MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2026 ME 44 Docket: Oxf-25-134 Argued: December 11, 2025 Decided: May 19, 2026
Panel: STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, DOUGLAS, and LIPEZ, JJ.
CARISSA DANIELS
v.
PATRICK R. O’BRIEN et al.
STANFILL, C.J.
[¶1] Patrick R. O’Brien and Linda S. Labas (collectively, O’Brien) appeal
from a judgment of the Superior Court (Oxford County, Woodman, J.) granting
Carissa Daniels’s motion to dismiss her complaint with prejudice. O’Brien
objected to the dismissal and asked the court to require Daniels to continue
litigating her claim so that O’Brien could establish a claim of wrongful use of
civil process against her. Because the court did not abuse its discretion by
dismissing the complaint, we affirm.
I. BACKGROUND
[¶2] In August 2023, Daniels filed a complaint against O’Brien alleging
that he had committed timber trespass by cutting trees and bushes on her
property. See 14 M.R.S. § 7552 (2026). O’Brien tendered the defense to his 2
homeowner’s insurance company, MMG Insurance Co. (MMG). Although
originally MMG assumed the defense with a reservation of rights, MMG
withdrew the reservation and reached a settlement agreement with Daniels.
O’Brien objected to the settlement. As part of the settlement, Daniels moved to
dismiss her complaint with prejudice and MMG (anticipating O’Brien’s
objection to the dismissal) moved to intervene in the action, arguing in favor of
Daniels’s motion to dismiss. O’Brien moved to retain the matter on the docket,
arguing that he should be entitled to his day in court to present his defenses to
Daniels’s claim. In August 2024, the court held a nontestimonial hearing and
heard the parties’ arguments.
[¶3] In February 2025, the court granted Daniels’s motion to dismiss her
complaint with prejudice. O’Brien made a motion for further findings of fact
and conclusions of law, which the court denied. See M.R. Civ. P. 52(b). O’Brien
timely appealed. See M.R. App. P. 2B(c)(2).
II. DISCUSSION
[¶4] O’Brien advances several arguments on appeal contesting the
dismissal and MMG’s ability, under the language of his insurance policy and
contract law, to settle the claims against him over his objection. 3
[¶5] O’Brien argues that the court erred procedurally by not taking
testimony at the August 2024 hearing and by denying his motion for further
findings of fact, see M.R. Civ. P. 52(b). O’Brien failed to raise in the trial court
the due process argument he now makes on appeal; therefore, we review for
obvious error only. In re Children of Destiny H., 2024 ME 66, ¶ 18, 332 A.3d
1183. Despite O’Brien’s claim, there was no error, much less obvious error, in
the court’s refusal to take testimony. See Concord Gen. Mut. Ins. Co.
v. N. Assurance Co., 603 A.2d 470, 472 (Me. 1992) (“The court has the discretion
to receive evidence on motions by affidavit, deposition, or oral testimony.”);
M.R. Civ. P. 43(e). Additionally, because the court did not take evidence, it had
no obligation to make findings of fact, so its denial of O’Brien’s Rule 52 motion
was appropriate. In re Children of Kacee S., 2021 ME 36, ¶ 10 n.4, 253 A.3d 1063.
[¶6] O’Brien argues that MMG did not have the contractual power to
settle despite O’Brien’s objection. Absent any pending claim by O’Brien against
MMG, however, the question whether MMG was authorized to settle Daniels’s
claims was not properly before the court. Instead, the issue is whether the trial
court abused its discretion in dismissing the action.
[¶7] Under M.R. Civ. P. 41(a)(2), after service of an answer or the filing
of a motion for summary judgment, “an action shall not be dismissed at the 4
plaintiff’s instance save upon order of the court and upon such terms and
conditions as the court deems proper,” unless the parties stipulate to dismissal.
The dismissal by court order may be with or without prejudice. M.R.
Civ. P. 41(a)(2). In applying Rule 41(a)(2) in other contexts, we have reviewed
the trial court’s actions for an abuse of discretion. See U.S. Bank Nat. Ass’n v.
Curit, 2016 ME 17, ¶ 10, 131 A.3d 903 (“Ordinarily, we review a court’s
dismissal of an action with prejudice for abuse of discretion.”); Green Tree
Servicing, LLC v. Cope, 2017 ME 68, ¶ 12, 158 A.3d 931; Doe v. Hills-Pettitt, 2020
ME 140, ¶ 8, 243 A.3d 461. In evaluating whether a court abused its discretion,
we consider “(1) whether the court’s factual findings are supported by the
record according to the clear error standard, (2) whether the court understood
the law applicable to the exercise of its discretion, and (3) whether the court’s
weighing of the applicable facts and choices was within the bounds of
reasonableness.” Green Tree Servicing, 2017 ME 68, ¶ 12, 158 A.3d 931
(quotation marks omitted). There are no factual findings here, and thus the
issues are whether the court understood the applicable law and whether it
weighed the choices reasonably. Id.
[¶8] Typically, cases involving voluntary dismissals focus on the choice
whether the dismissal should be with or without prejudice, which may turn on 5
the motivation of the plaintiff or the consequences to the defendant if the
dismissal is without prejudice. See, e.g., TD Banknorth, N.A. v. Hawkins, 2010 ME
104, ¶ 23, 5 A.3d 1042. Before 1989, a plaintiff had the right to dismiss the
complaint without court approval until the eve of trial. See Hall v. Norton, 549
A.2d 372, 374-75 (Me. 1988); M.R. Civ. P. 41(a) (West 1988) (“[A]n action may
be dismissed by the plaintiff without order of court (i) by filing a notice of
dismissal at any time before commencement of trial of the
action . . . .” (emphasis added)). Since 1989, we have required a court to
determine whether a voluntary dismissal should be with prejudice to avoid any
“tactical ability to impose expense and delay on other parties or avoid rule- or
court-imposed deadlines by dismissal after extensive pretrial proceedings have
taken place.” M.R. Civ. P. 41 Advisory Committee’s Notes 1989. Considerations
may include the plaintiff’s bad faith. Hawkins, 2010 ME 104, ¶ 23, 5 A.3d 1042.
Consideration of prejudice to the defendant is generally limited to “plain legal
prejudice as a result of a dismissal without prejudice, as opposed to facing the
mere prospect of a second lawsuit.” Doe v. Urohealth Sys., Inc., 216 F.3d 157,
160–61 (1st Cir. 2000) (quotation marks omitted.)
[¶9] The crux of O’Brien’s grievance is that he will not be able to pursue
a claim for wrongful use of civil process against Daniels because her claim has 6
been dismissed. O’Brien argues that the dismissal is not favorable to him,
extinguishing his potential claim. 1
[¶10] “[F]orcing plaintiffs to litigate a case against their will poses all
manner of practical problems, especially where parties have settled. . . . It
remains good sense and good law that plaintiffs, like defendants, should be able
to refuse to offer evidence in support of their claims and likewise suffer the
consequences of their decision.” Pedreira v. Sunrise Children’s Servs., Inc.,
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2026 ME 44 Docket: Oxf-25-134 Argued: December 11, 2025 Decided: May 19, 2026
Panel: STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, DOUGLAS, and LIPEZ, JJ.
CARISSA DANIELS
v.
PATRICK R. O’BRIEN et al.
STANFILL, C.J.
[¶1] Patrick R. O’Brien and Linda S. Labas (collectively, O’Brien) appeal
from a judgment of the Superior Court (Oxford County, Woodman, J.) granting
Carissa Daniels’s motion to dismiss her complaint with prejudice. O’Brien
objected to the dismissal and asked the court to require Daniels to continue
litigating her claim so that O’Brien could establish a claim of wrongful use of
civil process against her. Because the court did not abuse its discretion by
dismissing the complaint, we affirm.
I. BACKGROUND
[¶2] In August 2023, Daniels filed a complaint against O’Brien alleging
that he had committed timber trespass by cutting trees and bushes on her
property. See 14 M.R.S. § 7552 (2026). O’Brien tendered the defense to his 2
homeowner’s insurance company, MMG Insurance Co. (MMG). Although
originally MMG assumed the defense with a reservation of rights, MMG
withdrew the reservation and reached a settlement agreement with Daniels.
O’Brien objected to the settlement. As part of the settlement, Daniels moved to
dismiss her complaint with prejudice and MMG (anticipating O’Brien’s
objection to the dismissal) moved to intervene in the action, arguing in favor of
Daniels’s motion to dismiss. O’Brien moved to retain the matter on the docket,
arguing that he should be entitled to his day in court to present his defenses to
Daniels’s claim. In August 2024, the court held a nontestimonial hearing and
heard the parties’ arguments.
[¶3] In February 2025, the court granted Daniels’s motion to dismiss her
complaint with prejudice. O’Brien made a motion for further findings of fact
and conclusions of law, which the court denied. See M.R. Civ. P. 52(b). O’Brien
timely appealed. See M.R. App. P. 2B(c)(2).
II. DISCUSSION
[¶4] O’Brien advances several arguments on appeal contesting the
dismissal and MMG’s ability, under the language of his insurance policy and
contract law, to settle the claims against him over his objection. 3
[¶5] O’Brien argues that the court erred procedurally by not taking
testimony at the August 2024 hearing and by denying his motion for further
findings of fact, see M.R. Civ. P. 52(b). O’Brien failed to raise in the trial court
the due process argument he now makes on appeal; therefore, we review for
obvious error only. In re Children of Destiny H., 2024 ME 66, ¶ 18, 332 A.3d
1183. Despite O’Brien’s claim, there was no error, much less obvious error, in
the court’s refusal to take testimony. See Concord Gen. Mut. Ins. Co.
v. N. Assurance Co., 603 A.2d 470, 472 (Me. 1992) (“The court has the discretion
to receive evidence on motions by affidavit, deposition, or oral testimony.”);
M.R. Civ. P. 43(e). Additionally, because the court did not take evidence, it had
no obligation to make findings of fact, so its denial of O’Brien’s Rule 52 motion
was appropriate. In re Children of Kacee S., 2021 ME 36, ¶ 10 n.4, 253 A.3d 1063.
[¶6] O’Brien argues that MMG did not have the contractual power to
settle despite O’Brien’s objection. Absent any pending claim by O’Brien against
MMG, however, the question whether MMG was authorized to settle Daniels’s
claims was not properly before the court. Instead, the issue is whether the trial
court abused its discretion in dismissing the action.
[¶7] Under M.R. Civ. P. 41(a)(2), after service of an answer or the filing
of a motion for summary judgment, “an action shall not be dismissed at the 4
plaintiff’s instance save upon order of the court and upon such terms and
conditions as the court deems proper,” unless the parties stipulate to dismissal.
The dismissal by court order may be with or without prejudice. M.R.
Civ. P. 41(a)(2). In applying Rule 41(a)(2) in other contexts, we have reviewed
the trial court’s actions for an abuse of discretion. See U.S. Bank Nat. Ass’n v.
Curit, 2016 ME 17, ¶ 10, 131 A.3d 903 (“Ordinarily, we review a court’s
dismissal of an action with prejudice for abuse of discretion.”); Green Tree
Servicing, LLC v. Cope, 2017 ME 68, ¶ 12, 158 A.3d 931; Doe v. Hills-Pettitt, 2020
ME 140, ¶ 8, 243 A.3d 461. In evaluating whether a court abused its discretion,
we consider “(1) whether the court’s factual findings are supported by the
record according to the clear error standard, (2) whether the court understood
the law applicable to the exercise of its discretion, and (3) whether the court’s
weighing of the applicable facts and choices was within the bounds of
reasonableness.” Green Tree Servicing, 2017 ME 68, ¶ 12, 158 A.3d 931
(quotation marks omitted). There are no factual findings here, and thus the
issues are whether the court understood the applicable law and whether it
weighed the choices reasonably. Id.
[¶8] Typically, cases involving voluntary dismissals focus on the choice
whether the dismissal should be with or without prejudice, which may turn on 5
the motivation of the plaintiff or the consequences to the defendant if the
dismissal is without prejudice. See, e.g., TD Banknorth, N.A. v. Hawkins, 2010 ME
104, ¶ 23, 5 A.3d 1042. Before 1989, a plaintiff had the right to dismiss the
complaint without court approval until the eve of trial. See Hall v. Norton, 549
A.2d 372, 374-75 (Me. 1988); M.R. Civ. P. 41(a) (West 1988) (“[A]n action may
be dismissed by the plaintiff without order of court (i) by filing a notice of
dismissal at any time before commencement of trial of the
action . . . .” (emphasis added)). Since 1989, we have required a court to
determine whether a voluntary dismissal should be with prejudice to avoid any
“tactical ability to impose expense and delay on other parties or avoid rule- or
court-imposed deadlines by dismissal after extensive pretrial proceedings have
taken place.” M.R. Civ. P. 41 Advisory Committee’s Notes 1989. Considerations
may include the plaintiff’s bad faith. Hawkins, 2010 ME 104, ¶ 23, 5 A.3d 1042.
Consideration of prejudice to the defendant is generally limited to “plain legal
prejudice as a result of a dismissal without prejudice, as opposed to facing the
mere prospect of a second lawsuit.” Doe v. Urohealth Sys., Inc., 216 F.3d 157,
160–61 (1st Cir. 2000) (quotation marks omitted.)
[¶9] The crux of O’Brien’s grievance is that he will not be able to pursue
a claim for wrongful use of civil process against Daniels because her claim has 6
been dismissed. O’Brien argues that the dismissal is not favorable to him,
extinguishing his potential claim. 1
[¶10] “[F]orcing plaintiffs to litigate a case against their will poses all
manner of practical problems, especially where parties have settled. . . . It
remains good sense and good law that plaintiffs, like defendants, should be able
to refuse to offer evidence in support of their claims and likewise suffer the
consequences of their decision.” Pedreira v. Sunrise Children’s Servs., Inc.,
79 F.4th 741, 752 (6th Cir. 2023) (alterations, citation, and quotation marks
omitted). Indeed, the tort of wrongful use of civil process would require
O’Brien to prove that Daniels “initiate[d], continue[d], or procure[d] civil
proceedings without probable cause . . . with a primary purpose other than that
of securing the proper adjudication of the claim upon which the proceedings
are based.” Leighton v. Lowenburg, 2023 ME 14, ¶ 19, 290 A.3d 68. It is hard to
imagine why the defendant should be able to force the plaintiff to continue an
action that she does not wish to continue for the sole purpose of establishing
an alleged tort she apparently does not wish to commit.
1 The tort of wrongful use of civil process requires that the plaintiff prove that previous proceedings against the plaintiff terminated in the plaintiff’s favor. Leighton v. Lowenburg, 2023 ME 14, ¶ 19, 290 A.3d 68. 7
[¶11] We note that the court did not hold an evidentiary hearing to
support its findings that the settlement was reasonable and that MMG acted in
good faith. Those findings, however, should not have been made. There was no
issue before the court regarding MMG’s reasonableness or good faith because
there was no claim against MMG. Thus, the merits of the settlement are not
relevant to the court’s exercise of its discretion. It was unnecessary for the
court to resolve any conflict between O’Brien and MMG. 2
[¶12] In short, the only purpose in denying the motion to dismiss and
continuing the action would be to try to force the establishment of an element
of a claim of wrongful use of civil process. It was solidly within the court’s
discretion to dismiss the complaint with prejudice.
The entry is:
Judgment affirmed.
2 The merits of any claim by O’Brien against MMG would necessarily depend on the language of the insurance policy. See 14A Jordan R. Plitt et al., Couch on Insurance § 203:45 (3d ed.), Westlaw (database updated Dec. 2025) (“[W]here an insurance policy grants to the insurer the right and duty to defend any claim or suit for covered injury or damage, including claims and suits that are groundless, false, or fraudulent and the right to settle any claim or suit within the available limits of coverage, the insurer need not obtain the insureds’ consent prior to settling with a third party even if it leads to the loss of the insureds’ potential claim for malicious prosecution.”). 8
Jens-Peter W. Bergen, Esq. (orally), Law Office of Jens W. Bergen, Kennebunk, for appellant Patrick O’Brien and Linda S. Labas
Nelson J. Larkins, Esq. (orally), PretiFlaherty, Portland, for appellee Carissa Daniels
Matthew T. Mehalic, Esq. (orally), Norman Hanson & DeTroy, LLC, Portland, for appellee MMG Insurance Company
Oxford County Superior Court docket number RE-2023-20 FOR CLERK REFERENCE ONLY