Ilan I. v. Melody M. ( 2019 )

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18-P-1284 Appeals Court
ILAN I. & another1 vs. MELODY M.2
No. 18-P-1284.
Plymouth. September 12, 2019. - December 4, 2019.
Present: Vuono, Meade, & Sullivan, JJ.
Harassment Prevention. Civil Harassment. Protective Order.
Due Process of Law, Right to hearing, Hearing. Practice,
Civil, Appeal.
Civil action commenced in the Superior Court Department on
June 16, 2016.
A motion to extend a harassment prevention order was heard
by Cornelius J. Moriarty, II, J.; and the case was heard by Mark
C. Gildea, J.
Margaret A. Ishihara for the defendant.
Jeffrey E. Francis for the plaintiffs.
SULLIVAN, J. After notice and a hearing, Ilan I. and his
husband, Knox K., obtained a harassment prevention order against
1 Knox K.
2 The parties' names are pseudonyms.
2
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
3
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 (2012) (G. L. c. 258E). Cf. Zullo v. Goguen,
423 Mass. 679, 681 (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").
3 At the time Melody M. filed her notices of appeal, the two
common-law counts of the plaintiffs' complaint were still
pending; a stipulation of dismissal without prejudice as to
those counts entered roughly one week after Melody M.'s second
appeal entered on the docket.
4
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.
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 ("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. "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, quoting Department of Revenue v.
Jarvenpaa, 404 Mass. 177, 181 (1989). "We see no reason why the
The plaintiffs moved to dismiss the first appeal in this
4
court as interlocutory. That motion was referred to a panel,
but after additional motion practice, the appeal was stayed, and
ultimately consolidated without objection.
5
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. See O'Brien,
461 Mass. at 418.
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 (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
5Melody M. appeared pro se at the time of the June, 2016
order after notice, and the hearing was held based on
representations, without objection.
6
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
7
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
6 Ilan I. also complained that Melody M. stood near him in a
manner that bothered him while at their tennis club.
8
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
9
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 was present said that Melody M.
was yelling and Ilan I. was visibly shaken. Later the same day,
Melody M. drove her car onto the plaintiffs' property, drove up
to their hedge, and looked through the hedge.
The plaintiffs' attorney sent a letter to Melody M. by
overnight mail that day requesting (again) that she cease any
further contact with Ilan I. and Knox K., and notifying her that
they would seek a harassment prevention order if she did not
stop. Melody M. received the letter on May 26, 2016. The next
day, May 27, Melody M. replied by e-mail to the plaintiffs'
attorney referring to the two men as "boys." Two days later, on
May 29, 2016, Melody M. stopped her car, blocking the front of
the plaintiffs' driveway, and yelled, "Hey boys, did you get my
letter, did you get my e-mail, hey boys, did you get my e-mail,
okay boys I am going to take it that you did." Both men were
7 This and other interactions were recorded by Ilan I. on
his cell phone.
10
frightened by this interchange, and considered Melody M.'s use
of the word "boys" a homophobic taunt.8
The judge found that none of Melody M.'s conduct before the
June, 2015 no trespass letter constituted an act of willful or
malicious conduct within the meaning of G. L. c. 258E. The
judge found that Melody M.'s conduct after receipt of the no
trespass letter was willful and malicious, was intended to cause
fear or intimidation, and did in fact cause fear and
intimidation. The September, 2017 extension orders then issued.
b. Discussion. "[W]e consider whether the judge could
find, by a preponderance of the evidence, together with all
permissible inferences, that the defendant 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,
8 Ilan I. testified that he was afraid because Melody M.'s
behavior was escalating, and there was no indication that she
would stop. Knox K. testified that Ilan I. had gained weight,
was hypervigilant, and frequently woke up in the middle of the
night. After attending Melody M.'s deposition Knox K. felt that
"she considers it some kind of a game, and as I said to [Ilan
I.], I said I feel a picture of a mouse being played with by a
cat with their paws; this is not a serious effort in her mind.
And then the more we thought about it, . . . it was as if, okay,
she's not taking our requests seriously, she's not taking the
court orders seriously, she's not taking this legal process
seriously; what is she going to do when this court restraining
order expires? And that fear of her actions and what she might
do to [Ilan I.] and me personally, as to our personal safety or
to our property kept us up . . . ."
11
intimidation, abuse or damage to property.'" A.T. v. C.R., 88
Mass. App. Ct. 532, 535 (2015), quoting G. L. c. 258E, § 1. The
relevant inquiry is not whether the plaintiffs' fear was
reasonable, but whether they were placed in fear by the
intentional conduct of the defendant. See Seney v. Morhy, 467
Mass. 58, 63 (2014); O'Brien, 461 Mass. at 420; Gassman v.
Reason, 90 Mass. App. Ct. 1, 7 (2016). "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.'" A.T. v. C.R., supra, quoting O'Brien,
supra at 426 n.8.
The record supports the judge's finding that the defendant
committed at least three acts meeting the statutory criteria.9
First, Melody M.'s May 23, 2016 threat to turn a high power
water jet onto the plaintiffs' property constituted a threat of
physical damage to property, if not to the person, and the judge
properly could find that such a statement was motivated by
hostility and malice and was intended to intimidate the property
owners and place them in fear of property damage. See C.E.R. v.
9 The plaintiffs bear the burden of proof. See F.K. v.
S.C., 481 Mass. 325, 332 (2019); Van Liew v. Stansfield, 474
Mass. 31, 36-38 (2016). We review the judge's factual findings
for clear error. C.E.R. v. P.C., 91 Mass. App. Ct. 124, 126
(2017).
12
P.C., 91 Mass. App. Ct. 124, 126 (2017) ("Insofar as property is
involved, only fear of physical damage will suffice"). While
Melody M. contends that these words were simply hyperbole, it
was for the judge, as finder of fact, to determine what Melody
M.'s motive and intent were. See V.J. v. N.J., 91 Mass. App.
Ct. 22, 28 (2017). Similarly, Melody M.'s argument that this
type of threat could not have placed Ilan I. and Knox K. in fear
is inapposite. It was for the judge, who heard the testimony
and observed the demeanor of the plaintiffs, to determine
whether the plaintiffs were in fact fearful. Id. The
reasonableness of the fear is not at issue, see O'Brien, 461
Mass. at 427-428, so long as the fear was genuine and was
intended by the defendant. Id. at 426 n.8.
The second act occurred on May 25, 2016, when, after Melody
M. climbed up and leaned over the fence, she drove her car
across their grass and up to the hedge. A third act occurred on
May 29, 2016, when she blocked the plaintiffs' driveway with her
car. This level of physical intrusion and the display of
physical force -- that is, using the car to commit the trespass
on May 25 and to block the plaintiffs' egress on May 29 --
support the inference that Melody M. intended to place Ilan I.
and Knox K. in fear of damage either to their property or
themselves. "As part of the contextual analysis, an
individual's right 'to be let alone' in [his] home is relevant."
13
Commonwealth v. Bigelow, 475 Mass. 554, 568 (2016), quoting
Rowan v. United States Post Office Dep't, 397 U.S. 728, 736
(1970). By this juncture, Melody M. had displayed a pattern of
escalating conduct that no amount of entreaties, a no trespass
notice, or threat of litigation had quelled. See J.C. v. J.H.,
92 Mass. App. Ct. 224, 228-229 (2017) (considering entire course
of defendant's conduct, including continuing contact after
plaintiff told him "repeatedly to leave her alone"). From this
course of conduct, taken as a whole, the judge could permissibly
find that Melody M. would not take "no" for an answer, and that
the plaintiffs' actual fear of physical harm or harm to property
was prompted by malicious and intentional conduct on Melody M.'s
part.10
Melody M. maintains that the statements she made to Ilan I.
on May 25 and 29, 2016, while arguably obnoxious or offensive,
10The judge also found that the two incidents where Melody
M. stopped her car and spoke to Ilan I. in a mocking manner, the
first May 23 incident where she talked to Ilan I. from the
neighbor's property, and the May 25 incident where she climbed
on the fence, leaned into the property, and yelled at Ilan I.
were separate acts of intimidation. Because we have delineated
three acts, we do not need to decide whether these incidents
also separately constituted acts within the meaning of G. L.
c. 258E. Compare Bigelow, 475 Mass. at 565-566, with
Commonwealth v. Johnson, 470 Mass. 300, 309-311 (2014). The
judge did not consider, and we also do not reach the question
whether these acts constituted criminal harassment under G. L.
c. 265, § 43A, a separate ground for entry of a harassment
prevention order under G. L. c. 258E. See A.S.R. v. A.K.A., 92
Mass. App. Ct. 270 (2017).
14
did not rise to the level of a true threat of harm to person or
property, and were therefore protected by the First Amendment to
the United States Constitution. See O'Brien, 461 Mass. at 423-
427. This argument misses the mark. The judge took great care
to say that he did not consider the content of Melody M.'s
speech as one of the three acts. The judge found that the use
of the word "boys," while offensive, did not rise to the level
of a true threat or fighting words. See Bigelow, 475 Mass. at
567, 570-571 (in usual case, whether speech rises to level of
true threat is for fact finder); O'Brien, supra.11 The repeated
use of the word "boys" was, however, evidence of the malice and
hostility directed to the plaintiffs, and the judge was well
within his discretion to consider that evidence in making his
findings regarding Melody M.'s conduct. The judge rested his
conclusions, as do we, on the fact that Melody M. threatened to
The plaintiffs rely on A.T. v. C.R., 88 Mass. App. Ct. at
11
537, for the proposition that they need not demonstrate that
Melody M.'s speech rose to the level of a true threat, so long
as her speech was intimidating. Although A.T. v. C.R. could be
so read, we clarified in A.R. v. L.C., 93 Mass. App. Ct. 758
(2018); A.S.R. v. A.K.A., 92 Mass. App. Ct. at 280; C.E.R. v.
P.C., 91 Mass. App. Ct. at 130; and Gassman, 90 Mass. App. Ct.
at 9, that, where a harassment prevention order is sought on the
basis of speech alone, the plaintiff must show that the speech
rose to the level of a true threat or fighting words. See
O'Brien, 461 Mass. at 426-427; Ellis E. v. Finn F., 96 Mass.
App. Ct. 433, 441-442 (2019). See also Bigelow, 475 Mass. at
567, 570-571 (criminal harassment).
15
damage property, trespassed on the property despite repeated
requests to cease, and engaged in a show of physical force.
c. Remedy. Finally, Melody M. contends that the
September, 2017 extension order as to Knox K. is invalid because
he was not physically present in all three instances, and her
conduct was therefore not "aimed at" him. G. L. c. 258E, § 1.
The judge found that Melody M. knew that Ilan I. would tell his
husband about her conduct, and that her actions were directed at
both of them as the property owners. Her repeated references to
the two men as "boys" also supports the inference that her
conduct was directed at both of them. The judge permissibly
found that the conduct was "aimed at a specific person." G. L.
c. 258E, § 1. Both plaintiffs were "targeted." See DeMayo v.
Quinn, 87 Mass. App. Ct. 115, 117 (2015) (construing term "aimed
at" consistent with term "directed at" in G. L. c. 265, § 43A
[a]). See generally F.W.T. v. F.T., 93 Mass. App. Ct. 376, 378-
379 (2018) (assuming, without deciding, that alleged harassing
conduct was "intended to target" owner of property in ongoing
property dispute).12
January 9, 2017 extension
order affirmed.
12To the extent that we do not address . . . other
contentions of the plaintiffs, they "have not been overlooked.
We find nothing in them that requires discussion." Commonwealth
v. Domanski, 332 Mass. 66, 78 (1954).
16
September 14, 2017 judgment
and order as to Ilan I.
affirmed.
September 14, 2017 judgment
and order as to Knox K.
affirmed.