NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-561
J.B.
vs.
M.D.V.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this appeal, the defendant tenant, M.D.V., asks this
court to vacate a harassment prevention order issued under G. L.
c. 258E. The order was based on several alleged incidents that
arose from a landlord-tenant dispute. The defendant argues that
the plaintiff landlord failed to prove three or more separate
incidents of harassment sufficient to warrant the order's
issuance or extension. We agree.1
1The parties entered a joint stipulation to vacate the harassment prevention order. While parties may stipulate to the dismissal of an appeal, see Mass. R. A. P. 29, as appearing in 481 Mass. 1660 (2019), they cannot, by stipulation, require the appellate court to order destruction of the records of a harassment prevention order under G. L. c. 258E, § 9. Accordingly, we decline to accept the stipulation and instead address the merits. Background. In September 2023, the plaintiff, J.B.,
entered into an agreement to rent the basement apartment of her
home to the defendant. Entrance to the defendant's apartment
was through the defendant's home. The lease terms stated that
the defendant would pay a monthly rent of $1,000 and that the
plaintiff would pay for most utilities and services. In
November 2023, the plaintiff notified the defendant that a
nonnegotiable rent increase of $400 would be implemented in
December. Around the same time, the plaintiff entered the
defendant's apartment and took photographs of its condition.
Soon thereafter, the parties had two verbal confrontations in
which the defendant "got angry," yelled, and got "in [the
plaintiff's] face," placing her in fear for her personal safety.2
On December 9, 2022, the defendant sent the plaintiff an e-mail
outlining his belief that the lease terms prohibited a
unilateral rent increase and requesting that the plaintiff not
enter the apartment without providing proper notice. The
parties' dispute culminated in the plaintiff serving the
defendant with an eviction notice.
On December 27, 2022, after discovering a surveillance
camera in her home, the plaintiff applied for, and was granted,
2 The plaintiff testified that the first confrontation took place in November 2022. The plaintiff could not recall the date of the second incident.
2 an ex parte emergency harassment prevention order. A
Northampton police officer notified the defendant of the order
via telephone and advised him of the order's no contact
provision. On January 9, 2023, the defendant made his required
rent payment to the plaintiff via an electronic money transfer
application. On January 10, 2023, after a two-party hearing, a
District Court judge granted a one-year extension of the order.
The judge cited the two instances of verbal confrontation and
the placement of the surveillance camera as separate acts of
harassment. In addition, the judge cited the January 9 rental
payment as a "clear violation of the [ex parte temporary order]
that was in effect" as a reason to issue the one-year extension.
On February 1, 2023, the defendant filed a timely notice of
appeal, together with a motion to vacate the order. The judge
denied the motion to vacate, and the defendant timely filed a
second notice of appeal.
Discussion. In reviewing a civil harassment prevention
order, we consider whether the judge could find, by a
preponderance of the evidence, that the defendant committed
"[three] or more acts of willful and malicious conduct aimed at
a specific person." Seney v. Morhy, 467 Mass. 58, 60 (2014),
quoting G. L. c. 258E, § 1. See C.E.R. v. P.C., 91 Mass. App.
Ct. 124, 126 (2017). We review the judge’s factual findings for
clear error. See id. "[W]e will not substitute our judgment
3 for that of the trier of fact. We do, however, scrutinize
without deference the propriety of the legal criteria employed
by the trial judge and the manner in which those criteria were
applied to the facts." C.O. v. M.M., 442 Mass. 648, 655 (2004),
quoting Commonwealth v. Boucher, 438 Mass. 274, 276 (2002).3
To the extent "harassment" is based on speech, the
Legislature intentionally crafted the statutory definition to
"confine the meaning of harassment to either fighting words or
'true threats.'" O'Brien v. Borowski, 461 Mass. 415, 425
(2012). "Fighting words" are "face-to-face personal insults
that are so personally abusive that they are plainly likely to
provoke a violent reaction and cause a breach of the peace."
Id. at 423. "True threats" are "direct threats of imminent
physical harm" or "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." Id. at 425. There was no evidence
here that the defendant said anything to the plaintiff that
amounted to fighting words or true threats. Although the
plaintiff described the defendant's e-mail messages highlighting
his intention to pursue his legal remedies as "threatening,"
sending notices of a future lawsuit or court proceedings "does
3 The case law regarding abuse prevention orders under G. L. c. 209A generally applies to G. L. c. 258E harassment prevention orders. See A.P. v. M.T., 92 Mass. App. Ct. 156, 161 (2017).
4 not evidence a threat." Larkin v. Ayer Div. of Dist. Court
Dep't, 425 Mass. 1020, 1020 (1997).
Accordingly, we consider whether the defendant's nonverbal
conduct toward the plaintiff satisfied the definition of
"harassment." "[A]n essential element of civil harassment is
intent." Seney, 467 Mass. at 63. Chapter 258E's definition of
harassment includes a two-fold intent requirement that comports
with the Legislature's goal of confining the meaning of
harassment to true threats or fighting words. See O'Brien, 461
Mass. at 426-427. First, the plaintiff must show that each act
was "committed with the intent to cause fear, intimidation,
abuse or damage to property" and second, the act must "in fact
cause fear, intimidation, abuse or damage to property." Id. at
419, quoting G. L. c. 258E, § 1. "Case law has limited the
meaning of 'fear' to 'fear of physical harm or fear of physical
damage to property.'" C.E.R., 91 Mass App. Ct. at 125. "Abuse"
is defined as "attempting to cause or causing physical harm to
another or placing another in fear of imminent serious physical
harm." G. L. c. 258E, § 1. Likewise, "intimidation" requires
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NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-561
J.B.
vs.
M.D.V.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this appeal, the defendant tenant, M.D.V., asks this
court to vacate a harassment prevention order issued under G. L.
c. 258E. The order was based on several alleged incidents that
arose from a landlord-tenant dispute. The defendant argues that
the plaintiff landlord failed to prove three or more separate
incidents of harassment sufficient to warrant the order's
issuance or extension. We agree.1
1The parties entered a joint stipulation to vacate the harassment prevention order. While parties may stipulate to the dismissal of an appeal, see Mass. R. A. P. 29, as appearing in 481 Mass. 1660 (2019), they cannot, by stipulation, require the appellate court to order destruction of the records of a harassment prevention order under G. L. c. 258E, § 9. Accordingly, we decline to accept the stipulation and instead address the merits. Background. In September 2023, the plaintiff, J.B.,
entered into an agreement to rent the basement apartment of her
home to the defendant. Entrance to the defendant's apartment
was through the defendant's home. The lease terms stated that
the defendant would pay a monthly rent of $1,000 and that the
plaintiff would pay for most utilities and services. In
November 2023, the plaintiff notified the defendant that a
nonnegotiable rent increase of $400 would be implemented in
December. Around the same time, the plaintiff entered the
defendant's apartment and took photographs of its condition.
Soon thereafter, the parties had two verbal confrontations in
which the defendant "got angry," yelled, and got "in [the
plaintiff's] face," placing her in fear for her personal safety.2
On December 9, 2022, the defendant sent the plaintiff an e-mail
outlining his belief that the lease terms prohibited a
unilateral rent increase and requesting that the plaintiff not
enter the apartment without providing proper notice. The
parties' dispute culminated in the plaintiff serving the
defendant with an eviction notice.
On December 27, 2022, after discovering a surveillance
camera in her home, the plaintiff applied for, and was granted,
2 The plaintiff testified that the first confrontation took place in November 2022. The plaintiff could not recall the date of the second incident.
2 an ex parte emergency harassment prevention order. A
Northampton police officer notified the defendant of the order
via telephone and advised him of the order's no contact
provision. On January 9, 2023, the defendant made his required
rent payment to the plaintiff via an electronic money transfer
application. On January 10, 2023, after a two-party hearing, a
District Court judge granted a one-year extension of the order.
The judge cited the two instances of verbal confrontation and
the placement of the surveillance camera as separate acts of
harassment. In addition, the judge cited the January 9 rental
payment as a "clear violation of the [ex parte temporary order]
that was in effect" as a reason to issue the one-year extension.
On February 1, 2023, the defendant filed a timely notice of
appeal, together with a motion to vacate the order. The judge
denied the motion to vacate, and the defendant timely filed a
second notice of appeal.
Discussion. In reviewing a civil harassment prevention
order, we consider whether the judge could find, by a
preponderance of the evidence, that the defendant committed
"[three] or more acts of willful and malicious conduct aimed at
a specific person." Seney v. Morhy, 467 Mass. 58, 60 (2014),
quoting G. L. c. 258E, § 1. See C.E.R. v. P.C., 91 Mass. App.
Ct. 124, 126 (2017). We review the judge’s factual findings for
clear error. See id. "[W]e will not substitute our judgment
3 for that of the trier of fact. We do, however, scrutinize
without deference the propriety of the legal criteria employed
by the trial judge and the manner in which those criteria were
applied to the facts." C.O. v. M.M., 442 Mass. 648, 655 (2004),
quoting Commonwealth v. Boucher, 438 Mass. 274, 276 (2002).3
To the extent "harassment" is based on speech, the
Legislature intentionally crafted the statutory definition to
"confine the meaning of harassment to either fighting words or
'true threats.'" O'Brien v. Borowski, 461 Mass. 415, 425
(2012). "Fighting words" are "face-to-face personal insults
that are so personally abusive that they are plainly likely to
provoke a violent reaction and cause a breach of the peace."
Id. at 423. "True threats" are "direct threats of imminent
physical harm" or "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." Id. at 425. There was no evidence
here that the defendant said anything to the plaintiff that
amounted to fighting words or true threats. Although the
plaintiff described the defendant's e-mail messages highlighting
his intention to pursue his legal remedies as "threatening,"
sending notices of a future lawsuit or court proceedings "does
3 The case law regarding abuse prevention orders under G. L. c. 209A generally applies to G. L. c. 258E harassment prevention orders. See A.P. v. M.T., 92 Mass. App. Ct. 156, 161 (2017).
4 not evidence a threat." Larkin v. Ayer Div. of Dist. Court
Dep't, 425 Mass. 1020, 1020 (1997).
Accordingly, we consider whether the defendant's nonverbal
conduct toward the plaintiff satisfied the definition of
"harassment." "[A]n essential element of civil harassment is
intent." Seney, 467 Mass. at 63. Chapter 258E's definition of
harassment includes a two-fold intent requirement that comports
with the Legislature's goal of confining the meaning of
harassment to true threats or fighting words. See O'Brien, 461
Mass. at 426-427. First, the plaintiff must show that each act
was "committed with the intent to cause fear, intimidation,
abuse or damage to property" and second, the act must "in fact
cause fear, intimidation, abuse or damage to property." Id. at
419, quoting G. L. c. 258E, § 1. "Case law has limited the
meaning of 'fear' to 'fear of physical harm or fear of physical
damage to property.'" C.E.R., 91 Mass App. Ct. at 125. "Abuse"
is defined as "attempting to cause or causing physical harm to
another or placing another in fear of imminent serious physical
harm." G. L. c. 258E, § 1. Likewise, "intimidation" requires
"placing the victim in fear of bodily harm or death." O'Brien,
461 Mass. at 425, quoting Virginia v. Black, 538 U.S. 343, 360
(2003). Thus, to qualify as an act of harassment under c. 258E,
the actor's conduct must cause, and intend to cause fear of,
either physical harm or damage to property. See O'Brien, supra.
5 We need not determine whether the judge erred in qualifying
the two verbal confrontations, in which the defendant yelled at
the plaintiff, leaned in her direction, followed her, and "got
in her face," as acts of harassment under G. L. c. 258E, § 1,
because the placement of the surveillance camera did not qualify
as a third act.4 The plaintiff's testimony that the discovery of
the camera "absolutely freak[ed her] out" and that she was
"petrified" satisfied the second intent element required under
c. 258E. However, the plaintiff did not satisfy her burden of
proving that the defendant's placement of the camera, which he
denied, "was maliciously intended . . . by the defendant to
place the plaintiff in 'fear of physical harm or fear of
physical damage to property.'" A.T. v. C.R., 88 Mass. App. Ct.
532, 535 (2015), quoting O'Brien, 461 Mass. at 427.
Assuming that the defendant "did in fact commit the
despicable act of secretly installing a video camera" in the
plaintiff's kitchen, "there is nothing in the record before us
that shows a history of violence, threats, or hostility in the
relationship between" the plaintiff and the defendant. Keene v.
4 We do not read the judge's findings on the motion to vacate the harassment prevention order as relying on the January 9 electronic rent payment as an act of harassment. While arguably a violation of the ex parte no contact order, the payment carried no threat of physical harm or property damage, and nothing in the record shows that it was accompanied by any threatening message or emoji that would satisfy either intent element.
6 Gangi, 60 Mass. App. Ct. 667, 669 (2004). In the context of
their heated landlord-tenant dispute, where the defendant had to
pass through the plaintiff's home to get to his basement unit,
there is no objective proof that the defendant's placement of a
camera in her home -- whether hidden or in plain sight -- was
intended to cause the plaintiff to fear physical injury or
property damage. See, e.g., F.W.T. v. F.T., 93 Mass. App. Ct.
376, 378-379 (2018) (even in context of ongoing "personal and
legal quarrel," defendant's act of flying drones over
plaintiff's property did not evidence intent to cause fear,
intimidation, abuse, or property damage); C.E.R., 91 Mass. App
Ct. at 128 (although installation of video camera aimed at
plaintiff's driveway and living room may have caused fear,
"there was no evidence that the defendants intended the cameras
to do so"). Cf. Keene, supra at 670 (defendant's placement of
clandestine video camera in plaintiff's bedroom did not prove
reasonable fear of imminent serious physical harm sufficient for
issuance of G. L. c. 209A abuse prevention order).
The harassment prevention order entered against the
defendant should not have issued and must be vacated and set
aside.5
5 Because we conclude that the order should not have entered, we need not address whether the motion to vacate was properly denied.
7 Conclusion. We remand the case to the District Court to
vacate and set aside the harassment prevention order and to
order destruction of "all record" of the order as required by
G. L. c. 258E, § 9. See C.E.R., 91 Mass. App Ct. at 132 n.17.
So ordered.
By the Court (Rubin, Massing & Grant, JJ.6),
Clerk
Entered: January 31, 2025.
6 The panelists are listed in order of seniority.