Posted by Ang on Saturday, January 26, 2013 at 10:31pm.
I am asked to write and internal office memo to my supervising attorney that advises of the results of my research on a given topic and applies the law to the facts in my case.
I have attached the exercise along with my draft internal memo. Can someone please proof and advise if I am going in the right direction. See below:
Exercise 3: Writing an Internal Memo
For this exercise you’ll write an internal office memorandum
to your supervising attorney that advises him or her of the
results of your research on a given topic and applies the law
to the facts in your case. Remember, for an internal office
memo, your purpose is to inform your supervising attorney
as to what your research has found, not to persuade the
reader one way or another.
John Brown sued his dentist, Dr. Thomas Furlow, claiming
he was injured as a result of Dr. Furlow’s failure to extract
an infected tooth on August 3, when he was examined by
Dr. Furlow. After his appointment with Dr. Furlow, ignoring
Dr. Furlow’s recommendation to return because his tooth was
infected, Brown left to go on vacation. While he was camping
in the desert, his tooth became more severely infected. The
infection spread, causing him severe pain and fever and
endangering his life. Brown passed out in the desert and was
found by a passerby, who rushed him to the hospital. His life
was saved, but he incurred significant medical expense, loss
of income, and pain and suffering.
Furlow was served with a complaint on March 1. The summons
stated that he had 20 days to file an answer or that judgment
could be entered against him. Furlow took the complaint home
with him and put it in the safe in his study. Later, he phoned
his attorney, who asked him when he had been served and
made an appointment for March 19.
On Thursday, March 18, Furlow’s house was robbed and
the contents of the safe, along with money and jewelry, were
taken. Fearing for the safety of his wife and children, Furlow
took his family and went to his mother-in-law’s residence,
approximately four hours away. The appointment with his
attorney that morning was forgotten and he spent the weekend
with his family at his mother-in-law’s residence.
Upon his return on Monday, March 22, Dr. Furlow rescheduled
his appointment with his attorney for March 23.
Meanwhile, on March 23, a default judgment was entered
against Furlow. Furlow’s attorney phoned the court clerk the
afternoon of March 23 and was told that a default judgment
had been entered. He immediately filed a motion to set aside
the default judgment.
You are the attorney’s paralegal and are instructed to review
the two cases he believes are on point in this case and the
applicable statutes. After reading the material, prepare a
memorandum explaining whether they are applicable, favorable
or unfavorable, and how they relate to the facts in this case.
Legal Writing Project 1 9
AUBREY H. PERRY, JR. and CHRISTINE PERRY,
f/k/a Christine P. Robey, APPELLANTS
CENTRAL BANK & TRUST COMPANY, APPELLEE
Court of Appeals of Kentucky
812 S.W.2d 166
March 29, 1991, Rendered
PRIOR HISTORY: Appeal from Fayette Circuit Court; Honorable Rebecca Overstreet,
Judge; Action No. 89-CI-2021.
ATTORNEY FOR APPELLANTS: Winifred L. Bryant, Lexington, Kentucky.
ATTORNEYS FOR APPELLEE: Joni D. Tackett, Earl S. Wilson, Jr., Lexington,
Emberton, Howerton, and Miller, Judges. All concur.
OPINION BY: HOWERTON
OPINION: HOWERTON, JUDGE.
Aubrey Perry (Perry) and Christine P. Robey (Christine) appeal from a default
judgment entered in favor of Central Bank & Trust Company (Central Bank). Perry
contends that the trial court erred (1) in finding that it had personal jurisdiction over
him, (2) in granting the default judgment, and (3) in denying the post-judgment
motions. Christine concedes the issue of jurisdiction as to her, but relies on the
latter two issues on appeal. We affirm.
This action began when Padgett Construction Company filed suit to enforce a
mechanics’ and materialmen’s lien in the amount of $5,416.73 for improvements to
the residence of Christine and Frederick Robey (Robey). That complaint was filed on
June 22, 1989, against Robey, his wife Christine, Citizens Fidelity Bank & Trust
Company of Lexington (Citizens), and Central Bank.
Citizens held the first mortgage on the property in the principal amount of
$125,000. Central Bank held a second mortgage on the same property as security for
a loan to Robey and Christine in the principal amount of $500,000. That mortgagenote
was executed on June 29, 1987, and provided that Robey and Christine were
jointly and severally liable on the note. In addition, the note was secured by a deed
of trust to some property in Virginia Beach, Virginia. The note was payable in equal
monthly installments of $5,311.75, with a balloon payment of the balance due on or
before June 29, 1988. Although no mention is made in the note as to the purpose of
the loan, it was used to acquire an interest in Bristol’s Restaurant in Lexington,
On June 8, 1987, Christine’s father, Aubrey Perry, signed a guaranty agreement
in which he agreed to be liable up to $135,000 for any indebtedness of Christine and
Robey to Central Bank incurred on or before June 30, 1988. This agreement began,
“For good and valuable consideration, the receipt of which is hereby acknowledged,
and in order to induce Central Bank & Trust Co. . . to extend credit to Frederick R.
Robey and Christine Robey. . . .” This agreement was mailed to Perry, a Virginia resident,
in Virginia, where it was signed and then it was mailed back to Central Bank.
A few months later, Christine and Robey also signed another note in the principal
amount of $65,000, due and payable in full on or before April 4, 1988. This note was
secured by assignment of a sales contract for $350,000 on the Virginia Beach property,
and the parties have treated this note as if it were also secured by the guaranty
agreement, presumably because of the language in the latter concerning liabilities
incurred on or before June 30, 1988.
Christine and Robey managed to reduce the principal owed to Citizens on
the first mortgage to some $96,760, and they paid the other two notes down to
$209,977.43 and $20,000, respectively. At some point, Robey and Christine separated
and divorced, and Christine moved back to Virginia. As mentioned, suit was begun to
enforce the construction liens and the residence was subject to foreclosure sale.
Because of the guaranty agreement, Central Bank sought to join Aubrey Perry as a
third-party defendant by motion made July 19, 1989. This motion was granted on
August 7, 1989. The house was ultimately sold by private sale for $185,000. The first
mortgage to Citizens was satisfied, and Central Bank received $70,306.70 from the
proceeds toward satisfaction of its second mortgage. Thus, approximately $162,000
of the principal remained owing from the two promissory notes. Central Bank sought
to collect the debt from Robey, Christine, and/or Perry. When the three failed to file
answers to Central Bank’s cross-claim within 20 days, CR 12.01, the bank filed a
motion for default judgment on October 10, 1989. Robey then answered by informing
the court that he had filed for protection under the federal bankruptcy laws on
October 9, 1989.
10 Legal Writing Project 1
Christine filed a notice of entry of appearance on October 20, 1989, and Perry
filed a notice of special entry of appearance on the same day; both filed affidavits
and a response to the motion for default judgment. The trial court granted the
default judgment against Christine and Perry on November 16, 1989, and postjudgment
motions were filed on November 27, 1989, including a motion pursuant
to CR 52.02 for findings of fact and conclusions of law regarding the question of
personal jurisdiction over Perry. A hearing was held on the motions and all were
denied by order entered March 14, 1990. That order stated that the court had
personal jurisdiction over Perry pursuant to KRS 454.210. It is from the entry of
default judgment that Christine and Perry bring this appeal.
Perry challenges the trial court’s assertion of jurisdiction because he was never in
Kentucky concerning the guaranty note, his signature was solicited by the bank, and
the note was sent to him in Virginia where he signed it and mailed it back to the
bank. Our long-arm statute is KRS 454.210, and it is designed to permit the exercise
of personal jurisdiction over nonresident defendants while complying with federal
constitutional requirements of due process. Texas American Bank v. Sayers, 674
S.W.2d 36, 38 (Ky. App. 1984), cert. denied, 469 U.S. 1211, 105 S. Ct. 1180, 84 L. Ed.
2d 328 (1985). Kentucky’s long-arm statute allows its courts “to reach to the full
constitutional limits of due process in entertaining jurisdiction over nonresident
defendants.” Mohler v. Dorado Wings, Inc., 675 S.W.2d 404, 405 (Ky. App. 1984). Due
process requires that a nonresident defendant have certain minimum contacts with
the forum state “such that the maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’” International Shoe Co. v. State of
Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945), quoting
Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278 (1940); see also
Mohler, 675 S.W.2d at 405. To determine the outer limits of personal jurisdiction
based on a single act, the following three-part test has been put forth:
First, the defendant must purposefully avail himself of the privilege of acting
in the forum state or causing a consequence in the forum state. Second, the
cause of action must arise from the defendant’s activities there. Finally, the
acts of the defendant or consequences caused by the defendant must have a
substantial enough connection with the forum state to make the exercise of
jurisdiction over the defendant reasonable.
Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374, 381 (6th Cir.
1968), citing McGee v. International Life Insurance Co., 355 U.S. 220, 78 S. Ct. 199, 2
L. Ed. 2d 223 (1957), and Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed.
2d 1283 (1958).
The statute itself reads in pertinent part:
(2)(a) A court may exercise personal jurisdiction over a person who acts directly
or by an agent, as to a claim arising from the person’s:
1. Transacting any business in this Commonwealth;
. . . .
(3) (a) When personal jurisdiction is authorized by this section, service of
process may be made on such person, or any agent of such person, in any
county in this Commonwealth, where he may be found, or on the secretary of
state who, for this purpose, shall be deemed to be the statutory agent of such
A case which this Court found helpful, but which was not cited by either party, is
National Can Corp. v. K Beverage Co., 674 F.2d 1134 (6th Cir. 1982). In that case, a
North Dakota resident, who never set foot in Kentucky, was subject to personal jurisdiction
in this state by the signing of a personal guaranty agreement in North Dakota.
The nonresident’s husband was a vice president and shareholder of a company whose
principal place of business was Louisville. Her only relationship with Kentucky was
the signing of the agreement and her marital interest in her husband’s stock in the
company. The company failed, and she and other guarantors were sued in federal
The court found that the three-part test of Southern Machine, supra, was met by
all guarantors involved. The court stated that the defendants voluntarily signed the
agreements, “without which credit would not have been furnished.” 674 F.2d at
1137, and the guarantors knew the business was to be located in Kentucky. “Signing
a personal guaranty for a Kentucky business in which one has an economic interest
is the sort of ‘conduct and connection with the forum state’ that makes it reasonable
to ‘anticipate being haled into court there’ when the underlying contract is breached.”
National Can, supra, 674 F.2d at 1138, quoting World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 287, 100 S. Ct. 559, 562, 62 L. Ed. 2d 490 (1980). The court
determined that the guaranties were essential for the startup of the enterprise and
that they constituted “the sort of purposeful act contemplated . . . in Southern
Machine.” 674 F.2d at 1138.
The court in National Can also found that the second prong of the test was met
because the agreements were the basis for the action. 674 F.2d at 1138. The court
then concluded that there was sufficient connection with the forum state to make the
exercise of jurisdiction reasonable, reciting that the guarantors voluntarily signed the
agreements, Kentucky was chosen as the business situs, the guaranties were vital to
the establishment of the business, and the operation had a realistic impact on the
commerce of Kentucky. Id.
Comparing the facts of National Can to the present case, we find several similarities.
While he may not have sought out Central Bank, Perry’s act of signing the
guaranty certainly caused a consequence in this state, because the $500,000 would
not have been loaned to Perry’s daughter and Robey had it not been for Perry’s
signature on the guaranty. See National Can, 674 F.2d at 1137. The agreement also
provided that it shall be “in all respects governed, construed, applied and enforced in
accordance with the laws of [Kentucky].” Although not an explicit consent to jurisdiction,
this language put Perry on notice that he could expect any legal ramifications to
be dealt with in Kentucky.
Furthermore, Perry’s agreement was the basis for the loan and acquisition of the
interest in Bristol’s, cf. National Can, 674 F.2d at 1138, and so the cause of action
arose from his act of guaranteeing the note.
Perry’s act of signing the agreement also had a substantial enough connection
with Kentucky to make personal jurisdiction reasonable. He knew that he was guaranteeing
loans extended in this state for his son-in-law to acquire an interest in a
business here, and he also knew that should Christine and Robey fail to make payments
or if the business venture failed, he would be looked to for payment. While he
did not acquire any economic interest in the business himself, he certainly had a
stake in its success. The court in Davis H. Elliott Co. v. Caribbean Utilities Co., 513
F.2d 1176 (6th Cir. 1975) stated at 1182:
The purposeful action test of Southern Machine . . . is not intended to
require . . . that to be subject to the personal jurisdiction of the courts of a
state, a nonresident corporation must actively conduct an income-generating
enterprise in that state. To the contrary, it is designed only “to insure that the
defendant has become involved with the forum state through actions freely
and intentionally done. . . .” In-Flight Devices Corp. v. Van Dusen Air, Inc.,
466 F.2d 220, 228 (6th Cir. 1972).
We believe the trial court correctly concluded that Perry had sufficient minimum
contacts with Kentucky to satisfy due process requirements for personal jurisdiction.
Next, we turn to Perry and Christine’s second allegation that the trial court erred
in granting default judgment. CR 55.02 provides that a court may set aside a default
judgment in accordance with CR 60.02 for good cause shown. Factors to consider in
deciding whether to set aside a judgment are: (1) valid excuse for default, (2) meritorious
defense, and (3) absence of prejudice to the other party. 7 W. Bertelsman and
K. Philipps, Kentucky Practice, CR 55.02, comment 2 (4th ed. 1984) [hereinafter
Christine signed for the service of process of the lawsuit, but stated that she
talked with her former attorney who, as Christine recalls, advised her that she did
not think she had any assets. Based on this advice, Christine made no response to
the summons. “Carelessness by a party or his attorney is not reason enough to set
an entry aside.” 7 Ky. Prac. CR 55.02, comment 2. Perry signed for the motion seeking
to add him as a party to the original suit, and his housekeeper signed for the actual
summons once he became a party. This was accomplished in July and in early
September 1989. Perry states that he had no knowledge of the suit until he received
the motion for default judgment on October 12, 1989. Furthermore, both Christine
and Perry wrote letters in August agreeing to the private sale of the Robey residence.
This should have put them on notice that should there not be enough money realized
from the sale, the entire mortgage would not be satisfied and this might open them
up for some liability.
We believe the parties did not exercise due diligence concerning this suit and
answering the summons. Furthermore, the apparent defenses which might alter
the outcome are also weak. Christine and her father both assert that Central Bank
misrepresented the extent of the interest Robey was acquiring. Christine and Perry
claim that they believed Robey was acquiring interests in two Louisville restaurants
and a meat packing company in Lexington as well, for the $500,000. Central Bank
merely wanted security for its loan to Robey and Christine. The bank was not concerned
with whether Robey was acquiring an interest in one restaurant or three;
its only concern was that the borrower be able to pay the loan, or in the alternative,
that there be adequate security in the event of default.
It is true that courts do not favor default judgments and that it is preferable to
decide cases on the merits. Dressler v. Barlow, 729 S.W.2d 464, 465 (Ky. App. 1987).
If it appeared that Christine and Perry had a truly meritorious defense, then on balance,
whether the trial court should have set the judgment aside would be a close
call. However, we believe the excuses for failing to answer are weak, as are the
defenses, and we cannot say it was an error or abuse of discretion for the trial court
either to grant the default judgment or to refuse to set it aside.
The judgment and order of the Fayette Circuit Court are affirmed.
Legal Writing Project 1 15
GREEN SEED COMPANY, INC., APPELLANT
HARRISON TOBACCO STORAGE WAREHOUSE, INC., APPELLEE
Court of Appeals of Kentucky
663 S.W.2d 755
January 27, 1984
APPEAL FROM HARRISON CIRCUIT COURT, HONORABLE JOHN P. LAIR, JUDGE,
CIVIL ACTION NO. 81-CI-184
Attorney For Appellant: William C. Shouse, Shouse & Burrus, Lexington, Kentucky.
Attorney For Appellee: David E. Melcher, Swinford & Sims, Cynthiana, Kentucky.
JUDGE: Hayes, Chief Judge.
OPINION BY: HAYES
OPINION: This appeal arises from a refusal to set aside a default judgment by the
Harrison Circuit Court.
The appellee entered into a lease agreement with the appellant on May 16, 1979.
The appellee filed suit against the appellant on September 28, 1981, seeking judgment
for the entire rental payment due under the lease. On October 23, 1981, the
appellant filed a petition for removal in the United States District Court, properly
served the appellee and filed a copy with the Harrison Circuit Court. This petition
was dismissed as defective on October 27, 1981.
Instead of amending this petition, the appellant filed a second petition for removal
on November 5, 1981, longer than thirty days after the filing of the complaint. Neither
the appellee nor the Harrison Circuit Court received notice or copy of this petition,
although the appellant offered affidavits that notice and copy were mailed. On
January 27, 1982, the appellee applied for a default judgment because of the appellant’s
failure to plead or otherwise defend the action. The appellant had made no answer
in the trial court where both the appellee and the trial court thought the action to be
because of the aforementioned failure in notice. The appellant also had made no answer
or defense in the United States District Court where he thought the action to be.
On February 5, 1982, the trial court granted and entered the default judgment.
The appellant appeared and made a motion to set aside the default judgment on
February 16, 1982, because the second petition for removal had not been remanded.
Prior to ruling on this motion, the United States District Court, on April 1, 1982, dismissed
the second petition for removal as being defective. The appellant, then, asked
the trial court for leave to file an answer and counterclaim and to amend its motion
to set aside the default judgment.
On August 6, 1982, the trial court denied the motion to set aside the judgment.
The issue before this Court is whether the trial court abused its discretion in
failing to set aside the default judgment.
The law clearly disfavors default judgments. Bargo v. Lewis, 305 S.W.2d 757 (Ky.
1957). Moreover, the trial court has wide discretion to set aside a default judgment.
Northcutt v. Nicholson, 246 Ky. 641, 55 S.W.2d 659 (1932). The moving party, however,
cannot have the judgment set aside and achieve his day in court if he cannot show
good cause and a meritorious defense. CR 55.02; Jacobs v. Bell, 441 S.W.2d 448 (Ky.
1969). Good cause is most commonly defined as a timely showing of the circumstances
under which the default judgment was procured. The appellant asserts that his
reliance on the removal of the trial court’s jurisdiction to the United States District
Court is a sufficient showing of good cause. This Court does not agree.
Federal, not state, law governs all removal proceedings. Grubbs v. General Electric
Credit Corp., 405 U.S. 699, 31 L. Ed. 2d 612, 92 S. Ct. 1344 (1972). Removal of jurisdiction
is effected after the movant files a petition and bond, gives notice to all adverse
parties, and files a copy of the petition with the clerk of the state court. 28 U.S.C. §
1446(e). Once these steps are completed, the state court loses jurisdiction over the
case unless and until the case is remanded by the federal court. Id. The removal is
effective the date of the petition. Howes v. Childers, 426 F. Supp. 358 (W.D. Ky. 1977);
contra, Wright, Miller & Cooper, 14 Federal Practice & Procedure § 3737 (1976). Since
the state court retains its jurisdiction until it is notified of the removal petition, this
procedure allows an interim period between the filing of the petition and the notice to
the parties and the state court where the federal and state courts both have jurisdiction.
Berberian v. Gibney, 514 F.2d 790 (1st Cir. 1975), Howes, supra. Dual jurisdiction
remained in the instant case at least until February 16, 1982, when the appellant’s
motion to set aside the default judgment first notified the appellee and the trial court
of the second petition for removal. See Medrano v. State of Texas, 580 F.2d 803
(5th Cir. 1978). Where no notice, actual or constructive, is given to the state court,
the trial court’s actions are not void. Id. Obviously, conflicting actions can occur.
Most courts find concurrent jurisdiction means nothing more than that once the
state court is notified of the removal, federal jurisdiction predominates in any conflicting
actions during this interim period. 1A Moore’s Federal Practice 0.168 [.3-8]
(1983); Howes, supra; contra; Wright § 3737. In effect, then, the federal court can
overturn any default judgment that had been granted during the period of dual jurisdiction.
Id. Where, as in the case at bar, the federal court dismisses the petition, the
removing party’s only recourse is a motion to set aside the judgment, and reliance on
his petition for removal as good cause may fail. When the removing party fails to
answer in compliance with either CR 12.01 or Fed. R. Civ. P. 81, the trial court does
not abuse its discretion in finding such reliance inadequate as good cause.
CR 12.01 requires a defendant to serve his answer within twenty (20) days after
service of the summons upon him. The appellant waited almost seven (7) months
before he served the appellee with his answer. The default judgment was not granted
until over three (3) months had elapsed after the time the appellant was required to
tender his answer. The appellant’s failure to file a timely answer is sufficient basis for
a default judgment, and the appellant is not entitled to have the judgment set aside
unless he can show reasonable excuse for the delay in answering and establish that
he is not guilty of unreasonable delay. CR 55.01; Terrafirma, Inc. v. Krogdahl, 380
S.W.2d 86 (Ky. 1964).
The appellant’s assertion that he believed the case had been removed is an
unreasonable excuse when he has not complied with Fed. R. Civ. P. 81. This rule
attempts to resolve the potential conflicts between the thirty (30) days allowed for
removal under 28 U.S.C. § 1446, the twenty days allowed for an answer under Fed. R.
Civ. P. 12, and the various times allowed for answers under state rules by providing,
In a removed action in which the defendant has not answered, he shall answer
or present the other defenses or objections available to him under these rules
within 20 days after the receipt through service or otherwise of a copy of the
initial pleading setting forth the claim for relief upon which the action or proceeding
is based, or within 20 days after service of summons upon such initial
pleading, then filed, or within 5 days after the filing of the petition for removal,
whichever period is longer.
Fed. R. Civ. P. 81(c). The removing party, then, can wait until the longer of twenty
(20) days after service or summons or five (5) days after the removal petition to
answer the complaint and need not comply with state rules. The party, however,
must answer. The appellant’s failure to answer pursuant to this rule belies his
reliance on the removal proceedings and precludes his using this reliance as an
excuse for delay.
The appellant’s reply brief suggests that good cause is further established because
notice of the February 5, 1982 hearing was required by CR 55.01 and he received no
notice. The record presents conflicting evidence as to whether the appellant received
notice of the hearing. CR 55.01, however, requires notice only when the party has
made an appearance before the court. Pound Mill Coal Co. v. Pennington, 309 S.W.2d
772 (Ky. 1958). While appellant argues the filing of the first petition for removal is an
appearance, he has not appeared. The general rule of law holds that “in the federal or
state courts a petition for the removal of a cause to a federal court and the proceedings
thereon do not constitute an appearance which waives jurisdictional objections or
prevents defendant from being in default for want of appearance.” 6 C.J.S.
Appearances § 32 (1975).
The word “appeared” in CR 55.01 means the defendant has so participated in
the action as to indicate an intention to defend. Smith v. Gadd, 280 S.W.2d 495 (Ky.
1955). The appellant’s failure to answer in any court for seven months contradicts
any intention to defend and makes unnecessary the resolution of whether the
appellant received notice.
The trial court did not abuse its discretion in finding the appellant failed to
show good cause. His failure to show good cause obviates any need for this court to
determine whether the appellant presented a meritorious defense.
The judgment is affirmed.
Kentucky Civil Rule 6.01. Computation
In computing any period of time prescribed or allowed by these rules, by order of
court or by any applicable statute, the day of the act, event or default after which
the designated period of time begins to run is not to be included. The last day of
the period so computed is to be included, unless it is a Saturday, a Sunday or a
legal holiday, in which event the period runs until the end of the next day which
is not a Saturday, a Sunday or a legal holiday. When the period of time prescribed
or allowed is less than seven days, intermediate Saturdays, Sundays and legal
holidays shall be excluded in the computation.
Kentucky Civil Rule 55.02. Setting Aside Default
For good cause shown the court may set aside a judgment by default in
accordance with Rule 60.02.
Kentucky Civil Rule 60.02. Mistake; inadvertence; excusable neglect; newly
discovered evidence; fraud; etc.
On motion a court may, upon such terms as are just, relieve a party or his legal
representative from its final judgment, order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly
discovered evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d)
fraud affecting the proceedings, other than perjury or falsified evidence;
(e) the judgment is void, or has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have prospective application; or
(f) any other reason of an extraordinary nature justifying relief. The motion shall
be made within a reasonable time, and on grounds (a), (b), and (c) not more than
one year after the judgment, order, or proceeding was entered or taken. A motion
under this rule does not affect the finality of a judgment or suspend its operation.
As you’re reading each case and statute, consider what factors must be shown to
constitute good cause for setting aside a default judgment. For each factor you have
found, identify the facts in our case, Brown v. Furlow, that would be helpful or harmful
in establishing that factor. If the facts of the cases provided are sufficiently different
from our case, you can try to distinguish the case, explaining what arguments you
think can be made not to use it if it would be harmful to our case. Also, if the facts are
different but could be helpful, you should explain why, even with different facts, it
should be controlling in our case.
When you’re reading the two cases provided to you, please remember you’re trying to
determine the state of the law from the information provided in the cases. Don’t look
up any additional law and don’t cite any case law used by the judges writing these
opinions as authority. Use only these cases and statutes as your authority.
The cases and statutes you should use should be cited as follows:
• Perry v. Central Bank & Trust, 812 S.W.2d 166 (Ky. Ct. App. 1991)
• Green Seed Co., Inc. v. Harrison Tobacco Storage Warehouse, Inc, 663 S.W.2d 755
(Ky. Ct. App. 1984)
• Ky. Civ. R. 6.01; Ky. Civ. R. 55.02 and Ky. Civ. R. 60.02
To: Eliza Smith, Supervising Attorney
Re: Brown v. Furlow, 04-CV-5887
Our File No. 5-987
Statement of Facts:
Our client, Dr. Thomas Furlow examined John Brown on August 3 and saw that his tooth was infected. He recommended Mr. Brown return because of the infected tooth. However, Mr. Brown went on vacation and disregarded Dr. Furlow’s recommendation.
Mr. Brown passed out from a severely infected tooth while vacationing. He subsequently filed a complaint against Dr. Furlow for not extracting his infected tooth on his examination day.
Dr. Furlow received the complaint on March 1. He took the complaint home, locked it away in his vault and later contacted us. He had 20 days to reply. Our office gave Dr. Furlow an appointment for March 19. His home was robbed on March 18 and the complaint stolen along with other items. Fearing for his family, Dr. Furlow went to stay with his in-laws from March 18 to March 22, forgetting about his appointment with us on March 19. He contacted us on March 22, when we gave him an appointment for March 23. The court clerk told us on the afternoon of March 23 that a default judgment had been entered. We immediately filed a motion to set aside the default judgment.
1. Could Dr. Furlow have extracted John Brown’s tooth on the day that he examined him?
2. Was Dr. Furlow negligent in only recommending instead of insisting that John Brown return with the infected tooth?
3. Should Dr. Furlow have advised John Brown of the risk of not returning with the infected tooth?
4. Was Dr Furlow negligent when upon realizing that he missed his March 19 appointment, come directly to our office on March 22 instead of calling and making a further appointment?
5. Were we negligent in not insisting that Dr. Furlow come to the office on March 22 instead of giving an appointment for March 23?
6. Were we negligent in giving the first appointment so close to the deadline for filing/responding?
7. Do we have a good defense to set aside judgment?
1. On the day of examination, Dr. Furlow could not extract John Brown’s infected tooth.
2. Dr. Furlow can only make recommendations to his patients but he cannot insist/force anything on them.
3. Dr. Furlow did advise John Brown of all risk involved with keeping an infected tooth for a long period.
4. Dr. Furlow should have attended our office upon realizing that he missed his appointment instead of calling.
5. Our office should have insisted that he come in right away on March 22 instead of making another appointment for March 23.
6. We should have considered unforeseen circumstances and not give Dr. Furlow an appointment so close to his final date of response.
7. We do have a good defense and can show both excusable and meritorious defense.
Ky. Civ. R. 6.01 states that the day of service is not to be included and the last day of the period so computed is to be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day. This therefore means that Dr. Furlow’s last day for response was Monday, March 22, and he was late by one (1) day.
In Perry v. Central Bank & Trust, 812 S.W.2d 166 (Ky. Ct. App. 1991) it was reasoned as to whether the parties exercised due diligence concerning the suit and answering the summons. It also stated that carelessness by a party or his attorney is not reason enough to set an entry aside. With that said, Dr. Furlow’s motion to set aside the default judgment has a chance of succeeding. We can show that he had every intention to answer the complaint within the twenty 20 days; however, he could not do so, due to the break-in of his home and concerns for his family’s safety. Furthermore, he can prove that he had taken all precautions in advising John Brown of all risks involved, should he not return with the infected tooth. From the facts stated, we have a valid excuse for default and a meritorious defense as stated in Ky. Civ. R. 55.02 and Ky. Civ. R. 60.02
In light of the fact that courts do not favor default judgments but prefer to decide cases on their merits and based upon our facts presented in the motion to set aside the default judgment, the court will most likely rule in Dr. Furlow’s favor, thereby setting aside Mr. Brown’s default judgment. He has met all the requirements and shown good cause for setting aside the default judgment. Ky. Civ. R. 55.02. Furthermore, Dr. Furlow has satisfied the following grounds (a) mistake, inadvertence, surprise or excusable neglect and (f) any other reason of an extraordinary nature justifying relief. Ky. Civ. R. 60.02.
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