Ilan I. v. Melody M.

• Decision Date: 04 December 2019
• Docket Number: No. 18-P-1284,18-P-1284
• Citation: 96 Mass.App.Ct. 639,138 N.E.3d 390
• Parties: ILAN I. & another v. MELODY M.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 639

138 N.E.3d 390

ILAN I. & another¹

v.MELODY M.²

No. 18-P-1284

Appeals Court of Massachusetts, Plymouth..

Argued September 12, 2019

Decided December 4, 2019

Margaret A. Ishihara, Mattapoisett, for the defendant.

Jeffrey E. Francis, Boston, for the plaintiffs.

Present: Vuono, Meade, & Sullivan, JJ.

SULLIVAN, J.

After notice and a hearing, Ilan I. and his husband, Knox K., obtained a harassment prevention order against their former friend and then current neighbor, Melody M. See G. L. c. 258E. The order was extended on two occasions. The defendant appeals, contending that her due process rights were violated because the judge did not hold an evidentiary hearing when the first extension order was issued, and that none of the orders were supported by sufficient evidence. The plaintiffs contend, among other things, that the appeal from the first extension order must be dismissed. We affirm.

1. Appealability. The plaintiffs filed a three-count complaint in June of 2016, seeking relief under G. L. c. 258E, and asserting claims for intentional infliction of emotional distress and trespass. A judge of the Superior Court issued an ex parte harassment prevention order on June 16, 2016. Following a hearing after notice on June 21, 2016, a harassment prevention order issued for six months, to expire on January 9, 2017. Melody M. timely appealed from this order, but failed to perfect her appeal, and it is not before us. After a nonevidentiary hearing on January 9, 2017, a judge of the Superior Court (first judge) extended the order for six months, to July 10, 2017 (January, 2017 extension order). Melody M. timely appealed (first appeal). On September 14, 2017, after an evidentiary hearing, a second judge again extended the order, to July 10, 2018, and ordered the entry of a "Judgment and Order on Complaint for Harassment Prevention Order" for each plaintiff pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974) (September, 2017 extension orders). Melody M. timely appealed (second appeal),³ and we consolidated the two appeals.

The plaintiffs now claim that Melody M.'s appeal from the January, 2017 extension order must be dismissed because it was a premature, interlocutory appeal, and was not preserved by being included in the second appeal.

This case presents a procedural anomaly. In the usual course, requests for harassment prevention orders are filed as stand-alone proceedings using complaint forms approved by the trial court. See G. L. c. 258E, §§ 3, 11. There is an immediate right to appeal to this court from an order after notice, and from any extension order. See O'Brien v. Borowski, 461 Mass. 415, 418, 961 N.E.2d 547 (2012) (G. L. c. 258E). Cf. Zullo v. Goguen, 423 Mass. 679, 681, 672 N.E.2d 502 (1996) (G. L. c. 209A). Certain personal identifying information is impounded and withheld from public inspection. Filing fees are waived. See G. L. c. 258E, §§ 3 (c ), 10. Other civil or criminal remedies are preserved. See G. L. c. 258E, § 3 (g ) ("An action commenced under this chapter shall not preclude any other civil or criminal remedies").

For reasons not apparent in the record, the plaintiffs here did not follow that procedure, and instead filed a civil complaint in three counts of which the request for relief under G. L. c. 258E was but one. The practical effect of the plaintiffs' choice of pleading in this case was to impede the defendant's right of immediate appeal once the June, 2016 order after notice and the January, 2017 extension order had entered.⁴ See O'Brien, 461 Mass. at 418, 961 N.E.2d 547.

We now clarify that, consistent with O'Brien, supra, a G. L. c. 258E order is immediately appealable, even where it is joined with other causes of action in a civil complaint. Cf. Zullo, 423 Mass. at 681, 672 N.E.2d 502 ("Abuse prevention order proceedings were intended by the Legislature to be as expeditious and informal as reasonably possible"). For this reason, appeals should be heard quickly and in a uniform manner. Id. at 681-682, 672 N.E.2d 502. "The policies of providing a ‘[u]niformity of treatment of litigants and the development of a consistent body of law’ are equally applicable to" c. 258E appeals regardless whether the request for an order was made in a separate proceeding, or in a civil suit. Id. at 682, 672 N.E.2d 502, quoting Department of Revenue v. Jarvenpaa, 404 Mass. 177, 181, 534 N.E.2d 286 (1989). "We see no reason why the avenue for review of an order made pursuant to G. L. c. [258E] should turn on the fortuity of [how or] where the plaintiff initiated the action." Zullo, supra at 681-682, 672 N.E.2d 502. See O'Brien, 461 Mass. at 418, 961 N.E.2d 547.

Both notices of appeal in this case were properly filed, and the appeals have been consolidated and are properly before us.

2. Due process. The defendant asserts that the first judge erred as a matter of law by entering the first extension order in January of 2017 without an evidentiary hearing. The defendant, newly represented by counsel, requested an evidentiary hearing, and explained to the judge that no formal evidentiary hearing was held at the time the June, 2016 order after notice was entered.⁵

Melody M. was entitled to an evidentiary hearing upon request at the January, 2017 extension hearing; it was error for the judge to issue the extension order without permitting the defendant to cross-examine witnesses. See Frizado v. Frizado, 420 Mass. 592, 597, 651 N.E.2d 1206 (1995). Cf. Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5:01 (2011). However, a full evidentiary hearing was held at the time of the second extension request in September, and that appeal is also before us. We therefore turn our attention to the issues raised with respect to the September, 2017 extension orders, and the sufficiency of the evidence.

3. September, 2017 extension orders. a. Background. We summarize the facts as found by the second judge, supplemented by the record evidence that supports those findings.

The source of the dispute between the parties derives from the breakdown of a friendship in 2012, and disagreement over landscaping projects undertaken by the plaintiffs on their property beginning in 2011, and continuing until 2016. The judge found that Melody M. had engaged in a continuous and escalating course of conduct which, while not initially violative of G. L. c. 258E, ultimately rose to the level warranting issuance of an order.

The conflict between the neighbors began when the defendant went onto the plaintiffs' property and scared Ilan I. while he was napping near the pool in September, 2011. He asked her not to come on the property without permission again. She agreed to e-mail him in advance of entering the property. Although the plaintiffs had previously been friends with Melody M. and her husband, visited one another's homes, shared celebrations, and exchanged cards, Ilan I. and Knox K. told Melody M. and her husband that they no longer wanted to be friends in July of 2012. At some point thereafter, the plaintiffs erected a fence between the two houses, in part to keep Melody M. out and in part to keep her dog out. Thereafter, on one occasion, Melody M. climbed the fence and tried to talk to Ilan I., who asked to be let alone.

On January 22, 2015, after being informed by local police that her dog was loose, Melody M. returned home to find the dog in her house. After asking other neighbors whether they had seen her dog outside, the defendant went to the plaintiffs' cottage and spent ten minutes knocking on the door. Ilan I. was frightened and did not respond. The plaintiffs then wrote Melody M. and her husband, reminding them that they had asked that "you not come onto our property (which includes not climbing on our fence), and to generally leave us alone.... Should you choose to do that again, we will contact the [town] [p]olice and ask that you be removed for trespassing." Melody M. continued to come to the property line to engage Ilan I. in conversation.⁶ On April 14, 2015, the plaintiffs wrote Melody M.'s husband to reiterate that they wanted Melody M. to leave them alone. Melody M. saw the letter.

Two months later, on June 26, 2015, the plaintiffs found Melody M. on the doorstep of their cottage. Knox K. escorted her off the property. In a brief conversation, Melody M. said that she wanted to be informed of landscaping work being done near her property and asked why they were no longer friends.

That day the plaintiffs obtained a "no trespass" form letter from the local police department and sent it to Melody M. On one occasion thereafter, Melody M. drove by Ilan I. and mockingly said, "[H]i [Ilan I.], ha." A few weeks later she drove up behind him as he got out of his car at the mailbox at the end of his driveway, and again said, "[H]i [Ilan I.], ha."

On May 23, 2016, Melody M. twice confronted Ilan I. about trees that he and Knox K. were planting near the parties' property line. The first time, Ilan I. saw Melody M. on a neighbor's property looking through the trees; Melody M. asked Ilan I. questions about what work he and Knox K. were doing. She insisted she should be told of any work within thirty feet of her property line. Ilan I. asked Melody M. to "please leave us alone." Later that day, Melody M. went to another neighbor's yard, and asked Ilan I. whether the landscaping would allow water to come on her property. Again, Ilan I. asked Melody M. to "please leave us alone." Melody M. responded that, "if there is a bunch of water that gets dumped down there, it would be my intention to build a sump and a high-power jet and fire the water back onto your property. I think it would be fun. Alright, I just want you to know that's my intention."⁷

Two days later, on May 25, 2016, Melody M. climbed the fence between the parties' property, leaned over, and demanded to know what work the plaintiffs and their contractors were doing near the property line. Ilan I. asked Melody M. to get off the fence. A contractor who...