State v. Parkway Cleaners ( 2018 )

State v. Parkway Cleaners, No. 480-7-10 Wncv (Teachout, J., July 25, 2018).
[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
Washington Unit Docket # 480-7-10 Wncv
STATE OF VERMONT
AGENCY OF NATURAL RESOURCES
v.
PARKWAY CLEANERS, et al.
DECISION
Mr. Daniels’ Motion for Default Judgment against Paul Gendron (MPR 47);
Mr. Daniels’ Motion for Default and Judgment against Sandra Gendron (MPR 48);
Mr. Daniels’ Motion for Attorney Fees against Paul Gendron, Sandra Gendron (MPR 49);
and Mr. Daniels’ Motion for a Stay Pending Appeal (MPR 50)1
Following a damages hearing, the court entered final judgment against Mr. Daniels and in
favor of the State on April 10, 2018. At the beginning of the first day of the hearing, April 20,
2017, the court granted Mr. Daniels’ motion for an entry of default on Mr. Daniels’ cross-claim
for statutory contribution or indemnity against Paul Gendron. Default judgments against Paul
Gendron had been entered in favor of the State and the Fournier Defendants on June 11, 2015.
Following the final judgment against Mr. Daniels, he sought a default judgment against Paul
Gendron. He also sought for the first time an entry of default for Sandra Gendron and a default
judgment against her on his cross-claim for contribution and indemnity. Separately, Mr. Daniels
has filed a motion for a stay pending appeal, V.R.C.P. 62(d). The State opposes any stay and
takes no position on the other pending motions.
Default Judgment re Paul Gendron
Mr. Daniels’ motion for a default judgment against Paul Gendron, including the motion
for attorney fees (as to Paul Gendron only), is granted. Paul Gendron never appeared or
defended in this case, whether in relation to the State’s claim against him or any cross-claim filed
by the other defendants. His default was entered on the State’s claim and the Fournier’s claim
long ago, and default judgments were entered in 2015. Mr. Daniels sought the entry of his
default on his own cross-claim against Paul Gendron prior to the damages hearing and it was
granted at the beginning of the first day of that hearing. There is no reason to not grant a default
judgment at this time.
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By “Mr. Daniels,” the court refers collectively to Richard S. Daniels and Hazen Street Holdings, Inc. By “Paul
Gendron,” the court refers collectively to Paul D. Gendron, Paul D. Gendron d/b/a Parkway Cleaners, and Parkway
Cleaners. By “Sandra Gendron,” the court refers collectively to Sandra L. Gendron and Sandra L. Gendron d/b/a
Parkway Cleaners.
Default Judgment re Sandra Gendron
Sandra Gendron is not in the same posture as Paul Gendron. Sandra Gendron was named
as a defendant in the State’s complaint, and as a cross-claim defendant to the contribution or
indemnity claims filed by both the Fournier Defendants and Mr. Daniels. She filed a notice of
appearance and an answer to the State’s complaint. She did not file separate answers to the
cross-claims, but she did submit a note to the effect that she is divorced, is working several jobs
“to survive,” and essentially has no resources. During the extremely long time that this case has
been pending, she has received copies of filings, has responded to all relevant hearing notices,
and has kept the court informed of her contact information.
The State sought the entry of Paul Gendron’s default and a default judgment was entered
against him on June 11, 2015. The State has never sought the entry of default or a default
judgment against Sandra Gendron. The Fournier Defendants sought the entry of Paul Gendron’s
default and a default judgment was entered against him on June 11, 2015. The Fournier
Defendants never sought the entry of default or a default judgment against Sandra Gendron. Mr.
Daniels never sought the entry of Paul Gendron’s default until just prior to the damages hearing.
That motion was granted at the beginning of the first day of that hearing, April 20, 2017. A final
judgment against Mr. Daniels eventually was entered on April 10, 2018. For the first time in the
eight years this case has been pending, Mr. Daniels sought the entry of Sandra Gendron’s default
(and a default judgment) on May 10, 2018.
Mr. Daniels’ motions in relation to Sandra Gendron, in the circumstances of this case,
come far too late and are procedural unfair. By April 20, 2017, when the damages hearing
began, Sandra Gendron had every reason to think that any potential liability against her was no
longer an issue in this case. No one had prosecuted any claims against her. No one had sought
the entry of her default or a default judgment against her. She had remained at all times a
participant in this case. Considering the entire litigation of this case retrospectively, her failure
to file a separate answer to Mr. Daniels’ cross-claim, and to fail to defend claims that were not
being prosecuted against her, is purely technical. The court will not find Sandra Gendron in
default where it would as quickly set aside that default were she to ask it to do so. As an
authoritative treatise explains, a timely entry of default allows the “defendant in default to appear
at a subsequent hearing on the question of damages and contest the amount to be assessed.” 10A
Wright & Miller, et al., Federal Practice & Procedure: Civil 4th § 2682. The entry of her default
now would deprive her of that opportunity. It would be patently unfair. See Clark v.
Pennsylvania R. Co., 328 F.2d 591, 594 (2d Cir. 1964) (“One of the prime objectives of [modern
procedural rules] is to do away with the old sporting theory of justice and substitute a more
enlightened policy of putting the cards on the table, so to speak, and keeping surprise tactics
down to a minimum.”).
Mr. Daniels’ Motion for a Stay Pending Appeal
Mr. Daniels seeks a stay pending appeal of the injunction in the final judgment, V.R.C.P.
62(d) or, failing that, a limited stay pending a decision by the Supreme Court on a motion for a
stay that Mr. Daniels may address to it, V.R.A.P. 8(a)(2)(A)(ii). The State opposes any such
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stay.
To determine whether to grant a stay pending appeal, courts generally examine:
(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent
a stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.
11 Wright & Miller et al., Federal Practice & Procedure: Civil 3d § 2903 (citation omitted).
The court is not persuaded that Mr. Daniels is likely to succeed on the merits of any
appeal issues to the effect that the injunctive relief in the final judgment will need to be modified
in a material way or by his claims of irreparable injury. More importantly in this case, the third
and fourth factors weigh heavily in favor of denying a stay. The cleanup of the site—for the
benefit of the public generally and the immediately affected residents specifically—has been
long delayed by the unnecessarily protracted litigation of this case, including Mr. Daniels’
attempt at avoiding responsibility. The public interest strongly favors avoiding further delay.
Mr. Daniels is free to pursue a stay in the Supreme Court.
ORDER
For the foregoing reasons:
(1) Mr. Daniels’ Motion for Default Judgment against Paul Gendron (MPR 47) is
granted;
(2) Mr. Daniels’ Motion for Entry of Default and Default Judgment against Sandra
Gendron (MPR 48) is denied;
(3) Mr. Daniels’ Motion for Attorney Fees against Paul Gendron and Sandra Gendron
(MPR 49) is granted as to Paul Gendron and denied as to Sandra Gendron;
(4) Sandra Gendron is dismissed from this case, no party with a claim against her ever
having prosecuted such a claim in a timely manner; and
(5) Mr. Daniels’ Motion for a Stay Pending Appeal (MPR 50) is denied.
Dated at Montpelier, Vermont this 24th day of July 2018.
_____________________________
Mary Miles Teachout
Superior Judge
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