J.B. v. R.D.

• Court: Massachusetts Appeals Court
• Decided: April 26, 2024
• Docket: 23-P-0464
• Status: Unpublished

Opinion

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-464

J.B.

vs.

R.D.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a hearing, a judge of the District Court issued a

harassment prevention order against the defendant, pursuant to

G. L. c. 258E, § 3. Because we conclude that the defendant's

conduct amounted to only two acts of harassment, the order must

be vacated and set aside.

Background. On October 31, 2022, the plaintiff applied for

a harassment prevention order against the defendant, the

plaintiff's neighbor, after a confrontation between the parties

the previous day. According to the plaintiff's supporting

affidavit, the defendant stood in front of the plaintiff's

truck, told the plaintiff he needed to "min[d] [his] own fucking

business," and then hit the truck with his hand as the plaintiff

started to drive away. This confrontation occurred the morning after the plaintiff called the fire department to report a

bonfire on the defendant's property.

At the hearing, the plaintiff initially testified about the

hitting of his truck and another incident of alleged harassment

by the defendant. Specifically, the plaintiff testified that

while he was in the hospital undergoing knee replacement

surgery, the defendant was "doing donuts in the road, burning up

and calling my name." Although the plaintiff was not home, his

children were, and they told him what happened.

After defense counsel argued that "[t]here's not three

incidents here," the judge asked the plaintiff how many times

the defendant had done "wheelies and call[ed] out his name."

The plaintiff responded that it had happened "[s]everal times"

and that it "has been going on since [the defendant] moved in a

year ago." After the judge later referred to "the two or three

times that [the defendant has] been driving around yelling his

name," defense counsel objected that "[h]e's just vaguely saying

it's been more than once." During questioning by defense

counsel, the plaintiff confirmed he based his request for a

harassment prevention order on a total of five incidents:

fireworks being set off at night on the defendant's property,

two bonfires on the defendant's property, the driving and

yelling incident witnessed by the plaintiff's children, and the

hitting of the truck on October 30 that led to the complaint

2 being filed the next day. The judge then issued the harassment

prevention order, from which the defendant now appeals.1

Discussion. Although the harassment prevention order

expired on April 28, 2023, the appeal is not moot because the

defendant "still has a stake in the outcome of the appeal,

including removing any stigma from [his] name through the

destruction of the order." Seney v. Morhy, 467 Mass. 58, 62

(2014). In reviewing the issuance of a harassment prevention

order, "we consider 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. See

Gassman v. Reason, 90 Mass. App. Ct. 1, 8 (2016) ("the term

'harass' has a specific definition in this context, derived from

the statute and case law, a definition much more exacting than

common usage").

Here, the plaintiff presented evidence of two discrete

incidents of harassment. First, the defendant allegedly

1 The plaintiff did not submit a brief to this court.

3 obstructed the plaintiff's truck, told the plaintiff to mind his

own business, and then hit the plaintiff's truck. Second, as

reported to the plaintiff by his children, the defendant

allegedly drove "donuts in the road, burning up" and yelled the

plaintiff's name. Assuming without deciding that both incidents

were willful acts motivated by cruelty, hostility, or revenge

with the intent to cause the plaintiff to experience fear or

intimidation, and that the plaintiff did experience fear or

intimidation, they constitute only two of the three acts

required under the statute.

There was insufficient evidence of a third act. The

plaintiff's affidavit addressed only the obstruction and hitting

of his truck. At the hearing, the plaintiff testified about

that incident and the driving and yelling incident witnessed by

his children. Then, at the judge's prompting, the plaintiff

initially appeared to testify that the defendant had done

"burnouts" in his vehicle and yelled the plaintiff's name

"several times," but clarified that the defendant's act of

"calling [the plaintiff's] name out" occurred during the

incident witnessed by his children, when the plaintiff was in

the hospital. Later, under questioning by defense counsel, the

plaintiff confirmed that of the five harassing incidents he

alleged, only one involved the defendant driving and yelling the

plaintiff's name. Three of those five incidents involved the

4 use of fireworks or setting of bonfires on the defendant's

property. Because there was no evidence that these three

incidents involved acts "aimed at" the plaintiff or intended to

cause him fear or intimidation, they do not qualify as acts of

harassment under G. L. c. 258E, § 1. See C.E.R. v. P.C., 91

Mass. App. Ct. 124, 127-128 (2017); Gassman, 90 Mass. App. Ct.

at 9.

Because the evidence, which consisted solely of the

plaintiff's affidavit and testimony, failed to establish that

the defendant committed three acts of harassment as defined by

G. L. c. 258E, § 1, the harassment prevention order should not

have issued. We therefore remand the case to the District Court

for entry of an order vacating and setting aside the order dated

October 31, 2022, and for further actions required by G. L.

c. 258E, § 9. See F.K. v. S.C., 481 Mass. 325, 335 (2019).

So ordered.

By the Court (Vuono, Shin & Toone, JJ.2),

Assistant Clerk

Entered: April 26, 2024.

2 The panelists are listed in order of seniority.