Dydo v. Gray, No. 349-5-11 Rdcv (Teachout, J., Aug. 10, 2012)

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                                                STATE OF VERMONT

SUPERIOR COURT                                                                                   CIVIL DIVISION
Rutland Unit                                                                               Docket No. 349-5-11 Rdcv



WILLIAM DYDO, JR.,
     Appellant

           v.

NANCY GRAY,
    Appellee


                  DECISION ON APPEAL FROM SMALL CLAIMS COURT


       This matter came before the Court on August 7, 2012 for oral argument.
Appellant was represented by Attorney Mark Furlan. Appellee Nancy Gray was present
and represented herself.

       In the case below, the Small Claims Judge granted Plaintiff’s request for the
Defendant to be served by “tac” order. A Return of Service showed service documents
were “tacked” at a specified address. Defendant did not respond to the complaint, and
the Court issued a default judgment on January 26, 2012.

        On March 30, 2012, Defendant filed a Motion to Reopen Default Judgment
pursuant to V.R.S.C.P. 4 , claiming that he had not been served with the notice of the
claim against him, that the address at which “tacking” occurred was not his residence and
that service was improper.1 The Plaintiff responded, claiming that the Defendant knew
that the sheriff had been trying to serve him with papers, and claiming that the address
was his residence.

        The Small Claims Judge denied the motion in an entry order without explanation,
and Defendant appealed. He filed a Memorandum of Law claiming that service by
tacking is not permissible under the Small Claims Rules, that he had not received notice
of the lawsuit, and that the Small Claims Judge abused her discretion in denying the
motion to reopen.

        The Court heard oral argument on August 7, 2012, and indicated orally that it
would issue a written order remanding the case to the Small Claims Court. This Court
noted orally that default judgments are not favored, and that while default defendants are
not automatically entitled to reopening, parties in Small Claims Court are generally not
1
    The Motion to Reopen was timely under V.R.S.C.P. 4 (b).
represented and the Court should exercise its discretion in a manner that promotes the
determination of cases on their merits.

        The standard for the review of a motion to vacate a default judgment is abuse of
discretion. Dougherty v. Surgen, 147 Vt. 365, 366 (1988). Nevertheless, the rules relating
to default judgments should be liberally construed in favor of defendants. Id. A court
should be indulgent in opening decrees entered by default. Id.

        Courts should generally reopen a default judgment when the person seeking to
reopen the judgment has shown good cause. Courtyard Partners v. Tanner, 157 Vt. 638,
638 (1991) (mem.) There must be strong support for the denial of a motion to reopen a
default judgment. Id. If a defendant has a meritorious defense, then a default judgment
should be reopened even in the face of the defendant’s negligence or willfulness. Id.

        The Small Claims Rule on reopening default judgments also specifies good cause
as a basis for reopening a judgment: “A default judgment will not be reopened unless
good cause is shown.” V.R.S.C.P. 4 (g). Defendants who represent themselves in Small
Claims Court may not know that in seeking to reopen a default judgment, they are
required to show good cause.

         Here, Defendant presented a very specific claim of lack of notice after being
served by tack order. Although the location of Defendant’s residence was disputed, the
Court should exercise its discretion in favor of deciding claims on their merits. At a
minimum, the Court should have issued an entry order requiring Defendant to show that
if the case was reopened, he would have a meritorious defense to the claim. The failure to
reopen the case without issuing such an order was an abuse of discretion; therefore, a
remand to the Small Claims Court is appropriate.

        On remand, the Small Claims Court is directed to vacate the default judgment and
either reopen the case or issue an entry order on the Motion to Reopen informing
Defendant of the opportunity to show that he has a meritorious defense, and reopen the
case if Defendant can show that he could present a meritorious defense.


       Dated at Rutland this 9th day of August, 2012.


                                                    ____________________________
                                                    Hon. Mary Miles Teachout
                                                    Superior Judge




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