Internal legal memo structure and contents

CC:

Dr. Thomas Furlow

Statement of Facts: Our client, Dr. Thomas Furlow, has been sued by his patient John Brown. Furlow examined Brown and discovered an infected tooth; he advised Brown to return for treatment. Instead, Brown went on vacation. While camping in the desert, Brown's tooth infection worsened, spreading through his body, causing pain and putting his life at risk. Brown sued Furlow on the grounds that Furlow had failed to extract his infected tooth. Furlow was served with the complaint on March 1. Furlow had 20 days to answer the complaint. Furlow had an appointment with his attorney on March 19. On March 18, Furlow's house was robbed and the safe, where he had stored the complaint, was robbed. Furlow went to his mother-in-law, and rescheduled his appointment with his attorney for March 23. On March 23, the court entered a default judgment against Furlow. We have filed a motion to set aside the default judgment.

Questions Presented: Do the circumstances experienced by Furlow mean that the court should set aside the default judgment entered against him?

Answer: Yes, the fact that Furlow was the victim of a crime, which resulted in the loss of the complaint that was stored in his safe, and caused him to leave the town, means that the court should set aside the default judgment entered against him.

Discussion: In Perry v. Central Bank & Trust, 812 S.W.2d (Ky. Ct. App. 1991), appellee bank obtained a default judgment against appellant homeowners. The homeowners filed a motion to set aside the default judgment. Under Ky. Civ. R. 55.02, a court may set aside a default judgment for good cause shown. The court considers the following factors when deciding whether to set aside a judgment: (1) valid excuse for default, (2) meritorious defense, and (3) absence of prejudice to the other party (Perry v. Central Bank & Trust). However, carelessness on the part of a party is not sufficient reason to set aside a judgment. The question comes down to whether a party exercised due diligence concerning the suit and answering the summons (Perry v. Central Bank & Trust). Moreover, the court may consider whether the factual scenario would support a finding in favor of the party against whom a default judgment was entered (Perry v. Central Bank & Trust).

In Green Seed Co., Inc. v. Harrison Tobacco Storage Warehouse, Inc., 663 S.W.2d 755 (Ky. Ct. App. 1984), appellant seed company sought review of the trial court's decision refusing a motion to set aside a default judgment entered in favor of appellee warehouse. The trial court has discretion to set aside default judgments (Green Seed Co., Inc. v. Harrison Tobacco Storage Warehouse). The seed company's motion was based upon its reliance that the case had been removed to the federal district, which the court did not find a compelling reason to set aside the default judgment, because the seed company was aware that the conditions for removal had not been met.