Secretary, Vermont Agency of Natural Resources v. Thomas Doran

Secretary, Vermont Agency of Natural Resources, Plaintiff,

Thomas Doran, Defendant

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Docket No. 279-12-02 Vtec

The Secretary of the Agency of Natural Resources is represented by Gary Kessler, Esq.; Defendant Thomas Doran represents himself.

Mr. Doran filed another short letter with the Court on December 1, 2003, enclosing his entry of appearance to represent himself (which itself contains handwritten note: A Being advised by an attorney at this time@ ); and moving to set aside the default judgment in this matter. It again did not appear from the face of the letter filed December 1, 2003, that Mr. Doran had sent a copy to Attorney Kessler, and we have just found out that Attorney Kessler was not sent a copy. This is the last time we will remind Mr. Doran that each party is required by the rules of procedure to send a copy of anything filed with the Court to the other parties in the case and that judges are not allowed to consider any communication from one party unless all the other parties have received copies of it. The Court staff faxed a copy of the December 1, 2003 letter to Attorney Kessler on February 2, 2004 and a copy is enclosed with this order for his information (copy enclosed).

We again repeat the procedural status of this matter to date. The Agency issued an Administrative Order regarding Mr. Doran in March 2002, which was personally served on him on April 2, 2002. Mr. Doran did not request a hearing on that administrative order, and it became final. Because no hearing was requested and the Administrative Order became final, the Court cannot consider the merits of the original administrative order in this case. See 10 V.S.A. Chapter 201.

On December 2, 2002 the Agency served a summons and complaint on Mr. Doran for failing to comply with the final administrative order; that enforcement action is this present case, Docket Number 279-12-02 Vtec. This is an enforcement action filed under 10 V.S.A. ' 8014, to enforce the final administrative order. Mr. Doran did not file an answer, or otherwise appear in the enforcement action, and has not done so to date. The Agency of Natural Resources moved for a default judgment and the Court granted the Agency= s motion for default judgment on March 14, 2003. The default judgment order was personally served on Mr. Doran in June 2003. The Agency then filed a petition for contempt in the enforcement action, which was set for hearing several times and postponed. We treated Mr. Doran= s July 2003 letter as Mr. Doran= s entry of appearance on his own behalf for the purpose of avoiding a default of the contempt proceedings, and received his entry of appearance as an unrepresented party enclosed with his December 1, 2003 letter.

Until his December 1, 2003 letter, Mr. Doran had not moved to set aside the default judgment or to reopen the enforcement action. Default judgments are disfavored and the rules on reopening cases should be liberally construed in favor of defendants and the desirability of resolving litigation on the merits, see Desjarlais v. Gilman, 143 Vt. 154, 158-59 (1983); Courtyard Partners v. Tanner, 157 Vt. 638, 638-39 (1991). However, Mr. Doran= s > motion= to set aside the default judgment contains no answer to the complaint and no explanation of why he did not answer the complaint when it was served on him, and does not address the V.R.C.P. 60 (b) grounds for reopening a judgment. (Copy enclosed).

Accordingly, so that it is postmarked on or before Friday, February 13, 2004, Mr. Doran may file a memorandum explaining the grounds for his motion, consistent with the rules. It must be addressed to the Environmental Court at the Barre address and a copy must be sent to Attorney Kessler at the same time. Attorney Kessler may file a responsive memorandum within the time provided by the rules and then the Court will rule on whether the default judgment should be set aside and the case reopened. If the case is reopened, we will schedule the hearing on the merits of the case to enforce the administrative order. If the case is not reopened we will schedule the hearing on the contempt petition for failure to comply with the default judgment.

This is a separate issue from when and whether a jury trial may be required in a civil enforcement action, that is, if Mr. Doran had either requested a hearing on the administrative order (so that it would not have gone into effect as a final administrative order), or if he had answered the complaint in this action by the agency to enforce that final administrative order. We do not now address any issues regarding a jury trial in relation to either of those scenarios.

Rather, all that we have before us at this time (that is, until or unless the enforcement default judgment is reopened) is a civil contempt proceeding to require compliance with the default judgment order. There is no right to a jury trial in a civil contempt proceeding, as the sanctions that can be imposed are limited to those designed to compel compliance with an existing court order. See, International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 826-27 (1994). Nor is there any statutory right to a jury trial for civil contempt. 12 V.S.A. ' ' 121-123; compare V.R.Cr.P. 42(b) for criminal contempt. Accordingly, Defendant= s request for a jury trial on the civil contempt petition is DENIED.