CITY OF TAUNTON v. MILAD DBAIB and KHALIL DOBEIB

In 2011, the City of Taunton asked this Court to shut down an alleged wrecking yard on a property at 272 Winthrop Street in Taunton. Defendant Milad Dbaib owns 272 Winthrop Street. The property abuts another at 274 Winthrop Street. The latter property hosts a gas station and auto-repair/towing business operated by Mr. Dbaib and his co-defendant, Khalil Dobeib. Many of the nearby properties are residences, and the activities at 272 and 274 Winthrop have disturbed the neighbors.

The City's lawsuit against Dbaib and Dobeib resulted in a consent judgment approved by this Court (Sands, J.) in September 2012. The judgment enjoined Dbaib and Dobeib from using 272 Winthrop for the storage or "placement" of vehicles, storage of materials, and as a wrecking yard, unless and until Dbaib and Dobeib brought their operation into "full compliance" with 26 conditions. The consent judgment also conditioned any resumption of the enjoined activities on their being "in full compliance" with all applicable law.

The consent judgment contained no reporting or other requirements that are useful in gauging a party's compliance with a court order. By being silent on such matters, the consent judgment left enforcement largely up to the City, and for whatever reason, the City chose for a long time not to involve the courts in that effort. That ended in February 2017, when the City filed in this Court a verified complaint for contempt. The complaint alleged that Dbaib and Dobeib had never ceased 272 Winthrop's prohibited uses, and that they never had complied with all 26 conditions of the consent judgment. The City sought an order directing Dbaib and Dobeib to cease all use of 272 Winthrop Street. The City also asked the Court to fine Dbaib and Dobeib for their misconduct and award the City attorneys' fees relating to enforcement of the 2012 consent judgment.

Proceedings on the City's complaint for contempt marched towards a September 2017 trial date. At the final conference before trial, counsel for Dbaib and Dobeib asked for a five-month continuance of the trial date on account of Mr. Dobeib's health. The Court granted the request on the condition that the parties reach agreement on measures aimed at bringing 272 Winthrop Street into compliance with the 2012 consent judgment. Those efforts resulted in a September 2017 Interim Order, which the Court issued with the parties' consent.

The City was more vigilant about enforcing the Interim Order than it had been with the consent judgment. On October 18, 2017, the City filed a Second Verified Complaint for Contempt. That complaint charges Dbaib and Dobeib with having violated the Interim Order in seven respects. The Clerk summoned Dbaib and Dobeib to appear for a hearing on October 30, 2017, to respond to the City's charges. Mr. Dbaib appeared along with his and Mr. Dobeib's counsel. At the hearing, the Court took testimony from Robert P. Pirozzi, Taunton's building commissioner and chief of inspections. Based on that testimony, the City's Second Verified Complaint, and the arguments of counsel, the Court finds the following facts:

1. Paragraph 1 of the Interim Order states: "The parties stipulate that the number of vehicles presently on [272 Winthrop Street (the "Property")] is 66. . . . Defendants are hereby prohibited from increasing the number of vehicles on the Property. . . ."

2. At the time the Court issued the Interim Order, Mr. Dbaib understood the word "vehicle" as it appears in paragraph 1 of the Interim Order.

3. As of October 11, 2017, there were at least 70 vehicles on the Property (the "First Alleged Violation").

4. Paragraph 1 of the Interim Order states: "Defendants shall remove a van on the rear of the Property (one pictured in the photograph attached as Exhibit A to this Order) on or before October 10, 2017."

5. At the time the Court issued the Interim Order, Mr. Dbaib understood that he had been ordered to remove the van from the Property.

6. As of October 11, 2017, while the van had been removed from the 100-foot buffer zone surrounding bordering vegetated wetlands on the Property, the van was still on the Property (the "Second Alleged Violation").

7. Paragraph 1 of the Interim Order states: "No vehicles . . . (except one of the Defendants' personal vehicles, during business hours only) shall be stored or placed in front of the Property."

8. On October 11, 2017, two vehicles were parked in front of the Property. A customer of the business at 274 Winthrop Street owned one of the vehicles. Mr. Dbaib owned the other vehicle, although it was unregistered. (The "Third Alleged Violation".)

9. Paragraph 2 of the Interim Order states: "Defendants shall comply immediately with Conditions Nos. 4 [and] 10 . . . of the 2012 [consent judgment]."

10. Condition No. 4 of the 2012 consent judgment states: "A portion of [the] property falls within the 100 foot buffer zone of a bordering vegetated wetland (BVW). No vehicles may be stored within this buffer zone. . . ."

11. At the time the Court issued the Interim Order, Mr. Dbaib understood that he was not allowed to store any vehicles within the 100-foot buffer zone.

12. On October 11, 2017, several vehicles were within the 100-foot buffer zone (the "Fourth Alleged Violation").

13. Condition No. 10 of the 2012 consent judgment states: "The site shall be kept clean and clear of debris."

14. At the time the Court issued the Interim Order, Mr. Dbaib understood that "debris" as it appears in Condition No. 10 includes scrap lumber, pallets not used for storage of parts (or stacked in anticipation of such use), and automobile parts not contained within vehicles or kept in organized storage.

15. On October 11, 2017, scrap lumber, unused pallets, and automobile parts not contained within vehicles were lying on the ground at 272 Winthrop Street (the "Fifth Alleged Violation").

16. Paragraph 3 of the Interim Order states in part: "Defendants shall, on or before October 10, 2017, modify an existing gate, or install a new gate, so as to make the storage area on the Property not visible from the street."

17. As of October 11, 2017, a gate had been erected on the Property, but the parties dispute the degree to which it shields the Property's storage area from the street (the "Sixth Alleged Violation").

18. Paragraph 4 of the Interim Order states: "In lieu of the post and rail fence described in Condition No. 13 of the 2012 [consent judgment], Defendants shall, on or before October 10, 2017, install snow stakes."

19. Condition No. 13 of the 2012 consent required a post and rail fence to "be installed along the boundary of the no touch line shown on the plan. . . ."

20. At the time the Court issued the Interim Order, Mr. Dbaib understood what Condition No. 13 calls "the boundary of the no touch line shown on the plan."

21. As of October 11, 2017, no snow stakes had been installed on the no-touch line (the "Seventh Alleged Violation").

22. Mr. Dbaib offered no excuse for the acts or omissions described in Findings 3, 6, 8, 12, 15, 17 and 21, nor did he claim that compliance with the Interim Order was impossible.

In view of the facts found above, the Court holds Messrs. Dbaib and Dobeib in contempt of the Court's Interim Order.

"In order to constitute contempt, there must be, in addition to a clear and unequivocal command, an 'equally clear and undoubted disobedience.'" Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501 , 567 (1997), quoting Nickerson v. Dowd, 342 Mass. 462 , 464 91961). A party must prove contempt by clear and convincing evidence. See In re Birchall, 454 Mass. 837 , 853 (2009). The Court rules that five of the seven Alleged Violations (that is, all but the Third and Fifth Alleged Violations) constitute clear and undoubted disobedience of the Interim Order, and the City has proven each such violation by clear and convincing evidence.

(The Third Alleged Violation does not constitute contempt because the City did not prove that Messrs. Dbaib or Dobeib "stored" or "placed" their customer's vehicle in front of 272 Winthrop Street on October 11, 2017. Paragraph 1 of the Interim Order expressly allowed Dbaib and Dobeib to place their personal vehicles in that location. The City has not proven the Fifth Alleged Violation by clear and convincing evidence: it is undisputed that a gate has been erected, and that it obscures something.)

The Court discussed with the parties at the October 30, 2017 hearing appropriate remedies. "The purpose of civil contempt proceedings is remedial, and the formulation of the remedy is within the judge's discretion." Eldim, Inc. v. Mullen, 47 Mass. App. Ct. 125 , 129 (1999). A court may issue further orders, backed with threats of fines, so long as their purpose is to force a party to comply with the court's earlier order. See Commonwealth v. Firth, 458 Mass. 434 , 443 n. 11 (2010). In open court, the Court ordered Messrs. Dbaib and Dobeib to do the following:

A. Remove from the Property, by 12:00 p.m. on November 1, 2017, all vehicles in excess of the 66 allowed under Paragraph 1 of the Interim Order. Violation of this order (A) will result in a fine of $100 per day of violation, per each vehicle in excess of 66.

B. Remove from the Property, by 12:00 p.m. on November 6, 2017, the van described in Paragraph 1 of the Interim Order. Violation of this order (B) will result in a fine of $100 per day of violation.

C. Install in the front of the Property, by 12:00 p.m. on November 6, 2017, "No Parking" signs. Violation of this order (C) will result in a fine of $100 per day of violation.

D. Comply, by 12:00 p.m. on November 6, 2017, with Paragraph 4 of the Interim Order. Violation of this order (D) will result in a fine of $100 per day of violation.

E. Engage a surveyor by November 6, 2017 to (a) determine by December 29, 2017 whether the snow stakes installed pursuant to Paragraph 4 of the Interim Order are, in fact, along the boundary of the 100-foot BVW buffer zone on the Property, (b) relocate to that line any stakes that are not on the line, and (c) certify to the City by December 29, 2017 that the snow stakes are along the boundary of the 100-foot BVW buffer zone on the Property. Violation of this order (E) will result in a fine of $100 per day of violation.

F. As of November 6, 2017, and continuing thereafter, dispose of all scrap lumber in dumpsters or other refuse containers. Violation of this order (F) will result in a fine of $100 per day of violation, per each improperly disposed object.

G. By November 13, 2017, designate a storage area, behind the building on 272 Winthrop Street, for storage of auto parts and usable pallets. Violation of this order (G) will result in a fine of $100 per day of violation.

H. As of November 13, 2017, and continuing thereafter, store pallets outside of buildings only in the storage area designated pursuant to order (G). Violation of this order (H) will result in a fine of $100 per day of violation, per each improperly stored pallet.

I. As of November 13, 2017, and continuing thereafter, store auto parts either inside vehicles, inside buildings, or within the storage area designated pursuant to order (G). Violation of this order (I) will result in a fine of $100 per day of violation, per each improperly stored part.

The foregoing orders are in addition to, and not instead of, the requirements set forth in the 2012 consent judgment and the September 2017 Interim Order. Liability of Messrs. Dbaib and Dobeib for the obligations imposed by today's judgment shall be joint and several, with rights of contribution.

Judgment will issue accordingly.