Background
Tenant Anatoly Kishinevski rented commercial space from landlord Westwardhos LLC beginning in December 2020. Westwardhos claimed Kishinevski became delinquent on rent in 2022 and 2023, prompting an ejectment action in February 2024. Kishinevski denied owing rent and asserted affirmative defenses. After the trial court granted a rent-escrow motion and, later, a writ of possession, Kishinevski vacated in April 2024. The remaining dispute concerned whether he owed rent arrearages.
Jury trial was scheduled for February 11–12, 2025, with jury draw on February 10. Kishinevski filed multiple motions to continue, citing post-traumatic stress disorder and stress from the legal proceedings. The court denied these motions. On February 10, Kishinevski did not appear for jury draw, emailing court staff about his mental state and an extraordinary relief petition he had filed. The court waited until 10:15 a.m., then granted Westwardhos’s motion for default judgment without notice to Kishinevski or a hearing. A final judgment for $23,949.85 in damages and attorney’s fees issued on February 26.
The Court’s Holding
Vermont Rule of Civil Procedure 55(c)(4) mandates that when a party has appeared in an action, a default judgment may only be entered “after hearing, upon at least 7 days’ written notice.” Kishinevski had appeared by filing an answer and subsequent motions and responses. The court held that the trial court abused its discretion by granting default judgment the same day without providing seven days’ notice or holding a hearing.
The court rejected Westwardhos’s arguments that prior notice of jury draw satisfied the notice requirement, or that the hearing held immediately after determining Kishinevski would not appear satisfied Rule 55(c)(4). The court emphasized that default judgment without notice implicates fundamental due process rights—the defaulting party must have opportunity to “challenge claims of liability and damages” at a hearing. Failure to provide notice is a serious procedural error justifying reversal, not harmless error requiring a showing of prejudice.
The court also rejected Kishinevski’s remaining arguments on discovery disputes (interrogatory responses and PayPal records), finding the trial court did not abuse discretion. The court declined to reach arguments about judicial bias and misconduct because Kishinevski failed to adequately brief them under appellate standards.
Key Takeaways
- When a defendant has appeared in an action, due process requires seven days’ written notice and a hearing before default judgment—failure to provide notice is reversible error as a matter of law
- Prior notice of jury trial does not constitute adequate notice of a default judgment motion
- A hearing held the same day without advance notice does not satisfy Rule 55(c)(4)’s requirements
- Self-represented litigants must still comply with appellate briefing standards to have arguments considered
Why It Matters
This decision reinforces core due process protections in civil litigation. Even when a defendant fails to appear at trial, if they have previously participated in the case, Vermont law guarantees notice and an opportunity to be heard before a default judgment is entered. For landlords and tenant advocates, this means ejectment and rent-recovery cases cannot be resolved by default without proper procedural safeguards.
The court’s emphasis that notice requirements implicate due process rights—not mere procedural niceties—clarifies that these protections cannot be waived by prior appearance or deemed harmless based on outcome. Trial courts must afford defendants a meaningful opportunity to contest liability and damages before entering default, particularly significant in landlord-tenant disputes where residential and commercial stakes run high.