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

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the 

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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