Dougherty v. Surgen, 518 A.2d 364 (Vt. 1986). · Go Syfert
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Dougherty v. Surgen, 518 A.2d 364 (Vt. 1986). Cases Citing This Book View Copy Cite
39 citation events (33 in the last 25 years) across 2 distinct courts.
Strongest positive: Carpenter v. Patterson (vtsuperct, 2020-02-13)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 15 distinct citers.
discussed Cited as authority (rule) Carpenter v. Patterson
Vt. Super. Ct. · 2020 · confidence medium
“A motion to vacate a default judgment is addressed to the sound discretion of the trial court,” and the Court prefers to “resolv[e] litigation on the merits.” Dougherty v. Surgen, 147 Vt. 365, 366 (1986).
cited Cited as authority (rule) Capitol Plaza Act 250 - Decision on Motions
Vt. Super. Ct. · 2019 · confidence medium
Servs., Inc., 2006 VT 29 , ¶ 3 n.*, 179 Vt. 434 (citing Dougherty v. Surgen, 147 Vt. 365, 366 (1986)).
discussed Cited as authority (rule) Snyder Group Inc, PUD Final Plat - Decision on Motion
Vt. Super. Ct. · 2018 · confidence medium
Servs., Inc., 2006 VT 29 , ¶ 3 n.*, 179 Vt. 434 (“Because due process favors decisions on the merits, we are reluctant to overturn a trial court's decision to allow a late filing.”) (citing Dougherty v. Surgen, 147 Vt. 365, 366 (1986)).
discussed Cited as authority (rule) Deutsche Bank v. Kevin Pinette
Vt. · 2016 · confidence medium
Given the absence of any demonstrated prejudice to lender from the delay, and our liberal standard favoring adjudication on the merits and not by default, see Dougherty v. Surgen, 147 Vt. 365, 366 , 518 A.2d 364, 365 (1986), the court would act well within its discretion in setting aside the default judgment.
discussed Cited as authority (rule) Deutsche Bank v. Kevin Pinette
Vt. · 2016 · confidence medium
Given the absence of any demonstrated prejudice to lender from the delay, and our liberal standard favoring adjudication on the merits and not by default, see Dougherty v. Surgen, 147 Vt. 365, 366 , 518 A.2d 364, 365 (1986), the court would act well within its discretion in setting aside the default judgment.
examined Cited as authority (rule) Ying Ji v. Heide (4×)
Vt. · 2013 · confidence medium
Nichols v. Hofmann , 2010 VT 36, ¶ 4 , 188 Vt. 1 , 998 A.2d 1040 ; Dougherty v. Surgen , 147 Vt. 365, 366 , 518 A.2d 364, 365 (1986).
discussed Cited as authority (rule) Union Bank Act 250 Application
Vt. Super. Ct. · 2013 · confidence medium
Servs., Inc., 2006 VT 29 , ¶ 3 n.*, 179 Vt. 434 (“Because due process favors decisions on the merits, we are reluctant to overturn a trial court's decision to allow a late filing.”) (citing Dougherty v. Surgen, 147 Vt. 365, 366 (1986)).
discussed Cited as authority (rule) Union Bank Act 250
Vt. Super. Ct. · 2012 · confidence medium
Servs., Inc., 2006 VT 29 , ¶ 3 n.*, 179 Vt. 434 (“Because due process favors decisions on the merits, we are reluctant to overturn a trial court's decision to allow a late filing.”) (citing Dougherty v. Surgen, 147 Vt. 365, 366 (1986)).
cited Cited as authority (rule) Dydo v. Gray
Vt. Super. Ct. · 2012 · confidence medium
Dougherty v. Surgen, 147 Vt. 365, 366 (1988).
discussed Cited as authority (rule) In re: Kevin Maslak
Vt. Super. Ct. · 2010 · confidence medium
The Court has held, however, that “the rules relating to default judgments should be liberally construed in favor of defendants, and of the desirability of resolving litigation on the merits, to the end that fairness and justice are served.” Dougherty v. Surgen, 147 Vt. 365, 366 (1986) (quoting Desjarlais v. Gilman, 143 Vt. 154, 158-59 (1983)).
discussed Cited as authority (rule) DeYoung v. Ruggerio
Vt. · 2009 · signal: cf. · confidence medium
Cf. Dougherty v. Surgen, 147 Vt. 365, 366 , 518 A.2d 364, 365 (1986) (noting that denial of motion to vacate default judgment will be reversed on appeal only upon showing of trial court’s abuse of discretion). ¶ 16.
discussed Cited as authority (rule) Altman v. Altman (2×)
Vt. · 1999 · confidence medium
Dougherty v. Surgen, 147 Vt. 365, 366 , 518 A.2d 364, 365 (1986).
discussed Cited as authority (rule) Goshy v. Morey
Vt. · 1987 · confidence medium
See also Vahlteich v. Knott, 139 Vt. 588, 590 , 433 A.2d 287, 288 (1981); Desjarlais v. Gilman, 143 Vt. at 157 , 463 A.2d at 236 ; Reuther v. Gang, 146 Vt. at 541-42 , 507 A.2d at 973 ; Dougherty v. Surgen, 147 Vt. 365, 366 , 518 A.2d 364, 365 (1986).
discussed Cited "see" Capitol One Bank USA, N.A. v. Kastner (2×)
Vt. Super. Ct. · 2014 · signal: see · confidence high
See Dougherty, 147 Vt. at 366–67.
discussed Cited "see" Shahi v. Ascend Financial Services, Inc. (2×)
Vt. · 2006 · signal: see · confidence high
See Dougherty v. Surgen, 147 Vt. 365, 366 , 518 A.2d 364, 365 (1986) (discussing the desirability of judgment on the merits of a ease).
Robin F. Dougherty
v.
Philip Surgen and Barbara Surgen
85-150.
Supreme Court of Vermont.
Aug 22, 1986.
518 A.2d 364
David A. Williams, Morrisville, for Plaintiff-Appellee., William W. Dibbern, Barre, for Defendants-Appellants.
Allen, Hill, Peck, Gibson, Hayes.
Cited by 18 opinions  |  Published
Allen, C.J.

Defendants appeal the denial of their motion to vacate a default judgment entered against them. The court’s order is reversed and the judgment vacated.

Plaintiff brought suit against defendants, her landlords, for personal injuries allegedly caused when she tried to enter her apartment through a second-story window after defendants had[*366] unlawfully locked her out. An attorney retained by the defendants entered an appearance and filed an answer denying the plaintiffs allegations. The attorney moved to withdraw after difficulties arose between defendants and the attorney. After a hearing on the motion, at which the defendants did not appear, the motion was granted. The defendants were served notice that leave to withdraw had been granted, and that they had thirty days to “either obtain new counsel or enter a pro se appearance . . . .” They were further notified that a failure to comply “within this designated period subjects you to default judgment . . . .” See V.R.C.P. 79.1(g). Defendants did not respond to this notice.

The plaintiff filed a motion for “judgment by default.” It does not appear from the record that the clerk of the court entered the default of the defendants as required by V.R.C.P. 55(a). The court nevertheless granted plaintiffs motion for a judgment by default based on the defendants’ failure “to appear by counsel or pro se.”

The matter was then set for a hearing on damages. The court heard plaintiff’s testimony and fixed damages, and judgment was entered on that amount. After the judgment order was served on them, defendants moved to vacate the default judgment pursuant to V.R.C.P. 55(c) and 60(b). The motion was denied and this appeal followed.

A motion to vacate a default judgment is addressed to the sound discretion of the trial court, and the denial of the motion will be reversed only upon a demonstration of an abuse of that discretion. Vahlteich v. Knott, 139 Vt. 588, 590, 433 A.2d 287, 288 (1981). Nevertheless, “the rules relating to default judgments should be liberally construed in favor of defendants, and of the desirability of resolving litigation on the merits, to the end that fairness and justice are served.” Desjarlais v. Gilman, 143 Vt. 154, 158-59, 463 A.2d 234, 237 (1983). Due process favors the rights of the defendants to be heard in their own defense. “[D]enial of that right, and rejection of the remedies for default, must have strong support.” Childs v. Hart, 131 Vt. 241, 243, 303 A.2d 139, 140 (1973). Therefore, a “court should be indulgent in opening decrees entered by default.” Vahlteich, supra, 139 Vt. at 590, 433 A. 2d at 288.

Here, there were procedural irregularities involved in the entry of the default judgment. A default was never entered by the clerk of the court, as required by V.R.C.P. 55(a). A default may[*367] not be entered unless it appears that a defendant has failed to plead or otherwise defend. The defendants had appeared, filed a detailed answer to the complaint, asserted a counterclaim and obtained a dissolution of the attachment that plaintiff had obtained.

Further, even if an entry of default was justified by their failure to “otherwise defend,” having appeared and filed an answer, the defendants were entitled to three-days’ notice of the hearing on the application for judgment under 55(b)(2). Reuther v. Gang, 146 Vt. 540, 542, 507 A.2d 972, 973 (1986). The withdrawal of defendants’ counsel did not negate defendants’ appearance; it “means no more than that that particular firm of lawyers ceased to represent the defendant^].” United States v. Edgewater Dyeing & Finishing Co., 21 F.R.D. 304, 304-05 (E.D. Pa. 1957). Withdrawal of counsel only made it necessary to serve notice on the defendants rather than their counsel: it did not eliminate the notice requirement. Gulf Coast Fans, Inc. v. Midwest Electronics Importers, Inc., 740 F.2d 1499, 1512 (11th Cir. 1984); Bass v. Hoagland, 172 F.2d 205, 209 (5th Cir. 1949).

Defendants’ original appearance remained sufficient for purposes of the notice requirement of Rule 55(b)(2). As they were not given the required three-days’ notice of the hearing on plaintiffs motion, the default judgment must be vacated.

Judgment vacated and the matter is remanded for trial on the merits.