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Ilan I. v. Melody M.

Appeals Court of Massachusetts, Plymouth

December 4, 2019

ILAN I. & another [1]

          Heard: September 12, 2019.

          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.

          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 (2012) (G. L. c. 258E). Cf. Zullo v. Goguen, 423 Mass. 679, 681 (1996) (G. L. c. 2O9A). 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.

         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 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 ...

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