author: Opinion by Justice CARTER.

text:
    Jack TULLY, Appellant, v. CITIBANK (SOUTH DAKOTA), N.A., Appellee.
    No. 06-05-00027-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted June 6, 2005.
    Decided Sept. 9, 2005.

      Ron Adkison, Welborn Houston, LLP, Henderson, for appellant.
    Anh H. Regent, Regent & Associates, LLP, Houston, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice CARTER.

Jack Tully appeals the granting of Citibank (South Dakota), N.A.’s motion for summary judgment for collection on a delinquent credit card debt. Citibank issued a credit card to Tully. Tully alleged that some of the charges contained in the account statements were inaccurate and that Citibank, rather than correct its statements, charged interest on the “incorrect and disputed amounts” at rates of almost twenty-five percent. Citibank sued Tully alleging Tully had failed to make payments due, which had accelerated that maturity of the amounts due. Tully denied Citibank’s allegations and filed a counterclaim alleging that Citibank was in bad faith and that the suit was brought for the purpose of harassment. Tully also alleged Citibank attempted to collect interest, fees, or expenses without authorization. The trial court granted Citibank’s traditional motion for summary judgment.

Tully raises three issues on appeal: 1) Citibank is not entitled to summary judgment because it failed to plead or prove grounds to support the summary judgment and failed to prove there are no genuine issues of material fact; 2) Citibank is not entitled to summary judgment because it failed to prove Tully’s counterclaim was pre-empted or disproved the counterclaim; and 3) the summary judgment erroneously makes an unconditional award of appellate attorney’s fees. We reverse and remand this case to the trial court for proceedings consistent with this opinion.

1) Genuine Issues of Material Fact Exist Concerning the Amount of Damages Due to the Breach of Contract

In his first point of error, Tully argues the trial court erred in granting the summary judgment. Citibank’s traditional motion for summary judgment argued it was entitled to summary judgment based on either a suit on a sworn account, quantum meruit, or breach of contract. Tully challenges all three of these theories. We agree for the following reasons: a suit on a credit card debt cannot be recovered through a suit on a sworn account; because the summary judgment evidence conclusively established that a contract existed, Citibank could not recover under its quantum meruit theory; and a fact issue exists concerning the amount owed based on breach of contract.

The standards for reviewing a “traditional” motion for summary judgment are well settled. We will review this summary judgment based on the standards set forth in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

First, Citibank cannot collect a credit card debt through a suit on a sworn account. A suit on a sworn account is permitted only if the claim is “founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished.... ” Tex.R. Civ. P. 185. “A sworn account applies only to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing — it does not mean transactions between parties resting upon special contract.” Bird v. First Deposit Nat’l Bank, 994 S.W.2d 280, 282 (Tex.App.-El Paso 1999, pet. denied). Because no title to personal property passes from the bank to the cardholder, a credit card debt is not a sworn account as contemplated by Texas Rule of Civil Procedure 185. Id. Citibank was not entitled to summary judgment based on its suit on a sworn account theory.

Second, because Citibank proved the existence of an express contract, Citibank cannot recover under the theory of quantum meruit. “Quantum meruit is an equitable theory of recovery which is based on an implied agreement to pay for benefits received.” Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992). The doctrine of quantum meruit requires the plaintiff to establish: “1) valuable services and/or materials were furnished, 2) to the party sought to be charged, 3) which were accepted by the party sought to be charged, and 4) under such circumstances as reasonably notified the recipient that the plaintiff, in performing, expected to be paid by the recipient.” Id. However, the summary judgment evidence establishes the existence of a contract between the parties. In general, recovery under quantum meruit is limited to only when there is no express contract covering the services or materials furnished. Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex.1990); Academy Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 741 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Because the summary judgment evidence established the existence of a contract as a matter of law, Citibank cannot recover under the theory of quantum meruit.

Third, Citibank failed to prove the amount due based on the breach of contract argument. Although Tully’s affidavit failed to raise a fact issue, Citibank failed to prove it was entitled to summary judgment. Specifically, Citibank failed to prove that the interest rate charged was agreed on by Tully. The contract introduced into evidence does not specify the interest rate that was agreed on. Further, there were no notices of interest rate increases introduced into evidence. The only evidence concerning the rate of interest are the rates specified on the copies of the monthly statements Citibank sent to Tully. Citibank failed to prove its damages as a matter of law. Because a genuine issue of material fact issue exists concerning the interest rates agreed on, the trial court erred in granting summary judgment.

When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993). Citibank, though, failed to prove it was entitled to summary judgment concerning any of the three theories advanced in its motion for summary judgment. A credit card debt is not a sworn account. Since the summary judgment evidence proved the existence of a contract, Citibank was not entitled to collect on its quantum me-ruit theory. Because Citibank failed to prove Tully agreed to the interest rates Citibank charged, Citibank failed to prove its amount of damages under the breach of contract theory. We sustain Tully’s first point of error. We decline to address the remaining arguments advanced by Tully because the above arguments are disposi-tive.

2) Citibank Failed To Disprove Tully’s Counterclaim

In his second point of error, Tully argues Citibank failed to prove that his counterclaim was pre-empted or otherwise invalid. Tully argues the interest charged was usurious under Texas law. In the alternative, Tully argues Citibank has failed to prove that the interest charged is authorized by South Dakota Law.

Tully argues that, under Texas law, a charge of interest in excess of ten percent is in most cases considered usurious. However, the National Bank Act pre-empts state usury laws. Marquette Nat’l Bank v. First Omaha Serv. Corp., 439 U.S. 299, 313, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978); see Smiley v. Citibank, 517 U.S. 735, 744, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996) (holding that late fees were interest under the National Bank Act). The National Bank Act provides that national banks may charge interest “at the rate allowed by the laws of the State ... where the bank is located, or....” Assuming that Citibank is a national bank located in South Dakota, Citibank has proven as a matter of law that Texas usury law is preempted and that it may charge interest at the rate authorized by South Dakota.

However, merely proving that Texas usury laws are pre-empted by federal law does not establish that the charges were authorized. Tully’s counterclaim was not limited to Texas usury laws; the counterclaim was that the interest rates were not authorized. If Texas usury laws are pre-empted, Tully argues Citibank has failed to prove that the interest rates are authorized under South Dakota law. Although Citibank did not respond to this argument on appeal, Citibank argued to the trial court that Section 54-3-1.1 of the South Dakota Codified Laws authorized the interest in this case. Section 54-3-1.1 of the South Dakota Codified Laws provides as follows:

Unless a maximum interest rate or charge is specifically established elsewhere in the code, there is no maximum interest rate or charge, or usury rate restriction between or among persons, corporations, limited liability companies, estates, fiduciaries, associations, or any other entities if they establish the interest rate or charge by written agreement. A written agreement includes the contract created by § 54-11-9.

S.D. Codified Laws § 54-3-1.1 (2005). Even if no other maximum rate is established elsewhere in the laws of South Dakota, Citibank has failed to show that the interest rate is authorized. Section 54 — 3-1.1 only applies if the parties “establish the interest rate or charge by written agreement.” Id. The summary judgment evidence lacks any evidence as to the interest rate authorized by the credit card contract. The contract introduced into evidence does not specify the interest rate that was agreed on. There were no notices of interest rate increases introduced into evidence. When no interest rate is provided in the agreement, South Dakota law limits the maximum interest rate to considerably less than the rates charged by Citibank. See S.D. Codified Laws §§ 51A-12-13, 54-3-4, 54-3-5 (2005). We note that a credit card issuer may change the terms of the card agreement on sufficient written notice to the cardholder. S.D. Codified Laws § 54-11-10 (2005). The summary judgment evidence, though, contains no written notices specifying the interest rates other than the copies of the statements. There are genuine issues of material fact concerning whether the interest rates Citibank charged Tully are authorized by South Dakota law.

Because Citibank failed to prove the contractual interest rate, Citibank has failed to prove it was entitled to summary judgment. We sustain Tully’s second point of error. Because we find the above issue dispositive, we decline to address Tully’s remaining arguments contained in his second point of error.

3) The Trial Court Erred in Awarding Unconditional Appellate Attorney’s Fees

In his third point of error, Tully argues the trial court erred in not conditioning the award of attorney’s fees in the event of an appeal on the success of that appeal. An award for attorney’s fees should be conditioned on a successful appeal. Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 205 (Tex.App.-Austin 1992, no writ). While the award of attorney’s fees being conditioned on a successful appeal is probably implied in the trial court’s judgment, we reform the judgment to reflect that Citibank is only eligible to receive attorney’s fees if the appeal is successful. See J.C. Penney Life Ins. Co. v. Heinrich, 32 S.W.3d 280, 290 (Tex.App.-San Antonio 2000, pet. denied).

4) Conclusion

Because Citibank failed to prove the contractual amount of the interest, Citibank failed to prove there were no genuine issues of material fact concerning the amount of its damages or concerning whether the interest rates charged were authorized under South Dakota law. Therefore, the trial court erred in granting summary judgment. We reform the trial court’s judgment to condition the award of attorney’s fees on the success of the appeal. Because we have held that the trial court erred in granting the summary judgment, Citibank is not eligible to receive attorney’s fees for this unsuccessful appeal.

We reverse and remand this case to the trial court for further proceedings consistent with this opinion.

      . The interest rates charged vary dramatically among the statements introduced into evidence. Most of the statements reflect interest around twenty-five percent. For a couple of the statements, the interest approached seventy percent — possibly due to transaction, late, or other fees. Late fees are considered interest under South Dakota Law. S.D. Codified Laws § 51A-12-13 (2005).

      . We note that Tully argues Citibank failed to plead breach of contract. The sufficiency of the pleadings is judged based on whether they provide the opponent with fair and adequate notice. Roark v. Allen, 633 S.W.2d 804, 809-10 (Tex.1982); see Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607 (Tex.2004). "Fair notice” requires that "an opposing attorney of reasonable competence” can ascertain the nature and basic issues of the controversy. City

        of Alamo v. Casas, 960 S.W.2d 240, 251 (Tex.App.-Corpus Christi 1997, pet. denied); Daniels v. Conrad, 331 S.W.2d 411, 415 (Tex.Civ. App.-Dallas 1959, writ ref'd n.r.e.). Citibank pled in its petition that the suit was based on a credit card debt. More specifically, Citibank alleged that Tully "defaulted in making the payments required by the terms of the Card Agreement. Due to Defendant’s breach of the terms of the agreement....” Liberally construed, the pleading gives fair notice that Citibank was pleading a cause of action for breach of contract.

      . Tully contends that, at a minimum, his affidavit raises a fact issue. However, the affidavit filed by Tully was conclusory and failed to allege specific facts of a nature that could be effectively countered by Citibank. See Chhim v. Univ. of Houston, 76 S.W.3d 210, 216 (Tex.App.-Texarkana 2002, pet. denied); Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex.App.-Texarkana 2000, no pet.); Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex.App.-Houston [1st Dist.] 1997, no pet.).

      . Tully argues on appeal that a genuine issue of material fact exists regarding the amount Tully owes Citibank under the contract. We note that Tully did not specifically argue that Citibank failed to prove the interest rate. However, Tully did argue to the trial court and in its second point of error that the interest was not authorized. Briefs are to be construed liberally. Tex.R.App. P. 38.9. This issue is intertwined with the second point of error concerning the counterclaim and necessarily applicable to the breach of contract claim. Further, Tully alleged a general point of error. Tully’s first point of error states: Citibank cannot sue Tully for a credit card debt in a suit on a sworn account, and may not recover from Tully under any of the alternative theories it now advances. Under the Malooly rule, set out in Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119 (Tex.1970), a point of error stating generally that the trial court erred by granting summary judgment authorizes review of all possible grounds of trial court error in granting the summary judgment. Plexchem Int'l, Inc. v. Harris County Appraisal Dist., 922 S.W.2d 930, 930-31 (Tex.1996) (per curiam); see Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995). In addition, "[t]he statement of an issue or point will be treated as covering every subsidiary question that is fairly included.” Tex.R.App. P. 38(e). Because Tully raised a general point of error, the issue of the interest rate elsewhere in his brief, and the issue was raised at the trial court level, error was assigned for our review.

      .Even if the bills could be construed as notice of a change of the terms of the card agreement, the change could not apply retroactively. Therefore, there would still be a fact issue as to the amount of interest owed.

      . See Tex. Fin.Code Ann. § 302.001(b) (Vernon Supp.2004-2005). We note, though, that Texas law may permit interest up to eighteen percent for revolving charge accounts. See Tex. Fin.Code Ann. § 346.101 (Vernon Supp. 2004-2005).

      . 12 U.S.C.A. § 85 (West 2001). Although Section 85 provides that, if the state provides no rate, then the interest is limited to the greater of seven percent or one percent in “excess of the discount rate on ninety-day commercial paper,” the United States Supreme Court has held that, when a state allows any rate agreed on by the parties to the contract, a rate is still fixed by the state despite the lack of a maximum rate. Daggs v. Phoenix Nat’l Bank, in U.S. 549, 555, 20 S.Ct. 732, 44 L.Ed. 882 (1900); see Hiatt v. San Francisco Nat’l Bank, 361 F.2d 504, 507 (9th Cir.1966).

      . Citibank argues it sufficiently proved that it was a national bank because it cited Smiley, 517 U.S. at 744, 116 S.Ct. 1730, which recognized Citibank as a national bank and because it identified itself as "Citibank (South Dakota), N.A.” in its summary judgment affidavit. Only a national bank may use the word "National” in its title. 18 U.S.C.A. § 709 (West Supp.2005). For purposes of this analysis, we will assume that Citibank is a national bank located in South Dakota.

      . We note that the contract does contain the amount of at least some of the fees charged.


source: Caselaw Access Project

author: Opinion by Justice O’NEILL.

license: Public Domain

text:
    In the Interest of M.F., a Child.
    No. 05-04-01418-CV.
    Court of Appeals of Texas, Dallas.
    Sept. 30, 2005.

      April E. Smith, Mesquite, for appellant.
    William T. (Bill) Hill, Jr., Dallas, for appellee.
    Before Justices MOSELY, BRIDGES, and O’NEILL.
   OPINION

Opinion by Justice O’NEILL.

Mother appeals an order terminating her parental rights to her son, M.F. Mother contends the evidence is legally and factually insufficient to support the trial court’s order. We conclude that the evidence is both legally and factually sufficient to terminate Mother’s parental rights and affirm the trial court’s order.

BACKGROUND

The Texas Department of Protective and Regulatory Services (The Department) filed a suit seeking termination of Mother’s parental rights to M.F. The Department alleged that Mother (1) knowingly placed or allowed M.F. to remain in conditions or surroundings which endangered his physical or emotional well-being and (2) engaged in conduct or knowingly placed M.F. with persons who have engaged in conduct which endangered his physical or emotional well-being. See Tex. Fam.Code Ann. § 161.001(1)(D), (E) (Vernon 2002). The Department also alleged that Mother has a mental or emotional illness or a mental deficiency that renders her unable to provide for the physical, emotional, and mental needs of M.F. See Tex. Fam.Code Ann. § 161.003 (Vernon 2002). Finally, the Department alleged that the termination of Mother’s rights was in M.F.’s best interest. See Tex. Fam. Code Ann. § 161.001(2) (Vernon 2002). Following a bench trial, the trial court found the allegations in the Department’s petition to be true and entered an order terminating Mother’s parental rights. In this appeal, Mother asserts the evidence is legally and factually insufficient to support the trial court’s order.

TERMINATION OF PARENTAL RIGHTS

Before parental rights can be involuntarily terminated, the trial court must find that (1) the parent has committed one of the enumerated statutory conditions, and (2) termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001 (Vernon 2002). The burden of proof necessary to involuntarily terminate parental rights is proof by clear' and convincing evidence. Tex. Fam.Code Ann. § 161.001 (Vernon 2002). Here, the trial court terminated Mother’s parental rights under sections 161.001(1)(D), 161.001(1)(E), and 161.003 of the family code. The trial court was required to find only one of the statutory conditions to be true and that the termination was in M.F.’s best interest in order to terminate Mother’s parental rights. Tex. Fam.Code § 161.001 (Vernon 2002). Wilson v. State, 116 S.W.3d 923, 928 (Tex.App.-Dallas 2003, no pet.)

Under section 161.001(1)(D), the Department is required to prove by clear and convincing evidence that the parent “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangers the physical or emotional well-being of the child.” Tex. Fam.Code Ann. § 161.001(1)(D) (Vernon 2002). This section refers only to the acceptability of the child’s living conditions. See In re S.H.A., 728 S.W.2d 73, 84 (Tex.App.-Dallas 1987, writ ref'd n.r.e.).

“Endanger” means to “expose to loss or injury; to jeopardize.” In re M.C., 917 S.W.2d 268, 269 (Tex.1996). Although “endanger” means more than a threat of physical injury or the possible ill effects of a less than ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffer an injury. Id.

STANDARD OF REVIEW

In reviewing the legal sufficiency of the evidence, this court looks at all of the evidence in the light most favorable to the termination finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction about the truth of the matter on which the Department bears the burden of proof. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex.2002); Wilson, 116 S.W.3d at 928. We assume that the factfinder resolved any disputed facts in favor of its finding, if a reasonable factfinder could so do, and disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. J.F.C., 96 S.W.3d at 266. We do not, however, disregard undisputed evidence that does not support the finding. Id.

When reviewing the factual sufficiency of the evidence to support a termination finding, we must give “due consideration” to any evidence the factfinder could reasonably have found to be clear and convincing. Id. We must consider the disputed evidence and determine whether a reasonable factfinder could have resolved that evidence in favor of the finding. Id. The evidence is factually insufficient if, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of its finding is so significant that a factfinder could not have reasonably formed a firm conviction or belief. Id.

FACTS

In October of 2003, Officer Jeff Smith was dispatched to an apartment complex where M.F. had fallen from a second-story balcony. When Smith arrived, he observed paramedics attending to M.F. who informed him that they were taking M.F. to the hospital because it appeared his leg was broken. Smith noticed toys laying around the area and also the remnants of M.F.’s soiled diaper. The diaper exploded when M.F. hit the ground, and pieces of it were scattered about the scene. Smith spoke with a witness at the apartment complex who told him she found M.F. after he had fallen from the balcony and that she alerted his mother about the incident. The witness directed Smith to Mother’s apartment where Smith observed “one of the top five worst environments” he had ever seen in his eight years in law enforcement. The apartment was so cluttered he could not see the floor. There were trash bags everywhere and it smelled like a “dirty bathroom at a truck stop.” The stench made him nauseous. In the bedroom, there was a bandana on the floor with clothes piled around it where Mother and M.F. slept. Smith almost fell three times on his way to examine the balcony door because of the clutter. When he got to the balcony door, he found that the latch was not working and that Mother had taped the door shut, but the tape was not sufficient to keep it shut. Smith found that the refrigerator and freezer were full of bags which held soiled diapers. The refrigerator also contained a bottle of Pe-diaSure, milk, and a package of bologna. However, it was so full with soiled diapers that it was not cooling. Smith concluded his testimony by stating that he believed the conditions in the apartment were a danger to M.F.’s physical and emotional well-being.

In 1991, Mother suffered a brain injury in a motor vehicle accident. Dr. Karen Grable, Mother’s psychiatrist, testified that as a result, her short-term memory is impaired. Mother has also undergone a personality change that causes her to become obsessive and to exhibit poor judgment. She is delusional, psychotic, and is paranoid that there is a conspiracy to take her child away from her. Mother’s sense of reality and judgment are also extremely impaired. Independent of the accident, Mother suffers from major depression and anxiety. Grable prescribed medication for Mother, but Mother has ceased taking her medications and stopped seeing Grable three months prior to trial. Grable’s professional opinion is that Mother’s conduct endangers the physical and emotional well-being of M.F. and that she is not capable of safely parenting him.

Jennifer Chappell, the CPS case worker assigned to M.F.’s case, testified that when M.F. was removed from Mother’s care, she was allowed weekly visits. In the beginning, Mother would come to the visits with candy or a bottle of PediaSure and a bag of M.F.’s favorite toys. She always appeared excited to see M.F., but when she got into the visitation room, she would talk on her cell phone or just watch him play. She would not engage with M.F. On one occasion, he threw a fiisbee at her in an attempt to play with her, but she just looked at it and did not throw it back to him. Chappell became concerned about Mother when she stopped seeing her psychiatrist. While she used to arrive early to her visits, she now began missing visits. When Mother did come to the visits, she appeared not to have bathed and was dazed. She even slept through several visits.

Since being placed in foster care, M.F. has thrived. Chappell testified that he “has totally come out of his shell.” In the beginning, he would barely speak and showed little emotion. Now, however, things are exciting to him and he has grown physically. He enjoys school and interacts well with others. He no longer looks forward to visits with his mother and has expressed an interest in remaining with his foster family. Chappell indicated that M.F.’s foster parents want to adopt M.F. and are emotionally and financially able to support him. In Chappell’s opinion, it is in M.F.’s best interest to be placed with his foster family permanently.

Dr. Beth Bontempo, a psychologist, testified that a Department case worker contacted her and requested that she observe one of the visits between Mother and M.F., which she did. Bontempo observed that M.F. was ambivalent in his feelings toward his mother and that Mother did nothing to engage M.F. Dining the visit, M.F. stated two or three times that he wanted to return to his foster family, but then also stated that he would miss his mother when their visit was over. Mother spent the majority of the visit simply sitting and watching M.F. At one point, she did show him some pictures she brought for him and hugged him back when he spontaneously hugged her. She also pushed a toy truck back and forth to him after he strongly insisted that she do so, but that was the extent of the interaction between the two. Bontempo also witnessed an instance when M.F. almost pulled a table down on top of himself and Mother did nothing to prevent it from happening. M.F. seemed frustrated and confused by his mother’s refusal to interact with him during the visit. Bon-tempo concluded that Mother’s extreme emotional detachment would endanger M.F.’s emotional well-being.

Deanne Harris, a friend and former coworker of Mother’s, initially testified that she felt Mother’s care for M.F. was appropriate and that he was not endangered by her care. However, later in her testimony, she admitted that the conditions in Mother’s apartment were not appropriate and that someone suffering from psychosis should not be responsible for the care of a child.

Mother testified that at the time of M.F.’s fall from the balcony, she was working at Terrell State Hospital at night and caring for M.F. during the day. M.F. was previously enrolled in day care, but Mother allowed him to stop attending day care because he did not like it and because she feared someone there was sexually or physically abusing him. She agreed that her apartment was cluttered, but maintained she thought it was safe at the time because all of the poisons and knives were stored out of M.F.’s reach. When pushed by M.F.’s guardian ad litem to answer whether she felt her apartment was safe, Mother relented “probably not.” She did not dispute the fact that the refrigerator and freezer were full of soiled diapers, but claimed that she stored them there because she could not take the trash out by herself because M.F. would run away from her while she did so. Prior to the trial in this case, Mother lived with Travis Woods, M.F.’s father, who has a criminal record and has been to prison. She admitted that she tried to become pregnant again by Woods while she lived with him. The day before trial, Mother moved in with Harris. She related that she is not working, but is looking for a job, and has stopped taking all of her prescribed medications. If given the opportunity, she would take M.F. to live at Harris’s house and would not let her surroundings become so full of trash and clutter ever again.

M.F. was removed from Mother’s care once before. When he was twenty-one months old, Mother was carrying M.F. down a flight of stairs when she fell on him, breaking his leg. The Department investigated the incident and M.F. was placed in foster care. M.F. was later returned to Mother, but was removed again when he fell from the balcony, resulting in the case at hand.

STATUTORY CONDITIONS

It is undisputed that Mother loves M.F. In fact, Grable and Chappell, both witnesses for the Department, testified to that effect. However, it is also undisputed that M.F.’s living conditions were unsafe and posed a danger to him. By Mother’s own admission, the apartment in which she and M.F. lived was cluttered and full of trash. The broken latch on the balcony door and Mother’s lack of supervision directly resulted in M.F. falling from the balcony, breaking his leg. Viewing the evidence in the light most favorable to the termination order, we conclude that the evidence is legally sufficient to support the order because a reasonable factfinder could have formed a firm belief or conviction that Mother knowingly allowed M.F. to remain in conditions or surroundings which endangered his physical and emotional well-being by clear and convincing evidence. See J.F.C., 96 S.W.3d at 266. Likewise, after reviewing all of the evidence, we determine that the evidence is factually sufficient to support the termination order because a rational trier of fact could have reasonably formed a firm belief that Mother knowingly allowed M.F. to remain in conditions or surroundings which endangered his physical and emotional well-being by clear and convincing evidence. Id. Because the evidence is both legally and factually sufficient to support the trial court’s order terminating Mother’s rights pursuant to section 161.001(1)(D) of the family code, we need not address the other statutory grounds urged by the Department. Wilson, 116 S.W.3d at 928.

BEST INTEREST OF THE CHILD

In determining whether termination is in the child’s best interest, the factfinder may consider the current and future physical and emotional needs of the child, the current and future physical and emotional danger the child may confront with his parent, and the parental abilities of the individual seeking custody. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976). A finding that termination is in the child’s best interest does not require proof of any certain set of factors, nor does it limit any specific factors. Wilson, 116 S.W.3d at 929. Evidence that proves one or more statutory grounds for termination may also be used to show that termination is in the child’s best interest. In re C.H., 89 S.W.3d 17, 28 (Tex.2002).

In addition to the facts presented supporting the Department’s allegations that M.F. should be removed from Mother’s care because he was both physically and emotionally endangered, there was evidence that M.F.’s foster family wishes to adopt him and that he wishes to remain with them. M.F. is doing well in their care and they are emotionally, as well as financially, able to care for him. Therefore, viewing the light most favorable to the termination order, we conclude that the evidence is legally sufficient to support the trial court’s order because a reasonable fact finder could have formed a firm belief or conviction that termination was in M.F.’s best interest by clear and convincing evidence. See J.F.C., 96 S.W.3d at 266. Further, viewing the entire record, the evidence is factually sufficient to support the termination order because a reasonable factfinder could have formed a firm belief or conviction that termination was in M.F.’s best interest by clear and convincing evidence. Id. Having determined that the evidence is legally and factually sufficient to support the trial court’s order terminating Mother’s parental rights, we affirm the trial court’s order.


author: JOHNSTONE, Justice.

text:
    OLFICE, INC., d/b/a Club Olympic, Appellant, v. Samuel W. WILKEY, Appellee.
    No. 2004-SC-0514-DG.
    Supreme Court of Kentucky.
    Aug. 25, 2005.

      Matthew P. Cook, Frank Hampton Moore, Jr., Cole, Moore & Baker, Bowling Green, Counsel for Appellant.
    D. Bailey Walton, Lanphear & Walton, Bowling Green, Counsel for Appellee.
   JOHNSTONE, Justice.

This case comes to us on discretionary review of a decision of the Court of Appeals vacating a judgment of the Warren Circuit Court in a slip and fall negligence action. Using “bare bones” instructions, a jury ruled in favor of Appellant, Office, Inc., d/b/a Club Olympic, finding that it had not breached its duty of care to Appel-lee, Samuel W. Wilkey. The Court of Appeals, however, concluded that the instructions were inadequate to instruct the jury on a business owner’s affirmative legal duty toward its business invitees. After reviewing the record, we reverse the Court of Appeals and reinstate the judgment of the trial court.

Samuel W. Wilkey, a Bowling Green chiropractor, was a frequent patron of Club Olympic, a health club located near Bowling Green, Kentucky. On February 7, 2001, Wilkey was lifting weights at the club when he felt a twinge of pain in his right arm. Wilkey went to the steam room to work out the tightness in his shoulder before proceeding to the gym’s swimming pool to cool down. Wilkey claimed that as he was entering the pool, his foot slipped out from under him and he fell backwards onto his elbow. Wilkey suffered a ruptured tendon and tom rota-tor cuff in his right shoulder, which necessitated surgical repair. Notably, although Wilkey subsequently alleged that his injuries were the result of his fall at the pool, he did not report the incident to Club Olympic until April 2001, after his surgery. In fact, Wilkey reported his shoulder injury as occurring during weight lifting on the day in question as reflected not only in the incident report completed by the club staff, but also as reported to both his orthopedic surgeon and the hospital staff prior to his surgery.

On February 6, 2002, Wilkey filed a complaint in the Warren Circuit Court alleging that Club Olympic was negligent in failing to maintain the premises in a safe and sanitary condition. Wilkey asserted that Club Olympic’s negligent maintenance of the pool steps was the direct cause of his injuries.

A jury trial was held on February 12, 2003. At the close of the evidence, the trial court denied both parties’ motions for directed verdicts. Thereafter, Wilkey’s counsel objected to the trial court’s proposed jury instructions on the grounds that they only informed the jury about the general duty of ordinary care applicable in all negligence cases. Wilkey asserted that in addition to the general duty to exercise ordinary care, the jury should have been instructed that as a business owner, Club Olympic had specific duties to its business invitees to: (1) undertake a reasonable inspection of the pool, (2) take reasonable precautions to protect its invitees from foreseeable danger, and (3) warn business invitees if Club Olympic had actual knowledge of the danger. The trial court rejected Wilkey’s proposed instructions as containing extraneous information that was not required under the typical “bare bones” approach used in Kentucky.

After the jury was instructed, the attorneys for both parties made their closing arguments. Club Olympic’s closing argument lasted approximately ten minutes, and Wilkey’s argument lasted approximately fifty minutes. The jury then retired to deliberate, returning less than forty-five minutes later with a verdict in favor of Club Olympic. The jury unanimously answered the threshold issue of liability in favor of Club Olympic.

Wilkey appealed and the Court of Appeals vacated the judgment of the trial court and remanded the matter for a new trial. The Court of Appeals faulted the jury instructions for failing to inform the jury that “Club Olympic had an affirmative legal duty to its business invitees to protect from dangers that should have been discoverable to the premises owners by means of a reasonable examination of the premises.” Essentially, the Court of Appeals concluded that the jury instructions were “too emaciated” to adequately inform the jury of the law and sufficiently “bear the weight of the evidence.” This Court thereafter granted Club Olympic’s motion for discretionary review.

In considering the use of bare bones jury instructions, the Court of Appeals in this case commented that “[t]he case law is really rather sparse as to the proper standard for instructing a jury.” We note, however, that there are certain well-settled principles in Kentucky law regarding the proper method of instructing a jury. In Cox v. Cooper, 510 S.W.2d 530 (Ky.1974), our predecessor court first announced the “bare bones” jury instruction method, which was described by Justice Palmore as follows:

It may sometimes be appropriate for instructions to define the rights of a litigant, as for example in the instance of a peace officer sued for assault incident to an arrest, but as a general proposition [instructions] should be couched in terms of duties only. Recovery hinges not on the question of who was within his rights, but who breached a duty. If the duty is simple enough to be stated without defining it in terms of the rights of one party or the other, that is all that is necessary, desirable, or proper.... Our approach to instructions is that they should provide only the bare bones, which can be fleshed out by counsel in their closing arguments if they so desire.

Id at 535.

Following Cox, several other decisions from this Court and the Court of Appeals have reaffirmed our adherence to the use of bare bones instructions. Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky.1992). (“In instructing juries, Kentucky uses the ‘bare bones’ method.... ‘[Instructions] should not contain an abundance of detail, but should provide only the bare bones of the question for jury determination.” ’) Rogers v. Kasdan, 612 S.W.2d 133, 136 (Ky.1981). (“The general rule for the content of jury instructions on negligence is that they should be couched in terms of duty. They should not contain an abundance of detail, but should provide only the bare bones of the question for jury determination.”) King v. Grecco, 111 S.W.3d 877, 882 (Ky.App.2002). (“[I]t is apparent that Kentucky is not a jurisdiction which favors instructing the jury at length regarding every subtle nuance of the law which may be relevant to a particular case.”)

In addition to case law, several commentators have enunciated similar principles.

[T]he function of instructions is only to state what the jury must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof. In Kentucky, the content of jury instructions on negligence should be couched in terms of duty. They should not contain an abundance of detail, but should provide only the ‘bare bones’ of the question for jury determination.

Kurt A. Philips, Jr., 7 Kentucky Practice: Rules of Civil Procedure Annotated, § 51 (5th ed.1995) (citing Webster v. Commonwealth, 508 S.W.2d 33, 36 (Ky.1974)). Justice Palmore likewise observed:

The basic function of instructions in Kentucky is to tell the jury what it must believe from the evidence in order to resolve each dispositive factual issue in favor of the party who bears the burden of proof on that issue. In other jurisdictions, as at common law, it may be appropriate to say that the purpose of instructions is to advise the jury on the law of the case, but not in this state.

Justice Charles M. Leibson, “Legal Malpractice Cases: Special Problems in Identifying Issues of Law and Fact and in the Use of Expert Testimony,” 75 Ky. L.J. 1, 40 (1986) (quoting John S. Palmore, Kentucky Instructions to Juries, § 13.01 (1977)).

From the case law and commentary, it is clear that Kentucky law mandates the use of “bare bones” jury instructions in all civil cases. See Lumpkins v. City of Louisville, 157 S.W.3d 601 (Ky.2005). The Court of Appeals in this case correctly stated that jury instructions should refrain from elaborating on an abundance of detail, but still strike the proper balance in providing enough information to a jury to make it fully aware of the respective legal duties of the parties. See also King v. Ford Motor Co., 209 F.3d 886 (6th Cir.2000). Indeed, “bare bones” instructions serve the courts and juries well because they pare down unfamiliar and often complicated issues in a manner that jurors, who are often not familiar with legal principles, can understand.

“Bare bones” instructions are proper if they correctly advise the jury about “what it must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof’ on that issue. Meyers, 840 S.W.2d at 824; Leibson, supra. The question to be considered on an appeal of an allegedly erroneous instruction is whether the instruction misstated the law. Meyers, supra, at 823. It is within a trial court’s discretion to deny a requested instruction, and its decision will not be reversed absent an abuse of that discretion. King, supra.

Thus, the question herein is whether the instructions misstated the law by failing to sufficiently advise the jury “what it [had to] believe from the evidence in order to return a verdict in favor of the party who [had] the burden of proof.” Meyers, supra. Jury Instruction No. II provided:

Instruction No. II
The defendant, Office, Inc., d/b/a Club Olympic acting through its agents and employees, had a duty to exercise ordinary care to maintain and keep the premises and club areas in a reasonably safe condition for the use of its business invitees.
“Ordinary Care” means such care as a jury would expect an ordinarily prudent business to exercise under similar circumstances.
Are you satisfied from the evidence that the defendant failed to satisfy its duty and that such failure was a substantial factor in causing the plaintiffs fall and injuries[?]
_YES _NO (CHECK ONE)

There was no dispute that Wilkey was a business invitee of Club Olympic or that the club owed such an invitee the duty to make its premises reasonably safe. See Perry v. Williamson, 824 S.W.2d 869 (Ky.1992). As such, the language of the instruction was a correct statement of the law relative to the duty owed by a business owner to invitees. Scuddy Coal. Co. v. Couch, 274 S.W.2d 388, 390 (Ky.1954). Nevertheless, Wilkey wanted to farther emphasize his status as a business invitee in proposed language that read, “The Defendant also had a duty to its business invitees to inspect the pool for latent or concealed dangers not known to the Defendant and to take reasonable precautions to protect its business from dangers which are foreseeable from the arrangement or use of the pool.” Our eases, however, are clear that such elaboration is not required within the language of the instruction. Certainly, the duty to keep the premises in a reasonably safe condition encompasses the additional specific duties.

In Rogers, we considered instructions in a negligence case that contained several specific duties in addition to the general duty to exercise ordinary care. 612 S.W.2d at 135. While these specific duties were intended to inform the jury what the defendant should have done to meet the ordinary care requirement, we rejected such an approach because the additional duties were not necessary to the disposi-tive question of whether the defendant had breached the duty of ordinary care. Id. at 136. “[Ijnstructions should not make a rigid list of ways in which a defendant must act in order to meet his duty.” Id. Likewise, Wilkey’s proposed instructions were unnecessary under the “bare bones” approach because they created factors for the jury to consider when answering the larger issue of breach of ordinary care.

Although Wilkey’s proposed instructions certainly contained valid legal propositions, they exceeded the requirements of the “bare bones” approach because the dispositive issue in this case— Club Olympic’s duty of care — could be resolved through the court’s tendered instructions. See Ford Motor Co. v. Fulkerson, 812 S.W.2d 119, 122 (Ky.1991). (“Unlike the many jurisdictions that use pattern instructions, and otherwise explain the law of the case to the jury, the practice in Kentucky abjures the abstract and requires the trial court, applying (rather than stating) the underlying legal principles, to frame the dispositive issue.”) The controlling issue is not which set of proposed instructions best stated the law, but rather whether the delivered instructions misstated the law. Meyers, supra, at 823. The instructions herein clearly did not. See Rojo, Inc., v. Drifmeyer, 357 S.W.2d 33, 35 (Ky.1962). (“The owner or occupant of the premises owes a duty to an invitee to use ordinary care to have the premises in a reasonably safe condition.”)

“Bare bones” jury instructions must be given with the understanding that they are merely a framework for the applicable legal principles. It becomes the role of counsel, then, to flesh out during closing argument the legal nuances that are not included within the language of the instruction. See Rogers, 612 S.W.2d at 136. This principle was aptly stated by Justice Palmore in the Cox decision, wherein he explained what a lawyer should do if he or she is not satisfied with the trial court’s instructions: “[I]f counsel felt that the jury was too thick to get the point all he had to do was to explain it in his summation.” Cox, 510 S.W.2d at 535.

Here, after overruling Wilkey’s objection to the jury instructions, the trial court informed counsel several times that he was free to argue any of the points he believed were left out of the jury instructions during closing argument. The record reflects that during his fifty minute closing argument, Wilkey’s counsel thoroughly explained the facts of the case, the definition of an “invitee,” and the distinct duties imposed on each of the parties.

Contrary to the Court of Appeals’ decision, we conclude that the jury instructions provided sufficient guidance for the jury to decide the threshold issue of breach of duty of care in this case. The instructions did not misstate Kentucky law, and the trial court did not abuse its discretion in fading to grant Wilkey’s request to substitute his own proposed jury instructions. Accordingly, we reverse the decision of the Court of Appeals and reinstate the judgment of the Warren Circuit Court.

All concur.


text:
    Steven WILLIAMS, Deceased, et al. Appellant, v. WHITE CASTLE SYSTEMS, INC.; Hon. James L. Kerr, Administrative Law Judge; and Workers’ Compensation Board Appellees.
    No. 2004-SC-1048-WC.
    Supreme Court of Kentucky.
    Sept. 22, 2005.

      James D. Howes, Howes & Paige, PLLC, Louisville, Counsel for Appellant.
    David L. Murphy, Clark, Ward & Cave, Louisville, Counsel for Appellee.
   OPINION OF THE COURT

An Administrative Law Judge (ALJ) determined that an injured worker’s death was due to multiple drug toxicity and was not causally related to his work. The Workers’ Compensation Board (Board) rejected arguments that the finding was erroneous under the positional risk theory and under KRS 342.680, and the Court of Appeals affirmed the Board. Likewise, we affirm.

On January 24, 2000, Steven Williams sustained a work-related back injury while working for the defendant-employer. He underwent an initial surgery in April, 2000, after which he filed an application for benefits. He underwent a second surgery on February 8, 2001, and died on February 12, 2001, one day after his release from the hospital. Diana Williams, his mother and the executrix of his estate, revived the claim and amended it to assert that his death was the result of post-operative medication and, therefore, was a compen-sable event. Lori Blair asserted that she was the mother of Williams’ minor child, Rachael Williams, and was joined as a party.

Diana Williams testified that her son had suffered a previous back injury and undergone multiple back surgeries before January 24, 2000. She stated that her son was not depressed and had a positive outlook after the final surgery. He was sent to her home following his release from the hospital and received prescriptions for Oxycontin and Ambien. On February 12, 2001, her son was asleep when she left for her job on the second shift. When she returned after midnight, he was dead. She did not know if he had any visitors that day but recalled that his prescriptions were on his nightstand.

Dr. Barbara Weakley-Jones testified that she performed a post-mortem examination on February 13, 2001, and attributed Williams’ death to multiple drug toxicity. Blood toxicology was positive for oxycodone (Oxycontin), meperidine (Demerol), zolpidem (Ambien), and diphenhy-dramine (Benadryl). Urine toxicology was positive for opiates and cocaine metabolites, but she thought that cocaine did not contribute to his death.

In a report authorizing the post-mortem examination, Dr. Richard Greathouse, the Jefferson County Coroner, listed the date of death as being between 5:00 p.m. on February 12 and 1:00 a.m. on February 13, 2001, when Ms. Williams found her son in bed. He noted that Williams had undergone back surgery on February 8, 2001; that he was released from the hospital on February 11, 2001; and that he had no complaints after his release. The report noted that the claimant had prescriptions for Trazodone, Oxycontin, Ambien, and Neurontin.

In a subsequent letter to counsel for the claimants, Dr. Greathouse indicated that Williams’ death occurred on February 13, 2001, and that the official cause was multiple drug toxicity. He noted that Williams was given a prescription for Oxycontin and for Ambien on February 11, 2001, when he was released from the hospital, and that the coroner’s office had ruled the death accidental. The letter recited the toxicology results. It stated subsequently that the drugs were in Williams’ system and that he had taken them due to the surgery and resulting pain, which were due to the work-related injury. Finally, it stated that had Williams not sustained the back injury, he would not have had the surgery and would still be alive.

When deposed subsequently, Dr. Great-house testified that Williams was given the painkillers oxycodone and meperidine immediately following the surgery to control his pain. In his opinion, the cause of death was an accidental multiple drug toxicity. He acknowledged that his report listed only Oxycontin and Ambien as having been prescribed when Williams was released from the hospital. He stated, however, that Williams must have also had some Demerol, prescribed or not, because it was also found in his system. When informed that Williams consistently took Ambien, Oxycodone, Trazodone and several other medications up until his death, Greathouse stated that they would not have caused Williams’ death if he had taken them as prescribed. He stated that cocaine would remain in a person’s system for only 3-4 days at most, that cocaine metabolites can be found in Oxycontin, and that the medical examiners had no proof that Williams was taking cocaine. The blood reports indicated that Williams was taking his prescribed medications, but there was no proof that he was taking them in the proper order, frequency, or amount.

Medical records established that Dr. Majid performed a lumbar fusion on Williams at Jewish Hospital on February 8, 2001. Williams was released on February 11, 2001, with prescriptions for Oxycontin and Ambien. There was no evidence that a physician prescribed or administered Demerol for the effects of Williams’ back injury.

Dr. George R. Nichols II, former chief medical examiner for the Commonwealth of Kentucky and present medical director for Quest Diagnostics Medical Laboratory, examined Williams’ medical records, the autopsy report, and Williams’ pharmacy record. He agreed that the cause of death was multiple drug toxicity and noted that Williams’ drug load was consistent prior to his death. He noted that the Ambien and Oxyeontin that were found by the medical examiner were prescribed drugs. Also present were Benadryl, which is an over-the-counter medication that works as a hypnotic, and Demerol, which is a scheduled narcotic and synthetic opiate. He obtained samples of Williams’ blood, tested them, and confirmed Dr. Weakley-Jones’ findings. He stated that the levels of prescribed drugs that were found were insufficient to cause death and that the Demerol, which was not a prescribed drug, was the “pharmacological straw that broke the camel’s back.” Noting that Demerol would not have remained in Williams’ system at his death had it last been administered at the hospital, Dr. Nichols concluded that it had not been administered there. He stated that the combined levels of Demerol, Oxycodone, Benadryl, and Am-bien that were found in Williams’ body resulted in respiratory failure that culminated in his death.

Addressing causation, the ALJ noted that the experts agreed regarding the combination of drugs in Williams’ body at the time of his death and noted that only Oxycodone and Ambien were prescribed as a result of the back condition. The ALJ concluded from Dr. Nichols’ testimony that the Demerol, taken in addition to the other drugs, caused Williams’ death, stating as follows:

While it may never be known as to how the decedent obtained the Demerol, the fact that it was not a prescribed drug for the decedent leads the [ALJ] to conclude in favor of the defendant-employer on this causation issue. It is irrelevant whether decedent committed suicide or voluntarily ingested Demerol for therapeutic or other use. The simple fact is the taking of the Demerol resulted in decedent’s death and this fact leads to the [ALJ’s] conclusion that decedent’s death is not work-related.

Rejecting the employer’s intoxication defense, the ALJ noted the absence of any medical evidence that Williams was intoxicated. Furthermore, the ALJ noted that there was no evidence that Williams’ failure to follow medical advice regarding his restrictions due to the previous injuries helped to cause the January 24, 2000, back injury.

Appealing, the claimants base their arguments on two statutes. KRS 342.610(3) provides as follows:

Liability for compensation shall not apply where injury, occupational disease, or death to the employee was proximately caused primarily by voluntary intoxication, as defined in KRS 501.010, or by his willful intention to injure or kill himself or another.

KRS 342.680 provides:

In any claim for compensation, where the employee has been killed, or is mentally or physically unable to testify as confirmed by competent medical evidence and where there is unrebutted prima facie evidence that indicates that the injury was work related, it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was work-related, that sufficient notice of the injury has been given, and that the injury or death was not proximately caused by the employee’s intoxication or by his willful intention to injure or Mil himself or another, (emphasis added).

The claimants concede that the drugs listed in the post-mortem report were present in Williams’ blood and that they worked in combination to cause his death. Their argument is that the ALJ, Board, and Court of Appeals misapplied KRS 342.680 when concluding that Demerol was an independent intervening cause of death without regard to whether Williams’ death was due to an accident or suicide. They assert that it is clear he took Demerol in an attempt to control his pain from the surgery and that there was no evidence he did so for another reason. Therefore, there was unrebutted prima facie evidence that Williams’ death was work-related, and although the employer proved that his death was due to the ingestion of a non-prescribed drug, it failed to prove that he intended to harm himself. Noting that KRS 342.610(3) prohibits benefits only in those instances where the worker is injured as the proximate result of “voluntary intoxication” or his “willful intention to injure or kill himself,” they complain that the ALJ determined that there was no evidence that Williams was intoxicated but failed to determine whether his death was accidental or a suicide. They assert that it was accidental and that a decision in their favor was compelled.

As amended effective December 12, 1996, KRS 342.0011(1) provides that an injury is a work-related traumatic event that proximately causes a harmful change in the human organism. It has long been the rule that a worker may be compensated for all of the harmful changes that flow from a work-related injury and that are not attributable to an independent, intervening cause. See Beech Creek Coal Co. v. Cox, 314 Ky. 743, 237 S.W.2d 56 (1951); Elizabethtown Sportswear v. Stice, 720 S.W.2d 732 (Ky.App.1986). Therefore, the claimants were entitled to benefits for Williams’ death if they succeeded in proving that it resulted from his injury rather than an independent, intervening cause.

The claimant bears the burden of proving every element of a workers’ compensation claim, including causation. See Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky.2000). Even when a worker’s death occurs on the employer’s premises, the burden is on those seeking compensation to establish that the death was connected to the individual’s work in order for it to be compensable. See Stapleton v. Fork Junction Coal Co., 247 S.W.2d 372 (Ky.1952); Harlan Collieries v. Shell, 239 S.W.2d 923 (Ky.1951); and Bluegrass Pastureland Dairies v. Meeker, 268 Ky. 722, 105 S.W.2d 611 (1937). Enacted effective January 1, 1973, and amended effective December 12, 1996, KRS 342.680 addresses the problem of proving work-relatedness in instances where the injured worker dies and, therefore, is unable to testify regarding an injury. It authorizes a re-buttable presumption that the injury or death was work-related and precludes an intoxication or suicide defense if there is prima facie evidence that the injury or death was work-related and no substantial evidence to the contrary. The procedural effect of the presumption is to shift to the employer the burden of going forward with substantial evidence that the injury or death was not work-related; however, the burden of proving causation remains on the claimant. See KRE 301; Magic Coal Co. v. Fox, 19 S.W.3d at 95. If the employer fails to meet its burden, the claimant is entitled to the presumption and prevails on the issue of causation. If the employer does meet its burden, the claimant is not entitled to the presumption of causation and must go forward with evidence that is persuasive enough to convince the ALJ that the injury or death was work-related.

Contrary to the claimants’ assertion, we are not convinced that the ALJ misapplied KRS 342.680. It is undisputed that Williams sustained a work-related back injury and gave timely notice. The matter presently at issue is whether there was substantial evidence that the injury was not the proximate cause of a subsequent harmful change, i.e., Williams’ death. The ALJ determined that there was such evidence and was not persuaded by the claimants’ evidence that the death was work-related.

There was medical evidence that the drugs that were prescribed for the effects of the back injury would not have caused Williams’ death if taken as directed and evidence that taking Demerol in addition to the prescribed medications caused Williams’ respiratory failure and ultimately his death. There was also evidence from which the ALJ could reasonably conclude that no physician prescribed or administered Demerol for the effects of the claimant’s back injury. Under the circumstances, there was substantial evidence that Williams’ death was not due to the effects of his work-related injury. See Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986). Therefore, the claimants were not entitled to a presumption of causation. The ALJ rejected the employer’s intoxication defense. No suicide defense was raised; therefore, it was immaterial whether the death was a suicide. The ALJ simply was not persuaded by the evidence that the effects of Williams’ injury were the proximate cause of his death, and any evidence that they were the cause was not so overwhelming as to compel a finding to that effect. Id.

The decision of the Court of Appeals is affirmed.

All concur.


text:
    Nicola (Brown) GRAY Appellant, v. TRIMMASTER; Hon. J.Landon Overfield, Administrative Law Judge; and Workers’ Compensation Board Appellees.
    No. 2004-SC-1027-WC.
    Supreme Court of Kentucky.
    Sept. 22, 2005.
    As Corrected Sept. 27, 2005.

      John W. Hardin, Stuart & Hardin, Versailles, Counsel for Appellant.
    James B. Compton, Donald Cameron Walton, III, Clark & Ward, PLLC, Lexington, Counsel for Appellee.
   OPINION OF THE COURT

In defining the term “injury,” KRS 342.0011(1) requires that a work-related harmful change in the human organism must be “evidenced by objective medical findings.” Despite acknowledging that the employer failed to file a timely Form 111, the Administrative Law Judge (ALJ) dismissed the claimant’s application for benefits after determining that there were no objective medical findings of a harmful change in the human organism and, therefore, no compensable injury. Gibbs v. Premier Scale Company/Indiana Scale Company, 50 S.W.3d 754 (Ky.2001). Although the claimant maintained that unrebutted medical evidence of a 2% AMA impairment due to pain amounted to such a finding and compelled an award, the Workers’ Compensation Board and the Court of Appeals affirmed.

We affirm insofar as the AMA impairment did not compel an award on these facts. Insofar as the ALJ failed to give proper effect to the employer’s failure to file a timely Form 111 (Notice of Claim Denial or Acceptance), we reverse the decision to dismiss the claim and remand this matter for additional findings of fact and conclusions of law. That is not to say that a decision in the claimant’s favor is compelled.

The claimant was born in 1970 and is a high school graduate. She had experience working as a seamstress and presser in a uniform shop, working in a mail room, installing insulation, assembling printers, operating a plastics machine, trimming surf boards, and working in fast food restaurants. In September, 2001, she began working for the defendant-employer, assembling and upholstering seats for automobiles. She stated that the work involved repetitive motion, forceful twisting, the use of hand tools, and lifting up to 30-40 pounds. In an application filed on February 27, 2003, she alleged repetitive motion injuries to her arms as of January 25, 2002, and sometime in September, 2002. The application indicated that there was a dispute regarding the employer’s liability for compensation and the amount or duration of benefits.

As required by 803 KAR 25:010, § 5(l)(d), the claimant’s application for benefits included a letter from Dr. Brooks to her attorney that stated, in pertinent part, as follows:

It is my professional opinion that Ms. Gray’s underlying “inflammatory process” is most likely caused by work and then further aggravated by continuing within the repetitive work environment. Unless she has had a previous complaint prior to beginning employment at this job, I would doubt that there would be a preexisting or not work-related condition that would be underlying.

On April 3, 2003, the Department of Workers’ Claims informed the employer and Travelers Indemnity of Illinois of the claim, advised the employer to contact its carrier at the time of the injury, and advised the employer and Travelers to contact counsel of their choice and to notify the Department of counsel’s name and address.

On April 25, 2003, the Department issued an order, setting forth the schedule for taking proof and the date of the benefit review conference (BRC). The order gave the employer 45 days (i.e., until June 9, 2003) to file a Form 111 Notice of Claim Denial or Acceptance and stated that if the Form 111 was not filed, all allegations in the application would be deemed admitted. KRS 342.270(2); 803 KAR 25:010, § 5(2)(b). The order gave all parties 60 days to take proof (i.e., until June 24), followed by an additional 30 days for the employer and then 15 days for rebuttal by the claimant.

The employer failed to file a timely Form 111, to introduce any proof, or to appear at the August 12, 2003, BRC. The BRC memorandum contained various stipulations, including that the claimant sustained work-related injuries in January and September, 2002. It noted the employer’s failure to respond in any way to the claim. After stating that only the following issues “shall be subject to further proceedings,” it listed “extent and duration, medical expense payment, [and] entitlement to TTD (temporary total disability)” as being the contested issues.

On August 13, 2003, counsel for Travelers filed a notice of representation on the employer’s behalf. Also on August 13, 2008, counsel filed a Form 111 in which it asserted that the alleged injury was not work-related, that any disability was preexisting and active, and that the claimant did not sustain an injury as defined by KRS 342.0011(1). The employer was represented at the August 27, 2003, hearing.

The only medical evidence consisted of the letter from Dr. Brooks and the report of a June 11, 2003, evaluation by Dr. Owen, both of which were submitted by the claimant. They presented two different theories regarding the nature of the claimant’s injury. Dr. Brooks indicated that the claimant had a work-related inflammatory process that was further aggravated by her repetitive work. He doubted that there was a pre-existing condition or an underlying non-work-related condition.

Dr. Owen determined that the claimant had a non-work-related rheumatoid condition and elevated sed rate that were exacerbated by her work. He noted that her chief complaint was hand and wrist pain that began in January, 2002. She associated it with the repetitive motions involved in twisting and pulling leather and cloth while making automobile seats. She explained to Dr. Owen that she first experienced pain in her right hand when using a vibratory tool called a “hog ring gun.”

Dr. Owen diagnosed persistent, bilateral wrist pain that was greater on the right side than on the left, but he noted that there was “no objective evidence at the present time for the severity of the pain.” Dr. Owen thought that the claimant’s injury was the cause of her complaints. He attributed 75% of her condition to rheumatoid arthritis and the elevated sed, which were non-work-related, and 25% to an exacerbation of the conditions due to her work. He assigned a 2% impairment for pain under the AMA Guides to the Evaluation of Permanent Impairment (Guides), indicating that the figure was based on a Fifth Edition Pain Score. In his opinion, the claimant did not have an active impairment before the injury. Nor was her condition due to the arousal of a pre-existing dormant condition. He noted that her previous work involved hand-intensive labor and that she was doing well presently, without ongoing labor, as evidenced by her minimal signs and symptoms. He thought that her work activities should be restricted due to her injury and stated that she did not retain the physical capacity to return to her previous work.

At the hearing, the claimant testified that she had not worked since January, 2003, and indicated that she remained under active medical care for her injury. She stated that the employer paid some voluntary TTD benefits but discontinued them, probably in November, 2002. After being treated by Drs. Brooks and Uman-sky at the Lexington Clinic, she was referred to Drs. Favetto and O’Neill, who were hand specialists. She stated that Dr. O’Neill ordered nerve conduction studies and anti-inflammatory medication.

The claimant described her symptoms as including numbness and tingling in both hands, occasional pain in the left hand, and frequent pain in the right hand, which was her dominant hand. The symptoms affected her fingers, hands, and forearms, sometimes including her elbows. She stated that she could not return to the type of work that she was performing for the employer because it involved repetitive motion, using vibratory tools and tools requiring forceful gripping. She thought that she could return to work as a seamstress or as a mail sorter.

In her arguments to the ALJ, the claimant requested medical benefits and either an open-ended TTD award that was based on her continuing medical treatment, or an award of permanent income benefits that was based on the impairment Dr. Owen assigned. Noting that the extent and duration of disability remained at issue, the employer maintained that although there was some evidence of a temporary exacerbation of an inflammatory condition that had resolved, there were no objective physical findings of a permanent harm. The employer acknowledged that Dr. Owen attributed a 0.5% impairment to pain due to the exacerbation of non-work-related conditions. It argued, however, that an award based upon an AMA pain rating was improper absent any objective medical findings of an injury.

Based upon the employer’s failure to file a timely Form 111, the ALJ noted that all allegations in the claimant’s application were deemed to be admitted by the employer under 803 KAR 25:010, § 5(2)(b). Therefore, among other things, the employer admitted that the claimant sustained work-related injuries on January 25, 2002, and September, 2002; that the employer had due and timely notice of the injuries; that the claimant performed assembly work; and that she engaged in repetitive motion, forceful twisting, the use of hand tools, and lifting of 30-40 pounds.

Noting the claimant’s testimony regarding work she could perform and the absence of any medical evidence of restrictions that would render her unable to work, the ALJ denied her request for TTD benefits. Turning to the question of permanent partial disability, the ALJ noted the absence of any “objective medical findings” as that term is defined in KRS 342.0011(33). Explaining that not all work-related harmful changes are compen-sable and that KRS 342.0011(1) requires a harmful change in the human organism to be evidenced by objective medical findings in order for it to be compensable as an “injury,” the ALJ determined that the claimant failed to meet her burden of proof and dismissed the claim. Gibbs v. Premier Scale Company/Indiana Scale Company, supra. After her petition for reconsideration was overruled, the claimant appealed.

KRS 342.270(2) provides that within 45 days of the issuance of the notice of the filing of a claim, the employer or carrier “shall” file a notice of denial or acceptance. 803 KAR 25:010, § 5(2)(a) requires a Form 111 to be filed within 45 days after notice of the scheduling order. Subsection (b) provides that if a Form 111 is not filed, all allegations of the application shall be deemed admitted. These provisions are mandatory. Their purpose is to facilitate the prompt and orderly resolution of workers’ compensation claims. As interpreted by the ALJ, an employer’s failure to file a timely Form 111 results in an admission of “all allegations of the application.” The employer does not assert that this interpretation is erroneous.

Among other things, KRS 342.275(1) requires the Department to schedule a pre-hearing BRC, the purpose of which is to define and narrow issues, to discuss settlement, and to consider other relevant matters that may aid in the disposition of the case. Consistent with KRS 342.275(1), 803 KAR 25:010, § 13 states that the purpose of the BRC is to “expedite the processing of the claim and to avoid if possible the need for a hearing.” Thus, it requires the parties or their representatives to be present and be authorized to settle the claim. The regulation also provides for a memorandum of stipulated and contested issues and limits further proceedings to those issues listed on the memorandum as being contested. It is apparent that enforcing the BRC memorandum and penalizing employers who fail to file a timely Form 111 or to appear at the BRC effectuates the purpose of the provisions by encouraging employers to comply with them.

For the purposes of Chapter 342, the words “injury” and “injuries” are legal terms of art. As amended effective December 12, 1996, KRS 342.0011(1) defines a compensable “injury” as being a work-related traumatic event or series of traumatic events that causes a harmful change in the human organism that is evidenced by objective medical findings. Gibbs v. Premier Scale Company/Indiana Scale Company, supra. In other words, a traumatic event must proximately cause a harmful change that is evidenced by objective medical findings in order to come within the definition of “injury.”

In dismissing the claim on the ground that the claimant failed to prove an “injury,” the ALJ failed to consider the proper effect of the employer’s failure to file a timely Form 111. In fading to deny the allegations of the claimant’s application, the employer admitted that she sustained “repetitive motion injuries to both upper extremities,” that the injuries caused an “inflammatory process,” and that they occurred “within the course and scope of her employment.” Therefore, the employer effectively admitted that there were objective medical findings of a harmful change, i.e., of an inflammatory process. The admission subjected the employer to potential liability for the inflammatory process, but the burden remained on the claimant to prove the extent of that liability. Roark v. Alva Coal Corporation, 371 S.W.2d 856 (Ky.1963); Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App.1984); Snawder v. Stice, 576 S.W.2d 276 (Ky.App.1979). Acknowledging her burden, the claimant conceded on the BRC memorandum that extent and duration, medical expense payment, and entitlement to TTD remained contested. She has not appealed the decision regarding TTD. She asserts, however, that her unrebutted evidence compelled an award of income and/or medical benefits.

By failing to file a timely Form 111, the employer admitted that the claimant sustained work-related repetitive motion injuries, producing a harmful change that Dr. Brooks described as an inflammatory process. Although Dr. Brooks stated that the condition was both caused and aggravated by her work, he did not indicate that the condition caused a permanent impairment, required medical treatment, or caused any particular symptoms. Therefore, although the allegations of the claimant’s application proved an “injury,” they were insufficient, by themselves, to support an award of income or medical benefits.

Testimony from Dr. Owen offered a different theory for an injury. In his opinion, work-related trauma exacerbated a non-work-related rheumatoid condition, causing pain, a work-related harmful change. Pain was a harmful change that was not included in the allegations of the claimant’s application for benefits and admitted by the employer; therefore, in order to prevail under this theory, she was required to prove its existence by objective medical findings. Gibbs v. Premier Scale Co., supra. In view of the decision that she failed to do so, her burden on appeal was to show that the ALJ misapplied the law or that the evidence in her favor was so overwhelming that it compelled a favorable finding. KRS 342.285; Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986).

KRS 342.0011(33) defines objective medical findings as being “information gained through direct observation and testing of the patient applying objective or standardized methods.” Dr. Owen examined the claimant and noted that the Phalen’s was negative and the Tinel’s was negative bilaterally. He noted that there was no significant tenderness over the dorsal tendons and no significant weakness in any of the wrist movements. He also noted that the various diagnostic tests revealed no work-related condition, but they did reveal non-work-related conditions that were exacerbated by her work. Although he diagnosed persistent wrist pain and indicated that he rated the impairment that it caused under the AMA standard, he noted specifically in his report, “There is no objective evidence at the present time for the severity of the pain.”

To prove that she was entitled to income benefits for permanent partial disability under Dr. Owens’ theory, the claimant was required to show that she had an injury as defined by KRS 342.0011(1) and that the injury resulted in an AMA impairment. In Gibbs v. Premier Scale Co., 50 S.W.3d at 761, the court explained that:

[AJlthough a worker may experience symptoms and although a physician may have diagnosed a work-related harmful change, the harmful change must be evidenced by objective medical findings as that term is defined by KRS 342.0011(33). Otherwise, it is not com-pensable as an “injury.” KRS 342.0011(1).

In addressing the effect of the December 12, 1996, amendment to KRS 342.0011(1), the court noted that subjective factors are present even in the direct observation and testing of the patient, both on the part of the patient and in the perception of medical providers. It also noted, however, that the Guides contain standards for determining the extent of functional impairments and explained:

The use of standardized methods decreases the extent to which the observation and testing of a patient are affected by subjective factors and, thereby, renders the resulting information a more objective measure of a patient’s actual condition.

Id.

Evidence that work-related trauma has caused an AMA impairment, is evidence that the trauma caused a harmful change in the human organism. AMA impairments are assigned using standardized methods. At issue in this case is whether direct observation and testing by medical providers verified the existence of the symptoms on which the impairment rating was based or whether the rating was based solely on the claimant’s self-reporting.

Dr. Owen did not testify regarding how impairment due to pain is determined under Chapter 18 of the Guides. His report indicates that he relied upon Tables 18-4, 18-5, 18-6, and 18-7. Table 18-4 (Ratings Determining Impairment Associated With Pain) consists of a series of questions to which the patient responds. It includes a self-report of the severity of pain, of activity limitation or interference, and of the effect of pain on mood. Table 18-5 (Assessment of Pain Behavior) consists of a list of observable pain behaviors that the medical provider is to rate on a scale of - 10 to +10, with a score of 0 signifying pain behaviors that are “mixed or ambiguous.” Table 18-6 is a worksheet for calculating pain-related impairment based upon the scores the patient and medical provider assigned under the previous two tables. Table 18-7 classifies the degree of impairment based upon the Table 18-6 score.

It is apparent that only the score from Table 18-5 of the Guides is based on the medical provider’s direct observation and testing of the patient. Dr. Owen rated the claimant at 0. Furthermore, he noted in his report that there was no objective evidence for the severity of the pain of which the claimant complained. Therefore, evidence of the claimant’s AMA impairment due to pain would not have supported a finding that an exacerbation of her rheumatoid arthritis caused a compensable “injury” had such a finding been made.

When concluding that the claimant failed to prove a compensable injury, the ALJ erred by failing to consider the effect of the employer’s failure to file a timely Form 111. Although Dr. Owen’s testimony did not establish that the claimant sustained a compensable injury, the employer’s failure to file a timely Form 111 resulted in an admission that she sustained a work-related inflammatory process. If there is an injury as defined by KRS 342.0011(1), Chapter 342 imposes no additional requirement that AMA impairment from the injury be based on objective medical findings. Mindful that an ALJ may pick and choose among the witnesses’ testimonies, we note that the ALJ could have determined from the evidence that the “injury” to which the employer admitted resulted in the impairment that Dr. Owen measured. If so, the claimant would have been entitled to income benefits. The evidence did not compel such a result, but by dismissing the claim for lack of a compensable “injury,” the ALJ failed to even consider that possibility and must do so on remand.

803 KAR 25:010, § 13(9)(b) requires an injured worker to bring to the BRC copies of unpaid medical bills and documentation of unpaid out-of-pocket expenses, including travel for medical treatment. 803 KAR 25:010, § 13(2) and (7) provide, however, that the BRC is an informal proceeding and that a transcript shall not be made. The BRC memorandum indicates only that “medical expense payment” is a contested issue. At the hearing, the claimant testified that she continued to receive medical treatment for her injuries, but we are unable to discern from the record whether unpaid medical bills or expenses were at issue, whether the claimant sought only an award of future medical benefits, or whether she sought both. In any event, KRS 342.020 entitled her to be compensated for a disputed medical expense if she succeeded in proving that it was for reasonable and necessary treatment of her work-related injuries. It entitled her to an award of future medical benefits if she succeeded in proving that harmful changes to her arms that were evidenced by objective medical findings required ongoing medical treatment. By dismissing the claim based solely on the definition of injury, the ALJ failed to fully analyze the “medical expense payment” issue and, therefore, must do so on remand.

The decision of the Court of Appeals is hereby affirmed in part and reversed in part, and the claim is remanded to the ALJ for additional findings of fact and conclusions of law.

All concur.


author: /s/ Joseph E. Lambert Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Petitioner v. Robert M. BEAL, Respondent.
    No. 2005-SC-0620-KB.
    Supreme Court of Kentucky.
    Oct. 20, 2005.

      Bruce K. Davis, Executive Director, Jay R. Garrett, Kentucky Bar Association, Frankfort, KY, Counsel for Appellant.
    Robert Mark Beal, Louisville, KY, Counsel for Appellee.
   OPINION AND ORDER

Robert Beal, KBA No. 03887, whose last bar roster address was P.O. Box 70051, Louisville, KY, 40270, was admitted to practice on October 25,1982.

In March 2003, the Inquiry Commission received a complaint from an individual alleging that Beal had abandoned representation of the client in the middle of adversarial proceedings. The investigation revealed that Beal had accepted representation of a client facing non-wage garnishments and possible liens against property in a collection action. At the time of retaining the client agreement, the client was already in default in answering a Non-Wage Garnishment Order and the sum of $2300 had been paid to the judgment creditor from the client’s bank account. Beal filed an appropriate motion to set aside the default order, resulting in the order being set aside in part and granting additional tíme to respond to the original Non-Wage Garnishment Order.

Beal failed to make any further appearances or filings on behalf of his client. As a result of this failure, a motion to reinstate the judgment was filed by the adverse party. Beal did not file any response to either motion. The reinstatement was granted resulting in a judgment against the client for the amount of $13,232.21. Beal failed to respond to any of these actions.

Upon notification of another levy against his bank account, the client became aware of Beal’s inaction. The client immediately retained new counsel and filed the complaint.

On May 17, 2004, the Inquiry Commission served Beal with a copy of the Bar Complaint by certified mail. On September 3, 2004, a reminder letter was sent because no response had been received. On December 28, 2004, with no response from Beal, the Inquiry Commission filed a four count Charge against Beal.

On January 26, 2005, Beal was notified by certified letter of the following four disciplinary charges filed.

Count I alleged violation of SCR 3.130-1.3, failure to diligently represent his client by failing to answer a garnishment order and failure to respond to correspondence from opposing counsel.

Count II alleges violation of SCR 3.130-1.4(a) and (b) for failure to keep the client reasonably informed about the status of a matter, failure to comply with reasonable requests for information, and failure to adequately explain the matter to his client by failing to respond to numerous phone calls from the client and by failing to inform and explain to the client that motions to reinstate the garnishment order had been filed that could result in the client being held in contempt of the garnishment order again.

Count III alleges -violation of SCR 3.130-1.1 for failure to provide competent representation to his client by failure to respond to a motion and failure to answer a garnishment order.

Count IV alleges violation of SCR 3.130-8.1(b) for failure to respond to a lawful demand for information from a Disciplinary Authority.

Beal failed to respond to any of these charges.

On January 27, 2005, Beal was suspended for non-payment of bar dues. On February 17, 2005, this Court entered an order privately reprimanding Beal for violation of SCR 3.130-8.1(b) for failure to respond. On March 11, 2005, the Board found Beal guilty on another count of SCR 3.130-8.1(b).

The Board of Governors found Beal guilty on each count of the instant charge by a vote of 17-0 for each count. They concluded that Beal undertook representation of a client and then failed to timely file appropriate pleadings that caused the client to be held in contempt of the court and in default. Additionally, Beal failed to keep his client reasonably informed of the events which had transpired including the contempt findings as well as the levy of substantial sums in the client’s bank account.

On the matter of appropriate discipline, the Board recommended by 15 votes to suspend Beal from the practice of law for 60 days. One vote recommended a 30-day suspension and there was one abstention.

Based on the foregoing, we find that Beal’s lack of response to the instant charges coupled with the nature of the violations presents a cause for temporary suspension under SCR 3.165(l)(b), which provides that a suspension is appropriate where “it appears that probable cause exists to believe that an attorney’s conduct poses a substantial threat of harm to his clients or to the public.”

THEREFORE, IT IS HEREBY ORDERED as follows:

(1) Respondent, Robert M. Beal, is hereby suspended from the practice of law in the Commonwealth of Kentucky for a period of sixty (60) days.

(2) In accordance with SCR 3.450 and SCR 3.480(3), respondent is directed to pay all costs associated with this disciplinary proceeding against him in the amount of $206.40, for which execution may issue from this Court upon finality of this order.

(3) Pursuant to SCR 3.390, respondent is hereby ordered to provide notice to any clients, if applicable, he currently represents, of his inability to provide further legal services, to notify all courts in which he has matters of his pending suspension and to provide the Director of the Kentucky Bar Association with a copy of all such letters simultaneously to their mailing.

(4) This suspension shall run immediately from the date of this Order and concurrent to any other disciplinary suspension affecting Beal.

All concur.

ENTERED: October 20, 2005.

/s/ Joseph E. Lambert Chief Justice


text:
    KENTUCKY BAR ASSOCIATION, Movant v. Joel R. EMBRY, Respondent.
    No. 2004-SC-000763-KB.
    Supreme Court of Kentucky.
    Oct. 20, 2005.
    Bruce K. Davis, Executive Director, Linda Gosnell, Chief Bar Counsel, Kentucky Bar Association, Frankfort, KY, Counsel for Movant.
    Joel R. Embry III, Hopkinsville, KY, Counsel for Respondent.
   OPINION AND ORDER

The Kentucky Bar Association (KBA) moves this Court to enter an Order of permanent disbarment pursuant to our previous Order of January 20, 2005, or in the alternative to enter a Show Cause Order directing Joel R. Embry (Embry), KBA no. 20905, to show cause why the permanent disbarment provisions of the Court’s previous Opinion and Order should not be imposed. We find the Show Cause Order to be unwarranted and enter an Order of permanent disbarment.

This Court previously entered an Order placing Embry on a five-year suspension in connection with the misconduct charged in KBA File 7281. That Order of January 20, 2005 required Embry to comply with the terms of his criminal probation for the underlying criminal conduct involving the manslaughter of his mother. At the time of the hearing in the disciplinary case, Embry was on probation for that crime.

We specifically ordered “that Respondent comply with the terms of probation imposed by the Court pursuant to his criminal convictions, and that any violations of such terms resulting in the revocation of probation would result in permanent disbarment.” The KBA received a letter dated October 11, 2004 from Em-bry’s counsel. It stated that Embry had admitted using cocaine since being placed on criminal probation, and had tested positive for cocaine after the date of his testimony before the KBA in June in connection with the underlying disciplinary case. Subsequently, the KBA obtained a copy of an Order dated October 25, 2004 from the Christian Circuit Court revoking Embry’s probation after a probation revocation hearing, which included a finding of cocaine use. Embry was remanded to the custody of the Department of Corrections to complete service of his ten-year prison sentence.

The record shows a clear lack of compliance with the terms of our previous Order. Upon the foregoing facts and charges, we hold that the recommendation of the KBA should be adopted. Therefore, it is ORDERED that:

1. Joel R. Embry is hereby permanently disbarred from the practice of law in the Commonwealth of Kentucky for violating the Court’s Order of January 20, 2005.

2. In accordance with SCR 3.450, Em-bry is directed to pay all costs associated with these disciplinary proceedings in the amount of $814.59 for which execution may issue from this Court upon finality of this Order.

All concur.

ENTERED: October 20, 2005.

/s/ Joseph E. Lambert

Chief Justice.