J.C. v. B.G.
| Decision Date | 01 November 2022 |
| Docket Number | 21-P-936,21-P-937 |
| Parties | J.C. v. B.G. (and a companion case [1]). |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, B.G., appeals from the Boston Municipal Court's issuance and subsequent extensions of two harassment prevention orders. See G. L. c. 258E. We limit our review to B.G.'s challenge to the extension orders after notice.[2] On appeal he contends that the judge's findings were clearly erroneous, the evidence was insufficient to support the harassment prevention orders, the judge deprived him of due process, and the plaintiffs, J.C. and A.C., committed a "fraud on the court" to obtain the orders. We affirm.
Background.
The parties are neighbors in a condominium building with one unit on each floor. The plaintiffs and their children[3] have lived in the fifth-floor unit since 2010, and the defendant has lived in the fourth-floor unit since 1994. Both J.C. and B.G. served as trustees for the condominium trust. Approximately one year after the plaintiffs moved into their condominium unit, a dispute arose regarding condominium fees. The dispute led to the filing of a civil action in the Boston Municipal Court. B.G. and J.C were opposing parties in that litigation, which resulted in the execution of a settlement agreement between B.G. and certain trustees, including J.C.
The plaintiffs described their experience with B.G. as "awful," "aggressive," and getting "worse" over time. Beginning in or around 2018, A.C. began to observe what looked like phlegm on the plaintiffs' car. One day, A.C. was in the car with her children when she saw B.G. exit his vehicle, walk down the alley toward them, look at them, and spit directly at their car.[4] A.C. testified to between fifteen and twenty incidents of phlegm on their vehicle. She provided corroborative photographs of the phlegm, as well as a video recording related to one such incident. A.C. has also found phlegm on a package addressed to the plaintiffs in the condominium. The most recent spitting incident occurred on June 1, 2021, when A.C. was on her balcony with her son. B.G. parked his car in the alley, walked down the alley, "curved" towards the plaintiffs' car, spit, and kept walking.[5] A.C. heard B.G. come up the stairs and close his door, and then she went down to take a picture of the phlegm on her car.[6]
On multiple occasions, B.G. screamed profanities -- most often "fucking asshole" -- at the plaintiffs when water filtered through the plaintiffs' fifth-floor balcony onto his fourthfloor balcony. On one occasion, A.C. was out on her balcony with her then three year old son playing at a "water table" when some water spilled through their deck onto B.G.'s balcony. She then heard B.G. cursing in such an aggressive tone that she checked to see if her front door was locked because she was scared and "didn't know what [B.G.] would do next." On multiple occasions, a witness who lives in another building on the street saw the defendant on his balcony yelling "fucking assholes" at the plaintiffs and slamming his slider door. That witness testified that B.G.'s yelling has been loud enough to startle her own guests.
J.C. testified that B.G. has screamed at him and berated him multiple times both when he was alone and when he was accompanied by his children. On May 13, 2021, upon seeing that B.G. was entering the condominium behind him and his son, J.C. sat down on the couch in the lobby to get out of B.G.'s way. B.G. proceeded to scream and point his finger at J.C. in front of his son, yelling, "You know exactly what you're fucking doing, you better fucking stop." On July 28, 2021, J.C. encountered B.G. while walking to his car and said "hi." In response, B.G. ran toward J.C., put his index finger in J.C.'s face, and screamed, "Don't ever, ever, ever talk to me ever again." J.C. felt "scared," and "threatened" during this incident.
On July 30, 2021, J.C. and A.C. each filed complaints in the Boston Municipal Court seeking harassment prevention orders against B.G. That same day, the court issued temporary orders on both applications after an ex parte hearing and set a hearing date of August 11, 2021. On August 11, 2021, a different judge extended the orders ex parte until a further hearing date of August 23, 2021. On August 23, 2021, the plaintiffs appeared, represented by counsel, while the defendant appeared, pro se.[7] The judge specifically credited A.C.'s and J.C.'s testimony and noted that there were multiple reasons that she did not credit that of the defendant. At the conclusion of the hearing, the judge extended both harassment prevention orders for a period of one year and made extensive findings of fact and rulings of law on the record.
Discussion.
Challenge to judge's findings.
The defendant first argues that the judge made "several findings that had no factual basis in the record." We will not disturb a judge's factual findings unless they are clearly erroneous. DeMayo v. Quinn, 87 Mass.App.Ct. 115, 117 (2015), citing Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 637 (2010). We discern no reversible error here.[8] The defendant principally challenges the judge's finding that the plaintiffs' testimony was credible and that his was not. The judge "had the opportunity to view the witnesses' demeanor, as well as listen to their testimony," putting her in "the best position to assess the credibility of the witnesses and to determine the facts." Millennium Equity Holdings, LLC, 456 Mass. at 636-637. Consequently, the judge's assessment of witness credibility "is close to immune from reversal on appeal except on the most compelling of showings" (citation omitted). Orange v. Shay, 68 Mass.App.Ct. 358, 362 (2007). We have carefully reviewed the record and conclude that the judge was entitled to credit the testimony of the plaintiffs and discredit that of the defendant.[9]
In addition, the defendant challenges, inter alia, the judge's finding that A.C. observed him spit on the car, and her finding that the defendant stated that a Boston Municipal Court judge found that J.C. had misappropriated funds from the condominium association. Neither of these findings was clearly erroneous. To the contrary, both findings constituted reasonable interpretations of the testimony and evidence at trial.[10]
Sufficiency of the evidence.
The defendant argues that there was insufficient evidence to support the extension of the harassment prevention orders. We are unpersuaded. When reviewing harassment prevention orders, "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'" (citation omitted). Gassman v. Reason, 90 Mass.App.Ct. 1, (2016). See G. L. c. 258E, § 1. Where the acts consist solely of speech, each "must be either a 'true threat' . . 'fighting words.'" A.R. v. L.C., 93 Mass.App.Ct. 758, (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 the judge's finding that the defendant committed three or more acts of harassment under G. L. c. 258E. While we agree with B.G.'s assertion that yelling profanities in and of itself does not amount to harassment under the statute, we do not review each alleged act in isolation. "In the determination whether the three acts 'did in fact cause fear, intimidation, abuse or damage to property,' it is 'the entire course of harassment, rather than each individual act, that must cause fear or intimidation.'" A.T. v. C.R., 88 Mass.App.Ct. 532, 535 (2015), quoting O'Brien, 461 Mass. at 426 n.8. Here, B.G.'s entire course of conduct toward the plaintiffs, including the numerous spitting and yelling incidents, in the context of the parties' tumultuous relationship and the setting in and around the plaintiffs' home and children, supports the judge's finding that B.G. committed three or more acts of harassment aimed at the plaintiffs. Likewise, we reject the defendant's claim that "there is no reasonable construction" of his words that could constitute a threat. As detailed above, "the defendant's repeated and escalating harassment of the plaintiff[s] . . . would reasonably support an inference that he intended to cause the plaintiff[s] fear and intimidation." A.T., supr...
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