Opinion
21-P-936 21-P-937
11-01-2022
J.C. v. B.G. (and a companion case [1]).
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, B.G., appeals from the Boston Municipal Court's issuance and subsequent extensions of two harassment prevention orders. See G. L. c. 258E. We limit our review to B.G.'s challenge to the extension orders after notice. On appeal he contends that the judge's findings were clearly erroneous, the evidence was insufficient to support the harassment prevention orders, the judge deprived him of due process, and the plaintiffs, J.C. and A.C., committed a "fraud on the court" to obtain the orders. We affirm.
In his notices of appeal, the defendant purported to appeal from "the two ex parte temporary orders entered . . . on July 30, 2021 and August 11, 2021 . . . and the two extended orders entered on August 23, 2021." The appeal from the extension orders is properly before us. However, where B.G. had an opportunity to be heard at the extension hearing on August 23, 2021, he is not entitled to further review of the ex parte orders in this court. See C.R.S. v. J.M.S., 92 Mass.App.Ct. 561, 563 (2017), quoting Allen v. Allen, 89 Mass.App.Ct. 403, 405 (2016) (ex parte harassment prevention order "'is [not] itself entitled to appellate review,' so long as the defendant had an opportunity to be heard at a subsequent hearing after notice").
Background.
The parties are neighbors in a condominium building with one unit on each floor. The plaintiffs and their children have lived in the fifth-floor unit since 2010, and the defendant has lived in the fourth-floor unit since 1994. Both J.C. and B.G. served as trustees for the condominium trust. Approximately one year after the plaintiffs moved into their condominium unit, a dispute arose regarding condominium fees. The dispute led to the filing of a civil action in the Boston Municipal Court. B.G. and J.C. were opposing parties in that litigation, which resulted in the execution of a settlement agreement between B.G. and certain trustees, including J.C.
At the time of the two-party hearing, the plaintiffs had three children, ages ten, eight, and six.
The plaintiffs described their experience with B.G. as "awful," "aggressive," and getting "worse" over time. Beginning in or around 2018, A.C. began to observe what looked like phlegm on the plaintiffs' car. One day, A.C. was in the car with her children when she saw B.G. exit his vehicle, walk down the alley toward them, look at them, and spit directly at their car. A.C. testified to between fifteen and twenty incidents of phlegm on their vehicle. She provided corroborative photographs of the phlegm, as well as a video recording related to one such incident. A.C. has also found phlegm on a package addressed to the plaintiffs in the condominium. The most recent spitting incident occurred on June 1, 2021, when A.C. was on her balcony with her son. B.G. parked his car in the alley, walked down the alley, "curved" towards the plaintiffs' car, spit, and kept walking. A.C. heard B.G. come up the stairs and close his door, and then she went down to take a picture of the phlegm on her car.
When A.C. and her children encountered B.G. outside the building, he often mumbled curse words under his breath, and stared at them. B.G.'s conduct caused A.C. to feel "nervous" and "scared."
Another neighbor on the street testified that he observed B.G. expectorating on the street and on windshields in the past, that he found phlegm on his own vehicle, and that on at least two occasions, he knew that B.G. was the person who put it there.
The plaintiffs presented the video footage A.C. recorded of this incident to the court at the two-party hearing. The parties did not include the video footage as part of the record on appeal. For purpose of this appeal, we accept the defendant's representation that the video footage does not actually capture the defendant's spitting.
On multiple occasions, B.G. screamed profanities -- most often "fucking asshole" -- at the plaintiffs when water filtered through the plaintiffs' fifth-floor balcony onto his fourthfloor balcony. On one occasion, A.C. was out on her balcony with her then three year old son playing at a "water table" when some water spilled through their deck onto B.G.'s balcony. She then heard B.G. cursing in such an aggressive tone that she checked to see if her front door was locked because she was scared and "didn't know what [B.G.] would do next." On multiple occasions, a witness who lives in another building on the street saw the defendant on his balcony yelling "fucking assholes" at the plaintiffs and slamming his slider door. That witness testified that B.G.'s yelling has been loud enough to startle her own guests.
J.C. testified that B.G. has screamed at him and berated him multiple times both when he was alone and when he was accompanied by his children. On May 13, 2021, upon seeing that B.G. was entering the condominium behind him and his son, J.C. sat down on the couch in the lobby to get out of B.G.'s way. B.G. proceeded to scream and point his finger at J.C. in front of his son, yelling, "You know exactly what you're fucking doing, you better fucking stop." On July 28, 2021, J.C. encountered B.G. while walking to his car and said "hi." In response, B.G. ran toward J.C., put his index finger in J.C.'s face, and screamed, "Don't ever, ever, ever talk to me ever again." J.C. felt "scared," and "threatened" during this incident.
On July 30, 2021, J.C. and A.C. each filed complaints in the Boston Municipal Court seeking harassment prevention orders against B.G. That same day, the court issued temporary orders on both applications after an ex parte hearing and set a hearing date of August 11, 2021. On August 11, 2021, a different judge extended the orders ex parte until a further hearing date of August 23, 2021. On August 23, 2021, the plaintiffs appeared, represented by counsel, while the defendant appeared, pro se. The judge specifically credited A.C.'s and J.C.'s testimony and noted that there were multiple reasons that she did not credit that of the defendant. At the conclusion of the hearing, the judge extended both harassment prevention orders for a period of one year and made extensive findings of fact and rulings of law on the record.
We note that the defendant is an attorney.
Discussion.
Challenge to judge's findings.
The defendant first argues that the judge made "several findings that had no factual basis in the record." We will not disturb a judge's factual findings unless they are clearly erroneous. DeMayo v. Quinn, 87 Mass.App.Ct. 115, 117 (2015), citing Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 637 (2010). We discern no reversible error here.
In her findings, the judge appears to have separated the "screaming" incident that J.C. described as occurring on July 28, 2021, into two distinct incidents occurring on July 21, 2021, and July 28, 2021. Viewed in context, this error was not prejudicial and does not rise to the level of reversible error as the record more than supports three or more acts of harassment. See A.S.R. v. A.K.A., 92 Mass.App.Ct. 270, 277 (2017).
The defendant principally challenges the judge's finding that the plaintiffs' testimony was credible and that his was not. The judge "had the opportunity to view the witnesses' demeanor, as well as listen to their testimony," putting her in "the best position to assess the credibility of the witnesses and to determine the facts." Millennium Equity Holdings, LLC, 456 Mass. at 636-637. Consequently, the judge's assessment of witness credibility "is close to immune from reversal on appeal except on the most compelling of showings" (citation omitted). Orange v. Shay, 68 Mass.App.Ct. 358, 362 (2007). We have carefully reviewed the record and conclude that the judge was entitled to credit the testimony of the plaintiffs and discredit that of the defendant.
The defendant repeatedly denies that he committed the acts alleged by the plaintiffs. That notwithstanding, we do not overturn the judge's findings of fact and credibility determinations absent clear error. DeMayo, 87 Mass.App.Ct. at 117.
In addition, the defendant challenges, inter alia, the judge's finding that A.C. observed him spit on the car, and her finding that the defendant stated that a Boston Municipal Court judge found that J.C. had misappropriated funds from the condominium association. Neither of these findings was clearly erroneous. To the contrary, both findings constituted reasonable interpretations of the testimony and evidence at trial.
As discussed above, A.C. testified that while she was in the car with her children, she saw B.G. exit his vehicle, walk down the alley toward them, look at them, and spit directly at their car. Even assuming, arguendo, that the judge erred in finding that A.C. observed B.G. spit "on" the car as opposed to "at" the car, the error was not prejudicial in view of the abundant circumstantial evidence -- also credited by the judge -- that B.G. spat on the car on multiple occasions.
Sufficiency of the evidence.
The defendant argues that there was insufficient evidence to support the extension of the harassment prevention orders. We are unpersuaded. When reviewing harassment prevention orders, "we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant had committed '[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property'" (citation omitted). Gassman v. Reason, 90 Mass.App.Ct. 1, (2016). See G. L. c. 258E, § 1. Where the acts consist solely of speech, each "must be either a 'true threat' . . 'fighting words.'" A.R. v. L.C., 93 Mass.App.Ct. 758, (2018), quoting O'Brien v. Borowski, 461 Mass. 415, 425 (2012). True threats include "direct threats of imminent physical harm" and "words or actions that -- taking into account the context in which they arise -- cause the victim to fear such [imminent physical] harm now or in the future." Van Liew v. Stansfield, 474 Mass. 31, 37 (2016), quoting O'Brien, supra. Whether speech "constitutes . . . a true threat is a matter to be decided by the trier of fact." A.S.R. v. A.K.A., 92 Mass.App.Ct. 270, 278 (2017), quoting Commonwealth v. Bigelow, 475 Mass. 554, 567 (2016).
Here, the record supports the judge's finding that the defendant committed three or more acts of harassment under G. L. c. 258E. While we agree with B.G.'s assertion that yelling profanities in and of itself does not amount to harassment under the statute, we do not review each alleged act in isolation. "In the determination whether the three acts 'did in fact cause fear, intimidation, abuse or damage to property,' it is 'the entire course of harassment, rather than each individual act, that must cause fear or intimidation.'" A.T. v. C.R., 88 Mass.App.Ct. 532, 535 (2015), quoting O'Brien, 461 Mass. at 426 n.8. Here, B.G.'s entire course of conduct toward the plaintiffs, including the numerous spitting and yelling incidents, in the context of the parties' tumultuous relationship and the setting in and around the plaintiffs' home and children, supports the judge's finding that B.G. committed three or more acts of harassment aimed at the plaintiffs. Likewise, we reject the defendant's claim that "there is no reasonable construction" of his words that could constitute a threat. As detailed above, "the defendant's repeated and escalating harassment of the plaintiff[s] . . . would reasonably support an inference that he intended to cause the plaintiff[s] fear and intimidation." A.T., supra at 53 8.
We also note the ample evidence in the record to support the judge's finding that the plaintiffs were subjectively in fear of physical harm now or in the future. J.C. testified that when the defendant engages with the plaintiffs, he feels "scared" and fears that "[the defendant is] going to snap at any moment"; that the plaintiffs have purchased security cameras due to concerns about the defendant; and that he has a recurring nightmare that the defendant is "outside the door and he's trying to get in." J.C. further testified that he is an eye surgeon who operates under microscopes and has "a pretty steady hand," yet when he sees the defendant, he "shake[s]." [A.C. testified that seeing the phlegm on the windshield on the driver's side of her vehicle is "disgusting," makes her "fearful," scares her "especially during a pandemic," and "makes [her] wonder what else [the defendant] would do." The plaintiffs also testified that they have tried to avoid interacting with the defendant because of their fear, particularly when their children are present.
The defendant also argues that there was insufficient evidence that he committed three or more acts of harassment because (1) the plaintiffs "never witnessed anything occur" such that they only speculated as to his conduct, and (2) there was "no evidence" to connect him to the spitting incidents. [B.G.'s attempt to analogize this case to the fake account messages in R.S. v. A.P.B., 95 Mass.App.Ct. 372 (2019), is unpersuasive. In R.S., supra at 376, the fake accounts did not contain any variation of the defendant's name, the messages were different in form and substance than those the defendant had previously sent, and there was evidence presented that anyone could create a fake account. Here, by contrast, A.C. witnessed B.G. spit at her car while she was parked in the alley with her children in the vehicle. She later saw the defendant walking through the alley toward her car from her balcony, heard him spit, heard him enter his residence, and then found phlegm on her windshield. Based on all the evidence before the judge, she reasonably drew the inference that B.G. committed the acts of spitting on the plaintiffs' vehicle and package. See Commonwealth v. Mejia, 461 Mass. 384, 392 (2012) (evidence "may be entirely circumstantial," and inferences drawn from evidence "need only be reasonable and possible," not "necessary or inescapable" [citation omitted]).
Due process.
The defendant also claims that the judge's evidentiary rulings at the two-party hearing denied him due process. We review a judge's evidentiary rulings under an abuse of discretion standard. See Laramie v. Philip Morris USA Inc., 488 Mass. 399, 414 (2021). In our review, we bear in mind that proceedings under c. 258E, like those under c. 209A, "should be as 'expeditious and informal as reasonably possible.'" A.P. v. M.T., 92 Mass.App.Ct. 156, 161 (2017), quoting Zullo v. Goguen, 423 Mass. 679, 681 (1996). "The process must be a practical one" that is "as comfortable as it reasonably can be for a lay person to pursue." Frizado v. Frizado, 420 Mass. 592, 598 (1995). It is well settled that in such proceedings, "the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on." Id. at 597-598. See F.A.P. v. J.E.S., 87 Mass.App.Ct. 595, 602 (2015); Mass. G. Evid. § 1106 (2022)., We discern no abuse of discretion and conclude that the judge afforded the defendant the required due process at the hearing.
The defendant argues that even though "the rules of evidence need not be strictly followed" in c. 258E hearings, his "fundamental right to a fair hearing cannot be disregarded" by the judge admitting evidence of his "propensity" for the alleged behavior. However, the defendant's objection to testimony by a witness regarding events from 2004 or 2005 was based on relevance rather than challenging the admission of propensity evidence. Parties are "not 'permitted to raise an issue before the trial court on a specific ground, and then . . . present that issue to this court on a different ground'" (citation omitted). Tocci v. Tocci, 490 Mass. 1, 8 (2022). Accordingly, the argument is waived. See Green v. Brookline, 53 Mass.App.Ct. 120, 128 (2001) ("'Objections, issues, or claims -- however meritorious -- that have not been raised' below are waived on appeal" [citation omitted]).
Given the relaxed evidentiary standards and informal nature of such proceedings, the defendant's argument that the judge improperly admitted hearsay statements of "unidentified persons" lacks merit. Even assuming, arguendo, that the judge erred in admitting certain hearsay statements, we discern no prejudice, as the judge did not refer to or rely on hearsay statements by "unidentified persons" anywhere in her extensive findings. See Williams v. Pitney, 409 Mass. 449, 456 (1991).
We note that the two-party hearing conducted on August 23, 2021, covered approximately 118 pages of transcript and included the testimony of five witnesses including the parties. Furthermore, the hearing commenced at 11:49 A.M.; went forward until 1:02 P.M.; reconvened at 2:13 P.M.; and proceeded until 4:59 P.M. As stated, we assume for purposes of this appeal that the video footage is as B.G. represents.
The defendant asserts that the hearing judge refused to allow him an opportunity to present rebuttal evidence. However, a judge "has substantial discretion whether to permit the presentation of rebuttal evidence." Drake v. Goodman, 386 Mass. 88, 92 (1982). We find no abuse of that substantial discretion where the judge did not allow the defendant to call himself as a witness for a second time "to talk for some brief rebuttal" to the testimony of two witnesses. See Commonwealth v. Shaw, 29 Mass.App.Ct. 39, 42 (1990), citing Cushing v. Billings, 2 Cush. 158, 160 (1848) (no abuse of discretion where excluded evidence "would have involved recall of a witness, which a judge is rarely required to allow").
At the two-party hearing and on appeal, the defendant did not make a proffer delineating the specific proposed content of his desired rebuttal testimony.
We likewise discern no merit to the defendant's argument that the judge denied him the opportunity to cross-examine witnesses about the video footage or the photographs admitted in evidence. Contrary to B.G.'s assertion, he asked A.C. multiple questions during cross-examination about the video footage and the circumstances under which she recorded it. B.G. also asked A.C. about the photograph of phlegm on the package. During his cross-examination of J.C., the defendant even held up one of the photographs and asked, "you didn't actually see this happen, what's shown in this photograph; is that right?"
The defendant also claims that the judge deprived this court of "any opportunity to review" the video footage by not including it in the record as he requested during his closing argument. However, B.G. did not seek to include the video footage in the record or seek to modify the record on appeal to include the video footage. See, e.g., Mass. R. A. P. 8 (e), as appearing in 481 Mass. 1611 (2019).
The judge gave the defendant the opportunity to testify at length on his own behalf, to present the settlement agreement without formally offering it in evidence, to cross-examine each of the plaintiffs' witnesses until he indicated that he had no further questions, and to present additional witnesses if he had them. The judge allowed B.G. to present evidence and provided him a "meaningful opportunity to challenge the [plaintiffs'] evidence," which "is all that is ultimately required." F.A.P., 87 Mass.App.Ct. at 600-601, quoting C.O. v. M.M., 442 Mass. 648, 657 (2004).
Fraud on the court.
Finally, the defendant asserts that the plaintiffs committed a fraud on the court by failing to disclose the prior civil action between the parties and engaging in a "calculated pattern of false and knowingly misleading statements." To establish a fraud on the court, the defendant must demonstrate, "clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." J.S.H. v. J.S ., 91 Mass.App.Ct. 107, 112 (2017), quoting Commissioner of Probation v. Adams, 65 Mass.App.Ct. 725, 729-730 (2006) (Adams). Assuming arguendo that the issue is properly before us, B.G.'s evidence falls far short of the requisite standard.
We have received and reviewed the defendant's supplemental reply brief and the plaintiffs' response thereto.
The parties dispute whether the defendant properly raised the fraud on the court argument in the Boston Municipal Court. In view of our analysis, infra, we need not resolve that dispute.
First, J.C. did disclose the prior civil action between the parties. He testified that "there was a disagreement among the trustees" after the first year the plaintiffs lived in the condominium. Moreover, J.C. had already disclosed his involvement in the civil dispute during his testimony at the ex parte hearing on July 30, 2021.
At the ex parte hearing, J.C. described going "through the process," and "taking [B.G.] to collections." He further referenced the fact that B.G. had "counter sued" all of the trustees in their personal capacities and testified that the trustees had "accumulated legal fees" in that action of "around $75,000."
B.G.'s attempt to analogize this case to Adams is unavailing. While J.C. did not check the box on the complaint form indicating "prior and pending actions" between the parties, the similarities between the conduct of the plaintiffs and that of the complainant in Adams ends there. See Adams, 65 Mass.App.Ct. at 729-730, 735. To the extent B.G. believed that J.C.'s testimony regarding the prior action or his failure to check the box on the complaint form constituted an "ongoing pattern of deceitful statements to the court," he could have asked J.C. about the prior action on cross-examination. He did not. See Wojcicki v. Caragher, 447 Mass. 200, 210-211 (2006). That notwithstanding, "even '[p]erjury does not constitute fraud upon the court' when there is no evidence that the judicial process itself was corrupted" (citation omitted). Id. at 210. The defendant has not shown, clearly and convincingly, that any conduct on the part of the plaintiffs rises to the level of a fraud on the court to warrant expungement of the orders and associated records.
A.C. was not a party to the prior civil action.
Order extending harassment prevention orders affirmed.
Neyman, Ditkoff & Hershfang, JJ.
The panelists are listed in order of seniority.