MISC 02-281892

February 5, 2010


Trombly, J.


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This case is before the Court on the Plaintiff’s Complaint for Contempt filed February 25, 2009 and Defendant’s Motion for Attorneys’ Fees. The underlying action in this case was a complaint for declaratory judgment to establish the Plaintiff’s easement rights over property known and numbered as 82 and 86 American Legion Highway, owned of record by the Defendant, for the benefit of Plaintiff’s property known and number as 86R American Legion Highway (the Property), and for permanent injunction enjoining the Defendant from interfering with use of the claimed easement.

On August 8, 2008, the Court entered a Judgment in favor of the Plaintiff declaring that Plaintiff’s Property is benefited by the claimed easement, enjoining the Defendant from interfering with the Plaintiff’s use of the easement, and ordering the Defendant to remove any object which interferes with the Plaintiff’s use thereof. Defendant filed a timely appeal on September 2, 2008. [Note 2] Plaintiff filed a Motion to Enforce Injunction with the Land Court on November 28, 2008 and Defendant filed an opposition to that motion and a motion to stay the injunction pending appeal on December 18, 2008. After a hearing on the motion, the Court issued an Order on January 28, 2009 denying the motion to stay the injunction but also modifying the August Judgment by limiting the hours that the Plaintiff could access the right of way.

The Defendant filed a timely appeal of the January 28, 2009 Order and also filed a motion in the Appeals Court seeking a stay of the August 8, 2008 Order. That motion was denied by a single justice the Appeals Court on March 10, 2009. From August 8, 2008 until March 26, 2009, the Defendant was not in compliance with either the August 8, 2008 Judgment or the January 28, 2009 Order. After the Appeals Court denial of the motion to stay the injunction, the Defendant complied with the requirements of the Land Court.

On February 25, 2009, the Plaintiff filed a Complaint for Contempt. Trial on the complaint for contempt was held on August 4, 2009. The Court issued a Decision on the contempt complaint on August 27, 2009, finding the Defendant in contempt of the Court’s Orders. Trial on the damages portion of the contempt complaint was held on January 15, 2010.

After careful consideration of all of the evidence, the Court issued an Order today, ruling that Mr. White is entitled to compensatory damages in the amount of $5,000 and to attorneys’ fees in the amount of $19,820.00 for the Defendant’s contempt. The Court also ruled that Defendant is entitled to attorneys’ fees in the amount of $720.00.

In accordance with that Order, it is hereby:

ADJUDGED and ORDERED that the Defendant Amiff Housing Associates, L.P. was in contempt of the August 8, 2008 Judgment and January 28, 2009 Order from August 8, 2008 until March 26, 2009.

ADJUDGED and ORDERED that Plaintiff Balbino White is awarded damages and attorneys’ fees for the Defendant’s contempt in the total amount of Nineteen Thousand, One Hundred Dollars ($19,100.00), that amount to be paid by the Defendant, Amiff Housing Associates, L.P. within thirty days.

By the Court (Trombly, J.).


[Note 1] If not specifically defined herein, each term carries the same definition employed in the Order.

[Note 2] The August 8, 2008 Decision of the Land Court determining the existence of the easement and granting the permanent injunction was upheld by the Appeals Court on January 4, 2010.