Graded ProjectLegal WritingProject 2ByMike Wilson,.docx

Graded Project
Legal Writing
Project 2
By
Mike Wilson, Esq.
Reviewed by
Brian Bastyr, Esq.
All terms mentioned in this text that are known to be trademarks
or ser vice
marks have been appropriately capitalized. Use of a term in this
text should
not be regarded as affecting the validity of any trademark or ser
vice 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 © 2001 by Penn Foster, Inc.
All rights reserved. No part of the material protected by this
copyright may be
reproduced or utilized in any form or by any means, electronic
or mechanical,
including photocopying, recording, or by any information
storage and retrieval
system, without permission in writing from the copyright 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
Reprinted 2002
06/16/06
iii
INTRODUCTION 1
THE CASE 1
ASSIGNMENT INSTRUCTIONS 3
FORMAT REQUIREMENTS 4
TIPS 8
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INTRODUCTION
For this graded project, you’ll be presented with a parental
custody case, a list of relevant facts, and the testimonies of
two expert witnesses. You’ll need to research the law in your
own jurisdiction regarding factors used to determine cus-
tody. Then, you’ll write two memorandums, one for each of
the opposing sides, applying the law you found to the facts
of the case.
THE CASE
You should know the following information about the case.
The Participants
Sally Bright asked her husband, John, to move out tem-
porarily due to marital difficulties. After a brief separation,
Sally filed for divorce and received temporary custody of
their 14-year-old daughter, Chastity. John’s response to
Sally’s divorce petition requested custody and the court
ordered that the child have visitation with John every
weekend.

Nine months later, the court conducted a final hearing in the
divorce matter. Both parties still want custody of Chastity.
1
Legal Writing Project 2
The Facts
Among the facts that came out during the hearing, and are
undisputed, are the following:
• Sally will be moving to another part of the country soon
to take a job.
• A psychologist that counseled Chastity about her
emotional problems testified that Chastity would
prefer to stay with her dad so that she doesn’t have
to go to a new school and make new friends.
• John has realized that he is gay and has met a male
companion who doesn’t live with John presently but
someday might.
• Chastity testified that she feels “weird” around John’s
new companion.
• John makes $125,000.00 per year and Sally’s new job in
another part of the country will pay $35,000.00.
• John has, on several occasions, physically abused Sally,
but he never did so in front of Chastity and has never
abused Chastity.

• Both parents have been actively, and almost equally,
involved in the day-to-day care of Chastity throughout
her life.
The Testimonies
There have been two separate testimonies given.
Testimony of Dr. Samuel Stoller. I counseled Chastity at
the request of her father, John, who said she was having
problems at school since her mother filed for divorce. Chastity
clearly wants to stay in the area so she can be with her
friends as she moves into high school. Given the stress of
the divorce, I think it’s in Chastity’s best interest that she
remains in the safe, secure environment that she is familiar
with. Since her mother is moving away, Chastity should stay
with her father. The fact that John is gay has no bearing,
since studies show that a parent’s sexual orientation doesn’t
usually affect his or her ability to be a good parent.
Testimony of Dr. Frank Edwards. I was appointed by the
court to interview the parties and the child and make a rec-
ommendation regarding custody. I found that both parents
were suitable custodians, but I think the better custodian
would be the mother. Chastity says that she feels uncomfort-
able around her father’s new companion. I’m not biased
against gays, but I think Chastity could be teased at school.
Another factor is John’s drinking. He denied having a drink-
ing problem, but Sally says he drinks to excess on occasion.
This could be dangerous, especially if he were transporting

the child while intoxicated.
The Judge
After the hearing was completed, the judge said that she was
prepared to decide all of the issues except custody. She has
directed both of the attorneys to submit a memorandum on
the custody issue. The parties are to submit memorandums
simultaneously. The judge will review the memorandums,
and will then make a decision about custody.
ASSIGNMENT INSTRUCTIONS
Your first task is to take the role of a legal researcher for the
attorney arguing that the mother should have custody. The
first memorandum should be written from this perspective.
Your second task is to take the role of a legal researcher for
the attorney arguing that the father should have custody.
The second memorandum should be written from this per-
spective. In your research for each memorandum, you
should check both statutes and cases, keeping in mind the
facts of the case.
Wait until after you have completed the CALR, Part 1 and
Part 2 study units to begin your research for the Legal
Writing 2 Project (00803500). You’ll need the skills you have
learned in the CALR study units to conduct your research.
You MAY use Lexis to perform your research for this proj-
ect; however, you MUST use at least one source other
than a source obtained through lexis.com.
Legal Writing Project 2 3
Grading Criteria for This Project

Content 70%
Each Memo (35%)
Student selects correct facts and emphasizes
those facts that support his or her position 5%
Student selects correct issues (at least three) 5%
Student selects appropriate authority that will
answer the issues selected and at least one
non-Lexis source 5%
Student applies the law to the facts 5%
Student uses proper citation form 5%
The memorandum is well organized, easy to
read, and persuasive 5%
The student tries to address the stronger
arguments likely to be raised by the opposing
party 5%
Written Communication 20%
Student uses correct grammar and spelling;
writes in clear and concise sentences; uses
appropriate legal terminology; memos have no
typographical errors
Format 10%
Student uses correct memorandum format and
other formatting requirements as specified in the
assignment, including attaching a printout of all

law used in the memorandum
FORMAT REQUIREMENTS
Each memorandum should conform to the following format.
Caption
Use a heading, like the one in Figure 1, at the top of the first
page of each memorandum, but change the court to the one
where this matter would be heard in the jurisdiction where
you live.
Facts
The word “facts” will be the all-capital-letter, boldfaced head-
ing for Roman numeral number I.
State the facts of the case, remembering to select the ones
that are relevant to the issue to be decided. Emphasize the
facts favorable to your argument and de-emphasize unfavor-
able facts. You can express emphasis by the order in which
you present the facts, by how much time you spend dis-
cussing each fact, and by how you describe, or characterize,
the facts. Remember that in this section you’re not yet pre-
senting your full argument. Rather, you’re simply stating the
facts. Your application of relevant cases and statutes to these
facts should appear in the next section of the memorandum.
_______ _______ COURT

(name of court)
Civil Action No. _______________
(insert number)
IN RE THE MARRIAGE OF
SALLY BRIGHT PETITIONER
V. MEMORANDUM
JOHN BRIGHT RESPONDENT
Comes ________________________, by counsel, and for
_____________ Memorandum states as
(petitioner/respondent) (her/his)
follows:
FIGURE 1—Fill in the blanks for your memorandum heading.
Issue
State the issue as a question to be answered or a contention
that you’ll prove. This statement of the issue will be the all
capital letters (all caps), boldfaced heading for Roman
numeral number II.
Begin your analysis by explaining the relevant law. You may
organize the issue into sub-issues, labeled successively as
“A., B., C.,” (boldfaced) and with the title of the sub-issue
following, also all caps and boldfaced and so on, if you think

it will help the reader to understand your argument better.
For example, a sub-issue heading might be
A. PETITIONER’S CHILD ISN’T AN ADULT.
Remember to cite cases in proper form, giving the case
name, volume number, reporter, page, and year of the case.
For example, a case citation might read
Smith v. Harris, 651 SW 2d 299 (1966).
If you’re quoting from the case, use quotation marks and
indicate the page at which the quoted material can be
found. After citing and explaining a point of law relevant to
deciding custody, apply it to the facts in the present case.
State the conclusion that the reader should draw from
application of the law cited to the facts in this case, even if
the conclusion seems obvious to you.
You also should address the factors that aren’t favorable to
your side of the case, explaining why they’re less important
or interpreting them in a way that makes them less harm-
ful.
You must submit printouts of the cases, statutes, rules,
etc. that you cite.
Conclusion
The word “conclusion” will be the boldfaced and all caps
heading for Roman numeral number III.
In a sentence or two, sum up the main reasons why the
judge should rule in your favor. Figure 2 gives you an
abbreviated example of the format for a legal memorandum.

The memorandums that you’ll submit for this project should
be much more thorough and complete–addressing all the
important facts.
LAFAYETTE CIRCUIT COURT
Civil Action No. 113
IN RE THE MARRIAGE OF
GEORGE BRETLAND PETITIONER
V. MEMORANDUM
JANE BRETLAND RESPONDENT
Comes Petitioner, by counsel, and for his Memorandum states
as follows:
I. FACTS
On January 1, 1999, George Bretland filed for divorce from his
wife of five years, Jane
Bretland.
In dispute is the ownership of the house, valued at $500,000.
The mortgage on the house has
been
financed through the Albright State Bank.
. . . .

II. DOES PREVIOUS FAMILY OWNERSHIP LEGALLY
OUTWEIGH HARDSHIP FACED BY
THE OTHER PARTY?
The overriding factor in determining such cases is the hardship
faced by the nonworking
spouse. P.R.S. § 602.565 identifies factors that should be
considered when determining the
ownership of property after a divorce.
A. THE FACT THAT A SPOUSE CAN’T WORK DUE TO
ILLNESS AND FACES SIGNIFICANT
HARDSHIP DUE TO A DIVORCE SUGGESTS THAT
OWNERSHIP SHOULD BE AWARDED
TO SAID SPOUSE.
P.R.S. § 602.565 (2) (f) says that a court deciding ownership
must consider “(information,
records, and evidence of inability to work due to serious
illness.”
. . . .
III. CONCLUSION
Awarding ownership to the husband could endanger the wife’s
financial and physical health.
FIGURE 2—An Abbreviated Legal Memorandum

TIPS
Style
• Avoid long words and legal jargon.
• Cut out anything that isn’t absolutely necessary.
• Write in the active voice as much as you can.
• Avoid overusing the verb “to be.”
Citiations
• Use proper citation format.
• Make sure that the authority cited logically applies to
the facts of this case.
• Use recent precedent, if possible. All cases cited should
still be good law.
Proofreading and Editing
• Rewrite grammatically incorrect or awkward sentences.
• Check for errors of spelling, punctuation, or format.
• Proofread and make your final editing review from a
paper copy, not directly from the computer screen.
After proofreading and editing the agreement, submit your
final draft for grading along with the answer sheet.
Additional Instructions
When you submit your project, include only the first three (3)
pages of any case law or other supporting documentation

that you’re submitting with your Memos. We don’t need you
to copy and submit more than the first three (3) pages.
However, you must be sure you’ve read the entire case,
statute, or other type of document to ensure it’s applicable to
your memo and that you’re using for the correct proposition.
Note: We won’t return to you any of the case law or other
supporting documentation you submit with your Memos.
Please be sure to copy all supporting law before submitting it
for grading if you would like to keep a copy for your records.
10
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Graded Project
Answer Sheet
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Comments:
_____________________________________________________
_________
_____________________________________________________
____________________
_____________________________________________________
____________________
When you’ve completed the two memorandums, send your
graded project, along with this
answer sheet, to Education Direct in the envelope provided in
this shipment.
Good luck with your project.
Reminder: Students must submit printouts of the cases, statutes,
rules, etc., cited in the
memorandums.
· Precalculus
Discussion for Precalculus - The Mixture Problem
In this discussion, please answer the following question and
post your response to the discussion board. Please keep in mind,
in order to remain eligible for full credit in the discussion, you
must, in addition to your initial reply, respond to at least two of

your classmates’ or instructor’s posts.
The mixture problem is one of the most popular applications of
Systems of Equations. Your task this week is to find a mixture
problem and demonstrate to the class, step by step, how a
system of equations can be used to solve your problem of
choice. Should be between 75-150 words.
· Discussion 2 for Human Resources
· Strategies for Decision Making
Questioning
Please respond to EACH of the following discussion topics and
submit them to the discussion forum as a single post. Your
initial post should be 75-150 words in length.Then, make at
least two thoughtful responses to your fellow students’ posts. If
you haven’t recently, please review the Rules of Discussion.
The Questioning Toolkit identified 17 kinds of questions:
1. Essential question
2. Organizing question
3. Elaborating question
4. Divergent question
5. Subsidiary question
6. Probing question
7. Unanswerable question
8. Irrelevant question
9. Hypothetical question
10. Sorting and Sifting question
11. Inventive question
12. Telling question
13. Clarification question
14. Provocative question
15. Planning question
16. Strategic question
17. Irreverent question
Think back to a previous learning experience (a class, a
presentation, a training session, etc.) when the instructor or
presenter asked for questions.

In your initial post this week, begin by briefly describing the
situation.
. Where were you?
. What was the topic being covered?
Then, focus on the questions that were asked.
. What type of question did you find most helpful? Why? If you
can remember, provide the question.
. What type of question did you find least helpful? Why? Once
again, if you can remember the question, include it in your
response.
. Now that you have looked more deeply at the different types
of questions, what question would you have liked to ask or have
asked to help you to better understand the topic? What type of
question did you choose? Why?
. Should be between 75-150 words.
Graded Project
CALR Project
By
Melynda Hill-Teter
Reviewed by
Brian Bastyr, Esq.
About the Author
Melynda Hill-Teter is a 1991 graduate of the Legal
Assistantship

Program at the University of California at Santa Barbara, an
American Bar Association approved school. She has more than
20
years of experience in the legal field, and specializes in legal
comput-
er applications. Ms. Hill-Teter has received a Paralegal
Certificate of
Mastery in Lexis-Nexis online research. She has published
articles in
Legal Assistant Today and Law Office Computing. Ms. Hill-
Teter is
employed as a litigation paralegal in Scottsdale, Arizona.
About the Reviewer
pub-
University of
College of
published
or service
text should
vice mark.
copyright may

be reproduced or utilized in any form or by any means,
electronic or
mechanical, including photocopying, recording, or by any
information
storage and retrieval system, without permission in writing from
the copy-
right owner.
should
be mailed to Copyright Permissions, Penn Foster, 925 Oak
Street, Scranton,
Pennsylvania 18515.
05/03/05
iii
INTRODUCTION 1
INTERNET 1
I. Build a Judge Profile 1
II. Perform Company Research 1
III. Evaluate Internet Information Quality 2
LEXIS-NEXIS 2
IV. Formulate a Search Request 2
V. Search and Retrieve Primary and Secondary
Legal Materials 2

VI. Verify the Accuracy of Caselaw and Statutes 3
VII. Company and Financial Research 3
VIII. Retrieve Public Records 3
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INTRODUCTION
Attorneys delegate legal research assignments to paralegals
on a daily basis. Therefore, paralegals must be able to use

CALR systems, such as Lexis, WESTLAW, and the Internet,
to quickly and efficiently retrieve legal information. This
graded project will test your skills in this critical area. Read
the description of each legal research assignment and com-
plete each assignment using the Internet or Lexis-Nexis.
INTERNET
Use the Internet for sections I, II, and III of this project.
I. Build a Judge Profile
Your firm has a case coming up for trial. Your supervising
attorney needs you to profile the judge using the Internet.
The judge’s name is Kathleen O’Malley, a federal district
judge in Ohio. Print your research results.
II. Perform Company Research
Your attorney has signed on a new client, Dell Computer
Corporation, and wants to learn more about Dell’s business
operations. Print two (2) company profiles from independent
sources.
CALR Project
CALR Project2
III. Evaluate Internet Information Quality
Go to http://www.whitehouse.gov and
http://www.whitehouse.net and compare and analyze
the two Web sites. Write a few paragraphs evaluating the
content of the information in the two sites.

LEXIS-NEXIS
Use Lexis-Nexis for sections IV,V, VI, VII, and VIII
of this project.
IV. Formulate a Search Request
Your supervising attorney is representing a drug manufacturer
that has designed a new arthritis drug. During clinical trials,
volunteers who took the drug experienced heart palpitations
and nervousness. The drug manufacturer has asked your
firm if it must disclose the side effects of the drug to potential
patients. The client needs an answer to this research question
as soon as possible to determine if it should seek FDA approval
in order to release the drug to the public. Formulate two
queries for the research assignment using (A) natural language
and (B) terms and connectors. Use Federal and State Caselaw
as your source. Print just the first page of your research
results in the Cite list format for each search query. Be sure
your search requests are visible.
V. Search and Retrieve Primary and
Secondary Legal Materials
A. Retrieve and print the first two pages of the following
case by citation: 17 Cal. 3d 425.
B. Retrieve and print the first two pages of any case
involving the following party name: Trump Wilshire
Associates.
C. Retrieve and print the first two pages of the following
case by docket number: B018788.
D. Explain the three different ways to display your
research results and how to view the results. Print a
sample document in each display type (for a long
document, you may print only the first two pages to

save paper).
E. Describe the types of secondary materials that are
available on Lexis-Nexis, and name five specific
sources.
VI. Verify the Accuracy of Caselaw and
Statutes
Your supervising attorney has given you the following
citations:
• 217 B.R. 598
• 523 U.S. 574
• Fed. R. Civ. P. 26
She wants you to validate the legal materials to find out if
they’re still good law. Carry out the assignment and print
your research results. It’s OK to print out only the first few
pages if you get a lot of hits. (Note: For the Federal Rules of
Civil Procedure select your first hit Exact Match and print
out the first page.)
VII. Company and Financial Research
A. Locate the company headquarters, address, and
telephone number for eBay, the online auction
house. Print samples of your research results.
B. Print the first two pages of the latest quarterly (10Q)
report for Dell Computer Corporation.

VIII. Retrieve Public Records
A. Your attorney needs to find expert witnesses on the
effects of drug interactions for a liability case. Print
information on two individuals with expertise on the
subject of drug interaction.
B. Your attorney needs to find tax information for
properties owned by Allianz Properties Partnership
Ltd. in Texas. Find and print the address of the
partnership, and the property records for the
properties.
Graded Project 3
When you’ve completed this project, assemble your printouts
and written paragraphs and send them along with the
answer sheet to the school in the envelope provided.
Please Note:
In order to ensure that you have included all the required
assignments, label each assignment with the appropriate
roman numeral and letter if applicable. Paper clip the papers
for each assignment together.
Expectations for This Project
Student should be able to perform factual, business, and
legal research on the Internet; understand how a paralegal
uses the Internet in a practice environment; start a lexis.com
research session; formulate a search request; search for doc-
uments; search and retrieve primary and secondary legal
sources; verify the accuracy of citations using Shepard's

citation service; locate, profile, and investigate people and
companies; conduct financial and business research; and
find factual resources.
Grading Criteria for This Project
Content 100%
I. Building a judge profile 5%
II. Performing company research 5%
III. Evaluating Internet information quality 5%
IV. Formulate a Search Request 10%
V. Searching and retrieving primary and
secondary legal materials 25%
VI. Verifying the accuracy of case law
and statutes 15%
VII. Company and financial research 15%
VIII. Retrieving public records 20%
CALR Project4
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Graded Project
CALR Project Answer Sheet
Comments____________________________________________
___________________________
_____________________________________________________
___________________________
_____________________________________________________
___________________________
When you’ve completed this assignment, send your graded
project, including printouts, to the
school in the envelope provided in this shipment.
Good luck with your project.

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Graded Project
By
Mike Wilson, Esq.
Reviewed by
Brian Bastyr, Esq.

or ser vice
text should
vice 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
pub-
University of
College of
published
copyright may
be reproduced or utilized in any form or by any means,
electronic or
mechanical, including photocopying, recording, or by any
information
storage and retrieval system, without permission in writing from
the copy-
right owner.
should
be mailed to Copyright Permissions, Penn Foster, 925 Oak
Street, Scranton,
Pennsylvania 18515.

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 the
first exercise, you’ll prepare a letter to a client advising her
of the date and time of her tax assessment appeal hearing.
For the second exercise, you’ll prepare a deed for a client
who is selling her property. In the first and second exercises,
you’ll also be asked to review your supervising attorney’s
memo and then prepare the required document. A form letter
and deed are provided to you to help in completing the
assignment. For the final exercise, you’ll prepare an internal
memorandum to your supervising attorney addressing a par-
ticular issue of law. Statutory and court authority needed to
complete this assignment are provided.
Goal. When you’ve completed this project, you’ll have
experience preparing several types of legal writing, which
you may be asked to do as a paralegal in a law firm. You’ll
also have practice in following very specific formats and
forms in completing these projects, and in using clear, pre-

cise language and good grammar, spelling, and punctuation
when you write.
EXERCISES
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 that he
has received a Tax Assessors’ Office Hearing Notice and she
wants you to send a letter to Ms. Smith advising her of that
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 you’re preparing your 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, 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 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 attor-
ney 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.
MEMO
To: Paralegal
From: Super vising 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 notar
y and any other
name you choose for the name of the witness.
FIGURE 4—Memo From Supervising Attorney to Paralegal
THIS DEED
Made 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
A
N
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 receipt
whereof 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 and
Commonwealth 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 the
division 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 mentioned
course and in an Easterly direction One Hundred Seven and
five-tenths (107.5) feet to a point in the rear line of Lot
numbered 205; thence at right angles to last mentioned course
in a Northerly direction and parallel with said Rock
Avenue and along the rear line of lots numbered 205, 206 and
207, Eighty (80) feet to a corner; thence at right
angles to last mentioned course and in a Westerly direction One
Hundred Seven and five-tenths (107.5) feet to a
corner 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 Lot
numbered 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 Jenkins
and Joan L. Jenkins, husband and wife, known to me or
satisfactorily proven to be the persons whose names are
subscribed 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.
��

��
��
Notar y 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, hereinafter
referred to as the Grantors
A
N
D
_______________, of the Township of _______________,

_______________ County, Pennsylvania, hereinafter referred
to as the Grantee.
WITNESSETH, That in consideration of the sum of
_______________ (________) Dollars, in hand paid, the receipt
whereof 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 _______________, County
of _______________, 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 subscribed
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.
_____________________________
Notar y 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 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.
Fact Scenario
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 resched-
uled 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.

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 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 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 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 prop-

erty, 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 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 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 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 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.
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 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 jurisdic-
tion, 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 guar-
anteeing 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 pay-
ments 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) merito-
rious 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 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 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 bal-
ance, 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 judg-
ment 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 appel-
lant’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, dis-
missed 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 juris-
diction 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 jurisdic-
tion. 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 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 can
overturn 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, 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 pro-
ceeding 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.
18
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 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
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 only
these four cases and civil rules.
• Proofread and make your final editing review from a paper
copy, not directly
from the computer screen.

Memo
To: Super vising 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. (Do
not 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 project
or 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 answer
sheet in the envelope provided.
Expectations
The student should be able to identify and prepare various types
of legal writing
that a paralegal uses in a law office. The student should be able
to understand the
importance of and be able to use various forms. The student
should be able to
provide clear and concise correct legal writing with appropriate
legal terminology
and correct grammar, spelling, and punctuation and avoid

unnecessary ambiguity.
GRADING CRITERIA
Your 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 %)
punctuation, and sentence structure and corrects any
typographical errors.

Format of Deed (10 %)
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 %)
punctuation, and sentence structure and corrects
any typographical errors.
Format (5 %)
booklet.
TEEHSREWSNA
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:REBMUNTNEDUTS REBMUNNOITANIMAXE 10330800
TNIRPESAELP

____________________________________________________
EMAN
tcejorPdedarG
1tcejorPgnitirWlageL___________________________________
_____________SSERDDA
_____________________________________________________
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