Palmer v. Tappan, No. S0219-12 CnC (Tomasi, J., Apr. 17, 2012)

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                                                STATE OF VERMONT

SUPERIOR COURT                                                                             CIVIL DIVISION
Chittenden Unit                                                                            Docket No. S0219-12 CnC

                                                                         )
Warren Palmer,                                                           )
                                                                         )
                           Defendant/Appellant,                          )
  v.                                                                     )
                                                                         )
Joshua Tappan,                                                           )
                                                                         )
                            Plaintiff/Appellee.                          )

                                                RULING ON APPEAL

           In August 2011, Plaintiff Joshua Tappan sued defendant “Warren

Palmer dba Saxon Oaks Corp” in Small Claims Court alleging problems with

the foundation for a porch that Mr. Palmer built for Mr. Tappan, and seeking

$5,000 in damages. Mr. Palmer filed an answer disputing the claim and

requesting a hearing. Two days before the scheduled February 3, 2012

hearing date, Mr. Palmer filed a motion to reschedule, citing a work-related

conflict. The court denied the motion as too late to request a continuance.

Only Mr. Tappan appeared at the hearing, and the Small Claims Court

entered judgment for Mr. Tappan and against Mr. Palmer, without taking

evidence, based on Mr. Palmer’s failure to appear. On February 27, 2012,

Mr. Palmer filed a notice of appeal alleging that Mr. Tappan should have

sued Saxon Oakes Co. rather than Mr. Palmer individually.
      Mr. Palmer is essentially seeking to reopen a default judgment against

him. That motion is properly addressed to the Small Claims Court, pursuant

to V.R.S.C.P. 3(g). See Moore v. Beecher, 145 Vt. 659, 659 (1984) (mem.)

(motions under V.R.C.P. 55(c) to set aside a default judgment—the analogue

of V.R.S.C.P. 3(g)—“are properly addressed only to the trial court”);

Reporter’s Notes—1992 Amendment, V.R.C.P. 55 (noting that “any defendant

under [V.R.C.P. 55(c)] would be required” to seek relief from the trial court

before filing an appeal).

      Accordingly, the Court dismisses this appeal, remands this matter to

Small Claims Court, and directs that it consider the Defendant’s notice of

appeal as a timely motion to reopen the default judgment. It will be up to the

Small Claims Court in the first instance to decide whether or not Defendant

has set forth a sufficient justification to reopen the default. This Court

expresses no view on that matter.

      So ordered.

      Dated at Burlington, Vermont this ____day of April, 2012.



                                               -------------------------------
                                               Timothy B. Tomasi
                                                Superior Court Judge




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