MISC 06-327234

March 2, 2017

Essex, ss.



This is a long-standing dispute among neighbors who own residential properties in a subdivision in Boxford, governed by a homeowners association that had not been functional for many years before litigation began. The original case was heard by the court on cross-motions for summary judgment. Judgment entered February 11, 2008, declaring among other things, that Lisa White and Thayer White, Defendants in this contempt action, had rights to use certain trails within the subdivision for horseback riding and other recreational uses. Numerous contempt actions have been brought since 2008, by either the Whites or Mr. Gordbegli, Plaintiff in this contempt action. There also have been proceedings in district court, and both parties have involved the Boxford police from time to time. This court has conducted hearings for injunctive relief, as well as numerous status conferences, all flowing from the implementation of the original injunctive relief ordered by the court. Both with and without the assistance of counsel, the parties have also concurrently worked toward non-judicial resolution of their complicated and contentious dispute during the past few years, with some significant progress.

The current dispute involves a complaint for contempt brought by Mr. Gordbegli against the Whites (sometimes referred to as "the parties"), wherein Mr. Gordbegli seeks a declaration that the Whites' behavior is in contempt of certain orders issued by this court. After trial, this court hereby rules the Whites are not in contempt.

By way of context, the parties, and others, are members of the Johnson-Boxford Preservation Association (Association), established by a "Declaration of Covenants and Restrictions Running with the Land" (Declaration). Plaintiffs Lee D. Thompson, Elaine Hatfield-Thompson, Louis V. Ottaviano and Vilma D. Ottaviano initiated the original action on August 1, 2006, alleging the Whites (who were then relatively new owners of a house in the subdivision) were trespassing and committing a nuisance on their properties, and asking the court to declare the rights of the parties under provisions contained in the Declaration. A summary judgment decision issued on February 11, 2008, declaring the rights of the parties based on the recorded Declaration. The court held, among other things, that the Declaration created certain easements, including riding trails available to the Whites and all owners of the subdivision properties and the Declaration remained in effect. The court found the Whites' easement rights included the right to ride horses along the common trails (specifically the so-called "Perimeter Trail") shown on a sketch plan attached to the recorded Declaration (Sketch Plan).

On April 14, 2014, the Whites moved for injunctive relief, seeking to enjoin Gordbegli from obstructing the common trails where they crossed his property. The court's order on this motion, followed by various motions for reconsideration and modification, laid the foundation for the court's issuance of an "Order on the Parties' Cross-Motions for Reconsideration and Modification," issued October 27, 2014 (October Order). Through his complaint for contempt, Gordbegli alleges the Whites are in contempt of the October Order.

At issue is the Whites' access to and use of the Perimeter Trail, one of the easements created by the Declaration and shown as a dotted line on the Sketch Plan. [Note 1] A narrow section of Gordbegli's property extends east from the bulk of his lot along the Whites' property to Topsfield Road (sometimes referred to by the parties as the "dogleg"), and the Perimeter Trail is partially located over and within the dogleg. Gordbegli claims that while the Whites may use the Perimeter Trail, they cannot cross any unencumbered portion of his property to gain access to the Perimeter Trail under the October Order. The Whites' continued use of the Perimeter Trail following the October Order, in his view, required entering and crossing his property and thus constituted contumacious activity.

The Whites, on the other hand, argued that the unencumbered portion the Gordbegli Property does not run between the Perimeter Trail and the Whites' Property line. In other words, they argued that their property directly abutted the Perimeter Trial at least at one point, which is where they were accessing it following the October Order. As such, they were not crossing any portion of the Gordbeghli Property that is not already within the Perimeter Trail and expressly subject to easement rights of the Whites, as shown on the Sketch Plan without specification as to width or exact location.

Thus, the question at issue at the contempt hearing was whether the Whites' route from their property to the Perimeter Trail required them to traverse any portion of the Gordbegli Property that was not within the boundaries of the Perimeter Trail and, if so, was the Whites' behavior in contempt of the October Order. At the time the October Order was issued, there was no actual survey plan available to the court or the parties. All that had been available formally to the parties and the court was the Sketch Plan attached to the Declaration. At the court's urging, in order to inform the parties and the court as to the actual conditions on the ground, a survey plan was commissioned by the Association and provided to the parties and the court in October 2015 (Survey Plan).

A one-day trial was held August 23, 2016. Lisa White and Manochehr Gordbegli testified. Danielle Ondrick, one of the parties to the underlying action, also testified. Fifteen exhibits were entered in evidence and both parties filed post-trial briefs. Based on the agreed statement of facts, exhibits, stipulations, the credible testimony, and the reasonable inferences drawn therefrom, this court finds the following material facts: [Note 2]

1. Manochehr Gordbegli, as Trustee of the Manochehr Gordbegli Trust u/d/t dated July 24, 2009 (Gordbegli) is an individual residing at 63C Topsfield Road (Gordbegli Property) in Boxford. The Gordbegli Property is an unusually shaped "porkchop" lot that includes a fifty-foot wide "dogleg" extending approximately 1,250 feet to the east from the bulk of the lot to Topsfield Road.

2. Lisa White and Thayer White reside at 63B Topsfield Road (White Property).

3. Both the Gordbegli and White Properties are subject to the Declaration (Declaration) for the Johnson-Boxford Preservation Association (Association), recorded with the Essex South Registry of Deeds (Deeds) in Book 6648, at Page 261. A Sketch Plan, attached as Exhibit A to the Declaration, is recorded in Book 6648, at Page 274. The Gordbegli Property is shown as Lot 63C on the Plan. The White Property is shown as Lot 63B.

4. On June 6, 2014, this court issued an Order on the White's Motion for Injunctive Relief (June Order). The June Order, in relevant part, ordered the following:

a. "[The Whites] may not use the trail crossing Gordbegli's property until further order of this court, or the parties otherwise agree;" and

b. "[The Whites] may continue to use the common perimeter trail and, if necessary for safety or convenient passage, they may clear or remove any obstructions that block the common perimeter trail, whether they are naturally occurring or placed by other parties, without seeking permission to do so."

5. There were disagreements between the parties regarding what was meant by the June Order and, on October 27, 2014, this court issued the October Order, stating the court's intention "to preserve the status quo as much as possible." (emphasis added.)

6. The October Order reiterated the following language that had appeared in the June Order:

a. "[The Whites] may continue to use the common perimeter trail and, if necessary for safety or convenient passage, they may clear or remove any obstructions that block the common perimeter trail, whether they are naturally occurring or placed by other parties, without seeking permission to do so."

b. In addition, the court replaced the description of the area of Mr. Gordbegli's Property (as previously set forth in the June Order) subject to the June and October Orders with the following language:

"[The Whites] may not cross Mr. Gordbegli's property in order to access the common perimeter trail, specifically the narrow strip of Mr. Gordbegli's land abutting the northern boundary of the Whites' property. The Whites may still access the common perimeter trail via Common Drive or Topsfield Road."

7. On November 17, 2014, Gordbegli filed a Complaint for Contempt against the Whites.

Perimeter Trail

8. The Perimeter Trail is shown on the Sketch Plan as a dashed line extending around the perimeter of the subdivision.

9. The Whites made use of the Perimeter Trail before and after the October Order issued. [Note 3]

10. From October 27, 2014, to November 17, 2014, the Whites removed barriers to their use of the Perimeter Trail in two locations. [Note 4] The route used by the Whites to access the Perimeter Trail from their property existed on October 27, 2014.

11. A field survey of the segment of the Perimeter Trail as it runs over the dogleg of the Gordbegli Property was completed by Hancock Survey Associates, dated October 30, 2015. The plan, entitled "Exhibit Plan of Land Prepared for: Johnson Boxford Preservation Association" was drawn after an instrument survey by Hancock, conducted on October 28, 2015. See Ex. 10 (Survey Plan).

12. At the time of the October Order, the portion of the Perimeter Trail extending from Topsfield Road over the dogleg to the stone wall shown on the Survey Plan was not cleared.

* * * * *

A finding of contempt requires "clear and convincing evidence of disobedience of a clear and unequivocal command." In re Birchall, 454 Mass. 837 , 853 (2009). Civil contempt proceedings are both "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), quoting Cherry v. Cherry, 253 Mass. 172 , 174, (1925); see Mahoney v. Mahoney, 65 Mass. App. Ct. 537 , 540 (2006). The purpose of a civil contempt is "remedial," and the remedy fashioned is within the judge's discretion. Birchall, 454 Mass. at 847; Eldim, Inc. v. Mullen, 47 Mass. App. Ct. 125 , 129 (1999). It is intended to coerce a party into compliance with the court's order and to compensate the complainant for any losses sustained as a direct result of the alleged violation. Gianetti v. Thomas, 32 Mass. App. Ct. 960 , 961 (1992). The burden of proof falls on the complainant Mr. Gordbegli. Birchall, 454 Mass. at 852. [Note 5]

In this case, the record contains several orders that were issued in a condensed time frame, each seeking to provide clarity regarding language in the court's orders caused, in large part, by the imprecision of the Sketch Plan attached to the Declaration and the lack of an actual survey showing the location of the boundary lines between parties' properties and the location of the trails over which all subdivision owners have rights. In addition, and perhaps most importantly, there was no survey of existing conditions to advise the parties and the court regarding where the trails under use by the Whites and others actually existed on the ground, relative to the property boundaries. The Sketch Plan itself was a guide only in the sense that it expressed the intention of the parties to the Declaration, as it lacked exactness necessary to assist the court.

The October Order was issued specifically to clarify ambiguities in the June Order made evident to the court for the first time during a hearing held on August 1, 2014, on cross-motions for reconsideration. During the August hearing, counsel and the litigants made clear that the Whites were asserting their right to access the Perimeter Trail by crossing the dogleg portion of the Gordbegli Property, rather than their right to use other trails crossing the bulk of the Gordbegli Property. The court had also referenced its desire "to preserve the status quo as much as possible," a term that apparently added to the confusion between the parties, as they understood the "status quo" differently. Prior to the August hearing, the court understood the dispute regarding the Whites' use of trails across the Gordbegli Property to focus on the area described as the bulk of his lot, "specifically the trail crossing from the western corner of his lot . . . to the eastern corner, where it connects with the Common Drive, and whether [Mr. Gordbegli] could block the common perimeter trail with barriers or fencing." See Ex. 1 (October Order). As of the date on which the October Order issued, this court was aware of ongoing district court proceedings between the parties that included a restraining order then in effect. This court was concerned that it not issue any order which would potentially either force or encourage a violation of the terms of that restraining order inadvertently. The court has been concerned throughout the proceedings for the safety of the parties.

The Whites credibly expressed some of this confusion regarding the Perimeter Trail as depicted on the Plan at the contempt hearing. [Note 6] They also believed – again, credibly – that accessing the Perimeter Trail via the entry slightly west of the stone wall shown on the Survey Plan constituted the "status quo". [Note 7] Accessing the Perimeter Trail from this point appeared, to the Whites at least, as preserving the status quo because they were still using the access "via the common drive." Tr. 137: 8-15. The Whites may also have been confused due to discrepancies between the plan attached to the October Order and the subsequent Survey Plan, which aimed to provide further clarity and specificity as to where things were located on the ground. [Note 8] The Whites had used the Perimeter Trail a certain way (accessing it via an entry near the stone wall, among other entrance points) since they had acquired their property approximately ten years earlier. Thus, they believed preserving the status quo meant preserving their prior use.

Given that the court itself struggled to accurately convey its orders to the parties and required further clarification from the parties as to the issues presented, it cannot find that the Whites violated a "clear and unequivocal command." Further, this court expressly finds that there was no volitional "disobedience" by the Whites, and they were acting in accordance with their reasonable understanding of the meaning of the October Order. Accordingly, Mr. Gordbegli's complaint for contempt is DISMISSED, and the court awards no damages. [Note 9]

Counsel should confer and, if there is agreement, submit to the court their view as to what issues, if any, remain for determination by the court. If there is not agreement, they should submit separate letters or memoranda to the court. All submissions should be received by the court and served (by e mail or hard copy) not later than April 3, 2017. The court will review the submissions and contact counsel.


[Note 1] See fact paragraph 3, infra, for recording references.

[Note 2] Additional facts may be included in the discussion.

[Note 3] There is a depiction of the route used by the Whites at trial, shown in orange and yellow on Chalk A and in orange on Chalk B.

[Note 4] The Whites removed barriers in two locations. Mr. Gordbegli asserts there was only one location in which barriers were erected by him.

[Note 5] It is unsettled whether a clear showing of actual intent to disobey a court order is required to support a judgment of contempt. Hoort v. Hoort, 85 Mass. App. Ct. 363 , 367 (2014), citing O'Connell v. Greenwood, 59 Mass. App. Ct. 147 , 150–151 & n.3 (2003) (acknowledging that the question of the degree of intent that must be shown to support a judgment of contempt is unsettled). The term "disobedience" could include a concept of willfulness, but does not require it. Hoort, 85 Mass. App. Ct. at 367, n.8, citing Merriam-Webster's Collegiate Dictionary 360 (11th ed. 2005) (defining it as "refusal or neglect to obey") and Webster's Third New International Dictionary 652 (1993) (defining it as a "refusal to obey or negligence in obeying a command; violation or disregard of a rule or prohibition").

[Note 6] See Testimony of Lisa White, Tr. 130: 8-14: "[I]f the court had intended us not to use the [portion of the Perimeter Trail marked in orange] from the Common Drive, it would have been more clear to have said not to do that directly instead of just attaching the map without an explanation of what it was indicated to convey."

[Note 7] See Tr. 136: 6-12: "I am referring to the route the court said I could use, and the trail there, if I use that route, does not involve crossing over [the Gordbegli Property] because the trail touches [our] property. So if I stay on the trail, I'm not going over his property other than where I believe there is a legal easement."

[Note 8] See Tr. 106: 22 – 107: 20: "[T]he map labeled Chalk B [the Plan] . . . is in my opinion a difficult, small map. It was much smaller when it was drawn . . . . [O]nce we got the good map from Hancock [the Survey Plan], then we could actually see exactly where all these trails were with respect to each other . . . and the map that the court attached to the [October Order was] different than how a clarifying map would show where these things exist."

[Note 9] Damages are intended to compensate an injured party for actual losses sustained by a violation of a court