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Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 4005
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I have gone to my final hearing and after receiving a copy

Customer Question

I have gone to my final hearing and after receiving a copy of what my lawyer submitted to the judge at the judges request from both lawyers I fired my atty. He submitted figures that were not correct, he stated that my husband was receiving $16,000 in community property and that out of the $16,000 we asked for after all past due bills my husband did not pay came out of my share and both atty fees and the mediation fees (which I paid $550) i was to receive $107. Also the paperwork the opposing atty hand delivered to the judge the day I moved out and left town, with no community property as discussed and agreed to in court, stated I was to receive all of the community property and was to receive no money. The judge has not ruled and has been notified that I fired my atty. What is my next step. My husband makes over $10,000 a month in Kuwait and I was only awarded $300 a month to live on and he was in contempt for not complying with the court orders. What would my next step be?
Submitted: 5 years ago.
Category: Legal
Customer: replied 5 years ago.
Relist: I still need help.
Expert:  Zachary replied 5 years ago.
DearCustomer

Thank you for submitting your important legal issue to Just Answer. I am pleased to have the opportunity to provide you with an honest and easy to understand answer to your question.

I am an attorney licensed in the State of Texas. The following information is a brief answer to your question. However, if you feel that you need further information or that you have other insights which might help me in providing a better answer, please feel free to write back.

From what I understand, your ex-attorney has filed a property division motion with the court stating that you have agreed to split the property. However, you have not in fact agreed to split the property as stated in that motion. Your next step needs to be taken very quickly. You have already fired your attorney. You need to send a letter to the court and to your husbands attorney stating that you have fired your attorney and are searching for another attorney to represent you and you need the court and the other attorney to give you some time to do this before proceeding. You need to immediately go out and get another attorney. Your new attorney needs to file a motion to withdraw the prior property division agreement. You will probably also have to either offer some testimony or sign an affidavit which states that why you do not approve of the property division agreement which was entered before the court and that you never signed any document which showed you approved this agreement.

I hope that this information has been helpful to you. If we can be of any further assistance please free to use our service again. Best wishes for a successful outcome.

If my answer has been helpful to you, please click "ACCEPT" so that I may be paid. This is the only way that I will receive compensation for the work performed. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done. Clicking "FEEDBACK" to leave your positive comments is always greatly appreciated.

The information provided is general in nature only and should not be construed as legal advice. By using this forum, you acknowledge that no attorney-client relationship has been created between you and Zachary D. Norris or The Norris Law Firm. For complete legal advice and representation, you should consult with an attorney licensed to practice in your state.


Zachary, Attorney
Category: Legal
Satisfied Customers: 4005
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 8 other Legal Specialists are ready to help you
Customer: replied 5 years ago.

In the final divorce hearing, my lawyer had me sign a blank piece of paper stating that he had to re-type the inventory for the judge. He actually attached my signature to entirely different document. The community property was never going to be divided but actually was to be awarded to my husband, and I was to get a cash settlement in lieu of taking half the property as his children still live in the home. I paid all the bills with our joint checking account until he filed for divorce. He then immediately turned off the home phone, my cell phone (the kids still had theirs) and tried to take me off the home loan and the car insurance. He opened 3 new credit card accounts against the courts direction not to incur any new debts. I asked my lawyer to file contempt but said he filed an enforcement action which was not effective. He is 3 payments behind on my car. He is past due on the mortgage. My attorney's legal asst stated that the reason I was only awarded $200 for the first two months to live on (groceries, gas, cable(in my name) and my cell phone (a new one I obtained), prescriptions, etc...) was because he was taking care of 3 households. He did move the kids out to his daughter's best friends house and accused me in court of borderline abuse. I have never punished the kids in any way except grounding and taking away certain items (tv, gaming systems etc) yet his daughter has been indicted for assault on me for a choking incident and has yet to go to trial. I agreed to leave the home and all belongings bought during the marriage to make this easier on the children. They are living alone in Burkburnett, Texas. His daughter is 18 (Dec 2008) and his son is 16 and their father is in Kuwait. The closest relative is 110 miles away. I am just the step mother so I have no rights as to the decision of the children, even though I love them as my own. I am worried about them being alone in a large 3 bedroom 1875 sq ft home with the past behavior of his daughter who is supposed to be on Prozac but doesn't take her medications. I was married to this man for 5 years. We divorced in 2000. We re-married March 7, 2006. I have filed for disability and the Disability Atty I saw says that if I am denied it could take up to 18 months to get disability. I have no income. I have spoken to legal aide and they refused to take my case. Can I represent myself and file a motion to withdraw the last thing my atty filed on my behalf. Is it usual practice to reduce my share of the community property by all the past due bills he failed to pay as well as both atty fees, and they are even asking me to pay him back the $550 (my family) paid for mediation out of my share of the community property bringing the amount I would receive down to $107. He receives $11,000 in community property. I did not work during the marriage at his request. I have 2 credit cards that he is refusing to pay and I have not used them at all since being served. I have done everything the court has asked and I just want to get on with my life but would like to get what is fair so that I may pay off and keep my car as that is the only thing I am walking away with. I believe he pursued me and remarried me so that he could go to Iraq/Kuwait to work and as soon as his daughter was nearing 18 years of age immediately filed for divorce. I have kept every receipt for everything purchased and have made a spread sheet which my lawyer had but did not use in court or put into evidence. I also wrote a letter to the judge and asked my lawyer to submit it to the judge which he refused to do. I told my lawyer at the beginning of the case not to submit anything without my prior approval and collaboration which he failed to do on every occasion. He never met with me prior to court to prepare, he never got out of his chair in the court room and he never asked the questions that I directed him to ask. I am in Little Rock now and will send a letter to my lawyer, the judge and the opposing lawyer as you directed above explaining I have fired my Attorney and need additional time. Any additional assistance you can provide is much appreciated. Where are you located and do you know of any Attorney in the Wichita Falls area that may take the fee out of the final settlement since it is almost over. Will the lawyer I fired still get a portion of my settlement? How do I ask for continuing support and payment of my vehicle and auto insurance? I would also like to see his paycheck stubs if at all possible as my husband nor his lawyer ever provided discovery and it was not pursued by my lawyer. I have not seen a paycheck stub since he transferred to Kuwait from Iraq in March 2008. Thank You

Expert:  Zachary replied 5 years ago.
Thank you for your response.

You may go ahead and file a motion to withdraw the previously submitted property division agreement. I think you can also file an Application for Support, stating that your husband should pay for your attorneys fees and provide you with spousal support, including paying the car note, until a new property division agreement can be reached.

I do not recommend continuing without an attorney. Unfortunately, I don't know any attorneys in Wichita Falls. I suggest, sitting down with the phone book and calling around for attorneys who handle divorces and tell them your situation. You might be able to find someone to help you.

In regard to your prior attorney. He may still be entitled to payment from the divorce proceeds. However, what he has done in my opinion constitutes malpractice. You can file a grievance against him with the Texas Bar.
Zachary, Attorney
Category: Legal
Satisfied Customers: 4005
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 8 other Legal Specialists are ready to help you
Customer: replied 5 years ago.
We have already filed a grievance with the state bar. We have looked on the web and can not find the forms to withdraw the previously submitted property division agreement or file an Application for Support. Can you tell me where to find these or forward a copy. We are in the process of writing a letter to be sent to the former Atty via registered mail so he cannot say we did not fire him. We will cc the judge and opposing atty but would like to include the forms you suggested with the judge's copy until such time as we can procure another attorney. Is there anything else we should send to the judge (eg: copy of grievance)? Thank You
Expert:  Zachary replied 5 years ago.
Hi,

I'm sorry to say that I don't have any actual forms that can help you in this matter.     If it is really not possible to find another attorney to assist you, then I suggest you go and get a copy of the file from the court house. Pattern your motions on the other motions in the file. If you really need more time to find an attorney, in your letter ask the judge to continue the case. You can also file a Motion to Continue. I'm going to attempt to send you a form for this to your private email.

I hope this helps.
Zachary D. Norris
Expert:  Zachary replied 5 years ago.

NO. 2007-17898

FERNANDO DEHOYOS               §     IN THE DISTRICT COURT OF
                              §
                              §     
                      ;         §                  
VS.                               §     HARRIS    COUNTY,   T E X A S
                              §
                              §
GLENN S. OKUMA                    §     333rd        JUDICIAL    DISTRICT

PLAINTIFF'S OPPOSED MOTION FOR CONTINUANCE

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiff, Fernando DeHoyos, and files this Motion for Continuance, and in support thereof would respectfully XXXXX XXXXX Court the following:
A. FACTS & PROCEDURAL BACKGROUND
1.     Plaintiff is Fernando Dehoyos; Defendant is Glenn S. Okuma.
2.     Plaintiff sued Defendant for personal injuries and property damages suffered in an auto/motorcycle related collision on June 15, 2006.
3.     Discovery in this suit is governed by a Level 2 discovery control plan. The discovery period ended on May 23, 2008 and discovery is incomplete.
4.     This case is set for trial on June 23, 2008.
5.     Plaintiff has not made an unconditional announcement of ready for trial.
6.     Plaintiff attaches affidavits to this motion as Exhibits A, B, C,, D, E, F to establish facts not apparent from the record and incorporates them by reference,
7.     Plaintiff moves for a continuance on the following grounds.


B.     ARGUMENT
PLAINTIFF WILL BE PREJUDICED
8.     The Court may grant a continuance if a party requires additional time for discovery. The party must file a motion for continuance and identify (1) the specific discovery necessary, (2) the person from whom the discovery is sought, and (3) the type of information sought. Gabalon v. G.M. Corp., 876 S.W.2d 367, 370 (Tex.App. – El Paso 1993, no writ). Although Plaintiff has exercised due diligence in conducting discovery, Plaintiff requires additional time for discovery. See Attached Exhibit “A” (Affidavit of R. James Amaro). This continuance is not sought for delay but only so that justice may be done. Tex. R. Civ. P. 252.
9.     First, Plaintiff requires affidavits from the medical providers that treated Plaintiff which satisfy Texas Civil & Practices Remedy Code §§ 18.001, 18.002. Specifically, Plaintiff requires the affidavits from Harris County Hospital District and Plaintiff’s treating physical therapist.   Although these affidavits were requested in ample time before the expiration of the discovery period, these providers failed to return the affidavits prior to the discovery deadline and in the form which satisfies Texas Civil Practices & Remedy Code §§18.001, 18.002. These affidavits are material and necessary to establish Plaintiff’s evidentiary burden that the medical treatment and expenses were necessary and reasonable for his injuries. Otherwise, Plaintiff would be required to subpoena each and every medical provider that provided medical services to Plaintiff to testify at trial in regard to the reasonableness and necessity of the medical treatment provided to Plaintiff. Plaintiff will be prejudiced if not permitted to obtain this evidence and file its §18.001 affidavits with the Court. Commercial Stand Ins. Co. v. Merit Clothing Co., 377 S.W.2d 179, 181 (Tex. 1964).
8.     Second, Plaintiff needs to depose Defendant’s collision reconstruction expert, Chris R. Michalec. Defendant deposed Plaintiff’s accident reconstruction expert on May 21, 2008, two days before the expiration of the discovery period. Defense counsel stated to Plaintiff’s counsel that he would quash any deposition notice of this expert set prior to Plaintiff’s expert’s deposition. See Attached Exhibit “B” (Affidavit of Zachary Norris). After Plaintiff’s expert’s deposition, Plaintiff did not have time to assess whether the deposition of Chris R. Michalec would be tantamount necessary to Plaintiff’s case as there were less than 3 days left in the discovery period after Plaintiff’s expert’s deposition. Because of the inherent differences of each expert’s version of the facts, Defendant’s expert testimony is material and necessary to determine his opinion on either fact scenario. Tex. R. Civ. P. 252; J.E.M. v Fidelity & Cas. Co., 928 S.W.2d 668, 676 (Tex.App. – Houston [1st Dist.] 1996, no writ). The rules do not require Defendant to call this witness to testify at trial and Plaintiff would not have the opportunity to cross examine the witness at trial if Defense does not present him for direct examination. Therefore, Plaintiff will be prejudiced if not permitted to obtain this evidence prior to trial. Commercial Stand Ins., 377 S.W.2d at 181.
9.     Third, Plaintiff was unable to obtain a report from Plaintiff’s economic expert before the discovery deadline. Although Plaintiff’s economic expert was timely designated, his report was not produced before the discovery deadline despite Plaintiff’s counsel’s request and multiple telephone calls requesting same. Further, after designation, the expert did not provide Plaintiff with any deposition dates even after multiple telephone calls requesting the same. Plaintiff requires this report in order to establish his claim for past and future lost wages. Because Plaintiff is making a claim for lost wages, this evidence is material. Therefore, Plaintiff will be prejudiced if not permitted to obtain this evidence. Commercial Stand Ins., 377 S.W.2d at 181.
10.     Fourth, Plaintiff requires the deposition of designated witnesses Roxanne Canep and Jo An Pintar. Plaintiff did not determine that these depositions would be material and necessary until after Ms. Cernoch’s deposition and Defendant’s counsel deposed Plaintiff’s accident reconstruction expert. Defendant’s insurance carrier obtained recorded statements from both of these witnesses. Their rendition of the facts differs from the deposition testimonies of third party witness, Reyna Cernoch, and Plaintiff’s accident reconstruction expert, and Plaintiff. Therefore, their sworn statements are material and necessary prior to trial to evaluate whether their testimony would be required at trial. Plaintiff will be prejudiced if not permitted to obtain this evidence. Commercial Stand Ins., 377 S.W.2d at 181.
11.     Fifth, Plaintiff’s treating physical therapist, Dr. Anthony Vasquez, will not be available for trial testimony. See Attached Exhibit “C” (Affidavit of Dr. Vasquez). Dr. Vasquez’s testimony at trial will be required to establish that Plaintiff is permanently impaired due to the injuries sustained in this accident. Plaintiff will be prejudiced if not permitted to obtain this evidence. Commercial Stand Ins., 377 S.W.2d at 181.      
12.     Finally and despite his pleas to the contrary, Defense counsel needs more time for discovery. Defense counsel has pled in the pending Defendant’s Motion to Exclude Plaintiff’s Expert Witnesses (set for hearing on the same date and time as Plaintiff’s Opposed Motion for Continuance) that he did not timely receive Plaintiff’s expert’s report. Although the parties disagree on the basis of Defendant’s motion, Defense counsel himself admits that he requires more time when he states in his motion that “Defendant was prejudiced by Plaintiff’s failure to allow Defendant to discover the opinions of his accident re-constructionist expert until after Defendant’s expert deadline.” See Attached Exhibit “D” (Defendant’s Motion to Exclude Expert Witnesses, pg. 6). Defense counsel also stated to Plaintiff’s counsel that he wanted to depose Plaintiff again. See Attached Exhibit “B” (Affidavit of Zachary Norris). It is thus apparent that Defendant needs more time for discovery because his attorney has stated it himself.
DEFENDANT HAS OBSTRUCTED DISCOVERY
13.     Plaintiff filed this lawsuit on or about March 26, 2007. Since filing this lawsuit, Plaintiff has requested that Defendant supplement or amend his discovery responses numerous times. His opposition to Plaintiff’s Opposed Motion for Continuance is just another example of Defendant’s attempts at obstructing Plaintiff’s presentation of the facts.
14.     Defendant first responded to Plaintiff’s Request for Disclosure on or about June 8, 2007. Defendant’s This response did not include all of the required discoverable information required to be disclosed and which has been available in Defendant’s possession, custody and control since this lawsuit was filed. Defendant further refused to answer any of Plaintiff’s Requests for Admission and moved for protection to answeron the same. The basis of his argument was that similar questions were asked during Defendant’s deposition. It took several teleconferences, letters, and a motion to compel hearing on January 25, 2008 to force Defendant to respond to some key discovery requests. It should be noted that this Court overruled nearly every objection which was at issue (save and except a few overly broad objections) at this hearing.
15.     After this hearing, Defense counsel threatened to retaliate against Plaintiff’s counsel with frivolous discovery abuse because the Court agreed with Plaintiff’s Motion to Compel. Plaintiff’s counsel preemptively addressed this threat to avoid unnecessary Court intervention. See Attached Exhibit “E” (January 25, 2008 letter to Defense Counsel).
16.     Not until February 12, 2008 did Defendant produce a key witness statement of third party Reyna Cernoch. After the motion to compel hearing, it took a few more letters and the threat of this Court’s second intervention to force Defendant to produce Ms. Cernoch’s transcribed recorded statement. See Attached Exhibit “F” (January 29, 2008 letter to Defense counsel). After reviewing this statement, Plaintiff determined that Ms. Cernoch’s deposition was absolutely necessary. After finally obtaining this statementDespite Defendant’s delay tactics, Plaintiff took the necessary measures to obtain her deposition, which included several letters, a subpoena, and coordination with her insurance company and lawyer. Her deposition was not obtained until March 13, 2008. Her statement transcription was not available for expert review until May 1, 2008, less than a month before the discovery period ended.
17.     To this date, it is still possible that Defendant has not disclosed all of the witness statements and photographs his insurance company obtained. At Plaintiff’s expert’s deposition, Defense counsel displayed photographs not previously produced to Plaintiff. Due to the consistent discovery obstructions, Plaintiff requires time to ensure that Defendant has properly responded to all outstanding discovery requests and complied with this Court’s Order on Plaintiff’s Motions to Compel by subpoena if necessary.   


CONCLUSION
18.     Plaintiff has exercised due diligence in conducting discovery. However, Defendant has obstructed the discovery process and thereby unfairly prejudiced Plaintiff from presenting his case based on the facts and the law. Plaintiff therefore requires at least 90 more days to complete discovery and prepare for trial.
C. PRAYER
19.     For these reasons, Plaintiff asks the court to continue this lawsuit for at least 90 days or after September 22, 2008, and after the hearing to grant Plaintiff’s Opposed Motion for Continuance and sign the attached Order.
Respectfully submitted,
R. JAMES AMARO, P.C.


By:__________________________

                                   Attorney for Plaintiff


CERTIFICATE OF SERVICE
I certify that on the ______ day of June 2008, a true and correct copy of the foregoing instrument, all the attached exhibits and the proposed Order to Continue Trial Setting and New Docket Control Order has been forwarded by fax/certified mail, return receipt requested to:

                                   __________________________
                                   R. James Amaro


NO. 2007-17898

FERNANDO DEHOYOS               §     IN THE DISTRICT COURT OF
                              §
                              §     
                      ;         §                  
VS.                               §     HARRIS    COUNTY,   T E X A S
                              §
                              §
GLENN S. OKUMA                    §     333rd        JUDICIAL    DISTRICT

ORDER TO CONTINUE TRIAL SETTING
AND NEW DOCKET CONTROL ORDER

ON THIS DAY CAME TO BE HEARD:
     Plaintiff’s Opposed Motion for Continuance. After considering the merits of the arguments from the motion, this Court finds that it should be GRANTED. It is therefore:
     ORDERED, ADJUDGED AND DECREED that this case shall be taken off the current trial and the trial and all deadlines be reset pursuant to the Court's order.


SIGNED ON THIS ______ DAY OF JUNE, 2008.


          

                                   _________________________________
     JUDGE PRESIDING

APPROVED AS TO FORM:

_________________________

CERTIFICATE OF SERVICE
     I certify that on the ______ day of March 2008, a true and correct copy of the foregoing instrument has been forwarded by fax/certified mail, return receipt requested to:
Via Facsimile: (NNN) NNN-NNNN
Roger Sullivan
G. XXXXX XXXXX & Associates
440 Louisiana, Suite 1000
Houston, Texas 77002
Attorney for Defendant









NO. 2007-17898

FERNANDO DEHOYOS               §     IN THE DISTRICT COURT OF
                              §
                              §     
                      ;         §                  
VS.                               §     HARRIS    COUNTY,   T E X A S
                              §
                              §
GLENN S. OKUMA                    §     333rd        JUDICIAL    DISTRICT

NOTICE OF HEARING
TO:     (opposing counsel).

     Please take Notice that on June 13, 2008, at 10:00 am, Plaintiff’s Opposed Motion for Continuance will be heard by the Court.


Respectfully submitted,

By:__________________________







CERTIFICATE OF SERVICE
     I certify that on the ______ day of June 2008, a true and correct copy of the foregoing instrument has been forwarded by fax/certified mail, return receipt requested to:
Via Facsimile: (NNN) NNN-NNNN
Roger Sullivan
G. XXXXX XXXXX & Associates
440 Louisiana, Suite 1000
Houston, Texas 77002
Attorney for Defendant

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