![[THE WORLDPEACE SIGN]](wppin.gif)
![[THE WORLDPEACE SIGN]](pinquarter.jpg)
NO. 2002-42081
COMMISSION FOR
LAWYER
§ IN THE DISTRICT COURT
DISCIPLINE
§
§
V. §
§
JOHN WORLDPEACE § 269TH JUDICIAL DISTRICT
RESPONDENT’S SHORT HAND
RENDITION REGARDING
RESPONDENT’S MOTION FOR NEW TRIAL,
RESPONDENT’S MOTION TO MODIFY,
AND PETITIONER’S motion for SUMMARY
JUDGMENT
COMES
NOW, WorldPeace, and files this RESPONDENT’S SHORT HAND RENDITION REGARDING
RESPONDENT’S MOTION FOR NEW TRIAL, RESPONDENT’S MOTION TO MODIFY, AND
PETITIONER’S SUMMARY JUDGMENT, and would show the court the following:
SUMMARY
This
brief is for the purpose of creating a short hand rendition of the major
problems with the court’s
WorldPeace prays the court to take judicial notice of the contents of the file.
TABLE OF CONTENTS
I. THE COMMISSION’S SECOND
AMENDED MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT………………………………………….…………………………….
II. WORLDPEACE’S MOTION TO
VACATE, MODIFY, OR CLARIFY THE
III. WORLDPEACE’S MOTION FOR
JNOV AND MOTION FOR NEW TRIAL………..
IV. ABUSE OF
DISCRETION…………………………………………………………………..
i. THE COMMISSION’S SECOND AMENDED MOTION FOR
NO-EVIDENCE Summary Judgment
The court’s order granting the Commission’s Motion for Summary Judgment did not contain a mother hubbard clause. Therefore, all issues and parties in DEFENDAN’T SEVENTH AMENDED ORIGINAL ANSWER AND COUNTERCLAIM AND THIRD PARTY CLAIMS not specifically addressed in the Commission’s Second Amended Motion for No-evidence Summary Judgment and not tried (only the rule violations were tried) (Exhibit “B”) were not adjudicated and the August 27, 2003, Judgment for Disbarment is interlocutory because it is not a final judgment per Rule 301 TRCP.
NOTE: It is an abuse of discretion for the court to
use a “mother hubbard” clause as a vehicle to arbitrarily dismiss issues and
parties which have not been adjudicated.
A.
The following issues in DEFENDANT’S SEVENTH AMENDED ORIGINAL ANSWER AND
THIRD PARTY CLAIMS were not addressed in the Commission’s Second Amended Motion
for No Evidence Summary Judgment nor were they tried to the jury.
1. WorldPeace’s defense regarding a “suit within
a suit”.
2.
WorldPeace’s Constitutional counterclaim for violations of his Constitutional
rights against self incrimination.
(Under the heading regarding Rule 801 and 804 TDRPC)
3.
WorldPeace’s affirmative defense of Res
Judicata regarding Johnell Collins and the Commission.
4. WorldPeace defense and Constitution
counterclaim regarding multiple complainants in one disciplinary petition.
Since
the above issues were not adjudicated, the
B.
The ELEMENTS of the following issues in WorldPeace’s Seventh Amended
Original Answer and Counterclaim that were listed in the Commission’s Second
Amended Motion for No-Evidence Summary Judgment were not specifically listed as
mandated by Rule 166a(i). (No elements)
1. WorldPeace’s equal protection rights
2. WorldPeace’s issue regarding awarding attorney
fees to the Commission and WorldPeace’s counterclaim for attorneys fees.
3. Violations of
WorldPeace Constitutional due process rights
4. WorldPeace issue regarding unconstitutional
range of punishment
5. WorldPeace’s Constitutional counterclaims regarding
oppressive, arbitrary, and capricious nature of the Texas Rules of Disciplinary
Procedure.
5. WorldPeace’s counterclaims for Rule 13 TRCP
and Chapter 9 & 10 TCP & RC violations (The Commission did not list all
the elements in Chapter 9 & 10).
It was an abuse of discretion for the
court to grant a summary judgment on these issues where the Commission did not
follow the mandatory (MUST) dictates of Rule 166a(i) TRCP and specifically list
the ELEMENTS of the issues which the Commission claims WorldPeace had no
evidence.
Since
the ELEMENTS of these issues were not specifically identified by the Commission
in its Second Amended Motion for No-Evidence Summary Judgment, they could not be
adjudicated and the August 27, 2003, Judgment for Disbarment is interlocutory
per Rule 301 TRCP.
TRCP Rule 166a(i)
states, to wit: After adequate time for
discovery, a party without presenting summary judgment evidence may move for
summary judgment on the ground that there is no evidence of one or more
essential elements of a claim or defense on which an adverse party would have
the burden of proof at trial. The motion must state the elements as to
which there is no evidence. The
court must grant the motion unless the respondent produces summary judgment
evidence raising a genuine issue of material fact.
“The
motion must be specific in alleging a lack of evidence on an essential element
of a cause of action, but
need not specifically attack the evidentiary components that may prove an
element of the cause of action.”
Miller v. Elliott, 94 S.W. 3d 38, 42 (
“After adequate time for discovery and
without presenting summary judgment evidence, a party is permitted by rule of
civil procedure 166a(i) to move for summary judgment on the ground that no
evidence supports one or more essential specified elements of an adverse
party’s claim or defense on which the adverse party would have the burden of
proof at trial.”
Howell v. Hilton Hotels Corp, 84 S.W. 3d
708, 715 (
“The motion for summary judgment may not be general, but must state
the elements on which there is no evidence”
Jordan v. Landry’s Seafood
Restaurant, Inc., 89 S.W. 3d 737, 741 (
C.
WORLDPEACE’S SEVENTH AMENDED ORIGINAL ANSWER AND COUNTERLAIM AND THIRD
PARTY CLAIMS timely filed seven days prior to the date of the Commission’s
submission date of July 28, 2003, for its Second Amended Motion for No-Evidence
Summary Judgment, added a cause of action for injunctive relief that was not pled in the Commission’s Second
Amended Motion for No-Evidence Summary Judgment.
Because the
injunction issue was not pled in the Commission’s Second Amended Motion for No-Evidence
Summary Judgment, it was not adjudicated and the
“Jones is not inconsistent with
our holding today to the extent Jones is understood as approving suits for
injunctive relief.”
City of
“In
Bouillion, the
O’Bryant
v. City of
“However,
suits brought pursuant to constitutional provisions are limited to equitable
relief and do not allow a claim for monetary damages except to the extent
specifically enunciated in the constitutional provision.”
D.
The Commission entered a general demurrer when it wrongly stated in
its Second Amended Motion for No-evidence Summary Judgment that the only cause
of action for Constitutional violations that Respondent WorldPeace had was
provided by 42 USCA § 1983. (See Page 7, last sentence in the Commission’s
Second Amended Motion for No-evidence Summary Judgment) WorldPeace never pled for damages related to
his Constitutional issues but pled only for injunctive relief.
Summary judgment should not be
based on a pleading deficiency such as whether a cause of action has been
sufficiently pled. Massey v. Armco Steel Co., 652 S.W. 2d 932,
934 (
Garza v. State of
In
general, it is improper to grant a summary judgment on a deficient pleading’s
failure to state a cause of action when the deficiency can be attacked through
a special exception.
Lewis v. Skippy’s Mistake Bar, 944
S.W. 2d 1, 1 (Tex. App. – Fort Worth 1996)
Texas
does not have a general demurrer due to Rule 90 TRCP and therefore the
Commission was required to file a motion for special exceptions before
WorldPeace’s Constitutional issues or any other non TDRPC Rule issues (which
were tried) could be dismissed by summary judgment.
Since
the Commission did not file for special exceptions, the issues listed in Section
I. A, B and C were not adjudicated and
therefore the
II. MOTION TO VACATE, MODIFY,
CLARIFY THE
A. THE JUDGMENT FOR DISBARMENT
A. All the issues that were not addressed in the
Commission’s Second Amended Motion for No-evidence Summary Judgment, (Section
I. A & C) and all the issues for which the Commission did not specifically
list the ELEMENTS of which there was no evidence, (Section I. B above) and issues
that were not TDRPC Rule violations that were tried to the jury, were not adjudicated. Therefore the
B. In addition, Respondent’s supplemental petitions
for 1) Declaratory Relief filed on August 13, 2003, and 2) counterclaims
against Johnell Collins filed on August 5, 2003, were not adjudicated, severed
or specifically addressed in the August 27, 2003, Judgment for Disbarment.
The court stated
these issues were not a part of the Commission’s Second Amended Motion for
No-evidence Summary Judgment but did not in its
Therefore, the
C.
The Attorney General is a party to the underlying lawsuit and has been
served but has not answered.
Therefore, the
D. On
B. RULE
174(B) AND RULE 41 TRCP
The court stated
in pretrial and post trial that the mandatory counterclaims by Respondent
against the claimants were severed per Rule 41 TRCP. (Exhibit “B”)
The court’s
“Appellee argues that the
trial court’s order can be construed as an order for separate trial of issues
as permitted by
Mathis v. Bill de la Garza &
Associates, P.C.; 778 S.W. 2d 105, 106 (Tex. App. – Texarkana 1989)
The April 23, 2003, Judgment for Disbarment
made no reference to any cause of action outside the TDRPC Rule
violations. It was intended to be a
final judgment regarding the Rule violations which had been severed.
However, since no
severance order was entered, the April 23, 2003, Judgment for Disbarment became
a global final judgment.
The court ordered a severance of WorldPeace’s Lang and Apodaca counterclaims on August 27, 2003, and a Rule 174(b) separate trial ruling in its August 27, 2003 Judgment for Disbarment which was contrary to the court’s Rule 41 TRCP separate lawsuit rulings in response to the Commission’s Motion to Sever at pretrial. The court reiterated the severance in post trial.
The Commission
filed a Petition for Severance on
Further,
Rule 174(b) TRCP does not use the word sever.
Only Rule 41 TRCP uses the word sever.
The law is based upon precise legal terms
and definitions. The court never stated
its severance ruling in terms of Rule 41 TRCP or Rule 174(b) TRCP but only used
the word SEVER regarding WorldPeace’s Lang, Apodaca, constitutional and
intentional infliction of emotional distress claims as well as the TDRPC
violations.
WorldPeace was disadvantaged because WorldPeace would have tried the case differently had WorldPeace understood the court’s ruling to mean Rule 174(b) TRCP separate trials.
WorldPeace would
have pointed out to the court how the Constitutional issues impacted and
interrelated on the various TDRPC violations to show the court that Rule 174(b)
TRCP separate trials would be an exception to the discretion afforded a judge under
Rule 174(b) TRCP. Rule 174(b) TRCP does
not allow the court to try liability and damages separately.
Our conclusion is that
although the discretion lodged in trial judges by Rule 174(b) in ordering
separate trials of ‘issues’ is indeed broad and realistic, it does not
authorize separte trials of liability and damage issues in personal injury
litigation.
Iley v. Hughes; 311 S.W. 2d
648, 651 (
Rule
174 provides in pertinent part as follows:
(b)
Separate Trials.
The
court in furtherance of convenience or to avoid prejudice may order a separate
trial of any claim, cross-claim, counterclaim, or third-party claim, or of any
separate issue or any number of claims, cross-claims, counterclaims, third-party
claims, or issues.
A
reading of this rule makes it clear that it is for the convenience of the court
and to avoid prejudice. Separate trials, under rule 174, involve interlocutory
orders determining the claims or issues tried, but there is only one final
judgment which is entered after all the claims and issues involved have been
tried. An issue that has been tried under rule 174 does not necessarily
constitute a complete lawsuit.
Severance
is possible only where the suit involves two or more separate and distinct
causes of action. Each of the causes under which the action is severed must be
such that the same might be properly tried and determined if it were the only
claim in controversy.
A distinction between separate
trials as provided in rule 174 must be made with a severance that is allowed
under rule 41, which provides that "any claim against a party may be
severed and proceeded with separately." Severance divides a law suit into
two or more independent causes, each of which terminates in a separate, final
and enforceable judgment. Kansas University Endowment Association v. King,
supra.
Vautrain
v. Vautrain; 646 S.W. 2d 309, 309 (Tex. App. – Fort Worth 1983)
WorldPeace had a right to rely on the fact that the court’s wrongful
Rule 41 TRCP severance of WorldPeace’s mandatory counterclaims would be reversed
by the appeals court and to proceed with trial with this knowledge.
WorldPeace has a right to expect the
court to know the nuances of the law and a right to expect the court to use
statutory terms properly in his rulings.
WorldPeace has a right to expect the
court to understand that the meaning of the word sever refers to Rule 41 TRCP
and only Rule 41 TRCP and not Rule 174(b) TRCP.
C. SEVERANCE
To sever Mandatory
Counterclaims is an abuse of discretion.
This court, on
D. RES
JUDICATA AND THE JOHNELL COLLINS COMPLAINT
It was an abuse of discretion for this court to retry the Collins matter. Collins could not sue for restitution because she did not counterclaim for restitution in the WorldPeace v. Collins lawsuit in the 281st District Court. The Commission takes on the common law rights of a complainant, if the complainant has any rights, per Rule 406(A) TRDP.
So if Collins had no rights for restitution because she did not file a counterclaim in the WorldPeace v. Collins lawsuit and was bared by res judicata, the same applies to the Commission. Therefore, the Commission could not file for restitution in the Commission v. WorldPeace lawsuit.
Rule
4.06
The
Commission has the following duties and responsibilities: A. To exercise, in lawyer disciplinary and
disability proceedings only, all rights characteristically reposed in a client
by the common law of this State, except where such rights are expressly hereby
granted to a Committee. Each Committee
possesses all rights characteristically reposed in a client by the common law
of this State relative to Complaints being handled by such Committee until
either: (i) twenty days after a Just Cause determination has been made; or (ii)
a Disciplinary Action is filed in a court of competent jurisdiction.
As
a matter of law, under section 4.06, the Commission for Lawyer had the right to
prosecute O’Hare’s complaint against appellant.
Wade v. Commission for Lawyer
Discipline, 961 SW2d 366, 372 (Tex. App. Houston [1st Dist.] 1997)
Res judicata prevents parties and
their privies from relitigating a cause of action that has been finally
adjudicated by a competent tribunal.
Also precluded are claims or defenses that, through diligence should
have been litigated in the prior suit but were not.
There
are six factors which determine whether a lawsuit is barred by res judicata
because it was a compulsory counter-claim in the underlying lawsuit.
1)
The counter-claim is within the jurisdiction of the court (2) The counter-claim is not at the time of
filing the answer the subject of a pending action. 3) The
claim is mature and owned by the defendant (the Plaintiff in this lawsuit) at
the time of filing the answer. 4) The
counter-claim arose out of the same transaction or occurrence that is the
subject matter of opposing party's claim.
5) The counter-claim is against an opposing party in the same
capacity 6) The counter-claim does not require the
presence of third parties over whom the court cannot acquire jurisdiction. A
claim having all these elements must be asserted in the initial action and
cannot be asserted in a later action.
Ingersoll-Rand
Co. v. Valero Energy Corp., 999 SW2d 203, 206-207 (
Rule 97(a)
Compulsory Counterclaims. A pleading shall state as a counterclaim any
claim within the jurisdiction of the court, not the subject of a 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 Commission responded to several motions filed by WorldPeace in the WorldPeace v. Collins lawsuit in the 281st District Court, where WorldPeace originally filed his answer to the Commission’s disciplinary petition.
In addition, the
Commission filed a Plea to the Jurisdiction in the WorldPeace v. Collins lawsuit.
The Plea to the Jurisdiction
was never granted by the 281st District Court. A final nunc pro tunc judgment was signed by
the court on
The Commission’s causes of action against WorldPeace regarding Collins were adjudicated in the 281st District Court and were barred by res judicata in the underlying disciplinary petition.
The Commission was never dismissed from the 281st District Court lawsuit and so it was barred by res judicata from filing against WorldPeace in the underlying disciplinary petition.
Rule
3.01
The current proposed
changes to the TRDP still do not allow the Commission to add disciplinary
petitions per Rule 3.01 to an existing disciplinary petition. They still MUST be filed with the Clerk of
the Supreme Court.
The court had no jurisdiction to try the five additional grievances added to the original disciplinary petition in this lawsuit.
E. EFFECTIVE
DATE OF DISBARMENT
The trial court cannot make a disbarment
effective until it loses it plenary power.
The trial court attempted to make WorldPeace’s Judgment for Disbarment
effective long before the court was to lose its plenary power. The court still has its plenary power and
will not lose it before
The Judgment for Disbarment must be
modified to reflect this.
“While
it is true that there can be only one final appealable judgment in any lawsuit,
Woosley v. Smith, 925 S.W. 2d 84, 87
(Tex. App. – San Antonio 1996)
III. MOTION FOR JNOV AND NEW
TRIAL
ISSUE FOUR
Did the trial court abuse its discretion by
finding violations of Rule 1.03 TDRPC by WorldPeace when the Commission for
Lawyer Discipline did not offer expert testimony at trial regarding a
“reasonably prudent attorney” which is a necessary element of Rule 1.03 (a)
& (b) TDRPC?
AUTHORITIES
Rule 1.03
(a) A lawyer shall keep a client reasonably
informed about the status of a matter and promptly comply with reasonable
requests for information.
(b) A lawyer shall explain a matter
to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation.
Terminology –
“Reasonable” or “Reasonably” when used in
relation to conduct by a lawyer denotes the conduct of a reasonably prudent
and competent lawyer.
In
Hall v.
ARGUMENT
WorldPeace
would show the court that the significant attorney malpractice law in this
state requires an expert attorney witness to prove up the standard of care of a
“reasonably prudent attorney”.
WorldPeace would show that the terminology section of the TDRPC defines
the “reasonable” and “reasonably” essential elements of Rule 1.03 (a) & (b)
as applying to a “reasonably prudent attorney”.
The
Commission did not designate an expert witness per Hall to testify as to the duty owed the complainants by a
“reasonably prudent attorney”.
WorldPeace
designated himself as an expert witness 58 days prior to trial but the court
abused it discretion and refused to allow him to testify as an expert allegedly
because WorldPeace did not designate himself in a timely manner.
WorldPeace
would show the court that without considering the fact that WorldPeace was not
allowed to testify as an expert witness, the fact remains that the Commission
did not prove up the essential element of “reasonable” of Rule 1.03 (a) &
(b) because it did not designate or call an expert attorney witness for that
purpose per Hall.
WorldPeace
would therefore show the court that the
trial court abused its discretion allowing the jury to find that WorldPeace
violated Rule 1.03 (a) & (b) in the underlying lawsuit without the
testimony of an expert witness and therefore all the Rule 1.03 (a) & (b)
violations regarding the various complainants should be vacated.
WorldPeace would show that the trial court also abused its discretion by not allowing WorldPeace to testify as an expert witness.
ISSUE FIVE
Did the trial court abuse its discretion by
sanctioning WorldPeace for violations of Rule 8.04 (a) (8) TDRPC and Rule 1.06
(Q)(4) of TRDP for relying on the Fifth Amendment of the Federal Constitution
and Article I, section 10 of the Texas Constitution?
AUTHORITIES
The Fifth Amendment can be asserted
in both civil and criminal trials “wherever the answer might tend to subject to
criminal responsibility him who gives it.
Generally, the exercise of the privilege should not be penalized. Spevack v. Klein, 385
Texas Department of Public Safety
Officers Association v.
897 SW2d 757, 760 (
We
conclude that Cohen v. Hurley should be overruled, that the Self-Incrimination
Clause of the First Amendment has been absorbed in the Fourteenth, that it
extends its protection to lawyers as well as to other individuals, and that it
should not be watered down by imposing the dishonor of disbarment and the
deprivation of a livelihood as a price for asserting it.
Spevack v. Klein, 385
Rule 8.01 TDRPC comment 2
This Rule is subject to the provisions of
the Fifth Amendment of the United States Constitution and corresponding
provisions of Article 1, Section 10 of the Texas Constitution. A
Person relying on such a provision in response to a specific question or more
general demand for information, however, should do so openly and not use the
right of non-disclosure as an unasserted justification for failure to comply
with this Rule.
Rule 8.04 (8) TDRPC
A lawyer shall not fail to timely furnish to
the Chief Disciplinary Counsel’s office or a district grievance committee a
response or other information as required by the TRDP, unless he or she in good
faith timely asserts a privilege or other legal ground for failure to do so.
Rule 1.06 (q)(4) TRDP
“Professional Misconduct” includes failure
of a Respondent to furnish information subpoened by a Committee, unless he or
she, in good faith, asserts a privilege or other legal grounds for the failure
to do so.
Rule 15.02 TRDP
If any witness, including the Respondent,
fails or refuses to appear or to produce the things named in the subpoena, or
refuses to be sworn or to affirm or to testify, the witness may be compelled to
appear and produce tangible evidence and to testify at a hearing before a
district judge of the county in which the subpoena was served.
Actions taken by the grievance
committee are not accorded finality; therefore, due process does not
attach. (Minnick below) The
decision of the grievance committee regarding the complaint against Flume had
no finality absent Flume’s consent.
Because Flume did not accept the decision of the committee, the State
Bar filed suit and a trial de novo was held in the district court according
Flume due process.
Flume v. State Bar of
A grievance committee’s
investigations have been compared to an inquisition by a grand jury. Nonetheless, as long as an indictment is
valid on its face and the grand jury is legally constituted, a due process
complaint will not be sustained.
Minnick v. State Bar, 790 SW2d 87,
90 (Tex. App. - Austin, 1990)
Further, in the current proposed changes to the TRDP Rule 1.06(Q)(H) is being eliminated.
ARGUMENT
WorldPeace would show the court that per Spevack the court could not
sanction WorldPeace for refusing to incriminate himself in his refusal to
respond to the grievance committee’s original demand for a response under Rule
2.09 TRDP nor in WorldPeace refusal to submit to the grievance committees
subpoena under Rule 15.01 TRDP.
(WorldPeace
would also show the court that on the day of the grievance hearing on
Nash-Fraser and Apodaca he was stuck in
WorldPeace
would show the court that per Minnick
a grievance investigation is similar to a grand jury investigation and
WorldPeace therefore has no due process rights in the grievance investigation
because he elected a trial de novo
in the district court.
WorldPeace
would show the court in regards to the subpoena power of Rule 15.01 TRDP, the
Commission had the choice of having a district judge order WorldPeace to comply
with the subpoena under Rule 15.02 TRDP.
The grievance committee did not use this vehicle.
WorldPeace
would show the court that if he has no due process rights in the grievance
process, then he would be foolish to respond to the demands for information
from the grievance committee especially since his license was subject to being
revoked. It made more sense for
WorldPeace to refuse to respond especially since WorldPeace knew that he would
demand a trial de novo based on his
prior negative experiences with the State Bar in general and with Dawn Miller
in particular.
WorldPeace
would show the court that the State Bar cannot be allowed to deny WorldPeace
due process rights in the grievance investigation process and then attempt to
sanction WorldPeace for refusing to cooperate.
The State Bar should not be allowed to
use the lack of due process in the grievance process as a shield denying due
process and at the same time use it as a sword to disbar WorldPeace for failure
to participate in a process which does not afford him due process under the
Texas or Federal Constitutions.
Therefore,
not only did the court abuse its discretion by sanctioning WorldPeace when he
exercised his Fifth Amendment right, per Spevack,
it also abused its discretion by sanctioning WorldPeace for refusing to
participate in a process in which he had no due process rights under the
Also,
comment 2 to Rule 8.01 TRDP indicates that WorldPeace was not required to
openly assert his rights against self incrimination.
The Rule 8.04(a)(8) and Rule 1.06(Q)(4) violations should be vacated as an abuse of discretion.
IV.
ABUSE OF DISCRETION
AUTHORITIES
“A trial court has no
‘discretion’ in determining what the law is or applying the law to the facts.”
In
re: News America Publishing, Inc., 974
S.W. 2d 97, 106 (Tex. App. – San Antonio 1998)
“A trial court abuses its
discretion when it acts in an unreasonable or arbitrary manner or, stated
differently, when it acts without any reference to guiding rules or
principles. See Beaumont Bank, N.A. v.
Buller, 806 S.W. 2d 233, 226 (
In re: Meador, 968 S.W. 2d 346, 353 (
“Aside from the “clear abuse of
discretion” threshold set forth in
Monroe v. Blackmon, 946 S.W. 2d 533,
536 (Tex. App. – Corpus Christi 1997)
“A trial court “abuses its
discretion when it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law.” Johnson v. Fourth Court of Appeals, 700 S.W.
2d 916, 917 (Tex. 1985, orig. proceeding).”
Crouch v. Gleason, 875 S.W. 2d 738, 739
(Tex. App. – Amarillo 1994)
“Following
its holding in
Trinity Capital Corporation v.
Briones, 847 S.W. 324, 326 (Tex. App. – El Paso 1993)
“On the other hand, review of a
trial court’s determination of the legal principles controlling its ruling is
much less deferential. A trial court has no ‘discretion’ in
determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to
analyze or apply the law correctly will constitute an abuse of discretion and
may result in appellate reversal by extraordinary writ…
Walker v. Packer, 827 S.W. 2d 833,
839-40 (1992) (citations omitted).”
Hartford Accident & Indemnity
Company v. Abascal, 831 S.W. 2d 559, 563 (Tex. App. – San Antonio 1992)
“A
trial court abuses its discretion by (1) acting arbitrarily and unreasonably,
without reference to any guiding rules or principles, or (2) misapplying the
law to the established facts of the case.
Downer v. Aquamarine Operators, Inc., 701 S.W. 2d 238, 241-42 (
Appleton v.
ARGUMENT
1) It was an abuse of discretion for the court to try the five additional complainants added by the Commission to the underlying disciplinary petition without authority from the Supreme Court per Rule 3.02 TRDP. The additional complaints were not filed with the Clerk of the Supreme Court as ordered by Rule 3.01 TRDP.
The proposed
amended rules to the TRDP do not eliminate the MUST dictate from Rule 3.01 even
though the proposed Rule 3.01 does allow for multiple complaints to be filed in
one petition.
2) It is an abuse
of discretion to try the Collins complaint that had been tried to conclusion
prior to trial in the underlying lawsuit regarding both Collins and the
Commission. Collins and the Commission
were barred by res judicata from
trying a disciplinary petition against WorldPeace.
3) It is an abuse
of discretion to sever the mandatory counterclaims against Lang and Apodaca.
4) It is an abuse of discretion to order
the underlying lawsuit severed per Rule 41 TRCP (which contains the WORD sever) and then enter a Judgment for
Disbarment ruling there was a Rule 174(b) TRCP (which does not use the word sever) order for separate trials.
5) It is an abuse
of discretion to refuse to sign a severance order prior to final judgment when
the Respondent moved for a severance in his Response to the Commission’s Motion
for No-evidence Summary Judgment and in a separate motion. Without a severance order, WorldPeace was at
a disadvantage as to how to proceed especially when WorldPeace believed there
was a Rule 41 TRCP severance as opposed to a Rule 174(b) separate trials ruling
by the court.
6)
It is an abuse of discretion to attempt to dismiss WorldPeace’s causes
of action for declaratory judgment, counterclaim against Collins, injunctive
relief and other causes of action that were not adjudicated with a “mother
hubbard” clause.
7) It is an abuse
of discretion to fail to state the scope and basis of the summary judgment
ruling when asked for clarification by Respondent.
8) It is an abuse of discretion to refuse to hear WorldPeace’s motion to compel Molleston to produce 3.01 cases that are material and relevant to WorldPeace’s Motion for Rule 13 and Chapter 9 & 10 TCP&RC violations. Molleston stated in pretrial he had often violated Rule 3.01 (Exhibit “D”).
Molleston’s lack
of evidence will prove a pattern and practice of violating the law by Dawn
Miller and J.G. Molleston, attorneys for the Commission. WorldPeace’s motion was filed on
“A
trial court may not arbitrarily halt proceedings in a pending case, and
mandamus will lie to compel a trial court to hear and rule on motions pending
before it.”
In re: Johnnie Tasby, 40 S.W. 3d
190, 191 (
9) It is an abuse
of discretion to sign a Judgment for Disbarment with a disbarment date prior to
the time when the court loses it plenary power.
This creates an incredible amount of confusion in the courts in which
the Respondent practices.
10) It is an abuse
of discretion to grant a no evidence summary judgment on issues in which the
Commission did not list the elements as mandated by Rule 166a(i) TRCP.
11) It is an abuse of discretion to not tell
WorldPeace at trial that his bills of exceptions regarding his religious
discrimination claims were unnecessary because the court had made a Rule 174(b)
TRCP order for separate trials as opposed to a Rule 41 TRCP order for separate
lawsuits.
12)
It is an abuse of discretion to dismiss the Attorney General of Texas who has
been served regarding WorldPeace’s cause of action for a declaratory judgment
but has not answered, with a mother hubbard clause in the court’s
13)
It is an abuse of discretion to use a “mother hubbard” clause to try to dismiss
causes of action and parties to a lawsuit which have not been adjudicated.
PRAYER FOR RELIEF
WHEREFORE,
PREMISES CONSIDERED, WorldPeace prays this Court to set aside its August 27,
2003, Judgment for Disbarment and its Summary Judgment for the Commission for
Lawyer Discipline and its severance of the Lang and Apodaca lawsuits and for
such other and further relief at law or in equity as this court may deem
proper.
Respectfully
submitted,
__________________________________
John
WorldPeace
TBA
No. 21872800
2620
Fountain View,
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 and Judge Fry
on
_________________________________
John
WorldPeace
CM
How can we manifest peace on earth if we do not include everyone (all races, all nations, all religions, both sexes) in our vision of Peace?
![[THE WORLDPEACE BANNER]](wpbanner.gif)
The WorldPeace
Insignia
: Explanation
To order a WorldPeace Insignia lapel pin, go to: Order
To the John WorldPeace Galleries Page
To the WorldPeace Peace Page