DocketNumber: 17–P–618
Citation Numbers: 95 N.E.3d 300, 92 Mass. App. Ct. 1119
Filed Date: 12/19/2017
Status: Precedential
Modified Date: 7/24/2022
The parties lived in the same condominium building, with the plaintiff's unit above that of the defendant's.
In her affidavit and testimony, the plaintiff alleged that the defendant was harassing her in a variety of ways. These included: providing false reports about her to the police, a school, and the Department of Children and Families, causing noise through banging on the ceiling, and taking photographs of her and her granddaughter even after she asked her to stop. According to the plaintiff, such actions caused her to be frightened of the defendant, an allegation that the judge appears to have accepted. Nevertheless, fear alone is not enough to make out a claim for a harassment prevention order. Rather, under the applicable provision in the statute, G. L. c. 258E, § 1, the plaintiff must demonstrate that the defendant "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.' " C.E.R. v. P.C.,
The transcript of the hearing suggests that the judge issued the harassment prevention order because the plaintiff "seem[ed] desperate," not because he had concluded that she had met her burden of proving three acts that qualified as "harassment" under the statute. In any event, in our view, the judge did not have sufficient evidence before him on which to conclude that the plaintiff had made out such a claim. We therefore vacate the harassment prevention order and remand this matter to the District Court for that court to direct law enforcement agencies to destroy all records of the order. See G. L. c. 258E, § 9 ; C.E.R. v. P.C.,
So ordered.
Vacated and remanded.
The plaintiff represented at oral argument that the defendant has since moved. Although this development, if true, may significantly affect the situation going forward, it does not render moot the defendant's current appeal seeking to vacate the order, which at this time remains in effect. Compare Quinn v. Gjoni,
The reason for the defendant's absence is not explained in the record. At oral argument, defense counsel represented that his client was never served. However, the defendant never moved to vacate the order on this ground and, on the current record, we have no way of addressing the notice question. We therefore do not reach this issue.
C.E.R. v. P.C. involved a dispute between a homeowner and two tenants who rented space in her home.