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

22-P-544

JOSEPH SINKIEWICZ

vs.

PIERRE LOUIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial that spanned ten days, a judge of 

the Superior Court entered judgment for the defendant on the 

plaintiff's various claims arising out of the defendant's 

keeping of domesticated animals on his property.1 The plaintiff 

timely appealed, claiming that the judge abused her discretion 

by excluding a series of photographs and rebuttal testimony. We 

affirm.

Background. We recite the facts that the judge could have 

found, reserving some for later discussion. 

1 The judge construed the claims as breach of quiet enjoyment and 

privacy, nuisance, trespass, negligence, and intentional 

infliction of emotional distress. The judge also found in favor 

of the plaintiff as to the defendant's counterclaims, alleging 

harassment in violation of G. L. c. 258E, and violation of quiet 

enjoyment and privacy. The defendant did not submit a brief or 

otherwise participate in this appeal.
2

The plaintiff and his companion live in a home situated on 

a three-acre lot, of which two acres remain wooded. The 

plaintiff welcomes indigenous wildlife, such as wild turkeys, 

geese, birds of all sorts, opossums, deer, and other animals, on 

his land without restriction. 

The defendant lives on property that abuts the plaintiff's 

property. In 2016, the defendant erected a large chicken coop 

approximately twenty feet from the mutual property line.2 The 

defendant kept ducks, guinea hens, turkeys, and approximately 

thirty chickens in the coop, which was open at the top. Some of 

the animals occasionally "escaped" onto the plaintiff's 

property.3 

The plaintiff's home sits approximately three hundred feet 

from the chicken coop. The coop is not visible from the 

plaintiff's patio.

The defendant regularly cleaned out the coop and treated it 

to reduce odors. A city employee with the board of health, who 

inspected the chicken coop multiple times at the plaintiff's 

2 From 2012 to 2016, the defendant had a smaller chicken coop 

that sat twenty-five feet from the shared property line. During 

this time, the plaintiff made no complaints to the defendant, 

his family, or city officials. 

3 In 2017 and 2019, the plaintiff and defendant respectively 

installed fences to, among other things, limit the animals' 

intrusions on the plaintiff's property. The defendant also 

clipped the ducks' wings to prevent them from flying onto the 

plaintiff's property.
3

insistence, testified that the defendant disposed of the waste 

from the coop by mixing it with soil and using it as a 

fertilizer for his gardens.4 She also testified that the

defendant's property was of an adequate size to accommodate his 

animals and that the elevation of the coop helped limit

predators' access to the animals inside it. 

Despite his complaints about the noises and the smells from 

the chicken coop, the plaintiff and his companion still "spen[t]

time sitting outside on the patio in the rear of their residence 

. . . for an hour 'or so'" each night in pleasant weather and 

"walk[ed] their dog upon the acreage" "at least twice a day." 

No other neighbors testified that their lives were affected by 

noise or odor from the chicken coop. For these and other 

reasons, the trial judge did not credit the plaintiff's 

testimony about the impact of the animals on his enjoyment of 

his property.

Discussion. 1. Exclusion of photographs. "We do not 

disturb a judge's decision to admit evidence absent an abuse of 

discretion or other legal error." Zucco v. Kane, 439 Mass. 503, 

507 (2003). "Trial judges have broad discretion to make 

discovery and evidentiary rulings conducive to the conduct of a 

4 The defendant was never fined or cited for a violation and was 

never ordered to make any corrections to the structure of the 

chicken coop. 
4

fair and orderly trial" (quotations and citation omitted). 

Nally v. Volkswagen of Am., Inc., 405 Mass. 191, 197 (1989). We 

discern no abuse of the judge's broad discretion in her 

exclusion of the proffered photographs. See N.E. Physical 

Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 

(2013).

The judge denied the plaintiff's request, made several days 

into the long trial, to admit a series of five photographs 

purporting to show a manure pile on the defendant's land because 

they were not disclosed prior to trial. The plaintiff concedes 

that similar photographs were admitted as Exhibit 5. Three 

witnesses testified about a manure pile. This decision was well 

within the judge's discretion. See Mass. R. Civ. P. 

37 (b) (2) (B), as amended, 390 Mass. 1208 (1984) (where party 

fails to comply with discovery requests, judge may impose 

sanctions, including "refusing to allow the disobedient party to 

support or oppose designated claims or defenses, or prohibiting 

him from introducing designated matters in evidence"). 

To the extent that the plaintiff now argues that he "should 

neither be required to reveal words or photographs before 

cross," the judge was within her discretion in excluding the 

photographs given the discovery rules' purpose. See, e.g.,

Partlow v. Hertz Corp., 370 Mass. 787, 790 (1976) ("Compliance 

with the rules of civil procedure is not accomplished if the 
5

parties make of answers to interrogatories some kind of a 

game"); Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 

484 n.8 (2000) ("the rules of civil procedure are instruments 

for the promotion of justice . . . not the exaltation of mere 

technicalities").

The plaintiff also maintains that these photographs should 

have been admitted to impeach the defendant. "[T]he decision to 

admit impeachment evidence rests in the broad discretion of the 

judge and will not be disturbed on appeal unless the exercise of 

that discretion constituted an abuse of discretion or palpable 

error of law." Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 

52 (2009). "The trial judge has both the discretion and the 

responsibility to exclude irrelevant, cumulative, or repetitive 

evidence" (emphasis added). Boston v. United States Gypsum Co., 

37 Mass. App. Ct. 253, 260 (1994). In this circumstance, where 

the plaintiff concedes that these photographs were similar to 

some that were admitted, we see no error. Even if the exclusion 

was error, it did not prejudice the plaintiff; he was able to 

question the defendant on concededly similar photographs and to 

present witness testimony about the manure pile.

2. Rebuttal testimony. We find no merit in the 

plaintiff's argument that the judge improperly denied his
6

request for rebuttal testimony.5 "A trial judge possesses broad 

discretion in deciding whether to permit the presentation of 

rebuttal evidence." Urban Inv. & Dev. Co. v. Turner Constr. 

Co., 35 Mass. App. Ct. 100, 103 (1993), citing Drake v. Goodman, 

386 Mass. 88, 92 (1982), and Mason v. General Motors Corp., 397 

Mass. 183, 193 (1986). The defendant's introduction of the city 

employee's testimony was not a surprise and did not suddenly 

advance a new or unforeseen theory. See Drake, supra at 92-93; 

Teller v. Schepens, 25 Mass. App. Ct. 346, 350-351 (1988). The 

plaintiff was permitted to present evidence of the city 

employee's purported prodefendant bias; on cross, the 

plaintiff's counsel solicited information from the city employee 

that she had friendly interactions with the defendant and 

contentious interactions with the plaintiff. The plaintiff did 

not have the right to present rebuttal evidence.6 See Drake, 386 

Mass. at 93.

5 Specifically, the plaintiff's counsel intended the plaintiff to 

testify as to his meetings with the city employee and documents 

regarding the defendant's property. Likewise, the attorney was 

to testify to the city employee's alleged refusal to bring the 

file concerning the defendant's property -- a file the plaintiff 

opted not to subpoena ahead of time -- to the trial and the 

employee's "continuing interaction on a daily basis . . . [with] 

the defendant, laughing and joking." 

6 The same is true for the plaintiff's argument that the judge 

should have also allowed the manure-pile photographs as rebuttal 

evidence. The existence (or not) of the manure pile on the 

defendant's property was a key issue of the case; his denial of 

its existence on cross was not "new or unanticipated evidence 
7

3. Factual findings. We review factual findings for clear 

error. See DeMayo v. Quinn, 87 Mass. App. Ct. 115, 116-117 

(2015). "We 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). In a bench trial, credibility

determinations are "quintessentially the domain of the trial 

judge [so that her] assessment is close to immune from reversal 

on appeal except on the most compelling of showings." Prenaveau

v. Prenaveau, 81 Mass. App. Ct. 479, 496 (2012), quoting 

Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995). 

During the ten-day trial, the judge heard testimony from 

many witnesses, including the parties, their companions, the 

city employee, and two other neighbors. In her detailed factual 

findings, the judge explained her reasoning for not finding the 

plaintiff, his companion, or his weekly maintenance worker

wholly credible. While the judge credited the plaintiff's 

testimony in part, in that "some odors could develop from the 

animal feces," she credited the defendant's testimony, supported 

by the city employee's testimony, that the defendant took 

measures to mitigate any odor. It is settled that a judge may 

presented for the first time at trial." Urban Inv. and Dev. 

Co., 35 Mass. App. Ct. at 103-104.
8

"accept or reject in whole or in part the testimony of the 

witnesses." Learned v. Hamburger, 245 Mass. 461, 468 (1923). 

Cf. Commonwealth v. Cruz, 98 Mass. App. Ct. 383, 392 (2020) 

(jury may believe part of witness's testimony and reject part, 

or believe all, or reject all). There was no error.

Conclusion. Seeing no basis to disturb the judge's 

credibility determinations and no abuse of discretion or other 

error of law, we affirm.7

So ordered.

By the Court (Meade, 

Hershfang & D'Angelo, JJ.8),

Clerk

Entered: November 22, 2023.

7 We address the merits of each claim, but do not necessarily 

analyze each argument advanced in support of those claims. "To 

the extent that we have not specifically addressed other points 

made . . . in [the plaintiff's brief], they 'have not been 

overlooked. We find nothing in them that requires discussion.'" 

Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting 

Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

8 The panelists are listed in order of seniority.