Opinion
14-P-839
03-13-2015
BETHANY BOYS v. JOHN GAINER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant appeals from a one-year harassment prevention order entered pursuant to G. L. c. 258E after an evidentiary hearing. On appeal, he contends there was insufficient evidence that he committed "3 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." G. L. c. 258E, § 1, inserted by St. 2010, c. 23. More specifically, he argues that there was no evidence that his acts were malicious or that they were committed with the intent to cause fear. We agree and vacate the order.
The plaintiff has not appeared in this appeal. She did not file a brief, nor did she appear at oral argument although given the opportunity to do so despite the failure to file a brief.
Although the order has expired, this appeal is not moot. Seney v. Morhy, 467 Mass. 58, 62 (2014).
"In order to obtain a c. 258E order, a plaintiff must demonstrate that she is suffering from harassment." DeMayo v. Quinn, 87 Mass. App. Ct. 115, 116 (2015). "Harassment" is defined by the statute as "3 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 does in fact cause fear, intimidation, abuse or damage to property." G. L. c. 258E, § 1, inserted by St. 2010, c. 23. "Conduct may constitute civil harassment where an individual wilfully and maliciously uses 'fighting words' that are 'a direct personal insult addressed to a person' and 'so personally abusive that they are plainly likely to provoke a violent reaction and cause a breach of the peace,' or uses 'true threats,' such as 'words or actions that -- taking into account the context in which they arise -- cause the victim to fear such harm now or in the future.'" Seney v. Morhy, 467 Mass. 58, 63 (2014), quoting from O'Brien v. Borowski, 461 Mass. 415, 423, 425 (2012) (emphasis supplied).
Because the judge did not make findings, we review the record independently to determine whether the evidence, taken in the light most favorable to the plaintiff, sufficed. The parties were coworkers. Over the course of time, the defendant developed feelings for the plaintiff that were not returned. He described this as "I feel like I have turrets[] [sic] when it comes to you concerning my feelings, and it's very hard to manage." As a result, the defendant sent a series of electronic messages to the plaintiff that touched upon unwanted personal subjects, called her at home, called her mother's home, left messages on her personal phone number, and on one occasion drove to her home to visit her (he stopped before reaching it). The plaintiff had never asked him to her home or given him her address or phone number. The defendant persisted in pursuing a personal connection with the plaintiff despite her requests to interact only as professional coworkers. He did not conform his words or conduct to the customary boundaries between coworkers. The defendant exhibited an extreme reaction when he learned that the plaintiff was married, becoming agitated and angry, and ultimately resigned from the company because of his feelings.
We understand this to be a reference to Tourette Syndrome.
The evidence clearly did not show three instances of the defendant using "fighting words." It also did not show three or more instances of wilful and malicious use of true threats. Although the evidence sufficed to show that the plaintiff was alarmed and fearful because the defendant was pursuing an unwelcome personal relationship with her and that his feelings were not entirely under his control, that is not enough to satisfy the statute.
For these reasons, the order is vacated.
So ordered.
By the Court (Cypher, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 13, 2015.