Aoude v. Mobil Oil Corp., 88-1625

• Citation: 862 F.2d 890
• Decision Date: 03 November 1988
• Docket Number: No. 88-1625,88-1625
• Parties: Salim AOUDE, Plaintiff, Appellant, v. MOBIL OIL CORPORATION, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 890

862 F.2d 890

Salim AOUDE, Plaintiff, Appellant, v. MOBIL OIL CORPORATION, et al., Defendants, Appellees.

No. 88-1625.

United States Court of Appeals, First Circuit.

Nov. 3, 1988.

Decided Dec. 8, 1988.

Rehearing Denied Dec. 30, 1988.

David Berman with whom Berman & Moren, Lynn, Mass., was on brief, for plaintiff, appellant.

Robert M. Gault with whom Andrew N. Nathanson, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston, Mass., and Charles B. Straus, III, New York City, were on brief, for defendants, appellees.

Before BREYER and SELYA, Circuit Judges, and CAFFREY, ^* Senior District Judge.

SELYA, Circuit Judge.

Plaintiff-appellant Salim Aoude, defendant-in-counterclaim, polemizes mightily against a preliminary injunction issued by the United States District Court for the District of Massachusetts in favor of defendant-appellee-counterclaimant Mobil Oil Corporation (Mobil). In the end, Aoude huffs and puffs, but he fails to blow down the edifice which the district court competently constructed from the facts of record and the applicable law. Cf. The Three Little Pigs 16-18 (E. Blegvad ed. 1980) (house three).

I

The material facts brook little disagreement. Plaintiff, a successful entrepreneur, rented a service station on Turnpike Road, Shrewsbury, Massachusetts from defendant. He operated it for several years under a Mobil franchise. Aoude knew that Mobil ordinarily frowned upon a dealer leasing more than one station at a time. He also knew that Mobil routinely provided in the operative documents for prior written consent as a precondition to effective alienation of a franchise or lease.

John Monahan operated another Mobil station in Shrewsbury, located on Maple Avenue. When Monahan decided to bow out, plaintiff smelled the wafting breeze of opportunity. He haggled with Monahan for many weeks, knowing full well that he would need Mobil's written approval in order to cinch a deal. Aoude and Monahan kept these negotiations in the bosom of the lodge; it was only after the two reached a firm accord that plaintiff informed Bruce McFarland, defendant's marketing representative, of his takeover intentions. Aoude and McFarland arranged to meet on June 16, 1987. ¹ Beforehand, unbeknownst to Mobil, Aoude and Monahan had signed and substantially performed a formal written agreement. Plaintiff took possession of the station on the weekend of June 13-14, began to operate it for his own account, received title to the equipment and personalty from Monahan, and paid the agreed consideration in full ($90,000). The payment was not conditioned on Mobil's approval.

On June 16, Aoude conferred with McFarland and Michael Urbonas, McFarland's immediate superior. Aoude understood that neither man could sanction the transaction; the decision necessitated ascension to a higher rung of the corporate ladder. Following the meeting, Mobil commenced the intracorporate review process through which it was to determine whether to allow the transfer. Plaintiff, betimes, had costumed himself in grandmother's clothes, so to speak, embarking on a coverup to camouflage the fact that his deal with Monahan was a fait accompli. Notwithstanding that Aoude had begun to operate the station to his own behoof, he arranged to have all transactions with Mobil continue in Monahan's name and dealer number, and to have all payments to Mobil funnelled through Monahan's checking account.

At this stage of our narration, factual disputes begin popping up in various places. Most are beside the present point. The key conflict is as to what McFarland said--or not--after the initial meeting. Plaintiff swears McFarland told him on June 19 that Mobil had approved the transfer, and plaintiff claims to have acted on this assurance. Defendant denies the averment whilst accusing Aoude of shady business tactics and worse. We do not think we need to resolve this, or other, contradicted facts. It suffices that on July 8 the axe fell: Aoude concedes that Judith Schultz, the district manager, informed him then that Mobil would not give its assent.

Plaintiff was not about to let his prey slip through a contractual crack. Although Monahan repeatedly offered to return the money and rescind the transaction, Aoude kept control of the station. Monahan fronted by holding himself out as the dealer. In late 1987, plaintiff sued Mobil (Civ. No. 87-3037-N), attaching to the complaint what purported to be a copy of the Aoude/Monahan purchase agreement. After discovery proved that the agreement was a fake, ² Mobil notified Monahan that because of his complicity in the fraud, it was terminating the franchise. Aoude responded by filing a second action (Civ. No. 88-1044-N) which substantially replicated the allegations of the earlier one, but substituted an ostensibly genuine purchase contract for the bogus agreement. Mobil loosed a pack of pleadings and motions in reply.

Among other things, both sides requested interim injunctions. Aoude sought to restrain Mobil from terminating the lease-cum-franchise. Mobil, pursuant to a counterclaim, asked that Aoude be banned from continuing to trespass at the Maple Avenue site. On June 2, 1988 the district court acted. In a brief order, it denied Aoude's motion for preliminary injunctive relief and granted Mobil's cross-motion. This appeal followed. ³

II

The criteria for preliminary injunctive relief are not much in doubt. See, e.g., Hypertherm, Inc. v. Precision Products, Inc., 832 F.2d 697, 699 & n. 2 (1st Cir.1987); Massachusetts Ass'n of Older Americans v. Sharp, 700 F.2d 749, 751 (1st Cir.1983); Auburn News Co. v. Providence Journal Co., 659 F.2d 273, 277 (1st Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981). Those criteria can be summarized as follows:

1. The likelihood of merits' success;

2. The potentiality for irreparable injury.

3. A balancing of the relevant equities (most importantly, the hardship to the nonmovant if the restrainer issues as contrasted with the hardship to the movant if interim relief is withheld); and

4. The effect on the public interest of a grant or denial of the restrainer.

In the case at bar, it is perfectly clear that the trial court applied the appropriate standard. See Aoude v. Mobil Oil Corp., Civ. Nos. 87-3037-N, 88-1044-N, slip op. at 8 (D. Mass. Aug. 5, 1988).

We need not dwell on the substance of the district court's determination. Given the facts recounted above, Aoude has bitten off more than he can wolf down: the decision to issue an interim injunction seems well within the court's considerable discretion. On the substance of the case, therefore, we find interlocutory relief to be supportable for substantially the reasons set forth in Judge Nelson's trenchant opinion. See id. at 8-12. We need only add three brief comments as to this aspect of the matter.

A. Enjoining a Trespass.

Plaintiff tries to convince us that Massachusetts law does not allow courts to enjoin a trespass. We believe it indisputable that, in the Commonwealth as elsewhere, a continuing trespass on real property--such as the district court supportably found that Aoude was perpetrating--can properly be enjoined. See, e.g., Chesarone v. Pinewood Builders, Inc., 345 Mass. 236, 240, 186 N.E.2d 712 (1962); Doody v. Spurr, 315 Mass. 129, 134, 51 N.E.2d 981 (1944); Boston & Maine Railroad v. Sullivan, 177 Mass. 230, 232, 58 N.E. 689 (1900). The venerable case upon which Aoude relies for a contrary proposition, Washburn v. Miller, 117 Mass. 376 (1875), does not assist his cause. For one thing, the trespass in Washburn was not a continuing one; for another, the Washburn plaintiff was not threatened with irreparable harm. Id. at 378. Indeed, Justice Devens's opinion is prefaced with the following assurance:

It is not doubted that an injunction could properly be issued to restrain one from the commission of an alleged trespass where the damage liable to be occasioned thereby would be irreparable....

Id. at 377. Aoude's argument is meritless.

B. Altering the Status Quo.

Plaintiff's grievance that the injunction altered the status quo comprises little more than a complaint about whose ox was gored. To be sure, the order ousted Aoude from Maple Avenue--but only after the district court found that "he had no business being on the station." Aoude, supra, slip op. at 12. By removing the trespasser, the court in effect restored the status quo, that is, "the last uncontested status which preceded the pending controversy." Westinghouse Elec. Corp. v. Free Sewing Machine Co., 256 F.2d 806, 808 (7th Cir.1958) (emphasis supplied); see also Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir.) (similar), cert. denied, 375 U.S. 821, 84 S.Ct. 59, 11 L.Ed.2d 55 (1963). In any event, the status quo doctrine is one of equity, discretion, and common sense, not woodenly to be followed. On the peculiar facts of this case, the preliminary injunction is not vulnerable to attack even if it is seen as changing the status quo.

C. Waiver.

The ululation that Mobil forfeited its entitlement to demand the right of prior written approval consists more of sound than substance. As we have observed before, "the Massachusetts standard for waiver is an uncompromising one." Paterson-Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 992 (1st Cir.1988). To establish waiver, it was incumbent upon Aoude to show "clear, decisive, and unequivocal conduct on the part of [defendant's] authorized representative ... indicating that [defendant] would not insist on adherence to the [provision]." Glynn v. City of Gloucester, 9 Mass.App.Ct. 454, 462, 401 N.E.2d 886, 892 (1980). On this record--and having mind that the burden of proving waiver devolves upon the party asserting it, see Paterson-Leitch, 840 F.2d at 992--we cannot say that the district court erred in resolving this issue,...