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

[The text of this Vermont trial court opinion is un official. It has been reformatted from the original . The accuracy of the text and the accompanying data included in the Verm ont trial court opinion database is not guaranteed. ] 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 lit igation epic concerning two lawyers, Paul Dannenberg and James M artin. This court is presently the fourth adjudicatory body to consider their various arguments. 1

While each previous case has had its own distinctiv e flavor and set of claims, each one has arisen from some transgression or perceived wrong that either Dannenberg or Martin has committed agai nst the other’s household. Today’s trouble is no different and ste ms 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 tr out 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 Super ior Court, and the Water

Resources Board.enjoyment of their property. They also have severa l 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 Agen cy of Natural Resources allowing Martin to apply an aquatic pesti cide on his trout ponds. Dannenberg’s appeal was based on concerns that pest icide runoff would contaminate the aquifer his family relied on for th eir drinking water, that the use of chemicals would cause general aggravatio n to the environment,

and that Martin’s aerator was too loud. The Water Resources Board initially denied Martin’s motion to dismiss for lac k of standing because it felt that Dannenberg’s position as a neighbor and t he potential for harm to his aquifer merited further investigation. Both pa rties appear to have squabbled over procedural issues including when exp erts and board members should visit the properties. These problem s were resolved and the board came to the conclusion that Dannenberg’s aqui fer sat at a higher elevation than the trout ponds and therefore was no t threatened by any runoff. Without this nexus, the board also conclud ed, Dannenberg did not have any other standing to challenge the permit, wh ich was affirmed. Dannenberg did not appeal the Board’s decision.

2 Martin also made a second claim of intentional int erference with contractual relations based on his inability to sec ure 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 essenti al elements: lack

of probable cause, malice, and actual damages cause d 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 caus e, 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 M artin to unplug his aerator. Certainly, Dannenberg’s incongruous conce rn about the aerator in his notice of a pesticide appeal support Martin’s t heory, 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 purpos e). 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 pest icide permit. Martin’s argument’s are best answered by the Board’s initial refusal to dismiss Dannenberg’s appeal. Regardless of his actual purp ose, Dannenberg raised

a valid claim which the board decided needed furthe r 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 h igher 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 suc h evidence, Martin cannot establish a lack of probable cause.

Dannenberg’s appeal was also an administrative act ion and only quasi-judicial in nature. While this does not nece ssarily foreclose the possibility of a malicious prosecution claim, it do es raise significant policyquestions. See 52 Am. Jur. Malicious Prosecution § 15. In particular, an

action for malicious prosecution in this context ra ises the possibility of a chilling effect on the right of citizens to seek ad ministrative review of potential environmental actions. The fact that thi s appeal involved the application of a dangerous chemical to an open wate r body and an adjoining landowner, lends some basic credibility t o Dannenberg’s claim regardless of his subjective purpose.

Dannenbergs’ Claims

On January 2, 2004, defendant Martin filed a motio n for summary judgment on all eleven of Dannenbergs’ claims again st 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, 20 04. 3 At the time, Judge Katz did not set a new deadline for the Danne nbergs to file a reply, but their stated purpose for seeking an extension—t hat 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 d ays 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 o n Martin’s motion at this time. See V.R.C.P. 56 (c)(1) (allowing but not req uiring opposing

3 The Dannenbergs motioned for an extension of time while the parties attempted to settle their dispute or in the alterna tive a continuance to conduct further discovery. Judge Katz’s granted the Dannen bergs 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 motio ns).

Claims of Malicious Prosecution and Abuse of Proces s

On November 29, 2001 Martin commenced a civil acti on against the Dannenbergs in Washington Superior Court as attorne y 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. Th is termination occurred early in the case before any discovery had been mad e and was apparently not pursued any further by Martin or his client.

By claiming malicious prosecution and abuse of pro cess, the Dannenbergs make the same error as Martin in confus ing malicious purpose with lack of probable cause—or in the case of abuse of process, the similar element of improper, illegal, or unwarrante d use of court processes.

Jacobsen v. Garzo , 149 Vt. 205, 207 (1988) (abuse of process); Condo sta

, 144 Vt. at 458 (malicious prosecution). As with Ma rtin, the Dannenbergs have no problem establishing some evidence of malic ious purpose or ulterior motivation behind Martin’s filings, but th is 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 defenda nt use a court process in an illegal, or unauthorized way, such as using a fr audulent 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 abu se. In Jacobsen , for example, the filing of a civil action to delay a pa rty 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 proce ss. Id . Likewise, this present case lacks evidence of any abuse by Martin of the court process inthe Washington Superior Court action. As to a lack of probable cause, notwithstanding the Dannenbergs many arguments abou t the merits of the underlying case, its early dismissal on procedural grounds renders any such conclusions necessarily speculative and fails to sa tisfy 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, swe aring, obscenities, and profanities.” They claim that this has caused them severe “mental anguish . . . emotional distress . . . fright, anguish, shoc k, nervousness, and anxiety.” The legal flaw in this claim is that the Dannenberg s 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. Th e 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. Fro mson v. State , 2004 VT 29. “Mere insults, indignities, threats, annoyances, pe tty 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 toget her to make a collective claim of outrageous behavior. Fromson , 2004 VT 29. In this case, there is not enough evidence to illustrate intentionally “ou trageous” conduct that would qualify for the tort, and the claim, therefor e, necessarily fails.

Malicious Defamation

On October 10, 2001 and again on October 21, 2001, Martin sent letters to the Dannenbergs suggesting that they wer e responsible for thedisappearance and possible untimely demise of puppi es 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 l ogic, 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 acc usation. Instead, it is a plea from a man, who has lost his puppy, for inform ation about its

whereabouts. This is not a falsehood or slander an d 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 t he Dannenbergs and Ms. Kynoch. As well, the Dannenbergs fail to present a dequate evidence of

actual harm suffered because of this “accusation” o r 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 cons ent. They claim that

the unwanted visitors have assaulted and harassed t he Dannenbergs and

their livestock. It is not clear from the Dannenbe rg’s complaint whether Martin, his guests, their dogs, or some combination of the three were responsible for the harassment or how many times th ese trespasses occurred. Martin alleges that there were only two instances of trespass and that both times he entered onto the Dannenbergs’ pr operty 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 o f consent, so long as hecan do so peaceably. Richardson v. Anthony , 12 Vt. 273 (1840)

(dismissing trespass charge to farmer who entered t he property of another

to recover his cattle where there was no evidence o f 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. C arbonneau . 165 Vt. 433, 437 (1996) (“A person who intentionally enters or r emains upon land in the possession of another without a privilege to do so is subject to liability for trespass.”). This last point is noteworthy becaus e the Dannenberg’s complaint fails to raise any claim of specific or a ctual damages resulting from Martin’s entry on to their property but rather alleges general emotional distress. See Restatement (Second) of To rts § 163 (intended intrusions causing no harm). Martin’s claim of pri vilege satisfies his trespass liability as a matter of law.

Assault and Battery

On August 21, 1999 the Dannenbergs claim that Mart in’s dog “Grizzly” knocked Anne Dannenberg off her bike whil e giving chase to another dog. The Dannenbergs cites this as a speci fic example of Martin’s failure to leash, control, or prevent his dog from assaulting them or committing numerous batteries. They also claim tha t Martin through his general actions have made them fearful of imminent, offensive, unlicenced contact. The court will not address the vague clai ms 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 surviv e summary judgment where the burden of proof is on the Dannenbergs. S amplid Enterp., Inc. v.

First Vt. Bank , 165 Vt. 22, 25 (1996). This leaves only the August 21st incident. There is no evidence tosupport the claim that Martin trained his dog to at tack the Dannenbergs or

intentionally assault them. The Dannenbergs pleadi ng 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 fr om the complaint to support the proposition that Grizzly was an exubera nt 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 exuber ance 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 a ssistance where the potential conduct is highly foreseeable. Id . The problem with these facts is that they do nothing to illustrate what Martin fail ed to do. The fact that Grizzly misbehaved in this instance does not mean t hat Martin failed to control him or that Grizzly’s behavior was foreseea ble. In the former case more facts would be necessary to illustrate how Mar tin 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 Griz zly cannot survive summary judgment.

Nuisance

The last claims that the Dannenbergs raise against Martin are for nuisance. They claim that Martin has disrupted the ir enjoyment of their property by installing an aerator by his fish ponds , installing high-intensity flood lights as well as regular noise from screamin g, partying, and general caterwauling. Martin has submitted a report by an acoustic engineer measuring the sound levels at various points from t he aerator. This report

states that the sound of the aerator at the boundar y of the property was lessthan the equivalent noise produced by a window moun ted air conditioner or

the sound of feet walking on gravel.

The standard for any nuisance complaint is objecti ve based on a normal person in the locality without any hyper-sen sitivities. Pierce v. Riggs , 149 Vt. 136, 140 (1987). The interference with t he plaintiffs’ enjoyment of their property must be both unreasonab le and substantial. Coty v. Ramsey Assocs. , 149 Vt. 451, 457 (1988). The interference must be a definite offense to a normal person and “in ex cess of the customary interferences a land user suffers in an organized s ociety.” Id . (quoting 6-A American Law of Property § 28.25, at 73 (A.J. Casne r ed. 1954)).

Martin’s evidence is that his aerator does not cre ate loud noises and are common for man-made fish ponds. Without furthe r evidence to dispute this fact, there is no basis to conclude that an ae rator 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. Notwithstan ding 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 o r is somehow using it beyond its stated purpose of oxygenating the pond.

As to the Dannenberg’s other complaint about the p artying, 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 o f the way that he lives or uses his property. That is clear from their fil ings, but that does not

translate into a coherent claim of nuisance. Unlik e 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 beyon d the normal use of a residential and rural property. Martin’s use of hi s land may be differentthan 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 frust rate and punish neighbors opposing their development plans). The Dannenbergs ’ generalized

accusations of nuisance do not create a triable iss ue of fact for the jury.

Conclusion

Attorneys Dannenberg and Martin appear to have ver y 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 neighb ors.

Based on the foregoing, plaintiffs Paul and Anne D annenberg’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