Commercial Wharf East Condominium Assoc. v. Boston Boat Basin, LLC

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
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error or other formal error, please notify the Reporter of
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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.