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Pestilli v. Flynn

Superior Court of Maine, Oxford

July 8, 2017

VINCENT PESTILLI, Plaintiff
v.
BRIAN FLYNN, Defendant

          DECISION AND JUDGMENT

          ROBERT W. CLIFFORD, ACTIVE RETIRED JUSTICE.

         This 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.

         The 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.

         Flynn filed a counterclaim for slander, alleging that Pestilli disparaged Flynn's character by making dishonest statements about Flynn injuring him in his occupation.

         BACKGROUND

         For two 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 businesses.

         In the 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.

         The $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.

         This 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.

         Pestilli 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. § 7552(3)(B)(1)

         Pestilli 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.

         Pestilli 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).

         What 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 2011.

         The 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 ...


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