55 N.E.3d 997
Mass. App. Ct.2016Background
- Plaintiff Elizabeth Gassman and defendant Kinzy Reason were neighbors in the same public housing building; Gassman lived above Reason and frequently played the piano, which led to repeated noise complaints by Reason.
- On June 13, 2013, Gassman obtained an ex parte harassment prevention order under G. L. c. 258E directing Reason to keep specified distances in common areas; a hearing after notice was scheduled and, after notice, the order was extended for a year.
- At the end of that year Gassman sought a further extension, alleging ongoing fear from repeated complaints and one dismissed assault charge; Reason denied threatening or contacting Gassman since the original order and asked the court to vacate the order.
- A judge (after argument and testimony) extended the order for six months; a later judge further extended it until June 23, 2015, when the order expired; no judicial termination or destruction of records was ordered.
- Reason appealed the extension; the Appeals Court considered whether the appeal was moot and then whether the extension was supported by the required evidentiary showing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal of an expired harassment order is moot | Gassman: order validly issued/extended; no mootness asserted | Reason: appeal still viable to clear record and challenge extension | Not moot — appeal proceeds because order expired without judicial vacatur or destruction of records |
| Whether plaintiff proved statutory civil harassment (three+ malicious acts with intent to cause fear/intimidation/abuse) | Gassman: repeated police complaints, noise incidents, and a prior complaint against Reason show ongoing harassment and fear | Reason: complaints were noise grievances, not malicious acts intending physical harm; insufficient evidence of intent or three qualifying acts | Held for Reason — insufficient evidence of intent and of three or more malicious acts; repeated noise complaints and a single dismissed assault complaint do not meet statutory harassment standard |
| Whether a prior issuance of an order creates a presumption allowing extension | Gassman: relying on existing order and plaintiff’s testimony to justify extension | Reason: extension requires plaintiff to make the same showing as initial hearing; prior order does not create presumption | Court: no presumption arises; plaintiff bears burden at extension hearing to justify ongoing relief |
| Remedy when an order was wrongfully extended but not vacated or destroyed | Gassman: extension justified so no relief needed | Reason: vacatur/removal from records would be appropriate relief | Court vacated the extension and remanded; did not order destruction of records and noted expungement relief is rare and requires fraud on the court |
Key Cases Cited
- Seney v. Morhy, 467 Mass. 58 (Mass. 2014) (expired harassment orders not necessarily moot where defendant retains continuing interest)
- O'Brien v. Borowski, 461 Mass. 415 (Mass. 2012) (statutory definition of civil harassment requires intent and three or more malicious acts causing fear/intimidation/abuse)
- Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (Mass. App. Ct. 1998) (defendant may retain interest in challenging abusive orders to remove stigma)
- Lawrence v. Gauthier, 82 Mass. App. Ct. 904 (Mass. App. Ct. 2012) (wrongfully issued harassment orders carry collateral consequences like abuse orders)
- Allen v. Allen, 89 Mass. App. Ct. 403 (Mass. App. Ct. 2016) (termination plus order to destroy law‑enforcement records renders appeal moot)
- Quinn v. Gjoni, 89 Mass. App. Ct. 408 (Mass. App. Ct. 2016) (vacatur plus destruction of records eliminates defendant’s cognizable interest)
- A.T. v. C.R., 88 Mass. App. Ct. 532 (Mass. App. Ct. 2015) (plaintiff bears burden to prove malicious intent for each qualifying act)
- Petriello v. Indresano, 87 Mass. App. Ct. 438 (Mass. App. Ct. 2015) (discussing elements and proof required for civil harassment under G. L. c. 258E)