Opinion
21-P-866
11-16-2022
P.P. v. J.D.
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 appeals from the extension of a harassment prevention order issued pursuant to G. L. c. 258E, § 3. Concluding that the order was not supported by evidence of three separate acts of willful and malicious conduct, we vacate the order.
1. Background.
On June 16, 2021, a District Court judge conducted a hearing that simultaneously addressed six cross applications for harassment prevention and extension orders. The parties were abutting neighbors who testified to years of mutual acrimony. The hearing was complicated by "cross-talking," interruptions and outbursts from the plaintiff's husband (who was one of the cross applicants), spontaneous interjections by her eleven year old child, and other behavior that the judge had "never seen before in [her] life in a court room." Ultimately, the judge found it necessary to suspend the proceedings briefly so that the plaintiff's husband could "calm[] down." The plaintiff's testimony was brief and scant. At the conclusion of the hearing, the judge took the matters under advisement and subsequently she extended four of the six orders, including this order against the defendant.
2. Discussion.
We review an order pursuant to G. L. c. 258E to determine "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. Accord J.C. v. J.H., 92 Mass.App.Ct. 224, 227 (2017). In this context, willful and malicious conduct is defined as acts "characterized by cruelty, hostility or revenge." O'Brien v. Borowski, 461 Mass. 415, 420 (2012), quoting G. L. c. 258E, § 1.
On a review of the record, including the application, the plaintiff's affidavit in support of the application, and the transcript of the hearing, the plaintiff arguably alleged the existence of four incidents: (1) the defendant came to her workplace; (2) the defendant was a racist; (3) the defendant "stalk[ed]" her by watching and taking photographs and videos of her and her family; and (4) the defendant threatened to put her family on social media. These acts, at least as described by the plaintiff, do not amount to three separate acts of harassment within the meaning of G. L. c. 258E.
The plaintiff's affidavit stated that the defendant came to the department store where she worked and "seem[ed] to always find [her]." However, this assertion lacked any specific information about the defendant's behavior that would permit an inference as to intent, and therefore cannot reasonably be construed as "intimidation, intending to cause fear of physical harm or damage to property." Gassman v. Reason, 90 Mass.App.Ct. 1, 9 (2016). Similarly, the plaintiff's statement without further detail that the defendant was a racist, while understandably distressing to her, did not demonstrate that the defendant committed an act "with the intent to cause fear, intimidation, abuse or damage to property." G. L. c. 258E, § 1. The "stalking" described by the plaintiff consisted of the defendant taking videos and photographs of the plaintiff's family. As described, this was not qualifying conduct because there was no evidence of the requisite intent. See C.E.R. v. P.C., 91 Mass.App.Ct. 124, 128 (2017) (installation of video cameras by tenants pointed at live-in landlord's driveway and living room was not act of harassment, despite landlord's testimony that could be construed to mean cameras caused her "fear," because there was no evidence that tenants intended to cause her fear or intimidation). Although the plaintiff testified that when her family was in the backyard, she felt "like they [the defendant and his wife] [were] watching us," there was no evidence that this conduct by the defendant was "aimed at" the plaintiff herself. See F.K. v. S.C., 481 Mass. 325, 332 (2019) ("As a threshold matter, a plaintiff must demonstrate that a defendant engaged in . . . acts . . . aimed at a specific person" [quotations and citation omitted]). Finally, the plaintiff's claim that the defendant threatened to "put us in the social media" lacked the quality of a "true threat" and was too vague to constitute qualifying harassment conduct. See Kareem K. v. Ida I., 100 Mass.App.Ct. 902, 904 (2022); A.R. v. L.C., 93 Mass.App.Ct. 758, 760 (2018) ("true threats cannot be threats to do just any kind of harm; they must be intended to cause 'fear of physical harm'" [citation omitted]). Despite the plaintiff's generalized claims of the defendant's "creepy actions for many years" and that he made her feel "unsafe," she acknowledged that he had never threatened to harm her physically. See Van Liew v. Stansfield, 474 Mass. 31, 38-39 (2016).
Under different circumstances, repeatedly appearing at a person's place of work might well be qualifying conduct under c. 258E. See, e.g., V.J, v. N.J., 91 Mass.App.Ct. 22, 27 (2017) (defendant's stated goal of daily confrontation on bus where plaintiff worked as driver was act of harassment).
The plaintiff indicated that she is Asian.
Although this type of conduct may, with added detail, rise to the level of an act or acts of harassment, on the record before us there is insufficient evidence to support such a finding. The defendant claimed, and the plaintiff did not dispute, that the videos were taken to memorialize the defendant's complaints of the plaintiff's children riding ATVs and "blaring" their horns near his property.
Although we understand the inclination to issue an order for the parties to stay away from each other, particularly given the history, continuing physical proximity, and court room dynamic presented by the two families, there was insufficient evidence to support the issuance of this G. L. c. 258E extension order. Therefore, we vacate the harassment prevention extension order issued June 16, 2021. See Seney v. Morhy, 467 Mass. 58, 63-64 (2014); C.E.R., 91 Mass.App.Ct. at 132 & n.17.
So ordered.
Sullivan, Neyman & Brennan, JJ.
The panelists are listed in order of seniority.