J.B. v. M.D.V.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-561

J.B.

vs.

M.D.V.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this appeal, the defendant tenant, M.D.V., asks this

court to vacate a harassment prevention order issued under G. L.

c. 258E. The order was based on several alleged incidents that

arose from a landlord-tenant dispute. The defendant argues that

the plaintiff landlord failed to prove three or more separate

incidents of harassment sufficient to warrant the order's

issuance or extension. We agree.1

1The parties entered a joint stipulation to vacate the
harassment prevention order. While parties may stipulate to the
dismissal of an appeal, see Mass. R. A. P. 29, as appearing in
481 Mass. 1660 (2019), they cannot, by stipulation, require the
appellate court to order destruction of the records of a
harassment prevention order under G. L. c. 258E, § 9.
Accordingly, we decline to accept the stipulation and instead
address the merits.
Background. In September 2023, the plaintiff, J.B.,

entered into an agreement to rent the basement apartment of her

home to the defendant. Entrance to the defendant's apartment

was through the defendant's home. The lease terms stated that

the defendant would pay a monthly rent of $1,000 and that the

plaintiff would pay for most utilities and services. In

November 2023, the plaintiff notified the defendant that a

nonnegotiable rent increase of $400 would be implemented in

December. Around the same time, the plaintiff entered the

defendant's apartment and took photographs of its condition.

Soon thereafter, the parties had two verbal confrontations in

which the defendant "got angry," yelled, and got "in [the

plaintiff's] face," placing her in fear for her personal safety.2

On December 9, 2022, the defendant sent the plaintiff an e-mail

outlining his belief that the lease terms prohibited a

unilateral rent increase and requesting that the plaintiff not

enter the apartment without providing proper notice. The

parties' dispute culminated in the plaintiff serving the

defendant with an eviction notice.

On December 27, 2022, after discovering a surveillance

camera in her home, the plaintiff applied for, and was granted,

2 The plaintiff testified that the first confrontation took
place in November 2022. The plaintiff could not recall the date
of the second incident.

2
an ex parte emergency harassment prevention order. A

Northampton police officer notified the defendant of the order

via telephone and advised him of the order's no contact

provision. On January 9, 2023, the defendant made his required

rent payment to the plaintiff via an electronic money transfer

application. On January 10, 2023, after a two-party hearing, a

District Court judge granted a one-year extension of the order.

The judge cited the two instances of verbal confrontation and

the placement of the surveillance camera as separate acts of

harassment. In addition, the judge cited the January 9 rental

payment as a "clear violation of the [ex parte temporary order]

that was in effect" as a reason to issue the one-year extension.

On February 1, 2023, the defendant filed a timely notice of

appeal, together with a motion to vacate the order. The judge

denied the motion to vacate, and the defendant timely filed a

second notice of appeal.

Discussion. In reviewing a civil harassment prevention

order, we consider whether the judge could find, by a

preponderance of the evidence, that the defendant committed

"[three] or more acts of willful and malicious conduct aimed at

a specific person." Seney v. Morhy, 467 Mass. 58, 60 (2014),

quoting G. L. c. 258E, § 1. See C.E.R. v. P.C., 91 Mass. App.

Ct. 124, 126 (2017). We review the judge’s factual findings for

clear error. See id. "[W]e will not substitute our judgment

3
for that of the trier of fact. We do, however, scrutinize

without deference the propriety of the legal criteria employed

by the trial judge and the manner in which those criteria were

applied to the facts." C.O. v. M.M., 442 Mass. 648, 655 (2004),

quoting Commonwealth v. Boucher, 438 Mass. 274, 276 (2002).3

To the extent "harassment" is based on speech, the

Legislature intentionally crafted the statutory definition to

"confine the meaning of harassment to either fighting words or

'true threats.'" O'Brien v. Borowski, 461 Mass. 415, 425

(2012). "Fighting words" are "face-to-face personal insults

that are so personally abusive that they are plainly likely to

provoke a violent reaction and cause a breach of the peace."

Id. at 423. "True threats" are "direct threats of imminent

physical harm" or "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." Id. at 425. There was no evidence

here that the defendant said anything to the plaintiff that

amounted to fighting words or true threats. Although the

plaintiff described the defendant's e-mail messages highlighting

his intention to pursue his legal remedies as "threatening,"

sending notices of a future lawsuit or court proceedings "does

3 The case law regarding abuse prevention orders under G. L.
c. 209A generally applies to G. L. c. 258E harassment prevention
orders. See A.P. v. M.T., 92 Mass. App. Ct. 156, 161 (2017).

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not evidence a threat." Larkin v. Ayer Div. of Dist. Court

Dep't, 425 Mass. 1020, 1020 (1997).

Accordingly, we consider whether the defendant's nonverbal

conduct toward the plaintiff satisfied the definition of

"harassment." "[A]n essential element of civil harassment is

intent." Seney, 467 Mass. at 63. Chapter 258E's definition of

harassment includes a two-fold intent requirement that comports

with the Legislature's goal of confining the meaning of

harassment to true threats or fighting words. See O'Brien, 461

Mass. at 426-427. First, the plaintiff must show that each act

was "committed with the intent to cause fear, intimidation,

abuse or damage to property" and second, the act must "in fact

cause fear, intimidation, abuse or damage to property." Id. at

419, quoting G. L. c. 258E, § 1. "Case law has limited the

meaning of 'fear' to 'fear of physical harm or fear of physical

damage to property.'" C.E.R., 91 Mass App. Ct. at 125. "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. Likewise, "intimidation" requires

"placing the victim in fear of bodily harm or death." O'Brien,

461 Mass. at 425, quoting Virginia v. Black, 538 U.S. 343, 360

(2003). Thus, to qualify as an act of harassment under c. 258E,

the actor's conduct must cause, and intend to cause fear of,

either physical harm or damage to property. See O'Brien, supra.

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We need not determine whether the judge erred in qualifying

the two verbal confrontations, in which the defendant yelled at

the plaintiff, leaned in her direction, followed her, and "got

in her face," as acts of harassment under G. L. c. 258E, § 1,

because the placement of the surveillance camera did not qualify

as a third act.4 The plaintiff's testimony that the discovery of

the camera "absolutely freak[ed her] out" and that she was

"petrified" satisfied the second intent element required under

c. 258E. However, the plaintiff did not satisfy her burden of

proving that the defendant's placement of the camera, which he

denied, "was maliciously intended . . . by the defendant to

place the plaintiff in 'fear of physical harm or fear of

physical damage to property.'" A.T. v. C.R., 88 Mass. App. Ct.

532, 535 (2015), quoting O'Brien, 461 Mass. at 427.

Assuming that the defendant "did in fact commit the

despicable act of secretly installing a video camera" in the

plaintiff's kitchen, "there is nothing in the record before us

that shows a history of violence, threats, or hostility in the

relationship between" the plaintiff and the defendant. Keene v.

4 We do not read the judge's findings on the motion to
vacate the harassment prevention order as relying on the
January 9 electronic rent payment as an act of harassment.
While arguably a violation of the ex parte no contact order, the
payment carried no threat of physical harm or property damage,
and nothing in the record shows that it was accompanied by any
threatening message or emoji that would satisfy either intent
element.

6
Gangi, 60 Mass. App. Ct. 667, 669 (2004). In the context of

their heated landlord-tenant dispute, where the defendant had to

pass through the plaintiff's home to get to his basement unit,

there is no objective proof that the defendant's placement of a

camera in her home -- whether hidden or in plain sight -- was

intended to cause the plaintiff to fear physical injury or

property damage. See, e.g., F.W.T. v. F.T., 93 Mass. App. Ct.

376, 378-379 (2018) (even in context of ongoing "personal and

legal quarrel," defendant's act of flying drones over

plaintiff's property did not evidence intent to cause fear,

intimidation, abuse, or property damage); C.E.R., 91 Mass. App

Ct. at 128 (although installation of video camera aimed at

plaintiff's driveway and living room may have caused fear,

"there was no evidence that the defendants intended the cameras

to do so"). Cf. Keene, supra at 670 (defendant's placement of

clandestine video camera in plaintiff's bedroom did not prove

reasonable fear of imminent serious physical harm sufficient for

issuance of G. L. c. 209A abuse prevention order).

The harassment prevention order entered against the

defendant should not have issued and must be vacated and set

aside.5

5 Because we conclude that the order should not have
entered, we need not address whether the motion to vacate was
properly denied.

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Conclusion. We remand the case to the District Court to

vacate and set aside the harassment prevention order and to

order destruction of "all record" of the order as required by

G. L. c. 258E, § 9. See C.E.R., 91 Mass. App Ct. at 132 n.17.

So ordered.

By the Court (Rubin,
Massing & Grant, JJ.6),

Clerk

Entered: January 31, 2025.

6 The panelists are listed in order of seniority.

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