V.R.C.P. 55(c)(4) Requires Seven-Day Notice and a Separate Hearing Before Default Judgment When a Party Has Appeared—even After Nonappearance at Jury Draw

1. Introduction

Westwardhos LLC v. Anatoly Glass LLC and Anatoly Kishinevski (2026 VT 19) arises from a commercial landlord-tenant dispute in which the landlord, Westwardhos LLC, sought possession and unpaid rent from tenant Anatoly Kishinevski (appearing pro se). After the tenant failed to appear for a scheduled jury draw (the jury-selection event preceding the trial), the landlord moved for default judgment and the superior court granted it that same morning, later awarding nearly $24,000 in damages and attorney’s fees.

The core issue on appeal was procedural and constitutional: whether a trial court may enter default judgment against a party who has appeared in the case without first giving seven days’ written notice and holding a default-judgment hearing as required by V.R.C.P. 55(c)(4)—even when the default request is triggered by failure to show up for a duly noticed trial event and is invoked under V.R.C.P. 55(c)(6).

2. Summary of the Opinion

The Vermont Supreme Court vacated the default judgment and remanded. It held that because the tenant had appeared in the action, the superior court was required to:

  • provide at least seven days’ written notice, served by the clerk, and
  • hold a separate default-judgment hearing

before entering default judgment under V.R.C.P. 55(c)(4). The Court further held that the failure to provide the required notice and hearing was not cured by (a) the scheduled jury-draw proceeding, or (b) advance notice of jury draw, and it rejected the landlord’s claim of harmless error because the defect implicated due process.

The Court also affirmed the trial court’s discretionary discovery rulings (interrogatory verification and PayPal records) and declined to address several inadequately briefed claims under V.R.A.P. 28(a).

3. Analysis

3.1. Precedents Cited

Default judgment standards and preference for merits-based resolution

  • DaimlerChrysler Servs. N. Am., LLC v. Ouimette, 2003 VT 47, ¶ 6: cited for the proposition that Rule 55 commits default judgment to the trial court’s discretion, reviewed for abuse of discretion.
  • Brady v. Brauer, 148 Vt. 40, 44, 529 A.2d 159, 161 (1987): used both for the burden allocation (the defendant must show abuse of discretion) and for the admonition that default judgments without an opportunity to be heard are disfavored.
  • Desjarlais v. Gilman, 143 Vt. 154, 158-59, 463 A.2d 234, 237 (1983): invoked for the general rule that default-judgment rules should be construed liberally in favor of defendants and the preference for decisions on the merits.

Notice and hearing as due-process requirements when the defendant has appeared

  • Reuther v. Gang, 146 Vt. 540, 542, 507 A.2d 972, 973 (1986): the foundational Vermont case emphasizing that notice must be given before entering default judgment when the defendant has appeared; the Court quotes Reuther’s due-process framing.
  • Bass v. Hoagland, 172 F.2d 205, 210 (5th Cir. 1949): quoted (via Reuther) for the strong due-process statement that obtaining such a judgment “without evidence and without notice” is not due process of law.
  • Dougherty v. Surgen, 147 Vt. 365, 367, 518 A.2d 364, 365 (1986): used twice: (1) to show what constitutes “appearance” (answer, counterclaim, participation), and (2) to confirm that withdrawal of counsel does not eliminate the notice requirement.
  • Hous. Found., Inc. v. Beagle, No. 2007-474, 2008 WL 3976570, at *2 (Vt. Aug. 2008) (unpub. mem.): cited for the interpretation that Rule 55’s hearing requirement is a “mandatory directive” before entry of default judgment.

Federal analogues confirming the seriousness of notice defects

  • In re Roxford Foods, Inc., 12 F.3d 875, 881-82 (9th Cir. 1993): used to support the conclusion that failure to provide default-judgment notice violates due process.
  • Press v. Forest Lab'ys, Inc., 45 F.R.D. 354, 357 (S.D.N.Y. 1968): cited for the proposition that when notice is required but not given, the default judgment must be vacated as a matter of law.
  • The Court also cites secondary authority: 610A M. Kane & A. Steinman, Federal Practice and Procedure § 2687 (4th ed. 2026) for the general rule that failure to give required notice is a serious procedural error justifying reversal/setting aside.
  • Watson v. Vill. at Northshore I Ass'n, 2018 VT 8, ¶ 80: cited to justify consulting federal case law because the Vermont rule parallels the federal rule (here, in the Rule 55 context by analogy).

Discovery discretion and verification/oath principles

  • Pcolar v. Casella Waste Sys., Inc., 2012 VT 58, ¶¶ 11, 19: provides the deferential standard for reviewing discovery rulings and supports declining to reach inadequately briefed issues even for pro se litigants.
  • Brock v. Bruce, 58 Vt. 261, 266, 2 A. 598, 604-05 (1886): supports the proposition that an oath need not be in a particular form if it fulfills the intended function.
  • Steptoe v. City of Syracuse, No. 5:09-CV-1132, 2011 WL 6012941, at *4 (N.D.N.Y. Nov. 1, 2011): federal support for the idea that Rule 33 does not prescribe a particular verification form; notarization can satisfy the oath requirement.

Appellate procedure constraints

  • Kotz v. Kotz, 134 Vt. 36, 39, 349 A.2d 882, 885 (1975): cited to explain that while an appeal is pending, the trial court cannot rule on a V.R.C.P. 60(b) motion absent a remand.
  • Johnson v. Johnson, 158 Vt. 160, 164 n.*, 605 A.2d 857, 859 n.* (1992): cited for the principle that the Court will not address arguments that do not meet minimum briefing requirements.

3.2. Legal Reasoning

  1. “Appearance” triggers heightened protections. The Court first confirms the tenant had “appeared” because he filed an answer and actively litigated (tracking the analysis in Dougherty v. Surgen). This matters because under V.R.C.P. 55(c)(4) a party who has appeared may only be defaulted “after hearing” and on “at least 7 days’ written notice served by the clerk.”
  2. Rule 55(c)(4) is mandatory—not discretionary. The Court treats the notice-and-hearing requirement as a prerequisite to entry of judgment, consistent with the rule’s text (“may be entered… after hearing”) and with Hous. Found., Inc. v. Beagle.
  3. Rule 55(c)(6) does not bypass Rule 55(c)(4). The trial court relied on V.R.C.P. 55(c)(6) (default after failure to appear at a duly noticed trial on the merits). The Supreme Court explicitly declines to decide whether jury draw counts as “a duly noticed trial on the merits,” but holds that even if Rule 55(c)(6) applies, it expressly requires that the default-motion hearing be scheduled “pursuant to” Rule 55(c)(4)—including seven-day notice.
  4. A jury-draw proceeding is not a substitute for the default-judgment hearing. The landlord argued the February 10 event itself satisfied the hearing requirement. The Court rejects this, emphasizing that Rule 55 contemplates a hearing at which the defaulting party has an opportunity to challenge “claims of liability and damages” (citing the Reporter’s Notes—2009 Amendment). A same-day, un-noticed default request made after a no-show does not supply that opportunity.
  5. Notice of jury draw is not notice of a default-judgment hearing. The Court rejects the argument that the November jury-draw notice constituted the “at least 7 days’ written notice” required by Rule 55(c)(4), because it was not notice that a default motion would be heard.
  6. Harmless-error analysis yields to due process in this posture. The landlord argued the omission was harmless because the tenant did not show prejudice. The Court holds the tenant need not make that showing here: entering default judgment without notice and opportunity to be heard implicates due process (via Reuther v. Gang and Dougherty v. Surgen), and federal authorities treat the notice failure as reversible error.

3.3. Impact

Procedural rule clarified and strengthened. The decision reinforces a bright-line procedural safeguard: when a litigant has appeared, Vermont trial courts must provide clerk-served seven-day written notice and conduct a separate default-judgment hearing before entering default judgment—regardless of the immediacy or inconvenience created by a party’s failure to appear for a trial event.

Practical consequences for trial courts and litigants. The ruling discourages “same-day” defaults at the courthouse steps and will likely:

  • increase the use of continuances/rescheduling when a party fails to appear and the opposing party elects default rather than proceeding to trial;
  • require trial courts to create a clear record that Rule 55(c)(4) notice was served by the clerk and that the hearing afforded an opportunity to contest liability/damages;
  • limit attempts to treat ancillary trial events (like jury draw) as a functional substitute for a Rule 55 hearing.

Open question left for future cases. The Court expressly does not decide whether “jury draw” is part of “a duly noticed trial on the merits” for purposes of Rule 55(c)(6). Future litigation may address that question; however, this opinion makes clear that even a correct invocation of Rule 55(c)(6) still triggers Rule 55(c)(4)’s notice-and-hearing protections when default judgment (rather than proceeding to trial) is sought.

Landlord-tenant and small-business litigation significance. Because ejectment/rent-arrearage disputes frequently involve self-represented parties and tight scheduling, the decision may have outsized effect in ensuring defaults are not entered without a structured opportunity to be heard—especially where damages (rent accounting, fees) are contested.

4. Complex Concepts Simplified

  • Default judgment: a binding judgment entered because one side failed to take a required step (e.g., appear), rather than after the court decides the merits following a full trial.
  • “Appearance” (Rule 55 context): participating in the case—filing an answer, motions, or otherwise defending—so that the party is entitled to extra procedural protections before being defaulted.
  • Seven-days’ written notice served by the clerk (V.R.C.P. 55(c)(4)): the court clerk must serve written notice of the default-judgment hearing at least seven days before it happens; notice of some other event (like jury draw) is not enough.
  • Hearing requirement: a proceeding where the defaulting party can contest liability and/or damages; it cannot be satisfied by an impromptu, same-day request after a no-show.
  • Harmless error vs. due process: some procedural mistakes can be ignored if they did not matter; but depriving a party who appeared of notice and an opportunity to be heard before default is treated as a serious due-process flaw warranting vacatur.
  • Rent escrow / writ of possession (12 V.S.A. § 4853a): a statutory mechanism allowing a landlord, in a possession action, to require rent payments into court; failure can lead to a writ restoring possession to the landlord (separate from later money-damages issues).
  • Discovery “proportionality” (V.R.C.P. 26(b)(1)): even relevant information may be denied if the burden outweighs the likely benefit, considering the needs and stakes of the case.

5. Conclusion

Westwardhos LLC v. Anatoly Glass LLC and Anatoly Kishinevski reaffirms and operationalizes a due-process-centered rule of Vermont civil procedure: once a party has appeared, a trial court cannot enter default judgment without a separately noticed default-judgment hearing held on at least seven days’ clerk-served written notice under V.R.C.P. 55(c)(4). The decision vacates a same-day default entered after a missed jury draw and signals that procedural efficiency cannot override the structured opportunity to be heard that Rule 55 and due process require.