Myers v. Walsh

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SUPERIOR COURT CIVIL ACTION DOCKET NO.: STATE OF MAINE PENOBSCOT. ss. r j , % , r 2 ,Y U J - ($ hab.\65 1 1 / 21,; 1 DOUGLAS M. MYERS, and SUE ELLEN ) F. MYERS, CO-TRUSTEES U/A/D 1 MAY 7, 1997, 1 DONA^^.^ fiA U B R E ~ ~ ' , a m LA! ) Plaintiffs/Counterclaim Defendants ) 1 ) JOSEPH P. WALSH and ELIZABETH R. WALSH, ORDER ON MOTION T 1 ) SUPER10R COURT ) NOV 2 1 2006 ) Defendants/Counterclaim Plaintiffs ) 1 ~ENOBSCOT COUNTY Defendants Joseph P. Walsh and Elizabeth R. Walsh move to d ~ s m ~all counts ss plaintiffs' complain< which alleges that defendants do not have a right of way over and to the southerly boundary of plaintiffs' property. Plaintiffs also seek injunctive relief preventing defendants' further use of the right of way, as well as damages for trespass over the right of way. This claim was made in an earlier action in this court. John Wilson, et al. v. Land M. Use Regulation Commission and Dou~las Myers. et al. v. Michael W. Deschenes, et al. (Pen. Cty AP-04-006). This Court found "Count IV - The right-of-way over lots ;her than Lot 13 was not extinguished by later deeds or conveyances." Decision and Judgment, filed and entered October 19,2004, In re: John Wilson, et al. v. Land Use Regulation Commission and Douglas M. Mvers. et al. v. Michael W. Deschenes, et al. (Pen. Cty. AP-04-006). Plaintiffs then filed a Motion to Reconsider Count IV on November 15, 2004, which motion was denied. Decision and Judgment, Filed and Entered December 23, 2004, In re: John Wilson, et al. v. Land Use Regulation Commission and Douglas M. Myers, et al. v. Michael W. Deschenes, et al. (Pen. Cty AP-04-006). Plaintiffs then filed a Motion for Certification on January 5,2005, seeking an entry of final judgment on various counts of their appeal, including Count IV and this court granted that motion. Order, filed and entered January 18,2005, In re: John Wilson, et al. v. Land Use Regulation Commission and Douglas M. Myers, et al. v. Michael W. Deschenes, et al. (Pen. Cty. AP-04-006). Plaintiffs then appealed, inter alia, the Superior Court's decision on Count IV to the Maine Law Court. The Law Court affirmed the Superior Court's decision in Douglas I M. Mvers et al. v. Michael W. Deschenes, et al., Docket No. Pen-05-40 (Mem. Dec.) (September 29,2005). Plaintiffs also seek injunctive relief preventing Defendant Walsh's further use of the right of way (Count 11), as well as damages for trespass over the right of way (Count 111). These counts must also be dismissed because they are premised on the argument that defendants have no right of way over and to the southerly boundary of Plaintiff Myers' property (i.e., Lot No. 1). The prior action involved the same parties, was reduced to final judgment, and the same claims were either presented for decision in the earlier action or could have been joined. Camps NewfoundfOwatonna v. Town of Harrison, 705 A.2d 1109, 1115 (Me. 1998). Therefore, this action is barred by the doctrine of res judicata and must, therefore, be dismissed. The entry is: Motion to dismiss granted. All counts of Plaintiffs complaint are dismissed with prejudice. The Clerk may incorporate this Order upon the docket by reference. 11/30/2006 MAINE JUDICIAL INFORMATION SYSTEM ksmi t h mj x x i 0 4 8 PENOBSCOT COUNTY SUPERIOR COURT CASE PARTY ADDRESS BOOK DOUGLAS M MYERS ET AL VS JOSEPH P WALSH ET AL UTN:AOCSsr -2006-0087950 CASE #:BANSC-CV-2006-00165 ................................................................................ DOUGLAS M. MYERS ATTY KLIRTZ, THEODORE T e l # (207) 743-5921 ATTY ADDR:9 MARKET SQUARE P BOX J SOUTH PARIS M 04281 O E PL SUE E. MYERS ATTY KURTZ, THEODORE T e l # (207) 743-5921 O ATTY ADDR:9 MARKET SQUARE P BOX J SOUTH PARIS M 04281 E PL JOSEPH P. WALSH ATTY HLIBER, ROGER T e l # (207) 990-3314 ATTY ADDR:PO BOX 738 BANGOR M 04401-0738 E M=More, Space = E x i t : M S e l e c t t h e EXIT KEY f o r page s e l e c t i o n l i n e .

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