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16-P-525 Appeals Court

C.E.R. vs. P.C. & another.1

No. 16-P-525.

Essex. December 1, 2016. - March 6, 2017.

Present: Milkey, Massing, & Sacks, JJ.

Civil Harassment. Harassment Prevention. Protective Order.

Words, "Intimidation."

Complaint for protection from harassment filed in the 

Ipswich Division of the District Court Department on December 

28, 2015.

A hearing to extend harassment prevention orders was had 

before Peter F. Doyle, J.

Ryan D. Sullivan for the defendants.

SACKS, J. The 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.2 We 

conclude that the evidence was insufficient to support a finding 

 

1 R.C.

2 The plaintiff landlord did not submit an appellate brief.
2

that either defendant had engaged in three or more acts of 

harassment, and we therefore vacate the extension orders.3 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.

Background.

4 The 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

 

3 The orders expired by their own terms on December 29, 

2016. The case is not moot, however, because the defendants 

seek to have the orders vacated and certain records of those 

orders destroyed. See Seney v. Morhy, 467 Mass. 58, 62 (2014); 

Gassman v. Reason, 90 Mass. App. Ct. 1, 6-7 (2016).

4 We recite the uncontested facts elicited during the 

testimony of the parties at the evidentiary hearing, 

supplemented with the plaintiff's statements contained in her 

affidavit and police reports, which the plaintiff, at the 

hearing, affirmed under oath were true.
3

utility costs, and the living arrangement continued more or less 

uneventfully until the fall of 2015.

Following 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.

5 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.

Standard for issuance of harassment prevention orders. As 

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." O'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 

 

5 On the defendant P.C.'s motion, his order was modified on 

December 29, 2015, to allow him to reoccupy his apartment. 

Although the docket and order in the defendant R.C.'s case do 

not reflect a similar modification, the ruling on the motion 

apparently applied to both defendants.
4

another or placing another in fear of imminent serious physical 

harm." G. L. c. 258E, § 1.

Thus, 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." 

O'Brien, 461 Mass. at 426 & n.8. Both standards are subjective: 

there must be proof of the defendant's subjective intent, id. 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).

Findings in support of extension order. On 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).

Here, 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 
5

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 

property."6

We observe at the outset that fear of economic loss 

occasioned by the defendants' actions cannot form the basis of a 

harassment prevention order. See O'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 hardship.

1. Dog and related property damage. The 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 

 

6 The judge's findings do not differentiate between the two 

defendants, apparently attributing either's conduct to both of 

them. Although that approach has not affected the result we 

reach here, specifying which findings apply to which 

defendant(s) is preferable and could be critical in other cases.
6

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.

7 There is no evidence that any 

damage resulted from a "malicious" act, as the statute requires,

or was anything other than incidental to ordinary pet ownership.

2. Conduct interfering with property sale or rental. The 

judge found that the defendants committed three acts with the 

intent to interfere with the plaintiff's efforts to sell the 

property or rent it to a possible buyer. These acts included 

(1) leaving a dildo in the closet of the apartment's kitchen 

where it was discovered by a potential buyer; (2) leaving 

marijuana and other drug paraphernalia in plain view in the 

apartment; and (3) smoking marijuana "so that the home would 

reek of the substance and could not be shown to potential 

renters or buyers." Yet there was no evidence that any of these 

acts was intended to (or did) cause the plaintiff fear of bodily 

harm or cause property damage. The plaintiff's objections were 

that the conduct was "inappropriate," "embarrassing," and 

 

7 The plaintiff testified to other property damage caused by 

the dog, but presented no evidence to suggest that the 

defendants maliciously failed to attempt to prevent such damage 

or actively encouraged it.
7

"hinder[ed] the sale of the house." That is insufficient to 

constitute harassment. See O'Brien, 461 Mass. at 427.

8

3. Conduct to "intimidate" the plaintiff. The judge found 

that the defendants committed three acts with the intent to 

"intimidate" the plaintiff. These consisted of (1) "[p]laying 

loud music at all hours of the night," which the plaintiff 

testified she found "harassing and abusive" and caused her 

"stress and anxiety"; (2) "[u]sing strobe lights at night to 

keep the [plaintiff] awake," which lights the plaintiff 

testified made her house "look[] more like a bar, a nightclub, 

to passers-by" and made realtors think the house was "not 

showable"; and (3) "[i]nstalling video cameras on the property,"

aimed at the driveway and a living room,

9 which the plaintiff 

testified she found "[un]necessary," "inappropriate," and "very 

offensive."

Because G. L. c. 258E does not define "intimidation," and 

because we strive to give that term some meaning not already 

conveyed by the statutory term "fear," see A.T. v. C.R., 88 

 

8 The judge also found that the defendants "[e]ngag[ed] in 

obstructive behavior so that the plaintiff could not rent or 

sell her home and would be in violation of the Probate Court 

order." To the extent that this finding described any behavior 

beyond that detailed above, such behavior was similarly 

insufficient to constitute harassment.

9 It is unclear from the record and findings whether the 

living room was in the defendants' apartment or in the main 

house.
8

Mass. App. Ct. 532, 536 (2015), we have looked for guidance to 

decisions defining "intimidation" for purposes of other 

statutes. See ibid. But each of those other definitions in 

turn relies upon the term "fear," see ibid., and we have not yet 

had to determine whether any form of "fear" beyond fear of 

physical harm or physical damage to property, see O'Brien, 461 

Mass. at 427, might suffice as a component of "intimidation."

Nor need we do so here. As to the loud music and strobe 

lights, the plaintiff did not testify, nor was there any other 

evidence, that they were intended to (or did) cause her fear of 

any sort.

10 As to the cameras, although there was additional

testimony by the plaintiff that could be construed to mean that 

the cameras indirectly caused her "fear" (rather than 

"intimidation"), there was no evidence that the defendants 

intended the cameras to do so. "[A]n essential element of civil 

harassment is intent." Seney v. Morhy, 467 Mass. 58, 63 (2014), 

citing O'Brien, 461 Mass. at 426-427. The plaintiff's affidavit 

stated that the cameras had been placed in July, 2015, well 

before the fall, when relations first soured due to the 

plaintiff telling the defendants that they had to move out.

 

10 Although keeping a person awake for extended periods 

might in some circumstances cause bodily harm, there was no 

evidence here that the lights were intended to or did keep the 

plaintiff awake or made her fear any bodily harm.
9

4. Conduct during the defendants' move-out. The judge 

found that the defendants "[became] intoxicated and then 

threaten[ed] the plaintiff when they were moving items[,]

causing the plaintiff so much fear that she had the . . . police 

come to the home." The evidence underlying this finding was 

that on December 27, 2015, the plaintiff went to the local

police department to give the police a "heads up" that the 

defendants were "making her feel uncomfortable." She reported 

that the defendants were "complicating her showing the home," 

that she had asked them to move out, and that they had been 

removing their things, but she remained "concerned that they 

[would not] leave willingly."

The plaintiff testified at the extension hearing that when 

the defendants came to remove their belongings from the garage, 

"[t]hey were upset because the door was locked," to which she 

replied that "[a]ll they had to do was ask and, at that time,

[she] opened the garage door." She acknowledged that the 

defendants made no specific threats during this encounter, but 

"they were very drunk and disorderly and they were aggressive 

and I had already gone to the police that day, um, to just let 

them know that I had been addressed aggressively by two men 

living in my house, multiple times." The plaintiff provided no 

further details other than that the defendants were "yelling 
10

through the door." She did not ask the police to come to her 

home, nor did they.

The finding that the defendants "threaten[ed]" the 

plaintiff and caused her "fear" during this incident is 

unsupported by the record. The plaintiff specifically denied 

that any threats were made. She did not identify any act by 

either defendant that was intended to (or did) cause her fear of 

physical harm or property damage. Although she did go to the 

police, her stated intention in doing so was to warn them that 

the defendants might refuse to leave her property, reflecting 

only her concern that their continued presence would impede the 

sale of her home.

5. Violation of order. The judge found that the police 

had responded multiple times to the residence, "culminating in 

criminal process being issued against both defendants for 

failure to abide by the harassment order." The underlying 

evidence was a police report from January 4, 2016, which 

describes the defendants interfering with a showing of the 

property on the previous day by keeping their bedroom doors shut 

and refusing to allow the potential renter or buyer access to 

the bedrooms. The officer involved applied for criminal 

complaints against both defendants for violating the provision 

of the preliminary harassment prevention orders forbidding them

from "interfer[ing] in any way with the rental or sale of the 
11

property."11 Such violations, if they occurred, would not 

qualify as an act of harassment, because obstructing the sale or 

rental of the home could result only in economic damage.

6. Remarks overheard by the plaintiff. The judge found 

that the defendants had "[told] the [plaintiff] that she is a 

cunt, and that this is all so awesome because she is fucked[,]

causing the plaintiff fear, stress and anxiety." The police 

report and the plaintiff's testimony recounted that she had 

"overheard" the defendants, while in a room separated from hers 

by a glass door, "talking about her," "not directly to [her]," 

but loudly enough that she believed they knew she could hear

them. They made the remarks described above, as well as saying, 

"she has no idea what she's in for."

An instance of speech may support a harassment prevention 

order only if it falls outside the protections of the First 

Amendment to the United States Constitution, either by 

consisting of "fighting words" or by constituting a "true 

threat." See O'Brien, 461 Mass. at 423-424; Seney, 467 Mass. at 

63; Petriello, 87 Mass. App. Ct. at 446. Among the comments 

described, we question whether any constituted "fighting 

 

11 The record before us does not reflect whether such 

complaints ever issued.
12

words,"12 and the only one that could arguably be interpreted as 

a "true threat"13 is, "she has no idea what she's in for." The 

plaintiff never stated that the remarks caused her to fear 

bodily harm or property damage. Rather, she characterized them 

as representing the defendants' "passive-aggressive" desire to 

cause her economic harm: "They know that, by not leaving and 

not paying rent [they] will most likely put me into 

foreclosure." As noted, fear of economic harm does not 

constitute "fear" under G. L. c. 258E. See O'Brien, 461 Mass. 

at 427. We will nevertheless put aside our questions and assume

without deciding that the overheard remarks constituted an act 

of harassment by one or both defendants.

14

 

12 The exception for "fighting words" is limited to "face to 

face personal insult[s]," Commonwealth v. Welch, 444 Mass. 80, 

98-99 (2005), "directed to the person of the hearer" and 

"inherently likely to provoke violent reaction." Cohen v. 

California, 403 U.S. 15, 20 (1971), quoting from Cantwell v. 

Connecticut, 310 U.S. 296, 309 (1940). Although calling a 

person a "cunt" might in some circumstances constitute "fighting 

words," here, the defendants' comment was not directed to the 

person of the plaintiff. Compare State v. Dugan, 369 Mont. 39, 

54, cert. denied, 134 S. Ct. 220 (2013) (addressing person as 

"fucking cunt" over telephone did not constitute "fighting 

words").

13 "'True threats' encompass those statements where the 

speaker means to communicate a serious expression of an intent 

to commit an act of unlawful violence to a particular individual 

or group of individuals. . . . The speaker need not actually 

intend to carry out the threat." O'Brien, 461 Mass. at 423, 

quoting from Virginia v. Black, 538 U.S. 343, 359-360 (2003).

14 The judge made no finding, and there was no evidence, 

regarding which defendant had made which remark(s). Even if one 
13

7. Remarks made to plaintiff. The judge found that one of 

the defendants, P.C., when the plaintiff first informed him by 

telephone that he had to move out, said, "you are fucking up my 

life," and then hung up; the judge found that this "threat 

caused so much fear in the plaintiff that she asked a friend to 

stay with her for the night." The plaintiff testified that this 

statement made her "immediately uncomfortable that day and every 

day since then. Their behavior is, without question, hindering 

the future sale and current rental of the property." Defense

counsel asked, "Did that cause you harm at all -- that he hung 

up the [tele]phone?" The plaintiff replied, "It was 

intimidating and I was nervous to see what tomorrow would bring. 

I had someone stay with me that night." But when asked 

immediately thereafter whether either defendant had ever touched 

her without permission or had "ever threatened to cause [her] 

physical harm," the plaintiff replied, "No." We will, 

nevertheless, again put aside our questions and assume without 

deciding that the comment constituted an act of harassment by 

P.C.

The judge also found that after the plaintiff asked the 

defendant R.C. to remove the dog from the premises, he told her, 

"don't fuck with my dog." The plaintiff testified that this 

 

defendant had made both, we would not be inclined to view two 

relatively similar remarks made during a single incident as two 

separate acts of harassment.
14

statement "seemed kind of threatening at the time" because R.C.

was "basically saying, 'Don't -- or else.'" Without exploring 

fully whether this could be considered a "true threat,"

particularly where the plaintiff testified that neither 

defendant had ever threatened her with physical harm, we will 

assume, without deciding, that the comment constituted an act of 

harassment by R.C.

8. Summary. In sum, the only possible acts of harassment 

here were the overheard remarks made by one or both defendants; 

P.C.'s statement over the telephone; and R.C.'s statement 

regarding his dog. This amounts to at most two acts by each 

defendant, whereas the definition of "harassment" requires 

"[three] or more acts . . . ." G. L. c. 258E, § 1. For an 

order to enter against either defendant, three acts of 

harassment by that defendant must be proven. See generally 

Petriello, 87 Mass. App. Ct. at 445-447 (stressing need to 

identify which particular defendant had committed each act of 

harassment). Although there is no requirement that each 

specific act actually cause fear, intimidation, abuse, or damage 

to property -- what matters, instead, is whether the three or 

more acts "considered together" did so, see O'Brien, 461 Mass. 

at 426 & n.8 -- the defendant must still have committed three 

wilful and malicious acts that were intended to cause fear, 

intimidation, abuse, or damage to property. Id. at 426. The 
15

statute neither states nor implies that different acts by 

different defendants may be aggregated in order to reach the 

three-act threshold and then enter an order against each 

defendant. We conclude that the defendants' conduct -- while 

boorish and no doubt upsetting and logistically and financially 

problematic for the plaintiff -- did not constitute "harassment" 

within the meaning of c. 258E.

Harassment prevention orders and summary process. The 

plaintiff's principal apparent motivation in filing police 

reports and seeking the c. 258E orders was to induce the 

defendants to leave without interfering with the rental or sale 

of the property. Thus, in filling out her original form 

complaints, the plaintiff did not check the boxes requesting 

orders that the defendants stop harassing her -- only the boxes 

requesting orders that they stay away from her residence. When 

asked directly about her motives, she replied, "My motivation is 

that, by court order, I am -- I have to sell my property, per my 

divorce . . . ." 15 On two occasions, when she spoke to the 

police, an officer advised her to "talk with a lawyer about 

 

15 She made multiple other statements to the same effect, 

e.g., that the defendants were "hiding behind tenant rights for 

no reason other than to use my house to party and it is clear 

they are trying everything [they] can to prevent me from selling 

my home." During her testimony, she said no fewer than six 

times that the defendants were "impeding" or "hindering" the 

sale of her home.
16

legally evicting the tenants." Indeed, the judge recognized 

that, "[o]n the surface, the case appeared to be an attempt by 

the plaintiff to circumvent a proceeding in summary process." 

At no time, however, did the plaintiff initiate a summary 

process action. Indeed, by the time of the evidentiary hearing, 

the defendants had already begun to move out. In a case such as 

this, a judge must carefully evaluate the evidence to ensure 

that c. 258E is not used as a short-cut for evicting tenants 

without following summary process procedures, or for preventing 

purely economic harm.

16

Conclusion. The orders extending the harassment prevention 

orders against both defendants are vacated.

17

So ordered.

 

16 Compare Gassman v. Reason, 90 Mass. App. Ct. 1, 3-4 & n.5 

(2016) (in response to plaintiff's request at G. L. c. 258E 

hearing that defendant, another tenant in same building, be 

evicted, judge explained that he could not do so).

17 The defendants' brief seeks the destruction of relevant 

law enforcement records. We see no need to order such relief 

ourselves, because under G. L. c. 258E, § 9, inserted by St. 

2010, c. 23, "[t]he court shall notify the appropriate law 

enforcement agency in writing whenever any such order is vacated 

and shall direct the agency to destroy all record of such 

vacated order and such agency shall comply with that directive." 

The trial court should take such action as a matter of course in 

any case when a c. 258E order is vacated, including this one, 

without specific direction from an appellate court. "The law 

. . . mandates" such action. Seney v. Morhy, 467 Mass. at 60-61 

& n.6.