SYLVESTER M. BRITTO v. JOSEPH A. AGRILLO, THIRD, & Another.

• Court: Massachusetts Appeals Court
• Decided: July 7, 2025
• Docket: 24-P-1271
• Status: Unpublished

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

24-P-1271

SYLVESTER M. BRITTO

vs.

JOSEPH A. AGRILLO, THIRD, & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Defendants Joseph A. Agrillo, III, and Back River Bog

Company, LLC, appeal from a judgment entered by a judge of the

Superior Court, after a jury trial, finding them liable for

willful trespass to trees pursuant to G. L. c. 242, § 7.

Concluding that the defendants did not preserve review of the

denial of their motion for a directed verdict or of the jury

instructions and verdict slip, we affirm.

1. Motion for a directed verdict. "A motion for a

directed verdict made at the close of the plaintiff's case will

not survive if the defendant does not renew its motion at the

close of all of the evidence." Beverly v. Bass River Golf Mgt.,

1 Back River Bog Company, LLC. Inc., 92 Mass. App. Ct. 595, 600 (2018). "Failure to renew the

motion . . . generally results in a waiver of the right to

assert error in the denial of a directed verdict." Michnik-

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

Here, the defendants' motion for a directed verdict after

the plaintiff rested was denied, and they concede they "did not

renew their motions at the close of all of the evidence." In

line with the general rule, the defendants waived their ability

to challenge the denial of their directed verdict made after the

plaintiff's case. Accordingly, we do not reach the substance of

the motion because "[a]n appellate court cannot review the

sufficiency of the evidence in the absence of an effective

motion for a directed verdict, and clearly a motion which has

been waived does not constitute an effective motion." Martin v.

Hall, 369 Mass. 882, 884 (1976).

2. Jury instructions and the verdict slip. Similarly,

regarding jury instructions, "[n]o party may assign as error the

giving or the failure to give an instruction unless he objects

thereto . . . stating distinctly the matter to which he objects

and the grounds of his objection." Muzzy v. Cahillane Motors,

Inc., 434 Mass. 409, 416 (2001), quoting Mass. R. Civ. P.

51 (b), 365 Mass. 816 (1974). We have held, in tandem with this

principle, that "[a]ny objection to the form of a verdict slip

must be timely raised." Motsis v. Ming's Supermkt., Inc., 96

2 Mass. App. Ct. 371, 383 (2019). Where "objections were not

presented to the trial judge, the arguments are waived." Salvi

v. Suffolk County Sheriff's Dep't, 67 Mass. App. Ct. 596, 608

(2006).

Here, the defendants made no objection to the jury

instructions. Indeed, the defendants' proposed jury

instructions mirror the actual instruction the judge gave. 2

Defense counsel noted the possibility that the verdict slip

could be interpreted as being "all or nothing with the trees,"

but then admitted, "I don't know if there's a way we can get

that point across in the questionnaire." The judge suggested

that the parties could "handle this in your closing," and

neither party disagreed. Later, the judge sent the final draft

2 The defendants requested the following instruction:

"In order to prevail on his claim, the Plaintiff must demonstrate by a preponderance of the evidence that: 1. The land on which the trees were cut belonged to the Plaintiff; and 2. That the Defendants cut those trees down. In this particular case, the Defendants admit that they cut down the trees in question, hence, it is your first task to determine if those trees were on the Plaintiff's land. It is the Plaintiff's burden to prove ownership by a preponderance of the evidence."

The judge's instruction was to the same effect:

"First, that the defendants willfully cut down or otherwise destroyed trees. Second, that the trees the defendants cut down were on the land of the plaintiff. . . . As to the second element, the plaintiff must prove by a preponderance of the evidence that the trees the defendant cut down were on the land of the plaintiff, Mr. Britto."

3 of the special verdict slip to counsel and asked, "Are you

satisfied?" Defense counsel posed no objection or expressed any

view that the judge's suggestion to handle the problem in

closing was unsatisfactory. Accordingly, the defendants have

not properly preserved either issue to reach substantive

appellate review. See Muzzy, 434 Mass. at 416; Motsis, 96 Mass.

App. Ct. at 383.

Judgment affirmed.

By the Court (Blake, C.J., Ditkoff & Brennan, JJ. 3),

Clerk

Entered: July 7, 2025.

3 The panelists are listed in order of seniority.