STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss. CIVIL ACTION DOCKET NO. AP-23-05
STATE OF MAINE,
Appellee
V. ORDER DENYING APPEAL
KATHLEEN O'CONNELL,
Appellant
The matter before the court is appellant Kathleen O'Connell's appeal of two District
Court orders in different animal welfare proceedings related to the seizure of cats from her
property.
Background
The following facts could have been found by the District Court.
The disputes between Ms. O'Connell and the State's Animal Welfare Program ("AWP")
go back several years. The first legal action occurred on November 5, 2019, when the A WP
executed a warrant and seized 82 of Ms. O'Connell's cats. The District Court (Dow, J), in a case
docketed at CV-19-448, ordered the A WP to return these cats on September 15, 2020, after
finding that Ms. 0' Connell had not violated permissible standards of care for the cats. The
District Court ordered the AWP to return the cats to Ms. O'Connell "as soon as it [could]
reasonably be arranged, consistent with the health and safety of the cats."
The AWP began the process of returning the cats with some expediency. On October 26,
2020, the State returned several cats, and many more on November 6. After November 6, the
A WP believed that it had returned all of the cats that it could return safely, as the nine cats that it
withheld were sick and required veterinary care. Ms. 0' Connell alleged, and continues to allege,
1 that the State actually withheld eighteen cats. The AWP refused to return the sick cats to Ms.
O'Connell before receiving a management plan from her with provisions for their care, which
Ms. O'Connell did not provide.
On June 7, 2021, Ms. O'Connell filed a Motion to Enforce in the case docketed at CV
19-448. Ms. O'Connell alleged that the AWP had failed to comply with the September 15 Order
by failing to return eighteen cats. The AWP opposed the motion, arguing that it had only
withheld nine cats, and that those nine sick cats had been withheld pursuant to the District
Court's instruction that the cats be returned to Ms. O'Connell "consistent with the health and
safety of the cats."
In January 2022, while the motion to enforce was pending, a complaint was made to the
AWP regarding the animal population maintained on Ms. O'Connell's property. On or about
January 10, 2022, while Ms. O'Connell and her father were in the hospital with COVID-19, Ms.
O'Connell's brother, Thomas O'Connell, Jr., entered the home at 222 Ridge Road, Wales, where
Ms. O'Connell lives. Mr. O'Connell was checldng for frozen pipes and to make sure there was
water in the tank for the furnace. Mr. 0' Connell testified before the District Court that he and his
wife observed the home to be in a state of"unkept squalor." When Mr. O'Connell entered the
home again four days later, he found dead cats in the home. This prompted Mr. 0 'Connell to call
animal control.
Ms. O'Connell was in the hospital for both of Mr. O'Connell's visits to the 222 Ridge
Road home. Ms. O'Connell later claimed that Mr. O'Connell's entry into the home was illegal,
but he testified that he had never needed permission to enter the home before, which belonged to
his father. Ms. O'Connell was discharged from the hospital on January 20, 2022.
2 Angela Rogers, a District Humane Agent for the A WP, applied for and was granted a
search wmrnnt for 222 Ridge Road, Wales, Maine, where Ms. O'Connell lives. The search
warrant was seeking "evidence of the crime of crnelty to animals, including but not limited to,
any live, dead or unborn animals which have been found to be deprived of necessary sustenance,
necessary medical care, proper shelter, protection from the weather and/or humanely clean
conditions ...."
The A WP executed the search warrant on January 28, 2022. The A WP sought and was
granted a second search wan-ant that authorized an extended search period from Febrnary 2 to
February 4, 2022. The AWP seized 111 cats during the search, 33 of which were found deceased.
In addition, the A WP seized 26 poultry.
On March 8, 2022, the A WP filed an Application for a Possession Order and Order to
Show Cause, pursuant to 17 M.R.S. § 1021 (3), which was docketed at CV-22-75. The District
Court consolidated the Application for a Possession Order (CV-22-75) and the Motion to
Enforce (CV-19-448). A consolidated hearing was held on April 13, April 26, and June 2, 2022.
The District Court heard the Motion to Enforce on the first day, and the Application for a
Possession Order on the other two days.
The District Court (Driscoll, J) granted the State's Application for a Possession Order,
finding that the animals in Ms. O'Connell's care "suffered from disease, dehydration, and
malnourishment, and were deprived of necessary medical attention and humanely clean
conditions." (Order~ 11.) While the District Court found that Ms. O'Connell is kind-hearted and
loves these cats, it also found that she "is in denial about the condition of scores of these animals
who suffered, and in many cases, died, in her care." (Id.~ 9.) The District Comt ruled that Ms.
0' Connell had failed to show cause why the animals should not be seized permanently or
3 disposed of humanely, as is required under 17 M.R.S. § 1021 (3). Accordingly, the District Court
ordered that the animals "are hereby forfeited and the applicant or other suitable person may take
possession and provide for the animals or order their sale, adoption or placement." (Id. at order.)
The District Coutt also ruled on Ms. O'Connell's Motion to Enforce on the same day,
granting it in part and denying it in part. The Dish-ict Court held that A WP wrongly interpreted
the prior order as giving it the authority to withhold the nine sick cats and ordered that they be
returned. At the same time, the District Court held that Ms. 0' Connell did not meet her burden of
proof to establish that nine other cats had been withheld. The District Coutt found the witnesses
for the State credible, which testified that all cats seized were returned except for the nine sick
cats in dispute.
Ms. O'Connell appealed both orders to the Superior Coutt.
Discussion
Ms. O'Connell raises many arguments in support of her appeal. The court addresses each
of the substantive arguments below, though not necessarily in the same order as Ms. O'Connell
presented them in her brief.
Res Judi cata
Ms. O'Connell's first substantive argument is that the District Court erred by ente1taining
the Application for a Possession Order, which she claims should have been barred by the District
Court's September 15, 2020 order requiring A WP to return the cats seized on November 5, 2019
under the doctrine of res judicata.
"The doctrine of res judicata prevents the relitigation of matters already decided in order
to promote judicial economy and efficiency, the stability of final judgments, and fairness to
litigants." Estate a/Treworgy v. Comm'r, Health and Human Servs., 2017 ME 179, 111, 169
4 A.3d 416 (quotations and citations omitted). The doctrine consists of two components, issue
preclusion and claim preclusion. Portland Water Dist. v. Town ofStandish, 2008 ME 23, '\[ 7,
940 A.2d 1097. The Law Court has characterized the two components ofresjudicata as follows:
lssue preclusion, also refened to as collateral estoppel, prevents the relitigation of factual 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. 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. The Law Court requires
that a factual determination be "essential to the judgment," meaning it "must be regarded by the
court and the part[ies] as essential to a determination on the merits," before issue preclusion can
apply. Pacheco v. Libby O'Brien Kingsley & Champion, LLC, 2022 ME 63, '\['\18-9, 288 A.3d
398.
Ms. O'Connell argues that both issue preclusion and claim preclusion apply to this case.
Her argument on issue preclusion is not distinguishable from her claim preclusion argument. Ms.
O'Connell argues that the second proceeding brought by the State was duplicative of the first one
and based not based on new conduct. The State argues that the conduct underlying the
Application for a Possession Order, and the second seizure of Ms. O'Connell's cats in general,
occuned after the first proceeding finished.
There is no dispute that the parties are the same in CV-22-75 as they were in CV-19-448.
There is also no dispute that a valid final judgment was entered in the previous case. The
applicability of res judicata therefore turns on two questions. For claim preclusion, could the
AWP action in CV-22-75 have been brought during CV-19-448? For issue preclusion, were there
5 any factual determinations essential to the judgment in CV-19-448 that would have barred the
AWP action in CV-22-75?
The State points to persuasive authority from cases involving DHS that show that res
judicata does not apply to a second petition to terminate parental rights after the trial court denies
the first petition, even if the alleged conduct is substantially similar, so long as the second
petition is based on facts that occurred after the time period at issue in the first petition. See In re
Children ofMelissa F., 2018 ME 110, ,i 8, 191 A.3d 348; see also In re Kaleb D., 2001 ME 55, ,i
11, 769 A.2d 179. The court agrees that these cases are analogous. Res judicata would apply to a
subsequent attempt to seize the cats based on conduct occurring within the time frame at issue in
the first proceeding, but Ms. 0' Connell prevailing in one proceeding does not mean that the
State is permanently barred from bringing any subsequent action under 17 M.R.S. § 1021. So
long as the second proceeding is based on new conduct that occurred after the time period
relevant to the first proceeding, res judicata is no bar to the claim.
The complaint which triggered the AWP actions in CV-22-75 occurred after the District
Court's final judgment was rendered in CV-19-448, when Ms. O'Connell's brother entered the
house to check the pipes while she and her father were sick with COVID-19. The District Court
was careful to restrict its analysis to facts that occurred after 2019, in many cases over Ms.
O'Connell's objection. The facts at issue in CV-22-75 all stem from events which occurred after
the previous case had concluded. Res Judicata does not apply.
Abuse of Discretion (CV-22-75)
Ms. O'Connell argues that the District Comt's finding that her cats had "been abandoned
or cruelly treated" or were "maimed, disabled, diseased, dehydrated, malnourished or injured"
was clearly erroneous and not suppmted by substantial evidence in the record. Ms. O'Connell
6 makes this argument primarily by engaging in a lengthy relitigation of the facts before the
District Comi. The coui-t's role in appellate capacity is to review factual findings for clear error
and the application of law to the facts de novo, not to relitigate the facts before the District Court.
State v. Peck, 2014 ME 74, ,r 13, 93 A.3d 256.
Ms. 0' Connell bore the burden of proof before the District Court "to show cause why the
animal[s] should not be seized permanently or disposed of humanely." 17 M.R.S. § 1021(3). "On
review of findings of fact, we do not reexamine the record from the trial comt and reach our own
decision about the facts; instead, we conduct a deferential review for clear error, meaning that we
will defer to the factHfinder's decision as to (1) which witnesses to believe and not believe; (2)
what significance to attach to particular evidence, and (3) what inferences may or may not be
drawn from the evidence." Zablotny v. State Bd ofNursing, 2017 ME 29, ,r 18, 156 A.3d 126.
As the sole factfinder, the District Comt "was free to selectively accept or reject portions" of
witness testimony. Quirk v. Quirk, 2020 ME 132, ,r 15, 241 A.3d 851. As the party that had the
burden of proof before the District Court, Ms. O'Connell can only prevail if she "demonstrates
that a contrary finding is compelled by the evidence." Zablotny, 2017 ME 29, ,r 19, 156 A.3d
126.
The District Court's findings are amply supported by competent evidence in the record.
There was testimony from Ms. Rogers, the AWP agent who executed the search, supported by
photo and video evidence, which detailed the truly squalid conditions the cats were living in,
including litter boxes overflowing with feces, holes in the walls and ceiling which allowed the
cats to travel the length of the home in the insulation, and deceased cats packed into garbage
bags on the porch and scattered throughout the house. Ms. Rogers also testified to the condition
7 of the animals she seized, noting that many needed immediate veterinary care, and some were so
sick that they appeared deceased when she first observed them.
Dr. Rachel Fiske, assistant state veterinarian for the Maine Department of Agriculture,
Conservation and Forestry, testified to the condition of the cats removed from the residence. Dr.
Fiske testified that the majority of the cats had obvious clinical signs of disease. Many had
discharge from their noses and eyes. Many had drainage coming from their ears, which indicated
the presences of ear mites. Several cats presented signs of severe dental or oral disease. Dr. Fiske
found after examining the cats that most of them had signs of Upper Respiratory Infections.
Nine of the deceased cats were submitted for forensic examination. Dr. Nanny Wenzlow
performed these necropsies and testified to findings. The reports were also admitted as evidence.
Dr. Wenzl ow found that all of the deceased cats had extremely severe upper respiratory tract
infections and empty gastrointestinal tracts, which indicated that the animals had not eaten for an
extended period of time. Also, all the deceased cats had severe dehydration.
The evidence is more than enough for the District Court to conclude, as it did, that
"[a]nimals in [Ms. O'Connell's] care suffered from disease, dehydration, and malnourishment,
and were deprived of necessary medical attention and humanely clean conditions." 1 (August 5,
2022 Order~ 11.) The District Court was not required to find Ms. O'Connell's counterarguments
persuasive, or her testimony credible or compelling. There is an1ple support in the record for the
District Court's findings of fact, and based on those facts, it was no abuse of discretion to find
1 Ms. O'Connell also objects to the District Court's conclusion because she claims the District Court ignored her "reasonable defense" that her sickness with COVID-19 caused an absence from the home that was out of her control. The District Comt expressly addressed this argument, stating "The Cou1t cannot view the dilapidated and unclean conditions of the house and rampant disease among the cat population as attributable only to the sudden illnesses.... [Ms. O'Connell] was unable to provide adequate care for the large cat population she brought into her house before and after she became ill in January 2022." (August 5, 2022 Order~ 10.)
8 that Ms. O'Connell did not show that she was capable of caring for a large cat population safely
and humanely.
Abuse of Discretion ( CV -19-448)
Ms. O'Connell argues that the District Court's finding that all of the seized cats, except
for the nine cats the State expressly withheld, had been returned to her pursuant to the District
Court's prior order, was clearly erroneous. Once again, her argument is primarily a relitigation of
the factual issues before the District Court and falls well short of showing that the District
Court's findings were wholly unsupported by competent evidence in the record.
The record before the District Court included testimony from Liam Hughes, the Director
of the AWP at the time, and Ms. Rogers, who was involved with the return of Ms. O'Connell's
cats. Mr. Hughes testified to the inventory procedure used by the AWP, and described
specifically how the AWP individually photographed each cat seized from Ms. O'Connell and
assigned it a number, which was stored both by the AWP and the shelter where the cat was
housed. These records were checked at the time the cats were returned to ensure that they were
the same cats.
Ms. Rogers testified that she matched the cats' ID numbers to their photographs when she
returned the cats and testified that she positively identified the cats. Ms. Rogers testified that she
had no doubt the cats she returned were the same ones that were seized. Ms. Rogers and Mr.
Hughes both testified that all of the locations where Ms. O'Connell's cats were kept exclusively
housed her cats, making a mix up nearly impossible.
The District Comt found the State's witnesses credible. Ms. O'Connell asks this comt to
revisit the credibility of the State's witnesses, but again, that is not this court's role. The
credibility of the witnesses is for the District Court to determine. This court's role is limited to
9 determining whether the District Court could have found that the State did not withhold nine
additional cats based on its own evaluation of the evidence before it. The District Court was well
within the bounds of its discretion to find the State's witnesses credible. Therefore, its findings
of fact were not clearly erroneous, and must be upheld.
Evidentiary Rulings
Ms. O'Connell also raises a number of evidentiary rulings which she claims prejudiced
her in the hearing. Specifically, Ms. O'Connell objects to the admission of Ms. Rogers's affidavit
attached to the warrant to seize the cats and Dr. Fiske's affidavit concerning the medical
condition of the seized cats on the grounds that they are inadmissible hearsay. Ms. O'Connell
also argues that the District Court erred by excluding evidence from CV-19-448 which she
argues would have proven that her cats were infected with a parasite that makes them uniquely
susceptible to dehydration while under the State's care in 2019, and by excluding an article from
the Journal of Feline Medicine and Surgery. An appellate court reviews a trial court's evidentiaiy
rulings "for clear error and an abuse of discretion." In re Children ofBrittany B., 2020 ME 1, ,r
15,223 A.3d 109.
The District Court did not err by allowing the hearsay evidence contained in the Rogers
and Fiske affidavits into evidence. 17 M.R.S. § 1021(3) expressly provides that "[a]ll veterinaiy
records, seizure reports prepared by a humane agent, a state veterinarian or a person authorized
to make mTests, police reports, witness statements and other written documents are admissible as
evidence when the authors of these documents are available for cross-examination at a hearing."2
2 Ms. O'Connell argues that the statutory exception to the hearsay rule violates the Confrontation Clause. The Confrontation Clause bars the admission of testimonial statements of a witness who did not appear at trial in criminal prosecutions. U.S. Const. amend. VI; Me. Const. art. I,§ 6; State v. Beeler, 2022 ME 47, ~ 20,281 A.3d 637. Even though the State is the plaintiff, this is a civil action, not a criminal prosecution. The Confrontation Clause does not apply.
10 Ms. Rogers and Dr. Fiske were both available for cross-examination, so the District Court did
not en- by admitting their affidavits.
The District Court did not abuse its discretion by refusing to admit veterinary records
from CV-19-448. The veterinarian who completed those records was not present to be cross
examined, nor was anyone with personal knowledge of the records. (See June 2, 2022 Tr. 106
08.) Some of the records Ms. O'Connell sought to have entered could not even be authenticated.
(See June 2, 2022 Tr. 115: 2-20.) The District Court even accepted Ms. O'Connell's testimony
about this evidence, specifically allowing her to talk about the condition of the cats when they
returned home from the State's care, though it correctly took care to keep the testimony focused
on matters relevant to 2022. (June 2, 2022 Tr. 108: 13-18, 112: 24-25, 113:1-7.)
The District Court also did not err by excluding the article from The Journal of Feline
Medicine and Surgery. As the District Court explained to Ms. O'Connell, reading from an article
purportedly written by an expert is not expert testimony, it is inadmissible hearsay.
Even if every evidentiary ruling had gone the way Ms. O'Connell would have prefe1Ted,
this would not require the District Court to agree with Ms. O'Connell's legal conclusions. Again,
it is solely the prerogative of the factfinder to decide which witnesses to believe, what
significance to attach to the evidence, and what inferences to draw from the evidence. Zablotny,
2017 ME 29, ~ 18, 156 A.3d 126. The appellate comt's role is limited to determining whether the
court could have found the facts that it did based on competent evidence in the record, and
whether those facts would allow the District Court to find, by a preponderance of the evidence,
"that the animal[s] ha[ve] been abandoned or cruelly treated by [their] owner or the animal[s]
[are] maimed, disabled, diseased, dehydrated, malnourished or injured." 17 M.R.S. § 1021 (3).
11 The District Court's findings are well supported by competent evidence even without the
evidence Ms. O'Connell objects to. Therefore, even if it was en·or to admit the affidavits, the
error was harmless. See Banks v. Lewy, 2019 ME 89, ,i 18, 209 A.3d 109 ("a trial court1s error in
relying on improperly admitted evidence is harmless when the improperly admitted evidence is
cumulative to competent evidence in the record"). Even if it was error to exclude the veterinary
repmts proffered by Ms. 0' Connell, the District Court was not required to draw the inferences
from them that Ms. O'Connell asked it to. As the court has already described, the District
Comt's findings of fact were supported by an abundance of evidence in the record, including
testimony from witnesses that it found credible and persuasive, extensive documentation of the
cats' health and living conditions, and much more.
Constitutional Claims
Ms. O'Connell argues that her constitutional rights were violated in these proceedings
without identifying a right that was violated or an action by the State which supposedly violated
the right. (Appellant Br. 53.) The court will disregard this argument, as it does not identify any
legal ground to oveiturn the District Comt's orders.
Ms. O'Connell also challenges the facial constitutionality of 17 M.R.S. § 1021, on the
basis that "[t]here can be no doubt, if common sense prevails, that many aspects of the law
allowing the State to take possession of living animals opens the door to abuse of authority."
(Appellant Br. 54.) Ms. O'Connell again does not identify any particular provision of the law she
objects to, nor the constitutional provision it supposedly violates. The comt will disregard this
vague argument. 3
3Ms. O'Connell has made some suggestion that the page limit for her brief inhibited her from making her constitutional arguments. Considering that Ms. O'Connell submitted a sixty-six page brief, with fifty-five pages of argument, the court does not find this persuasive.
12 Fruit of the Poisonous Tree
Ms. O'Connell argues that all evidence seized as a result of her brother's report to animal
control should have been excluded under the doctrine of the "fruit of the poisonous tree." The
"fruit of the poisonous tree" refers to the doctrine that requires any evidence obtained through
the exploitation of police illegality to be excluded. Wong Sun v. United States, 371 U.S. 471, 488
(1963). Mr. O'Connell is not a police officer or an agent of the state. The doctrine does not
apply.
17-A M.R.S. § 103(1)
Ms. O'Connell also argues that the "spirit" of 17-A M.R.S. § 103(1) applies to her case.
She does not appear to have raised this issue before the District Court, so it is waived. Foster v.
Oral Surgery Assocs., P.A. ,2008 ME 21, ,I 22, 940 A.2d 1102 ("An issue raised for the first time
on appeal is not properly preserved for appellate review.") Even if Ms. O'Connell had properly
preserved the issue for appeal, the argument has no merit. The statute plainly does not apply to
these facts, in spirit or otherwise.
Rule 41
Ms. O'Connell argues that the State should have been precluded from bringing a second
animal welfare proceeding until it fully complied with the District Court's September 15, 2020,
order, citing M.R. Civ. P. 41(b)(2). Rule 41(b)(2) allows a defendant to move to dismiss a
pending action when the plaintiff fails to prosecute its claim for 2 years, or to comply with any
order of the court. First of all, there is no evidence that Ms. O'Connell ever made a Rule 4l(b)(2)
motion. Even if she had, the rule does not apply to this situation. Rule 41 (b )(2) is not applicable
to other lawsuits between the parties. CV-22-75 is a different case based on new conduct and
cannot be dismissed by operation of Rule 41(b)(2) for failure to follow a court order in CV-19
13 448. The comt does not reach the issue of whether the State actually failed to follow a court
order in a way that would warrant dismissal under Rule 41 (b)(2), as that question is inelevant to
these proceedings.
Rule 42
Ms. O'Connell argues that she was prejudiced by the District Comt's decision to
consolidate the two matters pursuant to M.R. Civ. P. 42. Rule 42(a) provides:
When actions involving a common question of law or fact are pending before the court, in the same county or division or a different county or division, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
The District Comt's decision to consolidate the hearings was eminently reasonable. The matters
concerned the same parties and a substantial factual nexus, at least to the extent that the two
matters concerned many of the same cats, the same caregiver, and the same property.
Consolidating the hearings could be reasonably expected to avoid unnecessary delay in deciding
the motions. Ms. O'Connell's argument that she was somehow prejudiced by the decision to hear
both motions at once has no merit.
Security
There is a pending motion to dismiss filed by the State based on the security provision in
17 M.R.S. § 1021(6)(D), which conditions the defendant's right to appeal from a judgment of the
District Court on the defendant giving "sufficient security to satisfy the applicant or person
taking custody of the animal that he will pay all expenses for its care and supp01t pending
appeal." The District Court never set an amount for security, nor does it appear that the State
14 ever requested security. 4 Regardless, because Ms. O'Connell does not prevail on the merits of
her appeal, the issue is moot.
The entry is
The two judgments of the District Comt in the consolidated matters are hereby AFFIRMED.
The Clerk is directed to enter this order into the docket by reference pursuant to M.R.Civ.P. 79(a). / · :;;;.- ,7 (_"_,.,,,.,--__..--- . , ..\
(,,)c··-'~,..,.../·//.,_,,../ ;/ \ ) ~~·,·~--·-:::.:~ / .,-,/
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Date: June 3_, 2023 ff.(:a S t e ~ Justice, Superior Court
4 The Law Court has suggested in a memorandum of decision that the District Court should be the one to dete1mine
the amount of security before the appeal is filed, but that the District Court can and should apply M.R. Civ. P. 9l{f) to waive the security requirement "if the court ... finds that the appeal is brought in good faith and is not frivolous and that the applicant is without sufficient funds to pay all orpatt of the costs of filing the appeal. ..." See Animal Welfare Program v. Clark, Mem 08-239 {Oct. 27, 2008).