graded project legal writing project 1 · 1 introduction background. this graded project provides...

Graded Project

Legal Writing Project 1By

Mike Wilson, Esq.

Reviewed by

Brian Bastyr, Esq.

All terms mentioned in this text that are known to be trademarks or servicemarks have been appropriately capitalized. Use of a term in this text shouldnot be regarded as affecting the validity of any trademark or service mark.

About the Author

Mike Wilson is a freelance writer and college instructor who has

had wide legal and educational experience.

He graduated with his bachelor of arts degree in English from the

University of Kentucky in 1976, and three years later received his

law degree from the same school. He has been a partner in a law

firm, a solo practitioner, and has done work in general and family

mediation. He has also been a full-time instructor in Paralegal

Studies at Sullivan College in Kentucky. He was given the “Teacher

of the Year” award in 1997.

Mr. Wilson has had a number of papers published on law-related

topics in both scholarly and popular journals.

About the Reviewer

Brian Bastyr is a senior attorney editor for West Group, a legal pub-

lishing company. He earned a bachelor’s degree at the University of

Illinois, and a Juris Doctor from the University of Illinois College of

Law. He is currently a member of the Illinois bar, and has published

a number of articles in legal journals.

Copyright © 2005 by Penn Foster, Inc.

All rights reserved. No part of the material protected by this copyright maybe reproduced or utilized in any form or by any means, electronic ormechanical, including photocopying, recording, or by any informationstorage and retrieval system, without permission in writing from the copy-right owner.

Requests for permission to make copies of any part of the work should be mailed to Copyright Permissions, Penn Foster, 925 Oak Street, Scranton,Pennsylvania 18515.

Printed in the United States of America

iii

INTRODUCTION 1

EXERCISES 2

CASES 9

STATUTES 18

TIPS 19

WRITING GUIDELINES 21

SUBMITTING YOUR PROJECT 21

GRADING CRITERIA 22

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INTRODUCTION Background. This graded project provides practical experi-ence in the type of legal writing you may be asked to do as a paralegal.

Procedure. This project involves three exercises. For thefirst exercise, you’ll prepare a letter to a client advising herof the date and time of her tax assessment appeal hearing.For the second exercise, you’ll prepare a deed for a clientwho is selling her property. In the first and second exercises,you’ll also be asked to review your supervising attorney’smemo and then prepare the required document. A form letterand deed are provided to you to help in completing theassignment. For the final exercise, you’ll prepare an internalmemorandum to your supervising attorney addressing a par-ticular issue of law. Statutory and court authority needed tocomplete this assignment are provided.

Goal. When you’ve completed this project, you’ll haveexperience preparing several types of legal writing, whichyou may be asked to do as a paralegal in a law firm. You’llalso have practice in following very specific formats andforms in completing these projects, and in using clear, pre-cise language and good grammar, spelling, and punctuationwhen you write.

Legal Writing Project 1


EXERCISES

Exercise 1: Preparing a Letter to a Client

In Figure 1, you’ll find a memo from your supervising attorneyasking you to prepare a letter to your client, Jane Smith. Inthe memo, your supervising attorney is telling you that hehas received a Tax Assessors’ Office Hearing Notice and shewants you to send a letter to Ms. Smith advising her of thathearing. The information that should be included in yourletter to the client is in both the memo from your supervisingattorney and the appeal hearing notice shown in Figure 2.

When you’re preparing your letter, make sure you use theletter 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 TaxNotice. 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 theattached 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

Legal Writing Project 1 3

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, 2005

Time of Hearing: 10:35 a.m.

��

��

��

�� !""""

��# �� !"""�

(Date)

(Client Name)(Client Address)

RE:

Dear

Very truly yours,

__________________________

cc:

FIGURE 2—Hearing Notice

FIGURE 3—Sample Letterhead

Exercise 2: Preparing a Deed

In Figure 4 you’ll find another memo from your supervisingattorney asking you to prepare a new deed for your client,Jane Smith, who is selling her home. In the memo, yoursupervising attorney gives you some of the terms of the sale.The information that needs to be included in the new deedyou’re preparing is in the memo from your supervising attor-ney and in Figure 5, the previous deed in which your clienttook title and became the owner of the property. Figure 6 isa blank deed form for you to use in preparing the new deedfrom your client, Jane Smith, to the buyer (grantee).

Note: Scan or type the deed form into your computer to complete this assignment.


MEMOTo: 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.

Note: A Deed must be signed by the Grantors, witnessed, and notarized in order 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.

FIGURE 4—Memo From Supervising Attorney to Paralegal


THIS DEEDMade the 2nd day of November, in the year Nineteen Hundred Eighty-Four (1984)

Between DAVID JENKINS and JOAN L. JENKINS, husband and wife, of the Borough of Dalton, Lackawanna County,Pennsylvania, hereinafter referred to as the Grantors

AN

D

JANE P. SMITH, of the Borough of Clark, Lackawanna County, Pennsylvania, hereinafter referred to as the Grantee.

WITNESSETH, That in consideration of the sum of Twenty-Five Thousand ($25,000.00) Dollars, in hand paid, the receiptwhereof is hereby acknowledged, the Grantors do hereby grant and convey to the said Grantee, her Heirs and Assigns,

ALL those certain lots, pieces or parcels of land situate in the Borough of Clark, County of Lackawanna andCommonwealth of Pennsylvania, bounded and described as follows, to wit:

BEGINNING at a point in the Easterly line of Rock Avenue which point is Twenty (20) feet Southerly from thedivision line between Lots numbered 197 and 198; thence along the line of said Rock Avenue in a Southerly direc-tion Eighty (80) feet to a point still in the line of said Rock Avenue; thence at right angles to the last mentionedcourse and in an Easterly direction One Hundred Seven and five-tenths (107.5) feet to a point in the rear line of Lotnumbered 205; thence at right angles to last mentioned course in a Northerly direction and parallel with said RockAvenue and along the rear line of lots numbered 205, 206 and 207, Eighty (80) feet to a corner; thence at rightangles to last mentioned course and in a Westerly direction One Hundred Seven and five-tenths (107.5) feet to acorner in line of Rock Avenue, the place of BEGINNING.

Containing approximately 86,000 square feet of land, more or less, and being the Southerly one-half of Lotnumbered 198.

Subject to all restrictions, reservations conditions and exceptions as set forth in deeds forming the chain of title.

BEING the same premises conveyed to the Grantors herein by deed of Mo Wells, et al., dated May 3, 1964,and recorded in the Lackawanna County Recorder of Deeds in Deed Book 810 Page 233.

Tax Map No. 19-19-050-019-8

And the said Grantors do hereby generally warrant the property hereby conveyed.

IN WITNESS WHEREOF, said Grantors have hereunto set their hands and seals the day and year first above written.

Signed, Sealed and Delivered

in the Presence of:

�� David Jenkins Emily Miller

��

Joan L. Jenkins

Commonwealth of Pennsylvania )) ss.

County of Lackawanna )

On this, the 2nd of November, 1984, before me, the undersigned officer, personally appeared David Jenkinsand Joan L. Jenkins, husband and wife, known to me or satisfactorily proven to be the persons whose names aresubscribed to the within instrument and acknowledged that they executed the same for the purposes herein contained.

IN WITNESS WHEREOF, I have hereunto set my hand and seal.

��Notary Public

I hereby certify that the precise address of the Grantee herein is 123 Rock Road, Clark, Pennsylvania 18118.

�� Attorney for Grantee

Recorded in Lackawanna County Deed Book 2282 Page 221

FIGURE 5—This figure shows the previous deed, in which Jane Smith became the owner.


THIS DEED

Made the _______ day of ____________, in the year Two Thousand and ____________ (20____)Between _____________, of the Township of ______________, _____________ County, Pennsylvania, hereinafterreferred to as the Grantors

AN

D

_______________, of the Township of _______________, _______________ County, Pennsylvania, hereinafter referredto as the Grantee.

WITNESSETH, That in consideration of the sum of _______________ (________) Dollars, in hand paid, the receiptwhereof is hereby acknowledged, the Grantors do hereby grant and convey to the said Grantee, her Heirs and Assigns,

ALL that certain piece or parcels of land situate, lying and being in the Township of _______________, Countyof _______________, and Commonwealth of Pennsylvania, bounded and described as follows, to wit:

______________________________________________________________________________________________________

______________________________________________________________________________________________________

______________________________________________________________________________________________________

______________________________________________________________________________________________________

______________________________________________________________________________________________________

______________________________________________________________________________________________________

______________________________________________________________________________________________________

______________________________________________________________________________________________________

______________________________________________________________________________________________________

And the said Grantor does hereby generally warrant the property hereby conveyed.

IN WITNESS WHEREOF, said Grantors have hereunto set her hand and seal the day and year first above written.

Signed, Sealed and Delivered Grantor:

in the Presence of:

_____________________________ _____________________________

Commonwealth of Pennsylvania )

) ss.County of Lackawanna )

On this, the _______ of _______________, 20____, before me, the undersigned officer, personally appeared_________________________, known to me or satisfactorily proven to be the persons whose names are subscribedto the within instrument and acknowledged that they executed the same for the purposes herein contained.

IN WITNESS WHEREOF, I have hereunto set my hand and seal.

_____________________________

Notary Public

I hereby certify that the precise address of the Grantee herein is ________________________________________.

_____________________________

Attorney for Grantee

FIGURE 6—Deed Form

Exercise 3: Writing an Internal Memo

For this exercise you’ll write an internal office memorandumto your supervising attorney that advises him or her of theresults of your research on a given topic and applies the lawto the facts in your case. Remember, for an internal officememo, your purpose is to inform your supervising attorneyas to what your research has found, not to persuade thereader one way or another.

Fact Scenario

John Brown sued his dentist, Dr. Thomas Furlow, claiminghe was injured as a result of Dr. Furlow’s failure to extractan infected tooth on August 3, when he was examined by Dr. Furlow. After his appointment with Dr. Furlow, ignoringDr. Furlow’s recommendation to return because his tooth wasinfected, Brown left to go on vacation. While he was campingin the desert, his tooth became more severely infected. Theinfection spread, causing him severe pain and fever andendangering his life. Brown passed out in the desert and wasfound by a passerby, who rushed him to the hospital. His lifewas saved, but he incurred significant medical expense, lossof income, and pain and suffering.

Furlow was served with a complaint on March 1. The summonsstated that he had 20 days to file an answer or that judgmentcould be entered against him. Furlow took the complaint homewith him and put it in the safe in his study. Later, he phonedhis attorney, who asked him when he had been served andmade 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, weretaken. Fearing for the safety of his wife and children, Furlowtook his family and went to his mother-in-law’s residence,approximately four hours away. The appointment with hisattorney that morning was forgotten and he spent the weekendwith his family at his mother-in-law’s residence.

Upon his return on Monday, March 22, Dr. Furlow resched-uled his appointment with his attorney for March 23.


Meanwhile, on March 23, a default judgment was enteredagainst Furlow. Furlow’s attorney phoned the court clerk theafternoon of March 23 and was told that a default judgmenthad been entered. He immediately filed a motion to set asidethe default judgment.

You are the attorney’s paralegal and are instructed to reviewthe two cases he believes are on point in this case and theapplicable statutes. After reading the material, prepare amemorandum explaining whether they are applicable, favorableor 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, APPELLEE

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 defaultjudgment entered in favor of Central Bank & Trust Company (Central Bank). Perrycontends that the trial court erred (1) in finding that it had personal jurisdiction overhim, (2) in granting the default judgment, and (3) in denying the post-judgmentmotions. Christine concedes the issue of jurisdiction as to her, but relies on thelatter two issues on appeal. We affirm.

This action began when Padgett Construction Company filed suit to enforce amechanics’ and materialmen’s lien in the amount of $5,416.73 for improvements tothe residence of Christine and Frederick Robey (Robey). That complaint was filed onJune 22, 1989, against Robey, his wife Christine, Citizens Fidelity Bank & TrustCompany 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 fora 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 werejointly and severally liable on the note. In addition, the note was secured by a deedof trust to some property in Virginia Beach, Virginia. The note was payable in equalmonthly installments of $5,311.75, with a balloon payment of the balance due on orbefore June 29, 1988. Although no mention is made in the note as to the purpose ofthe 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 andRobey 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 resi-dent, 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 principalamount of $65,000, due and payable in full on or before April 4, 1988. This note wassecured by assignment of a sales contract for $350,000 on the Virginia Beach prop-erty, and the parties have treated this note as if it were also secured by the guarantyagreement, presumably because of the language in the latter concerning liabilitiesincurred 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 separatedand divorced, and Christine moved back to Virginia. As mentioned, suit was begun toenforce the construction liens and the residence was subject to foreclosure sale.Because of the guaranty agreement, Central Bank sought to join Aubrey Perry as athird-party defendant by motion made July 19, 1989. This motion was granted onAugust 7, 1989. The house was ultimately sold by private sale for $185,000. The firstmortgage to Citizens was satisfied, and Central Bank received $70,306.70 from theproceeds toward satisfaction of its second mortgage. Thus, approximately $162,000of the principal remained owing from the two promissory notes. Central Bank soughtto collect the debt from Robey, Christine, and/or Perry. When the three failed to fileanswers to Central Bank’s cross-claim within 20 days, CR 12.01, the bank filed amotion for default judgment on October 10, 1989. Robey then answered by informingthe court that he had filed for protection under the federal bankruptcy laws onOctober 9, 1989.


Christine filed a notice of entry of appearance on October 20, 1989, and Perryfiled 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 thedefault judgment against Christine and Perry on November 16, 1989, and post-judgment 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 weredenied 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 ofdefault judgment that Christine and Perry bring this appeal.

Perry challenges the trial court’s assertion of jurisdiction because he was never inKentucky concerning the guaranty note, his signature was solicited by the bank, andthe note was sent to him in Virginia where he signed it and mailed it back to thebank. Our long-arm statute is KRS 454.210, and it is designed to permit the exerciseof personal jurisdiction over nonresident defendants while complying with federalconstitutional 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 fullconstitutional limits of due process in entertaining jurisdiction over nonresidentdefendants.” Mohler v. Dorado Wings, Inc., 675 S.W.2d 404, 405 (Ky. App. 1984). Dueprocess requires that a nonresident defendant have certain minimum contacts withthe forum state “such that the maintenance of the suit does not offend ‘traditionalnotions 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), quotingMilliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278 (1940); see alsoMohler, 675 S.W.2d at 405. To determine the outer limits of personal jurisdictionbased on a single act, the following three-part test has been put forth:

First, the defendant must purposefully avail himself of the privilege of actingin the forum state or causing a consequence in the forum state. Second, thecause of action must arise from the defendant’s activities there. Finally, theacts of the defendant or consequences caused by the defendant must have asubstantial enough connection with the forum state to make the exercise ofjurisdiction 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 directlyor 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 ofprocess may be made on such person, or any agent of such person, in anycounty in this Commonwealth, where he may be found, or on the secretary ofstate who, for this purpose, shall be deemed to be the statutory agent of suchperson.

KRS 454.210.

A case which this Court found helpful, but which was not cited by either party, isNational Can Corp. v. K Beverage Co., 674 F.2d 1134 (6th Cir. 1982). In that case, aNorth Dakota resident, who never set foot in Kentucky, was subject to personal juris-diction 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 whoseprincipal place of business was Louisville. Her only relationship with Kentucky wasthe signing of the agreement and her marital interest in her husband’s stock in thecompany. The company failed, and she and other guarantors were sued in federaldistrict court.

The court found that the three-part test of Southern Machine, supra, was met byall guarantors involved. The court stated that the defendants voluntarily signed theagreements, “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. “Signinga personal guaranty for a Kentucky business in which one has an economic interestis the sort of ‘conduct and connection with the forum state’ that makes it reasonableto ‘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 courtdetermined that the guaranties were essential for the startup of the enterprise andthat they constituted “the sort of purposeful act contemplated . . . in SouthernMachine.” 674 F.2d at 1138.

The court in National Can also found that the second prong of the test was metbecause the agreements were the basis for the action. 674 F.2d at 1138. The courtthen concluded that there was sufficient connection with the forum state to make theexercise of jurisdiction reasonable, reciting that the guarantors voluntarily signed theagreements, Kentucky was chosen as the business situs, the guaranties were vital tothe establishment of the business, and the operation had a realistic impact on thecommerce of Kentucky. Id.

12

Comparing the facts of National Can to the present case, we find several similari-ties. While he may not have sought out Central Bank, Perry’s act of signing theguaranty certainly caused a consequence in this state, because the $500,000 wouldnot have been loaned to Perry’s daughter and Robey had it not been for Perry’ssignature on the guaranty. See National Can, 674 F.2d at 1137. The agreement alsoprovided that it shall be “in all respects governed, construed, applied and enforced inaccordance with the laws of [Kentucky].” Although not an explicit consent to jurisdic-tion, this language put Perry on notice that he could expect any legal ramifications tobe dealt with in Kentucky.

Furthermore, Perry’s agreement was the basis for the loan and acquisition of theinterest in Bristol’s, cf. National Can, 674 F.2d at 1138, and so the cause of actionarose from his act of guaranteeing the note.

Perry’s act of signing the agreement also had a substantial enough connectionwith Kentucky to make personal jurisdiction reasonable. He knew that he was guar-anteeing loans extended in this state for his son-in-law to acquire an interest in abusiness here, and he also knew that should Christine and Robey fail to make pay-ments or if the business venture failed, he would be looked to for payment. While hedid not acquire any economic interest in the business himself, he certainly had astake 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 astate, a nonresident corporation must actively conduct an income-generatingenterprise in that state. To the contrary, it is designed only “to insure that thedefendant has become involved with the forum state through actions freelyand 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 minimumcontacts with Kentucky to satisfy due process requirements for personal jurisdiction.

Next, we turn to Perry and Christine’s second allegation that the trial court erredin granting default judgment. CR 55.02 provides that a court may set aside a defaultjudgment in accordance with CR 60.02 for good cause shown. Factors to consider indeciding whether to set aside a judgment are: (1) valid excuse for default, (2) merito-rious defense, and (3) absence of prejudice to the other party. 7 W. Bertelsman andK. 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 shetalked 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 tothe 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 seekingto add him as a party to the original suit, and his housekeeper signed for the actualsummons once he became a party. This was accomplished in July and in earlySeptember 1989. Perry states that he had no knowledge of the suit until he receivedthe motion for default judgment on October 12, 1989. Furthermore, both Christineand 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 realizedfrom the sale, the entire mortgage would not be satisfied and this might open themup for some liability.

We believe the parties did not exercise due diligence concerning this suit andanswering the summons. Furthermore, the apparent defenses which might alter the outcome are also weak. Christine and her father both assert that Central Bankmisrepresented the extent of the interest Robey was acquiring. Christine and Perryclaim that they believed Robey was acquiring interests in two Louisville restaurantsand a meat packing company in Lexington as well, for the $500,000. Central Bankmerely wanted security for its loan to Robey and Christine. The bank was not con-cerned 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 todecide 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 bal-ance, whether the trial court should have set the judgment aside would be a closecall. However, we believe the excuses for failing to answer are weak, as are thedefenses, and we cannot say it was an error or abuse of discretion for the trial courteither 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., APPELLANTv.

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 theHarrison 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 judg-ment for the entire rental payment due under the lease. On October 23, 1981, theappellant filed a petition for removal in the United States District Court, properlyserved the appellee and filed a copy with the Harrison Circuit Court. This petitionwas dismissed as defective on October 27, 1981.

Instead of amending this petition, the appellant filed a second petition for removalon November 5, 1981, longer than thirty days after the filing of the complaint. Neitherthe appellee nor the Harrison Circuit Court received notice or copy of this petition,although the appellant offered affidavits that notice and copy were mailed. OnJanuary 27, 1982, the appellee applied for a default judgment because of the appel-lant’s failure to plead or otherwise defend the action. The appellant had made no answerin the trial court where both the appellee and the trial court thought the action to bebecause of the aforementioned failure in notice. The appellant also had made no answeror 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 onFebruary 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, dis-missed the second petition for removal as being defective. The appellant, then, askedthe trial court for leave to file an answer and counterclaim and to amend its motionto 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 showgood 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 circumstancesunder which the default judgment was procured. The appellant asserts that hisreliance on the removal of the trial court’s jurisdiction to the United States DistrictCourt 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 juris-diction is effected after the movant files a petition and bond, gives notice to all adverseparties, 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 thecase unless and until the case is remanded by the federal court. Id. The removal iseffective 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). Sincethe state court retains its jurisdiction until it is notified of the removal petition, thisprocedure allows an interim period between the filing of the petition and the notice tothe parties and the state court where the federal and state courts both have jurisdic-tion. Berberian v. Gibney, 514 F.2d 790 (1st Cir. 1975), Howes, supra. Dual jurisdictionremained in the instant case at least until February 16, 1982, when the appellant’smotion to set aside the default judgment first notified the appellee and the trial courtof 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 thestate court is notified of the removal, federal jurisdiction predominates in any con-flicting 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 canoverturn any default judgment that had been granted during the period of dual juris-diction. Id. Where, as in the case at bar, the federal court dismisses the petition, theremoving party’s only recourse is a motion to set aside the judgment, and reliance onhis petition for removal as good cause may fail. When the removing party fails toanswer in compliance with either CR 12.01 or Fed. R. Civ. P. 81, the trial court doesnot 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 afterservice of the summons upon him. The appellant waited almost seven (7) monthsbefore he served the appellee with his answer. The default judgment was not granteduntil over three (3) months had elapsed after the time the appellant was required totender his answer. The appellant’s failure to file a timely answer is sufficient basis fora default judgment, and the appellant is not entitled to have the judgment set asideunless he can show reasonable excuse for the delay in answering and establish thathe 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 anunreasonable excuse when he has not complied with Fed. R. Civ. P. 81. This ruleattempts to resolve the potential conflicts between the thirty (30) days allowed forremoval 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 answeror present the other defenses or objections available to him under these ruleswithin 20 days after the receipt through service or otherwise of a copy of theinitial pleading setting forth the claim for relief upon which the action or pro-ceeding is based, or within 20 days after service of summons upon such initialpleading, 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 toanswer 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 hisreliance on the removal proceedings and precludes his using this reliance as anexcuse for delay.

The appellant’s reply brief suggests that good cause is further established becausenotice of the February 5, 1982 hearing was required by CR 55.01 and he received nonotice. 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 hasmade 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 anappearance, he has not appeared. The general rule of law holds that “in the federal orstate courts a petition for the removal of a cause to a federal court and the proceedingsthereon do not constitute an appearance which waives jurisdictional objections orprevents 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 contradictsany intention to defend and makes unnecessary the resolution of whether theappellant received notice.

The trial court did not abuse its discretion in finding the appellant failed toshow good cause. His failure to show good cause obviates any need for this court todetermine 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 ofcourt or by any applicable statute, the day of the act, event or default after whichthe designated period of time begins to run is not to be included. The last day ofthe period so computed is to be included, unless it is a Saturday, a Sunday or alegal holiday, in which event the period runs until the end of the next day whichis not a Saturday, a Sunday or a legal holiday. When the period of time prescribedor allowed is less than seven days, intermediate Saturdays, Sundays and legalholidays 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 inaccordance with Rule 60.02.

18


Kentucky Civil Rule 60.02. Mistake; inadvertence; excusable neglect; newlydiscovered evidence; fraud; etc.

On motion a court may, upon such terms as are just, relieve a party or his legalrepresentative from its final judgment, order, or proceeding upon the followinggrounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newlydiscovered evidence which by due diligence could not have been discovered intime 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 priorjudgment 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 shallbe made within a reasonable time, and on grounds (a), (b), and (c) not more thanone year after the judgment, order, or proceeding was entered or taken. A motionunder 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 toconstitute good cause for setting aside a default judgment. For each factor you havefound, identify the facts in our case, Brown v. Furlow, that would be helpful or harmfulin establishing that factor. If the facts of the cases provided are sufficiently differentfrom our case, you can try to distinguish the case, explaining what arguments youthink can be made not to use it if it would be harmful to our case. Also, if the facts aredifferent but could be helpful, you should explain why, even with different facts, itshould be controlling in our case.

When you’re reading the two cases provided to you, please remember you’re trying todetermine the state of the law from the information provided in the cases. Don’t lookup any additional law and don’t cite any case law used by the judges writing theseopinions 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

Here are some tips for writing the memorandum:

• Use the format shown in Figure 7.

• Follow the format described in your Legal Writing study unit.

• Avoid long words and legal jargon.

• Don’t overdo it—be brief and to the point, but thorough.

• Write in the active voice as much as you can.

• Check for errors of spelling, punctuation, and format.

• Be sure to include precedent using the four cases and civil rules given. Cite onlythese four cases and civil rules.

• Proofread and make your final editing review from a paper copy, not directlyfrom the computer screen.


Memo

To: Supervising Attorney

From: Paralegal

Date: [Fill in today’s date]

Re: Brown v. Furlow, 04-CV-5887

Our File No. 5-987

Statement of Facts:

Question(s) Presented:

Answer:

Discussion:

Conclusion:

FIGURE 7—Memo Format

WRITING GUIDELINES

Instructions

Type your submission, single- or double-spaced, as the exercise requires, in a stan-dard print font, size 12. Use a standard document format with one-inch margins. (Donot use any fancy or cursive fonts except for your signatures on the letter.)

Be sure to include the following information at the top of the first page of your projector on the Project Sheet attached to your project:

1. Your name and address

2. Your student number

3. The course title and number

4. The graded project number

Read the assignments carefully and address the issues completely.

SUBMITTING YOUR PROJECT

Submit your final drafts of Exercises 1, 2, and 3 for grading. Include the answersheet in the envelope provided.

Expectations

The student should be able to identify and prepare various types of legal writingthat a paralegal uses in a law office. The student should be able to understand theimportance of and be able to use various forms. The student should be able toprovide clear and concise correct legal writing with appropriate legal terminologyand correct grammar, spelling, and punctuation and avoid unnecessary ambiguity.



GRADING CRITERIAYour project grade will be based on the following criteria:

Exercise 1 (25 %)

Content (10 %)The student composes a letter to the client containing all information needed to properly inform the client.

Written Communication (10 %)The student uses correct terminology, grammar, spelling, punctuation, and sentence structure and corrects any typographical errors.

Format of Letter (5 %)The student uses correct form as indicated in the project booklet.

Exercise 2 (25 %)

Content (10 %)The student prepares a correct deed that can be filed with the Recorder of Deeds.

Written Communication (5 %)The student uses correct terminology, grammar, spelling, punctuation, and sentence structure and corrects any typographical errors.

Format of Deed (10 %)The student uses correct form as indicated in the project booklet.

Exercise 3 (50 %)

Content (35 %)The student correctly states the statement of facts. (10 %)

The student correctly identifies the question to be asked and the answer. (5 %)

The student correctly cites and applies the law to the facts and reaches a conclusion based on the discussion. (20 %)

Written communication (10 %)The student uses correct terminology, grammar, spelling, punctuation, and sentence structure and corrects any typographical errors.

Format (5 %)The student uses correct form as indicated in the project booklet.

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graded project legal writing project 1 · 1 introduction background. this graded project provides...

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