C.S. v. B.D. (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, B.D., appeals from an order of a District Court judge extending a harassment prevention order issued pursuant to G. L. c. 258E. Our review is limited to the defendant's challenges to the order after notice. We conclude that the evidence supports a finding of three acts of harassment, that the judge was appropriately mindful of the parties’ landlord-tenant relationship and the pending eviction proceeding, that the judge was not required to make specific findings, and that the defendant was not prejudiced by the exclusion of a counterclaim filed in the Housing Court. Accordingly, we affirm.

1. Ex parte order. The defendant purports to appeal from the ex parte order. An ex parte harassment prevention order, however, “ ‘is [not] itself entitled to appellate review,’ so long as the defendant had an opportunity to be heard at a subsequent hearing after notice.” C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 563 (2017), quoting Allen v. Allen, 89 Mass. App. Ct. 403, 405 (2016). Here, the defendant had an opportunity to be heard at a hearing after notice. Accordingly, the defendant “is not entitled to further review of the ex parte order,” as it “has been superseded by the order after notice.” C.R.S., supra at 563, 565.

2. Order after notice. a. Sufficiency of the evidence. “In reviewing a civil harassment order under G. L. c. 258E, 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.’ ” V.J. v. N.J., 91 Mass. App. Ct. 22, 25 (2017), quoting G. L. c. 258E, § 1. Where the acts consist solely of speech, each “must be either a ‘true threat’ ” or “fighting words.” A.R. v. L.C., 93 Mass. App. Ct. 758, 760 (2018), quoting O'Brien v. Borowski, 461 Mass. 415, 425 (2012). True threats include “direct threats of imminent physical harm” and “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 v. Stansfield, 474 Mass. 31, 37 (2016), quoting O'Brien, supra. Whether speech “constitutes ․ a true threat is a matter to be decided by the trier of fact.” A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 278 (2017), quoting Commonwealth v. Bigelow, 475 Mass. 554, 567 (2016).

Here, the record supports a finding of three acts of harassment. First, there was evidence that, on one occasion, when the plaintiff told the defendant not to park his truck in a certain spot, the defendant got out of his truck, began screaming and cursing, “[came] nose to nose” with the plaintiff, and said, “I can't hit you because you're an old man.” On a second occasion, when the plaintiff accidentally backed into the defendant's truck, the defendant yelled and cursed at the plaintiff, threatened to punch him, and called him a “fag.” On a third occasion, the defendant, standing fifteen to twenty feet away from the plaintiff, “went ․ ballistic” and screamed at the plaintiff. The plaintiff backed up because he thought that the defendant was going to hurt him. The plaintiff “testified more than once that [the defendant's] actions caused [him] to be afraid for [his] personal safety,” and the judge was entitled to “credit[ ] that testimony.” Gassman v. Reason, 90 Mass. App. Ct. 1, 8-9 (2016). Accord G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018) (when asked if she feared defendant, plaintiff responded, “A lot, a lot, a lot, a lot”). The plaintiff also reported feeling like his “heart [was] out of order” after one incident and going to the hospital the next day. The defendant's “threats and venomous name calling,” V.J., 91 Mass. App. Ct. at 26, could be viewed as acts intended to cause the plaintiff fear of physical harm and, in fact, causing such fear. See A.R., 93 Mass. App. Ct. at 760, quoting O'Brien, 461 Mass. at 427.

The defendant's challenge to a lack of findings is also unavailing.² “[W]here we are able to discern a reasonable basis for the order,” as we are here, “no specific findings are required.” G.B., 94 Mass. App. Ct. at 396. See O'Brien, 461 Mass. at 430 (remand is generally appropriate where the court “cannot affirm the order ․ without further findings”). Contrast A.R., 93 Mass. App. Ct. at 766-767 (remanding cases where judge did not make findings and court concluded that evidence supported, at most, “only two predicate acts”).

b. Landlord-tenant relationship. Contrary to the defendant's contention, the judge was appropriately mindful of the landlord-tenant relationship in issuing the order after notice. The plaintiff described the landlord-tenant relationship to the judge, and the judge repeatedly acknowledged that a harassment prevention order could not to be used to evict a tenant. The judge stated, “I would not ever issue a harassment order to evict somebody ․ during a pandemic” and specifically structured the harassment prevention order to allow the defendant to remain in the premises. The judge displayed exemplary attention to our warning that c. 258E cannot be “used as a short-cut for evicting tenants without following summary process procedures, or for preventing purely economic harm.” C.E.R. v. P.C., 91 Mass. App. Ct. 124, 132 (2017).

c. Exclusion of evidence. The judge refused to admit a counterclaim for harassment that the defendant's wife filed in a pending eviction case in the Housing Court, reasoning that it was not relevant. We review the ruling for an abuse of discretion. See Laramie v. Philip Morris USA Inc., 488 Mass. 399, 414 (2021).

Even assuming that the exclusion was improper, we discern no prejudice to the defendant. The defendant's wife testified that she filed a counterclaim for harassment against the plaintiff “[b]ecause there was relentless and non-stop harassment from [the plaintiff] towards [her and the defendant].” She described the plaintiff as “large,” “very aggressive,” and “ex-military,” and claimed that the plaintiff is “the one that usually approaches us and gets into our faces.” The judge, having heard this testimony, could decide whose “version of events” to believe and who “was the initial aggressor.” G.B., 94 Mass. App. Ct. at 394. In addition, by cross-examining the plaintiff about the pending eviction case, the defendant had a “meaningful opportunity to challenge the [plaintiff's] evidence,” A.P. v. M.T., 92 Mass. App. Ct. 156, 167 (2017), quoting Frizado v. Frizado, 420 Mass. 592, 598 n.5 (1995), and “explore [his] credibility.” F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 600 (2015). Accordingly, the defendant was not prejudiced by the judge's exclusion of the counterclaim, as it was cumulative of the evidence presented.

Order extending harassment prevention order affirmed.

FOOTNOTES

2.   Although the judge did not make specific findings, in extending the order, the judge stated, “Based upon the credible evidence that I have heard and considering all of the information that's available to me, ․ I do find that there were three or more willful and malicious acts directed at [the plaintiff] by ․ [the defendant], that they ․ were done with the intent to cause fear, intimidation, threat of abuse, and did, in fact, do so.”