J.P. v. T.O. ( 2023 )

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
22-P-709
J.P.
vs.
T.O.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
T.O. appeals from the District Court's order extending a
civil harassment order.1 T.O. argues J.P. failed to present
sufficient evidence to meet the burden defined by G. L. c. 258E,
§ 1. T.O. also argues the District Court judge failed to make
specific factual findings. Because we agree there was
insufficient evidence of three or more willful acts by the
defendant aimed at the plaintiff, each with the intent to cause
fear, intimidation, abuse, or damage to property, we vacate the
order.
1 T.O. also purportedly appealed from the earlier entered ex
parte order but that order is not before us. R.S. v. A.P.B., 95
Mass. App. Ct. 372, 372 n.1 (2019) (and cases cited). Cf. Tom
T. v. Lewis L., 97 Mass. App. Ct. 698, 699 (2020) (and cases
cited) (considering c. 209A order; "an ex parte order that is
extended at a hearing after notice may not be reviewed
independently because that ex parte order has been superseded by
the order after notice").
Background. We summarize the relevant background as
follows. T.O. and J.P. grew up together and lived in the same
neighborhood. After entering high school, T.O. began sending
J.P. frequent communications over text and social media
platforms. After J.P. told T.O. that she was going to block him
from messaging her, T.O. said he would kill himself if she did
so. J.P. testified that T.O. sent sexually graphic messages to
classmates, but that he did not send anything that was sexually
graphic to her. In her affidavit, J.P. also stated that T.O.
had threatened her past boyfriends "[i]f they ever hurt me."
J.P. also testified that T.O. would attend many of the sporting
events at J.P.'s high school even though they attended different
schools. J.P.'s father told T.O. to stop messaging her and she
thought she had blocked T.O. from texting or messaging her.
Some time later, J.P. was accepted to a local college, and T.O.
texted her to congratulate her. It was at this point that J.P.
discovered that she and T.O. had both been accepted to the same
local college and both planned on attending the following fall
semester. J.P. testified that none of the three or four texts
she received from T.O. after her father told T.O. to stop
contacting her were malicious, abusive, or intimidating.
2
J.P. sought a civil harassment prevention order against
T.O. pursuant to G. L. c. 258E.2 On April 26, 2022, the District
Court judge issued an ex parte harassment prevention order and
scheduled an extension hearing for ten days thereafter. At the
extension hearing on May 6, 2022, the judge heard arguments and
received evidence from both parties. J.P. testified regarding
the previously mentioned incidents and presented the court with
some of the messages she had received from T.O. At the hearing,
T.O. argued that J.P. had not, as required by G. L. c. 258E,
§ 1, presented evidence of three or more acts of willful and
malicious conduct aimed at J.P. with the intent to cause fear,
intimidation, or abuse. Without making factual findings, the
court extended the civil harassment abuse prevention order that
day. T.O. filed a timely notice of appeal.
Discussion. In order for a harassment prevention order to
issue, J.P. was required to establish by a preponderance of the
evidence that she had been harassed by T.O. "To establish
harassment, a complainant must prove that the defendant,
motivated by cruelty, hostility, or revenge, wilfully committed
three or more acts aimed at a specific person, each with the
intent to cause that person to experience fear or intimidation,
or to cause abuse or damage to property, which, considered
2 J.P. was a minor at the time and filed her complaint and
affidavit through her parent.
3
together, did in fact cause fear, intimidation, abuse, or damage
to property." O'Brien v. Borowski, 461 Mass. 415, 426 (2012),
citing G. L. c. 258E, § 1. Here, T.O. argues that although the
record may support a finding of one such act, namely the threat
of self harm, it does not support a finding of three or more.3
We agree.
The law is clear that each of these three or more acts must
be aimed at the plaintiff. There was no evidence presented that
the sexually explicit messages presented at the extension
hearing were intended by the defendant to reach or be seen by
the plaintiff. Similarly, without further details, there is
nothing in the record to support the conclusion that the
communications from the defendant to the plaintiff's ex-
boyfriends were intended to cause fear or intimidation in the
plaintiff. Lastly, the defendant's appearance at the local high
school sporting events, without more, does not constitute an act
intended to cause fear or intimidation in the plaintiff.
3 J.P. counters this argument by stating that, in the
alternative, J.P. presented sufficient evidence of criminal
harassment under G. L. c. 265, § 43A. This argument was not
made to the District Court and we do not see any evidence in the
record that the District Court considered whether T.O.'s actions
fell within the definition of criminal harassment. Because the
trial court did not have the opportunity to hear arguments on
this point, we decline to address it. We note, however, that on
the record before us, the arguments regarding criminal
harassment suffer many of the same difficulties as those
regarding civil harassment.
4
This leaves us with only the threat of self harm and the
text sent from T.O. congratulating J.P. on her acceptance to a
local college after the defendant was blocked from messaging
J.P. and was told by J.P.'s father to stop contacting her.
Assuming without deciding that both incidents are willful acts
motivated by cruelty, hostility, or revenge with the intent to
cause the plaintiff to experience fear or intimidation, these
constitute only two of the requisite three acts. Finding even
two acts on this record is a stretch given J.P.'s testimony that
the congratulatory texts were not malicious, abusive, or
intimidating. For that reason, there is not sufficient evidence
that T.O. committed harassment as defined by G. L. c. 258E, § 1.
We do not diminish the potential harm suffered by the plaintiff
but, on this record, we must vacate the order entered on May 6,
2022, extending the ex parte civil harassment prevention order.4
Because we vacate on other grounds, we do not address the
defendant's arguments regarding a lack of findings.
The c. 258E harassment prevention order entered May 6,
2022, is vacated. So much of the appeal as purports to be from
4 We understand that the District Court has since further
extended the harassment prevention order. This memorandum and
order is not intended to address any order other than the
extension entered May 6, 2022. It is the parties' prerogative
to relitigate any subsequent extension based on our ruling
today.
5
the ex parte c. 258E order entered April 26, 2022, is dismissed
as moot.
So ordered.
By the Court (Milkey, Walsh &
Smyth, JJ.5),
Clerk
Entered: June 27, 2023.
5 The panelists are listed in order of seniority.
6