MISC 236372

July 25, 2008

ESSEX, ss.

Trombly, J.


This action, filed in 1997, comes before the court again upon the filing by Richard T. Angelo and Virginia A. Angelo (“the Angelos”) of a Complaint for Civil Contempt. In their complaint, filed on June 30, 2008, the Angelos contend that plaintiffs Philip Post and Linda Post (“the Posts”) have “deliberately and intentionally” violated the terms of a Judgment entered by this court (Lombardi, J.) on April 7, 2008 wherein it was ordered that the Posts and the Paynes were “permanently enjoined from interfering with the rights of the owners of the Angelo parcel and the Preytis parcel” as declared in the judgment. The Angelos contend in their complaint that the Posts have placed, or caused to be placed, a boulder within the confines of a forty-foot wide street known as Iveson Street and that this action was a deliberate attempt to interfere with the adjudicated rights of the Angelos to use and improve that street for access to their property on which they intend to construct a home.

A summons was issued pursuant to Mass. R. Civ. P. 65.3 on July 1, 2008 notifying the parties and counsel that a hearing on the complaint would be held on July 9, 2008 with the matters at that hearing to be “whether the filing of an answer is necessary...or considering such other matters or performing such other acts as the court may deem appropriate.” The hearing was held, as scheduled, on July 9. Present were counsel for both the Posts and the Angelos. An evidentiary hearing was not held but counsel argued the issue of whether the boulder, which the Posts admitted placing, was actually within the confines of the forty-foot wide layout of Iveson Street. Both sides produced photographs purporting to show the location of the newly placed boulder. The Posts contend that they placed the boulder outside the limits of the way while the Angelos aver that the boulder encroaches on the way by approximately a foot and a half and that it and other smaller rocks placed there by the Posts will interfere with the use thereof by the Angelos and their contractors during the building of the house they are attempting to construct.

“Civil contempt is a means of securing to the aggrieved party the benefit of the court’s order.” Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501 , 565 (1997). In order to justify a finding of contempt, there must be a “clear and unequivocal command and an equally clear and undoubted disobedience.” Id.; Judge Rotenberg Educ. Ctr., Inc. v. Comm’r of the Dept of Mental Retardation (no. 1), 424 Mass. 430 , 443 (1997). The burden is on the party seeking enforcement of the court’s order to establish such disobedience of a command by a preponderance of the evidence. Id. “Civil contempt proceedings are ‘remedial and coercive,’ intended to achieve compliance with the court’s orders for the benefit of the complainant.” Furtado v. Furtado, 380 Mass. 137 , 141 (1980). Among the possible remedies after a finding of contempt are coercive conditional fines and an award of attorneys fees incurred by a party prosecuting a complaint for contempt.

This case, which is now over eleven years old, has been contentious from the start. Plaintiffs insist that none of the defendants, including the Angelos, have rights to use the streets in the vicinity of their land in Middleton. The court (Lombardi, J.) ruled otherwise after a two day trial in 2000 and again on a case stated basis in 2008, finding and ruling that the various parties, including the plaintiffs, defendants and interveners, own to the center line of the streets on which their properties abut and ordering specifically that plaintiffs are to take no steps to interfere with the rights of Preytis and the Angelos to maintain, pave and use the street leading to their property. Plaintiffs have entered their appeal of the judgment in the Appeals Court and also filed a motion in this court seeking a stay of the judgment pending appeal. That motion was denied in an Order dated July 24, 2008.

The Angelos seek a judgment that the Posts are in civil contempt of court by virtue of their recently and surreptitiously placing a boulder within the layout of Iveson Street, thereby violating the terms of the 2008 Judgment of this court. After reviewing the record and the arguments of counsel, I am not able to come to such a conclusion at this time. Plaintiffs contend, and I cannot disagree, that the exact location of Iveson Street was not determined in this case. Also, it appears that even if there is an encroachment, which I do not find, it is “de minimis” because it encroaches, at most, a foot and a half into what the Angelos claim is the layout and because it does not appear to interfere with passage over the street. Both sides produced photographs at the hearing, the Posts contending that they were only replacing a large stone which was at one time part of a stone wall extending into the street, the Angelos claiming that the newly placed boulder extends further than the old one did. In any event, I cannot at this time find that the Posts intentionally or deliberately violated the court order.

Having found that the Posts have not been guilty of contempt at this time, the court feels compelled to point out that their acts came perilously close to justifying such a finding. Two Judgments have entered in this court concluding that the Angelos and others have the right to use, maintain and pave Iveson Street. The Posts, obviously not pleased with this result, have filed a notice of appeal and a motion seeking a stay of that judgment. Since the stay has been denied, plaintiffs must rely on their appeal in their attempt to reverse that judgment. In the meantime, they must abide by the court order. The boulder which they recently placed in or near Iveson Street may remain in its present location while the appeal proceeds but no further rocks or stones may be placed there by plaintiffs or by anyone acting in their behalf.

Judgment to enter accordingly.

Charles W. Trombly, Jr.


Dated: July 25, 2008