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March 3, 2026 Get Citation Alerts Download PDF Add Note

DAVID P. BAILLARGEON & Another v. MATHEW LENNON.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0724

• Precedential Status: Non-Precedential

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (8.9K)

• PDF

Combined Opinion

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-724

DAVID P. BAILLARGEON & another1

vs.

MATHEW LENNON.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, David P. and Lori A. Baillargeon, filed

this Superior Court action alleging that their neighboring

landowner, the defendant Mathew Lennon, had cut down or damaged

trees, and had otherwise encroached, on the Baillargeons' land.

After a jury trial at which the parties represented themselves,

a judgment entered against Lennon in the principal amount of

$310,000, consisting of $100,000 for damage to trees, trebled

under G. L. c. 242, § 7 (treble damages for willful trespass to

trees), plus $10,000 for the encroachments on land.

1 Lori A. Baillargeon.

2We spell the defendant's name as it appears in the
complaint, as is our custom. The record elsewhere suggests that
the defendant spells his first name "Matthew."
On appeal, and now well represented by counsel, Lennon

argues that there was insufficient evidence to support the

jury's special verdict findings (1) that it was he who

trespassed against the trees and (2) that the trespass and other

encroachments caused damages in the amounts found by the jury.

Lennon acknowledges that he failed to preserve these arguments

by moving for a directed verdict, but he asks us nevertheless to

review his claims for "manifest injustice," or, put differently,

to determine whether "the verdict is inconsistent with

substantial justice" (quotation and citation omitted). Michnik-

Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6, 9-10 (1983).

Having done so, and after also reviewing Lennon's claims

concerning the jury instructions and various other issues, we

affirm the judgment.

1. Evidence supporting verdict. a. Nature of appellate

review. The nature of our review in this situation was

explained in Hatton v. Meade, 23 Mass. App. Ct. 356, 361-362

(1987), which approvingly cites Michnik-Zilberman, 390 Mass. at

8 -10:

"[W]here a losing party has not moved for a directed
verdict at the close of all the evidence, rule 50 (b)[3] not
only precludes (a) the granting to that party of a motion
for judgment n.o.v., but also (b) appellate review of the
sufficiency of the evidence to support the verdict. . . .
[Nevertheless,] a new trial may be granted where 'a jury's

3 Mass. R. Civ. P. 50 (b), as amended, 428 Mass. 1402
(1998).

2
verdict is wholly without legal support . . . in order to
prevent a manifest injustice'" (citation and emphasis
omitted).

We also draw guidance from Little v. Bankers Life & Cas. Co.,

426 F.2d 509 (5th Cir. 1970), a decision that the Supreme

Judicial Court cited with approval in Michnik-Zilberman, 390

Mass. at 10. In Little, supra at 511, where the losing party at

trial had not moved for a directed verdict, the United States

Court of Appeals for the Fifth Circuit explained the scope of

appellate review as follows:

"[O]ur review of the sufficiency of the evidence . . .
regarding the [key factual] issue is consequently
foreclosed. We may inquire whether there was any evidence
supporting the submission of [that] issue and the jury's
finding [in the opposing party's favor on that issue], but
we may not question the sufficiency of whatever evidence we
do find. . . . Our consideration is limited to whether
plain error has been committed which, if not noticed, would
result in a manifest miscarriage of justice. . . . No
further may we delve."

As another Federal court has explained, absent proper

preservation of a sufficiency claim, an appellate court examines

only "whether the record reflects an absolute dearth of

evidentiary support for the jury's verdict" (citation omitted).

Zachar v. Lee, 363 F.3d 70, 74 (1st Cir. 2004). See 9B C.A.

Wright & A.R. Miller, Federal Practice and Procedure § 2536, at

540 & n.9 (3d ed. 2008).

Here, accordingly, in evaluating Lennon's arguments that

certain of the jury's findings were not based in the evidence,

3
we look not at the sufficiency of the evidence but only at

"whether there was any evidence supporting the submission of"

that issue to the jury (emphasis added). Little, 426 F.2d at

511. "No further may we delve." Id.

b. Whether tree damage was caused by Lennon. We turn

first to the evidence that it was Lennon who cut or damaged the

trees in question. Mrs. Baillargeon testified that she saw a

man hanging from a rope and trimming trees on the Baillargeons'

property. On cross-examination, Lennon showed her a photograph,

inferably taken by him or while he owned his property, and which

he later successfully introduced in evidence as exhibit no. 6.

The photograph depicted, among other things, trees near the

boundary between the parties' properties. Mrs. Baillargeon

again testified that she had seen someone "hanging from these

trees . . . with a chainsaw" and "cutting branches." This

happened "earlier in the year."

Further, Lennon himself testified that he used a chainsaw

and had "cut many piles of logs on [his] property." Lennon also

testified that he caused logs to be removed from his property

that he did not believe were his but that had fallen on his

house. The foregoing, taken together, constituted some evidence

that it was Lennon who cut or damaged the trees on the

Baillargeons' property. There was not an "absolute dearth of

4
evidentiary support for the jury's verdict" (citation omitted).

Zachar, 363 F.3d at 74.

c. Monetary damages. We turn next to the evidence of

whether monetary damages were appropriate. First, as for the

cutting or damaging of trees, the Baillargeons' tree expert,

Richard D'Agostino, testified that Mr. Baillargeon had shown him

a list prepared by the Baillargeons of replacement values for

the damaged trees. The expert testified that the values on the

list totaled $109,000, and that these calculations were

"reasonable" and "in the ballpark." This constituted some

evidence of an appropriate amount of damages. Indeed, the

figure endorsed by the expert was not much different from the

$100,000 single-damages amount found by the jury.

Second, as for damages for the encroachments on the

Baillargeons' land, the jury found that Lennon had "place[d] or

maintain[ed]" two encroachments -- an "addition to [a] building"

and a "[t]railer" -- and as a result awarded $10,000 in damages.

Regarding the addition, the jury could see from a plan and

photographs in evidence that the structure had a concrete block

foundation, tall enough to allow for an exterior door leading to

the space inside the foundation. The addition's upper level

(inferably the living area) was accessible from another exterior

door and had several windows. The jury could infer that it

would cost the Baillargeons more than a nominal amount of money

5
to remove this addition and to restore the area to its previous

condition.

As for the encroaching trailer, the evidence was only that

it was "a big construction trailer that was left there . . . for

months." There was no evidence that it caused the Baillargeons

any harm while it was present or that they had expended any

money or time in having it removed (as opposed to Lennon's

having removed it). But neither does the record show whether

the jury awarded any damages on account of the trailer. Rather,

the jury awarded encroachment damages of $10,000, unallocated to

any particular encroachment. The special verdict slip, to which

Lennon had stated he had no objection, did not ask the jury to

specify an amount of damages for each encroachment they found.

In light of all the foregoing, we cannot say there was no

evidence that $10,000 could be an appropriate amount of

encroachment damages.

1. Jury instructions. Lennon next argues that the jury

instructions were deficient in that they did not explain the

difference between direct and circumstantial evidence, what

types of inferences from the evidence are reasonable (or

unreasonable), and the prohibition against guesswork and

speculation. Lennon acknowledges that he did not object to the

omission of these instructions at trial, but he again suggests

that we should review for whether any error caused manifest

6
injustice. See Rotkiewicz v. Sadowsky, 431 Mass. 748, 752 n.3

(2000) (noting in dictum that "[i]f the defendant had not

preserved [his objection to the jury instructions], we would be

limited to reviewing the claimed error only to prevent a

manifest injustice").

Rotkiewicz sheds little light on how instructional error

should be reviewed for manifest injustice. As support for its

suggestion that such review is available, Rotkiewicz cites

Michnik-Zilberman, 390 Mass. at 9, which as we have seen

concerned a waived claim that evidence was insufficient to

support a jury verdict, and Cruz v. Commissioner of Pub.

Welfare, 395 Mass. 107, 111 (1985), which concerned a Medicaid

applicant's waived claim that an administrative agency failed to

apply a Federal regulation under which she could be eligible for

benefits. See Rotkiewicz, 431 Mass. at 752 n.3. Neither

Michnik-Zilberman nor Cruz tells us how to assess whether

assertedly erroneous jury instructions have led to a manifest

injustice. Indeed, Cruz, while it granted relief on a claim

raised for the first time on appeal, did not use the phrase

"manifest injustice" or any similar standard.4 See Cruz, supra

at 111-112.

4 Instead, Cruz stated as follows:

"[t]here may always be exceptional cases or particular
circumstances which will prompt a reviewing or appellate

7
Nevertheless, this case differs from Cruz in at least three

ways. First, while Cruz involved a pure error of law, Lennon

has not shown any error here. Although jury instructions on the

issues Lennon mentions are certainly desirable, and are

regularly given, Lennon cites no authority establishing as a

matter of law that they must be given, even absent any request

by a party. Second, the error in Cruz was prejudicial, in the

sense that it denied the plaintiff an opportunity to argue that

she was eligible for benefits under a Federal regulation, and

her argument had strong, albeit not conclusive, factual support.

See Cruz, 395 Mass. at 112, 115. Here, in contrast, Lennon has

not persuaded us that the omitted instructions, if given, had

any particular probability of leading to a verdict significantly

more favorable to him. Third, the error in Cruz required only a

remand for additional agency proceedings, a result that the

Supreme Judicial Court viewed as causing no particular prejudice

to the agency. See id. at 111, 115-116. Here, in contrast, the

only relief we could properly order for Lennon based on an

instructional error would be a new trial, which would certainly

court, where injustice might otherwise result, to consider
questions of law which were neither pressed nor passed upon
by the court or administrative agency below. . . . Rules
of practice and procedure are devised to promote the ends
of justice, not to defeat them" (footnote omitted).

Cruz, 395 Mass. at 111, quoting Hormel v. Helvering, 312 U.S.
552, 557 (1941).

8
be burdensome and prejudicial to the Baillargeons, imposed on

them through no fault of their own. Accordingly, we conclude

that, assuming arguendo that review of unpreserved claims of

instructional error is available, the omission of the jury

instructions identified by Lennon caused no manifest injustice.

1. Other claimed errors. a. Closing argument. Lennon

argues that the Baillargeons' closing argument contained

numerous prejudicial remarks that had no basis in the evidence

and were intended to appeal to the jury's sympathies. Having

failed to object at trial, Lennon now argues that the judge

should have acted sua sponte by interrupting the Baillargeons to

instruct them to avoid such improper remarks. Lennon points us

to Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 241 n.4

(2013) (Agnes, J., concurring), where a judge's responsibility

to prevent improper argument was described as a "duty."

Lennon does not, however, point us to any decision ordering

a new trial based on a judge's failure to take such action on

her own motion, and we will not do so here. Lennon's own

closing argument contained numerous improper remarks, to such an

extent that the judge found it necessary to instruct him to

confine himself to the evidence.5 After he completed his

5 It was within the judge's discretion, being in the best
position to evaluate the content of the parties' improper
arguments and their likely effect on the jury, to interrupt
Lennon's argument but not that of the Baillargeons.

9
argument, the judge instructed the jury that, "with respect to

either closing argument," they should disregard any statements

not based on the evidence. The judge's final instructions also

told the jury that the closing arguments were not evidence, and

that the jury should confine their deliberations to the evidence

and not be swayed by sympathy or bias. In these circumstances,

even if we were to consider Lennon's unpreserved objection to

the Baillargeons' closing argument, and to the judge's decision

not to interrupt them to control their argument, he would not be

entitled to relief.

b. Expert testimony. Lennon argues that the judge erred

in denying his motion to exclude the testimony of the

Baillargeons' tree expert, D'Agostino, based on the

Baillargeons' failure to disclose D'Agostino's identity and the

substance of his testimony until they filed their trial

memorandum a few days before the 2025 trial. Our review of the

record, however, reveals that Lennon's motion, both as filed

before trial and as argued at trial, was based on the belated

disclosure only of D'Agostino's identity. Lennon did not object

to the belated or inadequate disclosure of the substance of

D'Agostino's testimony.

In opposing the motion, the Baillargeons acknowledged that

their pretrial memorandum had listed an expert other than

10
D'Agostino.6 In response to the judge's question, however, they

stated that they expected D'Agostino's testimony to be no

different from what they had previously disclosed. Indeed,

their 2024 pretrial memorandum and their 2025 trial memorandum

used identical language to describe the substance of the

testimony: "establishing replacement value of all of the trees

that were cut down or intentionally damaged on the land of the

[p]laintiffs by the [d]efendant." The judge therefore denied

Lennon's motion, concluding that the expert's identity had

changed but the substance of the expected testimony had not.

Lennon did not argue that the expert disclosure was

insufficient. Nor did Lennon object when the expert testified

that the damage calculations he had reviewed, and which he had

already testified were "reasonable" and "in the ballpark,"

totaled $109,000. Thus, Lennon has waived any challenge to the

substance of the expert's testimony, and we see no abuse of

6 More accurately, the Baillargeons' 2024 pretrial
memorandum listed four different arborists whom they had
selected to testify about the replacement value of the trees at
issue, but the memorandum asserted that each of the four had
withdrawn due to threats and intimidation by Lennon.

11
discretion, let alone any manifest injustice, in the judge's

decision to admit it.

Judgment affirmed.

By the Court (Vuono, Neyman &
Sacks, JJ.7),

Clerk

Entered: March 3, 2026.

7 The panelists are listed in order of seniority.

12