Phillips & Angley

Phillips & Angley Wins Appeal in Permanent Injunction Case

On October 8, 2014, the Massachusetts Appeals Court handed down its decision in Great Woods, Inc. v. Clemmey, Docket No. 13-P-1817, through a Memorandum and Order Pursuant to Rule 1:28. In that unpublished decision, the Appeals Court panel (Kantrowitz, Grainger & Hanlon, JJ.) vacated the Order of the Middlesex Superior Court, Tuttman, J., (1) clarifying that a 1996 permanent injunction remained in full force and effect, notwithstanding the fact that its beneficiary, Plaintiff, Great Woods, Inc., no longer exists; and (2) denying relief to Clemmey under Mass. R. Civ. P. 60(b)(5).

Without reaching the 60(b)(5) issue, the panel sided with Clemmey that the 1996 permanent injunction did not survive the demise of Great Woods. Specifically, the panel held

[i]n hearing the case, it appears that the judge implicitly substituted Live Nation for Great Woods and determined that there was a continuing need for the injunction. Inasmuch as the injunction refers explicitly to property 'under the control of Great Woods, Inc.' and to 'any owner, manager, employee or agent of Great Woods, Inc.," the judge's order constitutes the imposition of a new injunction in favor of a new party.

Great Woods, Inc. v. Clemmey, 2014 Mass. App. Unpub. LEXIS 1056, at *1. The panel further held that, to the extent that Live Nation wants to seek an injunction against Clemmey, "[e]xplicit findings are required to support such an order" and Live Nation must present "sufficient evidence to be entitled to injunctive relief," i.e., a likelihood of success on the merits and the imminent threat of irreparable harm. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980).

The appeal was argued by Nicholas P. Shapiro, Esq., of Phillips & Angley, before the panel on September 9, 2014.

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