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15-P-409                                               Appeals Court

              ELIZABETH    GASSMAN   vs.   KINZY REASON.


                             No. 15-P-409.

           Suffolk.       May 10, 2016. - August 11, 2016.

             Present:    Grainger, Hanlon, & Agnes, JJ.


Civil Harassment.     Protective Order.    Practice, Civil, Moot
     case.



     Complaint for protection from harassment filed in the
Brighton Division of the Boston Municipal Court Department on
June 13, 2013.

     The case was heard by David T. Donnelly, J., and hearings
to extend a harassment prevention order were had before Thomas
S. Kaplanes, J., and Patricia E. Bernstein, J.


    Jillise McDonough for the defendant.


    HANLON, J.      The defendant, Kinzy Reason, appeals from the

extension of a harassment prevention order issued pursuant to

G. L. c. 258E, in the Brighton Division of the Boston Municipal

Court.   She argues that the order was improperly issued and

wrongly extended.     After a review, we are satisfied that,
                                                                   2


despite the fact that the order has now expired, the issue is

not moot and therefore is properly before us.    In addition, we

agree that the order should not have been extended.1

     Background.    The parties lived in the same public housing

complex in Brighton; the plaintiff, Elizabeth Gassman, lived in

an apartment on the third floor of the building, and Reason

lived on the second floor in the apartment directly below

Gassman's apartment.    Apparently, Gassman played the piano

frequently and her playing was a source of considerable

irritation for Reason.

     On June 13, 2013, Gassman sought an ex parte harassment

prevention order against Reason, pursuant to G. L. c. 258E.2


     1
         The propriety of the extension is the only issue presented
to us.
     2
       In support of her application, Gassman submitted the
following affidavit:

     "She called the police to complain[ ] about my playing the
     piano before [nine] pm at night. She had previously
     [banged] on my door demanding that I stop playing because
     'I need my rest.' She complained many times. Boston noise
     ordinance measured the [decibels] and found I was within
     legal limit.

     "On 10/18/10 I complained to police about her bothering me
     over and over and how upsetting it was because it made me
     fearful. I have been diagnosed with an anxiety disorder
     and fear confrontation and [violence] from [her].

     "On April 25, 2013[,] she called the police and complained
     that I had pushed her. An assault and battery complaint
     was issued and I was ordered to appear at a Clerk
     Magistrate hearing. It was dismissed but I am fearful that
                                                                     3


There was a short hearing; the judge asked several questions

about a prior proceeding,3 and then Gassman was sworn.    The judge

asked her, "Are you in fear of your safety?"    Gassman responded,

"Yes."    The judge also asked some questions about the relative

locations of the parties' apartments, the placement of the

building elevator and the laundry room, and the location of a

music school that Gassman was attending.    After the hearing, the

judge issued an ex parte order, ordering Reason to stay ten

yards away from Gassman when in the building where both parties

lived, not to enter the third floor of the building, to stay

fifty yards away when outside the building, and to stay away

from Gassman's music school.    A hearing after notice was

scheduled for June 25, 2013.

         The hearing apparently was held before the same judge and

he extended the order for a year.    According to an entry on the

order, Reason was present; the record does not contain a

transcript of that hearing or any indication of what testimony

or other evidence the judge heard.




     she will harass me again. The stress of going through this
     made me so anxious that my life was derailed for an entire
     month."
     3
       After a review of the entire record, it appears likely
that the prior proceeding mentioned was the hearing where the
defendant unsuccessfully sought a complaint against the
plaintiff for assault and battery.
                                                                   4


     At the end of the year, Gassman again sought to extend the

order, this time before a different judge.   In response to the

judge's question about what Gassman wished to do, she replied

that she wished to report a violation of the existing harassment

order and offered police reports.   She also told the judge that

she wanted the harassment order extended and that Reason "be

evicted for six years of unrelenting harassment of [her]."

Gassman told the judge that Reason had "called the police on

[her] four -- to [her] door four times for playing the piano."4

She complained that the defendant had violated the order by

"standing smack in front of the elevator door," forcing the

plaintiff to walk by "within six inches of her."    Gassman

finished by saying, "After that, the only time she complied with

the -- When we encountered each other, all of which were chance

encounters because that's life, I'm not following her, she's not

following me."

     Nonetheless, Gassman maintained that Reason was a danger to

her and, when the judge asked why, she responded,

     "Because . . . she lied to the police. She's lied to
     the BHA. She's lied in a civil rights complaint. She
     is capable of making up any story that suits her and
     she is determined to do harm to me. It started when
     she moved in the building, the first week she lived

     4
       The judge explained to Gassman -- several times -- that he
could not evict the defendant from her apartment at that
hearing. Gassman repeatedly interrupted the judge each time he
either asked a question or tried to explain the process.
                                                         5


there, in 2009 when she started going to the office
complaining I was playing the piano. I have a noise
measurement report from the [c]ity of Boston. It was
done at my request."

Judge:   "Okay."

Plaintiff: "That measures the sound in her apartment
as [forty-eight] decibels or below, far below the
[seventy-eight] decibels allowed by law. Despite
being given that report, she called the police to my
door four times . . . in the next years, complaining
about I was disturbing the peace. On not a single
occasion did the police find me violating the --
disturbing the peace, and in fact they apologized for
disturbing me."

Judge:   "Okay."

Plaintiff: "Then we had a period when I didn’t hear
from her, and then suddenly last year I get an assault
and battery charge. I walked by her in the hallway,
absolutely nothing took place, and the next thing I
know, four weeks later I get a summons to appear in
court on an assault and battery charge. She also
filed a civil rights . . . "

Judge:   "So you’re telling me --"

Plaintiff:   "complaint --"

Judge:   "you’ve never --"

Plaintiff:   "I --"

Judge:   "physically --"

Plaintiff:   "I’ve never --"

Judge:   "assaulted her?"

Plaintiff:   "done a thing to her.   The --"

Judge: "Has she ever physically assaulted you"
(emphasis supplied)?
                                                                     6


    Plaintiff: "No (emphasis supplied). It’s -- But I’m
    [sixty-five] years old. I don’t know if I have two
    years left or [ten] years left. I can’t spend them
    constantly defending myself against her false and
    meritless complaints about my playing the piano, about
    my -- by accusations of assaulting me. She can make
    up anything. She can do anything to me and all I can
    do would be to dragged into court and --"

    Judge:    "Right."

    Plaintiff:    "defend myself.   It's a situation I can't
    control."

    The judge then inquired of Reason's counsel about the

defendant's position.    She replied that the earlier order should

not have issued and the judge responded that it was too late for

that.   An exchange followed about the proper procedure for

making a complaint about noise -- that is, whether it should be

made to the Boston Housing Authority or to the manager of the

property.    The judge asked to be shown "that there has been a

legitimate noise disruption. . . .    I still am not hearing that

there's any -- other than a self-serving letter that says

there's noise, who else is saying that there's noise?"

    After more discussion about noise, Reason's counsel asked

to have the order vacated, arguing that her client also had been

harassed by the plaintiff, but that she did not wish to escalate

the situation and therefore did not seek a harassment protection

order on her own behalf.    Reason then testified that the

constant noise had caused her great suffering and that she had

done what she could do to obtain emergency housing elsewhere.
                                                                    7


She also stated that she had never threatened the plaintiff or

insulted her or sought any contact with her since the original

order issued.   The judge asked the clerk for a six-month date,

with the plaintiff continually interrupting him again.    He

cautioned both parties that he could not prevent inadvertent

contact between them and extended the order for six months.

Reason timely appealed.   In the interim, on December 23, 2014, a

third judge of the Boston Municipal Court extended the order

until June 23, 2015.    The order appears to have expired on that

date.    There is no indication that a judge ever ordered the

harassment prevention order terminated, or vacated, or that

there ever was any order "to the appropriate law enforcement

agency," pursuant to G. L. c. 209A, § 7, as appearing in St.

1990. c. 403, § 8, "to destroy all records of such order."

     Discussion.   We consider first whether this appeal of the

harassment order that expired on June 23, 2015, is now moot.5


     5
       Reason did not appeal from the order issued after notice,
that is, the second hearing, for which we have no transcript.
We note that she claims that she was never told that she had a
right to appeal. In any event, she has not waived her right to
appeal this extension of that order. See Smith v. Jones, 75
Mass. App. Ct. 540, 544 (2009), quoting from Smith v. Jones, 67
Mass. App. Ct. 129, 133-134 (2006), where, notwithstanding the
propriety of the issuance of the original order in that case, we
vacated the extension, holding that, in order to obtain an
extension, a plaintiff must make the same showing as required in
the initial hearing, and that "no presumption arises from the
fact that a prior order has issued; it is the plaintiff's burden
to establish that the facts that exist at the time extension of
the order is sought justify relief."
                                                                    8


The law is clear that it is not.   See Seney v. Morhy, 467 Mass.

58, 62 (2014), where the court concluded that:

    "appeals from expired harassment prevention orders, like
    appeals from expired abuse prevention orders, should not be
    dismissed as moot where the parties have a continuing
    interest in the case. See Wooldridge v. Hickey, 45 Mass.
    App. Ct. 637, 638 (1998) (party challenging legality of
    abuse prevention orders has 'a surviving interest in
    establishing that the orders were not lawfully issued,
    thereby, to a limited extent, removing a stigma from his
    name and record'). '[A] wrongfully issued harassment
    prevention order [pursuant to G. L. c. 258E] poses the same
    concerns for a defendant about collateral consequences as
    does a wrongfully issued abuse prevention order [issued
    pursuant to G. L. c. 209A].' Lawrence v. Gauthier, 82
    Mass. App. Ct. 904, 904-905 (2012)."

    Our recent decisions, in Allen v. Allen, 89 Mass. App. Ct.

403 (2016), and Quinn v. Gjoni, 89 Mass. App. Ct. 408 (2016),

are not to the contrary.   In each of those cases, the challenged

order had not expired, but, rather, had been terminated by a

judge.   In Allen, supra at 303, we said, "termination of the ex

parte order at the hearing after notice, accompanied by an order

directing law enforcement agencies 'to destroy all record of

such vacated order,' renders the defendant's appeal moot.    G. L.

c. 209A, § 7, as appearing in St. 1990, c. 403, § 8."    In Quinn,

supra at 414, citing Allen, supra, we concluded that, "the order

under appeal here did not merely expire but has been vacated,

and copies of the abuse prevention order possessed by law

enforcement officials were ordered destroyed.    The defendant

therefore has obtained all the relief to which he could be
                                                                     9


entitled, and he no longer has a cognizable interest in whether

the order was lawfully issued."

    In this case, by contrast, the order simply expired at the

end of the extension period and this defendant has neither a

judicial termination of the order nor an order that law

enforcement should destroy all copies of it.    We therefore

proceed to the merits, considering whether the order was

properly extended.

    Harassment.      In reviewing a civil harassment prevention

order, we consider whether the judge could find, by a

preponderance of the evidence, together with all permissible

inferences, that the defendant had 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."     Seney, supra at 60,

quoting from G. L. c. 258E, § 1, inserted by St. 2010, c. 23.

See O'Brien v. Borowski, 461 Mass. 415, 420 (2012), quoting from

G. L. c. 258E, § 1. ("[T]he acts of harassment must be wilful

and '[m]alicious,' the latter defined as 'characterized by

cruelty, hostility or revenge,' and they must be committed with

'the intent to cause fear, intimidation, abuse or damage to

property.' . . .     Second, the multiple acts of civil harassment

must 'in fact cause fear, intimidation, abuse or damage to
                                                                    10


property'").   See also Petriello v. Indresano, 87 Mass. App. Ct.

438, 444 (2015).

    In Seney, supra at 63, quoting from O'Brien, supra at 423

and 425, the court reiterated that "an essential element of

civil harassment is intent.   Conduct may constitute civil

harassment where an individual wilfully and maliciously uses

'fighting words' that are 'a direct personal insult addressed to

a person' and 'so personally abusive that they are plainly

likely to provoke a violent reaction and cause a breach of the

peace,' . . . or uses 'true threats,' such as '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.'"     The

conduct must have been intended to cause, and must actually

cause, abuse (defined as "attempting to cause or causing

physical harm to another or placing another in fear of imminent

serious physical harm"), intimidation, fear of personal injury,

or damage to property.   O'Brien, supra at 427, quoting from

G. L. c. 258E, § 1 (individual must "willfully commit[] three or

more acts aimed at a specific person, each with the intent to

cause fear, intimidation, abuse, or damage to property").     The

target of the harassment must have experienced an "entire course

of harassment," the whole of which caused fear or intimidation

amounting to more than "a fear of economic loss, of unfavorable
                                                                   11


publicity, or of defeat at the ballot box."   O'Brien, 461 Mass.

at 426 n.8, 427.

    Civil harassment cases present a significant challenge in

busy municipal and district courts, as the record in this case

illustrates.   Applications for such orders are filed by feuding

neighbors, as here; expressive bar patrons, see id. at 415;

angry hockey or baseball parents, see Seney, 467 Mass. at 58;

and contentious roommates, see Smith v. Mastalerz, 467 Mass.

1001 (2014), among others.   The inclination to issue an order

for the parties to stay away from one another, concluding that

such an order cannot do any harm, is understandable.

Nonetheless, harassment prevention orders issued pursuant to

G. L. c. 258E carry significant collateral consequences for a

defendant, consequences that cannot be undone completely, even

when a court later determines that the order should not have

issued in the first place.   See Quinn, 89 Mass. App. Ct. 413-414

& n.13.

    In addition, at least since O'Brien, the law has been clear

that 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.   In the context of a

harassment order pursuant to G. L. c. 258E, "[t]he plaintiff

bears the burden of proving that each of the three qualifying

acts was maliciously intended, defined by G. L. c. 258E, § 1, as
                                                                     12


being 'characterized by cruelty, hostility or revenge.'"     A.T.

v. C.R., 88 Mass. App. Ct. 532, 535 (2015), quoting from

O'Brien, supra at 427.    In addition, while the "'true threat'

doctrine applies not only to direct threats of imminent physical

harm, but to 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 and evince intent on the part of the

speaker or actor to cause such fear," O'Brien, supra at 425, the

consistent element required is an intent to cause fear.

Contrast, Webster's Third New International Dictionary 1031

(2002) ("Harass" in normal usage means "to vex, trouble or annoy

continually or chronically [as with anxieties, burdens, or

misfortune]").

    Gassman testified more than once that Reason's actions

caused her to be afraid for her personal safety.   The judges

apparently credited that testimony and, under the case law,

there is no reasonable person test for judging that fear.     That

is, the question is only whether Gassman in fact was placed in

fear, not whether the fear was reasonable.    See O'Brien, 461

Mass. at 420.    However, as the court stressed in Seney, 467

Mass. at 62, a plaintiff also must prove that the defendant

acted with intent to cause fear, intimidation, abuse, or damage

to property.
                                                                    13


    Despite the fact that the order in this case was issued or

extended by three different judges, there simply is no evidence

that Reason intended to cause any harm at all to Gassman, much

less that she wilfully committed three or more acts, aimed at

Gassman, each with the intent to cause fear, intimidation,

abuse, or damage to property.    There is no evidence of a true

threat or of fighting words.    Nor can repeated complaints about

noise from the upstairs apartment reasonably be described as

intimidation, intending to cause fear of physical harm or damage

to property.   Contrast A.T. v. C.R., 88 Mass. App. Ct. at 536

("The threat to make the plaintiff's life a living hell clearly

was intimidation").   In addition, a single application for a

complaint against the plaintiff alleging an assault and battery,

even though dismissed, cannot credibly be described as an act of

harassment as that term is defined in the case law, at least

under the circumstances of this case.    Even considering as a

whole the interaction between these two women in the same

apartment building over a period of years, we are satisfied that

there was insufficient evidence to support the second extension

of the harassment prevention order.

    The order extending the harassment prevention order is

vacated, and the case is remanded to the Brighton Division of
                                                                  14


the Boston Municipal Court for proceedings consistent with this

opinion.6

                                   So ordered.




     6
       We note, as we did in Quinn, 89 Mass. App. Ct. at 414
n.14, that:

     "[t]he case law has long established that someone in [the
     defendant's] position is not entitled [to have the order
     expunged from the defendant's record] except 'in the rare
     and limited circumstance that the judge has found[,]
     through clear and convincing evidence[,] that the order was
     obtained through fraud on the court.' Commissioner of
     Probation v. Adams, 65 Mass. App. Ct. 725, 737 (2006). See
     Vaccaro v. Vaccaro, 425 Mass. 153, 155-159 (1997); Smith v.
     Jones, 67 Mass. App. Ct. at 137-138. [The defendant] has
     not argued that such exceptional circumstances are present
     here, and, in any event, nothing in the record suggests
     that [the plaintiff] committed a fraud on the court."
