This action was commenced by plaintiff/petitioner, Lorraine Roy on September 24, 1998, seeking to partition by sale, pursuant to G.L. c. 241, § 1, of certain parcels of real property in Billerica.
On January 20, 2006, the parties reached a settlement agreement and filed an agreement for judgment. The Court (Trombly, J.) issued a final Judgment upon consent on March 6, 2006.
On January 3, 2007, defendants filed a motion to enforce the Judgment. Plaintiff opposed the motion on January 9, 2007, and simultaneously filed a motion to dismiss. On January 11, 2007, defendants filed a response to plaintiffs opposition and motion to dismiss. The motions were argued before the Court the same day and taken under advisement. The Court issued an Order on January 30, 2007, allowing the defendants motion to enforce the Judgment, ruling that the settlement agreementincorporated by the Judgmentincludes certain conveyances between plaintiff and defendants and, therefore, implicitly obligates certain purchase and sale agreements concerning the properties entered into by the parties, thereafter.
On January 8, 2008, plaintiff filed a complaint for contempt. On June 18, 2008, defendants filed an answer to the complaint for contempt. The complaint for contempt was heard on August 14, 2008, and is the matter presently before the Court.
After reviewing the record before the Court, I find that the following facts:
1. As a result of that Judgment, Lorraine C. Roy was the owner of a parcel of land, indicated as Parcel 28 on a plan titled The Pines and recorded at the Billerica Registry of Deeds in Book 30, page 13 (the Pines Plan).
2. Lorraine C. Roy is the owner of a parcel of land indicated as Parcel 25 on the Pines Plan
3. Michelle Churchill is the owner of a parcel of land indicated as Parcel 27-2 on the Pines Plan.
4. Mark Roy is the owner of a parcel of land, indicated as Parcel 76 on the Pines Plan.
5. On January 20, 2006, Lorraine C. Roy entered into a purchase and sale agreement with Robert Murphy and Raymond Cook, as trustees of the Shawsheen Woods Realty Trust, for Parcel 28.
6. On January 20, 2006, Lorraine C. Roy entered into a purchase and sale agreement with Margaret Fedus for Parcel 25.
7. On January 20, 2006, Garry Roy, Stephen Roy, Mark Roy, and Michelle Churchill entered into a purchase and sale agreement with Kerry Kelechian for Parcel 27-2
8. On January 20, 2006, Mark Roy entered into a purchase and sale agreement with Elizabeth Carvalho for Parcel 76.
9. Each of these agreements is contingent on the buyer obtaining all necessary permit and approvals from the Town of Billerica for the construction of a new single-family dwelling on the premises.
10. The condition requires buyer to have made application for such permits within six (6) months from the date of the execution of the agreement.
11. Each of these agreements contained the phrase time is of the essence.
12. On June 1, 2006, a pre-application for a building permit concerning each of the parcels was submitted to the Conservation Commission of the Town of Billerica for signature.
13. The commission signed the pre-application but noted that Parcels 25, 27-2, and 72 may require an order of conditions.
14. Defendant also submitted the pre-application to the Tax Collector, who signed on June 22, 2006.
15. Defendant also submitted the pre-application to the Engineering Department, which it returned on August 7, 2006, requesting a road profile plan.
16. On June 26, 2006, defendant hired a firm in order to obtain an order of conditions.
17. On June 26, 2006, defendant hired NCFS Consultants to do a wetland study in order to delineate the edge of the wetland boundary on the properties.
18. On July 18, 2007, the Zoning Board of Appeals of the Town of Billerica issued a variance for the construction of a single-family dwelling concerning Parcel 28.
19. Subsequently, Robert Murphy and Raymond Cook, as trustees of the Shawsheen Woods Realty Trust purchased Parcel 28.
20. On July 23, 2008, defendant submitted an ANRAD Plan of the properties to the Conservation Commission of the Town of Billerica for approval.
21. On October 22, 2007, defendant submitted a request for determination application to the Conservation Commission for a public hearing.
22. The buyers have not applied for any building permits concerning Parcels 25, 27-2, or 72.
Civil Contempt is a remedial and coercive measure, intended to achieve compliance with the courts orders . and to secure the benefit of the orders to the aggrieved party. Furtado v. Furtado, 380 Mass. 137 , 141 (1980); Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501 , 565 (1997). In determining whether a party is in contempt of Court, there must be a clear and unequivocal command and an equally clear and undoubted disobedience. Demoulas, 424 Mass. at 565, quoting Nickerson v. Dowd, 342 Mass. 462 , 464 (1961); Judge Rotenberg Educ. Ctr., Inc. v. Commr of the Dept of Mental Retardation (no. 1), 424 Mass. 430 , 443 (1997). The burden is on the party seeking enforcement of the Courts order to establish such disobedience of a command by a preponderance of the evidence. Demoulas, 424 Mass. at 565. Where the Court finds contempt, a fine may be imposed upon those acting in contempt to induce compliance with a court order. See Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407 , 414 (1992); Labor Relations Commn. v. Fall River Educators Assn, 382 Mass. 465 , 476 (1981); Oakham Sand & Gravel Corp. v. Town of Oakham, 7 LCR 275 (1999) (Misc. Case No. 237336) (Lombardi, J.).
In the instant case, plaintiffs argue that defendants have not fulfilled their obligations under the purchase and sale agreements concerning the properties, because they have not acted diligently in obtaining the necessary permits from the Town of Billerica. Plaintiff entered into a purchase and sale agreements with three individuals for the three properties, whom plaintiff alleges are agents of William Cook. The purchase of the property in each of these agreements is conditioned on the issuance of permits for the construction of single-family dwellings on the properties. While there appears to be some lack of efficiency on the part of defendants in obtaining permits, this inaction is not so egregious as to reach the standard of undoubted disobedience. Moreover, I am not convinced that the properties even qualify for such permits to construct single-family dwellings, given their proximity to protected wetlands. In addition, defendants allege that plaintiff has hindered the efforts to provide sufficient information to various town departments in the process of obtaining permits. Accordingly, I rule that the defendants actions under their obligation of the purchase and sale agreements are not so lacking as to constitute a violation of the Courts Judgment.
For the foregoing reasons, this Court concludes that the defendants have not violated the Judgment issued by the Court on March 6, 2006. The defendants inaction in this regard is not sufficient to constitute contempt of court. Accordingly, the Complaint for Contempt is hereby DISMISSED.
Judgment to issue accordingly.
Charles W. Trombly, Jr.
Dated: March 5, 2009