VSC: When defendant appears, Superior Court may not enter judgment by default w/o holding a hearing

In Housing Foundation, Inc. v. Beagle, No. 2007-474 (unpublished entry order by three-justice panel), the Vermont Supreme Court reversed a default judgment entered by the superior court. The Court ruled that since defendant had “appeared” in the case, default judgment was available only after a hearing. Since the superior court did not hold a hearing, the court abused its discretion by entering judgment by default.

V.R.C.P. 55(b)(4) provides “if the party against whom judgment by default is sought has appeared in the action judgment may be entered after hearing, upon at least 3 days’ written notice served by the clerk.” Plaintiff did not dispute that defendant appeared in the case. The Supreme Court agreed that by filing an answer (albeit one day late), and subsequent other motions and responses, the defendant had “appeared” for purposes of Rule 55(b)(4). The Supreme Court ruled that under Rule 55(b)(4), a hearing was mandatory, not merely discretionary. The superior court, therefore, abused its discretion by entering default judgment without a hearing.

In concluding that the defendant had appeared in the case, the Supreme Court cited out-of-state authority. But it did not cite V.R.C.P. 79.1(b), which provides “[A]n attorney’s signature to a pleading shall constitute an appearance.” Although defendant may not have been represented by an attorney, her signature on an answer arguably constituted an appearance under this rule. An answer to a complaint is a “pleading” for purposes of the Vermont Rules of Civil Procedure. See V.R.C.P. 7(a) (specifying “pleadings” under the Rules). As used in the Vermont Rules of Civil Procedure, “The term ‘plaintiff's attorney’ or ‘defendant’s attorney’ or any like term shall include the party appearing without counsel.” Thus, a pro se defendant’s signature on an answer arguably constitutes an appearance within the meaning of Rule 79.1(b).

VSC: superior court may enter SJ w/o written decision; court did not err in refusing to issue findings of fact

In Pietrangelo v. AMI-Burlington Inc. No. 2008-115 (unpublished), the Court stated:

On appeal, plaintiff first argues that the superior court erred in granting defendants summary judgment without issuing an opinion with findings of fact and conclusions of law. We conclude there was no procedural error in the court’s decision. Rule 56 allows the court to enter “judgment as a matter of law” on behalf of a party when the record demonstrates that “there is no genuine issue as to any material fact”; however, the Rule does not require the court to issue a written decision. V.R.C.P. 56(c)(3). Indeed, we have explained that “[w]hile a trial court’s recitation of the undisputed facts is often helpful for appellate review of a grant of summary judgment, they are not necessary.” Blake v. Nationwide Ins. Co., 2006 VT 48, ¶ 21, 180 Vt. 14.

We are not persuaded by plaintiff’s argument that his request for findings required the court to issue written findings. Rule 52 states:

In all determinations of motions in which (a) the decision of the court is based upon a contested issue of fact, (b) the decision is or could be dispositive of a claim or action, and (c) a party has, within five days of the notice of decision, requested findings of fact and conclusions of law, the court shall, on the record or in writing, find the facts and state its conclusions of law.

V.R.C.P. 52(a)(3). Although plaintiff requested findings and the decision on summary judgment was dispositive of plaintiff’s claims, a motion for summary judgment is not a decision “based upon a contested issue of fact.” Id. “It is not the function of the trial court to find facts on a motion for summary judgment, even if the record appears to lean strongly in one direction.” Fritzeen v. Trudell Consulting Eng’rs, Inc., 170 Vt. 632, 633 (2000). Thus, we conclude that the court did not err in issuing its decision on summary judgment without findings.

VSC: Vermont adopts "Time on the Risk" in Long-Tail Cases

Environmental Claims

8/25/2008 8:54:29 PM EST

Vermont Joins Other Northeastern States, Adopts “Time on the Risk” Approach in Long-Tail Cases

Posted by Michael Aylward

See http://law.lexisnexis.com/practiceareas/Insurance-Law-Blog/Insurance/Vermont-Joins-Other-Northeastern-States-Adopts-Time-on-the-Risk-Approach-in-Long-Tail-Cases