Opinion
19-P-323
06-15-2020
M.D. v. B.D.
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
On July 16, 2018, after a three-day hearing, a judge of the Dorchester Division of the Boston Municipal Court issued a harassment prevention order to M.D. against her neighbor, B.D., pursuant to G. L. c. 258E. On appeal, the defendant argues that the evidence presented at the hearing was insufficient to support the judge's finding, implicit in the issuance of the order, that the "three or more acts" of the defendant's conduct toward the plaintiff satisfied the requirement of the statute. We agree and vacate the order.
The order at issue here was issued for one year. After a hearing on August 5, 2019, the judge declined to extend the order. The order does not reflect that the judge terminated it, and thus we understand that the judge simply allowed the order to expire. Under these circumstances, the issues raised on appeal are not moot. See Seney v. Morhy, 467 Mass. 58, 62 (2014).
Facts. We outline the facts of those incidents in chronological order and as the judge could have found them, highlighting some of the areas of disagreement. See G.B. v. C.A., 94 Mass. App. Ct. 389, 389-390 (2018).
The parties and their families were next door neighbors; the duplexes in which they lived were separated by a divided driveway. In addition, the defendant, her husband, and the plaintiff's husband were members of the same police department (department). Relations between the parties and their families were initially "neighborly."
The plaintiff and her husband had four children at the time, aged seventeen, fifteen, twelve, and seven.
At the time of the events in question, the defendant served as deputy superintendent of the department; her husband served as a sergeant in the same department. The plaintiff's husband served as a lieutenant.
On June 4, 2017, however, the defendant's dissatisfaction with late-night noise and misbehaving guests at a graduation party for the plaintiff's daughter led to a schism. According to the plaintiff, the defendant "march[ed]" angrily up to the plaintiff, grabbed her by the arm and pulled her close, "screaming and swearing and yelling" at her. The plaintiff testified that she was "scared" and "horrified" by the defendant's conduct.
The evidence at the hearing presented two very different accounts of the events of that night; the defendant testified that it was the plaintiff's husband who had been drinking and "lost it" when she asked him to shut down the party, screaming at her and chasing her back to her house. For the purposes of our analysis, we assume that the judge credited the plaintiff's version of the events.
Although the plaintiff's husband attempted to mend relations between the families by texting and calling the defendant, his efforts were unsuccessful. Two weeks later, on Father's Day, the plaintiff and her husband encountered the defendant and her husband in a local restaurant. In response to the plaintiff's request that the two families move past the events of June 4 -- as a result of which, the defendant had reported the plaintiff's husband to the department -- the defendant again "grabbed" the plaintiff and "pull[ed her] in," telling her to "get some fucking thick skin" about the defendant's departmental complaint. The plaintiff was "horrified and confused."
Next, on July 8, 2017, while the plaintiff and her husband were out for the evening, the defendant's sister, who also lived in the defendant's duplex, called 911 to report an underage party at the plaintiff's house. Although the sister called "anonymously," the defendant had alerted a supervisor in advance to let him know that the call "might [be]" coming in. Two police department captains and the union president responded to the 911 call; there was no party at the plaintiff's house. The plaintiff and her husband arrived home to find their daughter in tears over the incident.
The sister lived in one-half of the duplex owned and occupied by the defendant.
In the autumn of 2017, the plaintiff complained against the defendant to the police department's internal affairs bureau. The next morning, the plaintiff's house was "egged"; surveillance video taken from cameras at the defendant's home showed a young man throwing eggs at the side of the house. He was not identified. The plaintiff's house was "egged" again in November, 2017; there was no evidence of who threw the eggs on that occasion. The plaintiff found the timing of the incident "unsettling."
On November 21, 2017, the defendant's husband wrote a letter to his union's executive board. The letter, which the defendant reviewed and helped to distribute, related primarily to the plaintiff's husband's conduct on the night of the June 4, 2017 graduation party, but described the plaintiff that night as "acting crazy."
On December 9, 2017, the defendant posted a video showing stolen holiday wreaths being placed on the front porch of a home; the plaintiff testified that it was her front porch. The video made some reference to "thieves," but did not mention the plaintiff or her family.
On January 12, 2018, dissatisfied with the police department's decision not to pursue additional action against the plaintiff's husband in relation to her complaint about his conduct in the aftermath of the June 4, 2017, graduation party, the defendant applied for a criminal complaint against the plaintiff's husband. The plaintiff felt that the defendant was trying to threaten her family.
Ultimately, the complaint did not issue.
On May 4, 2018, Amazon delivered a package to the plaintiff's home and a package to the defendant's home. Unfortunately, each family's package was mistakenly delivered to the other family's home. The defendant walked the plaintiff's package over to the plaintiff's home and left it on the porch. Afraid to enter onto the defendant's property, however, the plaintiff did nothing with the defendant's package that had been delivered to her home. The following day, the defendant had one of her subordinates take her report that her package had been stolen.
The plaintiff contacted Amazon about the misdelivery, and was advised in writing that Amazon would not retrieve the package, but would replace it.
The plaintiff ultimately dropped the defendant's package at the police station.
Finally, on May 5, 2018, while the plaintiff was hosting a First Communion party for her seven year old son, the defendant invited the boy into her house and gave him a note and a gift of twenty dollars; her husband gave the child an ice pop. The defendant did not seek the plaintiff's permission to invite the boy into the house, although he had been in the house on several previous occasions, when relations between the families were cordial. The plaintiff was frightened by the boy's being in the house and sent another child over to retrieve him, which he did.
Discussion. Sufficiency of the evidence. "[A] protective order under c. 258E requires a finding of 'harassment,' defined in G. L. c. 258E, § 1, as '[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 does in fact cause fear, intimidation, abuse or damage to property.'" O'Brien v. Borowski, 461 Mass. 415, 419 (2012).
As this court recognized in A.R. v. L.C., 93 Mass. App. Ct. 758, 760 (2018), however, the statutory definition of "harassment" is narrower than the colloquial use of the term. See id. "Abuse" is limited to "attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm." Id. at 761, citing G. L. c. 258E, § 1. Barring physical harm or damage to property, the "acts" of speech on which an order may be predicated are limited to those that amount to "true threats" or "fighting words." Id. at 760. The defendant argues that the evidence presented at the hearing did not permit the judge to find that the defendant's conduct met the "three acts" requirements of the statute by a preponderance of the evidence. See F.W.T. v. F.T., 93 Mass. App. Ct. 376, 377-378 (2018). In light of the interpretation given to the wording of the statute, see, e.g., O'Brien, 461 Mass.at 419; A.R., 93 Mass. App. Ct. at 760, we are constrained to agree.
The judge did not have the benefit of this decision at the time of the hearing in this case. See id.
Reviewing the defendant's conduct as the plaintiff recounted it, we conclude that the judge could have found that the defendant's June 4, 2017 interaction with the plaintiff, including the defendant's approaching her in an purposeful, threatening way, "grab[bing]" her, and "screaming and swearing and yelling" at her, causing the plaintiff to feel "horrified" and "scared," put the plaintiff "in fear of imminent serious physical harm," and amounted to abuse. G. L. c. 258E, § 1. See J.C. v. J.H., 92 Mass. App. Ct. 224, 228 (2017) (fact, not reasonableness, of plaintiff's fear the relevant consideration); V.J. v. N.J., 91 Mass. App. Ct. 22, 28 (2017) (in assessing whether acts constitute "abuse," court views acts in context of entire course of conduct). We reach the same conclusion about the second instance of physical contact, on June 18, 2017, when the parties met by chance in a restaurant lobby.
The defendant's behavior over the months that followed was, unquestionably, upsetting to the plaintiff, however none of the remaining acts the plaintiff relies upon satisfied the requirements for a third instance of "harassment" for the purposes of G. L. c. 258E. See G. L. c. 258E, § 1.
Considering each of those remaining acts individually, we eliminate certain acts because the evidence did not establish that the defendant committed them; the two instances of the "egging" of the plaintiff's house and the defendant's sister's unsubstantiated 911 call for underage drinking are included in this category.,
At the hearing, the plaintiff argued that the timing of the "egging" incidents -- the first of which occurred the morning after the plaintiff made an internal affairs bureau complaint against the defendant, and the second, some two months later -- along with the fact that the plaintiff's house was the only one subjected to that treatment was "curious." Without disagreeing with that characterization, we can only speculate about the defendant's involvement in those incidents. See Seney, 467 Mass. at 60 (evidence required to support issuance of harassment prevention order).
Additionally, although we view with a jaundiced eye the defendant's call to the police on the same night, ostensibly to warn the department of the later call made by the defendant's sister, that call was, in our view, protected speech. See Seney, 467 Mass. at 63; O'Gara v. St. Germain, 91 Mass. App. Ct. 490, 497 (2017).
The defendant's participation in her husband's preparation and dissemination of the November 21, 2017, letter to the union, and the Facebook posting on December 9, 2017, were neither "true threats" nor "fighting words," at least to the extent that they were directed to the plaintiff, and thus, were constitutionally-protected speech. See O'Brien, 461 Mass. at 427 ("fear of economic loss, [or] of unfavorable publicity" insufficient to support harassment for purposes of G. L. c. 258E).
The defendant's January 12, 2018, application for criminal charges against the plaintiff's husband, and her filing the May 4, 2018, police report in connection with the Amazon misdelivery incident, were both instances of protected petitioning activity, see O'Gara v. St. Germain, 91 Mass. App. Ct. 490, 497 (2017) (report made to police is constitutionally-based petitioning activity), and so did not constitute harassment.
Even if that were not the case, neither report complained about the plaintiff, specifically. We conclude that the evidence fails to show that either complaint was "directed at" the plaintiff., See Seney v. Morhy, 467 Mass. 58, 63 (2014).
The January 12, 2018, application for criminal charges was directed toward the plaintiff's husband's conduct. Likewise, the May 6, 2018, incident report stated only that the defendant believed, based on the fact that security cameras at her home showed packages being delivered to both her home and the plaintiff's home, that her package was misdelivered to a different address. The incident report does not identify any particular person as having failed to return the defendant's package to her.
We are not blind to the evidence from which one could conclude that the defendant either relied on her status as a ranking member of the department or failed to impose appropriate boundaries on her personal conduct.
Finally, we see no harassing conduct in the defendant's inviting the plaintiff's seven year old son into her home (where he had been several times before, with the plaintiff's permission, in happier days) and providing him with an ice pop, a complimentary note, and twenty dollars on the day of his First Communion. Moreover, according to the plaintiff's testimony, this was an attempt "to provoke [the plaintiff's] husband," so the plaintiff did not even testify that it was directed at her. See Seney, 467 Mass. at 63.
Identification of specific incidents of harassment. The defendant argues that the case should be remanded to enable the judge to identify the particular acts on which he predicated his decision to issue the order in this case. She cites no legal authority for the proposition that such findings are required, and we are aware of none. In light of our conclusion that the evidence failed to make out three instances of harassment, as the term is defined for purposes of G. L. c. 258E, we do not reach this argument.
The harassment prevention order issued July 16, 2018, is vacated.
So ordered.
By the Court (Neyman, Englander & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 15, 2020.