MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	135

Docket: Aro-20-128

Submitted

On	Briefs: September	29,	2020

Decided: December	15,	2020

Panel: MEAD,	GORMAN,	JABAR,	HUMPHREY,	HORTON,	and	CONNORS,	JJ.

PAT	DOE

v.

MARK	FORINO

HORTON,	J.

[¶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.

 1		In	accordance	with	the	Violence	Against	Women	Act,	18	U.S.C.S.	§	2265(d)(3)	(LEXIS	through	

Pub.	L.	No.	116-193),	we	employ	the	pseudonym	“Pat	Doe”	for	the	plaintiff	in	this	matter.
2

I.		BACKGROUND	AND	PROCEDURAL	HISTORY

[¶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	

 2		The	names	of	the	two	younger	children	are	not	included	in	the	docket	entry	for	the	final	hearing	

and	are	crossed	out	of	the	case	caption	at	the	top	of	the	final	order.

3		The	record	does	not	reflect	the	exact	date	on	which	the	amendment	to	Forino’s	bail	conditions	

went	into	effect,	but	it	was	between	the	issuance	of	the	initial	protection	order	and the filing	of	Doe’s	

second	complaint.
3

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, J.)	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	
4

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).

II.		DISCUSSION

[¶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	
5

was	 not	 developed	 to	 the	 extent	 that	 we	 require	 for	 appellate	 review.4		

Accordingly,	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).

 4		In	making	his	issue	preclusion	argument,	Forino	claims	that	the	trial	court	erred	when	it	denied	

his	motion	to	“limit	the	evidence	 to	any	 facts	alleged	 to	have	occurred	after	 the	entry”	of	 the	 first	

order.	 	 However, his	 argument	 is	 limited	 to	 a	 single	 paragraph	 and	 cites	 no	 authority	 for	 its	

proposition.		As	such,	we	do not	reach	the	issue	and	we	affirm	the	trial	court’s	denial	of	his	motion	in	

limine.		See Mehlhorn	v.	Derby,	2006	ME	110, ¶ 11,	905	A.2d	290	(“We	will	apply	the	settled	appellate	

rule	.	.	.	that	issues	adverted	to	in	a	perfunctory	manner,	unaccompanied	by	some	effort	at	developed	

argumentation,	are	deemed	waived.”	(quotation	marks	omitted)).
6

[¶9]	 	 Forino	 argues	 that	 the	 doctrine	 of	 claim	 preclusion	 bars	 Doe’s	

second	complaint	because	“two	separate	preliminary	orders	involving	the	same	

parties	and	 the	same	children	were	issued	by	 the	Presque	 Isle	District	Court

[and]	[s]ubsequently,	two	final	orders	were	issued	as	well.”		A district	court’s	

finding	that	a	party	to	the	second	litigation	was	a	party	to,	or	in	privity	with, a	

party	to	the	first	litigation	is factual	and therefore	reviewed	for	clear	error.		See	

State	v.	Chan,	2020	ME	91,	¶	13,	236	A.3d	471; In	re	M.M.,	2014	ME 15, ¶	16,	

86 A.3d 622.

[¶10]		The	court’s	finding	that	its two	final	orders	adjudicated	the	claims	

of	two	distinct	groups	of	plaintiffs	is	amply	supported	by	the	record.		The first

final	order	covers	only	Doe	and	her	oldest	daughter.		Although	Doe	filed her	

first	complaint	individually	and	on	behalf	of	all	three	children and	did	receive	a	

temporary	 order	 protecting	 herself	 and	 all	 three	 children,	 the	 two	 younger	

children	were	functionally dismissed	as	parties	prior	to	judgment	because	they	

were	not	included	in	the	final	order	that	was	entered	by	agreement—there	was	

no	finding	as	to	whether	or	not	they	had	been	abused.		Because	a	party	whose	

claim	is	dismissed	prior	to	judgment	is	not	barred from	relitigating	the claim

unless	 the	dismissal	is	explicitly with	prejudice,	see	M.R.	Civ.	P.	41(a)(2), the	

first	 order	 was	 not	 a	 final	 judgment	 on	 the	 merits	 with	 respect	 to	 the	 two	
7

younger	children.		See	In	re	Kaleb	D., 2001	ME	55,	¶ 3	&	n.4,	769	A.2d 179.		In	

contrast,	Doe	brought	her	second	complaint only on	behalf	of	the two younger

children and	not	on	her	own	or	her	oldest	child’s	behalf,	and	the second final	

order	adjudicates	the	claims	of only	the	two	younger children.5

[¶11]		However,	even	when	the	parties	to	the	second	action	differ	from	

those	in	 the	 first, claim	preclusion	may	 operate	as	a	bar if	 the	 parties	in the	

second	action	were	in	privity	with	those	in	the	first.		See	In	re	M.M.,	2014	ME	15,	

¶	 16,	 86	 A.3d	 622.	 	 “Privity	 exists	 when	 two	 parties	 have	 a	 commonality	 of	

ownership,	 control,	 and	 interest	 in	 a	 proceeding.”	 	 Beal	 v. Allstate	 Ins.	 Co.,	

2010 ME	20,	¶	20,	989	A.2d	733.		Privity	requires	that	the	parties’	interests	in	

the	first	 litigation	 be	 so	 intertwined as	 to “represent	 one	 single	 legal	 right.”		

Dep’t	of	Human	Servs.	ex	rel.	Boulanger	v.	Comeau,	663 A.2d 46,	48	(Me. 1995)	

(citing	Restatement	(Second)	of	Judgments §	41	(Am.	L.	Inst.	1982)) (holding	

that	a mother	and	daughter	were	not	in	privity	when	 the	mother	settled	her	

paternity	action	against	a	prospective	father	because	that	settlement	could	be	

“contrary	 to	 the	 interests	 of	 her child”).	 	 But	 cf.	 Guziejka	 v. Desgranges,	

 5		The	case	caption	for	the	first order	states	that	Doe	appears	“individually	and	on	behalf	of”	her	

oldest	child.		The	second	order’s	caption	reads	only	that	Doe	appears	“on	behalf	of”	the	two	younger	

children.		The docket	entries	 for	 the	 first	complaint	 for	protection	 from	abuse do include	 the	 two	

younger	children	as	parties	up	until	the	final	hearing	date, but the	only	parties	listed	in	the	docket	

entry	for	the	first	order,	and	on	the	order	itself,	are	Doe,	her	oldest	child,	and	Forino.
8

571 A.2d 32,	34	(R.I.	1990)	(concluding	that	the	divergent	interests	between	a	

mother	 and	 daughter	 blurred	 when	 the	 mother’s	 paternity	 suit	 was	 fully	

litigated,	 therefore	establishing	privity).		Forino	cannot	convincingly	contend

that	the	two	younger	children’s	interests in	being	protected	from	abuse	were	

sufficiently	intertwined	with	Doe’s	interest	in being	protected	from	abuse	such	

that	the	children’s	interests	were	in	privity	with	Doe’s, given	that	he	and	Doe	

agreed	to	sever	the	younger	children’s	interests	from	the	proceedings	on	the	

first	 complaint	 and	to	 exclude	 them	 from	 that order.	 	 See	Comeau,	 663 A.2d

at 48.

[¶12]		Because	 the two	younger children	were	no	longer	parties	 to	 the	

case as	of	the	entry	of the	first	final	order and	were	not	in	privity	with Doe	and	

the	oldest	child,	Forino	fails	to	meet	his	burden	on	the	first	prong	of	the	claim	

preclusion	 analysis, and	 the	 court therefore correctly	 denied	 his	 motion	 to	

dismiss.

III.		CONCLUSION

[¶13]	 	We have	 cautioned	 against	 a	 strict and	 sweeping application	 of	

res judicata	 principles in	 cases	involving	 children.	 	 See,	 e.g.,	In	 re	 Children of	

Melissa F.,	 2018	 ME	 110,	 ¶	 7,	 191 A.3d 348	 (echoing	 that	 courts	 should	 be	

cautious in	applying	res	judicata	to	termination	of	parental	rights	proceedings);	
9

In	 re	 Children of	 Bethmarie	 R.,	 2018 ME	 96,	 ¶	 15,	 189	 A.3d	 252 (jeopardy	

proceedings);	Pearson	v.	Wendell,	2015 ME 136, ¶ 24,	125	A.3d	1149	(parental	

rights	and	responsibilities proceedings);	Guardianship	of	Jewel	M.,	2010	ME	80,	

¶	 41,	 2	 A.3d	 301 (guardianship	 proceedings).	 In	 Jewel	 M. we	 said that

“[p]rinciples	of	res	judicata	must	be applied	with	caution	in	domestic	relations	

cases, as	new	developments	often	inform	decisions	as	 to	what	may	be	in	 the	

best	interest	of	a	child.”		Id.

6

[¶14]		This	case	illustrates	the	need	for	such	caution.		It	can	be	inferred	

that	 Doe	 agreed	 to	 the	 exclusion	 of	 the	 two	 younger	 children	 from	 the	 first	

order	 at	 least	 in	 part	 because	 the	 no-contact	 condition	 in	 Forino’s	 bail	

conditions	at	the	time	obviated	the	need	for	a	separate	order	of	protection	from	

abuse	regarding	the	children.		Thus,	the	subsequent change	in	bail	conditions	

changed	 the dynamic	 among the	 children,	 Doe,	 and	 Forino.	 	 If	 Doe’s	 first	

complaint	had	been	litigated	on	its	merits	as	to	Doe	individually	and	on	behalf	

of	all three	children,	our	view	might	be	different.		See In	re	M.M.,	2014	ME	15,	

¶ 18,	 86	 A.3d	 622 (holding	that	 relitigation	 of a previously	 alleged claim	 of	

 6		A	child	protection	statute	implements	this	principle	in	providing	that	a	court	must	consider	and	

act	on	a	child	protection	petition	“regardless	of	other	decrees	regarding	a	child’s	care	and	custody.”		

See 22	M.R.S.	§	4031(3)	(2020); In	re	Robin	T.,	651 A.2d	337,	339	(Me.	1994)	(holding	that	res	judicata	

and	issue	preclusion	were	not	applicable	in	a	child	protection	case).
10

abuse	 was	 barred	 by	 res	 judicata	 because	 the	 validity	 of	 the	 plaintiff’s	

allegations	had	been	fully	adjudicated	and	resolved	in	prior	hearings).

[¶15]		Given	frequently	changing	family	circumstances and	the	summary	

nature	of	the	procedure	on	complaints	for	protection	from	abuse, the	need	for	

caution	in	applying	res	judicata	is	as	compelling	in	cases	regarding	protection	

from	abuse	as	it	is	in	divorce,	child	protective, and	other	case	types	in	which	the	

care	and	custody	of	children	is determined.		In	addition,	res	judicata	should	not	

be	applied	in	a	manner	that	either	discourages	agreements	in	these	often	highly	

charged	cases	or	that creates	a	trap	for	the	parties,	many	of	them	pro	se,	who	

enter	into	such	agreements.

The	entry	is:

Judgment	affirmed.

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

Pat	Doe	did	not	file	a	brief

Presque	Isle	District	Court	docket	number	PA-2020-04

FOR	CLERK	REFERENCE	ONLY