Dannenburg v. Martin, No. S0475-02 CnC (Norton, J., Jan. 10, 2005)

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STATE OF VERMONT                                                                     SUPERIOR COURT
Chittenden County, ss.:                                                          Docket No. S0475-02 CnC



DANNENBURG

v.

MARTIN



                                                        ENTRY

        This case is the latest chapter of a sprawling litigation epic
concerning two lawyers, Paul Dannenberg and James Martin. This court is
presently the fourth adjudicatory body to consider their various arguments.1
While each previous case has had its own distinctive flavor and set of
claims, each one has arisen from some transgression or perceived wrong
that either Dannenberg or Martin has committed against the other’s
household. Today’s trouble is no different and stems from the fact that
these two are neighbors and own property on either side of Delfrate Road in
Huntington, Vermont. More specifically, this case is about an aerator
compressor that Martin uses to oxygenate his two trout ponds. Dannenberg
and his wife find the noise from this machine to be disruptive to the


           1
        Dannenberg and Martin have previously opposed each other in the
Federal District Court of Vermont, Washington Superior Court, and the Water
Resources Board.
enjoyment of their property. They also have several other complaints
against Martin and his dogs. Martin, in turn, has filed a complaint of
malicious prosecution against Dannenberg.2 Both sides have motioned for
summary judgment on all pending claims. The court will discuss each
claim separately.

                  Martin’s Claim of Malicious Prosecution

        In 1999 Dannenberg appealed a permit from the Agency of Natural
Resources allowing Martin to apply an aquatic pesticide on his trout ponds.
Dannenberg’s appeal was based on concerns that pesticide runoff would
contaminate the aquifer his family relied on for their drinking water, that
the use of chemicals would cause general aggravation to the environment,
and that Martin’s aerator was too loud. The Water Resources Board
initially denied Martin’s motion to dismiss for lack of standing because it
felt that Dannenberg’s position as a neighbor and the potential for harm to
his aquifer merited further investigation. Both parties appear to have
squabbled over procedural issues including when experts and board
members should visit the properties. These problems were resolved and the
board came to the conclusion that Dannenberg’s aquifer sat at a higher
elevation than the trout ponds and therefore was not threatened by any
runoff. Without this nexus, the board also concluded, Dannenberg did not
have any other standing to challenge the permit, which was affirmed.
Dannenberg did not appeal the Board’s decision.



       2
          Martin also made a second claim of intentional interference with
contractual relations based on his inability to secure homeowner’s insurance while
this case was pending. Martin subsequently dropped this claim in April 2003
when Dannenberg filed a motion to dismiss the claim.
        A claim of malicious prosecution has three essential elements: lack
of probable cause, malice, and actual damages caused by the prosecution.
Condosta v. Grussing, 144 Vt. 454, 458 (1984). Martin’s argument fails to
establish the first element, lack of probable cause. While the element of
malice may be inferred from a lack of probable cause, a lack of probable
cause cannot be inferred from evidence of malice as the two elements are
separate and independent facts. Id. In this case, Martin argues that
Dannenberg initiated his appeal because he wanted Martin to unplug his
aerator. Certainly, Dannenberg’s incongruous concern about the aerator in
his notice of a pesticide appeal support Martin’s theory, but this improper
motive for litigation does not establish a lack of probable cause. See 2
D.Dobbs, The Law of Torts § 432, at 1219 (2001) (discussing the definition
of probable cause as distinct from malice or purpose). Martin urges the
court to combine Dannenberg’s improper purpose with the Board’s findings
that Dannenberg’s well was at a higher elevation to conclude that
Dannenberg had no probable cause to appeal the pesticide permit. Martin’s
argument’s are best answered by the Board’s initial refusal to dismiss
Dannenberg’s appeal. Regardless of his actual purpose, Dannenberg raised
a valid claim which the board decided needed further fact-finding. Once
the facts were established, Dannenberg dropped his appeal. Martin’s
argument is based on two unsupported presumptions; that Dannenberg
knew from the beginning that his aquifer sat at a higher elevation than the
ponds and that it would not be affected by runoff. Martin has no evidence
to show how Dannenberg would have such knowledge or such confidence
in the topography of his neighborhood. Without such evidence, Martin
cannot establish a lack of probable cause.

       Dannenberg’s appeal was also an administrative action and only
quasi-judicial in nature. While this does not necessarily foreclose the
possibility of a malicious prosecution claim, it does raise significant policy
questions. See 52 Am. Jur. Malicious Prosecution § 15. In particular, an
action for malicious prosecution in this context raises the possibility of a
chilling effect on the right of citizens to seek administrative review of
potential environmental actions. The fact that this appeal involved the
application of a dangerous chemical to an open water body and an
adjoining landowner, lends some basic credibility to Dannenberg’s claim
regardless of his subjective purpose.

                            Dannenbergs’ Claims

        On January 2, 2004, defendant Martin filed a motion for summary
judgment on all eleven of Dannenbergs’ claims against him. The
Dannenbergs filed a motion on January 21, 2004 for an enlargement of
time or a continuance before responding to Martin’s motion. An extension
of time was granted by Judge Katz on January 28, 2004.3 At the time,
Judge Katz did not set a new deadline for the Dannenbergs to file a reply,
but their stated purpose for seeking an extension—that the parties were
close to settlement—appears to have ended some time in early 2004. This
change obviated the need for any further extensions and as of January 7,
2005, there has been no responsive brief on Martin’s pending motion.
Several months is a more than reasonable extension of time considering
that the original response period was only thirty days and that any purpose
for an extension of time ended several months ago. Therefore, it is in the
interests of speedy and just adjudication to rule on Martin’s motion at this
time. See V.R.C.P. 56 (c)(1) (allowing but not requiring opposing


       3
         The Dannenbergs motioned for an extension of time while the parties
attempted to settle their dispute or in the alternative a continuance to conduct
further discovery. Judge Katz’s granted the Dannenbergs an enlargement of time
under V.R.C.P. 6(b) but did not grant a continuance under V.R.C.P. 56(f).
affidavits and memorandum to summary judgment motions).

          Claims of Malicious Prosecution and Abuse of Process

        On November 29, 2001 Martin commenced a civil action against the
Dannenbergs in Washington Superior Court as attorney for a friend who
believed that the Dannenbergs were involved in the disappearance of her
puppy. The case was dismissed six months later on procedural grounds
because the statute of limitations had expired. This termination occurred
early in the case before any discovery had been made and was apparently
not pursued any further by Martin or his client.

        By claiming malicious prosecution and abuse of process, the
Dannenbergs make the same error as Martin in confusing malicious
purpose with lack of probable cause—or in the case of abuse of process, the
similar element of improper, illegal, or unwarranted use of court processes.
Jacobsen v. Garzo, 149 Vt. 205, 207 (1988) (abuse of process); Condosta,
144 Vt. at 458 (malicious prosecution). As with Martin, the Dannenbergs
have no problem establishing some evidence of malicious purpose or
ulterior motivation behind Martin’s filings, but this evidence does not infer
a lack of probable cause or improper use of process. Jacobsen, 149 Vt. at
207–08. Abuse of process requires that the defendant use a court process in
an illegal, or unauthorized way, such as using a fraudulent writ of
attachment to obtain documents or using such a writ to obtain documents
that have been excluded by a discovery order. Id. Merely filing in court
with bad intentions does not qualify as such an abuse. In Jacobsen, for
example, the filing of a civil action to delay a party from completing a sale
was held not to be an abuse of process because the defendant had not
committed any improper or unauthorized use of process. Id. Likewise, this
present case lacks evidence of any abuse by Martin of the court process in
the Washington Superior Court action. As to a lack of probable cause,
notwithstanding the Dannenbergs many arguments about the merits of the
underlying case, its early dismissal on procedural grounds renders any such
conclusions necessarily speculative and fails to satisfy the element for
malicious prosecution. Without evidence to support the first element of
either claim, summary judgment is appropriate.

                 Intentional Infliction of Emotional Distress

        The Dannenberg’s claim that Martin has on multiple occasion
committed acts of “abusive language, screaming, swearing, obscenities, and
profanities.” They claim that this has caused them severe “mental anguish .
. . emotional distress . . . fright, anguish, shock, nervousness, and anxiety.”
The legal flaw in this claim is that the Dannenbergs allege a series of
general acts by Martin but do not point to a single incident that may be
analyzed by the court as to its outrageousness. The tort of intentional
infliction of emotional distress requires the court to make this assessment as
a threshold matter before it can go to a jury. Fromson v. State, 2004 VT 29.
“Mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities” will not trigger the tort intentional infliction of emotional
distress. Restatement (Second) of Torts § 46 cmt. d. Nor can small,
annoying, or distasteful incidents be cobbled together to make a collective
claim of outrageous behavior. Fromson, 2004 VT 29. In this case, there is
not enough evidence to illustrate intentionally “outrageous” conduct that
would qualify for the tort, and the claim, therefore, necessarily fails.

                           Malicious Defamation

        On October 10, 2001 and again on October 21, 2001, Martin sent
letters to the Dannenbergs suggesting that they were responsible for the
disappearance and possible untimely demise of puppies that belonged to
Martin and Bonnie Kynoch. The Dannenbergs cite in particular to the last
sentence of the second letter, which reads: “I will understand that your
continued refusal to respond to the foregoing means that you in fact caused
the disappearance of our puppies.” To be sure this is flawed reasoning, but
these words appear fraught with more emotion than logic, and they are far
from an apoplectic outburst or direct accusation. The Dannenbergs may
take great umbrage at anyone even considering that they would harm
puppies, but Martin’s letter does not make that accusation. Instead, it is a
plea from a man, who has lost his puppy, for information about its
whereabouts. This is not a falsehood or slander and does not qualify as
libel per se. Ryan v. Herald Ass’n, 152 Vt. 275, 277–83 (1989). It was
therefore not defamation to send such a letter to the Dannenbergs and Ms.
Kynoch. As well, the Dannenbergs fail to present adequate evidence of
actual harm suffered because of this “accusation” or an actual malice
intended by Martin in making it. Id. 282–83.

                        Malicious Trespass to Land

        The Dannenbergs claim that Martin, his guests, and their dogs have
entered onto the Dannenbergs’ property without consent. They claim that
the unwanted visitors have assaulted and harassed the Dannenbergs and
their livestock. It is not clear from the Dannenberg’s complaint whether
Martin, his guests, their dogs, or some combination of the three were
responsible for the harassment or how many times these trespasses
occurred. Martin alleges that there were only two instances of trespass and
that both times he entered onto the Dannenbergs’ property to retrieve dogs
that had escaped from his property through no fault of his own. Vermont
law on this point does allow a person to enter the property of another to
reclaim his personal property, despite revocation of consent, so long as he
can do so peaceably. Richardson v. Anthony, 12 Vt. 273 (1840)
(dismissing trespass charge to farmer who entered the property of another
to recover his cattle where there was no evidence of how the cattle
escaped); see also Restatement (Second) of Torts § 198. Martin’s entry
onto Dannenberg’s property was privileged and is , hence, not subject to
even the nominal liability suggested by Harris v. Carbonneau. 165 Vt. 433,
437 (1996) (“A person who intentionally enters or remains upon land in the
possession of another without a privilege to do so is subject to liability for
trespass.”). This last point is noteworthy because the Dannenberg’s
complaint fails to raise any claim of specific or actual damages resulting
from Martin’s entry on to their property but rather alleges general
emotional distress. See Restatement (Second) of Torts § 163 (intended
intrusions causing no harm). Martin’s claim of privilege satisfies his
trespass liability as a matter of law.

                             Assault and Battery

        On August 21, 1999 the Dannenbergs claim that Martin’s dog
“Grizzly” knocked Anne Dannenberg off her bike while giving chase to
another dog. The Dannenbergs cites this as a specific example of Martin’s
failure to leash, control, or prevent his dog from assaulting them or
committing numerous batteries. They also claim that Martin through his
general actions have made them fearful of imminent, offensive, unlicenced
contact. The court will not address the vague claims of general assault
made by the Dannenbergs as intentional or malicious assault has specific
elements that require evidence of specific actions. Restatement (Second) of
Torts § 21. Such vague allegations will not survive summary judgment
where the burden of proof is on the Dannenbergs. Samplid Enterp., Inc. v.
First Vt. Bank, 165 Vt. 22, 25 (1996).
        This leaves only the August 21st incident. There is no evidence to
support the claim that Martin trained his dog to attack the Dannenbergs or
intentionally assault them. The Dannenbergs pleading makes clear that this
incident was an accident, the dog was running after another dog and not at
Ms. Dannenberg. The question is whether Martin was negligent in failing
to restrain his dog. There is no evidence apart from the complaint to
support the proposition that Grizzly was an exuberant dog or had a
propensity for chasing other dogs beyond the Martin property. Cf. Dodge
v. McArthur, 126 Vt. 81, 83 (1966) (suggesting that there is a duty of care
to control a dog with a known propensity for exuberance and playfulness).
As well, there is no evidence to create an issue of the “rescue” doctrine,
which would allow a jury to find a duty to render assistance where the
potential conduct is highly foreseeable. Id. The problem with these facts is
that they do nothing to illustrate what Martin failed to do. The fact that
Grizzly misbehaved in this instance does not mean that Martin failed to
control him or that Grizzly’s behavior was foreseeable. In the former case
more facts would be necessary to illustrate how Martin breached a duty to
control. In the latter, more facts, to prove that the incident was part of the
dog’s behavior or that it had a reputation for such misbehavior. Without
evidence of these facts, the claims concerning Grizzly cannot survive
summary judgment.

                                  Nuisance

        The last claims that the Dannenbergs raise against Martin are for
nuisance. They claim that Martin has disrupted their enjoyment of their
property by installing an aerator by his fish ponds, installing high-intensity
flood lights as well as regular noise from screaming, partying, and general
caterwauling. Martin has submitted a report by an acoustic engineer
measuring the sound levels at various points from the aerator. This report
states that the sound of the aerator at the boundary of the property was less
than the equivalent noise produced by a window mounted air conditioner or
the sound of feet walking on gravel.

       The standard for any nuisance complaint is objective based on a
normal person in the locality without any hyper-sensitivities. Pierce v.
Riggs, 149 Vt. 136, 140 (1987). The interference with the plaintiffs’
enjoyment of their property must be both unreasonable and substantial.
Coty v. Ramsey Assocs., 149 Vt. 451, 457 (1988). The interference must
be a definite offense to a normal person and “in excess of the customary
interferences a land user suffers in an organized society.” Id. (quoting 6-A
American Law of Property § 28.25, at 73 (A.J. Casner ed. 1954)).

        Martin’s evidence is that his aerator does not create loud noises and
are common for man-made fish ponds. Without further evidence to dispute
this fact, there is no basis to conclude that an aerator in and of itself is a
nuisance. The sound levels created by the machine do not measure any
higher than normal sounds in the area. Notwithstanding the Dannenberg’s
complaint, there is no evidence for a jury to find that Martin has misused
the aerator or modified it to create louder noise or is somehow using it
beyond its stated purpose of oxygenating the pond.

       As to the Dannenberg’s other complaint about the partying, gunfire,
floodlights, and noisy cavorting, there is nothing in the record to show that
Martin’s activities exceeded the normal use of his property. The
Dannenbergs do not like Martin and do not approve of the way that he lives
or uses his property. That is clear from their filings, but that does not
translate into a coherent claim of nuisance. Unlike the defendants in either
Pierce (dog kennel) or Trickett v. Ochs, 2003 VT 91 (industrialized apple
orchard), Martin’s use of his property is not beyond the normal use of a
residential and rural property. Martin’s use of his land may be different
than that of the Dannenbergs or of their neighbors, but it does not suggest
excessive or abnormal use. Cf. Coty, 149 Vt. at 454–57 (defendants turned
their Stowe property into a literal pigsty to frustrate and punish neighbors
opposing their development plans). The Dannenbergs’ generalized
accusations of nuisance do not create a triable issue of fact for the jury.

                                Conclusion

       Attorneys Dannenberg and Martin appear to have very deep seated
issues with each other. As lawyers they have used the legal system on
several occasions as a way of venting their anger. The court would
recommend that both parties look within themselves and renew their
individual efforts to be good and thoughtful neighbors.

      Based on the foregoing, plaintiffs Paul and Anne Dannenberg’s
motion for summary judgment is granted. Defendant James Martin’s
motion for summary judgment is also granted. This case is dismissed.



      Dated at Burlington, Vermont________________, 2005.




                                         ________________________
                                         Judge
