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16-P-525                                                 Appeals Court

                       C.E.R.   vs.   P.C. & another.1


                                No. 16-P-525.

            Essex.       December 1, 2016. - March 6, 2017.

                Present:   Milkey, Massing, & Sacks, JJ.


Civil Harassment. Harassment Prevention.          Protective Order.
     Words, "Intimidation."



     Complaint for protection from harassment filed in the
Ipswich Division of the District Court Department on December
28, 2015.

     A hearing to extend harassment prevention orders was had
before Peter F. Doyle, J.


     Ryan D. Sullivan for the defendants.


     SACKS, J.       The defendants, who were roommates, appeal from

the District Court's extension of harassment prevention orders

obtained by their then-landlord pursuant to G. L. c. 258E.2           We

conclude that the evidence was insufficient to support a finding

     1
         R.C.
     2
         The plaintiff landlord did not submit an appellate brief.
                                                                     2


that either defendant had engaged in three or more acts of

harassment, and we therefore vacate the extension orders.3      We

also take the opportunity to emphasize that when a landlord

seeks a c. 258E order against tenants, a judge should examine

the allegations of harassment carefully, to ensure that c. 258E

is not being used as a substitute for eviction through a summary

process action under G. L. c. 239.

     Background.4    The plaintiff owned a single-family home which

included an "in-law" apartment over the attached garage.

Following her divorce, the plaintiff was ordered by the Probate

and Family Court to place her home on the market, which she did

in April, 2015.     In mid-2015, the plaintiff rented the apartment

to the defendants, while she continued to live in the rest of

the home.   The defendants agreed to allow the plaintiff access

to the apartment in order to show the home to potential buyers.

One of the defendants, R.C., owned a dog, which also occupied

the apartment.    The defendants paid rent and contributed to



     3
       The orders expired by their own terms on December 29,
2016. The case is not moot, however, because the defendants
seek to have the orders vacated and certain records of those
orders destroyed. See Seney v. Morhy, 467 Mass. 58, 62 (2014);
Gassman v. Reason, 90 Mass. App. Ct. 1, 6-7 (2016).
     4
       We recite the uncontested facts elicited during the
testimony of the parties at the evidentiary hearing,
supplemented with the plaintiff's statements contained in her
affidavit and police reports, which the plaintiff, at the
hearing, affirmed under oath were true.
                                                                      3


utility costs, and the living arrangement continued more or less

uneventfully until the fall of 2015.

     Following the events discussed infra, the plaintiff

obtained ex parte harassment prevention orders against both

defendants on December 28, 2015, requiring them to stay away

from the premises and from her.5   After an evidentiary hearing on

January 7, 2016, the judge extended both orders for one year,

requiring the defendants to vacate the premises immediately and

stay away from them thereafter.

     Standard for issuance of harassment prevention orders.      As

relevant here, G. L. c. 258E, § 1, inserted by St. 2010, c. 23,

defines harassment 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."   "Malicious" is defined as "characterized by

cruelty, hostility or revenge."    Ibid.   Case law has limited the

meaning of "fear" to "fear of physical harm or fear of physical

damage to property."   O'Brien v. Borowski, 461 Mass. 415, 427

(2012).   "Intimidation" is not defined in the statute.    "Abuse"

is defined as "attempting to cause or causing physical harm to

     5
       On the defendant P.C.'s motion, his order was modified on
December 29, 2015, to allow him to reoccupy his apartment.
Although the docket and order in the defendant R.C.'s case do
not reflect a similar modification, the ruling on the motion
apparently applied to both defendants.
                                                                      4


another or placing another in fear of imminent serious physical

harm."   G. L. c. 258E, § 1.

    Thus, at the extension hearing, the plaintiff was required

to prove, by a preponderance of evidence, that each of the

defendants wilfully and maliciously committed three separate

acts that were intended to cause her fear, intimidation, abuse,

or damage to property, and that, "considered together, did in

fact cause fear, intimidation, abuse, or damage to property."

O'Brien, 461 Mass. at 426 & n.8.    Both standards are subjective:

there must be proof of the defendant's subjective intent, id. at

426, and the plaintiff need only show that she subjectively

experienced fear, intimidation, or abuse, without having to

satisfy any reasonable person test.     Id. at 420.   Petriello v.

Indresano, 87 Mass. App. Ct. 438, 444-445 (2015).

    Findings in support of extension order.      On appeal, the

defendants contend that the evidence was insufficient to support

the factual findings necessary to the judge's ultimate

conclusion that they had harassed the plaintiff.      We review the

factual findings for clear error.     See DeMayo v. Quinn, 87 Mass.

App. Ct. 115, 116-117 (2015).

    Here, the judge credited the plaintiff's testimony in full.

He found that "the defendants were extremely upset when [the

plaintiff] asked [them] to leave in the fall of 2015" and "began

engaging in a pattern of harassing conduct" that included a
                                                                      5


series of particular acts about which the judge made detailed

findings.     The judge then made three over-all findings:     that

the defendants' conduct was (1) "wilful"; (2) "motivated by

hostility and revenge" (i.e., committed with the requisite

malice); and (3) "intended to place the plaintiff in fear of

bodily harm, cause her financial hardship, and damage her

property."6

     We observe at the outset that fear of economic loss

occasioned by the defendants' actions cannot form the basis of a

harassment prevention order.     See O'Brien, 461 Mass. at 427.

Insofar as property is involved, only fear of physical damage

will suffice.    See ibid.   Thus, in evaluating the judge's

conclusions that specific acts constituted harassment, we put

aside, as legally irrelevant, the finding that the defendants

intended to cause financial hardship.

     1.     Dog and related property damage.   The judge found that

the defendants kept "a dog inside the property without the

permission of the plaintiff and allow[ed] the dog to damage the

property."    But there was no evidence that the defendants were

motivated to keep the dog (or to allow it to do damage) by

cruelty, hostility, or revenge targeting the plaintiff.        On

     6
       The judge's findings do not differentiate between the two
defendants, apparently attributing either's conduct to both of
them. Although that approach has not affected the result we
reach here, specifying which findings apply to which
defendant(s) is preferable and could be critical in other cases.
                                                                     6


occasion, the plaintiff had taken care of the dog when the

defendants were not home, just as they had taken care of her

pets when she was away, and she described the dog as "very

sweet."   After an incident in November, 2015, in which the dog

destroyed a sofa belonging to the plaintiff, the defendants

compensated her for the damage.7    There is no evidence that any

damage resulted from a "malicious" act, as the statute requires,

or was anything other than incidental to ordinary pet ownership.

     2.   Conduct interfering with property sale or rental.    The

judge found that the defendants committed three acts with the

intent to interfere with the plaintiff's efforts to sell the

property or rent it to a possible buyer.    These acts included

(1) leaving a dildo in the closet of the apartment's kitchen

where it was discovered by a potential buyer; (2) leaving

marijuana and other drug paraphernalia in plain view in the

apartment; and (3) smoking marijuana "so that the home would

reek of the substance and could not be shown to potential

renters or buyers."   Yet there was no evidence that any of these

acts was intended to (or did) cause the plaintiff fear of bodily

harm or cause property damage.     The plaintiff's objections were

that the conduct was "inappropriate," "embarrassing," and


     7
       The plaintiff testified to other property damage caused by
the dog, but presented no evidence to suggest that the
defendants maliciously failed to attempt to prevent such damage
or actively encouraged it.
                                                                     7


"hinder[ed] the sale of the house."   That is insufficient to

constitute harassment.   See O'Brien, 461 Mass. at 427.8

     3.   Conduct to "intimidate" the plaintiff.   The judge found

that the defendants committed three acts with the intent to

"intimidate" the plaintiff.   These consisted of (1) "[p]laying

loud music at all hours of the night," which the plaintiff

testified she found "harassing and abusive" and caused her

"stress and anxiety"; (2) "[u]sing strobe lights at night to

keep the [plaintiff] awake," which lights the plaintiff

testified made her house "look[] more like a bar, a nightclub,

to passers-by" and made realtors think the house was "not

showable"; and (3) "[i]nstalling video cameras on the property,"

aimed at the driveway and a living room,9 which the plaintiff

testified she found "[un]necessary," "inappropriate," and "very

offensive."

     Because G. L. c. 258E does not define "intimidation," and

because we strive to give that term some meaning not already

conveyed by the statutory term "fear," see A.T. v. C.R., 88


     8
       The judge also found that the defendants "[e]ngag[ed] in
obstructive behavior so that the plaintiff could not rent or
sell her home and would be in violation of the Probate Court
order." To the extent that this finding described any behavior
beyond that detailed above, such behavior was similarly
insufficient to constitute harassment.
     9
       It is unclear from the record and findings whether the
living room was in the defendants' apartment or in the main
house.
                                                                       8


Mass. App. Ct. 532, 536 (2015), we have looked for guidance to

decisions defining "intimidation" for purposes of other

statutes.     See ibid.   But each of those other definitions in

turn relies upon the term "fear," see ibid., and we have not yet

had to determine whether any form of "fear" beyond fear of

physical harm or physical damage to property, see O'Brien, 461

Mass. at 427, might suffice as a component of "intimidation."

     Nor need we do so here.     As to the loud music and strobe

lights, the plaintiff did not testify, nor was there any other

evidence, that they were intended to (or did) cause her fear of

any sort.10    As to the cameras, although there was additional

testimony by the plaintiff that could be construed to mean that

the cameras indirectly caused her "fear" (rather than

"intimidation"), there was no evidence that the defendants

intended the cameras to do so.      "[A]n essential element of civil

harassment is intent."      Seney v. Morhy, 467 Mass. 58, 63 (2014),

citing O'Brien, 461 Mass. at 426-427.      The plaintiff's affidavit

stated that the cameras had been placed in July, 2015, well

before the fall, when relations first soured due to the

plaintiff telling the defendants that they had to move out.




     10
       Although keeping a person awake for extended periods
might in some circumstances cause bodily harm, there was no
evidence here that the lights were intended to or did keep the
plaintiff awake or made her fear any bodily harm.
                                                                   9


    4.   Conduct during the defendants' move-out.    The judge

found that the defendants "[became] intoxicated and then

threaten[ed] the plaintiff when they were moving items[,]

causing the plaintiff so much fear that she had the . . . police

come to the home."   The evidence underlying this finding was

that on December 27, 2015, the plaintiff went to the local

police department to give the police a "heads up" that the

defendants were "making her feel uncomfortable."    She reported

that the defendants were "complicating her showing the home,"

that she had asked them to move out, and that they had been

removing their things, but she remained "concerned that they

[would not] leave willingly."

    The plaintiff testified at the extension hearing that when

the defendants came to remove their belongings from the garage,

"[t]hey were upset because the door was locked," to which she

replied that "[a]ll they had to do was ask and, at that time,

[she] opened the garage door."   She acknowledged that the

defendants made no specific threats during this encounter, but

"they were very drunk and disorderly and they were aggressive

and I had already gone to the police that day, um, to just let

them know that I had been addressed aggressively by two men

living in my house, multiple times."   The plaintiff provided no

further details other than that the defendants were "yelling
                                                                   10


through the door."    She did not ask the police to come to her

home, nor did they.

    The finding that the defendants "threaten[ed]" the

plaintiff and caused her "fear" during this incident is

unsupported by the record.     The plaintiff specifically denied

that any threats were made.    She did not identify any act by

either defendant that was intended to (or did) cause her fear of

physical harm or property damage.     Although she did go to the

police, her stated intention in doing so was to warn them that

the defendants might refuse to leave her property, reflecting

only her concern that their continued presence would impede the

sale of her home.

    5.   Violation of order.     The judge found that the police

had responded multiple times to the residence, "culminating in

criminal process being issued against both defendants for

failure to abide by the harassment order."     The underlying

evidence was a police report from January 4, 2016, which

describes the defendants interfering with a showing of the

property on the previous day by keeping their bedroom doors shut

and refusing to allow the potential renter or buyer access to

the bedrooms.   The officer involved applied for criminal

complaints against both defendants for violating the provision

of the preliminary harassment prevention orders forbidding them

from "interfer[ing] in any way with the rental or sale of the
                                                                   11


property."11    Such violations, if they occurred, would not

qualify as an act of harassment, because obstructing the sale or

rental of the home could result only in economic damage.

     6.    Remarks overheard by the plaintiff.   The judge found

that the defendants had "[told] the [plaintiff] that she is a

cunt, and that this is all so awesome because she is fucked[,]

causing the plaintiff fear, stress and anxiety."     The police

report and the plaintiff's testimony recounted that she had

"overheard" the defendants, while in a room separated from hers

by a glass door, "talking about her," "not directly to [her],"

but loudly enough that she believed they knew she could hear

them.     They made the remarks described above, as well as saying,

"she has no idea what she's in for."

     An instance of speech may support a harassment prevention

order only if it falls outside the protections of the First

Amendment to the United States Constitution, either by

consisting of "fighting words" or by constituting a "true

threat."     See O'Brien, 461 Mass. at 423-424; Seney, 467 Mass. at

63; Petriello, 87 Mass. App. Ct. at 446.     Among the comments

described, we question whether any constituted "fighting




     11
       The record before us does not reflect whether such
complaints ever issued.
                                                                   12


words,"12 and the only one that could arguably be interpreted as

a "true threat"13 is, "she has no idea what she's in for."   The

plaintiff never stated that the remarks caused her to fear

bodily harm or property damage.   Rather, she characterized them

as representing the defendants' "passive-aggressive" desire to

cause her economic harm:   "They know that, by not leaving and

not paying rent [they] will most likely put me into

foreclosure."   As noted, fear of economic harm does not

constitute "fear" under G. L. c. 258E.   See O'Brien, 461 Mass.

at 427.   We will nevertheless put aside our questions and assume

without deciding that the overheard remarks constituted an act

of harassment by one or both defendants.14


     12
       The exception for "fighting words" is limited to "face to
face personal insult[s]," Commonwealth v. Welch, 444 Mass. 80,
98-99 (2005), "directed to the person of the hearer" and
"inherently likely to provoke violent reaction." Cohen v.
California, 403 U.S. 15, 20 (1971), quoting from Cantwell v.
Connecticut, 310 U.S. 296, 309 (1940). Although calling a
person a "cunt" might in some circumstances constitute "fighting
words," here, the defendants' comment was not directed to the
person of the plaintiff. Compare State v. Dugan, 369 Mont. 39,
54, cert. denied, 134 S. Ct. 220 (2013) (addressing person as
"fucking cunt" over telephone did not constitute "fighting
words").
     13
       "'True threats' encompass those statements where the
speaker means to communicate a serious expression of an intent
to commit an act of unlawful violence to a particular individual
or group of individuals. . . . The speaker need not actually
intend to carry out the threat." O'Brien, 461 Mass. at 423,
quoting from Virginia v. Black, 538 U.S. 343, 359-360 (2003).
     14
       The judge made no finding, and there was no evidence,
regarding which defendant had made which remark(s). Even if one
                                                                       13


       7.   Remarks made to plaintiff.   The judge found that one of

the defendants, P.C., when the plaintiff first informed him by

telephone that he had to move out, said, "you are fucking up my

life," and then hung up; the judge found that this "threat

caused so much fear in the plaintiff that she asked a friend to

stay with her for the night."    The plaintiff testified that this

statement made her "immediately uncomfortable that day and every

day since then.    Their behavior is, without question, hindering

the future sale and current rental of the property."         Defense

counsel asked, "Did that cause you harm at all -- that he hung

up the [tele]phone?"    The plaintiff replied, "It was

intimidating and I was nervous to see what tomorrow would bring.

I had someone stay with me that night."     But when asked

immediately thereafter whether either defendant had ever touched

her without permission or had "ever threatened to cause [her]

physical harm," the plaintiff replied, "No."      We will,

nevertheless, again put aside our questions and assume without

deciding that the comment constituted an act of harassment by

P.C.

       The judge also found that after the plaintiff asked the

defendant R.C. to remove the dog from the premises, he told her,

"don't fuck with my dog."     The plaintiff testified that this


defendant had made both, we would not be inclined to view two
relatively similar remarks made during a single incident as two
separate acts of harassment.
                                                                    14


statement "seemed kind of threatening at the time" because R.C.

was "basically saying, 'Don't -- or else.'"    Without exploring

fully whether this could be considered a "true threat,"

particularly where the plaintiff testified that neither

defendant had ever threatened her with physical harm, we will

assume, without deciding, that the comment constituted an act of

harassment by R.C.

    8.   Summary.    In sum, the only possible acts of harassment

here were the overheard remarks made by one or both defendants;

P.C.'s statement over the telephone; and R.C.'s statement

regarding his dog.    This amounts to at most two acts by each

defendant, whereas the definition of "harassment" requires

"[three] or more acts . . . ."    G. L. c. 258E, § 1.   For an

order to enter against either defendant, three acts of

harassment by that defendant must be proven.    See generally

Petriello, 87 Mass. App. Ct. at 445-447 (stressing need to

identify which particular defendant had committed each act of

harassment).   Although there is no requirement that each

specific act actually cause fear, intimidation, abuse, or damage

to property -- what matters, instead, is whether the three or

more acts "considered together" did so, see O'Brien, 461 Mass.

at 426 & n.8 -- the defendant must still have committed three

wilful and malicious acts that were intended to cause fear,

intimidation, abuse, or damage to property.    Id. at 426.   The
                                                                        15


statute neither states nor implies that different acts by

different defendants may be aggregated in order to reach the

three-act threshold and then enter an order against each

defendant.   We conclude that the defendants' conduct -- while

boorish and no doubt upsetting and logistically and financially

problematic for the plaintiff -- did not constitute "harassment"

within the meaning of c. 258E.

    Harassment prevention orders and summary process.            The

plaintiff's principal apparent motivation in filing police

reports and seeking the c. 258E orders was to induce the

defendants to leave without interfering with the rental or sale

of the property.        Thus, in filling out her original form

complaints, the plaintiff did not check the boxes requesting

orders that the defendants stop harassing her -- only the boxes

requesting orders that they stay away from her residence.           When

asked directly about her motives, she replied, "My motivation is

that, by court order, I am -- I have to sell my property, per my
                   15
divorce . . . ."          On two occasions, when she spoke to the

police, an officer advised her to "talk with a lawyer about


    15
       She made multiple other statements to the same effect,
e.g., that the defendants were "hiding behind tenant rights for
no reason other than to use my house to party and it is clear
they are trying everything [they] can to prevent me from selling
my home." During her testimony, she said no fewer than six
times that the defendants were "impeding" or "hindering" the
sale of her home.
                                                                   16


legally evicting the tenants."    Indeed, the judge recognized

that, "[o]n the surface, the case appeared to be an attempt by

the plaintiff to circumvent a proceeding in summary process."

At no time, however, did the plaintiff initiate a summary

process action.    Indeed, by the time of the evidentiary hearing,

the defendants had already begun to move out.      In a case such as

this, a judge must carefully evaluate the evidence to ensure

that c. 258E is not used as a short-cut for evicting tenants

without following summary process procedures, or for preventing

purely economic harm.16

     Conclusion.    The orders extending the harassment prevention

orders against both defendants are vacated.17

                                     So ordered.




     16
       Compare Gassman v. Reason, 90 Mass. App. Ct. 1, 3-4 & n.5
(2016) (in response to plaintiff's request at G. L. c. 258E
hearing that defendant, another tenant in same building, be
evicted, judge explained that he could not do so).
     17
       The defendants' brief seeks the destruction of relevant
law enforcement records. We see no need to order such relief
ourselves, because under G. L. c. 258E, § 9, inserted by St.
2010, c. 23, "[t]he court shall notify the appropriate law
enforcement agency in writing whenever any such order is vacated
and shall direct the agency to destroy all record of such
vacated order and such agency shall comply with that directive."
The trial court should take such action as a matter of course in
any case when a c. 258E order is vacated, including this one,
without specific direction from an appellate court. "The law
. . . mandates" such action. Seney v. Morhy, 467 Mass. at 60-61
& n.6.
