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Great Woods, Inc. v. Clemmey

Appeals Court of Massachusetts, Middlesex

July 26, 2016

GREAT WOODS, INC., & another [1]
v.
KARL D. CLEMMEY.

          Heard: January 15, 2016.

         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.

          Present: Green, Wolohojian, & Henry, JJ.

          WOLOHOJIAN, J.

         After a series of disruptive and threatening incidents, Great Woods, Inc. (Great Woods), brought 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 Clemmey appealed, and in an unpublished memorandum and order issued pursuant to our rule 1:28, we vacated the modification order and remanded for findings of fact on the ground that the modification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;
• 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 ...

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