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14-P-1642                                              Appeals Court

     GEORGE EVANS     vs.    MAYER TREE SERVICE, INC., & others.1


                               No. 14-P-1642.

         Worcester.         September 9, 2015. - March 3, 2016.

             Present:   Meade, Wolohojian, & Milkey, JJ.


Practice, Civil, Summary judgment, Relief from judgment.
     Commissioner of the Department of Conservation &
     Recreation. Trespass. Real Property, Trespass, Removal of
     timber. Nuisance. Consumer Protection Act, Insurance,
     Unfair act or practice. Insurance, Unfair act or practice.



     Civil action commenced in the Superior Court Department on
January 31, 2011.

     The case was heard by Daniel M. Wrenn, J., on motions for
summary judgment, and a motion for relief from judgment was also
heard by him.


     E. Douglas Sederholm for the plaintiff.
     Denise M. Tremblay for Mayer Tree Service, Inc.
     James T. Scomby for Marquis Tree Services, Inc.
     Elizabeth W. Morse for Farm Family Casualty Insurance
Company.




     1
       Marquis Tree Services, Inc., and Farm Family Casualty
Insurance Company.
                                                                 2


     MILKEY, J.   In August of 2008, an invasive, wood-boring

insect known as the Asian longhorned beetle (ALH beetle) was

discovered in the Worcester area.   The ALH beetle infests

particular types of hardwood trees (host trees) that die as a

result.   Federal and State officials mobilized quickly to

address the problem.   Under the plans that they jointly

developed and implemented, host trees that showed tell-tale

signs of infestation were to be destroyed, together with those

additional host trees that were deemed to be at high risk of

infestation.   The actual tree removal work was to be done by

State contractors (and their subcontractors).

     The plaintiff, George Evans, owns property at 14 Randolph

Road in Worcester, where he lives with his wife.   There were

numerous host trees at his property, including Norway maples.

It is uncontested that in February of 2009, defendant Marquis

Tree Services, Inc. (Marquis),2 entered Evans's property and

destroyed at least twenty-one Norway maples there at the

specific direction of a Federal field inspector who mistakenly

believed that Evans had given written permission to have all

host trees on his property destroyed.

     The principal question before us is whether, under the

particular circumstances presented, Marquis can be liable


     2
       Marquis, the entity that cut Evans's trees, was a
subcontractor of defendant Mayer Tree Service, Inc.
                                                                    3


pursuant to G. L. c. 242, § 7, for destroying Evans's trees

"without license" to do so.   On cross motions for summary

judgment, a Superior Court judge ruled in the defendants' favor

in a detailed and thoughtful decision.   Because we conclude that

material facts remain in dispute that preclude entry of judgment

as a matter of law, we vacate the judgment.

    Background.    1.   The Legislative response to the ALH

beetle.   According to documents in the record, the ALH beetle

has the potential to devastate forestry and related industries

if it is not contained.   By emergency statute enacted on January

13, 2009, the Legislature declared the ALH beetle to be a public

nuisance, and it provided the Department of Conservation and

Recreation (DCR) broad authority to address the problem.      See

St. 2008, c. 493, § 1, amending G. L. c. 132, § 11.   This

included authority to "enter upon any land . . . for the purpose

of determining the existence, over-all area and degree of

infestation or infection caused by the public nuisances named in

section eleven [including ALH beetles, and] suppressing and

controlling said public nuisances."   G. L. c. 132, § 8, as

amended through St. 1956, c. 657, § 2.   The statute also gave

DCR general authority to "make use of and require the use of all
                                                                    4


lawful means of suppressing such public nuisances."   G. L.

c. 132, § 11.3

     2.   DCR general orders.   On August 8, 2008, that is, even

before the Legislature declared the ALH beetle to be a public

nuisance, DCR issued a general order addressing its plans to

eradicate the ALH beetle from Massachusetts.   That order applied

to a specifically designated area of central Massachusetts

referred to as "the Affected Area."    In addition to strictly

regulating the transport of firewood and certain other materials

from host trees inside the Affected Area, the order stated that

     "DCR may authorize, under separate agreements, DCR's duly
     authorized agents or designees . . . to enter upon the
     Affected Area and undertake activities necessary for
     suppressing, controlling and eradicating [the ALH beetle],
     including removing or causing to be removed, and the
     destruction thereof, all Regulated Articles,[4] within the
     Affected Area that are, may be or have the potential to be
     infested or infected by [the ALH beetle]."

The order went on to state that "[w]hile DCR seeks to implement

this Order to ensure eradication of [the ALH beetle], DCR plans

     3
       In the nuisance abatement context, the Legislature
sometimes has spelled out what procedural protections apply
before private property is destroyed. For example, the
statutory program designed to fight Dutch Elm disease specifies
that officials are to issue individual tree removal orders that
property owners can appeal or face the consequences. See G. L.
c. 132, §§ 26F, 26G. With regard to the ALH beetle, the
Legislature did not specify how ALH beetle eradication efforts
should be implemented but, instead, left all program design
issues to DCR.
     4
       "Regulated articles" was defined by reference to host
trees to include "material living, dead, cut or fallen."
                                                                   5


to do so in a reasonable manner, to the extent possible, to

minimize impacts to private property."   Amended orders were

issued from time to time in order to expand the geographical

scope of the Affected Area.5

     3.   Tree marking and removal protocols.   Working in

partnership with the Animal and Plant Health Inspection Service

(APHIS) within the United States Department of Agriculture

(USDA), DCR developed protocols through which the agencies would

pursue their eradication goals.   The first step in the process

was to survey trees in areas known or suspected to be infested

to look for outward signs of infestation, such as "an exit hole

or an egg-laying site on [the tree] or an actual live beetle."

Trees that revealed such signs were marked with red paint.      Host

trees that did not show signs of infestation were marked with

blue paint.   Thus, host trees marked with red paint

(hereinafter, red-marked trees) were known to be infested, while

host trees marked with blue paint (hereinafter, blue-marked

trees) were not.   Blue-marked trees were at risk of becoming

infested, especially to the extent they were in proximity to

where infestation had been found.6


     5
       There was a separate Federal order released, but that
order dealt only with quarantine issues.
     6
       A blue-marked tree already might be infested but not show
outward signs of infestation. For this reason, we will avoid
referring to blue-marked trees as "uninfested trees." In
                                                                    6


     From the beginning of the ALH beetle eradication program,

red-marked trees were slated for destruction, specifically,

through their being cut down and then chipped into small pieces.

The fate of individual blue-marked trees depended on the

particular degree of risk they posed.    It appears that some

blue-marked trees could be treated with chemicals while others

presented such unacceptably high risks that they would have to

be destroyed.7   As discussed below, a DCR official provided

deposition testimony that all host trees would have to be

removed in a particular area of dense infestation.

     4.   Individual tree removal orders.   In consultation with

APHIS, DCR developed standard forms that would be sent to

individual property owners in the event that trees "on or near

the[ir] premises" were found to be infested.    One form, labeled

a "tree removal" order, notified the owner that "[t]he . . .

trees that have been previously marked with red paint

(indicating an infested tree) on the above-referenced Premises

are to be cut, removed and destroyed."    With regard to blue-



addition, we will avoid referring to them as "host trees" (a
shorthand used by many of the underlying documents) because both
red-marked trees and blue-marked trees are host trees.
     7
       Thus, for example, the "cooperative agreement" that APHIS
and DCR signed on December 22, 2008, notes that blue-marked
trees are to be chemically treated "to protect [them] from
infestation," while also stating -- without further specificity
-- that "certain high risk" blue-marked trees would have to be
destroyed.
                                                                   7


marked trees, the individual orders stated that such trees "may

need to be removed and destroyed [and that] [i]f such a

determination is made by USDA or DCR, notice will be provided in

advance that such additional hardwood trees are subject to this

Order."

     The individual tree removal orders also warned property

owners that "[f]ailure to permit authorized contractors to

perform the removal actions at the Premises, and any failure to

otherwise comply with this Order, will result in the DCR seeking

enforcement of this Order in Superior Court."    By statute,

     "[w]hoever knowingly resists or obstructs the [DCR]
     commissioner, any local superintendent or employee or
     authorized agent of any of them, while any of those persons
     is engaged in suppressing or eradicating the Asian
     longhorned beetle . . . shall be subject to a civil penalty
     of not more than $25,000 for each violation."

G. L. c. 132, § 12, as amended through St. 2008, c. 493, § 2.

     5.   Permission forms.   When DCR mailed individual tree

removal orders to property owners, it enclosed a separate

"acknowledgement and permission" form for property owners to

sign.    Property owners signing that form would thereby be

acknowledging that they had received the tree removal order and

that they were granting permission to have trees "previously

marked with red paint" destroyed.8   The form specifically


     8
       Under an alternative version of that document in the
record, property owners were asked to permit the destruction of
"the hardwood trees that are the subject of the Removal Order,"
                                                                     8


informed property owners that blue-marked trees "are not

required to be cut and removed at this time."    However, property

owners also were told they could opt to have their blue-marked

trees cut, without cost to them.    Thus, property owners were

presented with three options:   (1) they could give permission to

have only red-marked trees on their property cut, (2) they could

give permission to have both red-marked and blue-marked trees

there cut, or (3) they could decline to sign the form

(signifying that they had not given permission for the removal

of any trees).

    In the event that a property owner refused to sign the

permission form, DCR escalated its efforts to persuade the owner

to do so, and if necessary, DCR referred the matter to the

Attorney General for enforcement.   At least on the record before

us, there were only two occasions where DCR had to refer the

matter to the Attorney General (both involving red-marked

trees).   In both cases, DCR ultimately was able to obtain the

owner's permission without the need for a court order.

    6.    Mapping of property owner consent.   The relevant

officials used various geographic information system maps to



without attention to whether the trees were marked in red or
blue. Internal government records from December of 2008
indicate a perceived need to modify the language of the standard
permission form so that property owners could expressly grant
permission to have blue-marked trees removed. This indicates
that the alternative version was an earlier one.
                                                                    9


track the extent to which property owners had permitted the

removal of host trees from their property.     The properties for

which owners had given permission to have only red-marked trees

cut were shown in red (or pink), those who had given permission

to have all marked host trees cut were shown in blue, and those

who had not given permission were marked in white.

     7.   The contracts.   DCR solicited bids for private

contractors to do the actual tree removal work.9    Through that

process, DCR awarded a bid to defendant Mayer Tree Service, Inc.

(Mayer), who in turn awarded a subcontract to Marquis with DCR's

approval.   It is uncontested that the bid specifications were

incorporated into Mayer's contractual obligations with DCR, as

set forth in the "notice to proceed."    It is also uncontested

that Marquis agreed to abide by those contractual obligations in

its subcontract with Mayer.

     The bid specifications to which Mayer and Marquis agreed

required Mayer to "ensure that it performs its work in such a

manner to ensure no damage to private and personal property

contiguous to tree cutting activities, including those public

and private trees designated to remain."     Under the bid


     9
       The contracts were funded by USDA, but DCR was the only
government party to the contract. The defendants seek to rely
on DCR's statutory authority to destroy host trees, and they
have not invoked or briefed any independent authority that USDA
might have had in this regard.
                                                                  10


specifications, Mayer was prohibited from entering private

property if it was not "in receipt" of written permission.10

Where a private party had given such written permission for

Mayer to enter, Mayer agreed to hold that property owner

harmless for any contractual breaches by it and for any

negligent acts by it or its officers, employees, agents, or

subcontractors.    Mayer was also required to carry significant

amounts of comprehensive general liability insurance coverage

for potential third-party personal injury and property damage

claims.

     8.   The cutting of Evans's trees.   Various tree surveys

were conducted of Evans's property in 2008, including through

the use of United States Forestry Service employees known as

"smoke jumpers" who climbed the trees.    A total of thirty-six

host trees were discovered there, including twenty-five Norway

maples, nine Japanese maples, an American elm, and a white ash.

At least prior to February 9, 2009 (the first date that Evans

alleges trees were cut on his property), no infested trees had

been found there, and therefore none of Evans's trees had been

marked in red.    Ten of the thirty-six host trees, all Norway

     10
       The relevant provision stated that "[t]he Contractor
shall not enter any private property unless [it] is in receipt
of a Permission Slip from the property owner substantially in
the same form as Exhibit C prior to the Contractor during [sic]
any tree removals." Neither the defendants nor DCR produced a
copy of the permission form referenced as "Exhibit C," and that
form is therefore not before us.
                                                                  11


maples, were marked with blue paint as a result of the 2008

inspections.   No explanation appears in the record as to why the

other host trees were not marked in blue at that time.

     It is undisputed that Evans never signed a written

permission form permitting the cutting of any trees on his

property.   Nevertheless, Crystal Franciosi, the USDA inspector

who was overseeing tree removal that day, mistakenly believed

that Evans had granted permission to cut all host trees there.11

Franciosi directed Marquis to enter Evans's property on February

10 and 11, 2009, and to destroy twenty-one Norway maples there.12

Ten days after his trees were cut, Evans received a removal

notice and order in the mail, together with the permission

form.13   These documents apprised Evans that he had the option of


     11
       Because Evans had not signed a permission form, his
property should have been shown in white on the map that tracked
property owner permission. APHIS investigators appear to have
concluded that Evans's property was accurately shown in white on
the map, despite Franciosi's initial claims that it was marked
in blue. In any event, at least for present purposes, it
matters not whether Franciosi erroneously read a correctly
marked map, or correctly read an erroneous one.
     12
       On February 9, 2009, Marquis was cutting host trees on
property owned by the Nazarene Church that abuts Evans's land.
Evans claims that four of the Norway maples that were destroyed
that day were actually on his land. However, there is nothing
in the summary judgment record (save Evans's unsubstantiated
assertions) that four trees cut on February 9, 2009, were on his
side of the property boundary, nor have the defendants admitted
this fact.
     13
       Curiously, the order that Evans received was dated
December 10, 2008, even though the postmark on the envelope
                                                                    12


not having blue-marked trees removed at this time, and that such

trees would be removed only if he so desired.

     9.    APHIS investigation.   After Evans complained about the

destruction of his trees, Christine Markham, the director for

APHIS's national ALH beetle eradication program, looked into the

matter.    Her review confirmed that Evans had never granted

written permission to have his trees destroyed.    She also

personally apologized to him both privately and publicly.      In

her words, the apology was for "the mistake made by USDA in the

removal of his host trees."14

     10.   Total host removal area.   In the course of discovery,

Evans deposed Kenneth Gooch, a DCR official.    According to

Gooch's testimony, government officials had decided that in a

two and one-half square mile area that included Evans's

property, actual infestation was so widespread that all host

trees in that area would have to be removed, regardless of

whether they showed current signs of infestation, and regardless

of whether property owners were willing to give their

permission.   For convenience, we will refer to such an area by



indicates that it was mailed on February 20, 2009. The
defendants have not asserted that the order was received by
Evans before his trees were cut.
     14
       In addition to Markham's review, APHIS also conducted a
formal investigation, which culminated in a report dated March
23, 2009. That report's conclusions are consistent with those
reached by Markham.
                                                                    13


the same name used by the motion judge, the "total host removal

area."

     11.    The summary judgment record.   On July 30, 2012, Evans

served on the defendants a motion for partial summary judgment

as to liability, supported by his verified complaint and a

separate affidavit.    With discovery not having been completed,

the defendants obtained a stay of their obligation to respond to

Evans's motion.   After discovery had been completed, the

defendants served their own summary judgment motions, with Mayer

filing the lead motion.    Although Evans's motion was first in

time, the defendants did not treat their own motions as cross

motions to the one Evans had already served, despite Evans's

protests.   Instead, they began the process of creating a second

summary judgment record, while separately responding to Evans's

motion.15

     In their own statement of undisputed material facts, the

defendants averred, based on Gooch's deposition testimony, that

State and Federal officials had established a total host removal

area and that Evans's property fell within it.    Evans disputed

both points in his written response to the defendants' statement

of material facts, which he served on the defendants.     He also


     15
       Pursuant to Superior Court Rule 9A(b)(5)(v), there should
be a single consolidated statement of material facts even where
there are cross motions for summary judgment.
                                                                  14


attached a second affidavit and various other documents in

support of his responses.   Notwithstanding this, because of a

pointed dispute that the attorneys had over "service in

electronic form by email," see Superior Court Rule 9A(b)(5)(i),

the defendants did not include Evans's response to the statement

of material facts (including his additional supporting

materials) in the summary judgment package that they filed

pursuant to Superior Court Rule 9A (rule 9A).16   As a result,

nothing in the rule 9A package alerted the motion judge to the

fact that Evans was purporting to contest the existence and

location of any total host removal area.

     12.   Summary judgment ruling.   In his summary judgment

decision, the judge ruled that based on the "undisputed facts


     16
       Counsel for Mayer took the position that she had no duty
to include Evans's response in the rule 9A package, because
Evans's counsel refused to provide her with an electronic
version of his documents (based on his view that rule 9A did not
require him to do so under the particular circumstances
presented). After the dispute between the lawyers about how
rule 9A should be interpreted became particularly unseemly,
counsel for Mayer went ahead and filed her rule 9A package
without either including Evans's response or noting its absence.
She did simultaneously file a separate "emergency" motion
seeking an order compelling Evans to serve an electronic version
of his new summary judgment documents, and in that manner sought
to raise the merits of the rule 9A dispute for judicial
resolution. However, after that motion was summarily denied (on
the basis that there was no "emergency"), Mayer's counsel
dropped her efforts to have the rule 9A dispute resolved and let
the existing rule 9A package stand. When the motion for summary
judgment eventually went forward, Evans's counsel apparently
failed to notice that the documents he had served on the
defendants by hard copy had never been put before the judge.
                                                                    15


. . . Marquis had license to remove the trees in question from

the Property, and thus, the Defendants are not liable as a

matter of law under the trespass to trees statute [G. L. c. 242,

§ 7]."   According to the judge, "[i]t is irrelevant that the DCR

sought to obtain permission from property owners, [because] it

was not legally required to do so[;] [i]t is clear that the DCR

had the authority to enter onto the Property and remove the

trees in question, regardless of whether Evans gave permission."

The judge also accepted as undisputed that Evans's property was

located in a total host removal area, and he relied on this fact

in part in his ruling, commenting that this helped show that DCR

had "specifically sanctioned the removal of the trees in

question."

    13.    Rule 60(b) motion.   After judgment had entered, Evans

hired new counsel who filed a motion seeking relief from

judgment pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974).

That motion asserted inter alia that Mayer's lawyer had

committed a fraud on the court by not including Evans's response

in the rule 9A package.   It also asserted that the failure by

Evans's former counsel to raise the issue sooner constituted

"excusable neglect."   The same judge who allowed the defendants'

motions for summary judgment denied the rule 60(b) motion.     He

ruled that Evans could not reopen the proceedings and add the

additional materials to the summary judgment record, because he
                                                                       16


had not met the standards applicable to rule 60(b) motions.17          He

added that, in any event, Evans's claims failed as a matter of

law regardless of whether his property fell within any total

host removal area.        In the judge's words,

     "even if Evans'[s] trees were not technically in the 'Total
     Host Removal Area,' it does not change the fact that -- as
     Evans concedes -- Evans'[s] trees were 'host' trees and
     that Marquis cut Evans'[s] trees after receiving
     instructions to do so from a USDA representative . . .
     facts [that,] alone, are sufficient to show that Marquis
     . . . had a 'license' i.e., permission, to cut the trees
     down."

Evans filed timely appeals of both the judgment and the denial

of his rule 60(b) motion.

     Discussion.     1.     Marquis's liability.   Evans principally

sought damages against Mayer and Marquis pursuant to G. L. c.

242, § 7.18   That section reads in full as follows:

     "A person who without license willfully cuts down, carries
     away, girdles or otherwise destroys trees, timber, wood or
     underwood on the land of another shall be liable to the
     owner in tort for three times the amount of the damages
     assessed therefor; but if it is found that the defendant

     17
       Although the judge concluded that Evans should have
served an electronic version of his response to Mayer's
statement of material facts, the judge did not rely on the
provision in rule 9A(b)(5)(ii) that states that "[f]or purposes
of summary judgment, the moving party's statement of a material
fact shall be deemed to have been admitted unless controverted
as set forth in this paragraph." Instead, he focused on whether
the record should be expanded to include Evans's additional
materials and whether this would have made any difference.
     18
       Evans also filed claims against Mayer, Marquis, and their
insurer, defendant Farm Family Casualty Insurance Company, based
on the failure by all of them to remedy the damage to Evans's
trees.
                                                                       17


     had good reason to believe that the land on which the
     trespass was committed was his own or that he was otherwise
     lawfully authorized to do the acts complained of, he shall
     be liable for single damages only."

Before we turn to the statute's application to this case, a few

general observations about its workings are in order.       The

statute provides a tort remedy through which property owners can

seek damages from "person[s]" who cut down or otherwise

destroyed their trees "without license."       So long as the act of

cutting was intentional and the act was without license,

liability exists -- albeit for single damages only -- even where

the person cutting the trees had "good reason to believe" he was

"lawfully authorized" to do so.    See Moskow v. Smith, 318 Mass.

76, 77-78 (1945).     Thus, liability is not based on fault.      A

tree cutter faces no liability under the statute only where he

had actual "license" to cut the trees, which the statute equates

with being "lawfully authorized" to do so.

     The statute dates at least as far back as a Province Law of

1698.     See Province Laws 1698, c. 7, § 2.   As originally

enacted, it appears aimed at the problem of people stealing wood

from other owners or from the public commons.19      However, the



     19
       Owners deprived of their wood were entitled to recover
"twenty shillings for every tree of one foot over, and ten
shillings for every tree under that bigness, and for other wood
or underwood treble the value thereof." Province Laws 1698,
c. 7, § 2. The applicable damages and the availability of other
sanctions changed from time to time until 1836, when the statute
                                                                     18


statute's language is not limited to that context.      Thus, the

language does not speak of the stealing of trees but instead

applies broadly to anyone who without license "cuts down,

carries away, girdles or otherwise destroys trees" owned by

others.   We therefore have recognized that the statute applies

where someone cut down trees not to appropriate their wood, but

solely to improve his view.      Glavin v. Eckman, 71 Mass. App. Ct.

313, 316-317 (2008).   We also have recognized that the damages

available under the statute are not capped at the timber value

of the wood.   Id. at 317-318.

    In the case before us, the trees were cut incident to a

nuisance eradication program.     Because property may not be used

to maintain a public nuisance, States may destroy private

property without compensation if necessary to abate such a

nuisance.   Mugler v. Kansas, 123 U.S. 623, 668-669 (1887).20       It




essentially took its current form (subject only to very minor
changes since). See R.S. (1836), c. 105, §§ 10, 11.
    20
       This principle has long been applied to the destruction
of infested or infected trees that may spread a pestilence to
other trees. See Miller v. Schoene, 276 U.S. 272, 279-280
(1928). Of course, even when governments have been broadly
authorized to eradicate nuisances, there may be constitutional
limitations on their unfettered destruction of private property.
For example, one court has held that as a matter of due process,
a State agency that was broadly authorized to eradicate a pest
that attacked citrus trees (the burrowing nematode) must first
give grove owners a predeprivation hearing (even though the
statute provided an after-the-fact compensation scheme with
regard to uninfested trees that were destroyed in the process).
                                                                  19


follows that a contractor who had been duly authorized to

destroy privately owned trees as part of a statutory nuisance

eradication program would have "license" to do so, and therefore

could not be liable pursuant to G. L. c. 242, § 7.21   Compare

Blair v. Forehand, 100 Mass. 136, 144-145 (1868) (owners of

unlicensed and uncollared dogs had no action for trespass or

trover against town constable who acted within his express

statutory authority in killing the dogs).

     It is uncontested that Marquis destroyed Evans's trees at

the specific instruction of the government official who was

overseeing field operations that implemented a program broadly

authorized by the Legislature to eradicate the ALH beetles.

Concluding in effect that this necessarily meant that Marquis

was acting with "license," the judge ruled that Evans's action

failed as a matter of law.   The flaw in this reasoning is that

it does not account for the possibility that the agency

instructions pursuant to which Marquis cut the trees were

invalid and the trees were simply cut by mistake.   See Tower v.



State Plant Board v. Smith, 110 So. 2d 401, 407-409 (Fla. 1959).
Evans has not raised any constitutional claims.
     21
       For purposes of its summary judgment motion, Marquis
focused on its argument that it had license to cut the trees
because it was acting pursuant to delegated governmental
authority. It did not press its alternative theory that Evans's
being present at the site during the cutting without voicing an
objection amounted to license. A factual dispute over this
alternative theory remains.
                                                                   20


Tower, 18 Pick. 262, 263 (1836) (because Legislature had

authorized summary killing of unlicensed, uncollared dogs, tort

action would not lie against defendant-neighbor except where

collared dogs were killed by mistake).

     As Evans points out, DCR created a program under which it

would provide property owners specific notice of its planned

eradication actions.    Whether and when privately owned trees

were actually destroyed then turned on the landowner's providing

written permission.22   Although DCR reserved the right to seek a

court order in the event that a property owner refused consent,

no host trees otherwise were to be destroyed absent that

consent.   The question is whether, in creating its protocols,

DCR thereby limited its broad authority to cut trees without a

property owner's permission.     In our view, that question should

not be answered based on the current summary judgment record.

     The protocols that DCR developed were not the product of

formally promulgated regulations carrying the force of law.      See

generally Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 496

(2010).    As a general matter, unpromulgated guidelines setting

forth internal agency procedures are not considered binding on

an agency.    Id. at 496 n.11.   See Golchin v. Liberty Mutual Ins.

     22
       DCR explained that designing the program in this manner
expedited the eradication process by avoiding legal disputes
between DCR and property owners. The fact that protecting
property owner rights simultaneously may have furthered the
agency's eradication efforts is of no legal moment.
                                                                  21


Co., 460 Mass. 222, 231 (2011) ("Where the commissioner does not

consider bulletins to be binding regulations, we are not

inclined to hold otherwise").   However, the case law also

recognizes that in certain contexts, agency pronouncements can

be binding on the agency even where they have not formally been

promulgated as regulations.   See Macioci v. Commissioner of

Rev., 386 Mass. 752, 763 (1982) (Commissioner of Revenue had

duty to conform to guidelines issued to public).    The cases have

distinguished between guidelines that "concern[] only internal

management of State agencies" and those designed to "affect the

rights of or procedures available to the public."   Amato v.

District Attorney for the Cape & Islands Dist., 80 Mass. App.

Ct. 230, 238 n.15 (2011), citing G. L. c. 30A, § 1(5)

(Administrative Procedure Act codifying this distinction).     See

Global NAPs, Inc., supra at 496 n.11.   Where an agency has

published guidelines on how it is going to proceed and has

implicitly invited affected members of the public to rely on

them, such guidelines can be deemed to constrain the agency's

actions.

    The summary judgment record before us is not well developed

on whether DCR's policy of obtaining property owners' written

consent should be treated as the sort of pronouncement that

constrains agency action.   For example, there is little in the

record indicating the extent to which that policy was published
                                                                   22


to affected members of the public.   At the same time, there are

some indications in the record, such as Markham's public

acknowledgement that Evans's trees were cut by "mistake," that

suggest that the agencies may have intended that members of the

public rely on the policy.   Another factor lending potential

support to Evans's position is that the contractual arrangements

under which Mayer and Marquis nominally were operating

prohibited them from entering private property without an

owner's written permission and otherwise included provisions

designed to protect property owner rights.23    In our view,

determining whether DCR's authority to instruct Marquis to cut

down Evans's trees was curtailed by its policies regarding

written permission needs further factual development.

     We recognize that Marquis's actions were specifically

directed by Franciosi, a Federal employee.     This may well

provide Marquis "good reason to believe" that it had authority

to cut Evans's trees (thus shielding Marquis from treble




     23
       We acknowledge that -- regardless of the nominal terms of
the contracts under which Marquis was operating -- it appears
undisputed that treecutters such as Marquis would not refuse to
enter private property unless they had written permission in
hand, but instead simply would follow the directives of the
government field inspectors. However, the existence of such an
unexplained discrepancy, if anything, provides further support
for not trying to resolve this case on the current summary
judgment record.
                                                                  23


damages).24   However, Franciosi's mistaken instructions could not

provide actual "license" to cut the trees if such instructions

were legally invalid.25

     In reaching our conclusion, we have assumed, without

deciding, that the judge did not abuse his discretion in denying

the Mass.R.Civ.P. 60(b) motion.26   Thus, we have not relied on

those additional factual materials that Evans sought to include

in the summary judgment record, and we have assumed arguendo

that Evans's trees fell within a total host removal area.     That

Evans's trees may have been slated for eventual destruction

obviously has significant potential ramifications for the amount




     24
       Neither side has briefed this issue, and we decline to
reach it. We express no opinion on whether this issue can be
resolved as a matter of law or instead requires submittal to a
jury.
     25
       Burroughs v. Rane, 241 Mass. 1 (1922), is not to the
contrary. That case held that the State forester who -- acting
pursuant to statutory authority -- had relied on "needy" persons
to conduct a gypsy moth eradication program could not be liable
in tort for tree damage caused by a fire that may have been
started negligently. Id. at 4-6. The case does not address the
potential liability of those who actually started the fire.
     26
       Although we have no occasion to reach the merits of the
rule 9A dispute that underlies the rule 60(b) motion, we do note
that counsel on both sides did not clothe themselves in glory
with regard to how those issues played out, and that their joint
conduct unnecessarily placed the motion judge in an extremely
difficult position.
                                                                     24


of damages to which Evans might be entitled.27    The defendants

might have prevailed on summary judgment if they had shown that

Evans in no event could have kept his trees for an appreciable

period of time had they not been cut by mistake.     However, on

the current record, we cannot reasonably say that Evans has no

hope of demonstrating that.     After all, the defendants have not

presented a single other example of where any host tree was cut

without an owner's permission, or even any example of where DCR

ever sought a judicial order to take down a blue-marked tree

against an owner's wishes.     We further note that Marquis did not

destroy Evans's nine Japanese maples, American elm, and white

ash, and from all that appears before us, those host trees

remain today.   We leave the import of whether Evans's trees fell

within a total host removal area to further proceedings.

     2.   Mayer's liability.    It is uncontested that Marquis, not

Mayer, actually cut Evans's trees.     However, it is also

uncontested that when Marquis cut the trees, it was working as

Mayer's subcontractor, and Evans has alleged that Mayer bears

liability pursuant to G. L. c. 242, § 7, as Marquis's principal.

See Corsetti v. Stone Co., 396 Mass. 1, 10-11 (1985) (contractor

is subject to liability for torts of its subcontractor where it

retains "sufficient control" over subcontractor's work).     On

     27
       In other words, Evans's assumption that a finding of
liability necessarily would mean that he is entitled to the full
replacement value of his lost trees is flawed.
                                                                    25


appeal, Mayer makes a passing argument that even if Marquis

faces liability pursuant to the statute, Mayer itself does not

because it did not in fact direct Marquis to destroy these

particular trees (even though it had a contractual right to

control Marquis's actions).    That argument was not developed

below, and the judge had no occasion to address it.    Especially

in light of the current state of the briefing, we decline to

reach Mayer's argument that it could not derivatively be liable

as a matter of law.28

     3.   Liability of the insurer.   In count five of his

complaint, Evans alleges that defendant Farm Family Casualty

Insurance Company (Farm Family), which insured both Marquis and

Mayer, faces its own liability pursuant to G. L. c. 93A, § 9(3),

and G. L. c. 176D, § 3(9)(f).    This count is based on the claim

that Farm Family failed to make a reasonable offer of settlement

after the liability of its insured parties had become reasonably

clear.    See Van Dyke v. St. Paul Fire & Marine Ins. Co., 388

Mass. 671, 677-678 (1983).    Although we have concluded that at

least Marquis faces potential liability pursuant to G. L.

c. 242, § 7, that exposure has up until now not been reasonably

clear, and it remains in significant doubt today.     See Clegg v.

     28
       For similar reasons, we decline to address the viability
of counts three and four of Evans's complaint, in which he
alleges that Marquis and Mayer somehow face liability under
G. L. c. 93A.
                                                                   26


Butler, 424 Mass. 413, 421 (1997) (reasonably clear liability

"encompasses both fault and damages").   As a result, count five

as pleaded is, at a minimum, premature.29

     4.   Disposition.   The judgment dismissing Evans's complaint

is vacated.   In view of that disposition, the appeal from the

order denying Evan's Mass.R.Civ.P. 60(b) motion has become moot,

and we dismiss it as such.   The case is remanded to the Superior

Court for further proceedings consistent with this opinion.30

                                    So ordered.




     29
        Farm Family argues that a different judge erred in
denying its motion to dismiss challenging the adequacy of its
c. 93A demand letter. Given that we conclude that Evans to date
has had no basis for asserting that Farm Family faced c. 176D
liability, we need not reach the formal adequacy of such a
letter.
     30
       Although we have ruled in Farm Family's favor with regard
to count five, the question of whether Farm Family would be
entitled to separate and final judgment is not before us. See
Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974).
