Filed: Apr. 17, 2012
Latest Update: Mar. 03, 2020
Summary: Palmer v. Tappan, No. S0219-12 CnC (Tomasi, J., Apr. 17, 2012) [The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.] 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 201
Summary: Palmer v. Tappan, No. S0219-12 CnC (Tomasi, J., Apr. 17, 2012) [The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.] 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..
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Palmer v. Tappan, No. S0219-12 CnC (Tomasi, J., Apr. 17, 2012)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
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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