DECISION AND JUDGMENT
W. CLIFFORD, ACTIVE RETIRED JUSTICE.
matter was heard before the court on November 8, and December
22, 2016. Plaintiff Vincent A. Pestilli was represented by
Attorneys Leonard Sharon, and Sarah Glidden. Attorney Edward
Dilworth represented defendant Bryan Flynn.
complaint filed by plaintiff Pestilli pursuant to 14 M.R.R.S.
§7552, alleges that Flynn trespassed on Pestilli's
land in Brownfield, and cut and carried away timber. It also
alleges conversion of and damage to Pestilli's equipment,
and theft of property.
filed a counterclaim for slander, alleging that Pestilli
disparaged Flynn's character by making dishonest
statements about Flynn injuring him in his occupation.
years, Flynn worked for Pestilli, taking care of
Pestilli's large tract of land in Brownfield, doing
maintenance, snow plowing, lawn cutting, and taking care of
the shooting ranges on Pestilli's property used by
Pestilli for law enforcement training as part of his
winter and spring of 2010, Pestilli was away from the
Brownfield property much of the time. He became concerned
that some of his property was missing and contacted law
enforcement. In the spring of 2010, Pestilli filed a Small
Claims action against Flynn, and was awarded a $5604.25
judgment in January of 2011, in the Small Claims Court. That
small claims judgment was for a loan of money made to Flynn,
payroll advances to Flynn, damage to Pestilli's personal
truck, a cord of firewood, and money paid to Flynn pursuant
to falsified work hours.
$5404.25 judgment was later satisfied by Flynn by
transferring a truck to Pestilli. The Small Claims action did
not allege any damages for trespass for cutting and taking
away trees, and made no mention any items alleged to have
been taken in this action.
action brought pursuant to Section 7552 of Title 14 for
trespass and taking away of trees, and seeking damages for
the loss of those trees, and in addition for theft of other
items, and damages to a backhoe/tractor, was brought in 2013.
Trial was conducted on November 8, and December 22, 2017.
has demonstrated that Flynn cut and carried away a
substantial number of trees from Pestilli's land.
Although Pestilli did allow Flynn to keep brushwood resulting
from cuts Flynn made on Pestilli's property to keep
snowmobile trails clear, he did not authorize Flynn to cut
and carry away the amount of timber that Pestilli proved was
taken by Flynn. The value of the unauthorized trees taken by
Flynn is found to be $1948.93. See 14 M.R.S.A.
became aware of the unauthorized taking of the trees based on
what several people told him, i.e. that Flynn had been
selling stumpage from Pestilli's property, in 2010.
Pestilli also contends that Flynn took a generator, chain
saws, a weed whacker, and did damage to a backhoe/tractor
while Pestilli was away from his land. Pestilli claims to
have found the backhoe/tractor damaged upon his return, and
that the amount of the damage was about $10, 000. He did not
seek recovery for those items in his small claims action
previously brought against Flynn, and contends that the
damage to the tractor was not part of the small claims
action, and that he has not been paid for that loss.
presented evidence to establish the value of the trees that
Flynn cut and carried away from his property. There is little
dispute that the market value of those trees is $1948.93. 14
M.R.S.A. § 7552 (3)(B)(1).
is in dispute is (1) the amount of damages that
Pestilli can recover in this action, and (2) whether Pestilli
can prosecute this lawsuit for the trespass and the cutting
of timber. Flynn contends that the suit is barred by the res
judicata, claim preclusion effects of the small claims action
brought by Pestilli against Flynn in 2010, which resulted in
a small claims judgment in favor of Pestilli against Flynn in
court concludes that this statutory action for trespass and
the cutting and carrying away of trees on Pestilli's land
should be allowed to proceed, and that this suit is not