Paralegal TAX ASSESSORS’ OFFICE
EXERCISE 1 : PREPARING A LETTER TO A CLIENT
In Figure 1, you’ll find a memo from your supervising attorney asking you to prepare a letter to your client, Jane Smith. In the memo, your supervising attorney is telling you she received a Tax Assessors’ Office Hearing Notice and wants you to send a letter to Ms.
Smith advising her of the hearing. The information that should be included in your letter to the client is in both the memo from your supervising attorney and the appeal hearing notice shown in Figure 2. When preparing the letter, make sure you use the letter writing recommendations included in the Legal Writing study unit. The letter should go out under
your signature, not your supervising attorney’s signature. The letter to Ms. Smith should go to the property address listed in the Tax Notice. Sample letterhead for your law firm is shown in Figure 3. Use the client’s address that’s listed in the hearing notice.
Memo
From: Supervising Attorney, ES
To: Paralegal
Date: Today
Re: Jane Smith, Tax Appeal
Our File No. Smith-3-04
Please send a letter to Ms. Smith advising her of her tax appeal hearing per the attached notice. Please make sure she remembers she is to meet me in the lobby ten minutes before the hearing is scheduled to begin and that she should bring pictures of all comparable houses in her area as per our earlier meeting.
ES
FIGURE 1—Memo from Supervising Attorney to Paralegal
TAX ASSESSORS’ OFFICE HEARING NOTICE
Office of the Tax Assessors of Lackawanna County
County Office Building
211 Ace Road—5th Floor
Clark, Pennsylvania 18111
Taxpayer: Jane P. Smith
Property Location: 123 Rock Road, Clark, Pennsylvania 18118
Tax Map No.: 19-19-050-019-8
Date of Hearing: March 6, 2018
Time of Hearing: 10:35 a.m.
FIGURE 2—Hearing Notice
Law Offices of Eliza Smith and Associates
5678 Barrister Row
Clark, Pennsylvania 18112
(771) 333-4444
Fax (771) 333-4445
(Date)
(Client Name)
(Client Address)
RE:
Dear:
Very truly yours,
cc:
FIGURE 3—Sample Letterhead
EXERCISE 2: PREPARING A DEED
In Figure 4, you’ll find another memo from your supervising attorney asking you to prepare a new deed for your client, Jane Smith, who is selling her home. In the memo, your
supervising attorney gives you some of the terms of the sale. The information that needs
to be included in the new deed you’re preparing is in the memo from your supervising
attorney and in Figure 5, the previous deed in which your client took title and became the
owner of the property. Figure 6 is a blank deed form for you to use in preparing the new
deed from your client, Jane Smith, to the buyer (grantee).
Note: Scan or type the deed form into your computer to complete this assignment. A
deed must be signed by the grantors, witnessed, and notarized for it to be complete. You
can use your own name for the notary and any other name you choose for the name of
the witness.
Memo
To: Paralegal
From: Supervising Attorney
Date: [Fill in today’s date]
Re: Jane Smith, Sale of residence
Our File No. Smith-2-04
Please prepare a new Deed in connection with our client’s sale of her residence.
I have attached her old Deed for you to obtain the legal description. The buyers are
Adam and Sally Jones, also of Clark, PA, and the purchase price is $150,000.00.
FIGURE 4—Memo from Supervising Attorney to Paralegal
FIGURE 5—This figure shows the previous deed, in which Jane Smith became the
owner.
FIGURE 6—Deed Form
EXERCISE 3: WRITING AN INTERNAL
MEMO
For this exercise you’ll write an internal office memorandum to your supervising attorney
that advises 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.
Fact Scenario
John Brown sued his dentist, Dr. Thomas Furlow, claiming he was injured because 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 camped
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. He forgot the appointment with his attorney that morning and 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’re Dr. Furlow’s attorney’s paralegal and are instructed to review the two cases she
believes are on point in this case and the applicable statutes. After reading the material, prepare a memorandum explaining whether they’re applicable, favorable or unfavorable, and how they relate to the facts in this case
CASES
CASE #1
AUBREY H. PERRY, JR. and CHRISTINE PERRY,
f/k/a Christine P. Robey, APPELLANTS
v.
CENTRAL BANK & TRUST COMPANY, APPELL
No. 90-CA-603-MR
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.
DISPOSITION: AFFIRMING.
COUNSEL:
ATTORNEY FOR APPELLANTS: Winifred L. Bryant, Lexington, Kentucky.
ATTORNEYS FOR APPELLEE: Joni D. Tackett, Earl S. Wilson, Jr., Lexington, Kentucky.
JUDGES:
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 mortgage note 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, Kentucky.
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. 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 person.
KRS 454.210.
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 district court.
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 “Ky. Prac.”].
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.
AFFIRMING.
CASE #2
GREEN SEED COMPANY, INC., APPELLANT
v.
HARRISON TOBACCO STORAGE WAREHOUSE, INC., APPELLEE
No. 82-CA-2468-MR
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
DISPOSITION: AFFIRMING
COUNSEL:
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.
ALL CONCUR.
STATUTES
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
TIPS
As you’re reading each case and statute, consider what factors must be shown to constitute good cause for setting aside the default judgment. For each factor you’ve 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:
n Perry v. Central Bank & Trust, 812 S.W.2d 166 (Ky. Ct. App. 1991)
n Green Seed Co., Inc. v. Harrison Tobacco Storage Warehouse, Inc, 663 S.W.2d
755 (Ky. Ct. App. 1984)
n Ky. Civ. R. 6.01; Ky. Civ. R. 55.02; and Ky. Civ. R. 60.02
Here are some tips for writing the memorandum:
n Use the format shown in Figure 7.
n Follow the format described in your Legal Writing study unit.
n Avoid long words and legal jargon.
n Don’t overdo it—be brief and to the point, but thorough.
n Write in the active voice as much as you can.
n Check for errors of spelling, punctuation, and format.
Be sure to include precedent using the four cases and civil rules given. Cite only these four cases and civil rules. Proofread and make your final editing review from a paper copy, not directly from the computer screen.
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