Opinion
18-P-1487
10-29-2019
A.E. v. V.A.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, V.A., appeals from the issuance of a harassment prevention order pursuant to G. L. c. 258E. He argues that we should vacate the order because the evidence was insufficient to show that (1) he had the required malicious intent, and (2) his conduct caused the requisite harm required by the statute. We affirm.
The plaintiff, A.E., did not submit a brief in this appeal. The defendant submitted the case on brief in lieu of oral argument.
Background. The plaintiff owns and operates a store in Boston, and the defendant owns and operates a market on the same street. The parties were in a committed romantic relationship for three years from early 2015 to early 2018.
Due in part to the parties' age difference and a disagreement regarding the issue of marriage, the plaintiff ended the relationship in January 2018. While the plaintiff concedes that there were several occasions over the next few months on which the parties were "intimate" and "amicably spoke to and saw each other," she blocked the defendant's e-mail address and telephone number in February 2018 after receiving "persistent unwanted communications" from the defendant. The defendant, however, continued his attempts to contact the plaintiff.
On April 14, 2018, the defendant came to the plaintiff's apartment and waited outside despite the plaintiff telling him earlier that day that she did not want him to visit her. The plaintiff subsequently told the defendant that their relationship was over and that she "never wanted to see him again." On April 17 and 28, 2018, the defendant contacted the plaintiff's father and mother, respectively, and on April 17, 2018, delivered a handwritten note to the plaintiff's business. The plaintiff responded via e-mail, reiterating that the relationship was over and that the defendant should not contact her any further.
The defendant did not stop. He continued to contact the plaintiff's family members and enlisted his friends in contacting the plaintiff. He also continued to visit the plaintiff's business in person on multiple occasions, to call the plaintiff's business, and to e-mail the plaintiff from a new e-mail address. On May 26, 2018, the defendant followed the plaintiff into a nail salon and stared at her without receiving any services.
On May 29, 2018, the plaintiff filed in the District Court an application for, and received, an ex parte temporary abuse prevention order against the defendant pursuant to G. L. c. 209A. Following a two-party hearing held on June 12, 2018, at which both parties were represented by counsel, the judge found that the plaintiff had not met her burden of proving that she was "in imminent danger of serious bodily injury," and terminated the temporary order. During the hearing, the defendant acknowledged that he understood "fully" that the relationship could not be reconciled or rehabilitated, and testified that he would "stay away" from the plaintiff regardless of whether there was an order requiring him to do so.
At the close of the abuse prevention order hearing, the judge stated, in relevant part, "It simply has not been proven that the plaintiff's in imminent danger of serious bodily injury, which is not to say it's not a difficult, troubling situation, but it has not been proven so I'm going to terminate the restraining order."
Following the hearing, and despite his representation in court that he would stay away from the plaintiff, the defendant continued to initiate contact with the plaintiff. According to the plaintiff, the defendant contacted her on more than ten occasions after the June 12 hearing.
On June 19, 2018, the defendant came to the plaintiff's business purportedly to invite her to a business event. The plaintiff reiterated that their relationship was over and asked him to leave. On June 30, 2018, the defendant returned to the plaintiff's business to question her decision to end their relationship and left only after the plaintiff threatened to call the police. On July 13, 2018, the defendant came to the plaintiff's business, again after trying unsuccessfully to call her earlier that day, requesting items referenced in his lawsuit against her. The plaintiff told him to go through his attorney and that there was no reason for him to be coming to the plaintiff's business in person. On July 17, 2018, the defendant twice returned to the plaintiff's business to ask her to dinner. The plaintiff declined, reminded the defendant that he had sued her over some alleged business dealings, and asked him to leave. On July 20, 2018, the defendant appeared at the plaintiff's business yet again with a handwritten note requesting certain items referenced in his lawsuit. The plaintiff again told him to go through his attorney and that she did not want him coming to her business. He returned to the plaintiff's business again that same day. The defendant again came to the plaintiff's business, twice on July 21, 2018, and once on July 30, 2018, once again questioning her decision to end their relationship, prompting the plaintiff to ask him to leave the premises. In addition to these visits, the defendant, on numerous occasions, called the plaintiff's business and walked or drove by the plaintiff's business while staring at her.
On August 3, 2018, the plaintiff filed a complaint seeking the issuance of a harassment prevention order under G. L. c. 258E. A judge declined to issue a temporary order at an ex parte hearing, but scheduled a full hearing on the complaint for August 15, 2018. The full hearing took place as scheduled before a different judge, with both parties represented by counsel. At the conclusion of the hearing, the judge issued a harassment prevention order against the defendant. On August 24, 2018, the defendant filed a "Motion for Rehearing, Reconsideration, and/or Amendment of Trial Court's Decision and Order" (motion for reconsideration). On September 27, 2018, the judge denied the motion in part and allowed it in part.
The judge who presided at the c. 258E hearing was the same judge who presided at the c. 209A hearing.
The defendant states in his brief that the judge denied the motion for reconsideration. However, the judge's margin order reflects that the motion was "denied in part and allowed in part." More specifically, it appears that the judge allowed so much of the motion for reconsideration that sought to amend the harassment prevention order to allow the defendant to participate in a legal proceeding in the Superior Court involving both parties.
Following the ruling on the motion for reconsideration, the defendant moved for clarification and asked the judge, among other things, to consider the supplemental memorandum of law that the defendant had previously filed. In another margin order, the judge (1) noted that he had considered the defendant's supplemental memorandum of law and the plaintiff's opposition memorandum, "both received after court ruling dated 9/27/18," and (2) declined to change his ruling on the motion for reconsideration.
Discussion. On appeal, the defendant argues that there was no basis for the entry of the harassment prevention order. Specifically, he contends that he did not act with the requisite intent, and his conduct did not cause the requisite degree of harm. We disagree.
The defendant also challenges the basis of the judge's entry of the harassment prevention order under the second definition of "harassment" provided in G. L. c. 258E, § 1 -- acts that constitute a violation of G. L. c. 265, § 43A, the criminal harassment statute. In part, the defendant argues that the criminal definition of harassment found in G. L. c. 265, § 43A, should not be applied to civil harassment prevention cases. A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 279 (2017), forecloses this argument. Regardless, we find that the record furnishes a sufficient basis for the order under the first definition of "harassment." See, e.g., V.J. v. N.J., 91 Mass. App. Ct. 22, 25-28 (2017). We therefore affirm on that ground. See Commonwealth v. Va Meng Joe, 40 Mass. App. Ct. 499, 503 n.7 (1996). See also note 9, infra.
"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" (quotation and citation omitted). F.W.T. v. F.T., 93 Mass. App. Ct. 376, 377-378 (2018). "[T]he acts of harassment must be wilful and [m]alicious, the latter defined as characterized by cruelty, hostility or revenge, ... they must be committed with the intent to cause fear, intimidation, abuse or damage to property," and they "must in fact cause fear, intimidation, abuse or damage to property" (quotations and citation omitted). O'Brien v. Borowski, 461 Mass. 415, 420 (2012).
Ample evidence in the record supports a finding that the defendant's actions were willful and malicious. The defendant's repeated calls and numerous visits to the plaintiff, despite her repeated requests that he not contact her and not come to her business, "reasonably support an inference that he intended to cause the plaintiff fear and intimidation." A.T v. C.R., 88 Mass. App. Ct. 532, 538 (2015). See A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 277 (2017) (finding defendant's numerous attempts to contact plaintiff despite efforts to avoid communication to be "clear proof of the maliciousness and willfulness"). The defendant's attempts to recast his interactions with the plaintiff in a more innocent light are unavailing. His conduct, viewed in its entirety, was sufficient to show that he acted with the requisite intent. See J.C. v. J.H., 92 Mass. App. Ct. 224, 228-229 (2017) (considering entire course of defendant's conduct, including his continuing contact after plaintiff told him "repeatedly" to "leave her alone").
The record also supports a finding that the plaintiff was, in fact, intimidated by the defendant's conduct. The plaintiff stated in an affidavit in support of her complaint that the defendant's conduct "is alarming and intimidating and has caused [her] significant distress both personally and with respect to [her] business." She also testified that when she saw the defendant at the nail salon, "it was very intimidating to feel like somebody's following me from my business," that she felt there was "nothing stopping him from coming to [her] store and imposing himself," and that no matter what she says, "[h]e's going to do whatever he wants to do." Cf. Commonwealth v. Johnson, 470 Mass. 300, 314 (2014) (requirement of "serious alarm" in criminal harassment statute measured by overall pattern of conduct as opposed to each individual act of harassment). The defendant's repeated and unrelenting attempts to initiate a conversation with the plaintiff, especially after his testimony at the 209A hearing that he would "absolutely" stay away from her, further support the finding that the defendant's pattern of conduct actually intimidated the plaintiff. See J.C., 92 Mass. App. Ct. at 228 ("defendant's persistence despite repeated admonitions to stop" was independent basis "to find that the plaintiff was actually intimidated and feared for her physical safety").
"The judge was permitted to credit the plaintiff's affidavit and further corroboration was not required." J.C., 92 Mass. App. Ct. at 228 n.7.
Although we affirm on the first definition of "harassment" in G. L. c. 258E, § 1, the judge could have found that the defendant's actions constituted a violation of G. L. c. 265, § 43A. The record supports a finding that the defendant "willfully and maliciously engage[d] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person." G. L. c. 265, § 43A. The record also warrants finding that the plaintiff was "seriously alarm[ed]" by the defendant's actions, and that his actions "would cause a reasonable person to suffer substantial emotional distress." Id.
In short, we discern no error in the allowance of the harassment prevention order in this case. The judge had "the unrivaled benefit of observing the parties at close hand, with the commensurate ability to evaluate their credibility, in light not only of their testimony but also of their demeanor in court," and the record before us supports his determination. Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 148 (2006).
Harassment prevention order affirmed.