C.E.R. v. P.C.

• Decision Date: 06 March 2017
• Docket Number: No. 16-P-525.,16-P-525.
• Parties: C.E.R. v. P.C. & another.
• Court: Appeals Court of Massachusetts

71 N.E.3d 915

C.E.R.

v.P.C. & another.¹

No. 16-P-525.

Appeals Court of Massachusetts, Essex.

Argued December 1, 2016.

Decided March 6, 2017.

Ryan D. Sullivan , Boston, for the defendants.

Present: Milkey, Massing, & Sacks, JJ.

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 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 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, 961 N.E.2d 547 (2012). "Intimidation" is not defined in the statute. "Abuse" is defined as "attempting to cause or causing physical harm to 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, 961 N.E.2d 547. Both standards are subjective:

there must be proof of the defendant's subjective intent, id . at 426, 961 N.E.2d 547, 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, 961 N.E.2d 547. Petriello v. Indresano , 87 Mass.App.Ct. 438, 444-445, 31 N.E.3d 1159 (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, 25 N.E.3d 903 (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 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, 961 N.E.2d 547. 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 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 "hinder[ed] the sale of the house." That is insufficient to constitute harassment. See O'Brien , 461 Mass. at 427, 961 N.E.2d 547.⁸

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 Mass.App.Ct. 532, 536, 39 N.E.3d 744 (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, 961 N.E.2d 547, 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, 3 N.E.3d 577 (2014), citing O'Brien , 461 Mass. at 426-427, 961 N.E.2d 547. 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.

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]...