J.P. v. T.O.

• Court: Massachusetts Appeals Court
• Decided: June 27, 2023
• Docket: 22-P-0709
• Status: Unpublished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

22-P-709

J.P.

vs.

T.O.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

T.O. appeals from the District Court's order extending a

civil harassment order.1 T.O. argues J.P. failed to present

sufficient evidence to meet the burden defined by G. L. c. 258E,

§ 1. T.O. also argues the District Court judge failed to make

specific factual findings. Because we agree there was

insufficient evidence of three or more willful acts by the

defendant aimed at the plaintiff, each with the intent to cause

fear, intimidation, abuse, or damage to property, we vacate the

order.

1 T.O. also purportedly appealed from the earlier entered ex parte order but that order is not before us. R.S. v. A.P.B., 95 Mass. App. Ct. 372, 372 n.1 (2019) (and cases cited). Cf. Tom T. v. Lewis L., 97 Mass. App. Ct. 698, 699 (2020) (and cases cited) (considering c. 209A order; "an ex parte order that is extended at a hearing after notice may not be reviewed independently because that ex parte order has been superseded by the order after notice"). Background. We summarize the relevant background as

follows. T.O. and J.P. grew up together and lived in the same

neighborhood. After entering high school, T.O. began sending

J.P. frequent communications over text and social media

platforms. After J.P. told T.O. that she was going to block him

from messaging her, T.O. said he would kill himself if she did

so. J.P. testified that T.O. sent sexually graphic messages to

classmates, but that he did not send anything that was sexually

graphic to her. In her affidavit, J.P. also stated that T.O.

had threatened her past boyfriends "[i]f they ever hurt me."

J.P. also testified that T.O. would attend many of the sporting

events at J.P.'s high school even though they attended different

schools. J.P.'s father told T.O. to stop messaging her and she

thought she had blocked T.O. from texting or messaging her.

Some time later, J.P. was accepted to a local college, and T.O.

texted her to congratulate her. It was at this point that J.P.

discovered that she and T.O. had both been accepted to the same

local college and both planned on attending the following fall

semester. J.P. testified that none of the three or four texts

she received from T.O. after her father told T.O. to stop

contacting her were malicious, abusive, or intimidating.

2 J.P. sought a civil harassment prevention order against

T.O. pursuant to G. L. c. 258E.2 On April 26, 2022, the District

Court judge issued an ex parte harassment prevention order and

scheduled an extension hearing for ten days thereafter. At the

extension hearing on May 6, 2022, the judge heard arguments and

received evidence from both parties. J.P. testified regarding

the previously mentioned incidents and presented the court with

some of the messages she had received from T.O. At the hearing,

T.O. argued that J.P. had not, as required by G. L. c. 258E,

§ 1, presented evidence of three or more acts of willful and

malicious conduct aimed at J.P. with the intent to cause fear,

intimidation, or abuse. Without making factual findings, the

court extended the civil harassment abuse prevention order that

day. T.O. filed a timely notice of appeal.

Discussion. In order for a harassment prevention order to

issue, J.P. was required to establish by a preponderance of the

evidence that she had been harassed by T.O. "To establish

harassment, 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

2 J.P. was a minor at the time and filed her complaint and affidavit through her parent.

3 together, did in fact cause fear, intimidation, abuse, or damage

to property." O'Brien v. Borowski, 461 Mass. 415, 426 (2012),

citing G. L. c. 258E, § 1. Here, T.O. argues that although the

record may support a finding of one such act, namely the threat

of self harm, it does not support a finding of three or more.3

We agree.

The law is clear that each of these three or more acts must

be aimed at the plaintiff. There was no evidence presented that

the sexually explicit messages presented at the extension

hearing were intended by the defendant to reach or be seen by

the plaintiff. Similarly, without further details, there is

nothing in the record to support the conclusion that the

communications from the defendant to the plaintiff's ex-

boyfriends were intended to cause fear or intimidation in the

plaintiff. Lastly, the defendant's appearance at the local high

school sporting events, without more, does not constitute an act

intended to cause fear or intimidation in the plaintiff.

3 J.P. counters this argument by stating that, in the alternative, J.P. presented sufficient evidence of criminal harassment under G. L. c. 265, § 43A. This argument was not made to the District Court and we do not see any evidence in the record that the District Court considered whether T.O.'s actions fell within the definition of criminal harassment. Because the trial court did not have the opportunity to hear arguments on this point, we decline to address it. We note, however, that on the record before us, the arguments regarding criminal harassment suffer many of the same difficulties as those regarding civil harassment.

4 This leaves us with only the threat of self harm and the

text sent from T.O. congratulating J.P. on her acceptance to a

local college after the defendant was blocked from messaging

J.P. and was told by J.P.'s father to stop contacting her.

Assuming without deciding that both incidents are willful acts

motivated by cruelty, hostility, or revenge with the intent to

cause the plaintiff to experience fear or intimidation, these

constitute only two of the requisite three acts. Finding even

two acts on this record is a stretch given J.P.'s testimony that

the congratulatory texts were not malicious, abusive, or

intimidating. For that reason, there is not sufficient evidence

that T.O. committed harassment as defined by G. L. c. 258E, § 1.

We do not diminish the potential harm suffered by the plaintiff

but, on this record, we must vacate the order entered on May 6,

2022, extending the ex parte civil harassment prevention order.4

Because we vacate on other grounds, we do not address the

defendant's arguments regarding a lack of findings.

The c. 258E harassment prevention order entered May 6,

2022, is vacated. So much of the appeal as purports to be from

4 We understand that the District Court has since further extended the harassment prevention order. This memorandum and order is not intended to address any order other than the extension entered May 6, 2022. It is the parties' prerogative to relitigate any subsequent extension based on our ruling today.

5 the ex parte c. 258E order entered April 26, 2022, is dismissed

as moot.

So ordered.

By the Court (Milkey, Walsh & Smyth, JJ.5),

Clerk

Entered: June 27, 2023.

5 The panelists are listed in order of seniority.