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15-P-409 Appeals Court

ELIZABETH GASSMAN vs. KINZY REASON.

No. 15-P-409.

Suffolk. May 10, 2016. - August 11, 2016.

Present: Grainger, Hanlon, & Agnes, JJ.

Civil Harassment. Protective Order. Practice, Civil, Moot 

case.

Complaint for protection from harassment filed in the 

Brighton Division of the Boston Municipal Court Department on 

June 13, 2013.

The case was heard by David T. Donnelly, J., and hearings

to extend a harassment prevention order were had before Thomas 

S. Kaplanes, J., and Patricia E. Bernstein, J.

Jillise McDonough for the defendant.

HANLON, J. The defendant, Kinzy Reason, appeals from the 

extension of a harassment prevention order issued pursuant to 

G. L. c. 258E, in the Brighton Division of the Boston Municipal 

Court. She argues that the order was improperly issued and 

wrongly extended. After a review, we are satisfied that, 
2

despite the fact that the order has now expired, the issue is 

not moot and therefore is properly before us. In addition, we 

agree that the order should not have been extended.

1 

Background. The parties lived in the same public housing 

complex in Brighton; the plaintiff, Elizabeth Gassman, lived in 

an apartment on the third floor of the building, and Reason

lived on the second floor in the apartment directly below 

Gassman's apartment. Apparently, Gassman played the piano 

frequently and her playing was a source of considerable 

irritation for Reason. 

On June 13, 2013, Gassman sought an ex parte harassment 

prevention order against Reason, pursuant to G. L. c. 258E.2 

 

1 The propriety of the extension is the only issue presented 

to us.

2 In support of her application, Gassman submitted the 

following affidavit:

"She called the police to complain[ ] about my playing the 

piano before [nine] pm at night. She had previously 

[banged] on my door demanding that I stop playing because 

'I need my rest.' She complained many times. Boston noise 

ordinance measured the [decibels] and found I was within 

legal limit.

"On 10/18/10 I complained to police about her bothering me 

over and over and how upsetting it was because it made me 

fearful. I have been diagnosed with an anxiety disorder 

and fear confrontation and [violence] from [her].

"On April 25, 2013[,] she called the police and complained 

that I had pushed her. An assault and battery complaint 

was issued and I was ordered to appear at a Clerk 

Magistrate hearing. It was dismissed but I am fearful that 
3

There was a short hearing; the judge asked several questions 

about a prior proceeding,

3 and then Gassman was sworn. The judge 

asked her, "Are you in fear of your safety?" Gassman responded,

"Yes." The judge also asked some questions about the relative 

locations of the parties' apartments, the placement of the 

building elevator and the laundry room, and the location of a

music school that Gassman was attending. After the hearing, the 

judge issued an ex parte order, ordering Reason to stay ten 

yards away from Gassman when in the building where both parties 

lived, not to enter the third floor of the building, to stay 

fifty yards away when outside the building, and to stay away 

from Gassman's music school. A hearing after notice was 

scheduled for June 25, 2013.

The hearing apparently was held before the same judge and 

he extended the order for a year. According to an entry on the 

order, Reason was present; the record does not contain a 

transcript of that hearing or any indication of what testimony 

or other evidence the judge heard. 

 

she will harass me again. The stress of going through this 

made me so anxious that my life was derailed for an entire 

month."

3 After a review of the entire record, it appears likely 

that the prior proceeding mentioned was the hearing where the 

defendant unsuccessfully sought a complaint against the 

plaintiff for assault and battery.
4

At the end of the year, Gassman again sought to extend the 

order, this time before a different judge. In response to the 

judge's question about what Gassman wished to do, she replied 

that she wished to report a violation of the existing harassment 

order and offered police reports. She also told the judge that 

she wanted the harassment order extended and that Reason "be 

evicted for six years of unrelenting harassment of [her]." 

Gassman told the judge that Reason had "called the police on 

[her] four -- to [her] door four times for playing the piano."4 

She complained that the defendant had violated the order by 

"standing smack in front of the elevator door," forcing the 

plaintiff to walk by "within six inches of her." Gassman

finished by saying, "After that, the only time she complied with 

the -- When we encountered each other, all of which were chance 

encounters because that's life, I'm not following her, she's not 

following me." 

Nonetheless, Gassman maintained that Reason was a danger to 

her and, when the judge asked why, she responded,

"Because . . . she lied to the police. She's lied to 

the BHA. She's lied in a civil rights complaint. She 

is capable of making up any story that suits her and 

she is determined to do harm to me. It started when 

she moved in the building, the first week she lived 

 

4 The judge explained to Gassman -- several times -- that he 

could not evict the defendant from her apartment at that 

hearing. Gassman repeatedly interrupted the judge each time he 

either asked a question or tried to explain the process.
5

there, in 2009 when she started going to the office 

complaining I was playing the piano. I have a noise 

measurement report from the [c]ity of Boston. It was 

done at my request."

Judge: "Okay."

Plaintiff: "That measures the sound in her apartment 

as [forty-eight] decibels or below, far below the 

[seventy-eight] decibels allowed by law. Despite 

being given that report, she called the police to my 

door four times . . . in the next years, complaining 

about I was disturbing the peace. On not a single 

occasion did the police find me violating the --

disturbing the peace, and in fact they apologized for 

disturbing me."

Judge: "Okay."

Plaintiff: "Then we had a period when I didn’t hear 

from her, and then suddenly last year I get an assault 

and battery charge. I walked by her in the hallway, 

absolutely nothing took place, and the next thing I 

know, four weeks later I get a summons to appear in 

court on an assault and battery charge. She also 

filed a civil rights . . . "

Judge: "So you’re telling me --"

Plaintiff: "complaint --"

Judge: "you’ve never --"

Plaintiff: "I --"

Judge: "physically --"

Plaintiff: "I’ve never --"

Judge: "assaulted her?"

Plaintiff: "done a thing to her. The --"

Judge: "Has she ever physically assaulted you"

(emphasis supplied)?
6

Plaintiff: "No (emphasis supplied). It’s -- But I’m 

[sixty-five] years old. I don’t know if I have two 

years left or [ten] years left. I can’t spend them 

constantly defending myself against her false and 

meritless complaints about my playing the piano, about 

my -- by accusations of assaulting me. She can make 

up anything. She can do anything to me and all I can 

do would be to dragged into court and --"

Judge: "Right."

Plaintiff: "defend myself. It's a situation I can't 

control." 

The judge then inquired of Reason's counsel about the 

defendant's position. She replied that the earlier order should 

not have issued and the judge responded that it was too late for 

that. An exchange followed about the proper procedure for 

making a complaint about noise -- that is, whether it should be 

made to the Boston Housing Authority or to the manager of the 

property. The judge asked to be shown "that there has been a 

legitimate noise disruption. . . . I still am not hearing that 

there's any -- other than a self-serving letter that says 

there's noise, who else is saying that there's noise?" 

After more discussion about noise, Reason's counsel asked 

to have the order vacated, arguing that her client also had been 

harassed by the plaintiff, but that she did not wish to escalate 

the situation and therefore did not seek a harassment protection 

order on her own behalf. Reason then testified that the 

constant noise had caused her great suffering and that she had 

done what she could do to obtain emergency housing elsewhere. 
7

She also stated that she had never threatened the plaintiff or 

insulted her or sought any contact with her since the original 

order issued. The judge asked the clerk for a six-month date, 

with the plaintiff continually interrupting him again. He 

cautioned both parties that he could not prevent inadvertent 

contact between them and extended the order for six months. 

Reason timely appealed. In the interim, on December 23, 2014, a 

third judge of the Boston Municipal Court extended the order 

until June 23, 2015. The order appears to have expired on that 

date. There is no indication that a judge ever ordered the 

harassment prevention order terminated, or vacated, or that 

there ever was any order "to the appropriate law enforcement

agency," pursuant to G. L. c. 209A, § 7, as appearing in St. 

1990. c. 403, § 8, "to destroy all records of such order."

Discussion. We consider first whether this appeal of the 

harassment order that expired on June 23, 2015, is now moot.5 

 

5 Reason did not appeal from the order issued after notice, 

that is, the second hearing, for which we have no transcript. 

We note that she claims that she was never told that she had a 

right to appeal. In any event, she has not waived her right to 

appeal this extension of that order. See Smith v. Jones, 75 

Mass. App. Ct. 540, 544 (2009), quoting from Smith v. Jones, 67 

Mass. App. Ct. 129, 133-134 (2006), where, notwithstanding the 

propriety of the issuance of the original order in that case, we 

vacated the extension, holding that, in order to obtain an 

extension, a plaintiff must make the same showing as required in 

the initial hearing, and that "no presumption arises from the 

fact that a prior order has issued; it is the plaintiff's burden 

to establish that the facts that exist at the time extension of 

the order is sought justify relief."
8

The law is clear that it is not. See Seney v. Morhy, 467 Mass. 

58, 62 (2014), where the court concluded that: 

"appeals from expired harassment prevention orders, like 

appeals from expired abuse prevention orders, should not be 

dismissed as moot where the parties have a continuing 

interest in the case. See Wooldridge v. Hickey, 45 Mass. 

App. Ct. 637, 638 (1998) (party challenging legality of 

abuse prevention orders has 'a surviving interest in 

establishing that the orders were not lawfully issued, 

thereby, to a limited extent, removing a stigma from his 

name and record'). '[A] wrongfully issued harassment 

prevention order [pursuant to G. L. c. 258E] poses the same 

concerns for a defendant about collateral consequences as 

does a wrongfully issued abuse prevention order [issued 

pursuant to G. L. c. 209A].' Lawrence v. Gauthier, 82 

Mass. App. Ct. 904, 904-905 (2012)."

Our recent decisions, in Allen v. Allen, 89 Mass. App. Ct. 

403 (2016), and Quinn v. Gjoni, 89 Mass. App. Ct. 408 (2016), 

are not to the contrary. In each of those cases, the challenged 

order had not expired, but, rather, had been terminated by a 

judge. In Allen, supra at 303, we said, "termination of the ex 

parte order at the hearing after notice, accompanied by an order 

directing law enforcement agencies 'to destroy all record of 

such vacated order,' renders the defendant's appeal moot. G. L. 

c. 209A, § 7, as appearing in St. 1990, c. 403, § 8." In Quinn, 

supra at 414, citing Allen, supra, we concluded that, "the order 

under appeal here did not merely expire but has been vacated, 

and copies of the abuse prevention order possessed by law 

enforcement officials were ordered destroyed. The defendant 

therefore has obtained all the relief to which he could be 
9

entitled, and he no longer has a cognizable interest in whether 

the order was lawfully issued."

In this case, by contrast, the order simply expired at the 

end of the extension period and this defendant has neither a 

judicial termination of the order nor an order that law 

enforcement should destroy all copies of it. We therefore 

proceed to the merits, considering whether the order was 

properly extended. 

Harassment. In reviewing a civil harassment prevention 

order, 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." Seney, supra at 60, 

quoting from G. L. c. 258E, § 1, inserted by St. 2010, c. 23. 

See O'Brien v. Borowski, 461 Mass. 415, 420 (2012), quoting from 

G. L. c. 258E, § 1. ("[T]he 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.' . . . Second, the multiple acts of civil harassment 

must 'in fact cause fear, intimidation, abuse or damage to 
10

property'"). See also Petriello v. Indresano, 87 Mass. App. Ct. 

438, 444 (2015). 

In Seney, supra at 63, quoting from O'Brien, supra at 423 

and 425, the court reiterated that "an essential element of 

civil harassment is intent. Conduct may constitute civil 

harassment where an individual wilfully and maliciously uses 

'fighting words' that are 'a direct personal insult addressed to 

a person' and 'so personally abusive that they are plainly 

likely to provoke a violent reaction and cause a breach of the 

peace,' . . . or uses 'true threats,' such as 'words or actions 

that -- taking into account the context in which they arise --

cause the victim to fear such harm now or in the future.'" The 

conduct must have been intended to cause, and must actually 

cause, abuse (defined as "attempting to cause or causing 

physical harm to another or placing another in fear of imminent 

serious physical harm"), intimidation, fear of personal injury, 

or damage to property. O'Brien, supra at 427, quoting from 

G. L. c. 258E, § 1 (individual must "willfully commit[] three or 

more acts aimed at a specific person, each with the intent to 

cause fear, intimidation, abuse, or damage to property"). The 

target of the harassment must have experienced an "entire course 

of harassment," the whole of which caused fear or intimidation 

amounting to more than "a fear of economic loss, of unfavorable 
11

publicity, or of defeat at the ballot box." O'Brien, 461 Mass.

at 426 n.8, 427.

Civil harassment cases present a significant challenge in 

busy municipal and district courts, as the record in this case 

illustrates. Applications for such orders are filed by feuding 

neighbors, as here; expressive bar patrons, see id. at 415; 

angry hockey or baseball parents, see Seney, 467 Mass. at 58; 

and contentious roommates, see Smith v. Mastalerz, 467 Mass. 

1001 (2014), among others. The inclination to issue an order 

for the parties to stay away from one another, concluding that 

such an order cannot do any harm, is understandable. 

Nonetheless, harassment prevention orders issued pursuant to 

G. L. c. 258E carry significant collateral consequences for a 

defendant, consequences that cannot be undone completely, even 

when a court later determines that the order should not have 

issued in the first place. See Quinn, 89 Mass. App. Ct. 413-414 

& n.13. 

In addition, at least since O'Brien, the law has been clear 

that the term "harass" has a specific definition in this 

context, derived from the statute and case law, a definition 

much more exacting than common usage. In the context of a 

harassment order pursuant to G. L. c. 258E, "[t]he plaintiff 

bears the burden of proving that each of the three qualifying 

acts was maliciously intended, defined by G. L. c. 258E, § 1, as 
12

being 'characterized by cruelty, hostility or revenge.'" A.T. 

v. C.R., 88 Mass. App. Ct. 532, 535 (2015), quoting from 

O'Brien, supra at 427. In addition, while the "'true threat' 

doctrine applies not only to direct threats of imminent physical 

harm, but to words or actions that -- taking into account the 

context in which they arise -- cause the victim to fear such 

harm now or in the future and evince intent on the part of the 

speaker or actor to cause such fear," O'Brien, supra at 425, the 

consistent element required is an intent to cause fear. 

Contrast, Webster's Third New International Dictionary 1031

(2002) ("Harass" in normal usage means "to vex, trouble or annoy 

continually or chronically [as with anxieties, burdens, or 

misfortune]"). 

Gassman testified more than once that Reason's actions 

caused her to be afraid for her personal safety. The judges 

apparently credited that testimony and, under the case law, 

there is no reasonable person test for judging that fear. That 

is, the question is only whether Gassman in fact was placed in 

fear, not whether the fear was reasonable. See O'Brien, 461 

Mass. at 420. However, as the court stressed in Seney, 467 

Mass. at 62, a plaintiff also must prove that the defendant 

acted with intent to cause fear, intimidation, abuse, or damage 

to property.
13

Despite the fact that the order in this case was issued or 

extended by three different judges, there simply is no evidence 

that Reason intended to cause any harm at all to Gassman, much 

less that she wilfully committed three or more acts, aimed at 

Gassman, each with the intent to cause fear, intimidation, 

abuse, or damage to property. There is no evidence of a true 

threat or of fighting words. Nor can repeated complaints about 

noise from the upstairs apartment reasonably be described as 

intimidation, intending to cause fear of physical harm or damage 

to property. Contrast A.T. v. C.R., 88 Mass. App. Ct. at 536 

("The threat to make the plaintiff's life a living hell clearly 

was intimidation"). In addition, a single application for a 

complaint against the plaintiff alleging an assault and battery, 

even though dismissed, cannot credibly be described as an act of 

harassment as that term is defined in the case law, at least 

under the circumstances of this case. Even considering as a 

whole the interaction between these two women in the same 

apartment building over a period of years, we are satisfied that 

there was insufficient evidence to support the second extension 

of the harassment prevention order.

The order extending the harassment prevention order is 

vacated, and the case is remanded to the Brighton Division of 
14

the Boston Municipal Court for proceedings consistent with this 

opinion.6

So ordered.

 

6 We note, as we did in Quinn, 89 Mass. App. Ct. at 414 

n.14, that:

"[t]he case law has long established that someone in [the 

defendant's] position is not entitled [to have the order 

expunged from the defendant's record] except 'in the rare 

and limited circumstance that the judge has found[,]

through clear and convincing evidence[,] that the order was 

obtained through fraud on the court.' Commissioner of 

Probation v. Adams, 65 Mass. App. Ct. 725, 737 (2006). See 

Vaccaro v. Vaccaro, 425 Mass. 153, 155-159 (1997); Smith v. 

Jones, 67 Mass. App. Ct. at 137-138. [The defendant] has 

not argued that such exceptional circumstances are present 

here, and, in any event, nothing in the record suggests 

that [the plaintiff] committed a fraud on the court."