NO. 2002-42081

COMMISSION FOR LAWYER                 §          IN THE DISTRICT COURT
DISCIPLINE                                                 §
                                                                        §
V.                                                                    §          HARRIS COUNTY, TEXAS
                                                                        §
JOHN WORLDPEACE                                §          269TH JUDICIAL DISTRICT

COMES NOW, WorldPeace and files this WORLDPEACE’S MOTION FOR ORDER OF SEVERANCE and would show the court the following.

FACTS

During pre-trial of this matter, the court orally ordered WorldPeace’s mandatory counterclaims against complainants Lang and Apodaca severed, ordered WorldPeace’s mandatory constitutional counterclaims severed, made no verbal order specifically with regards to WorldPeace’s mandatory counterclaim for intentional infliction of emotional distress. The court did reiterate its severance by ordering that only WorldPeace’s violations of the TDRPC would be tried.

The court indicated that it would try WorldPeace’s mandatory counterclaims against the complainants separately from WorldPeace’s mandatory constitutional counterclaims.

The trial did in fact only try the violations of the TDRPC.

The court never signed an order severing the case per the local rules. Therefore, per the local rules the severed parts of the cases were never assigned new case numbers (alpha extension to the numeric cause of action) per the local rules.

After the trial of the TDRPC violations, the Commission filed a Motion for No-Evidence Summary Judgment under the main cause number which had already been tried to conclusion. Therefore, the Commission’s Motion for No Evidence Summary Judgment cannot be considered by this court anymore than if it was filed in a completely different cause number having no relationship to this lawsuit. One of the fundamental requirements of filing a Motion in any lawsuit is to file it in under the proper cause number.

Lawsuits are severed so that the judgments on the severed parts can be appealed separately from the other severed parts of the lawsuit. There can be only one final judgment in any particular cause number. In Harris County, it is required by the local rules that a severed case be renumbered such that the severed parts of the case have their own cause number and can therefore proceed independently of the other severed parts.

WorldPeace would show the court that he was required to file his amendments regarding his constitutional counter claims under the cause number that was allocated by the local rules to the violations of the TDRPC.

WorldPeace has as of the date of this filing also supplemented his mandatory counterclaims against the complainants by adding his counterclaims against Johnell Collins, which WorldPeace asserts was tried in the 281^st District Court, but which this court retried in part in this lawsuit; presumably this court determined that it had dominant jurisdiction over the 281^st District Court and the Final Judgment in that matter will therefore eventually be vacated. If this court has dominant jurisdiction the case in chief tried in the 281^st and mandatory counterclaim in this case must be retried in this court.

ARGUMENT

WorldPeace would show the court that the court indicated that there should have been at least three severed lawsuits; 1) the TDRPC violations, 2) the mandatory counterclaims against the complainants, 3) the mandatory constitutional counterclaims. There was no indication by the court if WorldPeace’s cause of action for intentional infliction of emotional distress would be tried with one of the other severed parts or would become a severed lawsuit by itself.

WorldPeace would also show the court that his Rule 13 TRCP and Chapter 9 and 10 Texas Civil Practice and Remedies Code requests for sanctions against the Commission and its attorneys apply separately to each severed case and WorldPeace will reassert his requests for sanctions separately as soon as the lawsuit is properly severed.

WorldPeace would show the court that this case cannot move forward without a written severance order. Without a written severance order per the local rules, all of the motions and amended pleadings will stay jumbled up in the TDRPC part of the case that has already been tried.

WorldPeace would show the court that he cannot proceed with discovery in the balance of this lawsuit without a severance order.

WorldPeace would show the court that no Motions can be considered by the court until they can be filed under the proper case number and this cannot be done until the court signs an order which will allow the District Clerk to assign case numbers to the severed parts of the case.

CAVEAT

WorldPeace would also show the court that to sever the mandatory counterclaims would be an abuse of discretion per the case law per Exhibit “A” attached.

WorldPeace would show the court that this lawsuit cannot move forward without a severance order. WorldPeace would show the court that no motions that have been filed can be considered by the court until a severance order is signed because motions must be filed under the proper cause number and right now that is not possible.

Each of the severed part of this lawsuit must proceed separately and cannot after severance continue to be tried under the original cause number per the local rules.

Therefore, until this lawsuit is severed, the court cannot consider WorldPeace’s Motion to Compel Production from the Commission nor the Commission’s Motion for No Evidence Summary Judgment.

WorldPeace moves the court to set a hearing on the severance issue.

PRAYER

Wherefore, premises considered, WorldPeace prays this court set a hearing on WorldPeace’s Motion for Order of Severance and to sign an order severing the case in chief and for such other and further relief at law or in equity as this court deems proper.

                                                                        Respectfully submitted,

                                                                        __________________________________
                                                                        John WorldPeace
                                                                        TBA No. 21872800
                                                                        2620 Fountain View, Suite 106
                                                                        Houston, Texas   77057
                                                                        Tel:  713-784-7618
                                                                        Fax:  713-784-9063

CERTIFICATE OF SERVICE

    I certify that a true and correct copy of the foregoing pleading was forwarded to opposing counsel on August 5, 2003 by fax.

                                                                    ______________________________
                                                                    John WorldPeace

EXHIBIT “A”

 Case Law
Abuse of Discretion

     We find the trial court further erred in severing appellant’s cross action because same is based upon identical facts and issues growing out of and connected with appellee’s cause of action against him.  Such cross action or counterclaim is styled ‘compulsory counterclaims,’ under (a), Rule 97, Texas Rules of Civil Procedure.  It is mandatory to file such action in the cause of action set up by the opposing party in order to avoid circuity of action, inconvenience, expense and consumption of the court’s time in trying said cross action in an independent suit.  We deem if it is necessary to file such cross action that it is also imperative to try it in the same cause.  See notes under Rule 97, sec. (a).
    We do not find, as contended by appellee, that section (b) under Rule 174, T.R.C.P., is sufficiently broad to grant a trial court authority to sever causes of action relating to the same subject matter, such as the one before this court.
       Judgment of the trial court is reversed and the cause remanded for another trial not inconsistent with this opinion.
     Ulmer v. Mackey, 242 SW2d 679, 682 (Tex. App. – Fort Worth, 1951)

             We deem if it is necessary to file such cross action that it also imperative to try it in the same cause. ‘This same case also points out that the purpose of rule 97(a) is to ‘avoid circuity of action inconvenience, expense and consumption of the court’s time in trying said cross action in an independent suit’.
      Bolding v. Chapman, 394 SW2d 862, 864 (Tex. App. - Austin, 1965)

             We are of the opinion that appellants’ contention must be sustained.  As we construe the pleadings of the parties, they do not present two distinct lawsuits subject to a severance under the Rules of Civil Procedure No. 41.
            The whole controversy grows out of but one transaction and should be tried in one case.
            ***Our courts have always frowned upon piecemeal trials, deeming the public interest, the interests of litigants and the administration of justice to be better served by rules of trial which avoid a multiplicity of suits.***
            We have direct authority that it was error for the trial court to sever the cross action of defendants Ulmer v. Mackey, Tex.Civ.App., 242 SW2d 679.
            *** We find the trial court further erred in severing appellant’s cross action because same is based upon identical facts and issues growing out of and connected with appellee’s cause of action against him.  Such cross action or counterclaim is styled ‘compulsory counterclaims,’ under (a), Rule 97, Texas Rules of Civil Procedure.  It is mandatory to file such action in the cause of action set up by the opposing party in order to avoid circuity of action, inconvenience, expense and consumption of the court’s time in trying said cross action in an independent suit.  We deem if it is necessary to file such cross action that it is also imperative to try it in the same cause.  See notes under Rule 97, sec. (a).***
            Since the trial court erred in granting a severance in this case, it is our opinion that the judgment of the trial court should be reversed and the cause remanded to that court for another trial.
    Spangler v. Hickey, 401 SW2d 721, 723 (Tex. App. – Tyler, 1966)

 A counterclaim meets the provisions of Rule 97(1), T.R.C.P., which states:
    ‘Compulsory Counterclaims.  A pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of the pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
    The trial court abused its discretion in severing the Bank’s claim from Bohart’s compulsory counterclaim arising out of and turning upon the same facts.
    We hold the compulsory counterclaim of Bohart and the Bank’s claim involve identical facts, issues, and subject matter, and are so interwoven a severance would occasion unnecessary litigation and a multiplicity of suits.  As stated in 3 McDonald, Texas Civil Practice § 10.25 (1970).
    “…The trial court should not sever the plaintiff’s claim from the defendant’s compulsory counterclaim, or a cross-claim between defendants, arising out of and turning upon the same facts…”
    The granting of the severance was an abuse of discretion.  Bates v. First National Bank of Waco, 502 SW2d 181 (Tex.Civ.App. – Waco 1973, no writ).
    We can find nothing in the record to cause us to change the judgment heretofore entered.  The motion for rehearing is overruled.
    Bohart v. First National Bank in Dallas, 536 SW2d 234, 235-6 (Tex. App. – Eastland, 1976)

 “For a severance to be proper, the following elements are necessary: (1) the controversy must involve more than one cause of action, (2) the severed cause must be one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed causes must not be so intertwined as to involve the same identical facts and issues.”  Straughan v. Houston Citizens Bank & Trust Co., 580 SW2d 29, 33 (Tex.Civ.App. – Houston [1^st Dist.] 1979, no writ).  Broad discretion is given to the trial court to determine joinder of parties and severances, and a trial court’s ruling will not be disturbed absent a showing of an abuse of discretion.  Squires v. Squires, 673 SW2d 681, 684 (Tex.App. – Corpus Christi 1984, no writ).  Severance is appropriate if the controversy involves two or more distinct causes of action, Duke v. Merkin, 599 SW2d 877 (Tex.Civ.App. – El Paso 1980, no writ); however, an order that splits a single cause of action, or that serves compulsory counterclaims from the primary suit, will constitute an abuse of discretion.  See Nueces County Hospital District v. Texas Health Facilities Commission, 576 SW2d 908 (Tex.Civ.App. – Austin 1979, no writ).
    These pleadings clearly illustrate that the alleged personal injury and property claims arose from a single wrongful act and should not be severed.
    In light of these findings, we hold that the order entered by the respondent on May 13, 1985, severing personal injury claims from property claims, was improper and therefore an abuse of discretion.
    Ryland Group, Inc. v. White, 723 SW2d 160, 161-2 (Tex. App. – Hous. (1 Dist.) 1986)

 It has long been the policy of the courts and the legislature of this state to avoid multiplicity of lawsuits.  The need for judicial economy has recently become more acute because the dockets of our trial courts are overburdened, and litigants must wait far too long for their cases to be heard.  In keeping with the policy to avoid multiple lawsuits, Texas Rule of Civil Procedure 97(a) was promulgated.  This rule regarding compulsory counterclaims dictates that a pleading shall assert a counterclaim if it meets six elements.  A counterclaim is compulsory if: (1) it is within the jurisdiction of the court; (2) it is not at the time of filing the answer the subject of a pending action; (3) the action is mature and owned by the pleader at the time of filing the answer; (4) it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; (5) it is against an opposing party in the same capacity; and (6) it does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.  See Tex.R.Civ.P. 97(a), (d); see also 2 R. McDonald, Texas Civil Practice in District and County Courts § 7.49, at 253-54 (rev. 1982).  If a claim meets these elements, it must be asserted in the initial action.  A defendant’s failure to assert a compulsory counterclaim precludes its assertion in later actions.  Gray v. Kirkland, 550 SW2d 410, 411 (Tex.Civ.App. – Corpus Christi 1977, writ ref’d n.r.e.); see counterclaim under the requirements of Rule 97(a).
    Wyatt v. Shaw Plumbing Company, 760 SW2d 245, 246-7 (Tex. 1988)

 Although the trial court has broad discretion in ordering severances, the severance of a compulsory counterclaim which arises out of the same contract or issue that is the subject of the suit, constitutes an abuse of discretion and is reversible error.  Ryland Group, Inc. v. White, 723 SW2d 160 (Tex. App. – Houston [1^st Dist.] 1986, no writ).
    Mathis v. Bill de la Garza & Associates, P.C., 778 SW2d 105, 106-7 (Tex. App. – Texarkana, 1989)

     We will first address whether the severance was proper under the Texas Rules of Civil Procedure and case law.  If it was not, then the sanctions order was interlocutory and non-appealable.  In that case, this Court would be without jurisdiction and dismissal of the appeal would be the appropriate disposition.  Baker v. Hansen, 679 SW2d 480 (Tex. 1984).  On the other hand, if the severance was proper, we must next determine whether the sanctions imposed represent an abuse of the trial court’s discretion.
    Trial court possess broad discretion in severing and proceeding separately with “[a]ny claim against a party.” Tex.R.Civ.P. 41.  The decision to grant a severance will not be disturbed unless the trial court has abused its discretion.  Guaranty Federal Savings Bank v. Horseshoe Operating Company, 793 SW2d 652 (Tex. 1990).  The severance of a claim is proper if (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involved the same facts and issues.  Id. at 658.  The principle reasons for granting a severance “are to do justice, avoid prejudice and further convenience.”  Id. at 658.
    The first two criteria are readily satisfied since the controversy between Stephens and Cass involve a number of causes of action, any one of which could have been independently asserted.  It is the third requirement for a proper severance that is not so easily satisfied.  The counterclaim asserted by Cass against Stephens was a compulsory claim under Tex.R.Civ.P. 97 since it arose out of the same transaction or occurrence that is the subject matter of Stephens’ claims against Cass and did not require for adjudication the presence of a third party.  Mathis v. Bill de la Garza & Associates, 778 SW2d 105, 106 (Tex.App. – Texarkana 1989, no writ).  Although the severance of a compulsory counterclaim ordinarily constitutes an abuse of discretion and is reversible error, Id. at 106, that would not be true if the order disposing of the counterclaim amounted to a final judgment.
    In the absence of a valid severance, there is no final judgment before us.  Discovery sanctions are not appealable until the trial court renders a final judgment.
    Transamerican Natural Gas Corporation v. Powell, 811 SW2d 913 (Tex. 1991) and Branden v. Downey, 811 SW2d 922 (Tex. 1991) before proceeding further with the case.
    Cass v. Stephens, 823 SW2d 731, 733-4 (Tex. App. – El Paso 1992)

In the first point of error, Fuentes contends that the trial court erred in severing his compulsory counterclaim from the trial on the merits.  The counterclaim alleged fraud in the inducement as well as a violation of the Texas Deceptive Trade Practices – Consumer Protection Act.
    Significantly, Texas jurisprudence states that an order that severs a compulsory counterclaim from the main lawsuit constitutes an abuse of discretion.
    The Texas Supreme Court has adopted a six-part test for determining when a claim is compulsory rather than permissive.  Wyatt v. Shaw Plumbing Company, 760 SW2d 245, 247 (Tex. 1988).
    The facts necessary to prevail in the counterclaim are identical to the facts necessary to prove the breach of contract cause of action.
    Based on the above information, we find that the counterclaim is compulsory and the trial court improperly severed the claim from the main cause of action.  Consequently, the trial court’s severance constituted an abuse of discretion.  Point of Error No. One is sustained.
    Based on the disposition of Point of Error No. One, the judgment of the trial court is reversed, and the cause is remanded for the purpose of litigating the compulsory counterclaim with the main cause of action.
    Fuentes v. McFadden, 825 SW2d 772, 779-80 (Tex. App. – El Paso 1992)

 The Restatement of Judgments also takes the transactional approach to claims preclusion.  It provides that a final judgment on an action extinguishes the right to bring suit on the transaction, or series of connected transactions, out of which the action arose.  Restatement of Judgments § 24(1).  A “transaction” under the Restatement is not equivalent to a sequence of events, however, the determination is to be made pragmatically, “giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a trial unit conforms to the parties’ expectations or business understanding or usage.”  Id. § 24(2).
    We conclude that the transactional approach to claims preclusion of the Restatement effectuates the policy of res judicata with no more hardship than encountered under rule 97(a) of the rules of civil procedure.  Modern rules of procedure obviate the need to give parties two bites at the apple, as was done in Griffin, to ensure that a claim receives full adjudication.  Discovery should put a claimant on notice of any need for alternative pleading.  Moreover, if success on one theory becomes doubtful because of developments during trial, a party is free to seek a trial amendment.
    We reaffirm the “transactional” approach to res judicata.  A subsequent suit will be barred if it arises out of the same subject matter of a previous suit and which through the exercise of diligence, could have been litigated in a prior suit.  For these reasons, the judgment of the court of appeals is reversed and that of the trial court is affirmed.
    Barr v. Resolution Trust Corp., Sunbelt Federal Savings, 837 SW2d 627, 631 (Tex. 1992)

 Rule 41 of the Texas Rules of Civil Procedure vest the trial court with broad discretion to sever and order separate trials of causes of action.  Guaranty Federal Sav. Bank v. Horseshoe Operating Co., 793 SW2d 652, 658 (Tex. 1990); U.S. Fire Ins. Co. v. Millard, 847 SW2d 668, 671 (Tex. App. – Houston [1^st Dist.] 1993, orig. proceeding).  The trial court’s discretion is not unlimited, however.  Id. Thus, the trial court’s decision to sever a claim is reversible error if the trial court abused its discretion.  Horseshoe Operating Co., 793 SW2d at 658.
    An order that severs a compulsory counterclaim from the main suit, however, is an abuse of discretion.  Ryland Group, Inc. v. White, 723 SW2d 160, 161 (Tex.App. – Houston [1^st Dist.] 1986, orig. proceeding).  To be compulsory, a counterclaim must: (1) be within the jurisdiction of the court; (2) not be the subject of a pending action at the time of filing the answer; (3) be mature and owned by the pleader at the time of filing the answer; (4) arise out of the transaction or occurrence that is the subject matter of the primary claim; (5) be against the opposing party in the same capacity in which the party brought the suit; and (6) not require the presence of third parties over whom the court cannot acquire jurisdiction for the claim’s adjudication.  Wyatt v. Shaw Plumbing Co., 760 SW2d 245, 247 (Tex. 1988); see Tex.R.Civ.P. 97(a),(d).
    Goins v. League Bank and Trust, 857 SW2d 628, 630 (Tex. App. – Hous. (1 Dist.) 1993)

 It is evident from the final judgment before this court that the trial court did not purport to dispose of all claims, but instead relied on the severance to make the judgment final and appealable.  Therefore, if the severance was improper under the Texas Rules of Civil Procedure and case law, this judgment is “interlocutory and non-appealable [and] this Court would be without jurisdiction and dismissal of the appeal would be the appropriate disposition.”  Cass v. Stephens, 823 SW2d 731, 733 (Tex. App. – El Paso 1992, no writ) (citing Baker v. Hansen, 679 SW2d 480 (Tex. 1984).
    Stroud v. VBFSB Holding Corporation, 901 SW2d 657, 658-9 (Tex. App. – San Antonio 1995)

 Rule 41 of the Texas Rules of Civil Procedure states that any claim against a party may be severed and proceeded with separately.  Tex.R.Civ.P.41.  The rule grants the trial court broad discretion in the matter of severance of causes.  A trial court’s decision to sever will be reversed only upon finding an abuse of discretion.  Id.  However, courts have long recognized that it is an abuse of discretion to grant a severance that splits a single cause of action.
    A “cause of action” consists of a plaintiff’s primary right to relief and the defendant’s act or omission that violates that right.
    Duncan v. Calhoun County Navigation District, 28 SW3d 707, 709-10 (Tex. App. – Corpus Christi 2000)

 Guarantors’ counterclaim was compulsory since it arose out of the same transaction that was the subject matter of Bank One’s suit and did not require for adjudication the presence of a third party.  As a result, the trial court’s severance constituted an abuse of discretion.  Mathis, 778 SW2d at106.  Thus, we must vacate the order of severance.
    Rucker v. Bank One Texas, N.A., 36 SW3d 649, 654 (Tex. App. – Waco 2000

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