P.C. & another.
Heard: December 1, 2016.
for protection from harassment filed in the Ipswich Division
of the District Court Department on December 28, 2015.
hearing to extend harassment prevention orders was had before
Peter F. Doyle, J.
D. Sullivan for the defendants.
Present: Milkey, Massing, & Sacks, JJ.
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. 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. 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.
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.
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. 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.
for issuance of harassment prevention orders.
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."
0'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 another or placing
another in fear of imminent serious physical harm." G.
L. c. 258E, § 1.
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." 0'Brien, 461 Mass. at
426 & n.8. Both standards are subjective: there must be
proof of the defendant's subjective intent, J_d. 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).
in support of extension order.
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).
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
observe at the outset that fear of economic loss occasioned
by the defendants' actions cannot form the basis of a
harassment prevention order. See 0'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
Dog and related property damage.
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.There is no ...