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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 

 

10 Condition 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.

11 Condition 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.

12 Condition 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 

 

13 The 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.

14 The 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 waterdependent 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.

 

15 In 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 

 

16 There 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 

 

17 This 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).

18 That 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 

 

19 Boston 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.

20 Because 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.
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So ordered.