Jones v. Domina

Vermont Superior Court
Filed
Lamoi eae

VERMONT SUPERIOR COURT CIVIL DIVISION
Lamoille Unit Case No. 24-CV-03829
154 Main Street
Hyde Park VT 05655
802-888-3887
www.vermontjudiciary.org

Danielle ones v. Ken Domina

ENTRY REGARDING MOTIONS
Plaintiff Danielle Jones filed this pro se complaint in February 2024, alleging that
defendant Ken Domina built a shed on his property that trespassed on her property and
that he refused Danielle's requests to remove the shed. After being served by tack order,
Ken answered the complaint, also pro se, claiming that he had acquired title to the land on
which the shed sits through adverse possession. Both parties have subsequently retained
counsel, although plaintiffs counsel did not enter his appearance until after the pending
motions were filed.

There are currently six motions pending before the court: plaintiff's motion for
judicial notice (Motion 5), plaintiffs motion in limine (Motion 6), plaintiffs motion for
summary judgment (Motion 7), plaintiffs motion in limine (9), Defendant's motion to quash
subpoena (Motion 11), and plaintiff's motion to amend complaint to add a party (Motion 12).
At the outset, the court grants plaintiff's motion to amend the complaint, which was
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not opposed. The proposed amended complaint adds plaintiff Noi Jones Danielle's
husband and co-owner of the subject property and adds a claim related to accessing a
utility pole.
The court next addresses the motion for summary judgment. "Summary judgment is
appropriate 'if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Hier v. Slate Valley Unified
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Sch. Dist., 2025 VT 2, 8 (quoting V.R.C.P. 56(a)). The initial burden falls on the moving
party to show an absence of dispute of material fact. Couture v. Trainer, 2017 VT 73, ¥ 9,
205 Vt. 319 (citing V.R.C.P. 56(a)). If that showing is made, the burden shifts to the non-
moving party to come forward with evidence that raises a dispute as to the facts in issue.
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Clayton v. Unsworth, 2010 VT 84, 16, 188 Vt. 432. Where that party bears the burden of
proof on an issue, if fairly challenged by the motion papers, it must come forward with
evidence sufficient to meet its burden of proof on that issue. Burgess v. Lamoille Housing
P'ship, 2016 VT 31, 1 17, 201 Vt. 450. The evidence, on either side, must be admissible.
V.R.C.P. 56(c)(1), (2) & (6); Gross v. Turner, 2018 VT 80, 1 8, 208 Vt. 112. All reasonable
doubts and inferences are resolved in favor of the nonmoving party. Boyd v. State, 2022 VT

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24-CV-03829 Danielle Jones v. Ken Domina
12, ¶ 19, 216 Vt. 272. Thus, “[i]n determining the existence of genuine issues of material
fact, courts must accept as true the allegations made in opposition to the motion for
summary judgment, so long as they are supported by affidavits or other evidentiary
material.” Gates v. Mack Molding Co., 2022 VT 24, ¶ 13, 216 Vt. 379 (quotation omitted).
Despite her initial motion being filed pro se, Danielle substantially complied with
Rule 56(c) by “by filing a separate and concise statement of undisputed material facts
consisting of numbered paragraphs with specific citations to particular parts of materials in
the record.” V.R.C.P. 56(c)(1). In his response, however, Ken failed to comply with the rule’s
requirement that he “file a paragraph-by-paragraph response, with specific citations to
particular parts of materials in the record that the responding party asserts demonstrate a
dispute.” V.R.C.P. 56(c)(2). Accordingly, the court “need not consider any facts outside of
[Danielle’s] statement of undisputed material facts in ruling on the summary judgment
motion.” Caldwell v. Champlain Coll. Inc., 2025 VT 17, ¶ 9 (citing V.R.C.P. 56(c)(5)).
But even considering Ken’s affidavit submitted in opposition to summary judgment,
the court concludes that Danielle is entitled to summary judgment on her trespass claim
concerning the shed. Ken does not dispute the boundary lines as surveyed by Matt Reed in
2024, which establish that Ken’s shed encroaches on plaintiffs’ property. And the
undisputed facts do not support Ken’s defense of adverse possession. “To achieve title
through adverse possession, a claimant must demonstrate that possession of the land was
open, notorious, hostile and continuous throughout the statutory period of fifteen years.”
MacDonough-Webster Lodge No. 26 v. Wells, 2003 VT 70, ¶ 24, 175 Vt. 382 (quotation
omitted). Here, Ken’s affidavit makes clear that he never excluded Noi and his family from
his claimed property, and that the parties were not even aware that the shed was
encroaching plaintiffs’ property, until 2024. See Domina Aff. ¶¶ 16-17, 27. Ken accordingly
cannot establish that his use was “exclusive” or “hostile.”
As another superior court has explained in granting summary judgment against a
claim of adverse possession:
First, although adverse possession maybe established where the claim is
based upon an honest, but mistaken, belief regarding the property
boundaries, the claimant still must demonstrate an intent to exclude others
from the property and thereby possess the property as their own. In this case,
even assuming that [the alleged adverse possessors] were mistaken about
their boundaries, there is no evidence that they intended to exclude others
from the disputed areas by virtue of their activities. Second, it misplaces the
burden of proof and subverts the policies favoring continued land ownership
and neighborliness to require the true owners of property to interrupt minor
activities and infringements that are not sufficient to ripen into a claim for
adverse possession. The presumption of hostility does not arise until the
claimant has engaged in open and notorious use of the property that
indicates that an adverse claim has been asserted.

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24-CV-03829 Danielle Jones v. Ken Domina
Bloomer v. Lamphere, No. 476-7-07 Rdcv, 2008 WL 6555539 (Vt. Super. July 31, 2008)
(Teachout, J.) (quotations omitted).
For the reasons set forth above, the court concludes that no genuine issue of
material of fact exists regarding the trespass claim related to the encroaching shed, and
that plaintiffs are accordingly entitled to summary judgment on that claim.
That leaves the issue of injunctive relief or damages related the shed trespass claim,
and plaintiffs’ claims related to the utility pole. 1 The court is unable to conclude based on
the current record whether and to what extent judgment is warranted on these issues.
Given the court’s resolution of the summary judgment motion, the motion for
judicial notice is moot. Similarly, the subpoena to Vermont Electric Coop seeking
information to oppose Ken’s adverse possession defense is no longer necessary. The motion
to quash is accordingly granted.
The two pro se motions in limine filed by Danielle before retaining counsel are
denied without prejudice to refile through counsel in advance of any trial in this case.
Order
The motion for judicial notice (Motion 5) is DENIED.
The motions in limine (Motions 6 and 9) are DENIED.
The motion for summary judgment (Motion 7) is GRANTED IN PART.
The motion to quash the subpoena (Motion 11) is GRANTED.
The motion to amend the complaint is GRANTED.
The clerk shall set the case for a status conference to discuss remedies and plaintiffs’
remaining claim concerning the utility pole.

Electronically signed on: 9/12/2025 pursuant to V.R.E.F. 9(d)

_______________________________________
Benjamin D. Battles
Superior Court Judge

1 Danielle’s summary judgment filings also reference a “harassment” claim but no such claim was

pled in her original or amended complaint.

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24-CV-03829 Danielle Jones v. Ken Domina