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-1158 JEFFREY A. SHAKER vs. AMY VICKERY & others.1 MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 The defendant tenants appeal from a Housing Court summary process judgment, entered after a trial, that awarded possession of the leased premises and costs to the plaintiff Jeffery A.

Shaker (landlord) and dismissed the tenants' counterclaims without prejudice. The judge ruled that the tenants had violated a lease provision stating, with respect to the second floor of a barn on the leased premises, that "[second floor] of barn is not to be used as a dwelling." We affirm the judgment.

Our review is made difficult by the tenants' failure to file a record appendix as required by Mass. R. A. P. 18 (a), as

This argument confuses the question of the second floor's status as a legal matter under the building code with that of its use as a factual matter under the lease.4 The judge found that the landlord had observed sleeping quarters, a bed, and personal clothing on the second floor. Jones admitted that she had slept and showered in the barn. Despite the landlord's request that Jones relocate to the main house, he thereafter observed no bedroom set up for her there. The landlord also received a text message from Bonaventura stating that Jones's moving into the house was "not an option" because Jones and the third tenant, Amy Vickery, were not speaking to each other.

Based on these facts, the judge could reasonably conclude that, even if the second floor did not contain all the facilities necessary to meet the building code's legal definition of dwelling unit, Jones was "us[ing] [it] as a dwelling," as that phrase was used in the lease. In other words, the lease did not state that only if the barn's second floor were used for every activity listed in the building code definition -- "living, sleeping, eating, cooking and sanitation"

-- would the second floor be "used as a dwelling." We see no error in the judge's conclusion that the tenants violated the lease.5 Bonaventura further argues that, at trial, the landlord offered a text exchange in evidence despite not having provided it to the tenants before trial. Bonaventura suggests that he was thereby unfairly deprived of the opportunity to introduce the full exchange in evidence, which in turn led the judge to misinterpret the portion of the exchange that was before her.

What is missing from Bonaventura's argument is any citation to anything in the record showing that he submitted discovery requests to the landlord, that the landlord failed to properly respond to those requests, and that Bonaventura timely called that failure to the judge's attention. Absent such a showing, we have no basis to conclude that there was any error or

Nevertheless, Bonaventura does not ask that we vacate the dismissal of the counterclaims. Also, we take judicial notice that the tenants are currently pursuing what appear to be the same or similar counterclaims in Shaker vs. Bonaventura, Mass. Sup. Ct., No. 2473CV00313 (Bristol County). We therefore do not disturb the dismissal of the counterclaims in the Housing Court.

unfairness in the judge's consideration of the text messages offered by the landlord.

Finally, Bonaventura argues that in making her findings of fact, the judge "found the [landlord's] testimony to be credible which it was not." But "[w]e accord the credibility determinations of the judge who 'heard the testimony of the parties . . . [and] observed their demeanor' . . . the utmost deference." Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006), quoting Pike v. Maguire, 47 Mass. App. Ct. 929, 929 (1999). Bonaventura offers no sound reason for us to reject the judge's express decision to credit the landlord's testimony.

Judgment affirmed.

By the Court (Massing, Sacks & Allen, JJ.6),

Clerk

Entered: December 5, 2025.