N.M. v. P.R. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant P.R. appeals from a harassment prevention order issued by a judge of the District Court requiring him to not abuse, to not contact, and to stay away from the residence of the plaintiff N.M. Because we conclude that the evidence was insufficient to establish “harassment” within the meaning of G. L. c. 258E, we vacate the order.

Background. N.M. was a lawyer engaged by P.R.'s parents to represent them with respect to amendments to their existing estate plans. In a series of e-mails to N.M. (and other individuals at her firm) in 2016 and 2017, P.R. expressed strong disagreement with the changes to the estate plans, suggesting that they were being motivated by his brother M.R., who lived with their parents and who was allegedly exerting undue influence. P.R. accused N.M. and her firm of improperly managing and interfering with his parents' estates. P.R.'s mother died, followed by his father, within months of each other in 2017.

Following his father's death in June 2017, P.R. initiated probate proceedings in Probate and Family Court. In March 2018, P.R., as personal representative of his father's estate, initiated a tort action in Superior Court against his brother M.R., who P.R. alleged had converted assets of the estate. N.M. represented P.R.'s brother M.R. in both cases. In connection with these legal actions, P.R. mailed N.M. “demand” letters in August 2019, requesting certain documents and responses within twenty and thirty days, respectively.

On November 12, 2019, P.R. sent two e-mails to N.M. within minutes of each other. The first e-mail, sent at 8:16 a.m. from P.R.'s personal e-mail address to N.M. and N.M.'s paralegal, stated, “Your Time has run out.” The demand letters were attached to the e-mail. The second e-mail, sent at 8:22 a.m. from P.R.'s work e-mail address to N.M. with a copy to N.M.'s paralegal, stated, “Your Time has expired.” Again, the demand letters were attached. That same day, N.M. applied for a harassment prevention order against P.R., and a temporary order issued.

At the two-party hearing on November 27, 2019, P.R. sought to have the order vacated. After an evidentiary hearing, the order was extended for one year.

Discussion. “To obtain a civil harassment prevention order under G. L. c. 258E, § 3 (a), a plaintiff must demonstrate, by a preponderance of the evidence, that the defendant committed ‘[three] or more acts’ of ‘[h]arassment’ within the meaning of G. L. c. 258E, § 1.” F.K. v. S.C., 481 Mass. 325, 332 (2019). “In relevant part, an act constitutes ‘[h]arassment’ under G. L. c. 258E, § 1, when it is ‘aimed at a specific person’; consists of ‘willful and malicious conduct’ that is ‘committed with the intent to cause fear, intimidation, abuse or damage to property,’ and ‘does in fact cause fear, intimidation, abuse or damage to property.’ ” Id., quoting G. L. c. 258E, § 1. In reviewing a judge's decision to issue or deny a protective order, “we will not substitute our judgment 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).

Here, N.M.'s November 12, 2019 affidavit in support of the harassment prevention order stated that P.R. had “verbally harassed and threatened” her since 2016 and “up to and including 11/12/2019,” putting her in “fear for [her] life.” At the hearing, N.M. testified that she considered the two November 12, 2019 e-mails (indicating that her time had run out and that her time had expired) to be threats. When asked why she considered them so, N.M. stated that it was because of what she knew and had seen of P.R. When asked to elaborate, N.M. said that P.R. was “extremely mean-spirited” and proceeded to explain the animosity between P.R. and his brother M.R. (the client of N.M.). She described no specific conduct of P.R. directed at her.²

Later, the judge read into the record four e-mails sent by P.R. to N.M. dated December 27, 2016, January 13, 2017, February 22, 2017, and March 3, 2017, and noted that they were followed up (more than two and one-half years later) with the two November 12, 2019 e-mails. Although it is somewhat unclear which acts the judge relied on in making her determination, it is evident that all of the acts of alleged harassment entailed solely speech.

Where speech is concerned, only “fighting words” or “true threats” may qualify as acts of harassment. See Van Liew v. Stansfield, 474 Mass. 31, 37-38 (2016); Seney v. Morhy, 467 Mass. 58, 63 (2014); O'Brien v. Borowksi, 461 Mass. 415, 423-425 (2012). “Fighting words” are “limited to words that are likely to provoke a fight: 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.” O'Brien, supra at 423. “As for ‘true threats,’ these include ‘direct threats of imminent physical harm,’ as well as ‘words or actions that -- taking into account the context in which they arise -- cause the victim to fear such [imminent physical] harm now or in the future.’ ” Van Liew, supra at 37, quoting O'Brien, supra at 425.

The first three e-mails referenced by the judge expressed dissatisfaction with N.M.'s legal representation of P.R.'s parents and threatened legal action.³ None contained fighting words or true threats; they could not be the basis of any alleged harassment. See Van Liew, 474 Mass. at 37-38. The March 3, 2017 e-mail, sent around the time of P.R.'s mother's death, stated:

“Thanks to your meddling in my family's matter and the massive act of deception by your office and [redacted]. The last memories of my mother will be of the document you had crafted to me and [redacted]. ‘The less you see of them the better’ referring to [redacted] and myself.

“I hope you are proud of your actions that caused nothing but chaos and discomfort to all.

“I hope you suffer in death, like my mother and burn in hell, you disgusting excuse for a human.

“FU.”

“Offensive as it was,” F.K., 481 Mass. at 334, the March 13, 2017 e-mail likewise did not constitute harassment under the statute. P.R.'s statement that he hoped N.M. would “suffer in death” and “burn in hell” was not a true threat because it was not “a serious expression of an intent to commit an act of unlawful violence to a particular individual.”⁴ J.C. v. J.H., 92 Mass. App. Ct. 224, 229 (2017), quoting O'Brien, 461 Mass. at 423.

The remaining two e-mails, sent on November 12, 2019, within minutes of each other, were insufficient to establish a pattern of harassment. See G. L. c. 258E, § 1 (pattern of harassment requires at least three separate acts). We note that neither of the two e-mails, indicating that N.M.'s time had “run out” and had “expired,” were established to be acts of harassment. Although N.M. testified that she viewed them as threats, her subjective perception was not enough to make them so. Rather, N.M. was required to prove that P.R.'s e-mails were “true threats” undertaken willfully and maliciously with intent to cause fear, intimidation, abuse, or damage to property. See Van Liew, 474 Mass. at 37-38.

In response to P.R.'s testimony that he did not consider his e-mails to be threatening, the judge stated, “[Y]ou're looking at it only from your perception, and that is not how the Court looks at these things. We look at them from the perception of the individual who has come before the Court seeking an order.” This statement is correct only insofar as it pertains to the impact of the pattern of harassment on the plaintiff. See Seney, 467 Mass. at 63, quoting O'Brien, 461 Mass. at 426 n.8 (“target of the harassment must have experienced an ‘entire course of harassment,’ the whole of which caused fear or intimidation”). A defendant's intent, however, is an indispensable element in concluding that a particular act is harassment. See A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015) (essential element is that defendant must have intended to cause fear of physical harm or damage to property).

Here, the parties were on opposing sides in litigation. All communications were in context of litigation. The e-mails were in reference to “demand” letters that were attached. Cf. Patriot Group, LLC v. Edmands, 96 Mass. App. Ct. 478, 483 (2019) (litigation privilege is absolute defense to suit). Under the circumstances, there was insufficient evidence from which to infer the required willful and malicious intent. See F.W.T. v. F.T., 93 Mass. App. Ct. 376, 379 (2018) (mere existence of litigation did not permit inference of willful and malicious intent).

The c. 258E order is vacated, and the matter is remanded to the District Court with instructions that the court shall notify the appropriate law enforcement agency in writing that the order has been vacated and shall direct the agency to destroy all records of the order. See G. L. c. 258E, § 9.

So ordered.

Vacated and remanded

FOOTNOTES

2.   At the outset of the hearing, N.M. did tell the judge that P.R. had threatened to file a criminal complaint against her and that he had reported her to the Board of Bar Overseers. Without more, these allegations would not qualify as acts of harassment. See G. L. c. 258E, § 1; Van Liew v. Stansfield, 474 Mass. 31, 37-38 (2016) (threats must engender fear of physical harm or damage to property). Cf. O'Gara v. St. Germain, 91 Mass. App. Ct. 490, 497 (2017) (report of misconduct to proper authorities is protected petitioning activity).

3.   In the December 27, 2017 e-mail, P.R. accused N.M.'s office of being “complicit” in M.R.'s alleged manipulation of their parents and vowed to hold N.M.'s office “legally responsible.” The January 13, 2017 e-mail requested that N.M. and her office “cease and desist” from pursuing P.R.'s parents for signatures on legal documents, characterizing it as “elder abuse,” and indicating that P.R. could report it to the Board of Bar Overseers and would seek a complaint for criminal fraud. The February 22, 2017 e-mail complained of M.R.'s conduct, stated that N.M. and her office were “unprofessional,” “discourteous,” and “ha[d] no integrity,” and that P.R. would hold N.M.'s office “fully and solely responsible for all outcomes.”

4.   Even if expressed “face-to-face,” rather than through e-mail, the “FU” statement did not constitute “fighting words.” See O'Brien, 461 Mass. at 428-429 (raising middle finger, like its verbal counterpart, when used to express contempt, is protected speech).