Opinion
No. 11–P–1117.
2013-02-22
Mara PELLEGRINO v. Joseph VILLAPIANO.
By the Court (FECTEAU, HANLON & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the denial of her application for an abuse prevention order by a judge of the Central Division of the Boston Municipal Court. See G.L. c. 209A. She also argues that a judge in the same court erroneously permitted the defendant to conduct discovery into her medical records without a hearing, that another judge in the same court made erroneous discovery rulings and improperly heard matters in the case, and that two judges erred in denying her request for an ex parte order and a one-year abuse prevention order. Finding no error, we affirm.
Background. The plaintiff filed her first application for an abuse prevention order in January, 2009. The ex parte application was granted by the first judge, but the order was vacated by the same judge in April of 2009 after a multi-day evidentiary hearing. Thereafter, three other judges heard second and third applications for abuse prevention orders. It is the third application that forms the basis of this appeal.
Medical records. The plaintiff first argues that the defendant should not have been permitted to conduct discovery of her medical records without a hearing. She claims she suffered abuse and harassment as a result of their production to the defendant and his counsel. Medical records are discoverable in a G.L. c. 209A proceeding. See Guidelines for Judicial Practice: Abuse Prevention Proceedings § 1:03 (2000). In view of the plaintiff's allegation of sexual assault, it cannot be said that the request was without basis. The request for discovery was made at a hearing at which the plaintiff appeared pro se; the third judge told the defendant to serve discovery only after the plaintiff's counsel had entered an appearance, and to bring any disputes regarding the discovery requests to the judge's attention. Plaintiff's counsel did not object to the requests or seek a protective order, but did file a motion in limine, at which time the propriety of the scope of discovery was argued. The fourth judge found that the records could be relevant to her credibility and to verify claims made in her applications, and ordered an in camera review. The records were submitted to the court under seal and were not admitted in evidence. After the final August 16, 2010, hearing, the third judge ordered the records and all copies be retained in the custody of the court, and they were destroyed at the close of the case. Thus, we discern no prejudice with respect to the use of the discovery materials in this proceeding.
On April 9, 2009, the plaintiff filed a second application. An ex parte order was granted by a second judge, and it subsequently was extended for one year. After several continuances, and following the defendant's arrest for allegedly violating the order, the second judge vacated the order at the conclusion of its one-year term on June 10, 2010. The plaintiff filed the third application on the same day, seeking a new one-year order. The second judge declined to issue an ex parte order, but set a date for a two-party hearing and allowed limited discovery. After investigation, the prosecutor filed a nolle prosequi on the violation charge against the defendant. On June 23, 2010, a third judge granted the plaintiff's request for a continuance so she could have her counsel appear. On August 4, 2010, a fourth judge heard the parties on a motion in limine objecting to the introduction of the medical records. On August 13, 2010, the plaintiff was heard on her motion to stay proceedings in order to file an emergency petition for interlocutory relief; the fourth judge denied the motion. Plaintiff's counsel was allowed to withdraw on August 16, 2010, and new counsel appeared. After a full evidentiary hearing on August 16, 2010, the third judge dismissed her complaint.
The plaintiff further argues that the fourth judge erred in taking jurisdiction from the third judge and that he therefore made discovery rulings without proper authority. Her supporting case law merely stands for the proposition that, under Mass.R.Crim.P. 13(a)(5), as appearing in 442 Mass. 1516 (2004), a judge “may permit a pretrial motion which has been heard and denied to be renewed.” The plaintiff cites no relevant law to support her argument that she has a right to appear before a particular judge, and we have found none. There was no error.
Motion to stay. The plaintiff also contends that the fourth judge erred in denying her motion to stay in order for her to have the opportunity to file a single justice petition in the Supreme Judicial Court to contest discovery. The plaintiff did, in fact, file a petition in the Supreme Judicial Court on August 13, 2010, which was denied and dismissed on the basis that the issue was moot because all of the medical records obtained in discovery were filed in court under seal. For that reason, her claim is not meritorious.
Requests for abuse prevention orders. The plaintiff's final two arguments are that the judges erred in denying her request for an ex parte order on June 10, 2010, and denying her renewed application for a one-year abuse prevention order on August 16, 2010. She contends that her showing was sufficient to support the entry of both orders.
At the ex parte hearing the plaintiff had the burden to demonstrate “a substantial likelihood of immediate danger of abuse.” G.L. c. 209A, § 4, as appearing in St.1990, c. 403, § 4. To obtain a one-year order under G.L. c. 209A, § 3, the plaintiff bore the burden of establishing facts justifying the issuance of the order by a preponderance of the evidence. Frizado v. Frizado, 420 Mass. 592, 597 (1995). The plaintiff was required to show a current and reasonable fear of imminent serious physical harm. See Iamele v. Asselin, 444 Mass. 734, 737 (2005). One judge denied her motion for an ex parte order and another judge denied her application for a one-year order.
It was the judges' province to determine credibility. Although her affidavit and testimony may have been sufficient if her statements were taken as true, neither judge was required to take her allegations at face value.
See C.O. v. M.M., 442 Mass. 648, 654–655 (2004); Corrado v. Hedrick, 65 Mass.App.Ct. 477, 484 (2006). See also Vittone v. Clairmont, 64 Mass.App.Ct. 479, 487–489 (2005). Neither judge abused his or her discretion in declining to issue either the ex parte order or the one-year abuse prevention order.
At the ex parte hearing and the one-year hearing, the plaintiff alleged that the defendant sexually assaulted her in 2009, yelled at her on a morning in April of 2009, lived four blocks away, messaged her, came into a bar where she was with friends and did not leave, attempted to run her down in his car, solicited people to get her photographs from Facebook, and is one foot taller and fifty pounds heavier than she is.
The plaintiff also argues that her testimony was clouded by the improper discovery of her medical records and that the third judge's denial of her application for a one-year 209A order deprived her of State and Federal due process and privacy rights. As noted supra, discovery of medical records is not prohibited in G.L. c. 209A proceedings, and the timing of the hearing on those requests was controlled by the parties. Moreover, the plaintiff's argument is conclusory and lacks citation to authority. The argument therefore does not rise to the level of acceptable appellate argument and we do not address it. See, e.g., Lobisser Bldg. Corp. v. Planning Bd. of Bellingham, 454 Mass. 123, 134 n.15 (2009).
We deny the defendant's request for attorney's fees and double costs.
Order of August 16, 2010, denying 209A application affirmed.