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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.
