SCOVT vacates default judgment for failure to appear at jury draw, holding at least 7 days’ written notice was required under V.R.C.P. 55(c)(4)

 

1  Default;  Rule 55(c)(6) 

    Westwardhos LLC v. Anatoly Glass LLC , 2026 VT 19 [5/29/2026]

COHEN, J. (Ret.), Specially Assigned.   Tenant Anatoly Kishinevski appeals pro se from the trial court’s order granting landlord Westwardhos LLC a default judgment under Vermont Rule of Civil Procedure 55(c)(6) following tenant’s failure to appear at jury draw. Tenant argues, among other things, that the trial court erred in entering default judgment without holding a hearing on seven-days’ notice as required under Rules 55(c)(6) and 55(c)(4).  We vacate and remand for the trial court to provide seven-days’ notice and a default judgment hearing pursuant to Rule 55(c)(4) and conduct further proceedings as necessary.  The rule’s plain language makes it clear that holding a hearing on the default judgment motion is mandatory.  The rule states that “[i]f the party against whom judgment by default is sought has appeared in the action judgment may be entered by the judge after hearing, upon at least 7 days’ written notice.”  V.R.C.P. 55(c)(4) (emphasis added). In this case, tenant did not appear for jury draw, but he had otherwise appeared in the matter, and landlord moved for a default judgment.  The trial court was therefore required to provide tenant with a hearing on seven days’ written notice under Rule 55(c)(4) before deciding the motion.  The court abused its discretion when it failed to do so, granting the motion for default judgment the same day.  When the trial court entered default judgment against tenant, it did not cite to Rule 55(c)(4), instead relying on Rule 55(c)(6).  Rule 55(c)(6) states: “In those cases in which a party has appeared in the action but has failed to appear at a duly noticed trial on the merits, any other party seeking affirmative relief may either waive trial and move for a default judgment or proceed to trial.”  The rule goes on to explain that “[i]f the party seeking affirmative relief chooses to file a motion for default judgment, a hearing shall be scheduled on the motion pursuant to” Rule 55(c)(4).  V.R.C.P. 55(c)(6).  If the jury draw is part of a duly noticed trial on the merits for the purposes of this rule, Rule 55(c)(6) requires a notice and hearing under Rule 55(c)(4) if the nondefaulting party moves for default judgment. Accordingly, we conclude that the trial court did not satisfy the hearing requirement of Rule 55(c)(4) when it held the hearing on landlord’s request for default judgment the same day and without notice to tenant. Finally, landlord argues that even if an additional default judgment hearing was required, the failure to hold such a hearing was harmless error because tenant did not demonstrate prejudice.  We conclude that tenant was not required to make such a showing under the circumstances here.  Entry of default judgment against a party who has appeared in a case without first providing notice and an opportunity to be heard implicates that party’s due-process rights.  See Reuther, 146 Vt. at 542, 507 A.2d at 973 (explaining that because defendant was not given notice before court entered default judgment, “ ‘[t]o get such a judgment without evidence and without notice is not in our opinion due process of law’ ” (quoting Bass, 172 F.2d at 210)); see also Dougherty, 147 Vt. at 366, 518 A.2d at 365 (“Due process favors the rights of the defendants to be heard in their own defense.  Denial of that right, and rejection of the remedies for default, 7 must have strong support.” (alteration and quotation omitted)).  Accordingly, “[a] failure to give the required notice generally is considered a serious procedural error that justifies the reversal or the setting aside of a default judgment.”6  10A M. Kane & A. Steinman, Federal Practice and Procedure § 2687 (4th ed. 2026); see, e.g., Bass, 172 F.2d at 210 (concluding that failure to provide notice under Federal Rule 55 to defaulting party was error and “[t]o get such a judgment without evidence and without notice is not in our opinion due process of law”); In re Roxford Foods, Inc., 12 F.3d 875, 881-82 (9th Cir. 1993) (holding that failure to provide notice of motion for entry of default judgment violated defaulting party’s due-process rights); Press v. Forest Lab’ys, Inc., 45 F.R.D. 354, 357 (S.D.N.Y. 1968) (“Where notice of a motion for a default judgment is required, but not given, such a judgment entered without notice must be vacated as a matter of law.”).  For this reason, we conclude that the judgment must be vacated and remanded for the trial court to provide tenant with the required notice and hearing.    Vacated and remanded for the trial court to provide seven-days’ notice and a default judgment hearing pursuant to Vermont Rule of Civil Procedure 55(c)(4) and conduct further proceedings as necessary.