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15-P-657 Appeals Court

GREAT WOODS, INC., & another1 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appealed, and in an unpublished memorandum and order issued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.