Opinion
19-P-1797
01-21-2021
L.C. v. A.W.
NOTICE: 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 plaintiff, who works as a correction officer at the Worcester County Sheriff's Office, obtained harassment prevention orders against the defendant, a former prisoner who had been held in custody under her supervision. Representing himself, the defendant appeals on various grounds. We affirm.
Background. The plaintiff filed her complaint, and an accompanying affidavit, on July 18, 2019. At an ex parte hearing held that day before a District Court judge sitting in Clinton, the plaintiff testified and submitted a series of documents. Apparently crediting her allegations, the judge issued the requested order and scheduled the "hearing after notice" for July 23, 2019.
At the initial hearing after notice, the defendant questioned whether venue was proper in Clinton given where the plaintiff lived and worked. He requested that the matter be transferred to Worcester District Court, and he told the judge that "I'm not contesting keeping the order in place if it is transferred." The judge transferred the case to Worcester in accordance with the defendant's request, while extending the existing order until August 10, 2019. For convenience, we refer to the temporary extension of the order after the initial notice after hearing as "the second order."
At a hearing held in Worcester District Court on August 12, 2019, both parties testified, and the plaintiff resubmitted her documentary evidence. The judge issued a new harassment prevention order for one year (the third order).
The third order was due to expire on August 10, 2020, and it is not clear whether it was extended at that time. In any event, the defendant's challenge to the third order is not moot. See Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998) (because abuse prevention orders have important collateral consequences, even after order has expired, defendant "has a surviving interest in establishing that the orders were not lawfully issued").
Discussion. To the extent that the defendant seeks to challenge the issuance of the ex parte order, he may not do so given that the ex parte order was superseded by the second order. See C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 563 (2017). And to the extent that the defendant seeks to challenge the second order, that challenge fails because he expressly assented to its issuance.
That leaves the defendant's challenge to the third order. The defendant again raises venue as an issue, while continuing to take the position that venue is proper in Worcester. As he clarified at oral argument, the defendant is arguing that because venue was improper in Clinton District Court where the case originally was filed, the case could not be transferred to Worcester District Court but needed to be refiled there as an original action. We find no merit in that novel concept. In addition, assuming arguendo that venue was not proper in Clinton District Court, this would not affect the jurisdiction of that court to entertain the case in light of the fact that -- as long has been recognized -- improper venue does not deprive a court of subject matter jurisdiction. See, e.g., Paige v. Sinclair, 237 Mass. 482, 483 (1921) (distinguishing between venue and jurisdiction).
Turning to the merits, we are unpersuaded by the defendant's argument that there was insufficient evidence to support the third order. "In reviewing a civil harassment order under G. L. c. 258E, we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant 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.'" A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015), quoting G. L. c. 258E, § 1. In his own testimony, the defendant effectively admitted that he had made a multitude of unwanted and unreciprocated attempts to approach and converse with the plaintiff.
Moreover, to the extent that the defendant contested the plaintiff's version of the facts, we -- in reviewing the sufficiency of the evidence -- assume that the judge did not credit the defendant's testimony. Thus, for example, we assume the judge rejected the defendant's claim that during an interaction that occurred while he was still incarcerated, he had referred to the plaintiff in Spanish only as "sister," rather than as "beautiful" and that his coming into physical contact with her that same day was accidental. Notably, as the defendant admitted, someone had created fake messages from the plaintiff on Facebook to make it falsely appear that the plaintiff had a close relationship with him and was responding to his messages. The fake messages had been sent to the plaintiff's employer as enclosures to a letter purportedly signed by the defendant. The defendant testified that his account had been hacked by a third party, but the judge was not required to accept that explanation.
As the transcript of the hearings indicate, the messages were part of the documentary evidence that the plaintiff submitted, even though their existence is not memorialized on the District Court dockets. The special assistant attorney general representing the plaintiff sought leave to submit such documents in a supplemental appendix. The defendant opposed the motion to allow the supplemental appendix and asks that we strike it. Having considered the defendant's arguments, we ratify the clerk's allowance of the plaintiff's motion to allow the submittal of the supplemental appendix. We add, however, that what appears in the documentary evidence is largely redundant with the parties' testimony.
When the testimony and documentary evidence is viewed in the context of the parties' relationship (correction officer and former inmate), there was ample evidence that the defendant had engaged in at least three acts of harassment that placed the plaintiff in fear for her safety as a result. The fact that the plaintiff acknowledged that the defendant had not made any express threats to harm her is ultimately of no moment. V.J. v. N.J., 91 Mass. App. Ct. 22, 24, 26-28 (2017) (defendant's conduct constituted implied threat supporting harassment prevention order even though "he made no direct threat of physical violence").
Finally, we note that the records available to the judge revealed four other c. 258E orders and a litany of charges and convictions for violations of abuse prevention orders, stalking, threatening, intimidation, and criminal harassment. The judge not only was authorized to consider such information, but also required by statute to do so. See G. L. c. 258E, § 9.
We affirm the harassment prevention orders issued on July 23, 2019, and August 12, 2019.
The defendant's request for appellate attorney's fees and costs is denied. To the extent that the defendant purports to appeal the failure by the District Court judges to award him reasonable attorney's fees and costs in having to defend a case in the wrong forum -- see G. L. c. 218, § 2A -- it does not appear that the defendant ever asked for such relief in District Court, so that request appears to have been waived. In addition, having represented himself, the defendant incurred no attorney's fees, and he made no showing that he incurred any court costs.
So ordered.
By the Court (Meade, Milkey & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 21, 2021.