CAROL L. HORVITZ, Trustee, & Another v. EVAN WILE, Individually and as Trustee.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1451

CAROL L. HORVITZ, trustee,1 & another2

vs.

EVAN WILE, individually and as trustee.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Carol L. Horvitz, trustee of the Edgewater

House Trust, and Jeffrey E. Horvitz, filed a complaint in the

Superior Court against defendant Evan Wile, individually and as

trustee of the West Street Realty Trust, seeking an order of

civil contempt against the defendant following the defendant's

alleged violation of a permanent injunction.4 After a bench

trial, the judge issued a judgment declaring the defendant

1 Of the Edgewater House Trust.

2 Jeffrey E. Horvitz.

3 Of the West Street Realty Trust.

4The injunction followed "a long history of litigation"
that is detailed by the Supreme Judicial Court in Rattigan v.
Wile, 445 Mass. 850, 851-855 (2006).
violated the permanent injunction and awarding the plaintiffs

attorney's fees and costs in prosecuting the contempt complaint.

On appeal, the defendant argues that (1) the plaintiffs failed

to demonstrate that the defendant disobeyed the injunction to

support a contempt finding, and (2) even if there was an event

of contempt, the defendant's contemptuous conduct was not

willful. The defendant also contends that the award of

attorney's fees was error. We affirm.

Background. The defendant purchased the property adjacent

to the plaintiffs' property in 1992.5 Between 1999 and 2003, the

defendant dumped construction debris along the boundary between

the two properties. As the plaintiffs erected barriers to block

the debris from their view, the defendant responded by

rearranging the debris so that it would remain visible from the

plaintiffs' property. The defendant also took several other

actions with the intent to annoy or harass the plaintiffs.

There were reported catcalls from the defendant's property to

swimmers in the plaintiffs' pool; the defendant placed portable

toilets near the boundary line and close to the plaintiffs' pool

such that offensive odors emanated around the pool; and the

defendant used an area close to the property line as a

helicopter landing zone, causing debris to blow onto the

5 The facts leading up to the 2006 permanent injunction are
adopted from Rattigan, 445 Mass. at 851-855.

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plaintiffs' property during landings. As a result of the

defendant's actions, a permanent injunction was issued, and

modified by the Supreme Judicial Court:

The defendant is permanently enjoined from unreasonably
interfering with the use and enjoyment of the plaintiffs'
property. Without limiting the scope of the foregoing
prohibition, the defendant shall not leave unattended any
objects more than six feet in height within forty feet of
the plaintiffs' boundary line, such as tents, portable
toilets, construction and industrial materials, trailers,
and warning signs, except reasonable vegetation. The
defendant shall not operate, or cause to be operated, a
helicopter on his property or within the zone of interest
above the property. So long as the above provisions are
not violated, the defendant shall not be enjoined from
hosting gatherings on his property that he personally
attends. This injunction is not intended to impede the
defendant's ability to build on the property at issue; if
he obtains lawful authority to build, he may seek
modification of this injunction in the Superior Court.

Rattigan v Wile, 445 Mass. 850, 864 (2006).

In or around 2022, the defendant entered an agreement with

a construction company who excavated and poured a residential

foundation on his property. As a result of the work, a pile of

excavated dirt and sand, which was about fifteen feet high and

twenty-five feet in diameter, was placed close to the property

line between the defendant's and plaintiffs' properties. On

April 11, 2023, the plaintiffs' counsel notified the defendant's

counsel that the pile was "causing a nuisance condition" and

requested its removal. On May 12, 2023, after the excavation

pile had not been removed, the plaintiffs proceeded to file a

verified complaint for civil contempt against the defendant.

3
The pile was removed on or about May 25, 2023, one day before

the scheduled contempt hearing. After a trial on July 26, 2023,

a Superior Court judge found in favor of the plaintiffs and

subsequently allowed, in part, the plaintiffs' motion for

attorney's fees. In support of his order, the judge concluded

that "[the defendant] clearly disobeyed the permanent injunction

and he was apparently unwilling to take remedial action until he

knew court intervention was imminent." A judgment incorporating

the finding of contempt and award of attorney's fees entered on

October 23, 2023, and the defendant appealed.

Discussion. 1. Contempt. "Under traditional principles

of equity practice, courts have long imposed civil contempt

sanctions to coerce the defendant into compliance with an

injunction or compensate the complainant for losses stemming

from the defendant's noncompliance with an injunction" (citation

and quotations omitted). Taggart v. Lorenzen, 587 U.S. 554,

560-561 (2019). "[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, 838-

839 (2009). We review the judge's finding of civil contempt for

abuse of discretion. See Voorhis v. Relle, 97 Mass. App. Ct.

46, 54 (2020).

The defendant argues for a narrow construction of the

injunction, asserting that it prohibits only the unreasonable

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interference with use and enjoyment of the plaintiffs' property,

and that the subsequent language in the Supreme Judicial Court's

opinion is merely illustrative of potential violations. We

disagree.

The injunction's language forbidding the defendant from

"leav[ing] unattended any objects more than six feet in height

within forty feet of the plaintiffs' boundary line" is a "clear

and unequivocal command" and not merely illustrative. See

Birchall, petitioner, 454 Mass. at 839. The express language of

the injunction, coupled with the defendant's knowledge and

involvement in the incidents leading up to the injunction,

renders the injunction a clear and unequivocal command,

sufficient to support a contempt proceeding. The injunction put

the defendant on notice that leaving objects that are more than

six feet in height within forty feet of the plaintiffs' property

line would subject him to citations for contempt. See Eldim,

Inc. v. Mullen, 47 Mass. App. Ct. 125, 128 (1999) ("At the very

least, [the defendant] was on notice that certain actions could

constitute the basis for contempt. . . . Where an injunction is

in effect, the party bound by the order is responsible for

ascertaining whether any proposed actions are among the

proscribed activities" [citation and quotations omitted]). The

meaning of this aspect of the injunction was not ambiguous and

not susceptible to an interpretation different from that found

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by the judge. See Demoulas v. Demoulas Supermkts., Inc., 424

Mass. 501, 567 (1997) (affirming contempt judgment where phrase

"'ordinary course of business' requires some legal

interpretation . . . [but] the injunction [containing the

phrase] was not so ambiguous a command as to be incapable of

being enforced through a contempt order"); Allen v. School Comm.

of Boston, 400 Mass. 193, 194 (1987) (contempt proper where

defendant had no reasonable basis for doubting meaning of

judge's order); Labor Relations Comm'n v. Boston Teachers Union,

Local 66, 374 Mass. 79, 89 (1977) (contempt appropriate where

plain meaning of terms put defendants on notice that certain

acts would be basis for contempt citations); Coyne Indus.

Laundry of Schenectady, Inc. v. Gould, 359 Mass. 269, 275–276

(1971) (defendant properly held in contempt where restraining

order term not ambiguous but "if the defendant saw the decree as

ambiguous . . . he could have sought clarification from the

court before he engaged in the questionable conduct"). Thus,

the judge did not err in concluding that the defendant disobeyed

the injunction by leaving a mound of excavated sand and dirt

that was fifteen feet in height and within seven feet of the

plaintiffs' property line.6

6 Although the injunction expressly permitted the defendant
to seek a modification of the injunction, he did not seek a
modification until after the contempt judgment was issued
against him. See Rattigan, 445 Mass. at 864.

6
The defendant further argues that even if his conduct did

violate the injunction, it did not amount to a contemptuous act

because it was not willful. We disagree. The judge found the

defendant "clearly disobeyed the permanent injunction" and was

"unwilling to take remedial action." These findings reflect a

finding of willfulness and were not an abuse of discretion. See

Voorhis, 97 Mass. App. Ct. at 54. The record demonstrates that

while the defendant did not place the mound near the plaintiffs'

property line himself, he maintained control over his property

and he allowed the mound to remain there for three months, and

an additional six weeks after he was notified by the plaintiffs

to remove it.7 The defendant's willfulness is further

demonstrated by the fact that the defendant moved the mound on

or about the day before the judge's first hearing on the

plaintiffs' contempt complaint.

2. Attorney's fees. "[T]he trial judge in contempt

proceedings has broad discretion to fashion remedies." Mills v.

Mills, 4 Mass. App. Ct. 273, 278 (1976). A contempt judgment

may include an award of reasonable attorney's fees and other

litigation costs involved in enforcing the defendant's failure

to comply with the injunction. See Manchester v. Dep't of

Envtl. Quality Eng'g, 381 Mass. 208, 216 (1980). Given the

7 The mound was created while construction work was being
done under the defendant's building permit.

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judge's broad discretion in calculating attorney's fees, and his

thoughtful examination of the relevant factors in reducing the

fees sought by the plaintiffs, see Twin Fires Inv., LLC v.

Morgan Stanley Dean Witter & Co., 445 Mass. 411, 429-430 (2005),

we conclude he did not abuse his discretion.8

Judgment affirmed.

By the Court (Englander,
Hodgens & Smyth, JJ.9),

Clerk

Entered: August 26, 2025.

8 We decline to award attorney's fees for the appeal. See
G. L. c. 231, § 6F.

9 The panelists are listed in order of seniority.

8