MISC 02-281892

August 27, 2009


Trombly, J.


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Plaintiff Balbino White filed this Complaint for Contempt on February 25, 2009, seeking to have Defendant Amiff Housing Associates, L.P. found in contempt of court and seeking also to have sanctions imposed against Defendant in the amount of $1,000.00 per day from the date of the Land Court’s Enforcement Order, coercive sanctions of $2,000.00 per day from the filing of the Complaint for Contempt, and attorney’s fees in the amount of $2,500.00.

Previously, Defendant filed an appeal of the Decision in the underlying action to the Appeals Court on September 4, 2008. On February 27, 2009, Defendant filed a Motion to Stay Permanent Injunction Pending Appeal in the Appeals Court, seeking to stay the lower court order pending the appeal. The Appeals Court (Duffly, J.) denied the motion on March 10, 2009.

A hearing on the Complaint for Contempt was held on March 27, 2009. On April 15, 2009, Defendant filed a Motion to Dismiss the Complaint for Contempt for failure to state a claim upon which relief can be granted, pursuant to Mass. R. Civ. P. 12(b)(6), defending that the Defendant is in full compliance with court order. Plaintiff opposed the motion on April 29, 2009. The court (Trombly, J.) issued an Order on June 15, 2009, denying the Defendant’s Motion to Dismiss.

Trial was held on August 4, 2009. [Note 1] Exhibits 1-6; 8-9; 10A-D; and 11-13 were admitted into evidence. In addition, at the request of the Plaintiff, the court takes judicial notice of the Complaint for Contempt. Testifying was Plaintiff Balbino White. The proceedings were limited to the issue of Contempt, leaving aside the potential issue of damages until the matter of contempt is determined.

After reviewing the record before the court, I find the following facts:

1. Plaintiff Balbino White is the owner of a parcel of real property and buildings, known as and numbered 86R American Legion Highway in the Dorchester section of Boston (Plaintiff’s Property).

2. Defendant Amiff Housing Associates, L.P. is the owner of two parcels of real property and buildings, known as and numbered 82 and 86 American Legion Highway in the Dorchester section of Boston (Defendant’s Property).

3. Plaintiff’s Property abuts Defendant’s Property to the Southeast.

4. Plaintiff Balbino White commenced the underlying action in this case on June 24, 2002, seeking declaratory judgment, pursuant to G.L. c. 231A, § 1, as to the rights of the parties in a “passageway” lying over the Defendant’s Property and seeking also a permanent injunction enjoining Defendant from interfering with Plaintiff’s use of the passageway.

5. Following a two-day trial and a view of the properties, on August 8, 2008, the court issued a Decision and Judgment, finding and ruling that the Plaintiff’s Property is benefited by an easement lying over the “passageway” for access to and from the public way, known as American Legion Highway. The Judgment enjoins Defendant, its agents, employees, and assigns “from taking any action to interfere with Plaintiff’s use of that easement” and orders it “to move or remove any gates, fences or chains which interfere with such use.”

6. On September 4, 2008, Defendant appealed the Decision to the Appeals Court.

7. On November 24, 2008, Plaintiff filed a Motion to Enforce Final Permanent Injunction with the Appeals Court. The Appeals Court (Katzmann, J.) issued an Order denying the motion without prejudice to bringing the motion in the trial court. On December 3, 2008, Plaintiff filed a Motion to Enforce Final Permanent Injunction in this court. Defendant opposed the motion on December 18, 2008, and filed a Cross-Motion to Stay Injunction Pending Appeal. The motions were argued before the court on December 19, 2008. There the parties appeared to be interested in compromise by which plaintiff’s use of the easement would be limited to certain times until the appeal is resolved. The court issued an Order on January 28, 2009, allowing in part and denying in part the motions, ordering that during the pendency of the appeal, Plaintiff is limited to use of the easement during the periods of 8:30 A.M. – 10:00 A.M. and 4:30 P.M. – 6:00 P.M., each day and ordering also that “during that time defendant must remove any and all obstacles from the easement, including but not limited to the chain closing the north entrance and the segment of fence closing the south entrance …” (2009 Order).

8. On February 6, 2009, Defendant appealed the 2009 Order to the Appeals Court.

9. On February 27, 2009, Defendant filed a Motion to Stay Permanent Injunction Pending Appeal in the Appeals Court, seeking to stay the permanent injunction ordered by this court in the Judgment, pending the appeal. The Appeals Court (Duffly, J.) denied the motion on March 10, 2009.

10. At all times relevant prior to March 26, 2009, Defendant maintained a chain closing the north end of the easement, abutting American Legion Highway and a segment of chain link fence closed the south end of the easement abutting the Plaintiff’s Property.

11. Subsequent to the Order of the Appeals Court, Defendant hired a contractor to open the portion of the fence barring the Plaintiff’s access to the easement. By letter dated March 26, 2009, Defendant, by its counsel, notified Plaintiff, by his counsel, that the fence was open and that the Defendant was in compliance with the 2009 Order.


In order to establish a complaint for a civil contempt, the complainant must demonstrate that there was “a clear and unequivocal command and an equally clear and undoubted disobedience.” Nickerson v. Dowd, 342 Mass. 462 , 464 (1961); Town of Manchester v. Dep’t of Evtl. Quality Eng’g, 381 Mass. 208 , 214 (1980); United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35 , 36 (1972). The purpose of civil contempt proceedings is to compel compliance with a court order, for the benefit of the aggrieved complainant. Sodones v. Sodones, 366 Mass. 121 , 129-30 (1974); Cherry v. Cherry, 253 Mass. 172 , 174 (1925). While punitive fines are reserved for criminal contempt convictions alone, the court in a civil contempt proceeding is permitted to impose compensatory fines for the actual loss caused by the contemptible action and attorney’s fees and costs. Town of Manchester, 381 Mass. at 215 (and cases cited); Allen v. School Committee of Boston, 400 Mass. 193 , 195 (1987); Giannetti v. Thomas, 32 Mass. App. Ct. 960 , 961 (1992) (“‘[j]udicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained.’ United States v. United Mine Workers, 330 U.S. 258, 303-304 (1947)”); see also Alves v. Braintree, 341 Mass. 6 (1960); Schenectady, Inc. v. Gould, 359 Mass. 269 (1971).

As an initial matter, Defendant argues that civil contempt is merely remedial and coercive, for the purpose of achieving compliance with court orders, and therefore, because Defendant is now in compliance with the 2009 Order, the present proceeding is moot. While it is true that where a previously non-complying party finally obeys a court order prior to conviction in a contempt proceeding, the coercive function of the proceeding has been realized and is no longer necessary, and, punitive fines not applying in civil contempt, the complaint is moot. However, to the extent that there are actual losses caused by the contemptible action prior to the compliance, the remedial function of the proceedings can and should be employed for the benefit of the complainant.

In the present case, in both the August 8, 2008 Judgment and the January 28, 2009 Order, the court ordered the Defendant to remove all obstacles which interfere with the Plaintiff’s use of the easement, including the fence and chain. Despite these orders, the Defendant maintained the chain closing the north end of the easement and the segment of chain link fence closing the south end of the easement. It was not until some time after March 10, 2009, that Defendant hired a contractor to open the portion of the fence barring the Plaintiff’s access to the easement and March 26, 2009, when the fence was open and Defendant was in compliance with the 2009 Order. Thus, it was over twelve months before the Defendant took any action to comply with the permanent injunction, and almost two months after the compromising 2009 Order before the Defendant was in compliance.

Defendant states that following the Judgment, it made diligent efforts which culminated in its compliance with the 2009 Order. Defendant notes its steadfast concern for the safety of its residence, especially that of children living on the Defendant’s Property. The court is sympathetic to the concern; however, until it is revoked or reversed, a court order, in effect, must be observed by the parties implicated. Wireless Specialty Aparatus Co. v. Priess, 246 Mass. 274 , 277 (1923); Iving & Casson-A.H. Davenport Co. v. Howlett, 229 Mass. 560 , 563 (1918). There was no ambiguity concerning the court’s order and Defendant’s obligation to comply, despite the rationality or immediacy of the Defendant’s concerns. Moreover, compliance with the order was not impossible but simple, taking about two weeks in the end from start to finish. Defendants request for stay in this court and the Appeals Court, while within its right, did not excuse compliance, and Defendant failed to comply for well beyond any reasonable time.

Defendant argues also that the Judgment and 2009 Order are not “clear and unequivocal” because they do not specify a date by which the stated obstacles were required to be removed. While this is technically true, Defendant’s argument is not only clearly disingenuous but galling. I do not believe that Defendant honestly found it prudent to disregard the permanent injunction issued in this court’s Judgment, until such time as was convenient for it to comply, simply because no deadline was specified. The Judgment issued in this case, determined the issue of the easement rights and permanently enjoined Defendant from interfering with those rights from that day forward. A court judgment represents a finality of the adjudication of the merits of the underlying case at the trial level. Clearly it was expected of the Defendant that it would comply with that adjudication within a reasonable time. Defendant had more than a reasonable time in which to comply with that injunction and failed to do so.

Defendant argues lastly that the 2009 Order modified and, thereby, invalidated the permanent injunction contained in the Judgment. Firstly, even prior to the 2009 Order, Defendant was not in compliance with the Judgment for almost five months. This is well-beyond any reasonable notion of a reasonable time to remove a chain and chain link fence from a nine-foot-wide right of way. Secondly, the 2009 Order did modify the permanent injunction, but did so merely by limiting the time when Defendant is required to have the obstacles removed from the easement to two, one-and-a-half-hour periods each day. The 2009 Order constitutes a partial stay on the permanent injunction pending the resolution of the appeal of the underlying case; it in no way invalidates the permanent injunction. Defendant continued its noncompliance with the permanent injunction for almost two months following the 2009 Order. Accordingly, I rule that Defendant’s actions constitute contempt of the permanent injunction of the Judgment, and the January 28, 2009 Order.


For the foregoing reasons, this court concludes that Defendant has acted in contempt of the Judgment and January 28, 2009 Order. The issue of damages incurred by Plaintiff as a result of the contempt must now be determined. A trial on that issue of damages is scheduled for November 2, 2009, at 10:00 A.M. at the Land Court. In preparation, all discovery must be completed on or before October 1, 2009.

Charles W. Trombly, Jr.


Dated: August 27, 2009


[Note 1] At trial, Attorney for the Defendant expressed her surprise to the court that the day’s proceeding was to be a trial, having come to the courthouse prepared for a second hearing on the Complaint for Contempt, prior to trial. Although it is true that the Order of June 15, 2009 scheduled the contempt action for “hearing” on August 4, 2009, the required preliminary hearing on the Complaint for Contempt had been previously held on March 27, 2009, and it was evident to the parties and the court that the August 4, 2009 proceeding was to be the trial on the merits. Moreover, Defendant’s Attorney was aware of the potential misconception, because she contacted the court prior to August 4 to inquire as to the purpose of the proceeding and was informed that trial was to be held.

Regardless, on August 4, 2009, upon inquiry, Defendant’s Attorney stated only that in preparation for trial she would have conducted discovery on the issue of damages. Therefore, the trial was limited to the matter of the contempt and the matter of damages set aside for the time being.