author: Opinion by Justice GARZA.

text:
    In re GRACO CHILDREN’S PRODUCTS, INC., et al.
    No. 13-05-455-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Sept. 21, 2005.
    Joseph J. Krasovec III, Schiff Hardin LLP, Chicago, IL, Patricia J. Kerrigan, Werner & Kerrigan LLP, Houston, Ted Rodriguez, Jose E. Garcia, Garcia & Villarreal, McAllen, for relator.
    Francisco J. Rodriguez, Rodriguez, To-var & De Los Santos, McAllen, Kevin Michael Better, Patrick K. Sheehan, Horn-berger, Sheehan, Fuller & Better, Inc., Sean F. O’Neill, Law Office of Sean O’Neill, San Antonio, for real party in interest.
    Before Chief Justice VALDEZ and Justices CASTILLO and GARZA.
   OPINION

Opinion by Justice GARZA.

This is an original proceeding arising from a produets-liability action brought against Newell Rubbermaid, Inc., individually and d/b/a Graco Children’s Products, Inc. (“Relator”). The real party in interest, Patricia Galnares (“Plaintiff’), alleges that a design defect in a child car seat, the “SnugRide,” manufactured by Relator caused the death of her five-week-old son in a single-vehicle rollover accident on May 10, 2002. The action is now pending before the 398th District Court in Hidalgo County, Texas, Judge Aida Salinas Flores (“Respondent”) presiding.

In its petition for writ of mandamus, Relator argues that Respondent abused her discretion by ruling that Relator waived all privileges to certain documents requested by Plaintiff’s Fourth Request for Production because Relator failed to specifically assert its privileges as to each of Plaintiff’s individual requests. Although Relator made a general assertion of attorney-client and work-product privileges to all of Plaintiff’s requests and produced a withholding statement, Respondent ruled that Relator had failed to preserve all privileges. For the reasons that follow, we conclude that Respondent abused her discretion in reaching this conclusion. Accordingly, we conditionally grant the relief sought by Relator.

Background

The petition in this original proceeding is Relator’s third petition for writ of mandamus arising from the proceedings below. All three of Relator’s petitions have challenged Respondent’s rulings on issues related to Plaintiffs Fourth Request for Production. Because the procedural history of this case is central to this Court’s disposition of the instant petition and because one of Relator’s petitions remains pending before the supreme court, we take time to detail the procedural and other background facts relevant to this original proceeding.

On March 22, 2005, the Consumer Product Safety Commission (“the Commission”) announced the assessment of a civil penalty against Relator for untimely disclosures of hazards associated with certain models of infant carriers, high chairs, swings, strollers, and toddler beds. According to Relator, none of the hazards in the Commission’s announcement involved ejection of infants during motor vehicle accidents or complaints regarding a five-point harness system such as the harness on the SnugRide. In contrast, Plaintiff contends that, because many of Relator’s products share component parts, the Commission’s announcement may relate to component parts of the SnugRide.

Plaintiff’s Fourth Request for Production sought production of documents pertaining to the Commission’s announcement. The discovery was served by certified mail and telecopier on April 5, 2005. Relator’s responses were served on April 29, 2005. In the responses, Relator specifically objected to each of Plaintiffs 20 requests for production and made several “general objections” to all the requests, including the following objection:

[Relator] ... objects to the Requests for Production to the extent it [sic] seeks information protected by the attorney-client privilege or work product doctrine, or to the extent it [sic] seeks information otherwise immune from discovery under any applicable rule or privilege. Such documents or information shall not be produced in response to Plaintiffs discovery requests, and any inadvertent production or disclosure thereof shall not be deemed a waiver of any privilege or work product immunity.

On April 29, 2005, Plaintiff filed a Motion to Compel Depositions and Production of Documents. The motion sought production of documents responsive to Plaintiffs Fourth Request for Production. On May 2, 2005, Relator filed a motion for protection, complaining of Plaintiffs Fourth Request for Production because “the discovery propounded by Plaintiff has no nexus with this lawsuit and is served solely to harass [Relator] and as a fishing expedition in a search for irrelevant but potentially prejudicial documents concerning [Relator].... ” On May 5, 2005, Relator provided Plaintiff with a withholding statement indicating that documents otherwise responsive to Plaintiffs Fourth Request for Production (numbers 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 18 and 19) were being withheld based on attorney-client privilege. See Tex.R. Crv. P. 193.3. The withholding statement did not assert the work-product privilege or any other privilege.

On May 6, 2005, Relator filed a second response to Plaintiffs Motion to Compel Depositions and Production of Documents, raising similar objections to the requested discovery, though with greater specificity than Relator’s first response. On May 12, 2005, Respondent held a hearing on Plaintiffs Motion to Compel Depositions and Production of Documents. At that time, Plaintiff withdrew requests 18 and 19 but continued to seek all documents responsive to the 18 other requests made in its Fourth Request for Production. Respondent ruled in Plaintiffs favor and ordered Relator to produce the documents by May 19, 2005.

On May 13, 2005, Plaintiff requested a privilege log as to any claim of privilege regarding Plaintiffs Fourth Request for Production. On May 18, 2005, Relator filed a petition for writ of mandamus with this Court, challenging the trial court’s order of May 12, 2005. This Court stayed all proceedings in the underlying case in order to consider the merits of the petition. On June 16, 2005, we denied the petition and lifted the stay. On June 22, 2005, Relator served its privilege log on Plaintiff. Subsequently, on June 24, 2005, Relator filed a petition for writ of mandamus and motion for emergency relief with the supreme court, seeking to challenge the trial court’s order of May 12, 2005.

While the petition and motion were pending before the supreme court, Plaintiff filed a second Motion to Compel Depositions and Production of Documents regarding the documents responsive to Plaintiffs Fourth Request for Production. A hearing was held on this motion on June 29, 2005, at which time, Respondent ruled that Relator had waived all privileges and ordered the production of all documents responsive to Plaintiffs Fourth Request for Production.

On July 6, 2005, Relator filed with the supreme court a supplemental motion for emergency relief, a motion for leave to file a supplemental petition for writ of mandamus, and a supplemental petition for writ of mandamus. On July 14, 2005, the supreme court granted Relator’s motion for emergency relief and supplemental motion for emergency relief and stayed Respondent’s order of June 29, 2005. The supreme court denied Relator’s motion for leave to file a supplemental petition for writ of mandamus with the notation “See Tex.R.App. P. 52.3(e), (j)(l)(B).”

Relator has now filed the instant petition for writ of mandamus, asking this Court to review and vacate the portion of Respondent’s order of June 29, 2005 ruling that no privileges were preserved as to documents responsive to Plaintiffs Fourth Request for Production and compelling the production of those documents.

I. Availability of Mandamus Relief

Mandamus relief is appropriate to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law. In re DuPont de Nemours & Co., 136 S.W.3d 218, 222-23 (Tex.2004) (orig.proceeding) (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)). A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ. Id. at 223 (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992)). Mandamus is proper when the trial court erroneously orders the disclosure of privileged information because the trial court’s error cannot be corrected on appeal. Id. (citing Walker, 827 S.W.2d at 843).

II. Analysis

The issue in this original proceeding is whether Respondent’s order of June 29th amounted to an abuse of discretion. In reaching this determination, we must first decide whether Relator waived all privileges by failing to include specific assertions of privilege in its initial response to Plaintiffs Fourth Request for Production.

At the June 29th hearing on Plaintiffs second motion to compel depositions and request for production, the following exchange transpired between Respondent and counsel for Relator, which, we believe, provides useful insight into Respondent’s ruling that all privileges were waived:

Counsel: Even though there isn’t a requirement for us to assert a privilege at the same time as the objection, we did do so. If the Court will look at the [response to] the fourth request for production, we do in fact [object based on privilege]....
The Court: The point that I think that is being made by [opposing counsel] ... is that on these discoveries you did not assert the privilege as to those particular items ...
Counsel: Yes, Judge. In our preliminary objections, we actually raised a privilege generally.
The Court: But that is general boilerplate language that is asserted at the beginning of every—
Counsel: It’s been the law.
The Court: I understand.
The Court: The Court is going to go ahead and rule.
Counsel: But, Judge, if I might just advise the Court that then on May 5th, we sent a letter and said, we are withholding documents pursuant to the privilege, which is what we’re required to do by the rules ...
The Court: The issue remains, [counsel- or], whether you’ve waived the privilege by not asserting the privilege on those discovery documents.... I feel like, you know, you’ve waived at this particular point....

From this exchange, it is clear that Respondent based her ruling on Relator’s failure to include in its initial response specific assertions of privilege to each of Plaintiffs particular requests. Later in the same exchange, Respondent specifically stated that, in her opinion, Relator’s general objection based on attorney-client and work-product privileges, which she described as “boilerplate language,” was insufficient to preserve a claim of privilege.

It is also apparent from the foregoing exchange that counsel for Relator informed Respondent that a withholding statement had been timely tendered to counsel for Plaintiff and that the production of such a withholding statement is the proper manner of asserting privileges. We agree with Relator on both of these issues.

We turn to the rules of civil procedure for guidance. Rule 193.2 sets forth the form and time for objections to written discovery. Tex.R. CIV. P. 193.2. Subsection (a) states the following general rule:

A party must make any objections to written discovery in writing — either in the response or in a separate document — within the time for response. The party must state specifically the legal or factual basis for the objection and the extent to which the party is refusing to comply with the request.

Tex.R. CIV. P. 193.2(a). Subsection (f) then states that this general rule for objections to written discovery does not apply to assertions of privilege:

A party should not object to a request for written discovery on the grounds that it calls for production of material or information that is privileged but should instead comply with rule 193.3. A party who objects to production of privileged material or information does not waive the privilege but must comply with rule 193.3 when the error is pointed out.

Tex.R. CIV. P. 193.2(f). Rule 193.3(a) provides

A party who claims that material or information responsive to written discovery is privileged may withhold the privileged material or information from the response. The party must state — in the response (or an amended or supplemental response) or in a separate document — that:
(1) information or material responsive to the request has been withheld,
(2) the request to which the information or material relates, and
(3) the privilege or privileges asserted.

Tex.R. CIV. P. 193.3(a).

Relator’s withholding statement of May 5th stated that, based on the attorney-client privilege, Relator was withholding documents otherwise responsive to Plaintiffs Fourth Request for Production (numbers 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 18 and 19). As such, the withholding statement complied with the requirements of the rule. See id.

In her response to Relator’s petition for writ of mandamus, Plaintiff maintains that the withholding statement was ineffective to preserve any privileges because it was served untimely, but that contention is insupportable. The withholding statement was served on Plaintiff within 30 days after Plaintiffs Fourth Request for Production was served on Relator. The rules of civil procedure require the responding party to serve a written response, including any objection to written discovery, within 30 days after service of the request for production. See Tex.R. Civ. P. 193.2(a); 196.2(a). Although the time limit for objecting to written discovery is 30 days from the date of service, no objection needs to be made to preserve a privilege and the rules set no time-limit for asserting a privilege. See Tex.R. Civ. P. 193.2(f); 193.3. Thus, there is no basis for concluding that the withholding statement and Relator’s assertion of privilege was untimely. Even if we were to agree that the 30-day deadline were applicable to assertions of privilege, the withholding statement would still be timely because it was filed within that time period.

We can appreciate that much confusion was caused by the general objection made in Relator’s response to Plaintiffs request for production. The rules specifically instruct counsel not to object to written discovery based on privileges. See Tex.R. CIV. P. 193.2(a); In re Univ. of Tex. Health Ctr., 33 S.W.3d 822, 826 (Tex.2000) (orig.proceeding); In re Anderson, 163 S.W.3d 136, 140 (Tex.App.-San Antonio 2005, orig. proceeding); In re Monsanto Co., 998 S.W.2d 917, 924 (Tex.App.-Waco 1999, orig. proceeding). Nevertheless, counsel for Relator made such an objection. Although the objection was inappropriate, the rules specify that an objection to written discovery based on privilege will not waive a privilege, as long as the party complies with rule 193.3(a). See Tex.R. CIV. P. 193.2(a); 193.3(a); In re Univ. of Tex. Health Ctr., 33 S.W.3d at 826. We have already concluded that Relator followed rule 193.3(a). See Tex.R. CIV. P. 193.3(a). Accordingly, the trial court’s ruling that Relator waived all privileges was an error of law and, as such, amounted to an abuse of discretion. See In re DuPont de Nemours & Co., 136 S.W.3d at 223.

We note that Plaintiff also raises an additional waiver argument. She points out that Relator’s withholding statement only asserted the attorney-client privilege and that Relator’s privilege log asserted additional privileges, including the work-product privilege. According to Plaintiff, Relator waived all privileges other than the attorney-client privilege by failing to assert them in its withholding statement.

It would be inappropriate for this Court to address Plaintiffs argument. The issue before us is not whether Relator waived some, but not all, privileges by failing to specify them in its withholding statement. The issue is whether Respondent erred by ruling that all privileges have been waived. We have concluded that Relator did not waive all privileges. Based on this conclusion, we have held that Respondent’s order of June 29th was an abuse of discretion. We have thus decided the only issue presented by this original proceeding.

III. Conclusion

Respondent is ordered to vacate her order of June 29, 2005. A writ of mandamus will issue if Respondent refuses to comply with this Court’s instructions.

      . Burlington Coat Factory Warehouse Corp. and Burlington Coat Factory of Brownsville, Inc. are also named defendants in the underlying suit, but they are not parties to this original proceeding.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte F.F.A.
    No. 10-05-00254-CV.
    Court of Appeals of Texas, Waco.
    Sept. 21, 2005.
    F.F.A., Tennessee Colony, pro se.

      Bill R. Turner, Brazos County Dist. Atty., Bryan, for Appellee/Respondent.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ORDER

PER CURIAM.

F.F.A. appeals an order dismissing “as frivolous or malicious” his petition for ex-punction under Chapter 55 of the Code of Criminal Procedure. When F.F.A. filed his notice of appeal, he simultaneously filed a “Motion and Affidavit In Forma Pauperis.” He has since filed a motion for permission to appeal with this Court, alleging that he “was found not indigent” by the trial court.

In response to this latter motion, the Clerk of this Court directed the district clerk to file a limited record to determine whether F.F.A. is entitled to proceed without advance payment of costs. See In re Arroyo, 988 S.W.2d 737, 739 (Tex.1998) (per curiam); see also Tex.R.App. P. 20.1, 34.5(c)(1). The district clerk has complied with this directive.

The record reflects that F.F.A. timely filed an indigence affidavit which does not comply with the requirements of Rule 20.1(b). See Tex.R.App. P. 20.1(b). However, no contest was filed, and the record does not contain an order finding F.F.A. “not indigent.”

An indigent party may proceed on appeal “without advance payment of costs if ... the party files an affidavit of indigence in compliance with this rule.” Id. 20.1(a)(1). However, F.F.A.’s affidavit does not comply with Rule 20.1(b) because it does not provide the information required by this rule. See In re J.W., 52 S.W.3d 730, 732 (Tex.2001) (per curiam); Thomas v. Olympus/Nelson Prop. Mgt., 97 S.W.3d 350, 352-53 (Tex.App.-Houston [14th Dist.] 2003, order) (per curiam); Holt v. F.F. Enters., 990 S.W.2d 756, 758-59 (Tex.App.-Amarillo 1998, order). Thus, it does not appear that F.F.A. is entitled to prosecute his appeal without advance payment of costs at this time.

However, before we require payment of applicable filing fees under penalty of dismissal, F.F.A. should be given a reasonable opportunity to cure his defective affidavit. See Tex.R.App. P. 44.3; J.W., 52 S.W.3d at 733.

Therefore, it is ORDERED that F.F .A. shall within twenty-one (21) days after the date of this Order: (1) file an amended indigence affidavit with the district clerk that complies with the requirements of Rule 20.1(b); and (2) notify the Clerk of this Court in writing that he has done so. If F.F.A. fails to comply, then he will not be permitted to prosecute his appeal without advance payment of costs.

      . This expunction appeal is styled "Ex parte F.F.A.” in accordance with this Court’s local rules. See 10th TexApp. (Víacó) Loe. R. 19(a).

      . The Clerk’s letter directed the district clerk "to file a limited clerk’s record containing: (1) any handwritten docket notations by the trial court; (2) the order being appealed; (3) any indigence affidavits filed by appellant; (4) any indigence contests filed by the clerk, the court reporter, or any party; (5) any indigence orders signed by the trial court; and (6) the notice of appeal.”


author: Opinion by Justice LANG-MIERS.

text:
    In the Interest of W.D.W., a Child.
    No. 05-04-01254-CV.
    Court of Appeals of Texas, Dallas.
    Sept. 22, 2005.

      Avo S. Butler, Law Office of Avo Stevens Butler, Sherman, for ad litem.
    John Hunter Smith, Nall, Pelley & Wynne, L.L.P, Sherman, R.J. Hagood, De-nison, for Appellants.
    Karla R. Baugh, Assistant County Attorney, Stephen Love, Grayson County Attorney’s Officer, Sherman, for Appellee.
    Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
   OPINION

Opinion by Justice LANG-MIERS.

The Texas Department of Family and Protective Services (the Department) filed an action to terminate the parent-child relationship between the parents, G_ W_ (Mother) and B_ W_ (Father), and the minor child, W.D.W., under the procedures provided in Texas Family Code Chapter 161. The jury found the parents’ rights should be terminated, and the trial court rendered judgment according to the verdict. On appeal, both parents challenge the legal and factual sufficiency of the evidence and the admission of the testimony of the Department’s expert. We affirm.

Legal and Factual Sufficiency

A trial court may terminate the parent-child relationship if the fact finder finds by clear and convincing evidence (1) a parent committed one or more of the enumerated statutory acts or omissions, and (2) termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001 (Vernon 2002). Due process requires that each finding be based on clear and convincing evidence. Id. § 161.206(a). Clear and convincing evidence is “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Id. § 101.007. This level of certainty is necessary to preserve the fundamental fairness in government-initiated proceedings that threaten to end a natural parent’s desire for and right to custody, care, and management of his or her children. In re S.P., 168 S.W.3d 197, 202 (Tex.App.-Dallas 2005, no pet. h.).

In reviewing the legal sufficiency of the evidence to support a termination finding, we look at all of the evidence “in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). In doing so, we presume the fact finder “resolved disputed facts in favor of its finding if a reasonable factfinder could do so.” Id. As a corollary to this, we “disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.” Id. After conducting this review, if we determine “no reasonable fact-finder could form a firm belief or conviction that the matter that must be proven is true, [we] must conclude that the evidence is legally insufficient.” Id.

In reviewing the factual sufficiency of the evidence, we look at all of the evidence and “give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.” Id. We “consider whether disputed evidence is such that a reasonable factfin-der could not have resolved that disputed evidence in favor of its finding.” Id. After such a review, if we conclude the disputed evidence that the fact finder “could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” Id.

Mother and Father’s Acts or Omissions

The Department sought to terminate the parental rights of Mother and Father because they (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the child’s physical or emotional well-being, or (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the child’s physical or emotional well-being. See Tex. Fam.Code Ann. § 161.001(1)(D) & (E).

Father argues no rational trier of fact could have found by clear and convincing evidence that he engaged in any of the allegations asserted in the Department’s petition. Mother did not file a separate brief but rather adopted Father’s brief.

The evidence showed that Mother has four children, two of whom she had when she was very young. She gave those two older children to her grandmother to raise. During the investigation of this case, her grandmother told the Department that Mother was not feeding the children before grandmother took over their care. Although Mother testified she talks with these children regularly, the record contained no evidence she made any effort to see the children on a regular basis.

Mother left home as a teenager, without the children, and traveled with friends who drove commercial tractor trailers on long-haul trips. On one of these trips, she met Father, a truck driver. They were married, Mother gave birth to J.W. in October 1993, and the family moved to Oklahoma. W.D.W. was born in Oklahoma in February 1999. Although the evidence conflicted regarding the exact time, at some point after W.D.W. was born, J.W. was removed from the home based on allegations of physical abuse by Mother and Father and sexual abuse by Father’s brother, S_ W_(the uncle). Prior to J.W.’s removal, the parents were informed of the allegations that the uncle abused J.W., but they continued to allow the uncle to visit.

Mother completed parenting classes in an effort to regain custody of J.W., but the record contained no evidence that Mother or Father complied with any other conditions required by Oklahoma to reunite the family. In the meantime, Mother and Father moved back to Texas with W.D.W. where they lived with Father’s family, including the uncle, S_W_, and Father’s brother, M_W_, and sister-in-law. In January 2004, a jury in Oklahoma terminated Mother and Father’s parental rights to J.W.

Mother and Father frequently took W.D.W. on their long-haul trips. W.D.W.⅛ baby seat was “bungie strapped” to the back seat and W.D.W. often wiggled out of his seat and crawled up to the front. Mother admitted that she and Father used methamphetamine intravenously for the past twelve years, even while driving with W.D.W. And although she testified she never let W.D.W. out of her sight, Mother later admitted she left W.D.W. with M_ W_and his wife, who were also drug users and lived with the uncle, and the evidence showed that W.D.W. was left in the uncle’s care at least once.

During their thirteen years of marriage, Father frequently assaulted Mother in front of W.D.W., sometimes hitting her with his fist and other times hitting her with his open hand. He also “chocked,” kicked and dragged her. Father was arrested three times since W.D.W. was born, and served one year of probation for family violence. He used to smoke marijuana and injected methamphetamine off and on since he was eighteen. Mother was convicted of food stamp fraud, but denied committing the crime. After failing to comply with the conditions of her probation, Mother admitted to a methamphetamine addiction and was sentenced to a substance abuse felony punishment facility, where she was still incarcerated during the trial of this case. When asked whether she was “stoned most of the time” when she and Father fought, Mother said “yes.”

The Department visited Mother and Father’s home three times prior to W.D.W.⅛ removal from the home. On two of these occasions, a home study was conducted by a Texas caseworker, Donna Lovelace, for Oklahoma in its case concerning removal of J.W. from the home. While Lovelace was at the parents’ house the first time, W.D.W. was in his crib for two or three hours, with only a plastic mattress cover on the crib — no sheet, no toys, no pillow. He did not cry; he only sat in the crib and talked to himself. On the second occasion, Lovelace saw W.D.W. in the crib with a “onesy” on but no diaper. W.D.W. had defecated and had smeared it over his head and body. Mother told Lovelace W.D.W. had removed his diaper from under his “onesy,” but Lovelace thought it was impossible for the child to do that and there was no evidence she saw a diaper in the room. Even though the house was “appropriately clean,” Lovelace called the Department’s hotline after she left because of her concern about what she saw.

T_K_testified that in April 2008, when W.D.W. was about four, Mother and Father asked if her 15-year-old daughter could babysit W.D.W. for a few days. T_K_agreed to help her watch the child. T_ K_ was an old school mate of Father’s. He knew she had used drugs in the past but said she had “cleaned up.” T_ K_ testified she was recently indicted for abandonment and endangerment of children, and had used marijuana, cocaine, and methamphetamine in the past. She testified her last drug use was in February 2003. T_K_was involved in two car accidents, one of which killed her son. She was diagnosed with post traumatic stress disorder, flashbacks, and aggression, for which she was taking several mood stabilizers.

T_ K_’s roommate was also a drug user and testified she used marijuana the day Mother and Father dropped W.D.W. off at T_K_⅛ house. The roommate also used cocaine and admitted she had a “bad drug problem.” T_ K_said she overheard Mother and Father talking to her roommate about a sexual threesome involving methamphetamine. The roommate admitted that either Mother or Father mentioned they smoked “ice,” but denied the conversation about trading sex and about a sexual threesome.

Mother and Father left T_ K_ enough clothes for W.D.W. for about two or three days. They left no emergency number where they could be contacted. The only number she had was for Father’s parents. According to T_K_, one of the first things Mother and Father told her when they dropped off W.D.W. was not to be surprised if he tried to stick a corn dog or hot dog “up his bo-bo.” During the time that T_ K_ had W.D.W., he sexually acted out and exhibited other unusual behaviors. Following one of these episodes, W.D.W. told T_ K_that Father and the uncle sexually abused him. T_K_called the Department and the police. When the Department interviewed W.D.W. at T_ K_⅛ home, W.D.W. told the investigator that Mother, Father and the uncle sexually abused him. The Department took custody of W.D.W. before Mother and Father returned from their trip.

Mother and Father did not attempt to visit W.D.W. when they returned from their trip. Father did not work with the caseworker on completing his service plan because he was always on the road. The evidence showed Father did not complete any of the goals of the service plan. Even after their parental rights to J.W. were terminated, in part because of the uncle’s sexual abuse of J.W., Mother and Father still allowed the uncle to be around W.D.W. And it was unclear whether Father ever believed the uncle sexually abused W.D.W.

Father has been unemployed since October 2003 and has made no contribution to the support of W.D.W. since he was removed by the Department. Prior to October 2003, Father’s employment history was unstable. He lost jobs because he was a “serious traffic violator,” because he was in jail, and because he had problems with other company employees. Although he said he has given up looking for a job, he also testified that he has a truck driving job lined up when this case is over and when a truck becomes available.

Mother did not comply with her service plan because she has been “locked up.” However, she testified she is taking classes in anger management and parenting while incarcerated and is working in the laundry. She said she hopes to obtain her GED before she is released.

In summary, the evidence showed that Mother and Father consistently abused drugs and drove commercial trucks while using drugs with the child in the vehicle. Mother and Father allowed drug users to babysit W.D.W., sometimes for long periods of time, without leaving an emergency number where they could be contacted. Father repeatedly abused Mother in the presence of the child. Mother and Father allowed the child to be around the uncle even after their parental rights to another child had been terminated, in part, due to sexual abuse by this same uncle. And they refused to comply with any of the conditions for regaining custody of W.D.W.

We conclude the evidence is legally and factually sufficient to support the jury’s finding that Mother and Father engaged in conduct which endangered the physical or emotional well-being of the child or knowingly placed the child in conditions or surroundings which endangered the physical or emotional well-being of the child. See Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987) (parent’s conduct need not be directed at child or result in injury to child to constitute endangerment; specific danger to child’s well-being may be inferred from parental misconduct); In re R.W., 129 S.W.3d 732, 739 (Tex.App.-Fort Worth 2004, pet. denied) (conduct that subjects child to life of uncertainty or instability endangers child’s well-being; drug use may establish endangering course of conduct); In re D.M., 58 S.W.3d 801, 812 (Tex.App.-Fort Worth 2001, no pet.) (instability and incarceration can be continuing course of conduct supporting termination).

The Child’s Best Interest

We now turn to whether termination was in the best interest of the child. In doing so, we consider the following factors: the child’s desires, the child’s present and future emotional and physical needs, the present and future emotional and physical danger to the child, the parenting abilities of the persons seeking custody, the programs available to the persons seeking custody to help promote the best interest of the child, the plans for the child by those persons seeking custody, the stability of the home or proposed placement, the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976); In re J.A., 109 S.W.3d 869, 876-77 (Tex.App.Dallas 2003, pet. denied).

The evidence showed that W.D.W. was physically and emotionally abused by his Mother, Father and uncle. He also observed Mother physically abused by Father. Mother and Father used drugs while driving commercial vehicles with the child. They placed him around people who used drugs and who sexually abused him. Mother left W.D.W. alone in his crib for hours with no toys to stimulate him and no sheet on the mattress.

Foster parents testified they observed W.D.W. exhibit unusual behaviors and sexually acting out. Tests showed W.D.W. was developmentally delayed. At age four, he was unable to articulate complete sentences. He was also overly friendly with strangers and exhibited no “stranger danger.” He hugged strangers and told them he loved them. Tests also revealed he suffered from post traumatic stress disorder and showed very strong signs of reactive attachment disorder. According to the Department’s expert, Dr. James Harrison, reactive attachment disorder develops from age eighteen months to five or six years of age and results from the child failing to develop a trust in adults that the child will be cared for consistently and reliably and will be loved and not hurt. Disruption in this trust development can arise in abusive situations, whether the abuse is directed toward the child or another family member.

Dr. Harrison testified that treatment of reactive attachment disorder is a long-term process involving therapy and extensive training with the primary care giver and possibly medication to manage the child’s moods. Dr. Harrison testified that if W.D.W. witnessed Father beating Mother throughout the child’s life, this could have caused both post traumatic stress disorder and reactive attachment disorder. He also testified that the behavior W.D.W. exhibited strongly indicated sexual abuse. According to Dr. Harrison, some of W.D.W.’s symptoms also could have resulted from a neurological disorder caused by the mother’s prenatal drug experience, birth problems, or physical abuse.

Mother and Father offered the testimony of Dr. Cynthia Martin-Cannici, who disagreed with some of Dr. Harrison’s conclusions. She testified that the psychological bond between a mother and child “is important enough that you would want to do anything you could not to break it.” She said putting the child in the most excellent home one could find would be more damaging for the majority of children “than being with parents who have some deficiencies.” However, she admitted that a child who was sexually abused in the family is a “big problem” and that a parent who left a child unattended for hours in a crib would be a cause for intervention.

The evidence showed that after W.D.W. was removed from his parents, he was transferred to three different foster homes in an effort to find a place that could treat his physical and emotional issues. After the third home, W.D.W. was admitted to the psychiatric ward of a hospital for three weeks. Upon release, the doctor recommended placement in a residential treatment facility because he did not feel any foster parent could handle W.D.W. in his current state. At the time of trial, W.D.W. resided in a residential treatment facility designed to treat children like him. And even though progress was slow, testimony showed that W.D.W. had made some progress. The Department testified its ultimate goal is for W.D.W. to be adopted.

Mother did not offer any plans for taking care of W.D.W. And she contradicted herself when asked about her plans to return to the marriage. At first she testified she did not know what she wanted to do, because she loved Father and thought he was a good father and provider. Then she testified she always wanted a divorce but was afraid to leave because Father had threatened to kill her if she divorced him. Later she testified she planned not to return to Father after she is released.

Father expressed remorse over his abuse of Mother, but seemed unwilling to admit that the uncle could have molested his children. He expressed no plans for obtaining a job to support his family other than he was waiting on a job as a truck driver. He offered no evidence of stable employment or home life. He excused his failure to work on the goals in the Department’s service plan because he was on the road all the time. But he offered no excuse for not working on the goals after he became unemployed, other than he has given up. The record contained no evidence that Mother or Father visited W.D.W. at any point after his removal from their home.

During the Department’s home study with respect to J.W., Father told Lovelace that if he caught J.W. masturbating in public, he would tell him to go to his room to do that. Mother said if she caught him sticking objects in his rectum, she would find pictures of children dying from AIDS or leukemia, show him the pictures, and tell him that is what would happen to him if he did not stop. Although this related to another child, J.W., not W.D.W., Mother and Father offered no evidence that their plans for W.D.W. and his similar behavior were any different. A parent’s conduct both before and after a child is born is relevant to the determination of whether the conduct endangers the child’s physical or emotional well-being. In re S.P., 168 S.W.3d at 203.

Additionally, Father and Mother did not provide stable employment or a stable home environment for W.D.W., living mostly on the road. And when they knew their parental rights were in jeopardy, they made no effort to complete any of the goals in the service plan for the return of W.D.W. to the family.

We conclude the evidence is both legally and factually sufficient to support the jury’s finding that termination of Mother and Father’s parental rights was in the best interest of W.D.W. We overrule appellants’ first issue.

Whether Expert’s Testimony Should Have Been Excluded

In their second issue, Mother and Father argue the trial court abused its discretion by allowing Dr. Harrison to testify as an expert because he was not properly disclosed by the Department.

Rule 194 of the rules of civil procedure governs the disclosure of information about testifying experts and their reports. See Tex.R. Civ. P. 194.2(f). The purpose of rule 194 requiring pretrial disclosure of expert witnesses is to give the opposing party sufficient information about the expert’s opinions to prepare for cross-examination of the expert and to present rebuttal evidence from its own experts. See Exxon Corp. v. W. Tex. Gathering Co., 868 S.W.2d 299, 304 (Tex.1993); Miller v. Kennedy & Minshew, Prof'l Corp., 142 S.W.3d 325, 348 (Tex.App.-Fort Worth 2003, pet. denied).

We review a trial court’s decision concerning discovery sanctions under an abuse of discretion standard. See Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1986). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1986). In other words, we must determine whether the trial court’s action was arbitrary or unreasonable. See id. at 242.

Prior to trial, Mother and Father filed a motion to strike the Department’s expert witnesses based on a failure to comply with rule 194. Following a hearing, the trial court struck all of the Department’s experts except Dr. Harrison.

The evidence showed that the Department answered appellants’ requests for disclosure, designating Dr. Harrison as an expert who conducted a neuropsychological evaluation of the child. Attached was Dr. Harrison’s curriculum vitae. In its response, the Department referred to the “Child Protective Services Case file previously provided” to appellants for information regarding the subject matter of his testimony, the general substance of his mental impressions and opinions and summary of the basis for those opinions, and tangible information he reviewed or prepared in anticipation of his testimony. The Department showed that Dr. Harrison’s report containing the general substance of his mental impressions and opinions and summary of the basis of those opinions had been previously produced to Mother and Father in discovery.

Father admitted he received Dr. Harrison’s report prior to trial. And he does not argue the disclosure was not timely or the report was not adequate. Father also admitted he was not surprised by Dr. Harrison’s testimony. In fact, he hired his own expert to rebut Dr. Harrison’s testimony. However, Mother and Father contend the Department should have attached Dr. Harrison’s report to its response to the disclosure request, rather than referring to a file already produced in discovery. Father also contends the disclosure fails to include any documents, tangible things, reports, models, or other data compilations reviewed by or prepared by or for Dr. Harrison in anticipation of his testimony, and did not identify whether he was a testifying or consulting expert. Failure to do so, they contend, violated rule 194.

Mother and Father rely on VingCard A.S. v. Merrimac Hospitality Sys., Inc., 59 S.W.3d 847 (Tex.App.-Fort Worth 2001, pet. denied) in support of their argument. In VingCard, the respondent provided only the expert’s name and subject matter of his testimony in response to a rule 194 discovery request. Merrimac did not disclose the expert’s mental impressions or opinions, a brief summary of the bases for those opinions, or any of the tangible information the expert reviewed in anticipation of his testimony. The trial court overruled VingCard’s objection when Merrimac offered the expert’s testimony at trial. The Fort Worth Court of Appeals concluded that Merrimac failed to comply with rule 194, which, absent a showing of good cause or lack of surprise or prejudice, triggered the automatic exclusion sanctions of rule 193.6. Id. at 856; Tex.R. Civ. P. 193.6. Because Merrimac made no attempt to show good cause or lack of surprise or prejudice, the court concluded the expert’s testimony should have been excluded. However, the court held that any error was harmless.

Unlike VingCard, here the Department produced Dr. Harrison’s report, which complied with rule 194, to Mother and Father before it responded to the discovery request. Additionally, Father’s counsel candidly admitted during argument that Dr. Harrison’s report was sufficient under case law to meet the requirements of rule 194 and that he was not surprised. Instead, he contended the disclosure response did not satisfy the spirit of the rule. But even if the Department’s disclosures had not complied with rule 194, there was a lack of prejudice in this case because neither Mother nor Father objected to the introduction of Dr. Harrison’s report, when it was offered by the child’s attorney ad litem, which contained the same opinions as offered in his testimony.

Because the report complied with the rule, Mother and Father received the report prior to trial which gave them the opportunity to prepare their rebuttal, neither parent objected when the child’s ad litem introduced the expert’s report into evidence, and Mother and Father offered their own expert’s opinion in rebuttal, we conclude the trial court did not abuse its discretion in admitting Dr. Harrison’s testimony. We overrule appellants’ second issue.

Conclusion

We conclude the evidence is legally and factually sufficient to support the jury’s finding that termination of Mother and Father’s parental rights was in the best interest of the child. We further conclude the trial court did not abuse its discretion in allowing Dr. Harrison to testify as an expert for the Department. Having over-CD 3 CD ⅜ O' O 0) CD a a a. a>


author: /s/ Joseph E. Lambert Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Movant v. Sandra Camille BROOKS, Respondent.
    No. 2005-SC-0542-KB.
    Supreme Court of Kentucky.
    Aug. 25, 2005.
    Case Ordered Published by Supreme Court Oct. 13, 2005.
    Bruce K. Davis, Linda Gosnell, Frankfort, KY, Counsel for Kentucky Bar Association.
    Sandra Camille Brooks, Oliver H. Barber, Louisville, KY, Counsel for Sandra Camille Brooks.
   OPINION AND ORDER

On January 8, 1997, the Kentucky Bar Association (KBA) served Respondent with a letter, sent pursuant to SCR 3.460, directing her to discontinue the unauthorized practice of law. On July 11, 2005, the KBA filed a Motion for a Show Cause Rule pursuant to SCR 3.460, alleging that Respondent had violated its directive to discontinue her unauthorized practice of law. On July 12, 2005, this Court issued a rule ordering Respondent to show cause why she should not be held in contempt for violating the KBA’s directive. Respondent filed her response on July 18, 2005, alleging compliance with the 1997 directive. On July 28, 2005, Respondent filed an amended verified response, requesting this Court to dispense with a hearing in the matter and admitting the said allegations.

1. Respondent is known to operate a business variously known as Legal Self-Help, Inc. / Brooks Consumer Credit Consulting Agency, Inc. / Brooks Legal Self-Help Services.

2. Respondent is not admitted to practice law in the State of Kentucky.

3. On January 8, 1997, the Kentucky Bar Association (KBA) served Respondent with a letter, sent pursuant to SCR 3.460, directing her to discontinue the unauthorized practice of law.

4. In an Order dated April 27, 2004, Respondent was found to have engaged in the unauthorized practice of law by the United States Bankruptcy Court in the Eastern District of Kentucky. Respondent unsuccessfully appealed that Order.

5. On July 11, 2005, the KBA filed a Motion for a Show Cause Rule pursuant to SCR 3.460, alleging that Respondent had violated its 1997 directive to discontinue her unauthorized practice of law. On July 12, 2005, this Court issued a rule ordering Respondent to show cause why she should not be held in contempt for violating the KBA’s directive. Respondent filed her response on July 18, 2005, alleging compliance with the 1997 directive.

6. For the stated purpose of resolving the said controversy, Respondent amended her July 18, 2005, response, admitting that she engaged, subsequent to a 1997 directive issued by the KBA, in the unauthorized practice of law by advising customers how to fill out the Schedule C portion of their Petitions filed in the United States Bankruptcy Court. Respondent further admits that such practice was in direct violation of the KBA directive to cease and desist in the unauthorized practice of law.

7. Respondent requests this Court to dispense with an evidentiary hearing pursuant to SCR 3.460(2) and to find her in civil contempt of this Court for the unauthorized practice of law in violation of the 1997 KBA directive. Respondent further requests this Court to impose a sanction in the amount of one thousand five hundred dollars ($1,500) to be paid as reimbursement to the KBA for the time and expense it incurred in this matter. Respondent additionally agrees to pay any costs or fees associated with these proceedings.

8. Respondent agrees to not engage in the unauthorized practice of law in the future.

9. The KBA is not opposed to Respondent’s proposed resolution in this matter.

ACCORDINGLY, IT IS HEREBY ORDERED:

(1)Pursuant to SCR 3.460, Respondent is found to be in civil contempt of this Court for the unauthorized practice of law in violation of a 1997 KBA directive.

(2) Respondent is ordered not to engage in the unauthorized practice of law in the future..

(3) Respondent is sanctioned for her contempt in the amount of one thousand five hundred dollars ($1,500.00), to be paid to the KBA as reimbursement for its time and expense associated with this matter.

(4) As of this date, the KBA has not alerted this Court of any costs or fees due or owing in connection with this action.

LAMBERT, C.J., COOPER, GRAVES, JOHNSTONE, ROACH and SCOTT, JJ., concur.

WINTERSHEIMER, J., concurs in result only.

ENTERED: August 25, 2005.

/s/ Joseph E. Lambert Chief Justice


author: LAMBERT, Chief Justice.

text:
    Tod D. MEGIBOW, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2005-SC-000517-KB.
    Supreme Court of Kentucky.
    Oct. 20, 2005.

      Tod D. Megibow, Megibow & Edwards, PSC, Paducah, Counsel for Movant.
    Bruce K Davis, Executive Director, Jay R. Garrett, Deputy Bar Counsel, Kentucky Bar Association, Frankfort, Counsel for Respondent.
   OPINION AND ORDER

LAMBERT, Chief Justice.

Tod D. Megibow moves this court to sanction him with a public reprimand for violating SCR 3.130-3.4(c) and SCR 3.130-4.1. The Kentucky Bar Association (KBA) agrees with the proposed sanction and requests that we grant Megibow’s motion.

Movant’s bar roster address is Megibow & Edwards, PSC, P.O. Box 1676, Paducah, Kentucky 42002-1676 and his KBA member number is 47055. He was admitted to practice law on June 4,1979.

In 2003, Curtis and Kathy Bailey engaged Movant to represent Mr. Bailey in his post-dissolution of marriage action involving child support and maintenance arrearage. In the course of the representation, Movant served subpoenas duces te-cum on the records custodians of two credit institutions, directing them to produce a complete payment history for Mr. Bailey from 1999 forward. However, Movant failed to serve copies of the subpoenas on Bailey’s former wife, Paula Sue Bailey or the Marshall County Attorney Child Support Office, a party to the action. He sought compliance with the subpoenas by a date certain. However, the subpoenas did not state a hearing date, nor were they issued in connection with a notice of deposition or court proceeding.

The use of subpoenas to obtain documentary evidence or tangible things without an accompanying notice of deposition or notice of hearing or trial has been a recurring problem. Evidently some practitioners are unaware that CR 45.01 prohibits such use of subpoenas. As stated in the rule, “Subpoenas shall not be used for any purpose except to command the attendance of the witness and production of documentary or other tangible evidence at a deposition, hearing or trial.” It is improper to use subpoenas in a manner contrary to the rule. We addressed a parallel issue in Stengel v. KBA with respect to the use of Grand Jury subpoenas to obtain documents from out-of-state firms. We amended RCr 5.06 to permit the use of such subpoenas provided the instrument was not misleading. Stengel does not modify or undermine CR 45.01.

In this case, the records sought were Bailey’s records and Movant was his lawyer. It is perplexing why Movant did not simply obtain Bailey’s authorization to obtain the records from the credit institutions rather than use a subpoena. In any event, Movant’s use of a subpoena in a manner contrary to CR 45.01 was wrong.

Movant admits that his actions violated SCR 3.130-3.4(c) which prohibits a lawyer from “knowingly or intentionally disobey[ing] an obligation under the rules of a tribunal except for an open refusal based on an assumption that no valid obligation exists.” Movant concedes that his actions also violated SCR 3.130-4.1 which provides that “in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person.”

We accept the disciplinary measures requested by Movant and agreed upon by the KBA.

ACCORDINGLY, IT IS HEREBY ORDERED:

(1) Movant, Tod D. Megibow, shall be and is hereby Publicly Reprimanded.

(2) Movant, Tod D. Megibow, shall complete, at his expense, three hours of remedial ethics education, separate and apart from any other continuing legal education (CLE) within one year of the date of this Order. The remedial ethics education must be satisfied by Movant’s personal attendance at live legal education programs which must be approved in advance by the Kentucky Bar Association Office of Bar Counsel. Movant shall not apply for or obtain CLE credit for his attendance at these programs and is ordered to provide the CLE Commission with a release to allow the Office of Bar Counsel to review his confidential CLE records and verify his compliance.

(3) In accordance with SCR 3.450, Mov-ant, Tod D. Megibow, is directed to pay all costs associated with these disciplinary proceedings in the amount of $8.38 for which execution may issue from this court upon finality of this order.

All concur.

      . Munroe v. KBA, 927 S.W.2d 839 (Ky.1996).

      . 162 S.W.3d 914 (Ky.2005).


text:
    James Raymond HIGDON, Petitioner, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2005-SC-0077-KB.
    Supreme Court of Kentucky.
    Oct. 20, 2005.
    James Raymond Higdon, Louisville, for Petitioner.
    Bruce K. Davis, Executive Director, Kentucky Bar Association, Frankfort, for Respondent.
   OPINION AND ORDER

LAMBERT, Chief Justice.

James Raymond Higdon, of Louisville, Kentucky, was admitted to the practice of law in Kentucky in May 1995. Higdon moved to withdraw from the practice of law in Kentucky and this Court granted the motion on March 19, 1997, pursuant to SCR 3.480. Higdon was a member in good standing with no pending disciplinary actions at that time. Higdon now seeks restoration to the practice of law in Kentucky pursuant to SCR 3.500.

Mr. Higdon is an active member of the Alabama bar and in good standing with that bar. During the time he was resigned from the practice of law in Kentucky, he has worked as a staff attorney for judges of various U.S. Bankruptcy Courts. The Board found that he has maintained his CLE requirements and has found no reason to deny restoration, approving his motion by an 18-0 vote.

In a letter dated September 24, 2004, from the KBA, Higdon was advised to post a cash or corporate surety bond in the amount of $2500, as well as paying the $500 fee listed in SCR 3.500(2) and the additional $500 fee to the KBA listed in SCR 3.500(2). It appears from the record that Higdon has complied with all of these requirements. He was also notified that he would be expected to pay the $270 annual dues if and when he was reinstated.

SCR 3.500(3) requires that any attorney applying for restoration whose retired status has prevailed for more than five years shall pass a written examination which shall cover the subject of ethics and five of the subjects listed in SCR 2.080(1). On October 5, 2005, the Kentucky Board of Bar Examiners certified to this Court that Mr. Higdon obtained a passing grade on this exam and that he has thereby satisfied all other requirements for reinstatement.

It is therefore ORDERED that Mr. Higdon be reinstated to the practice of law upon payment of $317.58 costs to the Kentucky Bar Association.

All concur.


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Benjamin C. HALL, Respondent, and Benjamin C. Hall, Movant, v. Kentucky Bar Association, Respondent.
    Nos. 2005-SC-000173-KB, 2005-SC-000591-KB.
    Supreme Court of Kentucky.
    Oct. 20, 2005.

      Bruce K. Davis, Executive Director, Jay R. Garrett, Deputy Bar Counsel, Kentucky Bar Association, Frankfort, KY, Counsel for Kentucky Bar Association.
    Benjamin C. Hall, David C. Stratton, Pikeville, KY, Counsel for Benjamin C. Hall.
   OPINION AND ORDER

Benjamin C. Hall moves this court to impose discipline for violations arising out of eight separate cases. The Kentucky Bar Association (KBA) has no objection to his motion.

Hall, who was admitted to practice law on October 17, 1991, was suspended for noneompliance with continuing legal education requirements (CLE) in 2004 and was also suspended for 181 days in 2005, for a disciplinary violation. Hall’s bar roster address is P.O. Box 2455, Pikeville, Kentucky 41502 and his KBA member number is 84165.

The KBA concluded that the appropriate discipline for all violations is a five year suspension, with conditions as to all matters. Hall requests that we grant his motion, encompassing these terms.

The subject violations arose from four bankruptcy cases, two probate matters, and two domestic relations eases. Specifically, Hall accepted $600.00 from Ms. Zella Epling to file her bankruptcy petition, but failed to file it timely. He also failed to return Ms. Epling’s phone calls. Eventually, he informed her that her petition had been filed, but he did not actually file it until over a month after he so informed her. Additionally, Hall asked Ms. Epling to produce her 2002 tax return, but failed to explain that the refund could be forfeited to the bankruptcy court. Finally, Hall failed to respond to the KBA’s request for information, stemming from a complaint that Ms. Epling filed in connection with this matter. Hall admits that his lack of diligence, failure to communicate, misrepresentation to Ms. Epling of the status of her case, and his failure to respond to the KBA complaint, constituted violations of SCR 3.130-1.3, 1.4(a) and (b), 8.3(c) and 8.1(b), respectively.

Similarly, Hall failed to file a bankruptcy petition for Ms. Jean Click after she had paid him $850.00 to do so. Instead, he informed her that he “was having problems” and would not be able to return her money. She filed a complaint through the KBA, to which Hall did not respond. Hall admits that he violated SCR 3.130-1.3, 1.15(b), 1.16(d), 8.3(c), and 8.1.(b) by failing to use diligence in filing the petition, failing to return the unearned fee of $850.00, and failing to respond to a lawful demand for information from a disciplinary authority.

When Mr. and Mrs. William Harmon paid Hall $800.00 to file a bankruptcy petition, he did not file it until approximately six months later. However, Hall did file it and obtained an order of discharge for the Harmons. Subsequently, the bankruptcy trustee moved to revoke the discharge because of Hall’s noncompliance with a court order requiring the Harmons to produce two deeds, an appraisal of property, and the payoff on a mortgage. When Ms. Harmon produced the documents to Hall, he assured her that he would take care of the matter. Nonetheless, he failed to do so and the trustee’s motion to revoke the discharge was granted. As a result, the Hannons had to pay another attorney $400.00 to reopen the bankruptcy. The KBA requested information from Hall regarding his representation of the Harmons after Ms. Harmon filed a complaint. Hall did not respond. Hall concedes that his six-month delay in filing, failure to competently represent the Harmons by producing the necessary documents, failure to abide by a court order which required the production of the same documents, and his failure to respond to a lawful demand for information from a disciplinary authority, constitute violations of SCR 3.130-1.3, 1.1, 3.4(c), and 8.1(b).

Ms. Angeline Clevenger paid Hall a $500.00 retainer fee to represent her in a bankruptcy proceeding. When Hall failed to file the necessary paperwork in preparation for a hearing, the Bankruptcy Court gave Hall an additional ten days to do so. Hall assured Ms. Clevenger that he would handle the matter. Afterward, when she attempted to learn the status of her case, she discovered that Hall’s phone had been disconnected. She subsequently received an order dismissing her bankruptcy petition because she had failed to produce the documents previously ordered by the court. Although the court did set aside the order of dismissal, it did so as a result of Ms. Clevenger’s pro se motion. Additionally, the bankruptcy trustee prevailed on a motion to disgorge the $500.00 in attorney fees that Ms. Clevenger paid to Hall. Hall admits that he violated SCR 3.180-1.3, which requires diligence and promptness in client representation, when he failed to provide the trustee with the proper documents and failed to appear in court on a dismissal motion. He also admits that his failure to keep Ms. Clevenger informed of the status of her case violated SCR 3.130-1.4(a). Hall concedes that his failure to properly prepare for the hearing and file the necessary paperwork constituted a violation of SCR 3.130-1.1, which requires competent representation.

Hall failed to take any action after Ms. Floetta Coleman paid him $300.00 to handle a child support case on behalf of her son, who was in prison. When Ms. Coleman contacted Hall to inquire about the status of the case, Hall assured her that he would take care of it the following week. Subsequently, Ms. Coleman was unable to reach Hall because both his home phone and office phone had been disconnected. Furthermore, Hall failed to respond to Ms. Coleman’s bar complaint when the KBA sent it to him. Hall admits that his failure to take any action on her case violated the diligence required by SCR 3.130-1.3. SCR 3.130-1.15(b) was also violated when he failed to return the unearned fee to Ms. Coleman. Further, he admits to violating SCR 3.130-1.16(d) by abandoning his law practice without notifying Ms. Coleman that he was terminating the attorney/client relationship and by failing to return the unearned fee. Failure to return the unearned fee also constitutes a violation of SCR 3.130-1.15(b) which requires prompt delivery of funds or property to which the client is entitled. Hall confesses a violation of SCR 3.130-8.3(c) for reassuring Ms. Coleman that he would take care of her case and then, in fact, doing nothing. And, finally, his failure to respond to the KBA’s demand for information violated SCR 3.130—8.1(b).

Ms. Barbara Rogers paid Hall $500.00 to represent her son, who was incarcerated, in a divorce case. Thereafter, Hall contacted neither Ms. Rogers nor her son, and Hall did not appear when the case was heard. Hall admits that his failure to contact his client violated his duty of communication under SCR 3.130-1.4(a) and (b), and that his failure to appear at the hearing violated his duty to diligently and promptly represent his client, pursuant to SCR 3.130-1.3. He further violated SCR 3.130—1.15(b) and SCR 3.130-1.16(d) by failing to return Ms. Rogers’ fee, which he had not earned. He also admits that his retention of the fee even though he did not meet with the client or appear at the hearing constitutes a violation of SCR 3.130-8.3(c) which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. These actions also violated SCR 3.130-1.16(d) which mandates that an attorney take steps to protect a client's interest after the attorney/client relationship terminates. Hall’s failure to respond to the KBA’s demand for information regarding Ms. Rogers’ representation violated SCR 3.130-8.1(b).

Ms. Deborah Depietro paid Hall $750.00 to represent the estate of her aunt, Jetty May. However, Hall failed to return her phone call inquiries regarding the status of the case. Hall made a court appearance with Ms. Depietro, but did not file the petition to probate the will and appoint an administrator until nearly a month later. Hall also failed to prepare two quit claim deeds, for which Ms. Depietro paid him an additional $200.00. Hall abandoned his law office without informing Ms. Depietro, and did not return the unearned fee. He failed to respond to the KBA’s request for information upon Ms. Depietro’s filing a bar complaint. Hall concedes that he violated SCR 3.130-1.3 by failing to complete the administration of the estate and by failing to prepare the deeds. He admits that he violated SCR 3.130-1.4(a) when he failed to return his client’s calls. His failure to return the unearned fee violated SCR 3.130-1.16(d) as well as SCR 3.130-1.15(b), and finally, his failure to respond to the KBA’s demand violated SCR 3.130-8.1(b).

Lastly, Ms. Addie Grover engaged Hall in a probate matter. Ms. Grover’s portion of her brother’s estate was $5,503.93. When a cashier’s check in that amount was issued, made payable to Ms. Grover, Hall cashed the check, but failed to remit Ms. Grover’s portion to her until after Hall was charged by the Inquiry Commission. Hall also received the title to a vehicle that was to be turned over to Ms. Grover, but failed to do so. Therefore, Hall admits to violating SCR 3.130-1.3 as well as SCR 3.130 — 1.15(b), when he failed to promptly remit the funds to Ms. Grover and when he failed to give her title to the vehicle, to which she was entitled.

Hall admits that he has a substance abuse problem and avers that this problem led to and contributed to all of these ethical violations. We grant Hall’s motion and impose the requested discipline.

ACCORDINGLY IT IS HEREBY ORDERED:

(1) Benjamin C. Hall is suspended from the practice of law in the Commonwealth of Kentucky for five years with conditions as to all matters as follows:

Benjamin C. Hall shall refrain from alcohol or drug use and shall participate in the KYLAP program and monitoring as stated in the Supervision Agreement.

Benjamin C. Hall shall pay back all unearned fees to his clients, plus interest at 12% per annum from the date of this Order until paid. The clients and amount of unearned fees are as follows:

Ethel Salisbury, $850.00; Loretta Harmon, $700.00; Pam Nichols, $850.00; Joann Jackson, $850.00; Zella M. Epling, $600.00, Jean Click, $850.00; Floetta Coleman, $300.00; Barbara Harmon, $800.00; Barbara Rogers, $500.00; Deborah Depie-tro, $950.00; Angeline Clevenger, $500.00.

If the Client’s Security Fund makes any payments as a result of claims filed by Hall’s clients, he shall reimburse the Fund.

(2) If Hall fails to comply with any of these disciplinary terms during the five year period after this Order, the KBA Office of Bar Counsel may request an order of permanent disbarment.

(3) Hall shall pay all costs associated with these disciplinary proceedings in the sum of $574.45, for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

ENTERED: October 20, 2005.

/s/ Joseph E. Lambert Chief Justice


author: BARBER, Judge.

text:
    Bryan CLEVELAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-CA-000978-MR.
    Court of Appeals of Kentucky.
    Aug. 5, 2005.
    Case Ordered Published by Court of Appeals Sept. 9, 2005.
    Julie Namkin, Assistant Public Advocate, Frankfort, KY, for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Wm. Robert Long, Jr., Assistant Attorney General, Frankfort, KY, for Appellee.
    Before BARBER, KNOPF, and SCHRODER, Judges.
   OPINION

BARBER, Judge.

Appellant, Bryan Cleveland (Cleveland), appeals his conviction of flagrant nonsupport, claiming that the Commonwealth of Kentucky lacked jurisdiction to hear his case. This appeal is based on a question of law; therefore, our review will be De Novo. Because we agree with the trial court that the Commonwealth of Kentucky does have jurisdiction, we affirm.

Appellant and his ex-wife were divorced in May of 1997 in Hamilton County, Tennessee where the court granted his ex-wife custody of their two children. The divorce decree ordered Cleveland to pay child support in the amount of $1,093.87 per month directly to his ex-wife. Several months following the divorce, Appellant’s ex-wife moved with the children, to Graves County, Kentucky. The Appellant remained a resident of Tennessee.

In January of 2002, Appellant’s ex-wife brought charges of flagrant nonsupport and harassing communications in the Graves District Court. The nonsupport charge was based upon Appellant’s ex-wife’s claim against him that he was more than $50,000 in arrears on his child support payments. Appellant moved the court to dismiss for lack of jurisdiction, but the circuit court denied the motion. On January 16, 2004 Cleveland entered an Alford Plea to the charges of flagrant nonsupport and harassing communications. The conditional guilty plea was entered reserving his right to appeal Kentucky’s jurisdiction in the matter of flagrant nonsupport.

Appellant bases his appeal on two grounds. First, he admits that under Kentucky law he is guilty of flagrant nonsupport, but contends Kentucky lacks jurisdiction to find him criminally liable and second, that by exercising criminal jurisdiction over him, Kentucky violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Essentially, the crux of the appeal is whether Kentucky has jurisdiction to try Appellant for the crimes he is charged with. If Kentucky has jurisdiction, there is no violation of the Due Process Clause.

Appellant contends that he has not committed an offense within Kentucky; never resided in Kentucky; and the decree ordering child support did not originate in a Kentucky court. Therefore, Kentucky lacks jurisdiction to prosecute him. The Appellant acknowledges that the crime of flagrant nonsupport is found in KRS 580.050 but relies on KRS 500.060 to support his claim which states in relevant part:

(1) Except as otherwise provided in this section, a person may be convicted under the law of this state of an offense committed by his own conduct ... for which he is legally accountable when:
(a) Either the conduct or the result which is an element of the offense occurs within this state; or
(e) The offense consists of the omission to perform a legal duty imposed by the law of this state regardless of where that person is when the omission oc-eurs[.]

Cleveland emphasizes the portion of subsection (e) that reads . imposed by the law of this state ...” to support his theory that his Hamilton County, Tennessee divorce decree ordering child support payments does not subject him to criminal jurisdiction in Kentucky.

To support his interpretation of subsection (e), Cleveland also offers the Commentary of KRS 500.060 which reads:

Subsection (e) provides for the prosecution in this state of an offense that is based upon the nonperformance of a legal duty. Without regard to the location of a defendant at the time of nonperformance, the offense is committed in Kentucky if the legal duty is imposed by Kentucky law. The most frequent application of this subdivision may involve the failure of a parent to support his children. This offense (nonsupport) is punishable by this state, even though committed by an omission outside the state, since the conduct involved affects an interest of this state.

In his brief, Cleveland particularly emphasized the portion of the Commentary that reads, “... the offense is committed in Kentucky if the legal duty is imposed by Kentucky law.”

The Appellant erroneously believes that Kentucky law does not impose a duty on him since he is a Tennessee resident. The Appellant also contends that he has not violated a Kentucky law, and therefore, the Commonwealth of Kentucky lacks jurisdiction in this matter. Section 530.050 of the Kentucky Revised Statutes sets out the crime of flagrant nonsupport and in relevant part states:

(2) A person is guilty of flagrant nonsupport when he persistently fails to provide support which he can reasonably provide and which he knows he has a duty to provide by virtue of a court or administrative order to a minor or to a child adjudged mentally disabled, indigent spouse or indigent parent and the failure results in: (Emphasis added.)
(a) An arrearage of not less than one thousand dollars ($1,000); or
(b) Six (6) consecutive months without payment of support[.]

Subsection (2) of KRS 530.050 imposes a duty upon the parents of minor children to provide support when ordered to do so by a court. Subsection (2) does not mandate that the order must originate from a Kentucky court. The failure to comply with an order from any court imposing an obligation to support a child found within the jurisdictional boundaries of the Commonwealth of Kentucky is a violation of Kentucky law.

Appellant incorrectly argues that portion of KRS 530.050 to require a violation of a Kentucky order to be guilty of the offense. That view is too narrow. We believe a person can violate a Kentucky law without violating a Kentucky order.

Having established that the flagrant nonsupport statute imposes a duty upon the Appellant, we now examine the jurisdictional issue. The same statute relied on by the Appellant to justify his claim that Kentucky lacks jurisdiction actually provides jurisdiction to the courts of Kentucky in this matter. KRS 500.060(1) states that Kentucky has jurisdiction when:

(a) Either the conduct or the result which is an element of the offense occurs within this state; or
(e) The offense consists of the omission to perform a legal duty imposed by the law of this state regardless of where that person is when the omission occurs[J (Emphasis added.)

The subsections confer jurisdiction with Kentucky courts when an element of a crime is completed within Kentucky and when the result that makes the activity a crime occurs in Kentucky or when the omission of an established court ordered duty to someone in Kentucky occurs, whether or not the individual is within the jurisdictional boundaries of Kentucky at the time of the act or omission.

In the instant case it is not disputed that the Appellant failed to provide support to his minor children who, at all times relevant, were living in Graves County, Kentucky. This is an element of the crime of flagrant nonsupport. Also, under KRS 500.050, he failed to perform a legal duty to provide child support that the Hamilton County, Tennessee court ordered him to pay.

Since the Graves Circuit Court properly had jurisdiction, we do not need to review the constitutional question raised by the appellant.

Based upon the foregoing, the Graves Circuit Court properly denied the motion to dismiss and had jurisdiction to hear this case. The decision of the Graves County Circuit Court is affirmed.

ALL CONCUR.


author: VANMETER, Judge.

text:
    BUTLER’S FLEET SERVICE, Appellant v. Earl MARTIN; Hon. Richard Joiner, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2004-CA-002587-WC.
    Court of Appeals of Kentucky.
    Sept. 23, 2005.

      W. Barry Lewis, Hazard, KY, for Appellant.
    Miller Kent Carter, Pikeville, KY, for Appellee Earl Martin.
    Before DYCHE, SCHRODER, and VANMETER, JUDGES.
   OPINION

VANMETER, Judge.

Butler’s Fleet Service (Butler’s Fleet) petitions for the review of an opinion of the Workers’ Compensation Board (Board) reversing the decision of an Administrative Law Judge (ALJ) not to allow Earl Martin to amend his Application for Resolution of Injury Claim (Form 101) to include a psychological overlay claim. For the reasons stated hereafter, we reverse and remand the Board’s opinion.

Martin worked as a garage attendant at Butler’s Fleet. On September 9 or 10, 2002, Martin injured his lower back while putting a truck on a lift at the garage. Martin filed a Form 101 on August 13, 2003, alleging injury to his lower back. An ALJ subsequently dismissed this claim without prejudice pursuant to Martin’s own motion. Martin then filed a second Form 101 on February 6, 2004, again alleging injury to his lower back. A scheduling order was entered on March 24 setting a 60/30/15 day time for proof, and further setting a Benefit Review Conference (BRC) for July 13. Martin’s request that his time for proof be extended to the date of the BRC was filed on June 1. In support thereof, Martin indicated that he had scheduled a psychiatric evaluation on June 18, “the earliest opening available in the doctor’s schedule,” and further that he was attempting to schedule Dr. Martin’s deposition. By order dated June 17, the ALJ passed Martin’s motion for extension of time to the BRC.

During the July 13 BRC, Martin moved to amend his claim to include a psychological overlay claim. Although the motion had no supporting documentation, Martin asserted that Dr. Martin’s deposition, which had been taken but not yet transcribed, would support such a claim. The ALJ reserved judgment on the issue to allow Butler’s Fleet time to file a written objection to the motion. Martin subsequently filed Dr. Martin’s deposition on July 22, as well as a third Form 101, alleging psychological problems, on July 23. Butler’s Fleet filed a response in opposition to Martin’s motion to amend on July 26, asserting that Martin’s claim was not supported by a medical report and was otherwise without merit. At the final hearing on July 27, the ALJ orally overruled Martin’s motion to amend, stating

nothing that I have heard is anything that could not have been discovered before the filing of the claim. The claim could have then proceeded in its entirety if it were filed to requite this portion of the claim.

Martin then filed the psychiatric report by avowal, and the hearing proceeded regarding Martin’s lower back injury.

On August 19, the ALJ issued an opinion awarding Martin temporary total disability benefits at the rate of $319.27 per week, from September 11, 2002, through July 22, 2003, and thereafter permanent partial benefits of $10.38 per week for a period not to exceed 425 weeks so long as Martin remains disabled. Moreover, the ALJ specifically declined to address Martin’s third Form 101, noting that he previously had overruled Martin’s motion to amend his claim. Butler’s Fleet formally moved to dismiss Martin’s third claim on August 23, and after he responded, Martin appealed the matter to the Board on September 1.

The Board affirmed the ALJ’s award regarding Martin’s back injury but reversed the ALJ’s refusal to allow Martin to amend his claim. In so reversing, the Board found that the causal connection between Martin’s psychological distress and his work injury was not readily apparent since some portion of the psychological distress preceded the injury. The Board characterized this causation issue as purely medical and held that Martin was not required to self-diagnose his condition. The Board concluded that Martin did not become aware of the causal connection until Dr. Martin’s deposition was taken on June 9, 2004, and that Martin’s motion to amend submitted on July 14 and his third Form 101 therefore were timely.

One member of the Board dissented, asserting that the ALJ did not abuse his discretion in finding that Martin failed to use reasonable diligence in bringing his psychological claim. The dissenting member reasoned that KRS 342.270(1) does not “give a claimant unfettered discretion to omit from his initial application a cause of action which is known to him or should reasonably be known to him when he files his initial application” (emphasis in original). The member concluded that because Martin listed “anti-depressants” and “nerve medication” as part of his medical treatment on his first two Form 101s, Martin knew or should have known of the psychological claim at that time, and that he lost the claim when he did not allege it in his first two Form 101s.

Butler’s Fleet subsequently filed this petition for review, asserting that the Board erred by finding that the ALJ abused its discretion in denying Martin’s motion to amend his Form 101 to include a psychological overlay claim, as substantial evidence supported the ALJ’s decision.; We agree.

KRS 342.285 governs the Board’s review of an ALJ’s decision and states that the Board “shall not substitute its judgment for that of the administrative law judge as to the weight of evidence on questions of fact[.]” More specifically, the Board’s review is limited to whether the ALJ’s decision was authorized, procured by fraud, in conformity with the workers’ compensation statutes, clearly erroneous, or arbitrary or capricious. Our role on appeal “is to correct the Board only when we perceive that the Board has overlooked or misconstrued controlling law or committed an error in assessing the evidence so flagrant as to cause gross injustice.”

KRS 342.270(1) provides as follows:

If the parties fail to reach an agreement in regard to compensation under this chapter, either party may make written application for resolution of claim. The application must be filed within two (2) years after the accident, or, in case of death, within two (2) years after the death, or within two (2) years after the cessation of voluntary payments, if any have been made. When the application is filed by the employee or during the pendency of that claim, he shall join all causes of action against the named employer which have accrued and which are known, or should reasonably be known, to him. Failure to join all accrued causes of action will result in such claims being barred under this chapter as waived by the employee.

KRS 342.270(3) further authorizes the Commissioner of the Department of Workers’ Claims to “promulgate administrative regulations establishing procedures for the resolution of claims.” Accordingly, 803 KAR 25:010 specifies the procedure for the adjustment of workers’ claims. The time for proof in a claim adjustment begins on the date the commissioner issues a scheduling order, to proceed as follows: both parties shall take proof for 60 days, then the defendants shall take proof for an additional thirty 30 days, then the plaintiff shall take rebuttal proof for an additional 15 days. The regulations also state that any motion requesting that the time for proof be extended “shall be filed no later than five (5) days before the deadline sought to be extended” and must set forth the following information: the efforts to produce the evidence in a timely manner; facts which prevented timely production; and the date of availability of the evidence, the probability of its production, and the materiality of the evidence. Significantly, a motion for extension of time for proof “may be granted upon showing of circumstances that prevent timely introduction.” Thus, the moving party has the burden of persuading the ALJ that he should be awarded additional time for proof; moreover, the ALJ has the discretion to determine whether to award the additional time.

In the matter now before us, Martin’s initial 60-day discovery period began on March 24, 2004, thereby ending on or about May 23. As Martin’s motion to extend his time for proof was not filed until June 1, he did not satisfy the 803 KAR 25:010 sec. 15(2) requirement that such a motion must be filed within five days before the deadline sought to be extended. Additionally, Martin’s June 1 motion for an extension of time for proof stated that he had scheduled a psychiatric evaluation for June 18, which was “the earliest opening available in the doctor’s schedule,” that he was attempting to schedule Dr. Martin’s deposition, and that these evaluations were necessary to determine his restrictions and impairments. Essentially, Martin’s motion was based on nothing more than scheduling difficulties, and the ALJ did not err in finding that these assertions did not meet the standards set forth in 803 KAR 25:010 sec. 15(3).

The holding in Cornett v. Corbin Materials, Inc. supports our conclusion. The Cornett court held that because the claimant had taken no discovery “within 60 days and the motion for extension of time was not made within 5 days of the deadline sought to be extended, the ALJ did not abuse her discretion in dismissing the claim.” Although Martin correctly notes that Cornett is distinguishable from the matter now before us because Martin offered proof regarding his lower back injury within his initial 60-day time for proof, the Cornett rationale nevertheless is persuasive because the only proof Martin produced regarding his psychological claim in his initial 60-day time for proof was Dr. Martin’s notes, which Martin characterizes on appeal as “containing] indicators of psychiatric treatment.” However, Martin did not assert a psychological claim in his initial 60-day time for proof. Accordingly, the ALJ did not abuse his discretion in overruling Martin’s motion to amend his claim, and the Board erred in reversing the ALJ’s decision.

We are not persuaded by Martin’s contention that KRS 342.270 compels a different result by requiring a workers’ compensation claimant to join, during the pendency of his claim, “all causes of action against the named employer which have accrued and which are known, or should reasonably be known, to him[,]” as that statute does not provide a claimant with a means of bringing his claim. Instead, under the statute, if a claimant fails to join such a cause of action he will be barred from later bringing the claim. “The language of KRS 342.270(1) is clear, unequivocal, and mandatory, both with respect to a worker’s obligation to join ‘all causes of action’ against the employer during the pendency of a claim and with respect to the penalty for failing to do so.”

Nor are we persuaded that the two-year statute of limitations for workers’ compensation claims as set forth in KRS 342.185 compels a different result. Hypothetically, a workers’ compensation claimant could file a Form 101 and have the claim resolved within one year. Although KRS 342.185 would seem to provide the claimant with another year in which to bring claims arising out of the same incident, KRS 342.270(1) in fact would bar the claimant from bringing any additional claims arising out of the same incident. Thus, the two-year statute of limitations for workers’ compensation claims is not absolute and does not render arbitrary or capricious the ALJ’s decision not to allow Martin to amend his claim.

The opinion of the Workers’ Compensation Board is reversed, and this matter is remanded to the Board for reinstatement of the ALJ’s opinion and award.

DYCHE, Judge, concurs.

SCHRODER, Judge, dissents.

      . As more fully discussed herein, 803 KAR 25:010 sec. 8(2) sets forth the standard discovery schedule in workers’ compensation proceedings: both parties take proof for 60 days, then the defense for 30 days, then the plaintiff for 15 days.

      . In so holding, the Board likened the causation of Martin’s psychological distress to the causation of a gradual injury, which the Kentucky Supreme Court discussed in Hitt v. Sextet Mining Corp., 65 S.W.3d 503, 507 (Ky.2001). The Sextet Mining court held that the claimant was not required to give notice of his gradual workplace injury until his doctor informed him of the injury. Id.

      . KRS 342.285(2).

      . Id.

      . Wal-Mart v. Southers, 152 S.W.3d 242, 245 (Ky.App.2004) (citing Daniel v. Armco Steel Co., 913 S.W.2d 797, 798 (Ky.App.1995), quoting Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-688 (Ky.1992)).

      .803 KAR 25:010 sec. 8(1), 8(2). The scheduling order in the matter now before us set forth this standard timeline for proof.

      . Id. at sec. 15(2).

      . Id. at sec. 15(3).

      . Id. at sec. 15(1) (emphasis added).

      . This is especially true since Martin had not even scheduled Dr. Martin's deposition when he filed his motion for additional time for proof on June 1 but took Dr. Martin’s deposition on June 9.

        . 807 S.W.2d 56 (Ky.1991).

      . Id. at 59-60.

      . Ridge v. VMV Enterprises, Inc., 114 S.W.3d 845, 847 (Ky.2003).