Background
Landlord Westwardhos LLC brought an ejectment action against commercial tenant Anatoly Kishinevski in February 2024, seeking possession of a commercial rental unit and damages for unpaid rent allegedly accrued in 2022 and 2023. After tenant vacated the premises in April 2024 following the court’s grant of a writ of possession under a rent-escrow order, the only remaining issue was whether tenant owed rent arrearages. Tenant requested a jury trial, and the court scheduled jury draw for February 10, 2025, with trial set for the following two days.
Tenant filed multiple motions to continue the trial, citing landlord’s alleged discovery failures and his own PTSD diagnosis. The trial court denied these motions and reminded tenant at a February 4, 2025 status conference that he was required to appear in person for jury draw. Tenant also sought emergency relief from the Vermont Supreme Court and filed a motion for an interlocutory appeal, both of which were denied. On the morning of February 10, tenant emailed court staff stating he had not slept and expected the Supreme Court to intervene, but did not appear.
After waiting until 10:15 a.m., the trial court granted landlord’s oral motion for default judgment the same day, without advance notice to tenant or a separate hearing. On February 26, 2025, the court entered a final judgment awarding landlord $23,949.85 in damages and attorney’s fees. Tenant appealed pro se.
The Court’s Holding
The Vermont Supreme Court vacated the default judgment and remanded, holding that the trial court abused its discretion by failing to provide tenant with at least seven days’ written notice and a hearing before entering default judgment, as required by Vermont Rule of Civil Procedure 55(c)(4). Because tenant had appeared in the action—by filing an answer and subsequent motions—Rule 55(c)(4)’s procedural requirements were mandatory. The court rejected landlord’s argument that notice of the jury draw satisfied the rule’s notice requirement, reasoning that a jury draw notice does not put a party on notice of a forthcoming default judgment hearing.
The court further held that even where default judgment is sought under Rule 55(c)(6)—which applies when a party who has appeared fails to appear at a duly noticed trial—that rule expressly incorporates Rule 55(c)(4)’s notice-and-hearing requirement if the nondefaulting party elects to move for default judgment rather than proceed to trial. Granting the motion on the same day tenant failed to appear, without any advance notice of a default judgment proceeding, did not satisfy that requirement.
The court also rejected landlord’s harmless-error argument, concluding that a failure to provide the required notice before entering default judgment against a party who has appeared implicates due process and is a serious procedural error that justifies vacatur as a matter of law, without requiring the defaulting party to demonstrate specific prejudice. The court affirmed the trial court’s discovery rulings and declined to reach tenant’s remaining arguments for failure to adequately brief them under Vermont Rule of Appellate Procedure 28(a).
Key Takeaways
- Under V.R.C.P. 55(c)(4), when a party has appeared in an action, a court must provide at least seven days’ written notice and hold a hearing before entering a default judgment — this requirement is mandatory, not discretionary.
- A party “appears” for Rule 55 purposes by filing an answer or participating in the litigation through motions and responses; withdrawal of counsel does not eliminate the notice requirement.
- Notice of a scheduled trial or jury draw does not substitute for the separate, advance notice required for a default judgment hearing under Rule 55(c)(4).
- Failure to give the required notice before entering default judgment is a serious procedural error implicating due process; the defaulting party need not prove specific prejudice to obtain vacatur.
- Under Rule 55(c)(6), a party who elects to move for default judgment after an opponent fails to appear at trial must still comply with Rule 55(c)(4)’s notice-and-hearing requirements, rather than proceeding immediately.
Why It Matters
This decision reinforces that Vermont’s default judgment rules are not mere formalities — they carry constitutional due process weight. Trial courts and litigants alike must recognize that choosing to pursue a default judgment motion, rather than proceeding with a scheduled trial in the opposing party’s absence, triggers a separate procedural track with mandatory notice and hearing requirements. A party’s failure to appear at trial does not, by itself, authorize immediate default judgment when that party has previously appeared in the litigation.
For practitioners, the case is a clear reminder that scheduling efficiency cannot override a defaulting party’s right to be heard on a default judgment motion. Landlords and other plaintiffs who opt for the default judgment route under Rule 55(c)(6) must be prepared to wait out a new notice period and hearing before obtaining judgment — or instead proceed to trial on the merits in the absent party’s absence, which carries no such additional notice obligation.