Opinion
19-P-1704
05-12-2021
CITY OF MALDEN v. Robert L. ZERASCHI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant Robert L. Zeraschi has operated an unlicensed open air parking facility in the city of Malden (city) since 2010 in violation of the city's Ordinance § 6.47 (2018) (ordinance), an ordinance adopted pursuant to G. L. c. 148, § 56. In 2018, the city brought this action seeking: (1) a declaratory judgment that the defendant's operation of an unlicensed open air parking lot violated the ordinance and G. L. c. 148, § 56, that the defendant cannot operate the lot until he obtains a license, and that he must pay all accumulated citations; and (2) a permanent injunction enjoining the defendant from operating his lot until he obtains a license and requiring that he pay the accumulated citations. The defendant filed a counterclaim seeking a declaration, among other things, that the fees imposed in connection with the licensing scheme constituted an illegal tax.
Section 6.47 required that any person operating an "open air off-site parking facility" obtain a license from the city council. This requirement is now codified in § 6.08.060 of the Municipal Code of the City of Malden (2021).
Following cross motions for summary judgment, a Superior Court judge declared that the defendant's operation of his open air parking lot violated G. L. c. 148, § 56, and the local ordinance. However, the judge denied the city's requests for further declaratory relief and for an injunction, concluding that the city had not shown that the requested injunction was in the public interest. The judge also dismissed the city's claim for unpaid citations for lack of jurisdiction. The judge did not make any declaration as to the lawfulness of the licensing fee assessed pursuant to the ordinance, an issue that the defendant had attempted to raise via counterclaim and affirmative defense. The judge concluded that the counterclaim was a nullity because it was not included in the defendant's answers to the city's original or amended petitions as required by Mass. R. Civ. P. 7 (a), as amended, 385 Mass. 1215 (1982). As to the affirmative defense, the judge concluded that the defendant had not offered any evidence to support his position.
The defendant continued to operate his unlicensed parking lot after judgment entered. The city filed a complaint for civil contempt, alleging that the defendant's continued operation of an unlicensed parking lot violated the declaratory judgment. The judge dismissed the contempt complaint, concluding that the defendant had not violated any clear and unequivocal order of the court. Both parties have appealed. For the reasons set forth below, we vacate and remand the judgment on the city's petition for declaratory judgment and injunction, and affirm the order dismissing the contempt complaint.
Discussion. 1. Summary judgment. The parties have raised arguments regarding the scope of the declaratory judgment and the decision to deny the city's injunction request. We will consider each of these issues in turn.
a. Declaratory judgment. We review de novo the judge's decision granting summary judgment on the city's declaratory judgment claim. See G4S Tech. LLC v. Massachusetts Tech. Park Corp., 479 Mass. 721, 730 (2018). Both parties argue that the declaratory judgment, which declared only "that [the defendant] is operating an unlicensed open air parking lot at 235 Washington Street, Malden, in violation of G. L. c. 148, § 56 and Section 6.47 of the Malden City Ordinances," did not fully declare the rights of the parties. The city argues that the judgment should have prohibited the defendant from operating his lot until he applies for and obtains a license, "conditioned upon paying his outstanding fee arrearage." The defendant argues that the judge erred by failing to consider whether the $100 per space licensing fee amounts to an illegal tax on parking facility operators.
Given our decision on the city's injunction claim, infra, we need not reach the city's argument as to the scope of the declaratory judgment.
"To obtain declaratory relief, there must be a real dispute caused by the assertion by one party of a duty, right, or other legal relation in which he has a definite interest, in circumstances indicating that failure to resolve the conflict will almost inevitably lead to litigation" (quotations omitted). Benefit v. Cambridge, 424 Mass. 918, 921 (1997), quoting District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 659 (1980). When a complaint for declaratory relief meets these requirements, "the judge must declare the rights of the parties, even when relief is denied, and even on motions for summary judgment" (citations omitted). Molly A. v. Commissioner of Dep't of Mental Retardation, 69 Mass. App. Ct. 267, 288-289 (2007). See Mscisz v. Kashner Davidson Sec. Corp., 446 Mass. 1008, 1010 (2006) (vacating judgment "[b]ecause in a properly brought action for declaratory relief there must be a declaration of the rights of the parties" [citation omitted]); Boston v. Massachusetts Bay Transp. Auth., 373 Mass. 819, 829 (1977) ("when an action for declaratory relief is properly brought, even if relief is denied on the merits, there must be a declaration of the rights of the parties"). Compare Buffalo-Water 1, LLC v. Fidelity Real Estate Co., LLC, 481 Mass. 13, 17-18 (2018) (judge need not declare rights of parties "where a party moves to dismiss a properly brought declaratory judgment claim under rule 12 (b) (6) and where the judge concludes that the facts alleged in the complaint fail to state a claim upon which relief can be granted").
Here, the parties' pleadings and the summary judgment record demonstrated that there was a "real dispute" as to the legality of the ordinance. The defendant continues to operate his open air parking facility and the city continues to issue citations based on the defendant's unwillingness to pay licensing fees that he believes to be an unlawful tax. See Benefit, 424 Mass. at 920–922 (real dispute as to constitutionality of city's panhandling ordinance existed despite fact that charges against plaintiff had been "disposed of during the pendency of ... civil action" because "district attorney ha[d] not indicated that he will refrain from enforcing" ordinance). In these circumstances, the judge should have reached the question of whether the ordinance imposes an unlawful tax on open air parking facilities. His failure to do so was error.
The judge concluded that the defendant had waived his counterclaim by not reasserting it when he filed his amended answer. Because the counterclaim was not part of the original answer, however, the amendment to the answer did not have the effect of extinguishing the counterclaim. See J.W. Smith & H.B. Zobel, Rules Practice, § 15.10 (2d ed. 2006) ("amended pleading supersedes the original, relegating it to a state of non-existence"). And although the defendant's stand-alone counterclaim was procedurally improper, having not been included in the answer, the answer and counterclaim were filed at the same time (both documents dated February 13, 2018, and entered on the docket on February 16, 2018), simply in two separate documents. Moreover, the parties proceeded to summary judgment on the merits of the counterclaim with its validity only questioned at oral argument on the motion. Under the circumstances, the counterclaim should not have been dismissed. See Mass. R. Civ. P. 1, as amended, 474 Mass. 1402 (2016) (rules to "be construed, administered, and employed ... to secure the just, speedy, and inexpensive determination of" actions). See also Foman v. Davis, 371 U.S. 178, 181-182 (1962) (it is contrary to spirit of rules of civil procedure for decision on merits to be avoided on basis of mere technicalities).
b. Injunction. We review the judge's denial of the city's request for an injunction for abuse of discretion, determining whether the judge "applied proper legal standards and whether there was reasonable support for [his] evaluation of factual questions." LeClair v. Norwell, 430 Mass. 328, 331 (1999), quoting Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980) (preliminary injunction). See Lightlab Imaging, Inc. v. Axsun Techs., Inc., 469 Mass. 181, 194 (2014) (applying same standard of review to order on request for permanent injunction). Because the judge did not properly apply the legal standard applicable to a government plaintiff seeking injunctive relief, we vacate and remand.
The city sought an injunction as a government plaintiff, and thus was required to show a likelihood of success on the merits and "that the requested order promotes the public interest, or, alternatively, that the equitable relief will not adversely affect the public." Commonwealth v. Massachusetts CRINC, 392 Mass. 79, 89 (1984). Where, as here, a statutory violation is alleged, the judge's public interest analysis "should specifically consider how the statutory violation affects the public interest" that the statute is intended to further. LeClair, 430 Mass. at 332. See Caplan v. Acton, 479 Mass. 69, 95 (2018) (plaintiffs acting as private attorneys general entitled to injunction if they are likely to succeed on merits and injunction would " ‘promote[ ] the public interest’ reflected in the [law they sought to enforce]" [citation omitted]); Framingham v. Framingham Police Officers Union, 93 Mass. App. Ct. 537, 547 (2018) (injunction enforcing statute that makes law enforcement managerial functions nondelegable is in public interest because injunction allowed police department to make decisions regarding personnel deployment thereby promoting public safety interests statute designed to protect).
Although the judge cited this standard, he did not correctly apply it. Instead of focusing on whether the requested injunction would harm the public interest, the judge focused on the availability of other remedies. He denied the city's injunction request because the city had "provided no facts upon which the [c]ourt could conclude that the public interest would be better served by an injunction against the [p]arking [l]ot operating at all versus issuing a declaration that it is operating unlawfully and that [the defendant] is subject to fines and any other legal penalty for his failure to comply with the law." This was error because a government plaintiff need only show that an injunction will not adversely affect the public interest, and not that an injunction is superior to other available remedies. See Framingham, 93 Mass. App. Ct. at 541 (government plaintiff need not demonstrate irreparable harm to obtain injunction). We thus vacate the judgment as to the injunction count.
On remand, the judge should consider whether and, if so, how the requested injunction will adversely affect the public interests that G. L. c. 148, § 56, and the ordinance are designed to further. As part of that analysis, the judge should also consider whether the city's licensing fee amounts to an unlawful tax.
We note that courts have recognized the validity of licensing requirements adopted pursuant to G. L. c. 148, § 56, a statute that we note is, itself, part of the Commonwealth's public safety laws. See, e.g., Route One Liquors, Inc. v. Secretary of Admin. & Fin., 439 Mass. 111, 116–117 (2003) (explaining there is no "natural right" to operate open air parking facility and "privilege" to operate such facilities was not conferred until § 56 was adopted).
This is a question we cannot answer on the record before us because, among other things, the record does not contain sufficient information to determine whether the fee is proportional to the costs incurred by the town in regulating the activity. See Silva v. Attleboro, 454 Mass. 165, 171-173 (2009) (to determine whether regulatory fee is unlawful tax, judge must consider whether fee is proportional to costs public entity incurs in regulating activity, among other things).
2. Contempt. Finally, we affirm the judge's order dismissing the city's contempt complaint. " ‘[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command,’ for which the burden of proof rests with the plaintiff." Martinez v. Lynn Housing Auth., 94 Mass. App. Ct. 702, 705 (2019), quoting Birchall, petitioner, 454 Mass. 837, 853 (2009). Here, although the judge declared that the defendant's operation of an unlicensed lot violated the law, the judge explicitly refused to grant an injunction prohibiting continued operation of the lot. Accordingly, the judgment did not direct any command to the defendant. It follows that the defendant's continued operation of the lot did not constitute disobedience of a clear and unequivocal command. We thus discern no abuse of discretion in the judge's refusal to hold the defendant in contempt. See Martinez, supra at 705 n.5 (standard of review for contempt findings).
The city's reliance on Oakham Sand & Gravel Corp. v. Oakham, 54 Mass. App. Ct. 80 (2002), is unavailing. In that case, unlike the present case, the judgment on which the contempt action was based affirmed a cease and desist order that clearly and unequivocally prohibited the operation of a sand and gravel removal business. See id. at 86.
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In light of the foregoing discussion, it is not necessary for us to consider the parties' other arguments.
Conclusion. The judgment on the amended petition is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order. The order dismissing the complaint for civil contempt is affirmed.
So ordered.
vacated in part and remanded; affirmed in part