Opinion
21-P-752
01-06-2023
M.C. & another [1] v. K.W.
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, K.W., appeals from the issuance and extension of a harassment prevention order (c. 258E order) obtained against her by the plaintiffs, M.C. and B.C., pursuant to G. L. c. 258E. The defendant argues, inter alia, that the plaintiffs' complaint, supporting materials, and sworn testimony failed to demonstrate that she directly, personally harassed them as defined by G. L. c. 258E. Because we conclude that the record fails to support a finding that the defendant engaged in at least three separate acts directed at the plaintiffs that were intended to, and did, cause the plaintiffs fear, intimidation, abuse, or damage to property, we reverse.
The c. 258E order was issued and extended in the Plymouth District Court by two different judges.
The plaintiffs did not submit a brief or otherwise appear in this appeal.
Background.
The plaintiffs and defendant own abutting properties in Plymouth. The plaintiffs took title to their lot on December 5, 2019. That lot is burdened by an easement for the benefit of the defendant's property, to which she moved, with her school-age children, in August 2020. The easement, which serves as a driveway to the defendant's home, creates a right of way between the defendant's lot and a nearby road; it is the only access from the defendant's lot to that road.
After taking title to their property, the plaintiffs began construction of a new home and septic system. This process involved alterations to their property in the vicinity of the easement. The defendant asserted that the construction encroached upon her property line and negatively impacted her ability to navigate the easement, thwarting access to her home. This disagreement resulted in ongoing litigation separate from this appeal. Although the initial relationship between the plaintiffs and defendant was amicable, it has soured considerably as a result of the dispute over the easement and subsequent litigation.
We take no position with respect to the merits or disputed facts of that suit.
On June 9, 2021, a patrol officer from the Plymouth police department responded to a call from the defendant. Upon arrival to the abutting properties, the defendant claimed that she was unable to move her vehicle out of her driveway. He described her in his report as "ranting on how she was unable to get her vehicle out of her driveway" and "about property lines." He further stated that she interrupted him several times as he attempted to suggest alternative ways that she could move her vehicle. In addition, he made clear that her assertions about being unable to navigate the driveway were unreasonable. The same officer spoke with the plaintiffs shortly thereafter and advised them about the process for obtaining a harassment prevention order pursuant to G. L. c. 258E. The plaintiffs subsequently filed a complaint for protection from harassment and an on-call judge issued an ex parte order the same day. That order was served on the defendant, and she stated that she understood the order and the penalty for violating the order.
On June 21, 2021, a District Court judge held a hearing on the plaintiffs' complaint at which both parties were present and at which the defendant was represented by counsel. The plaintiffs testified under oath that the defendant had walked on their property, taken photos of them and their property that were unrelated to the underlying civil suit, interrupted contractors working on their property, and lied about their activities to town officials. They further asserted that the defendant had taken down a safety fence that they were using to stop her from driving near the bushes on their property, and that this action had scared them because it was "out of character erratic behavior, to the point where it seems as though, like, there's a loss of reality sometimes." The judge granted the plaintiffs' request to extend the c. 258E order for one year but reduced the stay away distance from five yards to zero yards. The defendant appealed.
We note that, on July 28, 2021, the plaintiffs applied for a criminal complaint against the defendant, alleging that she violated the c. 258E order by "[driving] recklessly over our fence, with potential damage to our newly planted bushes."
Discussion.
1. Sufficiency of the evidence.
"In reviewing a civil harassment prevention order, 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.'" Petriello v. Indresano, 87 Mass.App.Ct. 438, 444 (2015), quoting G. L. c. 258E, § 1. See O'Brien v. Borowski, 461 Mass. 415, 419-420 (2012). "[T]here are two layers of intent required to prove civil harassment under c. 258E: the acts of harassment must be wilful and
'[m]alicious,' the latter defined as 'characterized by cruelty, hostility or revenge,' and they must be committed with 'the intent to cause fear, intimidation, abuse or damage to property.'" O'Brien, 461 Mass. at 420.
At the outset, we note that much of the conduct described by the plaintiffs, in their affidavit and at the extension hearing, was directed, not at them, but at their contractors or government officials. This is particularly important because, as relevant here, c. 258E requires that the alleged harassment be "aimed at a specific person" in order to support the issuance of an order. G. L. c. 258E, § 1. Only the party against whom the harassment is aimed may obtain the c. 258E order. See G. L. c. 258 E, § 3 (a) ("[a] person suffering from harassment may file a complaint in the appropriate court requesting protection from such harassment"). See also Seney v. Morhy, 467 Mass. 58, 63 (2014) (email message not harassment because, inter alia, it was not directed at plaintiff). None of the claims made by the plaintiffs pertaining to the defendant's behavior toward the plaintiffs' contractors or the town officials, in the circumstances here, may support a c. 258E order.
Indeed, B.C. acknowledged, when asked whether "[K.W. had] said anything to [him] personally," that "[s]he has not."
Nothing in this memorandum and order should be construed to suggest that the plaintiffs must be confronted with the harassing conduct directly. It may be possible to indirectly "aim[]" harassing conduct at a specific person via a third-party. However, the record does not support such a conclusion here. See F.K. v. S.C., 481 Mass. 325, 334 (2019), quoting G. L. c. 258E, § 1 ("Of course, the number of witnesses to an act properly may be considered in the context of determining the extent to which a defendant's actions were 'aimed at a specific person' or did 'in fact cause fear, intimidation, abuse or damage to property'").
a. Ex parte order.
The defendant purports to appeal from the ex parte order. An ex parte harassment prevention order, however, "'is [not] itself entitled to appellate review,' so long as the defendant had an opportunity to be heard at a subsequent hearing after notice." 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). Here, the defendant had an opportunity to be heard at a hearing after notice. Accordingly, the defendant "is not entitled to further review of the ex parte order," as it "has been superseded by the order after notice." C.R.S., supra at 563, 565.
b. Extension order.
The plaintiffs testified at the extension hearing and alleged that the defendant, in an effort to "sabotage our construction of our home from almost the beginning," had engaged in ten acts of harassment, including: (1) repeatedly contacting and lying to town officials about their construction, (2) walking on their property and taking "endless" photos and videos of B.C. and the construction workers, (3) interrupting the plaintiffs' contractors to talk to them, (4) calling the contractors and threatening to sue them, (5) repeatedly backing into a temporary fence and taking the fence down, (6) communicating with them through text after the ex parte c. 258 order had been issued, (7) piling "trash, household items, carts, chairs, snowblowers, bikes, [and] highway cones on the property line," (8) hanging undergarments on a clothesline, (9) damaging a tree by driving her car over it, and (10) driving her car in the vicinity of some bushes, almost damaging them.
Assuming without deciding that the allegations are true, we are unpersuaded that the claims are sufficient to support the extension of the c. 258E order. See O'Brien, 461 Mass. at 425; F.W.T. v. F.T., 93 Mass.App.Ct. 376, 379-380 (2018). Importantly, much of the alleged behavior constitutes speech. And where speech is the conduct complained of, it must be either in the form of "fighting words" or "true threats" in order to satisfy the meaning of "civil harassment" for purposes of c. 258E. See O'Brien, 461 Mass. at 425 ("[W]e discern no legislative intent to confine the meaning of harassment to fighting words, but we do discern an intent to confine the meaning of harassment to either fighting words or 'true threats'"). See also C.E.R. v. P.C., 91 Mass.App.Ct. 124, 130 (2017).
However acrimonious, none of the speech alleged in the affidavit constitutes "a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," Kareem K. v. Ida I., 100 Mass.App.Ct. 902, 904 (2022), quoting Virginia v. Black, 538 U.S. 343, 359 (2003) (describing true threats), nor "face-to-face personal insults that are so personally abusive that they are plainly likely to provoke a violent reaction and cause a breach of the peace." O'Brien, 461 Mass. at 423, citing Cohen v. California, 403 U.S. 15, 20 (1971) (describing fighting words). While the defendant may have been vexatious, c. 258E is not designed to protect against every type of speech that can lead to bruised feelings, emotional upset, or disgust. See Gassman v. Reason, 90 Mass.App.Ct. 1, 8 (2016) ("the term 'harass' has a specific definition in this context, derived from the statute and case law, a definition much more exacting than common usage").
The plaintiffs also alleged that the defendant had walked on their property "countless" times to take pictures and videos of the ongoing construction and of the affiant and other family members. The plaintiffs did not provide sufficient evidence to allow a finding that this behavior constituted harassment under c. 258E. See F.W.T., 93 Mass.App.Ct. at 379-380 (recording and trespassing onto disputed property to videotape worksite during litigation "does not justify the issuance of a c. 258E order"). Specifically, the plaintiffs' affidavit fails to support, or even assert, that the defendant intended to cause the "fear, intimidation, abuse or damage to property" required under c. 258E when she engaged in the complained of acts. See Petriello, 87 Mass.App.Ct. at 444-445. Without more, we cannot conclude that the defendant possessed the requisite intent to support the issuance of the c. 258E order when she engaged in photography and videography of and on the plaintiffs' property.
Many of the plaintiffs' other complaints, including that the defendant left household items in her yard and used a clothesline as a nuisance, suffer from the same evidentiary deficiencies. See Petriello, 87 Mass.App.Ct. at 444-445, quoting O'Brien, 461 Mass. at 420 (harassment under c. 258E requires showing that defendant intended to cause "fear, intimidation, abuse, or damage to property"). Indeed, M.C. testified that the defendant piled the household items "to purposely spite us and to purposely make our view of the ocean hindered . . . [and] to make it purposely hard for us." This alleged intent is insufficient to support issuance of a c. 258E order. Id.
With respect to personal property, such as the plaintiffs' bushes and temporary fence, the plaintiffs again have failed to show that the defendant possessed the intent necessary to support the issuance of a c. 258E order. Although they allege that the defendant backed into the fence on multiple occasions, they did not show, nor allege, that she had the intent to damage the fence when she did so. See C.E.R., 91 Mass.App.Ct. at 126-127 (discussing incidental property damage).
Notably, B.C. testified that, on one occasion, the defendant attempted to "put it back up" after the fence was knocked over by her friend.
During the hearing, the plaintiffs did allege, for the first time, some behavior that could constitute harassment under c. 258E. They claimed that, on one occasion, the defendant "started kicking, and pushing, and pulling the fence out of the ground." They further alleged that the defendant damaged a tree by driving her car over it. These acts arguably could support a c. 258E order because a judge could infer that the defendant intended to, and did, in fact, cause damage to property. Petriello, 87 Mass.App.Ct. at 444. However, these were, at most, two incidents in which the defendant engaged in such behavior. Because c. 258E requires three instances of harassment to support an order; the plaintiffs have failed to meet that burden. See C.E.R., 91 Mass.App.Ct. at 131-132 (plaintiff must prove three acts of harassment).
Having held that the order should not have issued on these grounds, we decline to reach the merits of the defendant's other arguments.
Conclusion.
The now expired ex parte order and the expired extended order are hereby vacated. Moreover, "if a judge vacates a harassment prevention order, law enforcement officials shall destroy 'all record' concerning such order." Seney, 467 Mass. at 60-61, quoting G. L. c. 258E, § 9. We therefore remand the case to the District Court for entry of an order vacating and setting aside the harassment prevention orders, and for further actions required by G. L. c. 258E, § 9. See F.K. v. S.C., 481 Mass. 325, 335 (2019).
So ordered.
Wolohojian, Blake & Desmond, JJ.
The panelists are listed in order of seniority.