Great Woods, Inc. v. Clemmey

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15-P-657 Appeals Court

GREAT WOODS, INC., & another 1 vs. KARL D. CLEMMEY.

No. 15-P-657.

Middlesex. January 15, 2016. - July 26, 2016.

Present: Green, Wolohojian, & Henry, JJ.

Injunction. Judgment, Relief from judgment, Consent
judgment. Practice, Civil, Relief from judgment, Judicial
discretion.

Civil action commenced in the Superior Court Department on
November 21, 1994.

After review by this court, 86 Mass. App. Ct. 1115 (2014),
a motion for clarification or for modification or dissolution of
a permanent injunction was heard by Kathe M. Tuttman, J.

Nicholas P. Shapiro (Robert K. Hopkins with him) for the
defendant.
Jeffrey S. King for the intervener.

WOLOHOJIAN, J. After a series of disruptive and

threatening incidents, Great Woods, Inc. (Great Woods), brought

1
On appeal, Live Nation Worldwide, Inc., filed a motion to
intervene as successor in interest to Great Woods, Inc. That
motion was allowed by the court.
 2

suit to enjoin Karl Clemmey from entering its property, a large

entertainment venue in Mansfield. The suit was resolved when,

in 1996, Clemmey agreed to the entry of a permanent injunction

that provided:

"Clemmey, whether acting personally or through any other
person acting under his direction or control, is hereby
strictly and permanently ORDERED to desist and refrain (1)
from entering upon or crossing over the property in
Mansfield, Massachusetts, under the control of Great Woods,
Inc. (owned by Time Trust, or Sherman Wolfe,) for any
reason whatsoever without the express written consent of
Great Woods, Inc. and (2) from accosting, harassing,
intimidating or threatening any owner, manager, employee or
agent of Great Woods, Inc."

Seventeen years later, in 2013, Clemmey moved to "clarify" that

Great Woods's successor in interest, Live Nation Worldwide, Inc.

(Live Nation), had no right to enforce the permanent injunction.

In the alternative, Clemmey moved, pursuant to Mass.R.Civ.P.

60(b)(5), 365 Mass. 828 (1974), to modify or dissolve the

injunction based on changed circumstances. 2 A judge of the

Superior Court (who was not the judge who entered the original

injunction) denied Clemmey's motion and modified the injunction

to, in essence, substitute Live Nation for Great Woods. Clemmey

appealed, and in an unpublished memorandum and order issued

pursuant to our rule 1:28, we vacated the modification order and

remanded for findings of fact on the ground that the

2
Clemmey also invoked Mass.R.Civ.P. 60(b)(6); however, the
nature of his claim and the relief he sought indicate the motion
was properly grounded in subsection (5), not (6).
 3

modification was essentially a new injunction requiring explicit

findings. Great Woods, Inc. v. Clemmey, 86 Mass. App. Ct. 1115

(2014). On remand, the judge made findings based on materials

and affidavits submitted by the parties, and again extended the

permanent injunction to Live Nation. 3 Clemmey appeals, and we

now affirm.

Background. Great Woods sued Clemmey in 1994. Although

the record does not contain the original complaint, it does

include Great Woods's amended complaint, which was filed in

November 1994. The amended complaint sought to enjoin Clemmey,

who owned adjacent property, from coming onto Great Woods's

property and from harassing its employees. The amended

complaint alleged that:

• on December 3, 1993, Clemmey had driven onto Great Woods's
property, had repeatedly threatened Bruce Montgomery, Great
Woods's general manager, with physical harm in a loud and
aggressive way while using obscenities, and had interfered
with Montgomery's ability to perform his job;

3
As modified, the injunction reads:

"By order of the Superior Court, the defendant, Karl D.
Clemmey, whether acting personally or through any other
person acting under his direction or control, is hereby
strictly and permanently ORDERED to desist and refrain (1)
from entering upon or crossing over property in Mansfield,
Massachusetts, under the control of Live Nation Worldwide,
Inc., the successor-in-interest to Great Woods, Inc., and
being operated as the Xfinity Center, for any reason
whatsoever without the express written consent of Live
Nation Worldwide, Inc., and (2) from accosting, harassing,
intimidating or threatening any owner, manager, employee or
agent of Live Nation Worldwide, Inc."
 4

• during the fall and winter of 1993-1994, Clemmey had
accosted, threatened, and harassed Montgomery on a
"regular" basis, always using obscene and aggressive
language;

• on June 7, 1994, Clemmey threatened Montgomery by stating
that he would use heavy construction equipment to frighten
Montgomery's wife at home while Montgomery was at work;

• on June 11, 1994, Clemmey physically assaulted Montgomery;

• on June 11, 1994, Clemmey drove a front-end loader across
the Great Woods property in order to deliberately damage a
stone wall and silt fence;

• on August 19, 1994, Clemmey twice trespassed on the Great
Woods property and created disruption; and

• on several occasions during 1993-1994, Clemmey drove his
front-end loader in a reckless and dangerous manner,
intentionally putting construction workers near the Great
Woods property in fear.

Based on these allegations, the amended complaint sought

that Clemmey be enjoined

• "from entering upon or crossing over the Property more
particularly described in . . . this complaint,[4] for any
reason whatsoever without the express written consent of
Great Woods, Inc. or the Time Trust, except that Karl D.
Clemmey may enter the Property as a patron or licensee of
Great Woods, Inc."

and

• "from accosting, harassing, intimidating, threatening,
touching, physically or verbally abusing, or in any way
interfering with employees of Great Woods, Inc."

4
The complaint described the property as being in
Mansfield, and gave the book and page of the transfer
certificate of title and of the deed for the property. These
documents were attached as exhibits to the complaint.
 5

Great Woods then moved for a preliminary injunction. Its

motion was supported by, among other things, an affidavit from

attorney Haskell Kassler, who related an incident during which

Clemmey threatened Montgomery in Kassler's presence. On that

occasion, Clemmey stated,

"One of these nights when you have a full house [at a Great
Woods performance] I'm going to take a couple of my dump
trucks up to your house, and you know, Bruce, I know where
you live. And I'm going to pull up to the house and flash
the lights, blow the whistles, and bang the rear doors on
the trucks. Your wife's going to be scared; she's going to
try and get you on the phone and you're not going to be
able to leave, and you're going to have to tell her that
there's nothing you can do. And if you do leave, you're
going to get fired."

In addition to the Haskell affidavit, Great Woods's preliminary

injunction motion was also supported by an affidavit from

Montgomery that essentially mirrored the allegations of the

amended complaint.

Clemmey opposed the motion for preliminary injunction, but

because the record does not contain his papers, we do not know

the bases for his opposition. Regardless, no action was taken

on the motion and the litigation appears to have gone into

quiescence until November, 1996, when the permanent injunction

set forth at the outset of this opinion was entered by agreement

of the parties.

Although the permanent injunction entered with Clemmey's

agreement, things did not go smoothly thereafter -- at least at
 6

first. In 1997, Clemmey was found in contempt of the permanent

injunction after he trespassed onto the Great Woods property.

On that occasion, Clemmey -- carrying a baseball bat in the

manner of a club -- threatened a security guard and Montgomery.

The police were called, and Clemmey returned the bat to his

truck. But he returned and challenged, "You tell me where to

meet you tonight, anywhere you want. Bring the fucking gloves

or we'll do it bare handed. I'll tell you; I'm 55 years old and

I got a thousand dollars that says I can kick your fucking ass.

. . . Go fuck yourself." Clemmey's manner throughout this

episode was hostile, aggressive, and threatening. The security

guard's version of events was confirmed by the affidavit of

Richard McQuade, another security guard. 5

Nothing further occurred in the litigation for the next

sixteen years, when Clemmey filed his motion for clarification

or, in the alternative, for relief under rule 60(b)(5). As we

have noted above, the judge ruled that Live Nation, Great

Woods's successor in interest, was entitled to the benefit of

the permanent injunction. Clemmey appealed, and we vacated the

judge's order and remanded for findings. In the memorandum and

order pursuant to rule 1:28, the panel stated that the judge on

5
The judge found Clemmey in contempt and allowed Great
Woods's application for attorney's fees. Clemmey's appeal
ultimately was dismissed with prejudice by agreement of the
parties.
 7

remand was not foreclosed from modifying the permanent

injunction, provided that "any resulting order shall be

unambiguously worded to apply to the property's current owner,

and its employees" and that explicit findings be made based on

sufficient evidence showing that injunctive relief was

appropriate. 6

On remand, the judge made the following findings, which we

accept since they have not been shown to be clearly erroneous.

Live Nation, as the subsequent purchaser and operator of the

property, has retained many of the operational staff employed by

Great Woods, including several employees who were the victims of

Clemmey's threatening and harassing conduct during the 1990's.

One of those employees is Montgomery, who remains employed by

Live Nation. Based on Clemmey's prior conduct, Live Nation's

employees remain justifiably fearful of Clemmey and of the risk

of abusive behavior toward them in the future. Although Clemmey

no longer owns the adjacent property, he continues to hold a

beneficial interest in it. Even after having been held in

contempt for violating the permanent injunction, Clemmey did not

comply with the injunction. Specifically, in 2004, he erected a

fence on Live Nation's property. All that said, whenever

6
Given this language in the memorandum and order pursuant
to rule 1:28, we disagree with Clemmey's argument that the judge
acted outside the scope of the remand when she again ruled that
the injunction extended to Live Nation as Great Woods's
successor.
 8

Clemmey has requested permission to attend an event at the

property, as provided by the permanent injunction, Live Nation

has granted it.

Discussion. Clemmey argues that Live Nation is not

entitled to the benefit of the permanent injunction or, in the

alternative, that the judge abused her discretion in denying his

request to be relieved of its terms. See Murphy

v. Administrator of the Div. of Personnel Admin., 377 Mass. 217,

227 (1979) (rule 60[b] decision "will be set aside only on a

clear showing of an abuse of discretion"); Paternity of Cheryl,

434 Mass. 23, 30 (2001) (decision under Mass.R.Dom.Rel.P.

60[b][5] reviewed for abuse of discretion).

We begin by noting that the two components of the

injunction must be analyzed separately because one sounds in rem

and the other in personam. The first component (or clause) was

designed to protect particular land from invasion by Clemmey:

"Clemmey . . . is hereby strictly and permanently ORDERED
to desist and refrain (1) from entering upon or crossing
over the property in Mansfield, Massachusetts, under the
control of Great Woods, Inc."

Under Lyon v. Bloomfield, 355 Mass. 738, 743 (1969), a successor

in interest to land is entitled to enforce the prospective

provisions of an injunction designed to protect that land from

invasion by another. As the court stated in Lyon,

"we see no merit in a rule which would require each
subsequent transferee of land which is protected by
 9

injunction from invasion by another to renew the injunction
against the same defendant in order to protect his rights
in the land. The party enjoined by court order from use of
land should not be permitted to flout the order merely
because the land has been transferred."

Ibid. Here, the first clause of the permanent injunction

affected rights in land and, as a result, Live Nation as the

successor in interest to that land was entitled to enforce that

portion of the injunction.

By contrast, the second clause of the permanent injunction

was designed to protect certain people:

"Clemmey . . . is hereby strictly and permanently ORDERED
to desist and refrain . . . (2) from accosting, harassing,
intimidating or threatening any owner, manager, employee or
agent of Great Woods, Inc."

We have found no case applying the reasoning of Lyon to

injunctions designed to protect people rather than land.

That said, we see both appeal and logic in applying a Lyon-like

rule where, as here, the prospective provisions of an injunction

were clearly designed to protect a class of people identified in

relationship to a business whose ongoing operations have not

meaningfully changed, even though its ownership has been

transferred. It would make little sense for a person in this

context to be deprived of the protection of a permanent

injunction simply because the corporate ownership of his

employer changed. Thus, we conclude that Live Nation (as

successor to Great Woods) was entitled to enforce the permanent
 10

injunction for the benefit of any person who had been an "owner,

manager, employee or agent of Great Woods" at the time the

injunction issued.

The question that remains, though, is whether Live Nation

is entitled -- and, if so, to what extent -- to enforce the

permanent injunction with respect to individuals who were not an

"owner, manager, employee or agent of Great Woods" when the

injunction issued, but who are currently in one of those roles.

As has been noted in a related context, "a judge who issues a

permanent order knows that time will pass." MacDonald

v. Caruso, 467 Mass. 382, 388 (2014). As a corollary to this

proposition, we think it self-evident that the parties and judge

anticipated and intended that the permanent injunction -- by its

continuing nature -- would not be limited to the people who

happened to be associated with Great Woods's operations on the

day the injunction issued. The continuing nature of the

permanent injunction leads to the natural result, for example,

that a person hired by Great Woods one week after the injunction

issued would be covered by it. We see no reason why that result

would or should be different even if, during that week,

ownership of the corporation had transferred to Live Nation.

But the same reasoning cannot be applied ad infinitum.

Here, we deal not with the passage of one week but of seventeen

years, and Clemmey argues that circumstances have changed such
 11

that the judge abused her discretion in denying his motion to be

relieved of the injunction. We begin with the general

proposition that, even though the injunction was entered by

agreement of the parties, the court retained the authority, as

reflected in rule 60(b)(5), to amend or modify its prospective

application. 7 See Rufo v. Inmates of Suffolk County Jail, 502

U.S. 367, 378 (1992) ("There is no suggestion in [case law] that

a consent decree is not subject to Rule 60[b]"); MacDonald

v. Caruso, 467 Mass. at 387; Mitchell v. Mitchell, 62 Mass. App.

Ct. 769, 776-777 (2005). Although relief may be obtained where

"it is no longer equitable that the judgment should have

prospective application," Mass.R.Civ.P. 60(b)(5), a party may

not obtain relief simply "when it is no longer convenient to

live with the terms of" the order. Rufo, 502 U.S. at 383. A

party, such as Clemmey, seeking modification of, or relief from,

prospective application of a permanent injunction bears the

burden of showing a "significant change in circumstances"

warranting revision of the injunction. Ibid. MacDonald, supra

at 388. Mitchell, supra at 779.

"The significant change in circumstances must involve more
than the mere passage of time, because a judge who issues a
permanent order knows that time will pass. Compliance by
the defendant with the order is also not sufficient alone
to constitute a significant change in circumstances,

7
By contrast, a judge may not have authority to amend or
modify a consent judgment that has no prospective application.
See Thibbitts v. Crowley, 405 Mass. 222, 226-227 (1989).
 12

because a judge who issues a permanent order is entitled to
expect that the defendant will comply with the order."

MacDonald, 467 Mass. at 388-389. "However, if there is a

significant change in circumstances not foreseen when the last

order was issued, the passage of time and compliance with the

order may be considered." Id. at 389.

Here, the judge did not abuse her discretion in concluding

that Clemmey had not shown an unforeseen significant change in

circumstances. Although it is true that many years have passed,

largely without incident, they have not been trouble free.

Although ownership of the venue has changed, the nature of its

operations has not. Moreover, several of the employees who had

been the subject of Clemmey's actions in the 1990's remain

employed at the venue today, including Montgomery who appears to

have been Clemmey's primary target. The evidence permitted the

judge to find, as she did, that those employees remained

justifiably fearful of Clemmey. In addition, although Clemmey's

interest in the adjoining property has changed, it has not

disappeared. Finally, Clemmey did not show either that "changed

factual conditions make compliance with the [injunction]

substantially more onerous," or that the injunction had proven

"unworkable because of unforeseen obstacles." Rufo, 502 U.S. at

384. To the contrary, the undisputed facts showed that Clemmey,

consistent with the safety valve built into the permanent
 13

injunction, has been allowed to attend any event for which he

has requested permission.

For these reasons, the revised order dated February 24,

2015, is affirmed.

So ordered.