MISC 11-450735

February 28, 2019

Bristol, ss.



This Decision is the latest in a seven-year effort by the City of Taunton to force defendants Milad Dbaib and Khalil Dobeib to comply with the orders of this Court. What's startling is that this Court entered every critical order with Defendants' agreement. An "agreed" order usually indicates that all parties intend to comply with it: if they aren't prepared to comply, they have no business agreeing to the order. Sure, sometimes expectations go awry, but there's a way to address that: one should ask the court, at the earliest it appears that compliance is in jeopardy, to modify the order. What one shouldn't do is what has happened here, repeatedly: violate the agreed (and court-ordered) schedule, wait for one's opponent to detect the violation, and only then ask the court for more time.

This case started in 2011, when the City filed suit to stop unauthorized uses of a property at 272 Winthrop Street in Taunton, MA. That suit resulted in a consent judgment (a form of agreed order) that this Court (Sands, J.) approved in 2012. The 2012 judgment enjoined Defendants from using 272 Winthrop Street for the storage or placement of vehicles, storage of materials, and as an automobile wrecking yard until Defendants brought their business (which operated from an abutting property) into "full compliance" with 26 conditions. The 2012 judgment conditioned resumption of the forbidden activities on Defendants being in "full compliance" with all applicable law.

In February 2017, the City filed the first of what have become five verified complaints for contempt. The first contempt complaint alleged that Defendants hadn't ceased the prohibited uses of 272 Winthrop Street, nor had they complied with all 26 conditions of the 2012 judgment. The City sought an order halting all use of 272 Winthrop Street. The City also asked the Court to fine Defendants and award the City attorney's fees relating to enforcement of the 2012 judgment.

The Court scheduled the City's first contempt complaint for a September 2017 trial. Shortly before trial, Defendants asked for a five-month continuance, as one of the defendants was undergoing cancer treatment. The Court granted the request on condition that the parties negotiate an agreement on interim measures aimed at bringing 272 Winthrop Street into compliance with the 2012 judgment. The parties' efforts resulted in a September 2017 Interim Order, the second of the critical "agreed" orders in this case.

The ink was barely dry on the Interim Order when the City filed a second complaint for contempt, this one for seven violations of the Interim Order. After hearing, the Court found the Defendants in contempt and issued a judgment and compliance order. Defendants were slow to comply with that judgment, prompting the City to file a third complaint for contempt. Defendants thereupon did what they were ordered, and the City withdrew its third contempt complaint.

In February 2018, the parties reported that they might be able to settle all of the issues that had given rise to the City's first (February 2017) contempt complaint. The Court gave the parties time to finish their negotiations. The parties submitted their agreement to the Court in June 2018, and the Court entered it as a judgment (the third critical "agreed" order in this case). The June 2018 judgment included, with Defendants' assent, several conditions that the judgment framed as orders. Chief among the orders was this (emphasis in original):

The Court ORDERS [Defendants] to remove from the Property, by October 1, 2018, all vehicles . . . unless lawfully permitted. . . . After October 1, 2018, [Defendants] shall not permit or suffer there to be any vehicles . . . on the Property unless lawfully permitted. Violation of this [order] will result in a fine of $500, plus $50 for each vehicle . . . that is on the Property in violation of this [order], plus $100 per day of violation.

In October 2018, the City filed a fourth complaint for contempt. The City also moved for assessment of $2,300 in fines, pursuant to the June 2018 judgment. The City's building commissioner claimed he had inspected 272 Winthrop Street on October 1, 2018 and had counted 27 vehicles on the property. One of the Defendants, Mr. Dobeib, reportedly told the commissioner that he thought Defendants could keep vehicles on the property until October 15, 2018. The other Defendant, Mr. Dbaib, allegedly told the commissioner that he thought Defendants could keep vehicles on the property so long as Defendants didn't change their use of the property.

The Court ordered Defendants to appear on October 30, 2018 for an initial hearing on the City's fourth contempt complaint. Before that hearing, Mr. Dobeib filed an affidavit. In that affidavit he states that the building commissioner's account of his inspection was "accurate as far as it goes," but then it claims that both Defendants (not just Mr. Dobeib) "mistakenly believed that we had until October 15, not October 1, to remove all vehicles form the property. We understand that it was our responsibility to know the correct date, but it was an honest mistake and not in any way an attempt to violate the Court order." Mr. Dobeib also said he was suffering from "problems with my memory and mental concentration," on account of his poor health.

Counsel for the parties appeared at the October 30, 2018 hearing. The Court recently has listened to the audiotape of that hearing. Counsel for Defendants agreed at the hearing that the June 2018 judgment was clear and unequivocal: it told Defendants to remove all vehicles from 272 Winthrop Street by October 1, 2018. Counsel for Defendants also conceded that there were 28 vehicles on 272 Winthrop Street for three days after October 1, 2018 deadline, although not all of the vehicles were subject to fines under the June 2018 judgment.

The Court thus assessed at the October 30 hearing $2,200 in fines pursuant to the June 2018 judgment (the "Assessment Order"). The Court ordered Defendants jointly and severally to pay the City $2,200 within fourteen days of their receipt of the Assessment Order. After the Assessment Order issued, and with a trial looming on the City's fourth contempt complaint, the parties negotiated a resolution of that complaint. The Court entered the parties' agreed judgment in mid-November 2018.

That didn't end the matter. It soon became clear to the City that Defendants weren't going to obey the Assessment Order. The City thus filed a fifth complaint for contempt, one focusing exclusively on the unpaid $2,200 assessment, in December 2018. At an initial hearing on that contempt complaint, Mr. Dbaib (at that hearing, representing himself; he and Mr. Dobeib have since retained new counsel) admitted that Defendants hadn't paid the assessment. He argued that an assessment wasn't warranted, for two reasons. He first said that the vehicles the commissioner claimed to have seen on October 1, 2018 weren't within the boundaries of 272 Winthrop Street, but instead were on Defendants' abutting property. To put it differently, Dbaib claimed Defendants hadn't violated the June 2018 judgment. Second, Dbaib contended that he had told Defendants' former attorney, prior to the October 30, 2018 hearing, that the vehicles weren't on the 272 Winthrop Street property, presumably so that former counsel could argue to the Court that Defendants weren't in contempt of the June 2018 judgment. Recall that Defendants' former counsel didn't make that argument at the October 30 hearing -- instead, he conceded that vehicles remained on 272 Winthrop Street after the October 1, 2018 removal deadline.

On December 13, 2018, the Court ordered Mr. Dbaib to file by January 17, 2019 "all evidence supporting his claims that he and [Mr. Dobeib] complied with the Court's June 4, 2018 Judgment by removing by October 1, 2018 all vehicles from 272 Winthrop Street. . . ." The Court also ordered Dbaib to submit "a written statement explaining when he made [prior counsel] aware of . . . Dbaib's evidence that he had removed all vehicles by October 1, 2018." The Court advised Dbaib that if he didn't submit evidence of his compliance with the June 2018 Judgment, "the Court will deem him to have waived any right he may have to request reconsideration" of the Assessment Order.

On December 24, 2018, Defendants (at that time, still representing themselves) filed a Motion for Reconsideration. The motion states:

1. Defendant's [sic] were not in contempt as the vehicles were not on 272 Winthrop Street, but rather the property known as 274 Winthrop Street. . . .

2. Plaintiff's Affidavit already states that the declarant did not know the property lines.

3. Even if the Defendant's [sic] were in violation of the order, they were unable to perform due to the Health Condition of [Mr.] Dobeib.

Both Defendants signed the Motion, but not under oath.

On January 17, 2019, new counsel for both Defendants appeared in this action, but Mr. Dbaib also sent a letter to the Court. The letter presents no information under oath. The letter also did not present evidence (as the Court's December 13, 2018 order had required) that Defendants had removed all cars from 272 Winthrop Street by October 1, 2018. In fact, the letter concedes Defendants hadn't done that. But in a single sentence, the letter presents an incorrect fact and a new excuse for Defendants' non-compliance. The letter claims that after a "hearing on April 15, 2018," Defendants' prior counsel had "informed [Defendants] that we had 6 months to finish moving the cars from 272 Winthrop Street. . . ." In turns out, however, there was no April 15, 2018 hearing in this case. There was a hearing in February 2018, and another in June 2018, but none in April. Moreover, it remains undisputed that the order that's most pertinent to Defendants' motion for reconsideration – an order that everyone concedes is clear, unequivocal, and agreed -- issued on June 4, 2018, more than 120 days before Defendants' deadline for removing all cars from 272 Winthrop Street.

Thus, following review of the parties' briefs and the record summarized above, after hearing argument from the parties on February 27, 2019, and after considering a letter from Defendants' counsel dated February 28, 2019, the Court DENIES Defendants' motion for reconsideration of the Assessment Order. None of the inconsistent excuses Defendants have presented for not complying with the June 2018 judgment justifies their not complying with an order (a) to which Defendants agreed, (b) that gave them plenty of time for compliance, and (c) which they never moved to extend.

Defendants agreed at the February 27, 2019 hearing that if the Court denied their motion for reconsideration, they have no defenses to the City's fifth complaint for contempt. Thus, pursuant to Rule 65.3(h), Mass. R. Civ. P., the Court FINDS that (a) the Assessment Order directing Defendants to pay $2,200 to the City within fourteen days of their receipt of the Assessment Order was clear and unequivocal; (b) Defendants disobeyed the Assessment Order; and (c) that disobedience was intentional. The Court thus HOLDS that Defendants are in contempt of the Assessment Order. The Court will enter judgment in FAVOR of the City and AGAINST Defendants on the City's fifth complaint for contempt.

The City moved in advance of the February 27, 2019 hearing for a further assessment against Defendants, an assessment of the City's attorneys' fees relating to its efforts to enforce the Assessment Order and prosecute the City's fifth contempt complaint. Defendants agreed at the hearing that they don't dispute the City's documented fees and costs, which total $3,605.35. The Court thus GRANTS the City's motion. The City's Objection and Motion to Strike Defendants' February 28, 2019 Filing and For Attorney's Fees is DENIED. Judgment on the fifth contempt complaint will enter accordingly.