I always learn something new even from the most straightforward decisions.  In a case involving a common law trespass claim relating to neighbors who, putting it midly Do Not Get Along, I learned two new things.  Sebra v. Wentworth, 2010 ME 21 [ ].

First, claim preclusion doesn't apply if the first decision only sought a declaratory judgment, and didn't ask for injunctive or any other coercive relief (paragraph 10).  When do you ever ask only for declaratory relief?  Well, there's a line of authority that stands for the proposition that you should only ask for a declaration in the first instance against a governmental body (they are supposed to then do the right thing without a court order requiring them to according to some case law).  So the takeaway is that plaintiffs should think twice before including the boilerplate request for an injunction. 

Second, the court addressed the claim that the award of attorney's fees was improper, and agreed with the appellant, reversing the trial court, even though the issue hadn't been raised at the trial court level.  I can't remember the last time that happened in a civil case.  The decision cited as precedent for doing so when the resolution doesn't require the introduction of additional facts, proper resolution is clear and a failure to consider it may result in a miscarriage of justice, is a 2001 decision, Truman v. Brown, 2001 ME 182 [ ].  In that decision, however, the Court said that it would look at a fee appeal because it had been partially raised below.

I guess this gets filed in the "there are exceptions to every rule" pile, and I wouldn't rely on this too much going forward.  Maine Appellate Practice says that the obvious error rule is infrequently applied to overturn a ruling in a criminal case and "almost never applied to overturn a ruling in a civil claim." (p. 4.) 

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