Alice Pomerleau v. Justin Johnson.

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

24-P-1171

ALICE POMERLEAU

vs.

JUSTIN JOHNSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant lived in a mobile home owned by the

plaintiff, his stepmother. In August 2023 the plaintiff served

the defendant with a written notice to quit and, when he failed

to vacate, served a summary process eviction complaint. After a

summary process trial a judge of the Housing Court concluded

that (1) a purported real estate purchase agreement and related

testimony were insufficient to demonstrate that the defendant's

right of possession was superior to that of the plaintiff, (2)

the defendant was a licensee, and (3) the plaintiff met her

prima facie burden to show a superior right to possession,

reasonable notice to the defendant, and the defendant's failure
to vacate. The judge awarded the plaintiff possession but no

damages for unpaid rent.

The defendant maintains that the judge erred in concluding

that the defendant was a "mere licensee." In support of this

assertion, he points to two things: first, the trial evidence,

including the purported real estate purchase agreement, which

the defendant says reflected a rent-to-own arrangement between

the parties; and second, testimony by both the plaintiff and the

defendant characterizing the defendant as a "tenant."

"On review of a jury-waived proceeding, we accept the

judge's findings of fact unless they are clearly erroneous."

U.S. Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421, 427 (2014).

"We accord the credibility determinations of the judge who

'heard the testimony of the parties . . . [and] observed their

demeanor,' the utmost deference" (alteration in original).

Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006),

quoting Pike v. Maguire, 47 Mass. App. Ct. 929, 929 (1999).

Although the judge did not make an explicit credibility

finding, it is implicit in his rulings that he credited the

plaintiff's testimony about the purported real estate purchase

agreement. Because his rejection of the real estate purchase

agreement was supported by the record, and because it involved

the sort of credibility determinations that are

"quintessentially the domain of the trial judge," Prenaveau v.

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Prenaveau, 81 Mass. App. Ct. 479, 496 (2012), we are unpersuaded

by the defendant's implicit claim of error in this

determination.

That leads to the defendant's argument on appeal: whether

the judge erred in concluding the defendant was not a tenant but

a licensee. At trial, the defendant stipulated that the notice

to quit was valid and did not contest that he received the

process due a tenant. He took the position that the parties did

not have a tenancy agreement, however, and he was gradually

buying the mobile home. The judge agreed with the defendant

that he was not a tenant and, presumably for that reason,

awarded the plaintiff no damages for unpaid rent. We fail to

see how it could benefit the defendant to be adjudged a tenant

rather than a licensee and we do not find the briefing

enlightening. Particularly where the defendant's appellate

argument that he was a tenant is at odds with the position he

took in the trial court that he was not a tenant, it is not this

panel's role to weave an argument from the near-invisible

strings presented. Accordingly, we affirm.

The plaintiff has requested an award of her appellate

attorney's fees and costs on the grounds that the appeal is

frivolous and not advanced in good faith. We agree that the

appeal is frivolous. Accordingly, within fourteen days of the

date of this decision, the plaintiff may file an application for

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attorney's fees and costs. The defendant may have fourteen days

to respond. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).

Judgment affirmed.

By the Court (Shin, Grant &
Hershfang, JJ.1),

Clerk

Entered: October 6, 2025.

1 The panelists are listed in order of seniority.

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