As there was no prior determination of a violation by the director of the

Department of Business Regulation pursuant to § 5-20.5-14(a) which would entitle

the Loffredos to initiate suit pursuant to § 5-20.5-17(b), it is our view that the hearing

justice acted correctly in granting summary judgment on this count.

G

Tortious Interference with Contractual Relations (Count Seven)

The Loffredos also assert that the hearing justice erroneously granted

summary judgment on their claim of tortious interference with contractual relations.

16
In our judgment, the hearing justice was correct in ruling that the plain
language of G.L. 1956 § 5-20.5-14(a) vests the director of the Department of
Business Regulation with the authority, either upon his or her own motion or upon
the receipt of a written verified complaint, to investigate alleged misconduct, hold a
hearing regarding the suspension or revocation of an individual’s real estate license,
and sanction an individual who is determined to have committed any of the “acts or
practices” expressly referenced in the statute.
17
Because the General Assembly did not expressly include in § 5-20.5-14 a
private cause of action, we decline to conclude that such a cause of action is implied
therein. See Doe v. Brown University, 253 A.3d 389, 399 (R.I. 2021) (“[P]rinciples
of judicial restraint prevent us from creating a cause of action for damages in all but
the most extreme circumstances.”) (internal quotation marks omitted); Cullen v.
Lincoln Town Council, 960 A.2d 246, 249 (R.I. 2008) (“The judiciary may not
properly create a new cause of action in order to deal with a particular perceived
wrong.”).
- 28 -
They allege (in language that is rather opaque) that, “[e]ven if the Shapiros were to

prevail on their statute of frauds defense, there still was a contract in existence

between the Shapiros and the Loffredos” with which Ms. Hoag and the Krichavskys

intentionally interfered even though they knew “that the Shapiros had already

communicated their acceptance” of the Loffredos’ offer. The Loffredos further

argue that “[a]s a direct result of the Krichavskys’ and [Ms.] Hoag’s interference,

the Shapiros reneged on their acceptance of the Loffredos’ highest and best offer and

they refused to sign the Loffredo[s’] P&S agreement.”

To establish a prima facie case of tortious interference with contractual

relations, the aggrieved party “must establish the following four elements: (1) [the]

existence of a contract; (2) the alleged wrongdoer’s knowledge of the contract;

(3) his [or her] intentional interference; and (4) damages resulting therefrom.”

Fogarty, 163 A.3d at 538 (emphasis added) (internal quotation marks omitted); see

also Doe v. Brown University, 253 A.3d 389, 398 (R.I. 2021); Greensleeves, Inc. v.

Smiley, 942 A.2d 284, 293 n.16 (R.I. 2007). And we have further explained that

“aggrieved parties must allege and prove not only that the putative tortfeasor

intended to do harm to the contract but that they did so without the benefit of any

legally recognized privilege or other justification.” Lomastro v. Iacovelli, 126 A.3d

470, 474 (R.I. 2015) (internal quotation marks omitted); see also Belliveau Building

Corp. v. O’Coin, 763 A.2d 622, 627 (R.I. 2000).

- 29 -
As we have already explained in some detail supra, the alleged oral contract

between the Loffredos and the Shapiros is unenforceable pursuant to the Statute of

Frauds, and we have determined the Loffredos’ other arguments seeking to avoid

the Statute of Frauds to be equally unavailing. Because the Loffredos have failed to

present evidence of an enforceable contract, we need go no further. Accordingly,

we affirm the Superior Court’s grant of summary judgment on this count.

H

Tortious Interference with Prospective Contractual Relations (Count Eight)

The Loffredos also contend that the hearing justice erred in granting summary

judgment with respect to their claim of tortious interference with prospective

contractual relations. They argue that “even if * * * no actual contract had been

formed,” by the time that the Krichavskys submitted their eventually successful

offer, the Loffredos “had reached the point of having an ‘expectancy’ that the

Shapiros would sign and return their P&S agreement.”

The elements of the tort of intentional interference with prospective

contractual relations are the following: “(1) the existence of a business relationship

or expectancy, (2) knowledge by the interferer of the relationship or expectancy,

(3) an intentional act of interference, (4) proof that the interference caused the harm

sustained, and (5) damages to the plaintiff.” Fogarty, 163 A.3d at 540 (internal

quotation marks omitted). And we have made it a point to indicate that this tort

- 30 -
requires the showing of “an intentional and improper act of interference, not merely

an intentional act of interference.” La Gondola, Inc. v. City of Providence, by and

through Lombardi, 210 A.3d 1205, 1221 (R.I. 2019) (emphasis in original) (quoting

Avilla v. Newport Grand Jai Alai LLC, 935 A.2d 91, 98 (R.I. 2007)).

After considerable reflection, we have determined that the series of events that

eventually gave rise to this case requires fact-finding before the merits of Count

Eight can be reached. See generally Estate of Giuliano v. Giuliano, 949 A.2d 386,

394 (R.I. 2008); Mitchell v. Mitchell, 756 A.2d 179, 185 (R.I. 2000). In our

considered opinion, the hearing justice erred when he granted summary judgment

on this Count in May of 2020 since, when the evidence is viewed in the light most

favorable to plaintiff, there were issues of material fact that precluded summary

judgment.

Accordingly, we remand the record to the Superior Court for further

proceedings relative to the Loffredos’ claim of tortious interference with prospective

contractual relations.

V

Conclusion

For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court with respect to all counts in the complaint except for Count Eight,

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and we vacate the judgment as to that count. The record may be returned to that

tribunal.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case Kenneth Loffredo et al. v. Stephen A. Shapiro et al.

No. 2020-233-Appeal.
Case Number
(NC 18-102)

Date Opinion Filed May 25, 2022

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice William P. Robinson III

Source of Appeal Newport County Superior Court

Judicial Officer from Lower Court Associate Justice Brian Van Couyghen

For Plaintiffs:

Kevin P. Gavin, Esq.
For Defendants:
Attorney(s) on Appeal
Syd A. Saloman, Esq.
Stanley F. Pupecki, Esq.
J. Russell Jackson, Esq.
Christopher R. Blazejewski, Esq.

SU-CMS-02A (revised June 2020)