MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, BEC Sterling Development Trust (plaintiff or BEC), appeals from a judgment in favor of the defendant, Barbers Crossing North, Inc. (defendant or Barbers), on its complaint for contempt. BEC contends that the judge abused his discretion in finding and concluding that Barbers did not disobey a clear and unequivocal command to remove fill improperly placed on BECs property. We vacate the judgment and remand for further proceedings.
1
“We review the judges ultimate finding [on a complaint for] contempt for abuse of discretion, but we review underlying conclusions of law de novo and underlying findings of fact for clear error.” Commercial Wharf E. Condominium Assn v. Boston Boat Basin, LLC, 93 Mass. App. Ct. 523, 532 (2018). There are no findings of fact, however, as the case was not before the judge for trial. Instead, it was marked up for hearing without any pending motions. At oral argument in this court, the parties agreed the hearing (which was conducted remotely during the pandemic) was akin to cross motions for summary judgment.
“We review a motion for summary judgment de novo.” Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 395 (2016). We therefore look to the documentary record, as did the motion judge, to determine whether judgment may issue as a matter of law. See Kewley v. Department of Elementary & Secondary Educ., 86 Mass. App. Ct. 154, 158 (2014) (“In an appeal resulting from cross motions [for summary judgment], the court examines the record in the light most favorable to the losing party”).
“[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). The salient facts apparent from the documentary record are as follows. The plaintiff filed a complaint for trespass and injunctive relief alleging that the defendant placed thousands of yards of fill on BECs property. Before the case could go to trial, the parties reached an agreement for the removal of the fill, and a preliminary injunction issued. Barbers prepared a grading plan in May 2019 that was acceptable to both parties, and applied for and received the necessary permit and variance to complete the work. A motion judge issued an order for permanent injunction on September 19, 2019, requiring removal of all fill in accordance with the grading plan.
The injunction required, in pertinent part:
“(A) Pursuant to the plan ․ entitled “Proposed Grading Plan for the Property ․ (dated April 5, 2019, revised April 17, 2019 and April 25, 2019) (the “Grading Plan”), the Defendant shall remove or cause the removal of all fill at the boundary of Plaintiffs property and easterly to the elevation set forth on the Grading Plan. In connection with such construction the Defendant will construct a slope no greater than 3:1 on its property to retain existing material and create a drainage swale at the toe of the Defendants slope capable of capturing runoff from the slope and directing water to be collected and treated on the Defendants property before being discharged on the Defendants property. Material will be removed or filled only from the area of the Plaintiffs property designated on the Grading Plan and no material will be dumped, stored, or removed from the Plaintiffs property other than removal of the materials required to be removed per the Grading Plan.
“․
“(D) The defendant shall start earth removal work within (30) thirty days of this Court Order. The Defendant shall complete all work on or before December 31, 2019. If Defendant fails to comply with this Order, other than for good cause, the Plaintiff may seek relief as the Court may deem appropriate upon notice to the Defendant and a hearing before this court.”
(Emphasis added.)
The grading plan further provided that “[a]ny deviations, i.e. field changes from the design plans must be approved by the design engineer and BEC in writing,” and that the “finish ․ sub grade surface shall not be more than 0.10 feet above or below established finished sub grad elevations.”
2
Pursuant to the September 2019 order, the defendant began work on the remediation that same month, but later submitted an assented-to motion to extend time from December 31, 2019, to May 31, 2020. The defendant reported that the work was substantially complete, but unprecedented weather conditions made it impossible to complete some excavation activities. An amended order for permanent injunction entered changing the completion date from December 31, 2019, to May 31, 2020.
3
On May 27, 2020, Barbers reported to BEC that the work was completed and followed up with an as-built plan on June 3, 2020. On or about June 23, 2020, BEC sent an e-mail message to the defendant noting that the as-built plan differed from the grading plan and asking for a copy of the computer aided design (CAD) files and an explanation for the deviation. Barbers responded that the engineer would not release the CAD files, but that the changes were made to reduce the erosive potential of stormwater on the plaintiffs property and to improve flow. Barbers also offered to walk the site with the plaintiff to further explain the differences. BEC did not reply and filed the complaint for contempt three months later.
BEC claims that the “[a]s-[b]uilt [p]lans did not match the grades on the proposed grading plan,” and that the final remediation work had “grades of between two and six feet” in excess of the elevations permitted by the grading plan. BEC also claims that the deviations were not “approved by the design engineer and BEC in writing” and that the finished subgrade surface was “more than 0.10 feet above or below established sub grade elevations” as required by the grading plan. Barbers acknowledged that it deviated from the grading plan, but states that the variations were minimal, did not negatively impact the project, and were made for BECs benefit. BEC claimed that the increase in elevation necessitated a retaining wall. Both parties filed diverging affidavits in support of their respective positions. The judge ruled that the defendants explanation for the deviations “may constitute good cause,” for noncompliance with the court order, and that there was not clear and convincing evidence of undoubted disobedience of a clear and unequivocal command.
We appreciate the many reasons why, particularly mid-pandemic, the judge may have attempted to resolve this matter expeditiously, especially when the parties requested a ruling and presented the case in a novel manner. We are, however, unable to uphold the judgment as a matter of law. That a court order contains words such as “substantial compliance,” or good cause, does not render the order unenforceable on contempt. See Manchester v. Department of Envtl. Quality Engg, 381 Mass. 208, 212 (1980) (contemnors claim of “substantial compliance is at odds with the judges findings of fact”). “We have upheld findings of contempt where the court order, although subject to some legal interpretation, has nonetheless placed the party bound by the order on notice that certain actions could constitute the basis for contempt.” Demoulas v. Demoulas Super Mkts., Inc., 424 Mass, 501, 567 (1997) (concluding “that, although the application of the phrase ordinary course of business requires some legal interpretation, the injunction was not so ambiguous a command as to be incapable of being enforced through a contempt order”). Whether there has been undoubted disobedience of the order is decided contextually, looking to the facts of the case. See id. at 567-569; Manchester, supra at 212-214.
Viewing the facts in the light most favorable to BEC, the record shows that Barbers altered the agreed-upon, court-ordered grading plan without consultation in a manner that may require either further soil removal or a retaining wall to stabilize the fill. The grading plan put Barbers on notice that such an outcome would not comply with the court order. Coupled with the failure to consult and obtain consent to the deviation, a fact finder would be permitted to find by clear and convincing evidence that there had been undoubted disobedience of a clear and unequivocal command. Whether BECs claims are borne out, or whether, as Barbers maintains, the changes were de minimis, and made with good cause, resulting in a net gain for BEC (as opposed to a compensable loss), is a dispute of fact that must be resolved at trial.
The judgment in favor of the defendant on the complaint for contempt is vacated. The case is remanded to the Superior Court for further proceedings consistent with this decision.
4
So ordered.
FOOTNOTES
1
. BEC also claims that it was entitled to liquidated damages under the terms of the amended order for permanent injunction. We do not reach this issue, which may be considered on remand.
2
. The grading plan was incorporated by reference in the permanent injunction, and both parties agree on appeal that the grading plan was binding on them.
3
. The amended order also included a liquidated damages clause that imposed a $250 per day fine for each day that the work remained incomplete after May 31, 2020. See note 1, supra. For purposes of this decision, we refer to the amended order for permanent injunction as the operative court order. With the exception of the date of completion, the order for permanent injunction and amended order for permanent injunction were identical in all material respects.
4
. The defendants request for costs and attorneys fees is denied.