MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2019	ME	27	
Docket:	      Wal-18-197	
Submitted	 	
  On	Briefs:	 November	28,	2018	
Decided:	     February	21,	2019	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   JACOB	BERRY	
                                         	
                                        v.	
                                         	
                               MAINESTREAM	FINANCE	
	
	
HJELM,	J.	

       [¶1]		This	case	involves	the	fate	of	a	race	car	that	may—or	may	not—be	

the	 one	 called	 “Outlaw.”	 	 Jacob	 Berry	 appeals	 from	 a	 summary	 judgment	

entered	in	the	District	Court	(Belfast,	Worth,	J.)	in	favor	of	MaineStream	Finance	

on	Berry’s	complaint	seeking	the	return	of	a	2016	Chevrolet	Camaro.		The	court	

based	the	judgment	on	the	implicit	conclusion	that	Berry’s	claim	is	barred	by	

the	res	judicata	effect	of	a	judgment	in	a	2016	action	between	MaineStream	and	

Berry’s	uncle,	Dwight	M.	Moody,	Jr.,	in	which	the	court	determined	that	Outlaw	

was	owned	by	Moody	and	not	Berry.		Because,	however,	the	summary	judgment	

record	does	not	establish	that	Outlaw	is	the	same	vehicle	as	the	one	that	is	at	

issue	here,	we	vacate	the	judgment.	
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                                         I.		BACKGROUND	

         [¶2]	 	 The	 following	 facts	 are	 taken	 from	 MaineStream’s	 statement	 of	

material	 facts,	 which	 we	 view	 in	 the	 light	 most	 favorable	 to	 Berry	 as	 the	

nonprevailing	 party	 and	 which,	 in	 any	 event,	 are	 undisputed	 because	 Berry	

admitted	each	of	MaineStream’s	factual	statements	and	presented	none	of	his	

own.		See	M.R.	Civ.	P.	56(h);	Avis	Rent	a	Car	Sys.,	LLC	v.	Burrill,	2018	ME	81,	¶	2,	

187	A.3d	583.			

         [¶3]		In	2016,	MaineStream	filed	an	action	against	Moody	to	repossess	

two	race	cars	that	Moody	had	pledged	as	collateral	in	 a	security	 agreement.1		

Prior	 to	 the	 hearing	 on	 the	 complaint,	 MaineStream	 seized	 one	 of	 the	 race	

cars—“Outlaw”—from	 Moody’s	 property.	 	 At	 the	 hearing,	 Moody	 disputed	

MaineStream’s	claim	that	it	was	entitled	to	repossess	Outlaw	because,	Moody	

contended,	it	was	not	one	of	the	two	vehicles	pledged	in	the	security	agreement	

and	because	the	car	was	actually	owned	by	Berry.		Berry	was	not	a	party	to	the	

action	 but	 testified	 at	 the	 hearing	 that	 he	 owned	 the	 car	 in	 MaineStream’s	

possession	and	that	it	never	belonged	to	Moody.		After	hearing	the	evidence,	




     1		MaineStream	also	named	another	person	as	a	co-defendant	in	that	case,	but	the	co-defendant	

was	 never	 served	 with	 process,	 and	 the	 action	 proceeded	 against	 Moody	 alone	 based	 on	 the	
understanding	 that	 Moody	 had	 sole	 possession	 of	 the	 race	 cars	 in	 which	 MaineStream	 claimed	 a	
security	interest.			
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the	 court	 found	 that	 Moody	 was	 the	 owner	 of	 Outlaw	 and	 entered	 a	 final	

judgment.	 	 MaineStream’s	 Rule	 56(h)	 submission	 filed	 in	 this	 case	 does	 not	

contain	any	assertion	that	identifies	the	party	for	whom	judgment	was	entered	

or	the	nature	of	any	relief	granted,	and	the	record	on	summary	judgment	does	

not	provide	any	identifying	or	descriptive	information	about	Outlaw	other	than	

its	name.			

      [¶4]	 	 In	 March	 of	 2017,	 Berry	 brought	 the	 present	 action	 against	

MaineStream	to	recover	personal	property.		See	14	M.R.S.	§	7071(1)	(2018).		In	

his	 complaint,	 Berry	 alleged	 that	 MaineStream,	 in	 attempting	 to	 enforce	 its	

security	 agreement	 with	 Moody,	 had	 seized	 a	 2016	 Chevrolet	 Camaro	 that	

Berry	 owns	 but	 that	 the	 seizure	 was	 wrongful	 because	 MaineStream	

“misidentified	 [Berry’s]	 vehicle	 and	 took	 possession	 of	 his	 vehicle	 in	 error.”		

Berry	 went	 on	 to	 allege	 that	 the	 two	 vehicles	 in	 which	 Moody	 granted	

MaineStream	a	security	interest	were	2012	and	2013	Chevrolet	Impalas.			

      [¶5]	 	 In	 January	 of	 2018,	 MaineStream	 filed	 a	 motion	 for	 summary	

judgment	based	on	an	assertion	that,	in	the	2016	action,	the	court	determined	

that	 Moody	 owns	 the	 car	 and	 that,	 pursuant	 to	 the	 doctrine	 of	 res	 judicata,	

Berry	 is	 barred	 from	 seeking	 relief	 here.	 	 The	 court	 granted	 MaineStream’s	

motion	in	a	very	brief	order	that	stated	only	that	the	motion	was	granted	and	
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that	 judgment	 was	 entered	 against	 Berry.	 	 Berry	 filed	 a	 timely	 appeal	 to	 us.		

See	14	M.R.S.	§	1901	(2018);	M.R.	App.	P.	2B(c)(1).			

                                   II.		DISCUSSION	

      [¶6]	 	 We	 review	 a	 grant	 of	 summary	 judgment	 de	 novo	 “and	 consider	

both	the	evidence	and	any	reasonable	inferences	that	the	evidence	produces	in	

the	light	most	favorable	to	the	party	against	whom	the	summary	judgment	has	

been	granted.”		Canney	v.	Strathglass	Holdings,	LLC,	2017	ME	64,	¶	10,	159	A.3d	

330	(quotation	marks	omitted).		Summary	judgment	is	appropriate	only	“when	

the	parties’	statements	of	material	facts	and	the	portions	of	the	record	referred	

to	therein	disclose	no	genuine	issues	of	material	fact	and	reveal	that	one	party	

is	entitled	to	judgment	as	a	matter	of	law.”		Id.;	see	M.R.	Civ.	P.	56(c).			

      [¶7]		As	a	central	tenet	of	summary	judgment	motion	practice,	“[f]acts	not	

set	forth	in	the	statement	of	material	facts	are	not	in	the	summary	judgment	

record,	 even	 if	 the	 fact	 in	 question	 can	 be	 gleaned	 from	 affidavits	 or	 other	

documents	 attached	 to,	 and	 even	 referred	 to	 in	 portions	 of,	 a	 statement	 of	

material	fact.”		HSBC	Bank	USA,	N.A.	v.	Gabay,	2011	ME	101, ¶	22,	28	A.3d	1158	

(alteration	and	quotation	marks	omitted).			

      [¶8]		MaineStream’s	summary	judgment	motion	is	predicated	on	the	two	

aspects	of	the	doctrine	of	res	judicata.		The	first	is	collateral	estoppel,	or	issue	
                                                                                      5	

preclusion,	which	is	the	fact-focused	branch	of	res	judicata	that	“prevents	the	

relitigation	of	issues	already	decided	if	the	identical	issue	was	determined	by	a	

prior	 final	 judgment,	 and	 the	 party	 estopped	 had	 a	 fair	 opportunity	 and	

incentive	to	litigate	the	issue	in	a	prior	proceeding.”		Town	of	Mount	Vernon	v.	

Landherr,	2018	ME	105,	¶	15,	190	A.3d	249	(quotation	marks	omitted).		Based	

on	 this	 doctrine,	 MaineStream	 asserts	 that	 the	 2016	 judgment	 collaterally	

estops	Berry	from	asserting	an	essential	element	of	his	cause	of	action,	namely,	

that	 he	 has	 an	 ownership	 interest	 in	 the	 vehicle	 that	 he	 claims	 MaineStream	

wrongfully	 repossessed.	 	 See	 14	 M.R.S.	 §	 7071(1).	 	 MaineStream	 also	 asserts	

that	 Berry’s	 action	 is	 barred	 by	 the	 other	 aspect	 of	 res	 judicata—claim	

preclusion.	 	 Claim	 preclusion	 forecloses	 relitigation	 of	 claims	 only	 when	

“(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.”	 	 Pushard	 v.	 Bank	 of	 Am.,	 N.A.,	 2017	ME	 230,	 ¶	20,	 175	 A.3d	 103	

(quotation	marks	omitted).		MaineStream	contends	that	the	present	action	is	

barred	because	MaineStream’s	claim	in	the	2016	proceeding	encompassed	the	

question	of	who	owned	the	race	car	that	Berry	seeks	to	recover	here.		
6	

        [¶9]		Although	the	parties	have	focused	their	presentations	on	whether	

the	 judgment	 operates	 to	 bind	 Berry	 even	 though	 he	 was	 not	 a	 party	 to	 the	

2016	proceeding,2	the	judgment	entered	in	that	case	does	not	bar	his	claim	for	

a	simpler	reason—the	record	on	summary	judgment	does	not	establish	that	in	

the	2016	matter	the	court	determined	the	ownership	of	the	vehicle	Berry	now	

claims	to	own	or	that	ownership	of	that	vehicle	was	even	at	issue	then.			

        [¶10]		To	be	entitled	to	a	summary	 judgment	that	is	 predicated	on	the	

principle	 of	 collateral	 estoppel,	 MaineStream	 must	 indisputably	 establish,	

among	 other	 things,	 that	 the	 vehicle	 Berry	 now	 claims	 to	 own	 is	 the	 same	

vehicle	 that,	 in	 2016,	 the	 court	 determined	 was	 owned	 not	 by	 Berry,	 but	 by	

Moody.		To	be	entitled	to	summary	judgment	predicated	on	the	other	form	of	

res	 judicata—claim	 preclusion—MaineStream	 must	 indisputably	 establish,	

among	other	things,	that	the	ownership	of	the	2016	Camaro	that	Berry	claims	

to	own	in	this	case	was	a	matter	that	was	or	could	have	been	litigated	in	the	

2016	proceeding.			




   2		MaineStream	contends	that	the	2016	judgment	bars	Berry	from	pursuing	the	claim	here	either	

because	 he	 and	 Moody	 were	 in	 privity	 during	 the	 2016	 proceeding	 or	 because	 Berry	 could	 have	
become	a	party	by	seeking	to	intervene	on	the	basis	that	his	ownership	claim	was	in	the	balance.		We	
do	not	reach	these	contentions	because,	on	this	record,	MaineStream’s	assertion	of	res	judicata	fails	
for	the	separate	reason	addressed	in	the	text.	
                                                                                                                7	

        [¶11]	 	 MaineStream’s	 statement	 of	 material	 facts	 falls	 well	 short	 of	

establishing	 that	 the	 car	 Berry	 claims	 here	 is	 either	 Outlaw	 or	 one	 of	 the	

vehicles	 that	 MaineStream	 sought	 to	 repossess	 in	 the	 2016	 action.		

MaineStream’s	 statement	 of	 material	 facts	 describes	 the	 vehicle	 whose	

ownership	was	adjudicated	in	the	2016	case	only	as	“Outlaw,”	and	the	vehicle	

that	 Berry	 seeks	 to	 recover	 from	 MaineStream	 in	 this	 action	 only	 as	 a	

“2016	Chevrolet	 Camaro.”3	 	 Nothing	 in	 this	 record	 establishes	 that	 the	

2016	Camaro	 at	 issue	 here	 is	 Outlaw.4	 	 Further,	 MaineStream’s	 statement	 of	

material	facts	does	not	establish	that	the	2016	Camaro	is	one	of	the	vehicles	in	

which	MaineStream	had	a	security	interest	and	thereby	sought	to	repossess	in	

the	2016	case.			

        [¶12]	 	 Because	 MaineStream	 has	 not	 established	 through	 its	 summary	

judgment	submissions	that	Berry’s	claim	of	ownership	of	the	2016	Camaro	was	




   3		Berry’s	complaint	describes	the	car	in	the	same	way.			


   4	 	 Even	 if	 we	 were	 to	 delve	 into	 the	 judgment	 that	 is	 referenced—but	 not	 described—in	 the	

statement	 of	 material	 facts,	 MaineStream	 would	 not	 benefit	 because	 the	 judgment	 grants	
MaineStream	the	right	to	possession	of	a	2012	and	a	2013	Chevrolet	Impala,	not	a	2016	Camaro.		
Further,	although	MaineStream	also	referenced	the	transcript	of	the	hearing	in	the	2016	case,	only	
scattered	portions	of	that	transcript	were	submitted	in	support	of	the	summary	judgment	motion,	
and	 those	 portions	 of	 the	 transcript,	 particularly	 in	 light	 of	the	 nature	 of	 the	 presentations	 at	the	
hearing,	cannot	be	confidently	read	to	support	the	conclusion	that	Outlaw	is	the	subject	of	this	action.			
8	

or	might	have	been	adjudicated	in	the	2016	proceeding,	we	vacate	the	summary	

judgment	and	remand	for	the	case	to	proceed	to	trial.					

         The	entry	is:	

                            Judgment	 vacated.	 	 Remanded	 for	 further	
                            proceedings	consistent	with	this	opinion.		
	
	     	     	      	       	     	
	
Aaron	Fethke,	Esq.,	Fethke	Law	Offices,	Searsport,	for	appellant	Jacob	Berry	
	
Ryan	 P.	 Dumais,	 Esq.,	 Eaton	 Peabody,	 Brunswick,	 for	 appellee	 MaineStream	
Finance	
	
	
Belfast	District	Court	docket	number	SA-2017-30	
FOR	CLERK	REFERENCE	ONLY	
