Opinion
21-P-864
11-16-2022
G.G. 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, spontaneous interjections by his eleven year old child, and other behavior that the judge had "never seen before in [her] life in a court room." Despite the judge's laudable efforts to direct him toward the relevant issues, the plaintiff's testimony was unfocused, fragmented, and frequently confusing. Ultimately, the judge found it necessary to suspend the proceedings briefly so that the plaintiff could "calm[] down." 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." 0'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 called the police and took photographs because the plaintiff trimmed shrubbery on the border of their properties; (2) the defendant "stalk[ed]" him by taking photographs and videos of his family; (3) two years prior to the hearing, the defendant pulled the plaintiff through bushes on the border of their properties and put him in a "chokehold"; and (4) the defendant threatened to post information about the plaintiff and his family on social media. From these allegations, all of which fall under the rubric of the plaintiff's general assertion that the defendant and his family were "just not . . . nice people," we discern only one act of harassment within the meaning of G. L. c. 258E.
The plaintiff's allegation of physical assault by the defendant was an act of harassment under c. 258E. See V.J, v. N.J., 91 Mass.App.Ct. 22, 25 (2017) (grabbing plaintiff from behind and placing her in "bear hug" was act of harassment). The remaining claims, however distressing to the plaintiff, cannot fairly be said to constitute harassment within the meaning of the statute. Calling the police and documenting activity that is part of a neighbor border dispute 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, in the context of this case, taking videos and photographs of the plaintiff's family 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). Moreover, there was no evidence that this conduct by the defendant was "aimed at" the plaintiff himself. 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 "harm [the plaintiff's] family detrimentally via social media" lacked the quality of a "true threat" and was too vague to constitute the type of conduct barred by G. L. c. 258E. See Kareem K. v. Ida I., 100 Mass.App.Ct. 902, 904 (2022).
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 here, there was insufficient evidence to support the issuance of this c. 258E extension order against the defendant. 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.