MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following the decision of a panel of this court pursuant to our rule 1:28, M.M. v. Doucette, 94 Mass. App. Ct. 1110 (2018), a District Court judge held a hearing and extended and made permanent an abuse prevention order. The judge acted before the rescript issued from this court to the District Court, and while the defendant's application for further appellate review was pending. The defendant appeals, and we conclude that the District Court was without authority to issue the order under the circumstances presented here.

Background. On February 15, 2011, the plaintiff obtained an ex parte abuse prevention order against the defendant pursuant to G. L. c. 209A, § 3. The order was subsequently extended for one year after a hearing (2011 order). On February 27, 2012, the 2011 order was made permanent; the defendant's motion to vacate the permanent order was denied. See M.M. v. Doucette, 92 Mass. App. Ct. 32, 33-34 (2017). The defendant appealed, arguing, among other things, that he was incarcerated at the time the 2011 order was made permanent, the permanent order was issued without notice to him, and he was denied an opportunity to be heard. Id. We remanded the matter to the District Court for a "hearing at which, after reasonable notice to both parties and an opportunity for them to be heard, the judge [was to] decide whether the order should continue permanently, or for a different period of time, or whether it should be terminated." Id. at 39.

On remand, a different District Court judge held a hearing, made factual findings, and denied the defendant's motion to vacate the permanent order. See M.M. v. Doucette, 94 Mass. App. Ct. 1110. The defendant again appealed. On November 19, 2018, a panel of this court issued a memorandum and order pursuant to our rule 1:28 in which the panel concluded that the record did not reflect "that the judge considered the hearing that he held to be an extension hearing, that he determined that the plaintiff had met her burden, or that the judge exercised his discretion to determine the proper length of the extension," and remanded the case again to the District Court for a hearing. Id.

The defendant thereafter filed a timely application for further appellate review. See Mass. R. A. P. 27.1, as amended, 441 Mass. 1601 (2004). Although the filing of the application for further appellate review stayed this court's issuance of the rescript to the District Court, see Mass. R. A. P. 23, as appearing in 367 Mass. 921 (1975), the District Court judge held a hearing on January 18, 2019. The defendant appeared pro se. The defendant called the judge's attention to the provisions of Mass. R. A. P. 23 and the pending application for further appellate review, and further argued that he had received no notice of the hearing until that morning, when he was awakened and informed that he had a court date.

The judge had reviewed a copy of the rule 1:28 decision and evidently believed that he was required to hold the hearing as scheduled. The hearing went forward over the defendant's objection. The judge again extended the 2011 order and made it permanent, and issued written findings dated January 24, 2019. The defendant filed a timely notice of appeal.

Discussion. Once an appeal is decided by the Appeals Court, the return of the case to the lower court is governed by Mass. R. A. P. 23. As in effect at the time relevant here, rule 23 provided in relevant part:

"The clerk of the appellate court shall mail to all parties a copy of the rescript and the opinion, if one was written. The rescript of the court shall issue to the lower court twenty-eight days after the date of the rescript unless the time is shortened or enlarged by order. The timely filing of a petition for rehearing or of an application for further appellate review will stay the rescript until disposition of the petition or application unless otherwise ordered by the appellate court."

Under Mass. R. A. P. 23, "when the Appeals Court issues its opinion, the clerk of that court mails a copy of the opinion and the ‘rescript’ -- in effect the Appeals Court's judgment in that case -- to the parties and then issues the rescript to the lower court twenty-eight days after the date of the rescript" (footnote omitted). Foxworth v. St. Amand, 457 Mass. 200, 205 (2010). "[W]hen a rescript ... issue[s] to the lower court ... that signals the end of the direct review process for the case." Id. at 206.

The error here arose from the judge's action in holding the hearing and issuing an order before the clerk of this court issued the rescript to the District Court. See Jones v. Boykan, 464 Mass. 285, 298 (2013). The clerk of this court could not issue a rescript to the lower court while the application for further appellate review was pending (unless ordered to do so by this court). See Mass. R. A. P. 23. See also Foxworth, 457 Mass. at 206 n. 12 ("Case law has also recognized that a party's entitlement to request further appellate review must be taken into account before the direct appeal process is deemed complete"); Commonwealth v. Aboulaz, 44 Mass. App. Ct. 144, 147 (1998) ("Neither the distribution of an opinion of this court nor its publication seals the rights of the parties or is binding upon them until the rescript issues to the trial court"). "[A] binding "decision" does not come into existence as matter of law until the document embodying the order contained within that writing is transmitted to the lower court." Aboulaz, supra at 148. As the only basis for the rehearing in this case was this court's directive that such a hearing take place, the District Court had no authority to hold the hearing because the directive had not yet taken effect.

We note that the current version of Mass. R. A. P. 23, as appearing in 481 Mass. 1653 (2019), clarifies "the distinction between the clerk's release of a decision to the parties and the clerk's issuance of the rescript to the lower court." Reporter's Notes to Rule 23, Mass. Rules of Court, Rules of Appellate Procedure, at 277 (Thomson Reuters 2020). Rule 23 (a) now provides that "[t]he clerk of the appellate court shall send to all parties copies or a link to the rescript and the decision, if one was written, on the day the decision is released," and rule 23 (b) provides for the issuance of the rescript and decision to the lower court twenty-eight days later. Pursuant to Mass. R. A. P. 1 (c), as appearing in 481 Mass. 1601 (2019), " ‘decision’ means, when referring to an appellate court, the court's written opinion, memorandum and order pursuant to Appeals Court Rule 1:28, or other final adjudicative order in the case," and " ‘rescript’ means the appellate court's order, direction, or mandate to the lower court disposing of the appeal."

Because we determine that the defendant is entitled to be properly prepared for the hearing, we are constrained to vacate the order dated January 24, 2019, extending the 2011 order and making it permanent and remand the matter for further proceedings consistent with this decision and the decision in M.M. v. Doucette, 94 Mass. App. Ct. 1110. The 2011 order shall remain in effect until the hearing (to be scheduled only after the clerk issues the rescript in this appeal to the District Court and to be held after reasonable notice to the parties and an opportunity for them to be heard). The judge, ensuring that findings and bases therefore are clear on the record, shall decide whether the plaintiff has met her burden, and determine whether the 2011 order should continue permanently, or for a different period of time, or whether it should be terminated." Id.

So ordered.

Vacated and remanded.