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Memo Penn

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Submitted By lcbaker7
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Memo

TO: Supervising Attorney

From: Paralegal

Date: July 4, 2013

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

Our File No. 5-987

Statement of Facts: John Brown sued his dentist Dr. Thomas Furlow for failure to extract an infected tooth on August 3 even though Dr. Furlow recommended that Mr. Brown have the extraction because the tooth was infected. Dr. Furlow was served with the Complaint on March 1 and made and appointment with his attorney for March 19. On March 18 Dr. Furlow's house was robbed and fearing for the safety of his family he took them to his mother-in-law's residence. Dr. Furlow forgot the appointment he had made with his attorney. A default judgment was entered on March 23.

Question(s) Presented: Does Mr. Brown have good cause for setting aside the default judgment?

Answer: A default judgment may be set aside on the grounds of excusable neglect.

Discussion: Perry v. Central Bank & Trust, 812 S.W.2d 166 (Ky. Ct. App. 1991) does not apply to the case at hand. Perry challenges the trial court's assertion of jurisdiction. Both parties filed responses to the motion for default judgment. In Green Seed Co., Inc. v. Harrison Tobacco Storage Warehouse, Inc, 663 S.W.2d 755 (Ky. Ct. App. 1984) the issue of jurisdiction was also present. The appellant asserted 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 but it was held that it was not.

Ky. Civ. R. 55.02 states that for good cause shown the court may set aside a judgment by default in accordance with Rule 60.02. Ky. Civ. R 60.02 states that 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. The motion shall be made within a

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