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17-P-355 Appeals Court
COMMERCIAL WHARF EAST CONDOMINIUM ASSOCIATION vs. BOSTON BOAT
BASIN, LLC, & others.1
No. 17-P-355.
Suffolk. November 13, 2017. - July 10, 2018.
Present: Kinder, Desmond, & Sacks, JJ.
Trust, Public trust. Department of Environmental Protection.
License. Due Process of Law, Commonwealth's interest in
tidelands. Administrative Law, Agency's authority. Real
Property, Restrictions, License. Land Court. Practice,
Civil, Findings by judge, Contempt. Estoppel. Judicial
Estoppel.
Civil action commenced in the Land Court Department on July
7, 2006.
The case was heard by Keith C. Long, J., and a complaint
for contempt, filed on September 8, 2006, also was heard by him.
1 The only other defendant appearing in this appeal is
Charles Lagasse, individually and as manager of Boston Boat
Basin, LLC. The additional defendants in the Land Court were
Yovette Mumford, individually and as a member of MGM Commercial
Wharf, LLC; MGM Commercial Wharf, LLC; Boston Yacht Haven
Marina, LLC; Commercial Wharf Marina, LLC; and Garron Markey,
individually and as manager of MGM Commercial Wharf, LLC. These
defendants were subject to the judgment entered in the Land
Court but did not appeal.
2
Patrick P. Dinardo for Boston Boat Basin, LLC, & another.
John M. Allen (William A. Zucker also present) for the
plaintiff.
SACKS, J. The defendants Boston Boat Basin, LLC, owner of
an inn and marina on Boston harbor, and its manager (together,
Boston Boat), appeal from a Land Court judgment ordering Boston
Boat to comply with certain property use restrictions -- agreed
to by one of Boston Boat's predecessors in title -- that benefit
an abutter, plaintiff Commercial Wharf East Condominium
Association (CWECA). On appeal, Boston Boat presses its attempt
to cast off these restrictions on the ground that they
impermissibly "limit the use of [its] marina and inn almost
exclusively to private clients" and "restrict the public's
ability to enjoy Boston Harbor." Boston Boat claims that the
restrictions thus violate the public trust doctrine, which, in
general terms, protects public rights in "tidelands," i.e.,
"present and former submerged lands and tidal flats lying below
the mean high water mark," G. L. c. 91, § 1, as amended by St.
1983, c. 589, § 21, unless those right are properly
relinquished.2 See Arno v. Commonwealth, 457 Mass. 434, 436,
2 Tidelands include both "Commonwealth tidelands" and
"private tidelands." G. L. c. 91, § 1. "Commonwealth
tidelands" are defined as "tidelands held by the commonwealth in
trust for the benefit of the public or held by another party by
license or grant of the commonwealth subject to an express or
implied condition subsequent that it be used for a public
3
455-456 (2010). Boston Boat also appeals from the judge's
finding that it was in contempt of a preliminary injunction
earlier obtained by CWECA to enforce the restrictions against a
predecessor in title.
We affirm the judgment requiring compliance with the
restrictions as the judge interpreted them. We conclude,
however, that the preliminary injunction did not apply to Boston
Boat. Therefore, the contempt finding cannot stand.
Background. We draw our description of the case largely
from the judge's detailed decision. Except as to the contempt
claim, the pertinent facts are undisputed.
1. Prior proceedings. Boston Boat owns and operates an
inn and marina (the locus), known as Boston Yacht Haven, at the
seaward end of Commercial Wharf on Boston harbor, on or over
Commonwealth tidelands. See note 2, supra. Boston Boat holds a
license under G. L. c. 91, the Waterways Act administered by the
Department of Environmental Protection (the department), to use
the locus. The sole land access is by easement over the
property of CWECA, an association of owners of certain
condominiums located at the landward end of the wharf.
purpose." Ibid. "Private tidelands" are defined as "tidelands
held by a private party subject to an easement of the public for
the purposes of navigation and free fishing and fowling and of
passing freely over and through the water." Ibid.
4
In 2006, CWECA filed this suit against the locus's prior
owner of record and its affiliates (the prior owners3) to enforce
certain restrictions on the use of the locus. CWECA obtained a
preliminary injunction requiring the prior owners to comply with
those restrictions as the judge interpreted them.4 In 2009,
CWECA obtained a partial summary judgment ruling that rejected
the prior owners' claim that the restrictions violated the
public trust doctrine, and reiterated the proper interpretation
of the restrictions, leaving the issue of damages for trial.
Also in 2009, the prior owner of record filed for bankruptcy,
and the mortgagee bank foreclosed. The purchaser at the
foreclosure auction sold the locus to Boston Boat in 2010.
After some inconclusive procedural skirmishing over whether
Boston Boat should be made a defendant in this action, CWECA
filed in July of 2011 a contempt complaint asserting that Boston
Boat was using the locus in violation of the 2006 preliminary
injunction. That injunction remained in effect but had not been
3 We use the phrase "prior owners" to refer to the owner of
record, MGM Commercial Wharf, LLC, and the affiliated persons
and entities listed in note 1, supra, other than Lagasse.
4 The injunction was later clarified and extended in ways
not relevant here, and a single justice of this court denied the
prior owners' petition for relief from the injunction. Also,
the prior owners, one of which then held the license, moved to
join the department as a necessary party. The department did
not respond to the motion, and it was denied.
5
made permanent. CWECA subsequently amended its underlying
complaint to add Boston Boat as a party and to seek declaratory
and injunctive relief against Boston Boat regarding the validity
and interpretation of the restrictions. In December of 2011,
the judge held a trial on both the underlying and contempt
complaints. Only CWECA and Boston Boat (and not the prior
owners) participated in the trial.
In December of 2016, the judge issued a decision5 (1)
rejecting Boston Boat's claim that the restrictions interfered
with public trust rights and (2) finding Boston Boat in contempt
of the 2006 preliminary injunction. The resulting judgment
required Boston Boat to comply with the restrictions, as the
judge interpreted them, and which we now describe.
2. The restrictions. The restrictions on Boston Boat's
use of the locus stem from three sources: conditions on an
access easement;6 a zoning variance and permit limiting the
5 The record does not explain the passage of time between
the trial and the decision.
6 Under an easement recorded in 1978, the owner of the locus
has a nonexclusive right to pass and repass to and from the
locus, on foot or by vehicle, over the condominium parking and
driveway areas now owned by CWECA, subject to the right
(subsequently conveyed to CWECA) to manage and control those
areas and collect fees for their use. The easement derives from
the one at issue in Commercial Wharf E. Condominium Assn. v.
Waterfront Parking Corp., 407 Mass. 123 (1990). The locus is
identified as Lot 1 in that decision. Id. at 126-127.
6
number of parking spaces at the locus;7 and, most significantly,
a 2003 settlement agreement between CWECA and one of Boston
Boat's predecessors in title, the developer of the locus (the
2003 agreement).8 The 2003 agreement, which resolved a suit by
CWECA against the developer, encumbered and ran with the locus
for the benefit of CWECA and was duly recorded. As summarized
and interpreted by the judge, the agreement included
restrictions that:
"(1) regulate deliveries and parking at the [i]nn [and]
[m]arina, (2) prohibit its use by ferries, party, cruise,
charter, or excursion boats, boats that sell alcoholic
beverages, and boats that permit or provide gambling or
gaming activities except for private, social games with no
more than six participants, (3) prohibit its use as a
'function hall,' and (4) prohibit its use for 'social
events, such as, but not limited to, weddings, bar
mitzvahs, school dances or holiday parties,' except for up
to four 'special events' per year, open only to 'privately
invited guests or narrowly targeted audiences,' for which
[CWECA] must be given at least thirty-days prior notice."
These are the restrictions that Boston Boat sought to void as
inconsistent with the public trust doctrine.
7 In 1997, a developer, in order to reconstruct and expand
the marina facilities at the locus, sought and obtained a
variance and conditional use permit from the Boston board of
appeal. The decision granting the permit provided that "[s]ix
parking spaces will be provided on the pier for transient and
employee parking related to marina services." The permit itself
is not in the record. The judge treated the six-parking-space
provision as binding.
8 The 2003 agreement incorporated several documents and was
amended in 2005. For convenience we refer to these documents
collectively as the 2003 agreement.
7
3. The c. 91 license. In 1997, the department issued to
the developer a thirty-year c. 91 license for the locus. Boston
Boat succeeded to that license in 2010.9 The license authorized
construction and maintenance of a pier, marina service building,
and float system, with such structures to "be limited to the
following uses: to provide a public recreational boating
facility; public access to navigable waters; and accessory uses
to the marina including a restaurant primarily serving marina
patrons, a marine chandlery, office, crew quarters, vehicular
circulation and parking." Notably, the license contained a
"special condition" that provided in pertinent part:
"In partial compensation for the private use of structures
on Commonwealth tidelands, which interferes with the rights
of the public to use such lands, the [l]icensee shall allow
the public to pass on foot, for any purpose and for 24
hours per day, on the proposed pier . . . . To the extent
that the [l]icensee has the right to allow the public to
pass across Commercial Wharf to its proposed pier pursuant
to the [easement], the [l]icensee shall allow the public
such a right of passage. . . . In no event shall the
[d]epartment require the [l]icensee to provide access
across Commercial Wharf if the licensee does not have the
legal right to provide such access."
The license also included numerous "standard" conditions, many
of them also imposed by c. 91 itself, including provisions (1)
confirming the department's authority to control changes in the
9 See 310 Code Mass. Regs. § 9.23 (1996) ("a valid [c. 91]
license shall run with the land").
8
use of the licensed locus;10 (2) describing generally the nature
of the public rights protected;11 and (3) disclaiming any intent
to infringe on the rights of property owners other than the
licensee.12
Discussion. 1. Authority to enforce public trust rights.
We now come to Boston Boat's claim that the restrictions agreed
to by its predecessors in title unduly restrict public access to
and use of its waterfront locus, and therefore violate the
public trust doctrine and are void. The judge, seeing no such
10Condition 3 provides in part that "[a]ny change in use
. . . of any structure . . . authorized herein shall require the
issuance by the [d]epartment of a new [w]aterways
[l]icense. . . . Any unauthorized substantial change in use
. . . shall render this [w]aterways [l]icense void." See G. L.
c. 91, § 18. Condition 4 provides in part that the license
"shall be revocable by the [d]epartment for noncompliance with
the terms and conditions set forth herein." See id. §§ 15, 18.
11Condition 9 provides in part that, because the license
authorizes structures on "Commonwealth [t]idelands," the
licensee "shall not restrict the public's right to use and pass
freely, for any lawful purpose, upon lands lying seaward of the
low water mark. Said lands are held in trust by the
Commonwealth for the benefit of the public. . . . No
restriction on the exercise of these public rights shall be
imposed unless otherwise expressly provided in this license."
See G. L. c. 91, § 1.
12Condition 6 provides that nothing in the license "shall
be construed as authorizing encroachment in, on, or over
property not owned or controlled by the [l]icensee, except with
the written consent of the owner or owners thereof." See G. L.
c. 91, § 15. The license also states: "Nothing in this license
shall be so construed as to impair the legal rights of any
person." See id. § 17.
9
impact on public rights, rejected this claim. We likewise
reject it, but on a different ground: Boston Boat had no
authority in the first place to seek judicial enforcement of
public trust rights in this private litigation.13
"Only the Commonwealth, 'or an entity to which the
Legislature has delegated authority expressly, may act to
further public trust rights.'" Moot v. Department of Envtl.
Protection, 448 Mass. 340, 347 (2007) (Moot I), S.C., 456 Mass.
309 (2010) (Moot II), quoting from Fafard v. Conservation Commn.
of Barnstable, 432 Mass. 194, 197 (2000). Accord Arno, 457
Mass. at 451. The primary entity to which the Legislature has
delegated this authority is the department, as administrator of
c. 91, which "generally is viewed as an encapsulation of the
Commonwealth's public trust authority and obligations."14 Arno,
457 Mass. at 454, quoting from Fafard, 432 Mass. at 200 n.11.
"[T]he Legislature has designated [the department] as the agency
13The judge's conclusion on the merits that the
restrictions did not interfere with public trust rights was not
expressly incorporated in the judgment. Accordingly, although
we reject Boston Boat's claim at the threshold rather than on
the merits, no amendment to the judgment is necessary.
14The court has noted, however, that c. 91, "the Waterways
Act[,] is not necessarily coextensive with the public trust
doctrine"; "certain aspects of the Legislature's public trust
authority may not be contained in the Waterways Act and, indeed,
may never have been recodified" since the colonial era. Arno,
457 Mass. at 454 n.22, citing Boston Waterfront Dev. Corp. v.
Commonwealth, 378 Mass. 629, 634-635 (1979).
10
charged with responsibility for protecting public trust rights
in tidelands through the c. 91 licensing program." Navy Yard
Four Assocs., LLC v. Department of Envtl. Protection, 88 Mass.
App. Ct. 213, 218 (2015), quoting from Alliance to Protect
Nantucket Sound, Inc. v. Energy Facilities Siting Bd., 457 Mass.
663, 678 (2010). In administering c. 91, the department must
"ensur[e] that the tidelands are utilized only for water-
dependent uses or otherwise serve a proper public purpose."
G. L. c. 91, § 2, as amended by St. 1983, c. 589, § 22.
The court has enforced the express delegation principle
strictly. Thus, in Fafard, where there was no statutory
delegation to a town or its conservation commission of authority
to enforce public trust rights, the commission could not
prohibit landowners from building a pier on the basis that the
commission viewed the pier as conflicting with such rights.
Fafard, 432 Mass. at 195-196, 197-198, 199 & n.10.
Similarly, in Moot I, the court held that the department
itself, despite its broad c. 91 responsibilities, could not
issue a regulation exempting landlocked tidelands from c. 91
licensing requirements, because the Legislature had not
expressly authorized such a relinquishment of public rights.
Moot I, 448 Mass. at 347, 349. The court emphasized that c. 91
"sets out to 'preserve and protect,' under the department's
watch, the public's rights in tidelands," id. at 347, and "[t]he
11
department has no authority to forgo [that] responsibility . . .
whether for administrative convenience, conservation of the
department's resources or any other laudable agency reason."
Id. at 350. Nor was the court willing to step into the
department's shoes and decide for itself whether the project at
issue satisfied the "proper public purpose" criterion of c. 91.
"[I]t is not [the court's] role to determine whether the
proposed . . . project meets that statutory requirement."15 Id.
at 350-351.
And in Arno, the court held that the Attorney General and
the Land Court had no authority to relinquish public trust
rights through land registration proceedings. Arno, 457 Mass.
at 451-453. Although the Attorney General had "expressly waived
any such rights" in a certain parcel during 1922 registration
proceedings, id. at 436, the waiver was invalid, because the
land registration statutes did not "contain[] an express
delegation, to the Land Court or to the Attorney General, of the
Legislature's power to relinquish the public's rights in
tidelands." Id. at 451.
15In response to the Moot I decision, the Legislature
amended c. 91 to provide, among other things, that "[n]o
license shall be required under this chapter for fill on
landlocked tidelands, or for uses or structures within
landlocked tidelands." G. L. c. 91, § 18, as amended by
St. 2007, c. 168, § 6. The court upheld the validity of this
amendment in Moot II, 456 Mass. at 314.
12
Here, Boston Boat purports to seek to enforce public trust
rights, by asking the Land Court to invalidate use restrictions
(agreed to by a predecessor in title) that assertedly infringe
on such rights. But Boston Boat is not "an entity to which the
Legislature has delegated authority expressly . . . to further
public trust rights.'" Moot I, 448 Mass. at 347, quoting from
Fafard, 432 Mass. at 197. Nor does Boston Boat point to any
statute authorizing the Land Court, in a suit between private
parties to enforce property use restrictions, to invalidate such
restrictions as inconsistent with public trust rights. Given
the Supreme Judicial Court's consistent and strict enforcement
of the express delegation requirement, we reject the argument
that the proper extent of public trust rights in a particular
locus may be determined in private litigation such as the
present case.16
In light of the department's preeminent responsibility in
enforcing public trust rights through the c. 91 licensing
16There is nothing to the contrary in Maslow v. O'Connor,
93 Mass. App. Ct. 112 (2018), where we held that the rights of
certain property owners to use a preexisting easement to travel
the full length of a private way ending in tidelands were not
impaired by a c. 91 license authorizing abutters to deposit fill
at the end of the way. Id. at 117-118. The license itself
disclaimed any such effect on private rights. Id. at 116.
Here, in contrast, Boston Boat seeks to use the public trust
doctrine embodied in c. 91 as a weapon to invalidate CWECA's
private rights.
13
process, the department is in the best position to assess claims
such as Boston Boat's. As should be evident from our summary,
supra, of some of the relevant conditions of Boston Boat's c. 91
license, the department has already considered, at least as a
general matter, not only the proper balance between, but also
the possibility of conflicts between, private rights and public
trust rights. The license authorizes Boston Boat to make
specified uses of structures on Commonwealth tidelands,
including "a public recreational boating facility" and "public
access to navigable waters" as well as "accessory uses to the
marina including a restaurant primarily serving marina patrons,
a marine chandlery, office, crew quarters, vehicular circulation
and parking." The license recognizes that Boston Boat will make
some "private use" of the locus, and that in "partial
compensation" therefor, Boston Boat must allow public access on
foot to its pier, unless it is determined that Boston Boat "does
not have the legal right to provide such access."
Plainly, the license does not invalidate every restriction
that might somehow diminish the public's ability to use the
locus, as Boston Boat seems to contend. Rather, licensure
reflects a balance; it requires the department to determine that
the pier and other structures on the locus "serve a proper
public purpose and that said purpose shall provide a greater
public benefit than public detriment to the rights of the public
14
in said lands." G. L. c. 91, § 14, as amended by St. 1983,
c. 589, § 24; G. L. c. 91, § 18.17 See also id., § 18B.
We presume that the license as issued in 1997 met this
standard. See James Constr. Co. v. Commissioner of Pub. Health,
336 Mass. 143, 146 (1957) ("the actions of public officials are
presumed to be regular and lawful" and to have "followed the
procedure prescribed by the Legislature"); LaPointe v. License
Bd. of Worcester, 389 Mass. 454, 459 (1983). We leave it to the
department to determine whether Boston Boat is currently using
the locus in accordance with the license and, if not, how best
to proceed in order to vindicate public rights.18 Given the
department's special role in this area, Boston Boat may not
obtain judicial invalidation of restrictions on the use of the
17This standard applies regardless whether the licensed use
is "water-dependent," a point on which the parties differ.
Other standards and procedures vary according to whether the use
is water-dependent. See G. L. c. 91, § 14 (water-dependent
uses); id. § 18 (nonwater-dependent uses).
18That the department may lack authority under c. 91 to
adjudicate competing private property claims, see Tindley v.
Department of Envtl. Quality Engr., 10 Mass. App. Ct. 623, 625-
626 (1980), does not mean the department lacks authority to
determine whether a private property right, particularly one
created after issuance of a c. 91 license, is inconsistent with
and may affect the status of that license. The locus here
occupies "Commonwealth tidelands," defined in part as tidelands
"held by another party by license or grant of the commonwealth
subject to an express or implied condition subsequent that it be
used for a public purpose." G. L. c. 91, § 1. See note 11,
supra.
15
locus by asserting, in private litigation, their inconsistency
with the public trust doctrine.19
2. Contempt. The judge found Boston Boat in contempt of
the 2006 preliminary injunction, entered against the prior
owners but never made permanent. The judge based the finding on
Boston Boat's having allowed a separate entity to hold an event
at the locus on June 21, 2011, before Boston Boat was a party to
the case.20 The judge found that the event, a "boats, burritos
and beer" promotion conducted by a private marketing firm,
violated the preliminary injunction's prohibitions against,
among other things, using the locus as a "function hall." On
appeal, Boston Boat challenges the judge's ruling -- which he
19Boston Boat has framed its argument in the alternative as
a claim that, because the 2003 agreement infringed upon public
trust rights, the developer and CWECA had no authority to enter
into the 2003 agreement without the approval of the
Commonwealth. Because the question of such infringement has yet
to be determined, and because we hold that Boston Boat cannot
ask a court to determine the question in the first instance, we
do not discuss the argument further.
20Because the only contempt sanction the judge ordered was
an award of CWECA's attorney's fees, and CWECA did not submit a
request documenting those fees in the three months between
Boston Boat's filing of a notice of appeal and the entry of the
appeal in this court, no final contempt judgment has entered.
We nevertheless exercise our discretion to reach Boston Boat's
appeal of the contempt finding, because "[d]ismissal of the
appeal would serve no purpose and might require the parties to
return to reargue issues already briefed and argued." Arch
Medical Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32
Mass. App. Ct. 404, 405 n.3 (1992).
16
based alternatively on grounds of privity and judicial estoppel
-- that Boston Boat was bound by the preliminary injunction
despite not having been a party when it was issued or when the
promotional event occurred.
"[A] civil contempt finding [must] be supported by clear
and convincing evidence of disobedience of a clear and
unequivocal command." Birchall, petitioner, 454 Mass. 837, 853
(2009).21 We review the judge's ultimate finding of contempt for
abuse of discretion, but we review underlying conclusions of law
de novo and underlying findings of fact for clear error. Judge
Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of
Mental Retardation (No. 1), 424 Mass. 430, 443, 451 (1997). Our
review is informed by the Birchall court's statement that the
standard it adopted is necessary to ensure "the level of
certainty appropriate to justify civil contempt sanctions,"
which may be severe. Birchall, 454 Mass. at 852.
a. Privity. Relying on DeGiacomo v. Quincy, 476 Mass. 38
(2016), the judge ruled that "Boston Boat is in sufficient
21 Boston Boat mistakenly cites to the now-superseded "clear
and undoubted disobedience of a clear and unequivocal command"
(emphasis added) standard that Birchall expressly rejected.
Birchall, 454 Mass. at 852-853. Birchall not only raised the
standard of proof from a preponderance of the evidence to clear
and convincing evidence, it also discarded the "clear and
undoubted disobedience" standard, thus "clarif[ying] that the
disobedience must be clear, but need not be beyond doubt." Id.
at 853.
17
'privity' with the parties against whom the injunctive relief
was granted to be bound by those orders for contempt purposes."
The judge stated that "[w]hile [DeGiacomo] discussed res
judicata, its reasoning is equally applicable to contempt."
This ruling was error insofar as it applied to a preliminary
injunction.
The DeGiacomo court applied settled principles of issue
preclusion, a doctrine premised on the existence of an earlier
final judgment and operative against parties to that judgment
and those in privity with them. DeGiacomo, 476 Mass. at 42.
Nothing in DeGiacomo suggests that a preliminary injunction
applies to nonparties.22 Although a nonparty may be held in
contempt for counseling, aiding, abetting, or otherwise acting
in concert with a party in violating an order, see Bird v.
Capital Site Mgmt. Co., 423 Mass. 172, 178-179 (1996) (violation
of attachment order), there was no finding of any concerted
activity here. Nor has CWECA cited any case in which a nonparty
has been held in contempt of a preliminary injunction based
solely on its status as a successor in title to a party.
22 We therefore need not decide whether the judge was
correct in ruling that Boston Boat was in privity with the prior
owners.
18
b. Judicial estoppel. The judge ruled in the alternative
that judicial estoppel23 required Boston Boat to obey the
preliminary injunction. The judge found that Boston Boat had
previously "represented . . . in open court, that it would abide
by those restrictions and orders, with this court relying on
that representation." Our review of this finding requires us to
recount in some detail the proceedings that led to Boston Boat
becoming a party to this case.
In 2010, after Boston Boat acquired the locus, CWECA moved
to substitute Boston Boat for the prior owner of record as a
defendant in this action. Boston Boat opposed the motion on the
ground, among others, that it had no relationship with the prior
owner and had not succeeded to any of its liabilities. With its
opposition, Boston Boat filed the affidavit of its manager,
stating that he was familiar with the recorded instruments
containing the locus use restrictions and that Boston Boat had
no intention of violating them.
CWECA's motion was the subject of two hearings, which
focused in part on whether Boston Boat agreed to be bound not
only (1) by the restrictions themselves, but also (2) by the
23"Judicial estoppel bars a party from asserting a position
directly inconsistent with, meaning mutually exclusive of, the
position asserted in a prior proceeding where the party
convinced the court to accept its prior position." Bay State
Gas Co. v. Department of Pub. Utils., 459 Mass. 807, 818 (2011).
19
judge's interpretations of them, as embodied in the 2006
preliminary injunction and the 2009 partial summary judgment
ruling. At the first hearing, on July 23, 2010, the judge
pressed Boston Boat on that question; in response, Boston Boat
offered to submit a supplemental affidavit of its manager,
agreeing to abide by those interpretations. The judge, seeking
a more definitive end to the litigation, asked if Boston Boat
would file a stipulation and agreement to judgment to that
effect. Boston Boat declined to do so, expressing its
opposition to becoming a party. The judge then stated his
inclination to allow Boston Boat to be substituted as a
defendant -- so as to "end this once and for all with a judgment
that everybody recognizes as binding on the wharf" -- but asked
Boston Boat and CWECA to try to agree on the terms of such a
judgment.
At the September 8, 2010, hearing, the parties reported
their inability to agree. The judge then noted Boston Boat's
earlier statement that it was "willing to live with the
restrictions," but observed that Boston Boat "may have hedged a
bit" on whether it also agreed to abide by "[his] interpretation
of the restrictions" and asked Boston Boat to clarify its
position. In response, Boston Boat reiterated that it was aware
of "the restrictions" and had no intent to violate them, but
that, given the judge's expressed inclination "to substitute
20
Boston Boat into the case over [its] objection," Boston Boat
would not simply agree to "a substitution and then an entry of
judgment." Boston Boat was "not prepared to waive any rights to
litigation[,] appeal or otherwise to lodge some valid objection
or motion to the enforceability of those restrictions as they
sit." The judge asked whether Boston Boat was seeking to
preserve its appellate rights; Boston Boat replied that it would
not waive "any rights, including [its] appellate rights," and
that, "since it sounds like Boston Boat is coming into this
case, [it] would like the opportunity to take part in some of
the litigation that was missed in the last four years." The
judge then took the motion to substitute under advisement.
Ten months later, CWECA filed its contempt complaint,
asserting that Boston Boat was using the locus in violation of
the 2006 preliminary injunction. The judge then issued an order
stating that Boston Boat was not a party to this action, and
that the motion to substitute Boston Boat as a defendant
remained under advisement, but that in the meantime CWECA should
move to amend its underlying complaint to add Boston Boat as a
defendant. CWECA filed such a motion, which the judge allowed
over Boston Boat's objection, and the 2011 trial on the
underlying and contempt complaints ensued.
The judge's decision found with respect to judicial
estoppel that Boston Boat had "stipulated that [it] would abide
21
by the restrictions and the court's prior orders interpreting
them" (emphasis added), citing the transcript of the July 23,
2010, hearing. The judge appears to have overlooked the later
hearing of September 8, 2010, at which he himself had expressed
uncertainty over whether Boston Boat had agreed to abide by
"[his] interpretation of the restrictions," and had asked for
clarification. He also appears to have overlooked Boston Boat's
carefully-worded reply -- that it had no intention of violating
"the restrictions," but conspicuously omitting any mention of
the judge's interpretation of them -- and its further clear
statements that if it were going to be made a defendant over its
objection, it would not agree to a judgment, would not waive
"any rights," and wished to "take part in some of the litigation
that was missed in the last four years." These statements
plainly indicated Boston Boat's intent to litigate further the
validity and interpretation of the restrictions, despite prior
interlocutory rulings on those issues that were adverse to its
predecessors in title.
As reluctant as we are to hold a judge's finding about
events in his own court room to be clearly erroneous, we are
constrained to do so here. "A finding is 'clearly erroneous'
when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed." Marlow v. New
22
Bedford, 369 Mass. 501, 508 (1976), quoting from United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948). Here,
the "entire evidence" includes the transcript of the September
8, 2010, hearing, which leaves us with the definite and firm
conviction that Boston Boat did not agree to be bound by the
judge's prior interpretations of the restrictions. To be sure,
Boston Boat could have answered the judge's question more
directly, by affirmatively stating its refusal to agree. We
should not be misunderstood as condoning anything less than full
and forthright answers to questions from the bench. But Boston
Boat's implicit negative answer, coupled with its clear
reservations of rights, compels us to reject the judge's finding
that Boston Boat had agreed to be bound.
Here, an agreement to be bound was essential to the
ultimate estoppel-based contempt finding. If Boston Boat was
not bound, then either its later conduct was not "disobedience,"
or there was no "clear and unequivocal command" applicable to it
in the first place. Either way, the contempt finding was not
"supported by clear and convincing evidence of disobedience of a
clear and unequivocal command." Birchall, 454 Mass. at 853. It
lacked "the level of certainty appropriate to justify civil
contempt sanctions," a serious matter. Id. at 852.
Conclusion. We affirm the judgment on the underlying
complaint and reverse the order finding Boston Boat in contempt.
23
So ordered.