Doe v. Forino, 121520 MESC, Aro-20-128

Docket NºAro-20-128
Opinion JudgeHORTON, J.
AttorneyNeil J. Prendergast, Esq., Fort Kent, for appellant Mark Forino Pat Doe did not file a brief
Case DateDecember 15, 2020
CourtSupreme Judicial Court of Maine

2020 ME 135




No. Aro-20-128

Supreme Court of Maine

December 15, 2020

Submitted On Briefs: September 29, 2020

Neil J. Prendergast, Esq., Fort Kent, for appellant Mark Forino

Pat Doe did not file a brief



[¶1] Mark Forino appeals from a judgment of the District Court (Presque Isle, Dow, J.) entering a protection from abuse order against him and in favor of his and Pat Doe's1 two children after a hearing on Doe's complaint for protection from abuse. See 19-A M.R.S. § 4007 (2020). He argues that the court erred when it denied his motions (1) to dismiss Doe's complaint on res judicata grounds and (2) in limine to exclude evidence relating to the allegations in Doe's previous complaint against him for protection from abuse. We disagree and affirm the judgment.


[¶2] On May 16, 2019, Doe filed a complaint in the District Court seeking a protection from abuse order against Forino based on an incident that her complaint alleged had occurred on April 20, 2019. Her complaint stated that she was bringing it individually and on behalf of her three children, the oldest of whom is not Forino's child. The court [Daigle, J.) scheduled a final hearing to be held on June 20, 2019. Both parties appeared pro se, waived their rights to a hearing, and agreed to the entry of a protection order without a finding of abuse. The final order was in favor of only Doe and her oldest child and excluded the two younger children.2

[¶3] At the time the court issued its order, bail conditions in a related criminal case prohibited Forino from having contact with the two younger children. Forino's bail conditions were later amended, however, pursuant to an agreement between him and the State, to permit him to have contact with the younger children.3 After Doe learned that Forino's bail conditions no longer prohibited him from having contact with the two younger children, she brought a second complaint for protection from abuse against Forino on January 10, 2020. This second complaint was brought on behalf of the two younger children only. The complaint alleged "the same incident of abuse of [the two younger children]" as was alleged in the first complaint.

[¶4] The court [Dow, /.) held a final hearing on the second complaint on March 4, 2020. At the hearing, Forino moved to dismiss Doe's second complaint on the ground that it alleged the same facts as were alleged in her first complaint. Forino also made an oral motion in limine to "exclude whatever the allegations were in the underlying order." The court denied both motions from the bench and proceeded with the hearing.

[¶5] At the conclusion of the parties' evidentiary presentations, Forino again moved for dismissal. The court denied that motion from the bench as well. Immediately following the hearing, the court issued a protection from abuse order in favor of the two younger children, finding that both children were abused as that term is defined in 19-A M.R.S. § 4002(1) (2020). Forino moved for further findings of fact and conclusions of law. See M.R. Civ. P. 52(b). The court issued an amended order stating that "the issue of whether or not Mark abused [the two younger children] had been raised but never adjudicated" in the earlier proceeding and maintaining its finding of abuse with regard to the two younger children. The court issued a subsequent order restating its finding of abuse. Forino timely appealed from the judgment. See 14 M.R.S. § 1901 (2020); M.R. App. P. 2B(c)(1).


[¶6] Forino invokes the doctrine of res judicata to argue that the denials of his motion to dismiss and motion in limine were improper. He relies on both of the two distinct legal theories constituting res judicata-claim preclusion (bar) and issue preclusion (collateral estoppel). See In re Children of Bethmarie R., 2018 ME 96, ¶ 15, 189 A.3d 252.

[¶7] Forino argues that the doctrine of claim preclusion required the court to dismiss the second complaint and that the doctrine of issue preclusion required the court to exclude from the second hearing any evidence related to any of the allegations in Doe's first complaint. Because Forino's issue preclusion argument encompasses every factual allegation raised in Doe's initial complaint for protection from abuse rather than any specific factual issue, it is the functional equivalent of his claim preclusion argument and need not be addressed separately. In addition, Forino's issue preclusion argument was not developed to the extent that we require for appellate review.4Accordingly, only his claim preclusion argument is the subject of our de novo review. See id. ¶ 14 ("We review de novo a determination that res judicata does not bar litigation.").

[¶8] "Claim preclusion bars relitigation if: (1) the same parties or their privies are involved in both actions; (2) a valid final judgment was entered in the prior action; and (3) the matters presented for decision in the second action were, or might have been[, ] litigated in the first action." Macomber v. MacQuinn-Tweedie, 2003 ME 121, ¶ 22, 834 A.2d 131 (emphasis added) (quotation marks omitted). The requirements for claim preclusion are stated in the conjunctive. See id. Therefore, the failure to prove any individual prong means that the second litigation is not barred. See Fiduciary Trust Co. v. Wheeler, 2016 ME 26, ¶ 14, 132 A.3d 1178 (holding that claim preclusion was inapplicable when the defendant met prongs one and two but could not prove prong three).

[¶9] Forino argues that the doctrine of claim preclusion bars Doe's second complaint because "two separate preliminary orders...

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