Opinion
15-P-1249
03-02-2016
MARY J. WICKER v. CHRISTINE MONIZ.
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, Christine Moniz, appeals from an order dated July 22, 2015, extending, after hearing, the G. L. c. 258E harassment prevention order (HPO) against her. After review of plaintiff Mary J. Wicker's supporting affidavit and the evidence adduced at the hearing, we conclude that the legal standard for the issuance of the HPO was not met.
Wicker alleged the following in support of her application: (1) Moniz contacted Wicker's homeowner's insurer stating that Wicker kept two vicious dogs on her property; as a result, the insurer canceled the policy; (2) Moniz contacted the Board of Registration in Nursing (board), reporting that Wicker, a nurse, kept two vicious dogs and was not complying with town ordinances; as a result, the board undertook an investigation; and (3) Moniz, along with her husband, threatened harm to Wicker's dogs by telling the town's animal control officer that if nothing were done about them, they would be "put . . . down." At the hearing, there was no evidence to support the claim that Moniz participated, or even was present, during her husband's conversation with the animal control officer. The judge granted the HPO, but based his decision on Moniz's communications to the insurer and the board, which the judge characterized as "harassing and threatening."
The judge's decision reflects that he did not credit Moniz's denials that she made the complaints.
"To establish harassment [under c. 258E], a complainant must prove that the defendant, motivated by cruelty, hostility, or revenge, wilfully committed three or more acts aimed at a specific person, each with the intent to cause that person to experience fear or intimidation, or to cause abuse or damage to property, which, considered together, did in fact cause fear, intimidation, abuse, or damage to property." O'Brien v. Borowski, 461 Mass. 415, 426 (2012). Whether or not they were motivated by spite, Moniz's complaints to the insurer and the board do not fall within the ambit of c. 258E. See Seney v. Morhy, 467 Mass. 58, 63-64 (2014). But even if the complaints could be said to qualify as grounds for an HPO, there was no evidence of the requisite third act. For this reason, if no other, the HPO cannot stand. Id. at 64.
The harassment prevention order is vacated.
So ordered.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 2, 2016.