LAURIE LAWRENCE v. KAREN DEMICHELE (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Karen DeMichele, appeals from, inter alia, a Superior Court judge's denial of her motion for new trial and a judgment following a jury trial in favor of the plaintiffs, Albert Lawrence, Jr., and Laurie Lawrence (the Lawrences). She argues that the evidence was insufficient to satisfy the requirements of G. L. c. 49, § 21 (the “spite fence statute”), and that the jury were “swept away by bias or prejudice” such that she is entitled to a new trial. She also challenges a “clarification order” entered by the trial judge while the appeal was pending claiming that it exceeded the trial judge's authority under the spite fence statute; contends that no emergency existed to justify the procedures taken by the trial judge to enter the clarification order; and claims that the trial judge lacked jurisdiction to enter the clarification order while the appeal was pending. We vacate the clarification order and remand for further proceedings on that order and otherwise affirm.

Background. 1. Facts.² This case arises from a years-long dispute between abutting neighbors. The Lawrences purchased a home in Onset in 1996. The house was originally “a traditional Cape” with an added second floor. In 2014, they purchased an adjacent property which was “a small bungalow” situated “about five feet away from [DeMichele's] fence.” The Lawrences intended “to combine the two properties into one home” but ultimately decided to build a new home on the combined properties. DeMichele's adjacent property sits between the Lawrences’ property and Onset Bay. The plans for the Lawrences’ new home included three decks looking toward Onset Bay and in the direction of DeMichele's backyard. One of those three decks is on the main floor (Entertainment Deck) and directly overlooks DeMichele's backyard. The Entertainment Deck has a view of the Bay and is the primary subject of the dispute between the Lawrences and DeMichele.³

Construction of the new home began in the fall of 2020. Mrs. Lawrence testified that during construction of her new home she heard DeMichele say that she was going to put up bamboo so that the Lawrences would not have a view of Onset Bay, and the Lawrences’ contractor testified that he heard similar statements from DeMichele. In July 2021, DeMichele planted bamboo along the property line shared by the parties.

By July 4, 2022, the bamboo had grown and began to hang over the fence and into the Lawrences’ yard. On that date Mrs. Lawrence trimmed the bamboo hanging on her side of the fence. This resulted in an argument between the neighbors during which DeMichele's husband videotaped Mrs. Lawrence. The video shows the parties arguing, Mrs. Lawrence swearing at DeMichele,⁴ and DeMichele yelling that Mrs. Lawrence needed permission to cut the bamboo.

DeMichele testified that in August of 2022, she told her husband that “the bamboo is not going to work, it's too airy, it's too loose. [Mrs. Lawrence] still can see and hear every single thing we do.”⁵ Shortly thereafter, DeMichele removed the bamboo to install large wooden posts along the fence line. She attached a system which allowed her to raise and lower fifteen-foot-tall brown tarps. DeMichele raised the tarps whenever she and her family were at the property. Pictures taken by the Lawrences show the tarps blocking their view of Onset Bay.⁶

On October 10, 2023, the town of Wareham required removal of the tarps, because they violated the town's zoning by-laws. At a hearing regarding the tarps, the town's zoning board suggested to DeMichele that she plant arborvitaes for privacy. She chose to do just that and planted arborvitaes that were sixteen to eighteen feet tall along the fence line between her property and the Lawrences’ property. The heights of arborvitaes were tallest in the section of DeMichele's yard that blocked the Lawrences’ view, and shorter where they did not. Thus, again, the Lawrences found their view of Onset Bay to be blocked by DeMichele.

2. Procedural history. On October 12, 2022, the Lawrences filed a complaint against DeMichele claiming a violation of the spite fence statute and trespass.⁷ A three-day jury trial was held in March of 2025. On March 18, 2025, DeMichele filed a motion for directed verdict at the close of the Lawrences’ case which was denied. She again moved for a directed verdict at the close of her case (motion for directed verdict) which was also denied. The jury returned a verdict in favor of the Lawrences on the spite fence statute claim.⁸

On April 22, 2025, judgment entered in favor of the Lawrences, which included an order requiring DeMichele to “remove all arborvitaes along the fence line.” On May 1, 2025, DeMichele filed a renewed motion for judgment as a matter of law or an “Alternative Request for a New Trial” (motion for new trial). That motion was denied. On May 20, 2025, DeMichele filed a notice of appeal. The next day, DeMichele filed a motion for the suspension of injunctive relief pursuant to Mass. R. Civ. P. 62 (c), 365 Mass. 829 (1974), and Mass. R. A. P. 6, as appearing in 494 Mass. 1601 (2024). By order dated May 29, 2025 (May order), and after a full hearing, the trial judge allowed DeMichele's motion and in a margin endorsement wrote: “the first 6 (six) arborvitaes that are obstructing the Lawrences’ view of the ocean are hereby ordered to be completely removed within 40 (forty) days of the date of this order. The remaining arborvitaes may remain in place and so much of the court's order dated 4/22/25 ordering removal of these arborvitaes (not the first six obstructing the view) is hereby vacated.”

DeMichele substantively complied with the May order and removed the first six arborvitaes that blocked the Lawrences’ view but subsequently replaced the arborvitaes with a large umbrella which the Lawrences claim blocked their view of Onset Bay in much the same manner as prior installations. The Lawrences filed a complaint for civil contempt based on DeMichele's use of the large retractable umbrella. The judge at the hearing for contempt (contempt judge) requested that the Lawrences obtain clarification from the trial judge regarding his May order. On August 29, 2025, the Lawrences filed an emergency motion seeking to clarify the May order because the contempt trial was scheduled for September 8, 2025. On September 2, 2025, without briefing from DeMichele or a hearing, the trial judge issued his clarification order as follows: “The six arborvitaes are to be removed and the defendant is precluded from blocking plaintiffs’ view of the ocean in any manner.” DeMichele appealed therefrom.⁹

Discussion. 1. Directed verdict. DeMichele argues that she was entitled to a directed verdict because the evidence at trial fell short of satisfying the requirements of the spite fence statute. Specifically, she contends that the evidence was insufficient to show that her primary purpose in erecting the arborvitaes was malevolence and that the height of the arborvitaes was unnecessary. We disagree.

“[T]he standard to be employed is whether ‘the evidence, construed against the moving party, justif[ies] a verdict against him.’ ” Bonin v. Chestnut Hill Towers Realty Corp., 392 Mass. 58, 59 (1984). We must evaluate whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the [nonmovant].” Turnpike Motors, Inc. v. NewBury Group, Inc., 413 Mass. 119, 121 (1992).

The spite fence statute governs “[a] fence or other structure in the nature of a fence which unnecessarily exceeds six feet in height and is maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property․” G. L. c. 49, § 21. For the spite fence statute to apply, “malevolence must be the dominant motive, -- a motive without which the fence would not have been built or maintained.” Rideout v. Knox, 148 Mass. 368, 373 (1888). If, however, “the height above six feet is really necessary for any reason, there is no liability, whatever the motives of the owner in erecting it.” Id.

In the present case, there was evidence showing that the arborvitaes were planted with a malevolent intent including but not limited to the following: DeMichele said that she was “gonna be putting up bamboo so [the Lawrences] couldn't have a view”; “DeMichele would talk to anybody that walked by about the obnoxious building [the Lawrences] were building”; and evidence that the arborvitaes were taller on the side which blocked the Lawrences’ view. To be sure, there was evidence introduced at trial that supported DeMichele's claims, including her testimony that she only intended to use the tarps as shades when she wanted privacy, and her testimony that the purpose of the arborvitaes was “privacy. You know, [Mrs. Lawrence] can't comment on what I'm wearing, what I look like, how I look.” Nevertheless, a directed verdict is unwarranted because the Lawrences presented sufficient evidence to establish a combination of circumstances from which a reasonable jury could infer DeMichele's malevolent intent.¹⁰ Otherwise stated, the existence of some evidence to suggest that the fence was not maintained with malevolence as the motive does not undermine the trial judge's conclusion. In short, we cannot say that the trial judge erred in denying DeMichele's motion for a directed verdict.

2. Motion for new trial. DeMichele argues that the trial judge erred in denying her motion for new trial because the jury were “swept away by bias or prejudice,” through the admission of “unduly inflammatory irrelevant evidence.” She claims the events about which the Lawrences’ son testified are years old and thus the probative value of the testimony was “outweighed by the risk of unfair prejudice.” We disagree.

A judge should only set aside a verdict as against the weight of the evidence when it is determined that the jury “failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law.” Robertson v. Snow, 404 Mass. 515, 520, cert. denied, 493 U.S. 894, 110 S. Ct. 242 (1989), quoting Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60 (1948). Such a decision rests in the sound discretion of the judge and we disturb this ruling only if there has been an abuse of that discretion. Robertson, supra at 520-521.

The Lawrences’ son's testimony regarding prior conflict between the neighbors had probative value as it was relevant to motive and supported an inference of malevolent intent. See Rattigan v. Wile, 445 Mass. 850, 858 (2005) (“It is obviously worthy of weight in the fact-finding calculus that this campaign was apparently waged in retaliation”). Evidence that DeMichele's son used “profanities when yelling at [the Lawrences’ son] at 2 o'clock in the morning” seven years prior, and that around the same time, “one or more people on DeMichele's property allegedly threw beer cans and chicken bones over the fence onto the plaintiffs’ property” is probative to the retaliatory nature of the arborvitaes. See id.

Moreover, despite evidence to the contrary, the Lawrences introduced sufficient evidence to support the jury's conclusion which reflected an honest and reasonable judgment in accordance with the law as instructed. Indeed, the trial judge provided instructions which informed the jury that it must determine if the arborvitae “unnecessarily exceeds the height of six feet, unnecessarily means not required under the circumstances” and that “malevolence must be the dominant motive.” The jury instructions were not challenged at trial ¹¹ and are not challenged on appeal. With these instructions in mind, the jury could have reasonably inferred from the ongoing dispute between the parties that DeMichele had malevolent intent when planting the arborvitaes.¹²

3. Emergency motion. DeMichele argues that the trial judge improperly treated the emergency motion (leading to the clarification order) as an emergency without sufficient justification for the hastened procedure. She contends that the trial judge's actions violated her rights because the clarification order entered without appropriate argument and briefing. The claim is unavailing.¹³

Generally, Superior Court Rule 9A requires a moving party to serve a motion on other parties and allows the opposing party ten days, or thirteen days if served by mail, to respond with an opposition before filing the motion package with the court. See Rule 9A(b)(1)(3) of the Rules of the Superior Court. This rule, however, does not apply “to a party who files an ex parte motion, emergency motion, or motion for appointment of a special process server.” Rule 9A(d)(1) of the Rules of the Superior Court. Whether the circumstances justify an emergency motion rests in the discretion of the judge. Nickerson v. Flynn-Morris, 103 Mass. App. Ct. 703, 707 (2024).

DeMichele contends, and we agree, that the “mere labeling of a pleading as an ‘emergency motion’ does not establish an ‘emergency’ within the meaning of [rule 9A]” and that “compliance with rule 9A is not a mere formality.” Nickerson, 103 Mass. App. Ct. at 707-708. Here, however, the trial judge's choice to make a swift judicial resolution of the emergency motion was not outside the range of reasonable alternatives. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). While the better practice may have been to hold a hearing and allow both parties to submit briefing, in light of the parties’ history of contentious interactions, more than two years of litigation, three days of trial, DeMichele's use of bamboo, tarps and the arborvitaes, and the subsequent violation of the spirit of the injunction by raising the umbrella, we cannot say that the trial judge's choice for a speedy resolution and protection of the Lawrences’ rights constituted an abuse of discretion.

4. Jurisdiction during pendency of appeal. DeMichele argues that the trial judge lacked jurisdiction to enter the clarification order because the April 28, 2025, judgment was then pending on appeal. The Lawrences argue that the clarification order was a mere clarification, and thus the fact that the appeal was pending was immaterial.

“Ordinarily, once an appeal has been docketed, the trial court lacks jurisdiction to modify the judgment being appealed.” Quinn v. Gjoni, 89 Mass. App. Ct. 408, 411 (2016). Thus, the better practice in this instance would have been to ask permission from the appellate court before clarifying an order pending on appeal. See Mass. R. Civ. P. 60 (a), 365 Mass. 828 (1974) (clerical mistakes in judgments or orders may be corrected with leave of appellate court once appeal is pending). Mass. R. Civ. P. 62 (c), however, authorizes a trial judge to make the modification that was made here. “When an appeal is taken from an interlocutory or final judgment granting ․ an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal ․ as it considers proper for the security of the rights of the adverse party.”¹⁴ Mass. R. Civ. P. 62 (c). See Mass. R. A. P. 6 (a). See United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79 (9th Cir. 1951) (“when an appeal is perfected the [trial court] loses jurisdiction to take further action in the cause” but Rule 62 (d) “is an exception to that general rule and a recognition of the long established right of the trial court, after an appeal, to make orders appropriate to preserve the status quo while the case is pending in the appellate court”).¹⁵

In light of the explicit purpose of rule 62 (c) we conclude that the trial judge had jurisdiction to enter the clarification order. Here, while the appeal was pending DeMichele put up another structure blocking the Lawrences’ view. In the limited and particular circumstances of the present case, the trial judge had the authority to modify or clarify the injunction.

5. Breadth of the injunction. DeMichele argues that the clarification issued by the trial judge was too broad and may restrict legitimate uses of their property. We agree.

Given DeMichele's creativity in persisting with her attempts to block the Lawrences’ view, the expansive nature of the injunction issued by the trial judge was understandable. Nevertheless, we agree that the breadth of the injunction raises concerns that it could chill otherwise lawful activity on DeMichele's property. See Rattigan, 445 Mass. at 863-864.

In Rattigan, the trial court fashioned an injunction that restricted the defendant from, among other things, causing “substantial worry” to the plaintiffs. Rattigan, 445 Mass. at 864. Due to the history between the parties, there was little doubt in the Supreme Judicial Court's mind that any act performed by the defendant there would result in “substantial worry” to the plaintiffs. Id. In the present case, where the injunction issued by the trial judge enjoined DeMichele from blocking the Lawrences’ view “in any manner,” similar concerns arise. As the Supreme Judicial Court noted, “[s]ome small limitations of previously existing rights incident to property may be imposed for the sake of preventing a manifest evil” but “larger ones could not be except by the exercise of the right of eminent domain.” Rideout, 148 Mass. at 372-373. Here, enjoining DeMichele from doing anything on her property that might, in any way, block the Lawrences’ view from one of their three decks extends into a larger limitation than allowed by the spite fence statute. See id. In light of our concern, we remand solely for the trial judge to modify his order as to not unduly burden lawful activity.¹⁶ ,¹⁷

Conclusion. Based on the foregoing, the judgment and the order denying the motion for new trial are affirmed. The clarification order is vacated, and the matter is remanded solely for reconsideration of that order consistent with this memorandum and order.

So ordered.

FOOTNOTES

2.   The facts at trial were in dispute and left to the jury to resolve.

3.   Prior to the central events at issue in this appeal, there were numerous quarrels between members of the DeMichele family and the Lawrence family. This included a dispute between the Lawrences’ son and DeMichele's son that led to the police being called.

4.   Mrs. Lawrence called DeMichele “effing dumb, effing fat, effing ugly, effing redhead.” There was also evidence that Mrs. Lawrence accused DeMichele's son of being a drug addict.

5.   The neighbors had a number of other disputes not involving the Lawrences’ view from the Entertainment Deck.

6.   DeMichele disputes the claim that the tarps blocked the Lawrences’ view of Onset Bay.

7.   DeMichele filed a counterclaim for nuisance. The jury found in favor of the Lawrences on the counterclaim.

8.   The jury found in favor of DeMichele on the trespass claim.

9.   The original appeal and the appeal concerning the clarification order were consolidated by a single justice of this court.

10.   As DeMichele did not raise or argue the necessity element of the spite fence statute in her motion for directed verdict before the trial court, that argument is waived. See Shafnacker v. Raymond James & Assocs., Inc., 425 Mass. 724, 733 (1997). In any event, sufficient evidence was introduced to show that the arborvitaes were unnecessarily above six feet. Again, the videos provide evidence that could support DeMichele's claim that the height of the fence was necessary for her privacy. However, in reviewing a motion for directed verdict, “[w]e do not weigh the evidence or consider the credibility of witnesses” and “we ignore evidence that contradicts the testimony of the nonmoving party.” Mercado v. Manny's T.V. & Appliance, Inc., 77 Mass. App. Ct. 135, 138 (2010).

11.   Appellate counsel for DeMichele was not trial counsel.

12.   We acknowledge that there may have been a measure of persuasiveness to DeMichele's case at trial. Indeed, we have reviewed the videos depicting Mrs. Lawrence yelling at DeMichele and, at a minimum, aggravating the dispute between the parties. We further recognize DeMichele's right and desire for privacy in her home. While Mrs. Lawrence's conduct in the video was far from laudable, we are not in position to assess credibility or substitute another possible view of the evidence for that of the jury where it heard sufficient evidence to support its conclusion.

13.   DeMichele raises a number of State and Federal constitutional arguments related to this claim, none of which were raised in her motion to vacate the clarification order. Thus, they are waived. See Campbell Hardware, Inc. v. R.W. Granger & Sons, Inc., 401 Mass. 278, 280-281 (1987).

14.   Bolstering our interpretation, the precursor to Mass. R. Civ. P. 62 (c), G. L. c. 214, § 22 (repealed 1974), provided that the “justice of the superior court by whom the order or decree was appealed from was made, or any other justice of said court, may make any proper interlocutory orders, pending such appeal, including orders․ of injunction․ modifying or dissolving them.” And the notes of decisions confirm that “a statutory power arises in court that entered decree and in reviewing court to grant any needed injunction and to make any other proper interlocutory order pending the appeal.” Mass. R. Civ. P. 62 (c) restricts this authority to injunctions pending appeal, but our historical precedent provides that a Superior Court judge has the authority to modify an injunction while an appeal is pending.

15.   Fed. R. Civ. P. 62(d) is substantially similar to Mass. R. Civ. P. 62 (c) and we give weight to the adjudged construction of Federal rules which are similar. See Rollins Envtl. Services, Inc. v. Superior Court, 368 Mass. 174, 179-180 (1975).

16.   On remand the trial judge has discretion to determine the exact language of any clarification enjoining DeMichele from unreasonably interfering with or blocking the Lawrence's view of the ocean from the Entertainment Deck of their property, and from placing any object, including but not limited to vegetation, that would unreasonably interfere with or block the Lawrences’ view from the Entertainment Deck.

17.   After reviewing the entire record, including the videos submitted, we note that it is difficult to fathom that either party will benefit from the continuation of these disputes. The parties would be well served by ending this ongoing cycle of contentious interactions.