Commercial Wharf East Condominium Assoc. v. Boston Boat Basin, LLC , 93 Mass. App. Ct. 523 ( 2018 )


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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
    10Condition 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.
    11Condition 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.
    12Condition 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
    13The 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.
    14The 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 water-
    dependent 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.
    15In 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
    16There 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
    17This 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).
    18That 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 1
    1, 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
    19Boston 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.
    20Because 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.
    23
    So ordered.