author: Justice BRIDGES.

text:
    LaQuida Ranay BALLAN, Individually, and on Behalf of All Wrongful Death Beneficiaries and Heirs, and as Independent Executrix of the Estate of Erik Ballan, Appellant, v. Gary GIBSON, M.D., Appellee.
    No. 05-03-01619-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 30, 2004.

      Jeffrey H. Rasansky, Law Office of Jeffrey H. Rasansky, P.C., Robert Edward Wolf, Dallas, for Appellant.
    Charles Kirk Aris, Gwinn & Roby, Dallas, for Appellee.
    Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
   OPINION

Opinion by

Justice BRIDGES.

In this medical malpractice case, LaQui-da Ranay Bailan, appeals the trial court’s order dismissing the claims against Gary Gibson, M.D., related to the death of his patient, Mr. Erik Bailan. Bailan contends the trial court erred in dismissing the case for failure to provide an expert report in compliance with section 13.01 of Article 4590i of the Texas Revised Civil Statutes, the Medical Liability and Insurance Improvement Act. We affirm the trial court’s judgment.

This suit was filed on September 20, 2002, and Bailan timely filed the expert reports of Jeffery Michael Kopita, M.D. and Ethan Podet, M.D. Gibson filed a motion challenging the adequacy of both expert reports. After a hearing on the motion, the trial court, in a memorandum dated June 9, 2003, sustained Gibson’s challenge to the reports, but granted Bal-lan a 30-day grace period to file reports in compliance with section 13.01. Thereafter, on July 10, 2003, Bailan filed Kopita’s July 6, 2003 report and Podet’s June 5, 2003 report. Citing section 13.01(e), Gibson filed a motion to dismiss reasserting his challenge to the sufficiency of the reports under section 13.01(r)(6). Bailan filed a response and presented another report from Podet dated August 4, 2003, with an attached certificate of service for August 7, 2003. After hearing on October 2, 2003, the trial court dismissed the case with prejudice, as provided by section 13.01(e).

Section 13.01(d) of the Act requires a plaintiff asserting a health care liability claim to submit an expert report, along with the expert’s curriculum vitae, to each defendant physician no later than the 180th day after filing suit. See Tex.Rev. Civ. Stat. Ann. Art. 4590i § 13.01(d) (Vernon Supp.2003). Section 13.01(r)(6) defines an expert report as “a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician ... failed to meet the standards, and the causal relationship between the failure and the injury, harm or damages claimed.”

“A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report....” See Tex.Rev.Civ. Stat. Ann. Art. 4590i § 13.01(7 )(Vernon Supp.2003). We review a trial court’s decision on a motion challenging an expert report and a motion to dismiss a case under section 13.01(e) for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex.2001). Under this standard, we defer to the trial court’s determination of the facts, but review questions of law de novo. See Knie v. Piskun 23 S.W.3d 455, 461 (Tex.App.-Amarillo 2000, pet. denied).

To constitute a good faith effort, the expert report must provide the defendant a fair summary of the expert’s opinions with respect to each of the requirements set forth in section 13.01(r)(6), i.e., a standard of care, breach of that standard, and causation. Palacios, 46 S.W.3d at 878-79. A report can not be a good faith effort if it omits any of the statutory elements. Id. at 879. The report must fulfill dual purposes: (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude that the claims have merit. Id. In determining if the report constitutes a good faith effort, the trial court’s inquiry is limited to the four corners of the report. Id, at 878.

We have reviewed Kopita’s July 6, 2003 report and we conclude it does not represent a good faith effort to comply with the statutory definition of an expert report. From Kopita’s two-page report, we learn that Mr. Bailan died in the emergency room while undergoing CPR by EMS and that, according to the autopsy, the cause of death was arteriosclerotic cardiovascular disease. Kopita states Mr. Bailan had five untreated cardiac risk factors: (1) tobacco abuse, (2) hyperlipidemia, (3) possible hypertension, (4) obesity, and (5) possible diabetes melhtus. Kopita states the standard of care includes counseling on smoking cessation and diet, an exercise regimen, cholesterol lowering medications, treatment for elevated blood pressure and evaluation for glucose intolerance. Concerning three of the possible risk factors, Kopita asserts that Gibson was negligent in his failure: (1) to treat hyperlipidemia with lipid lowering agents, (2) to determine if the patient had glucose intolerance or diabetes mellitus, and (3) to diagnose hypertension. Kopita asserts that “based on reasonable medical probability,” Gib son’s negligence was a proximate cause of Mr. Ballan’s death.

In defense of the report, Bailan argues that Kopita is an expert. However, whether or not Kopita was qualified as an expert in this case, his report is not sufficient to comply with the requirements of section 13.01(r)(6). Kopita’s report describes an individual in poor heath, who died in an emergency room, with at least five different risk factors that could have contributed or caused his death. Some factors, such as tobacco abuse and body weight, were beyond the control of Gibson and may have played a significant role in the cause of death. Kopita does not state how Gibson’s alleged failure to act regarding three of the risks caused Mr. Ballan’s death, nor does he rule out the factors beyond Gibson’s control as the cause of death. His statement regarding causation is conelusory and does not “provide a basis for the trial court to conclude that the claims have merit.” Palacios, 46 S.W.3d at 879.

Podet’s June 5, 2003 report is also deficient. It contains no statement regarding Gibson’s breach of the standard of care, nor does it state how any action on the part of Gibson caused Mr. Ballan’s death. We will not consider his August 7, 2003 report because it was furnished to counsel beyond the 30-day grace period. See Tex.Rev.Civ. Stat. Ann. Art. 4590i § 13.01(f) (Vernon Supp.2003); see also Rickburg v. Wolf, 48 S.W.3d 375, 378 (Tex.App.-Eastland 2001, pet. denied)(untimely supplemental report can not cure defects in original report).

We find that both expert reports are deficient, and we conclude the trial court did not abuse its discretion in granting the motion to dismiss this case. We affirm the trial court’s judgment.

      . Article 4590i was repealed by the 78th Legislature, effective September 1, 2003. This ease was filed before article 4590i was repealed.

      . The trial court’s October 2, 2003 memorandum listing two "findings” regarding Kopita’s status as an expert does not act as a limitation on this Court’s review of the report in its entirety. A dismissal under section 13.01(e) is in the nature of a sanction. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001) Findings of fact are not required in such a case and should not be considered on appeal. See IKB Industries(Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442-43.


source: Caselaw Access Project

author: Chief Justice MORRISS.

license: Public Domain

text:
    In the Interest of J.C., G.C., I.C., and T.C., Children.
    No. 06-04-00060-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 30, 2004.
    Decided Dec. 7, 2004.

      Kathryn B. Moon, Bennett Law Office, Longview, for appellant.
    Joe Shumate, Law Office of Joe Shu-mate, Henderson, for appellee.
    Carl H. Barber, Law Office of Carl H. Barber, Henderson, for the children.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

“Criminally abusive behavior” describes, but mostly sanitizes, actions taken by Stephen Paul Clark against his wife, Kimberly Clark, as graphically detailed in the evidence at the heart of this case. Stephen’s parental rights to his four children, J.C., G.C., I.C., and T.C., were terminated by the trial court on Kimberly’s petition, and Stephen, on appeal, challenges the factual sufficiency of the evidence to support the jury’s findings. We affirm the termination of Stephen’s parental rights because we find the evidence factually sufficient to support the findings (1) that at least one— in fact, both — of the grounds alleged for termination existed, including (a) Stephen’s endangering conduct under Texas Family Code Section 161.001(1)(E) and (b) Stephen’s knowing criminal conduct resulting in his conviction and confinement and resulting inability to care for the children for at least two years under Section 161.001(1)(Q); and (2) that termination of Stephen’s parental rights was in the children’s best interests.

Some factual background assists in understanding this matter. Stephen and Kimberly were married on or about August 11, 1996, and ceased to five together as husband and wife on or about March 28, 2001. Kimberly and Stephen had four children together: J.C., G.C., I.C., and T.C. At the time of the jury trial on the petition for involuntary termination, the children whose interests were at stake were as follows: son, J.C., age 9; son, G.C., age 7; son, I.C., age 6; and daughter, T.C., age 4.

On March 27, 2002, Kimberly filed an original petition for divorce, termination of parental rights, request for permanent injunction, renewal of protective order, and request to consolidate cases. On August 21, 2002, after a bench trial, the trial court granted the divorce, terminated Stephen’s parental rights as to J.C., G.C., I.C., and T.C., and granted a permanent injunction. That result was reversed by this Court because Stephen had been denied a jury trial. See In re J.C., 108 S.W.3d 914 (Tex.App.-Texarkana 2003, pet. ref'd). On remand, a jury trial was held beginning February 9, 2004, and as a result Stephen’s parental rights to the four children were terminated by order signed March 11, 2004. In its order, the trial court found, based on the jury findings, that, by clear and convincing evidence, Stephen had (1) “engaged in conduct ... that endangers the physical or emotional well-being of the children”; and (2) “knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and inability to care for the children for not less than two years from the date the petition was filed.” In addition, the trial court found that, by clear and convincing evidence, “termination of the parent-child relationship between STEPHEN CLARK and the children the subject of this suit is in the best interest of the children.”

1. The Evidence Is Factually Sufficient To Support the Findings That at Least One of the Grounds Alleged for Termination Existed

Stephen challenges the factual sufficiency of the evidence to support the termination of his parental rights to the four children at issue. The trial court’s termination of Stephen’s parental rights set out its findings, based on the jury verdict, supporting two statutory grounds for termination, (a) his conduct endangering the children and (b) his criminal confinement causing his inability to care for the children for at least two years.

Any complaint that the evidence is legally or factually insufficient to support the findings necessary for termination is analyzed by a heightened standard of appellate review. See In re C.H., 89 S.W.3d 17, 25 (Tex.2002). The Texas Supreme Court has now held that the appellate standard for reviewing the factual findings made to support termination proceedings is whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction about the truth of the allegations made in support of the claimed termination. This is the language used by the court to explain the working of the “clear-and-convincing evidence” standard of review. The court also disapproved of cases holding that termination findings should be upheld if they are not against the great weight and preponderance of the evidence. Id. at 23.

If, in light of the entire record, the disputed evidence that a reasonable trier of fact could not have credited in favor of the finding is so significant that a trier of fact could not reasonably have formed a firm belief or conviction to support termination, then the evidence is factually insufficient. Id. at 25. Accordingly, Stephen must show that the evidence is so weak, or that the evidence to the contrary is so overwhelming, that the trier of fact could not have reasonably found it sufficient to support the termination. In re B.S.W., 87 S.W.3d 766, 772 (Tex.App.-Texarkana 2002, pet. denied). This he has failed to do.

a. The Evidence Is Factually Sufficient To Support the Finding That Stephen Engaged in Endangering Conduct Under Section 161.001(1)(E)

Section 161.001(1)(E) of the Texas Family Code focuses exclusively on the parent’s conduct. Under this section, proof that the parent’s course of conduct endangered the child’s physical or emotional well-being is sufficient. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987); In re S.F., 141 S.W.3d 774, 776 (Tex.App.-Texarkana 2004, no pet.); see Tex. Fam.Code Ann. § 161.001(1)(E) (Vernon 2002). “Endanger” means to expose to loss or injury; to jeopardize. See Boyd, 727 S.W.2d at 533.

Here, there was evidence of direct physical abuse of at least one of the children by Stephen. In August 2001, Stephen pled guilty to injury to a child, for an offense committed March 4, 2000, when, according to Kimberly, he punched J.C. in the midsection while at a drive-in restaurant in Henderson and, in the process, broke J.C.’s hand. Kimberly also testified that, on or about November 27, 1998, Stephen beat the then three-year-old J.C. with a belt. That beating left bruises on J.C. from his head to his toes, including his buttocks. Child Protective Services investigated that incident and concluded J.C. had been abused by Stephen. Hence, in January 1999, Stephen was indicted for an injury to a child, but Kimberly filed an affidavit of nonprosecution on that charge.

It is not necessary that the conduct be directed at the child or that the child actually suffer injury. Id. The violent acts and behavior directed at one child and at the child’s mother in the presence of the other children satisfy the requirement of Section 161.001(1)(E). Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674 (Tex.App.-Fort Worth 1984, writ ref'd n.r.e.). The child endangerment which would satisfy Section 161.001(1)(E) can be inferred from parental misconduct without a showing of any “actual and concrete threat of injury to the child’s emotional and physical well-being.” Boyd, 727 S.W.2d at 533. If the evidence shows a course of conduct which has the effect of endangering the child’s physical or emotional well-being, then a finding under former Section 15.02(1)(E), now Section 161.001(1)(E), is supportable. Id. at 534.

Stephen previously pled guilty to two counts of sexually assaulting Kimberly and to one count of injury to J.C. The pattern of abuse which was first reported in 1998 continued until 2001, the time of Stephen’s final arrest. Stephen continued thereafter to verbally abuse Kimberly from his prison cell by way of letters and cards.

Additionally, the caselaw interpreting Section 161.001(1)(E) has allowed for termination of the parent-child relationship for violent or negligent conduct directed at the other parent or other children, even where the behavior was not committed in the child’s presence. Dir. of Dallas County Child Protective Servs. Unit of Tex. Dep’t of Human Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex.App.-Dallas 1992, no writ). Therefore, even though the sexual assaults on the mother may not have been in the direct presence of the children, the caselaw allows for termination of the parent-child relationship. Moreover, the fact that G.C. and T.C. had not yet been born at the time of the 1998 assault on J.C. does not negate the fact that the pattern of abuse existed. The continuing course of abusive conduct by Stephen is evidence that the four children’s emotional and physical well-being has been endangered.

b. The Evidence Is Factually Sufficient To Support the Finding That Stephen Engaged in Knowing Criminal Conduct Resulting in His Conviction and Confinement and His Resulting Inability To Care for the Children for at Least Two Years Under Section 161.001(1)(Q)

The evidence clearly shows Stephen is currently incarcerated on a ten-year sentence for two sexual assault convictions and one conviction for injury to a child. Stephen challenges the trial court’s finding that there is factually sufficient evidence that he knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and inability to care for the children for not less than two years from the date of filing the petition. Tex. Fam.Code Ann. § 161.001(1)(Q) (Vernon 2002). Stephen contends that, even if the statute is applied prospectively, Kimberly failed to prove Stephen’s inability to care for his children for at least two years from the date of the petition.

Subsection Q is to be read prospectively. In re A.V., 113 S.W.3d 355, 360 (Tex.2003). A prospective reading of subsection Q allows the State to act in anticipation of a sentenced parent’s abandonment of the child and not just in response to it. Id. The purpose of subsection Q is to look to future imprisonment and inability to care for the child in order to protect the children whose parents will be incarcerated for periods exceeding two years after termination proceedings begin. Id. at 360-61.

The petition to terminate Stephen’s parental rights was filed March 27, 2002, after the convictions became final August 9, 2001. Therefore, the State had to prove that Stephen would be incarcerated until March 27, 2004. The State submitted the final convictions, for which Stephen was sentenced to ten years. Moreover, there is nothing to show Stephen is not still incarcerated during this appeal, more than two years after the petition was filed. Therefore, reading subsection Q prospectively, Stephen’s parental rights were properly terminated.

2. The Evidence Is Factually Sufficient To Support the Finding That Termination of Stephen’s Parental Rights Was in the Children’s Best Interests

Under Section 161.001, the trier of fact must find that termination is in the best interest of the child. See Tex. Fam.Code AnN. § 161.001(2) (Vernon 2002). There is a strong presumption that the best interest of the child is served by keeping custody in the natural parent. See In re D.M., 58 S.W.3d 801, 814 (Tex.App.-Fort Worth 2001, no pet.). The parents’ rights, however, are not absolute; protection of the child is paramount. A.V., 113 S.W.3d at 361.

In Holley v. Adams, the Texas Supreme Court set out a nonexclusive list of factors to help determine the best interest of the child: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the stability of the home or proposed placement; (7) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (8) any excuse for the acts or omissions of the parent. 544 S.W.2d 367, 371-72 (Tex.1976). Best interest, however, need not be proven by any unique set of factors, nor is proof limited to any specific factor. See In re H.R., 87 S.W.3d 691, 700 (Tex.App.-San Antonio 2002, no pet.). We briefly examine some of the factors.

a.Desires of the Children

Carl Barber, the children’s attorney ad litem, testified that the children said Stephen was not a real father to them. The children indicated that, while Stephen was at home, the house was “just chaos with yelling, screaming, violence and was an unhappy place,” but now that Stephen is not there, “home is a happy place.”

Barber testified that, when he interviewed six-year-old G.C., regarding why G.C. purposely called Stephen “Father” and not “Dad,” he responded that, “Dads are somebody that takes care of you and does things with you and Father is just your father.” Moreover, the children responded “no” when questioned as to whether they miss their father. Barber testified that the children were not interested in continuing a relationship with Stephen.

b. Emotional and Physical Needs of the Children

Stephen stands convicted of an injury to a child. Also, the pictures of the beaten J.C. show dark and large bruises over much of his body, including his buttocks. Kimberly testified the children have learned Stephen’s violent behavior and are violent toward one another. Even though the children did not testify during the termination proceeding, it is clear from Barber’s testimony the children perceive the home to be happy without Stephen. A happy home is important to the emotional and physical needs of the children and for the well-being of the children in general.

Further, there is evidence in the record of medical neglect of a child when, on March 4, 2000, after breaking J.C.’s hand by punching him, Stephen failed to take him to the hospital as soon as possible. The family instead traveled in the family van to another city, Tyler, from Henderson, before taking J.C. for medical care, because Stephen was concerned that his history of abuse in Henderson would cause him trouble if they got medical care for J.C. there.

c. Stephen’s Parental Ability and Programs Available

In 1995, Stephen entered anger management classes. In 1998, however, Stephen beat J.C. with a belt. Thereafter, Stephen again entered counseling and started medication for depression and bi-polar disorder in 1999. Again in 2001, Stephen physically abused Kimberly and J.C., for which he pled guilty.

After being incarcerated, Stephen took mandatory abuse prevention treatment classes. He has not taken any parenting classes. Stephen offered the jury many excuses for his behavior, from accident to losing his temper. The blame-shifting illustrates Stephen’s failure to own up to his actions and inactions. Ultimately, blame-shifting would inhibit improvement or growth within the family.

d. Stability of Proposed Placement

The four children will be living with their mother, Kimberly. The placement is stable, and the children will be residing with one parent. As Barber testified, the children are happy at home now that Stephen is absent. There is no evidence either Kimberly or the person she is dating has ever abused the children. “The rights of parenthood are accorded only to those fit to accept the accompanying responsibilities.” A.V., 113 S.W.3d at 361. Therefore, the jury findings supporting placement of the children with Kimberly and termination of Stephen’s parental rights are supported by the evidence.

e. Emotional and Physical Danger to the Children

The evidence of Stephen’s heedless and repeated sexual abuse of Kimberly with the children present in the house, at times within their hearing — added to the evidence of his past actions of physical abuse of the children — amply demonstrate the danger posed to the children by Stephen and support the jury findings.

Based on Stephen’s actions, his inac-tions, his history of physical and mental abuse, and his failure to take responsibility or to remedy past problems, we conclude that the evidence was factually sufficient to support the jury’s determination that termination was in the best interests of the children. Even though Stephen testified he has completed certain abuse treatment programs, we conclude that the evidence is factually sufficient to support the trial court’s finding that termination was in the best interests of the children.

We overrule the factual insufficiency contentions and affirm the trial court’s judgment.

      . Stephen has two other children from earlier relationships: two sons, K.M. and B.C.

      . The evidence shows that, at least once, one of the children was in the same room where sexual assault occurred and that, at least once, the sounds accompanying Stephen’s sexual assaults on Kimberly reached the children just down the hall, causing considerable emotional trauma.


author: Justice WRIGHT.

text:
    The COUNTY OF DALLAS, Appellant, v. Christopher Sean SEMPE and Carl Raymond Sempe, Individually and as Sole Heirs of Charles Ray Sempe, Appellees.
    No. 05-03-01603-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 7, 2004.

      Grant Hugh Brenna, Asst. Dist. Atty., Chrysta L. Castaneda, Locke Liddell & Sapp LLP, Dallas, for appellant.
    John Aan Goren, Robert K. Dowd, Dallas, for appellees.
    Before Justices WRIGHT, RICHTER, and MAZZANT.
   OPINION

Opinion by

Justice WRIGHT.

Dallas County brings this interlocutory appeal of the trial court’s order denying its plea to the jurisdiction. Christopher Sean Sempe and Carl Raymond Sempe filed suit under § 1983 of the civil rights act for violations of their father’s civil rights. The County stated two grounds in support of its plea to the jurisdiction. First, the County alleged the trial court lacked standing over the survival action. Second, it asserted it was immune from suit under the Texas Wrongful Death Act. See Tex. Civ. Peac. & Rem.Code Ann. § 71.001 (Vernon Supp. 2004-05). The County reasserts these issues on this appeal. We conclude the Sempes have standing and that the County is not immune from the Sempes’ § 1983 action.

Background

On April 28, 1990, Charles Ray Sempe, father of Christopher and Carl Sempe, was arrested in Dallas County on a misdemeanor charge. Charles Ray Sempe was placed in a Dallas County jail cell with a capacity for twenty-four inmates. On that night, the cell in which Charles Ray Sempe was placed contained forty-six other inmates. Some of the inmates in the cell were convicted felons. Fighting in the overcrowded jail cells was commonplace. Charles Ray Sempe was killed by one of the inmates in his overcrowded cell on April 29,1990.

At the time of his death, Charles Ray Sempe was divorced and the father of Christopher, age nine, and Carl, age seven. On February 29, 2000, the Sempes sued the County alleging that their father’s civil rights had been violated. At the time they filed their lawsuit, Christopher was two months’ away from turning twenty and Carl was approximately seventeen-and-a-half years old.

Standard of Review

Subject-matter jurisdiction is essential for a court to have the authority to resolve a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). A party may challenge a court’s subject-matter jurisdiction by filing a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex.1999). Because subject matter jurisdiction presents a legal question, we review the district court’s ruling on a plea to the jurisdiction de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). In conducting this de novo review, we do not look at the merits of the plaintiffs case but consider only the plaintiffs pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). The plaintiff has the burden to plead facts affirmatively showing the trial court has subject-matter jurisdiction. Tex. Ass’n of Bus., 852 S.W.2d at 446. We construe the pleadings liberally in favor of conferring jurisdiction. Tex. Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002) (per curiam). “When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency,” and the trial court should not grant a plea to the jurisdiction until the plaintiff has an opportunity to amend. See County of Cameron, 80 S.W.3d at 555 (citing Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804-05 (Tex.1989)).

§ 1983 Action

The Sempes allege their father’s constitutional rights were violated when the County placed him in an overcrowded jail cell. The Civil Rights Act provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or inununities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. Courts rely upon § 1988 to borrow from state law where § 1983 is silent and state law is not inconsistent with the policies of § 1983. Robertson v. Wegmann, 436 U.S. 584, 587-89, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978) (holding that survival actions under § 1983 are governed by 42 U.S.C. § 1988, which directs the courts to look to the law of the forum state). In § 1983 actions raising claims for survival and wrongful death, the Fifth Circuit has consistently borrowed from the Texas survival and wrongful death statutes in determining who has standing to bring such claims. See Aguillard v. McGowen, 207 F.3d 226 (5th Cir. 2000); Rhyne v. Henderson County, 973 F.2d 386 (5th Cir.1992). Courts do not look to state laws in § 1983 actions to determine who may be sued because that is governed by § 1983 itself.

Survival Action

In its first point of error, the County asserts the trial court erred in denying its plea to the jurisdiction because the Sempes lack standing to bring the survival action. The County contends the trial court never acquired jurisdiction over the Sempes’ survival action because the Sempes failed to show that they were entitled to recover in the capacity in which they sued. The County further argues that in order for jurisdiction to have attached, the Sempes had to allege their proper capacity as legal representatives of their father’s estate within the applicable statute of limitations period.

The Texas Survival Statute provides that, “(a) personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person.” Civ. PRAC. & Rem.Code Ann § 71.021(b) (Vernon 1997).

Section 1983 actions are characterized as personal injury actions. Wilson v. Garcia, 471 U.S. 261, 279-80, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In a § 1983 action, the state’s statute of limitations and tolling provisions apply. Board of Regents v. Tomanio, 446 U.S. 478, 484-86, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Personal injury actions are governed by the two-year limitations period. Tex. Civ. PRAC. & Rem.Code Ann. § 16.003 (Vernon 2002). If a person who is entitled to bring a personal injury action is under a legal disability at the time the cause of action accrues, the time of the disability is not included in the limitations period. Tex. Civ. Peac. & Rem.Code Am § 16.001(b) (Vernon 2002).

We will first address the County’s assertion that to have standing to bring a survival action an heir must (1) file a claim within the four years allowed by law for instituting probate administration proceedings and (2) allege and prove that there is no administration pending and none necessary. The County cites Shepherd v. Ledford, 962 S.W.2d 28, 31 (Tex.1998) to support this argument. Shepherd, in turn, cites Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex.1971). A close review of these two cases, however, reveals they are inapplicable.

In Frazier, the plaintiff sued to recover damages for breach of a lease held by his deceased father. The plaintiff filed his suit within the four-year period allowed for instituting administration proceedings. The supreme court stated that, before an heir can maintain a suit for the recovery of property belonging to an estate, he must allege and prove that no administration is pending and that none is necessary. Frazier, 472 S.W.2d at 752. Although there had been no administration of the estate, an administration was necessary because the estate owed debts. Id. at 752-53. For this reason, the plaintiff lacked standing. Id; see also Stewart v. Hardie, 978 S.W.2d 203, 207 (Tex.App.-Fort Worth 1998, pet. denied) (holding the decedent’s husband lacked standing after concluding administration of the estate was necessary because the evidence showed the husband was not the only beneficiary of his wife’s estate and the parties stipulated that the estate had debts). By contrast, in Shepherd, the supreme court held the decedent’s common law wife had standing after concluding no administration of the estate was necessary because the evidence showed the decedent’s common law wife was his only heir, the family, including the wife, had resolved the estate’s disposition, and all debts of the estate had been paid. Shepherd, 962 S.W.2d at 33-34.

An heir does not have to file a survival action within the four years allowed by law for instituting probate administration proceedings. See Patridge v. Peschke, 111 S.W.2d 1147, 1149 (Tex.Civ.App.1937, no writ) (suit brought more than nine years after decedent’s death with no probate administration proceedings having been opened). If an heir does file a survival action within that four-year period, he must allege there is no administration pending and none is necessary. See Frazier, 472 S.W.2d at 752. The intent of this rule is to preserve and protect the estate during the period of time for instituting probate administration proceedings. The rule announced in Frazier is inapplicable to this case because the Sempes did not file their lawsuit within the four-year period allowed for instituting an administration. The rule’s purpose of preserving the estate for potential beneficiaries or creditors is no longer threatened. Moreover, the Sempes provided the necessary proof that no administration of their father’s estate was necessary.

Having concluded that heirs are not required to file a survival action during the four-year period for instituting probate proceedings, we turn now to the County’s allegation that the Sempes lack standing because of the derivative nature of survival causes of action. The County focuses on the derivative nature of a survival action in contending that the Sempes’s suit is time-barred. It argues that because the deceased would have been barred from filing suit so too are the Sempes. We disagree.

Both survival and wrongful death actions are derivative causes of action. Russell v. Ingersoll-Rand Co., 841 S.W.2d 348, 345 (Tex.1992). The supreme court held that a survival action is wholly derivative of the decedent’s rights, therefore, “if a decedent’s action would have been barred by limitations had it been asserted immediately prior to his death, a survival action based on the same alleged wrong is likewise barred.” Russell, 841 S.W.2d at 345. The court applied the same reasoning to wrongful death actions holding that if a decedent could not maintain a personal injury suit at his death because it was barred by some defense such as limitations, “then there is no wrongful death action to accrue.” Russell, 841 S.W.2d at 348-49; Tex. Civ. PRAC. & Rem.Code ANN. § 71.003(a) (Vernon Supp. 2004-05). Russell, while instructive, is not applicable to the facts of this case.

The County cites numerous cases applying the principle set forth in Russell. These cases cited by the County are factually on point with Russell and, therefore, inapplicable to our case. See Delesma v. City of Dallas, 770 F.2d 1334 (5th Cir. 1985); Diaz v. Westphal, 941 S.W.2d 96 (Tex.1997). In Delesma, children of their deceased father filed a § 1983 action after his death. Twenty-two years prior to his death, the deceased had brought an unsuccessful state lawsuit concerning the same events. Id. at 1335. The statute of limitations had run several years before the deceased’s death. Because limitations would have barred a lawsuit by the decedent prior to his death, limitations likewise barred the children’s lawsuit. Id. at 1336; see also Zacharie v. U.S. Natural Resources, Inc., 94 S.W.3d 748, 757-58 (Tex.App.-San Antonio 2002, no pet.) (the children’s survival and wrongful death claims barred by limitations because their mother’s own claims were barred by limitations at time of her death). By contrast, at the time of his death, the Sempes’s father was not barred by limitations from filing suit.

In Diaz, the deceased was aware of his medical liability claim in 1984. The deceased died more than two years after his medical liability claim accrued without ever having filed a lawsuit. Because limitations would have prevented the deceased from filing suit prior to his death, limitations likewise barred his wife’s suit. Diaz, 941 S.W.2d at 101. The deceased in this case, by contrast, was not barred by limitations at the time of his death.

The County also argues that the Sempes’s lawsuit is barred by limitations because the statute of limitations was not tolled during their minority. We disagree. To support this proposition, they cite Diaz, Delesma, and Zacharie. None of these cases address tolling of limitations. As noted above, the courts in each of these cases held that limitations had run on the heirs’ claims because limitations had run before the deceased died. These cases do not address the Sempes’s situation where they were minors when their father died and their father’s claims were not barred by limitations at the time of his death.

The state’s statute of limitations and tolling provisions apply in an action brought under section 1983. See Toma-nio, 446 U.S. at 484-86, 160 S.Ct. 1790. The applicable two-year statute of limitations provides that the time of minority is not included in the limitations period. See Tex. Civ. Prac. & Rem.Code Ann. §§ 16.001(b) & 16.003 (Vernon 2002). Based upon a clear reading of the statute, we conclude the Sempes’s action was tolled during the period of their minority.

The County contends that even if the Sempes survival action was viable at the age of majority, they failed to show they had standing before the two-year limitations period ran. In the primary case the County relies upon, the plaintiff filed a survival action within the limitations period. Lorentz v. Dunn, 112 S.W.Sd 176, 179 (Tex.App.-Fort Worth 2003, pet. granted). However, the only ground on which the plaintiff had standing to file the survival action was as the administrator of the deceased’s estate and she was not appointed administrator until after the limitations period had run. Id. The plaintiff lacked standing when she filed suit and did not obtain standing until after the limitations period had expired. Id. By contrast, the Sempes were their father’s heirs when they filed suit. Subsequently being required to supply proof of their status as heirs did not change the fact that they were heirs, and proper parties with standing, at the time they filed their original petition.

The facts in this case are more akin to those in Lovato v. Austin Nursing Center, Inc., 113 S.W.3d 45 (Tex.App.-Austin 2003, pet. granted). Lovato filed survival and wrongful death actions following the death of her mother. In her petition, filed before limitations had run, Lovato alleged that she was the personal representative of her mother’s estate. Lovato, however, was not appointed the personal representative of her mother’s estate until after the statute of limitations had run. Id. at 49. The defendant nursing home sought dismissal through a motion for summary judgment on the ground that Lovato did not have standing. Id. The trial court dismissed the suit. On appeal, the court reversed, holding that Lovato did have standing as an heir when she filed her original petition. Id. at 55. The court further held that Lovato’s amended petition filed after she was appointed personal representative of her mother’s estate related back to her timely filed original petition. Id. Like the plaintiff in Lovato, the Sempes were heirs of their father’s estate when they filed their original petition.

The County contends that even if the affidavits of heirship suffice to show standing, the Sempes’s claims still fail because the affidavits were filed more than three years after Carl Sempe reached the age of majority. It argues that the affidavits should not relate back to the date the original petition was filed. Again, the cases the County relies upon as support are inapplicable. In McAdams v. Capitol Products Corp., 810 S.W.2d 290, 293 (Tex.App.-Fort Worth 1991, writ denied), the plaintiff brought suit as a foreign representative of an estate and did not become the administrator in a Texas court until after limitations had expired. The court held her post-limitations appointment did not relate back because she did not have any authority to file the claim on the date she filed her original petition. Likewise, the plaintiff in Lorentz had no authority to file the claim and did not obtain the requisite authority until after limitations had run. Here, by contrast, the facts demonstrate the Sempes brought their claims as heirs, giving them standing as heirs under the survival statute. See Tex. Civ. PRAC. & Rem.Code Ann. § 71.021(b) (Vernon 1997). The County, relying on Lorentz, contends that the relation back doctrine does not apply in this case. We disagree. The court of appeals held in Lorentz that the doctrine did not apply because the plaintiff lacked standing when she filed the original petition. Lorentz, 112 S.W.3d at 179. In that situation, an amended pleading does not relate back to provide jurisdiction. Id. Unlike the plaintiff in Lorentz who admitted that she was not an heir of the decedent, the Sempes had standing as their father’s heirs when they filed their original petition.

We conclude the Sempes, as heirs, had standing. The Sempes each filed an affidavit of heirship. Christopher and Carl Sempe stated in their affidavits that they were the deceased’s only heirs, all debts of the deceased had been paid, and that there had been no administration and none was necessary. We conclude these affidavits provided proof of their status as heirs. Although filed after limitations had run, the affidavit proof related back to then-timely filed original petition.

We overrule the County’s first point of error.

Wrongful Death Action

In its second point of error, the County asserts the trial court erred in denying its plea to the jurisdiction because under the Texas Wrongful Death Act, counties are immune from suit.

The Texas Wrongful Death Act provides, in pertinent part:

(b) A person is hable for damages arising from an injury that causes an individual’s death if the injury was caused by the person’s or his agent’s or servant’s wrongful act, neglect, carelessness, unskillfulness, or default.

Tex. Civ. Prao. & ReM.Code Ann. § 71.002(b) (Vernon 1997). The act defines “person” as an “individual, association of-individuals, joint-stock company, or corporation or a trustee or receiver of an individual, association of individuals, joint-stock company, or corporation.” Tex. Civ. Prac. & Rem. Code Ann. § 71.001(2) (Vernon Supp. 2004-05). The County is correct that it is immune under a lawsuit brought solely under the state statute. However, the Sempes have filed a civil rights action. In this context, the court borrows certain, but not all, aspects from the Texas Wrongful Death Act.

Section 1983 provides a remedy for violations of federal rights committed by persons acting under color of state law. The United States Supreme Court has held that a county is a person within the meaning of § 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Crane v. State of Texas, 759 F.2d 412, 421 (5th Cir.1985).

State and federal courts have jurisdiction over section 1983 lawsuits. A state court may not deny a federal right without a “valid excuse.” Howlett v. Rose, 496 U.S. 356, 370, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). The Court in Howlett addressed the question of whether a state law sovereign immunity defense is available in a § 1983 action brought in state court. The Court answered that a state law immunity defense is not a “valid excuse.” Id.

In Howlett, a former high school student filed a § 1983 action in a Florida state court against a local school board. How-lett alleged violations of his federal constitutional rights resulting from the search of his car on school grounds and his suspension from classes. Howlett, 496 U.S. at 359,110 S.Ct. 2430. The lower courts held that the state’s statutory waiver of sovereign immunity applied only to state-court tort actions and that state governmental entities were immune from § 1983 actions brought in state court. Id. at 360, 110 S.Ct. 2430. The United State Supreme Court reversed.

In reversing, the Court held an immunity claim is a question of federal law. Howlett, 496 U.S. at 375, 110 S.Ct. 2430. “Municipal defenses — including an assertion of sovereign immunity — to a federal right of action are, of course controlled by federal law.” Id. at 376, 110 S.Ct. 2430, citing Owen v. City of Independence 445 U.S. 622, 647,100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Under federal law, counties are not immune from section 1983 claims. Id. Any attempt to provide immunity over and above those already provided in section 1983 directly violates federal law. Howlett, 496 U.S. at 375, 110 S.Ct. 2430.

This holding applies regardless of whether the § 1983 action is brought in federal court or state court. Martinez v. California, 444 U.S. 277, 284, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). As the Court stated in Martinez, “Conduct by persons acting under color of state law which is wrongful under § 1983 cannot be immunized under state law even though the federal cause of action is being asserted in state court. Id., n. 8. The Supreme Court recognized that if this were allowed it would render a right guaranteed to all citizens a mere illusory promise. Id.

To hold the County immune from the Sempes’s lawsuit under state law would be inconsistent with and a violation of state law. See Howlett, 496 U.S. at 371, 110 S.Ct. 2430. A state court entertaining a § 1983 claim must adhere to the United States Supreme Court’s interpretation that counties are “persons” in the context of that section. Accordingly, the County is not immune from the Sempe’s action asserting damages for the wrongful death of their father. We deny the County’s second point of error.

We affirm the trial court’s order denying the County’s plea to the jurisdiction.

      . Section 1988 provides in pertinent part:
      The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.
      42 U.S.C. § 1988.

      . See Tex. Prob.Code § 74 (Vernon 2003).

      . The Court also noted that the "fact that [immunity] is denominated jurisdictional does not provide a court an excuse to avoid the obligation to enforce federal law if the rule does not reflect the concerns of power over the person and competence over the subject matter that jurisdictional rules are designed to protect.” Howlett, 496 U.S. at 381, 110 S.Ct. 2430.

      . We do not address the County’s fourth and fifth points of error contending the trial court lacked jurisdiction over the Sempes's state law claims. The Sempes dropped their independent state-law actions for wrongful death and survival.


author: /s/ Joseph E. Lambert Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Petitioner, v. Robert L. TEMPLETON (KBA Member No. 7020), Respondent.
    No. 2004-SC-0891-KB.
    Supreme Court of Kentucky.
    Dec. 16, 2004.
   OPINION AND ORDER

Respondent, Robert L. Templeton, of Ashland, Kentucky, was admitted to the practice of law in the Commonwealth of Kentucky on April 1, 1975. At the time the current charges were filed, he was still serving suspensions from the practice of law for unrelated matters. See Kentucky Bar Association v. Robert L. Templeton, Ky., 111 S.W.3d 865 (2003); Robert L. Templeton v. Kentucky Bar Association, Ky., 54 S.W.3d 154 (2001); Inquiry Commission v. Robert L. Templeton, Ky., 48 S.W.3d 570 (2000).

Based on a complaint filed by Timothy Stapleton against Respondent, the Inquiry Commission authorized a four (4) count charge alleging a violation of SCR 3.130-1.3 (Diligence), SCR 3.130-3.2 (Expediting Litigation), SCR 3.130-1.4(a) (Communication), and SCR 3.130-8.1(b) (Failing to Respond to a Disciplinary Authority). Attempts were made to serve Respondent with a copy of the charge, at his KBA Roster address, but were unsuccessful. He was served through the Secretary of State pursuant to SCR 3.175.

The Board of Governors of the Kentucky Bar Association found Respondent guilty of four (4) counts of professional misconduct and recommended that he be suspended from the practice of law for a term of five (5) years.

All four (4) counts of misconduct arise from Respondent’s handling of an appeal of a criminal conviction in the United States Court of Appeals for the Fourth Circuit. Respondent represented Timothy Stapleton in the appeal of a criminal conviction in the United States Court of Appeals for the Fourth Circuit. Respondent timely filed a Notice of Appeal on behalf of Mr. Stapleton on January 24, 2000, and also timely filed an Entry of Appearance and Docketing Statement on May 22, 2000, on Mr. Stapleton’s behalf. Thereafter, Respondent failed to file a brief on behalf of Mr. Stapleton which resulted in the court dismissing Mr. Stapleton’s appeal on October 11, 2000, for failure to prosecute pursuant to Local Rule 45.

On April 30, 2004, the Inquiry Commission charged Respondent with four (4) counts of professional misconduct in his representation of Mr. Stapleton. In summary:

(1) Count I alleged that Respondent violated SCR 3.130-1.3 which provides that “a lawyer shall act with reasonable diligence and promptness in representing a client;”
(2) Count II alleged that Respondent violated SCR 3.130-3.2 which provides in part that, “a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client;”
(3) Count III alleged that Respondent violated SCR 3.130-1.4(a) which provides that, “a lawyer should keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information;” and
(4) Count IV alleged that Respondent violated SCR 3.130-8.1(b) which provides in part that, “a lawyer shall not knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.”

On October 18, 2004, the Board of Governors, by a vote of 17-0, concluded that Respondent was guilty of all four (4) counts of professional misconduct and recommended that Respondent be suspended from the practice of law for a period of five (5) years. Respondent has not formally contested any stage of these proceedings; therefore, we accept the recommendation of the Board. SCR 3.370(10).

Accordingly, it is hereby ORDERED that:

1. Respondent, Robert L. Templeton, is suspended from the practice of law in this Commonwealth for a period of five (5) years. This period of suspension shall continue thereafter until Respondent is reinstated to the practice of law by order of this Court. SCR 3.510.
2. Pursuant to SCR 3.390, Respondent is directed to notify all of his clients and all courts in which he had matters pending of his inability to practice law in this Commonwealth, within ten days from the date of entry of this Opinion and Order. Respondent shall deliver copies of all letters of notification to the Director of the Kentucky Bar Association. In addition, Respondent shall immediately, to the extent possible, cancel and cease any advertising activities in which he is engaged.
3. Pursuant to SCR 3.450, Respondent is directed to pay the costs associated with this matter, said sum being $486.62, for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

ENTERED: December 16, 2004.

/s/ Joseph E. Lambert Chief Justice


author: /s/ Joseph E. Lambert CHIEF JUSTICE

text:
    W. Craig AULENBACH, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2004-SC-914-KB.
    Supreme Court of Kentucky.
    Dec. 16, 2004.

      J.D. Raine, Ferreri & Fogle, Louisville, Counsel for Movant.
    Bruce K. Davis, Executive Director, Jay R. Garrett, Deputy Bar Counsel, Kentucky Bar Association, Frankfort, Counsel for Respondent.
   OPINION AND ORDER

The Kentucky Bar Association (KBA) charged Movant, W. Craig Aulenbach, with a violation of SCR 3.130-1.4(a) and (b), 1.16(d), and 8.3(b) for failing to keep his client reasonably informed about the status of the representation and to withdraw representation appropriately. Aulenbach moves this Court to sanction him by Public Reprimand and by a thirty day suspension. The KBA agrees, and we so order.

Aulenbach was admitted to the practice of law on May 1, 1978, and maintains a bar roster address at 4316 Bowling Blvd., Louisville, Kentucky. Aulenbach does not dispute that he violated the Rules of Professional Conduct as charged in KBA Files 9714 and 10235.

In April 1999, the client hired Aulenbach to represent her in a property dispute. Her landlord filed a Complaint against her on November 2, 1999 and Aulenbach filed an Answer and Counterclaim two days later. A trial date was set. After filing the Answer and Counterclaim on the client’s behalf, Aulenbach had no further contact with her and failed to inform her of the trial date.

Aulenbach moved to withdraw his representation less than a month before trial. A copy of the motion was sent to the client’s former place of employment. No other copies were sent. Notably, Aulen-bach did not send a copy to her home address, of which Aulenbach was aware, and he made no attempt to ensure that she received notification of his withdrawal. As a result of Aulenbach’s failure to keep his client informed of the status of her case, she did not know the date of the trial and Judgment was entered against her in the amount of $6,100, plus interest.

Pursuant to these facts, Movant admits that he violated SCR 3.130-1.4(a) and (b), which requires an attorney to keep the client informed about the status of the case. Movant also admits that he violated SCR 3.130 — 1.16(d), which governs termination of representation.

In a wholly unrelated matter, Au-lenbach has been charged with violating SCR 3.130-8.3(b). That rule states that it is misconduct to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Aulenbaeh has committed four separate crimes of Driving Under the Influence between 1995 to 2002. This Court agrees with Aulenbaeh that such a pattern of criminal behavior reflects poorly on his fitness as a lawyer and warrants punishment.

Upon the foregoing charges and facts, it is ordered that the Movant’s Motion for Public Reprimand and Suspension be granted. Therefore, it is ORDERED that:

1. Movant, W. Craig Aulenbaeh, is hereby publicly reprimanded for violating SCR 3.130-1.4(a) and (b), 1.16(d) and 8.3(b).

2. Movant, W. Craig Aulenbaeh, is also hereby suspended from the practice of law in the Commonwealth of Kentucky for thirty (30) days.

3. Movant, W. Craig Aulenbaeh, is also hereby suspended from the practice of law in the Commonwealth one hundred eighty-one (181) days. However, this suspension is deferred for three years on the condition that Aulenbaeh participate in the KYLAP program as stated in the Supervision Agreement.

4. Movant, W. Craig Aulenbaeh, is also hereby ordered to reimburse his client’s attorney’s fees in the amount of $100; the sum of $475 representing one-half of the amount she paid a successor attorney to file a lawsuit against Aulenbaeh; and court costs of $173 for filing the suit against Aulenbaeh.

5. If Movant, W. Craig Aulenbaeh, fails to comply with any term of discipline as set forth above, upon motion of the KBA Office of Bar Counsel, the Court may implement the one hundred eighty-one (181) day suspension from the practice of law in the Commonwealth of Kentucky.

6. In accordance with SCR 3.450, Au-lenbach shall pay all costs associated with these disciplinary proceedings against him, including the amount of $16.30 assessed against him, and for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

ENTERED: December 16, 2004.

/s/ Joseph E. Lambert CHIEF JUSTICE