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-102
L.C.
vs.
M.T.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, M.T., appeals from the order of a judge of
the Boston Municipal Court, dated October 21, 2022, extending a
harassment prevention order issued in favor of the plaintiff,
L.C., pursuant to G. L. c. 258E, § 3. Because we are satisfied
that the evidence credited by the judge was sufficient to
support the order, and because we discern no basis for the
defendant's claim that the judge was biased in favor of the
plaintiff, we affirm.
1. Background. After issuing an ex parte harassment
prevention order in favor of the plaintiff and against the
defendant, the judge scheduled a two-party extension hearing
with notice to the defendant. See G. L. c. 258E, § 3 (e). On
the hearing date, both parties appeared and testified; the
defendant was represented by counsel. The plaintiff's
testimony, which the judge explicitly credited, included her
account of the defendant's making repeated telephone calls to
her in which the "screaming" defendant threatened to come to the
plaintiff's house, an incident in which the defendant initiated
a verbal conflict in a supermarket then followed the plaintiff
through the parking lot and blocked the plaintiff from getting
to her car, the defendant's appearing in the area of the
plaintiff's workplace and the defendant's driving her white car
back and forth past the plaintiff's house. 1 Although the
defendant testified that none of her calls to the plaintiff were
threatening, 2 disputed the characterization of the supermarket
incident, testified that she was on the workplace property to
conduct banking business unrelated to the plaintiff, and claimed
to be unable to identify photos of the white car because they
did not show the vehicle's license plates, the judge explicitly
discredited the defendant's testimony.
2. Discussion. The defendant's brief lacks citation to
the record or to legal precedent, and so does not rise to the
level of appellate argument. See Mass. R. A. P. 16 (a) (9) (A),
1 The plaintiff testified that she videorecorded the car driving
past her house. At the hearing, the judge saw a still image of
the white car taken from that recording.
2 She testified that she called the plaintiff "in hopes that we
could figure out the situation of possibly dating the same
person."
2
as appearing in 481 Mass. 1628 (2019). Likewise, the defendant
has not complied with the rules governing the content and format
of the record appendix. See Mass. R. A. P. 18 (a) (1), as
appearing in 481 Mass. 1637 (2019). These are serious missteps.
See Mass. R. A. P. 16 (a) (9) (A); Lynn v. Thompson, 435 Mass.
54, 56 n.4 (2001) ("[t]he requirement that a party provide 'an
appropriate and accurate record reference' for each and every
fact set forth in the brief . . . is not an idle technical
requirement"); Jordan v. Superior Court, 426 Mass. 1019, 1020
(1998) (litigants who rely on nonconforming papers "do so at
their peril").
Putting those deficiencies to one side, however, we are not
persuaded that the evidence credited by the judge failed to
support the extension of the ex parte harassment prevention
order. When reviewing harassment prevention orders, "we
consider whether the judge could find, 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
and that [did] in fact cause fear, intimidation, abuse or damage
to property'" (citation omitted). Gassman v. Reason, 90 Mass.
App. Ct. 1, 7 (2016). See G. L. c. 258E, § 1.
3
The record amply supports the judge's finding of three acts
of harassment. The judge explicitly credited the plaintiff's
testimony that the defendant repeatedly called her on the
telephone "screaming" and threatening to come to her home. 3 We
are satisfied that the judge could have found that these calls
included "words . . . that -- taking into account the context in
which they [arose] -- cause[d] the victim to fear such [imminent
physical] harm," Van Liew v. Stansfield, 474 Mass. 31, 37
(2016), quoting O'Brien v. Borowski, 461 Mass. 415, 425 (2012),
and so amounted to "true threats" for the purposes of G. L.
c. 258E. See A.R. v. L.C., 93 Mass. App. Ct. 758, 760 (2018).
See also A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 278 (2017),
quoting Commonwealth v. Bigelow, 475 Mass. 554, 567 (2016)
(whether particular speech qualifies as "a true threat is a
matter to be decided by the trier of fact"). The same is true
for the plaintiff's account of the incident at the supermarket
in which the defendant yelled at her, followed her into the
parking lot as she tried to leave, and blocked her access to her
car.
The record likewise supported the judge's implicit
determination that the defendant intended by these acts to put
the plaintiff in fear and the judge's explicit finding, based on
3 The plaintiff testified that the defendant made approximately
ten such calls.
4
his acceptance of the plaintiff's testimony as true, that the
plaintiff was placed in fear by the defendant's calls and other
conduct. See A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015),
quoting O'Brien, 461 Mass. at 426 n.8 ("In the determination
whether the three acts 'did in fact cause fear, intimidation,
abuse or damage to property,' it is 'the entire course of
harassment, rather than each individual act, that must cause
fear or intimidation'"). This evidence was sufficient under
G. L. c. 258E to support the judge's order.
Finally, we are not persuaded by the defendant's claims of
bias. 4 The hearing transcript reflects the judge's evenhanded
management of the hearing process, and his consideration of the
evidence presented by both sides. It was the judge's obligation
to make determinations of credibility and although he was not
required to detail the bases for those determinations, the judge
did so in this case. The limited record before us does not
establish any professional tie between the judge and the
4 The claims were not raised in the trial court and so they are
waived. Wilhelmina W. v. Uri U., 102 Mass. App. Ct. 634, 641
(2023). Although we need not consider them, we do so to clarify
our view that the judge here did nothing to suggest that he was
biased for or against either party in this case.
5
plaintiff. We are satisfied that the judge's review was
impartial and fair.
Extension order dated October
21, 2022, affirmed.
By the Court (Hand,
Hershfang & Brennan, JJ. 5),
Assistant Clerk
Entered: January 23, 2024.
5 The panelists are listed in order of seniority.
6