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F.W.T. v. F.T.

Appeals Court of Massachusetts, Plymouth

June 11, 2018

F.W.T. F.T.

          Heard: February 13, 2018.

         Complaint for protection from harassment filed in the Plymouth Division of the District Court Department on November 16, 2016.

         A motion to vacate a harassment prevention order was heard by James M. Sullivan, J.

          John B. Flemming for the defendant.

          Robert R. Berluti for the plaintiff.

          Present: Neyman, Sacks, & McDonough, JJ.

          NEYMAN, J.

         The 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.[1] 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.

         On 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.[2] 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.[3] 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.[4]

         Standard of review.

         We 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.

         Discussion.

         On 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 order.[5]

         Initially, 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 . . . ...


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