Heard: February 13, 2018.
for protection from harassment filed in the Plymouth Division
of the District Court Department on November 16, 2016.
motion to vacate a harassment prevention order was heard by
James M. Sullivan, J.
B. Flemming for the defendant.
R. Berluti for the plaintiff.
Present: Neyman, Sacks, & McDonough, JJ.
plaintiff, F.W.T., is the son of the defendant, F.T. The
parties agree that they have been embroiled in multiple
lawsuits involving land use since May, 2014. On November 16,
2016, the plaintiff filed a complaint in the District Court
seeking a harassment prevention order against the defendant
pursuant to G. L. c. 258E. At an ex parte hearing held that
same day, a judge continued the case until November 22,
pending notice to the defendant. At the November 22 hearing,
at which the defendant did not appear, the plaintiff
presented evidence; at the end of the hearing, the judge
issued a harassment prevention order for one year (c. 258E
order) that, inter alia, precluded the defendant from flying
a drone over the plaintiff's property or worksite.
December 30, 2016, the defendant filed a motion to vacate the
c. 258E order, contending that: (1) he did not receive actual
notice of the hearing before the c. 258E order was entered
against him; (2) the plaintiff violated G. L. c. 258E, §
3(g), by failing to disclose prior or pending court actions;
and (3) the evidence proffered by the plaintiff at the
November 22 hearing was legally inadequate to support the
issuance of the c. 258E order. On January 26, 2017, the judge
who issued the c. 258E order held a hearing on the motion to
vacate, which he subsequently denied on February 14,
2017. The defendant now appeals from the order
denying his motion to vacate, contending essentially that the
c. 258E order should not have issued and that the motion to
vacate should have been allowed. We agree that the evidence
presented to the judge was insufficient to support the
issuance of the c. 258E order, and thus the order denying the
motion to vacate must be reversed.
review an order issued under c. 258E to determine whether a
fact finder could conclude "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." Gassman v.
Reason, 90 Mass.App.Ct. 1, 7 (2016) (quotation omitted).
"[T]there are two layers of intent required to prove
civil harassment under c. 258E: the acts of harassment must
be wilful and '[m]alicious, ' the latter defined as
'characterized by cruelty, hostility or revenge, '
and they must be committed with 'the intent to cause
fear, intimidation, abuse or damage to property.'"
O'Brien v. Borowski, 461 Mass. 415, 420 (2012),
quoting from G. L. c. 258E, § 1.
appeal, the plaintiff asserts that there was evidence of more
than three acts of harassment raised and proved before the
judge. Upon review of the record, including the complaint,
the plaintiff's affidavit in support of the complaint,
and the transcripts of the November 16 and November 22
hearings, the plaintiff arguably alleged the existence of
five incidents. Specifically, he presented evidence that the
defendant had one of his employees fly a drone over the
plaintiff's property on at least three occasions; that on
one such occasion the drone flew "in front of" or
in the "line of sight" of a contractor operating
heavy machinery; and that, on at least two occasions, persons
entered the property to "video the site" at the
direction of the defendant. As to the drone in the "line
of sight" incident, there is no indication in the record
as to the proximity of the drone to any worker or machinery.
This evidence fell short of justifying the
the parties dispute whether the alleged harassment was
"aimed at a specific person" as required by the
plain language of G. L. c. 258E, § 1, inserted by St.
2010, c. 23, defining "[h]arassment, " in relevant
part, as "[three] or more acts of willful and malicious
conduct aimed at a specific person." The defendant
contends that the conduct was, at most, aimed at property or
a worker thereon. The plaintiff counters that we can infer
from the circumstances that the defendant's directives
were intended to target the plaintiff. See DeMayo v.
Quinn, 87 Mass.App.Ct. 115, 117 (2015). In view of the
longstanding and ongoing personal and legal quarrel between
the parties, the alleged efforts by the defendant to impede
the plaintiff's development of the property, and the
timing and scope of the conduct at issue, we will assume
without deciding that the plaintiff's inference is
warranted in the instant case. That notwithstanding, the
sparse evidence proffered by the plaintiff does not support a
finding that the acts were wilful and malicious or that their
"'entire course . . . ...