![[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
WORLDPEACE’S
THIRD AMENDED MOTION TO VACATE, MODIFY AND CLARIFY JUDGMENT OF DISBARMENT OF
TO
THE HONORABLE JUDGE OF THIS COURT
COMES
NOW, WorldPeace and files this WORLDPEACE SECOND AMENDED MOTION TO VACATE OR
MODIFY JUDGMENT OF DISBARMENT OF
NOTE #2: WorldPeace incorporates RESPONDENT’S
SHORT HAND RENDITION REGARDING RESPONDENT’S MOTION FOR NEW TRIAL, RESPONDENT’S
MOTION TO MODIFY, AND PETITIONER’S SUMMARY JUDGMENT into this motion.
STATEMENT OF
FACTS………………………………………….…………………………….3
I.
LACK OF PERSONAL AND
SUBJECT MATTER JURISDICTION RULE 3.01 .……7
II. MANDATORY
COUNTER CLAIMS……………………………………………...…..10
III. RES JUDICATA RE: COLLINS COMPLAINT…………………………………...…20
IV. EXPERT
WITNESS RE: RULE 103 TDRPC…………………………………..……26
V.
FIFTH
AMENDMENT…………………………………………………………….……27
VI. RESTITUTION…………………………………………………………………….……30
VII. OTHER CHANGES TO JUDGMENT FOR DISBARMENT…………………………..31
VIII. JUDGMENT FOR DISBARMENT OF
CONCLUSION. …………………………………………………………………………….…..38
PRAYER…………………………………………………………………………………………39
STATEMENT OF FACTS
(Ex “Q”) In her answer, Collins violated Rule 2.15
TRDP by revealing that she had filed a grievance against WorldPeace. However,
since Collins is not an attorney there is no remedy available to sanction
Collins for her bad acts in violating Rule 2.15.
(Ex “D”)
August 20, 2002, per Rule 3.01 TRDP, the Commission for Lawyer Discipline
filed a petition with the Clerk of the Supreme Court with regards to the
Collins complaint only. (Ex “P”)
September 23, 2002, trial was held in the WorldPeace v. Collins matter under a Motion in Limine prohibiting
any mention of the Commission for Lawyer
Discipline v. WorldPeace lawsuit or WorldPeace’s alleged violations of the
TDRPC.
November 8, 2002, the Commission for Lawyer Discipline, added the Nash,
Apodaca/Reilly, Williams, Lang and Lynch complaints to the Collins lawsuit
without submitting disciplinary petitions to the Clerk of the Supreme Court or
acquiring an order from the Supreme Court assigning Judge Fry to hear these
additional complaints. (Ex “R”)
August 5, 2003, WorldPeace a Motion to Sever the lawsuit.
I. JUDGE FRY'S LACK OF PERSONAL
AND SUBJECT MATTER JURISDICTION
(Rules 3.01, 3.02, 3.03 TRDP)
The trial court abused its discretion by hearing five grievances that
were not submitted to the Supreme Court by the Chief Disciplinary Counsel as
mandated by Rule 3.01, 3.02 and 3.03 Texas Rules of Disciplinary Procedure and
for which there was no order from the Supreme Court authorizing Judge Fry to
hear the five additional complaints?
AUTHORITIES
Rule 3.01
If the Respondent timely files an election for trial de
novo in accordance with Section 2.14, the Chief Disciplinary Counsel shall file a Disciplinary
Petition in the name of the Commission…The Disciplinary Petition must be filed with the Clerk of
the Supreme Court of Texas.
Rule 3.02
Upon receipt of a Disciplinary Petition, the Clerk of the
Supreme Court of
After the trial judge has been appointed, the Clerk of
the Supreme Court shall promptly
forward the Disciplinary Petition and a
copy of the Supreme Court’s appointing Order to the district clerk of
the county of venue. Upon receipt of the
Disciplinary Petition and copy of the Supreme Court’s appointing Order, the
district clerk shall transmit
a copy of the Supreme Court’s appointing Order to the Chief Disciplinary
Counsel.
“A judgment is void only when it is apparent that the
court rendering the judgment had no jurisdiction of the parties, no
jurisdiction of the subject matter, no jurisdiction to enter the judgment, or
no capacity to act as a court.” Mapco,
Inc. v. Forrest, 795 SW2d 700, 703 (
Masonite Corp. v. Garcia, 951 SW2d 812, 819 (Tex.
App. San Antonio, 1997)
We further explained it was only a trial court judgment rendered
without “jurisdictional power” in the sense of lack of subject matter
jurisdiction that could be set aside by the trial court at any time.
A judgment is
void only when it is apparent that the court rendering the judgment had no
jurisdiction of the parties, no jurisdiction of the subject matter, no
jurisdiction to enter the judgment, or no capacity to act as a court.
Mapco, Inc v.
Forrest, 795 SW2d 700, 703 (
A judgment is void only when it is apparent that the
court rendering the judgment “had no jurisdiction of the parties, no
jurisdiction of the subject matter, no jurisdiction to enter the judgment, or
no capacity to act as a court.” Browning
v. Placke, 698 SW2d 362,363.
Cook v. Cameron,
733 SW2d 137, 140 (
And a judgment is void only when it is shown that the
court had no jurisdiction of the parties or property, no jurisdiction of the
subject matter, no jurisdiction to enter the particular judgment or no capacity
to act as a court.
Browning v.
Placke, 698 SW2d 362, 363 (
(1) As previously noted, the Rules provide that it
"is the Complaint" that is heard in the trial at district court. See id. at 2.14. We also take note of the fact that the Rules
define "Complaint" to include not only that which appears on the
face of the written matters received by the Office of Chief Disciplinary
Counsel, but also that which arises upon screening or preliminary investigation
of the written matters received.
Weiss v.
Commission for Lawyer Discipline, 981 SW2d 8, 14 (Tex.App-SanAntonio, 1998)
The case was governed by part III of the Rules of
Disciplinary Procedure. The various
provisions in Part III make it quite clear that district court proceedings
thereunder are original and independent proceedings. They are not proceedings in which the
court is called upon to review an action taken in the administrative
proceedings that were interrupted by the lawyer's removal of the case to
district court. In such court
proceedings, "the
Tex.R. Disciplinary
P.3.08(b). In ordinary civil suits in district court, a
plaintiff may join as independent claims "as many claims...as he may have
against an opposing party."
Rule 51(a).
Diaz v. CLD, 953 SW2d 435, 437 (Tex.
App-Austin, 1997)
There is no
question but that Dawn Miller, the Chief Disciplinary Counsel for the State
Bar, did not follow the clear pronouncements Rules 3.01, 3.02 and 3.03, TRDP
when she added the five additional complaints to the existing Collins lawsuit
on
Judge Fry had no personal or
subject matter jurisdiction from the Supreme Court to hear the additional five
complaints because there was no order signed by the Supreme Court vesting him
with that authority.
WorldPeace
filed RESPONDENT’S MOTION TO DISMISS AND/OR MOTION FOR CONSOLIDATION PLEA TO
THE JURISDICTION bringing this issue to the attention of the Court. (Ex “K”)
The Commission for Lawyer Discipline did not deny that it had not
followed Rules 3.01, 3.02 and 3.03 when it added the additional complaints
to the lawsuit. The Commission for
Lawyer Discipline did not file a written response to WorldPeace motion but
responded orally during pre-trial. No
law was cited by the Commission for Lawyer Discipline to support its position
that it could add additional complainants to the lawsuit contrary to Rule 3.01,
3.02, 3.03 TRDP.
Judge Fry
granted the Commission for Lawyer Discipline's motion to sever and proceeded to
trial on the additional five grievances knowing that he had no authority from
the Supreme Court to proceed.
Judge Fry and the Chief
Disciplinary Counsel usurped the authority of the Supreme Court to WorldPeace’s
substantive and procedural determent with regards to the five additional
grievances.
Per Masonite, Mapro, Cook and Browning
above, the Judgment of Disbarment is void.
Per Weiss above, additional violations of
the TDRPC can be added to a disciplinary petition but there is no authority
that allows the addition of other complainants to a disciplinary petition.
Weiss
references the Diaz case which talks
about this in its dicta (Diaz was also about additional rule violation related
to the same complainants and not additional complainants being added to the
lawsuit.)
But Diaz
also references the fact that this is only true if the TRCP are not modified by
the TRDP as they are in this lawsuit.
TRDP 3.01, 3.02 and 3.03 requires a disciplinary petition to be filed
with the Clerk of the Supreme Court.
These TRDP's modify the TRCP which allows the addition of parties to a
lawsuit by amending one's pleadings.
There are no cases which speak to the issue of adding additional complainants to an existing lawsuit.
The trial
court abused its discretion by hearing the five additional grievances without
authority and the Judgment of Disbarment with regards to these five additional
grievances should therefore be vacated as being void per the above cited cases;
most are which were handed down by the Supreme Court of Texas.
II. MANDATORY COUNTER CLAIMS
ISSUE TWO
The trial
court abused its discretion by severing WorldPeace’s mandatory counterclaims regarding
John Lang and Phillip Apodoca?
AUTHORITIES
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.
Rule 39(a)
A person who is subject to service of process shall be
joined as a party in the action if he claims an interest relating to the
subject of the action and is so situated that the disposition of the action in
his absence may leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent
obligations by reason of his claimed interest.
If he has not been so joined, the court shall order that he be made a
party. If he should join as a plaintiff
but refuses to do so, he may be made a defendant, or, in a proper case, an
involuntary plaintiff.
Rule 3.08 (b)
In all Disciplinary Actions brought under this part,
the following additional rules apply:
Except as varied by these rules, the
A trial court abuses its
discretion if its decision “is arbitrary, unreasonable, and without reference
to guiding principles.”
Mercedes-Benz Credit Corp. v. Rhyme, 925 SW2d 664, 666 (
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
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.
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 Discipline 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)
SEVERANCE Abuse of Discretion CASES
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,
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,
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
“…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
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
“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 [1st
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.
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 (
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,
Wyatt v. Shaw Plumbing Company, 760 SW2d 245, 246-7
(
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 [1st
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
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 (
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,
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 (
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
Significantly,
The
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.”
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
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.,
Rule 41 of the
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 [1st 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
(
Goins v. League Bank and Trust, 857 SW2d 628, 630 (
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
Stroud v. VBFSB Holding Corporation, 901 SW2d 657,
658-9 (Tex. App. – San Antonio 1995)
Rule 41 of the
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 (
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
ARGUMENT
WorldPeace
filed his SIXTH AMENDED ANSWER AND COUNTER CLAIMS (Ex “J”) on
WorldPeace
would show the court that the grievance process is unconstitutional due to its
oppressive, arbitrary and capriciousness as exemplified by: 1) Attorney
respondents in the grievance process are subject to being sanctioned for
revealing any confidences in the process but if the complainant non-attorney
reveals those confidences there is no sanctions applicable to the complainant,
2) There is a conflict in laws such that confidences that are prohibited from
being revealed can be revealed in a pleading in a lawsuit without
repercussions: 3) The senior investigator can designate intolerant grievance
panels to hear grievances against attorneys the investigator wants sanctioned;
4) the offer of a private or public reprimand by the grievance committee can be
forced upon an attorney because the filing of a civil suit against the attorney
acts as a public reprimand thus making a settlement offer of a private or
public reprimand an empty offer or a coercive demand; 5) the commission can
enforce double sanctions through Rule 8.04 (a)(1) which boosts any violation of
the TDRPC; 6) the attorney is intimidated and coerced into presenting to the
grievance panel evidence that will violate his rights against self
incrimination - all demands for information from the State Bar states that the
information may be forwarded to law enforcement and all grievance hearings open
with an admonition to the attorney about his rights against self incrimination;
7) the grievance process can be abused to influence legitimate attorney client
fee disputes ; 8) the Commission can seek attorney fees sanctions even when it
incurs none; 9) attorney fees can be calculated on the rates charged by private
attorneys when the State Bar’s in house attorneys make about 15% of the private
rate - the best evidence of reasonable attorney fees is what the State Bar
attorneys are paid; 10) attorney fees
can be charged for attorneys who are employed by the State Bar and no proof is
required by the State Bar that “but for” the acts of the Respondent, the State
Bar would not have employed said attorneys;
11) there is no range of punishment that limits the sanctions available
to the court in a disciplinary action so not returning one phone call can
result in disbarment; there is no standard for which the various judges who
hear these matters can use as a guideline;
(12) the attorneys for the State Bar are immune from prosecution for
their tortuous, corrupt and even criminal acts committed during the course of
attempting to sanction an attorney; (13)
the most abusive attorneys can avoid prosecution by becoming a member of the
grievance panels; (14) the grievance process is so skewed against the
respondent attorney that his or her best strategy is to not cooperate with the
State Bar and let the grievance go into a civil lawsuit where the respondent
has a level playing field under the civil law and the TRCP; 15) the grievance process allows for arbitrary
application of the TDRPC to attorneys;
16) a pro se Respondent attorney is not allowed attorney fees; 17) the State Bar is allowed to combine
grievances into one lawsuit by alleging common violations of the TDRPC even
though those violations do not apply to every grievance. This undeniably sends a prejudicial message
to the jury.
Regarding
the question of WorldPeace’s Fifth Amendment rights, the law is clear in Spevack that WorldPeace cannot be
sanctioned for his refusal to respond to requests for information in the
grievance process.
In
addition, the trial court severed out the compulsory counter claims WorldPeace
filed against Lang and Apodaca under quantum
meruit.
The Lang
and Apodaca causes of action and complaints against WorldPeace are reposed in
the Commission per Rule 4.06 TRDP and Wade. WorldPeace’s counterclaims were therefore
compulsory against the complainants and against the Commission for its separate
acts of “bad faith”.
WorldPeace
would show the court that his counterclaims against the Commission for
violating his constitutional rights against self incrimination, due process
and equal protection as well as his cause of action for intentional
infliction of emotional distress meets the elemental requirements of compulsory
counterclaims per Rule 97(a) TRCP as interpreted by Wyatt as do the
counterclaims for quantum meruit
against Lang and Apodaca especially since the trial court awarded
restitution in both those cases.
Further,
per Rule 3.08 TRDP, there is nothing in the TRDP that exempts the Commission
from being bound by Rule 97(a) TRCP with regards to the Commission v. WorldPeace lawsuit.
The
trial court abused its discretion by severing out WorldPeace compulsory
counterclaims which included multiple examples of the violations of
WorldPeace’s due process rights, right against self-incrimination and equal
protection rights under the state and federal constitutions as recited in
WorldPeace’s Sixth Amended Answer and Counter Claim (Ex “J”).
In
addition, WorldPeace’s counterclaim for intentional infliction of emotional
distress and quantum meruit
claims against Lang and Apodaca were also illegally severed per Goins and Rucher above.
The trial court abused its
discretion by severing out these compulsory counterclaims and as the above
cases show. The Appeals' Courts reverse
and remand cases that have been illegally severed.
In order to
avoid this problem, the court determined after trying the TDRPC Rule violations
that it had ordered a Rule 174(b) TRCP separate trials as opposed to a Rule 41
TRCP severance. The reality is that the
court repeatedly used the word sever which only exists in Rule 41 TRCP and not
Rule 174(b) TRCP.
III. RES JUDICATA
RE: COLLINS COMPLAINT
ISSUE THREE
The trial court abused its discretion by allowing the Collins
grievance to be heard in the Commission
v. WorldPeace lawsuit despite it having been tried in the WorldPeace v. Collins lawsuit in the 281st
District Court?
AUTHORITIES
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 (
Much of the difficulty associated with the doctrine of
res judicata is due to the confusion of several related theories. Broadly speaking res judicata is the generic
term for a group of related concepts concerning the conclusive effects given
final judgments. Puga v. Donna Fruit
Co., 634 SW2d 677, 679 (
The question that has given courts the most difficulty is
determining what claims should have been litigated in the prior suit. Early on, this Court held that res judicata
“is not only final as to the matter actually determined, but as to every other
matter which the parties might litigate in the cause, and which they might have
decided. We have never repudiated this
definition of claim preclusion, and it appears in some form in most definitions
of res judicata.
Any cause of action which arises out of those same facts
should, if practicable, be litigated in the same lawsuit.
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.
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.
Barr v. Resolution Trust Corp.,
A final judgment settles not only issues actually
litigated, but also any issues that could have been litigated. That the judgment may have
been wrong or premised on a legal principle subsequently overruled does not
affect application of res judicata.
Segrest v. Segrest, 649 SW2d 610, 612 (
The rule of collateral
estoppel, or as sometimes phrased, estoppel by judgment, bars relitigation in a
subsequent action upon a different cause of action upon a different cause of
action of fact issues actually litigated an essential to a prior judgment.
The rule is generally stated as binding a party and
those in privity with him.
…states that a person who is not a party but who is
in privity with the parties in an action terminating in a valid judgment is
bound by the rules of res judicata.
‘Privity is a word which
expresses the idea that as to certain matters and in certain circumstances
persons who are not parties to an action but who are connected with it in their
interests are affected by the judgment with reference to interests involved in
the action, as if they were parties…for the purpose of the case at hand he is
bound by all or some of the rules of res judicata by way of merger, bar or
collateral estoppel.’ It has been
emphasized that privity is not established by the mere fact that persons may
happen to be interested in the same question or in proving the same state of
facts.
Also, that privity connotes those who are in law so
connected with a party to the judgment as to have such an identity of interest
that the party to the judgment represented the same legal right.
No generally prevailing
definition of privity which can be automatically applied to all cases involving
the doctrine of res judicata and the determination of who are privies requires
careful examination into the circumstances of each case as it arises.
Privity was defined as
meaning the mutual or successive relationship to the same rights of property;
and it was said that persons are privy to a judgment whose succession to the
rights of property therein adjudicated are derived through or under one or the
other of the parties to the action, and which rights accrued subsequent to the
commencement of the action. It has also
been said that the Restatement definition corresponds to results generally
reached by the courts, the elements of which are summarized in these words:
‘(t)he word ‘privy’ includes those who control an action although not parties
to is ***,those whose interests are
represented by a party to the action ***, successors in interests
***.’ Developments in the Law-Res
Judicata, 65 Harv.L.Rev. 818, 856 (1952).
Benson v. Wanda Petroleum Company, 468 SW2d 361 (
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.
ARGUMENT
WorldPeace
would show the court that the alleged violations of the TDRPC by WorldPeace in
the Collins matter had to do solely with $3,000 allegedly collected by
WorldPeace from Arbuckle for the benefit of Collins. See the Final Judgment (Ex
“D”) It was alleged that WorldPeace did
not keep these monies separate in a trust account for Collins.
However,
WorldPeace pled an affirmative defense of waiver and Collins abandoned her
claim to the Arbuckle monies because she never filed a counterclaim for those
monies in the WorldPeace v. Collins lawsuit.
Per Rule 97(a) TRCP, as interpreted
by Wyatt and Ingersoll-Rand, a claim for the Arbuckle monies was a compulsory
counterclaim. There were no motions
filed by Collins regarding those monies, no jury question and nothing in the
Final Orders. Collins had by law
undeniably abandoned her claims to those Arbuckle monies.
The WorldPeace v. Collins lawsuit was filed
in June 2000, and did not go to trial until September 2002.
The Final
Judgment was not entered until
Per Rule 4.06 TRDP, the rights of the
complainants are reposed in the Commission.
Therefore, if a Complainant has no rights in the law then neither does
the Commission.
Benson above rules that the CLD had
privity with Collins in that they were trying to enforce her interest in the
Arbuckle monies.
Further,
the court awarded restitution to Collins which is nothing more that a claim
that Collins was required to assert in the WorldPeace
v. Collins suit for the Arbuckle monies but did not and therefore waived
the claim.
When
the Commission for Lawyer Discipline v.
WorldPeace trial began, the WorldPeace
v. Collins lawsuit had already been tried to Final Judgment and there was
no claim by Collins for the Arbuckle monies.
Collins was barred by res judicata
from suing for those monies per Ingersoll-Rand. No motion was ever filed by Collins’ attorney
with regards to the Arbuckle monies in the WorldPeace
v. Collins lawsuit.
In
the WorldPeace v Collins lawsuit, all
of the elements of Ingersoll-Rand
were met; 1) the cause of action for the
Arbuckle monies was in the courts jurisdiction; 2) at the time of Collins answering the lawsuit
there was no other lawsuit regarding the Arbuckle monies; 3) the Collins claim
for the Arbuckle monies was mature and owned by Collins at the time she filed
her answer; 4) the Arbuckle money issue
arose out of the same Final Judgment upon on which WorldPeace was suing for his
fees from Collins; 5) Collins’ cause of action regarding the Arbuckle monies
was against WorldPeace and 6) it did not require the presence of any third
parties over whom the court could not acquire jurisdiction.
Therefore,
the trial court abused its discretion by allowing the Commission to pursue a
barred by res judicata cause of
action in the Collins complaint.
Further,
after Final Judgment was rendered in the Commission
v. WorldPeace lawsuit, WorldPeace filed an AMENDED MOTION FOR NEW TRIAL
in the WorldPeace v. Collins lawsuit. (Ex “M”)
The
problems that Rule 39 TRCP seeks to avoid are now evident in the two Collins
related lawsuits. If the 281st
District Court does not grant a new trial, then there is the possibility that
the appeals court will vacate the trial court’s Final Judgment and remand the
matter long after the Commission v.
WorldPeace lawsuit has been appealed to conclusion.
The
trial courts have created a nightmare with regards to requiring WorldPeace to
try the same sets of facts in two different lawsuits and in two different
courts and they have also sent a ripple effect into the appeals court.
Further, restitution of the Arbuckle
monies has been ordered in the Commission
v. WorldPeace lawsuit, (Ex “L”); an award that Collins has no rights to
under the law due to the fact that no compulsory counterclaim was filed in the WorldPeace v. Collins lawsuit per Rule
97(a) TRCP Ingersoll-Rand Co. The Commission for Lawyer Discipline had no
right to sue for the monies.
Lastly,
WorldPeace originally answer the Commission’s disciplinary petition in the 281st
District Court and the Commission responded to several of WorldPeace’s motions and
filed two motions of its own. One of
those motions was a Plea to the Jurisdiction.
The 281st District Court never granted the Commission’s Plea
to the Jurisdiction. Therefore, the 281st
The
Collins matter is barred by res judicata and
the trial court abused its discretion by allowing the Collins matter to be
retried in the Commisison v. WorldPeace
lawsuit.
SUPPLEMENTAL
ARGUMENT REGARDING COLLINS
Rule
3.01, 3.02 and 3.03 TRDP requires the Commission to file a disciplinary
petition with the Clerk of the Supreme Court.
It seems that once the petition was filed and docketed in WorldPeace’s
county of practice, the pre-existing WorldPeace
v. Collins lawsuit should have been consolidated with the Commission v. WorldPeace lawsuit under
Rule 39 TRCP to avoid the problems stated in Rule 39 with regards to multiple
lawsuits on the same transaction.
It
seems that an application of form over substance to require WorldPeace to file
compulsory counterclaims against Collins if the Commission filed suit against
WorldPeace before WorldPeace filed suit on Collins and yet as in this lawsuit
when WorldPeace filed on Collins first the lawsuits travel on separate tracks.
If
it is true that the lawsuits in the second instance must proceed separately,
then the Commission who derives its standing to sue WorldPeace, under Rule 4.06
TRDP, must accept the reality that when Collins abandoned her claims for the
Arbuckle money in the WorldPeace v.
Collins lawsuit, the Commission also lost its standing to sue WorldPeace
for the Arbuckle money.
The
Commission for Lawyer Discipline was undeniably in privity with Collins
regarding the Arbuckle monies and it is undeniable that Collins abandoned her
claim to the Arbuckle monies by not filing a mandatory court claim in the WorldPeace v. Collins lawsuit.
The
Commission for Lawyer Discipline claims against WorldPeace in this matter are
frivolous and groundless. All TDRPC Rule
violations regarding Collins should be vacated.
IV. EXPERT
WITNESS RE: RULE 103 TDRPC
The trial court abused 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?
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.
“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 the court 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 TDRPC Rule 1.03 (a) &
(b) violations regarding the various complainants should be vacated.
WorldPeace would show the court that the trial court also abused its discretion by not allowing WorldPeace to testify as an expert witness.
V. FIFTH
AMENDMENT
ISSUE FIVE
The trial court abused 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 during the grievance process prior to suit being filed.
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
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.
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)
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 for WorldPeace's 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
Fraser-Nash and Apodaca he was 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.
Also there is no despositive
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 during the grievance process, 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 TDRPC 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.
VI. RESTITUTION
WorldPeace
would show the court that restitution is only available as a sanction under
Rule 3.12 TRDP where it states:
"In all cases in which the
proof establishes that the Respondents conduct involved misapplication of
funds."
WorldPeace
would show the court that only the Collins grievance alleged misapplication of
funds and the Collins claim was barred by res
judicata.
Therefore
it was an abuse of discretion for the court to award restitution in the Nash,
Lang, and Williams complaints and the restitution should be vacated.
VII.
OTHER
CHANGES TO JUDGMENT FOR DISBARMENT OF
******************************************************************************
The
following are changes that need to be made to the Judgment for Disbarment if it
is not vacated as being void or as an abuse of discretion.
On the 14th day of April,
2003, the above-styled and numbered case was called to trial by the Court. Petitioner, the Commission for Lawyer
Discipline (hereinafter called the “CFLD”), appeared through counsel, J.G.
Molleston, and announced ready.
Respondent, John WorldPeace (hereinafter called “Respondent”)
appeared. Complainants, Johnell Collins,
Helene Fraser-Nash, Darlene A. Williams, John Lynch, and John A. Lang appeared.
Prior to trial, the Court granted the
Commission for Lawyer Discipline’s Motion to Sever the Third-Party Claims
against John Lang and Philip Apodaca.
The order dated the 27th day of August, 2003, is incorporated
herein by reference.
The Commission did not file a Motion to Sever on Lang and Apodoca.
Lang’s attorney filed a Motion to Dismiss which the court denied in
pretrial and then sua sponte said it
would sever Land and Apodoca.
The cause proceeded to trial before a
jury of twelve (12) duly qualified and selected jurors. After due deliberation, on
Pursuant to Rule 174 of the Texas
Rules of Civil Procedure, the Court considered separately the counterclaims
made by John WorldPeace and contained in his Seventh Original Answer and
Counterclaims and Third Party Claims.
Summary Judgment was granted regarding those counterclaims by order
dated the 27th day of August 2003, an incorporated in this Judgment
by reference.
The court said in pre and post trial it was severing the constitutional
counterclaims and trying the Rule violations by themselves. The court made no comment about Worldpeace’s
other issues and causes of action.
The court used the word sever which is included in Rule 41 TRCP. The world sever is not in Rule 174 (b)
TRCP.
This part of the court’s judgment is
contrary to the court’s ruling in pre and post trial.
After hearing and considering the
evidence, arguments of counsel and the applicable law, the Court finds and
concludes that Respondent has, by his conduct, as alleged in Petitioner’s
Second Amended Disciplinary Petition on file in this case and as found by the
jury by a preponderance of the evidence presented at final trial on the merits
of this case, committed professional misconduct as defined in Part 1, 1.06(Q),
of the Texas Rules of Disciplinary Procedure.
After the verdict was read.
Respondent moved for a Judgment NOV which the court determined would be
heard at a later date and the court dismissed the jury.
The Court finds and concludes that
Respondent has violated Rules 1.03(a), 1.14(a), 1.14(b), 1.14(c),
and 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct
regarding the Johnell Collins complaint.
The Court finds and concludes that
Respondent has violated 1.01(b)(1), 1.03(a), 1.15(d), and 8.04(a)(8)
of the Texas Disciplinary Rules of Professional Conduct and 1.06(Q)(4)
of the Texas Rules of Disciplinary Procedure regarding the Helene Fraser-Nash
complaint.
The Court finds and concludes that
Respondent has violated 1.01(b)(1) and 8.04(a)(8) of the Texas
Disciplinary Rules of Professional Conduct and 1.06(Q)(4) of the Texas
Rules of Disciplinary Procedure regarding the Penny Jo Reilly and Philip
Apodaca complaint.
The Court finds and concludes that
Respondent has violated 1.01(b)(1), 1.03(a), 1.03(b), 1.04(d) and
8.04(a)(8) of the Texas Disciplinary Rules of Procedure regarding the Darlene
A. Williams complaint.
The Court finds and concludes that
Respondent has violated 1.01(b)(1), 1.02(a)(1), 1.03(a), 1.15(d) of the
Texas Disciplinary Rules of Procedure regarding the John Lang complaint.
The Court does not find professional
misconduct regarding the John Lynch complaint.
The Court finds it has jurisdiction
over the subject matter and parties in this cause of action and venue is proper
in Harris County, Texas.
The Court, therefore, finds that the
proper discipline of the Respondent for each occurrence of professional
misconduct is disbarment.
This is contrary to the court’s ruling in which the court stated it found
disbarment due to 23 cumulated violations.
It is accordingly ORDERED, ADJUDGED,
and DECREED that the Respondent is disbarred as an attorney at law in the state
of
The court cannot enforce a disbarment prior to when it loses it plenary
power.
It is further ORDERED, ADJUDGED, and
DECREED that effective the 15th day of October, 2003, Respondent is
permanently enjoined from practicing law in Texas, holding himself out as an
attorney, performing any legal services for others, accepting any fee directly
or indirectly for legal services, appearing as counsel or in any representative
capacity in any proceeding in any Texas court or before any Texas
administrative body, or holding himself out to others or using his name in any
matter in conjunction with the words “attorney,” “counselor at law,” or
“lawyer.”
The court cannot enforce a disbarment prior to when it loses it plenary
power.
It is further ORDERED that on or
before the expiration of thirty (30) days from the 27th day of
August, 2003, Respondent shall notify each of his current clients in writing of
this disbarment. In addition, Respondent
is ORDERED to return all files, papers, monies (including unearned fees), and
other property belonging to clients in Respondent’s possession to the
respective clients or another attorney at the client’s or former client’s request. Respondent is ORDERED to file with this Court
on or before the 15th day of October, 2003, an affidavit stating
that all current clients have been notified of Respondent’s disbarment and that
all files, papers, monies (including unearned fees), and other property
belonging to clients have been returned as ordered in this Judgment, together
with a true and correct copy of any communication directed to the clients and a
list setting forth the name and addresses of the intended recipients of the
communications. In the event Respondent
is unable to comply in any respect with this requirement, he shall state with
particularity under oath what client or clients he was unable to contact and
what efforts he made to comply with this order.
The court cannot enforce a disbarment prior to when it loses it plenary
power.
It is further ORDERED that on or
before the expiration of thirty (30) days from the 27th day of
August, 2003, Respondent shall notify in writing each and every court in which
Respondent has any matter pending of the terms of this Judgment, the style and
cause number of the pending matters in which Respondent appears as an attorney,
together with the name, address, and telephone number of the client Respondent
is representing in that court.
The court cannot enforce a disbarment prior to when it loses it plenary
power.
It is further ORDERED that Respondent
surrender his
The court cannot enforce a disbarment prior to when it loses it plenary
power.
It is further ORDERED, ADJUDGED, and
DECREED that Respondent pay to the State Bar of Texas (hereinafter called the
“SBOT”) the amount of Thirty-One Thousand Two Hundred Sixty Dollars and No
Cents ($31,260.00) (These attorney fees
need to be separated by individual complaints) as attorneys’ fees to the
State Bar of Texas on or before the 1st day of December, 2003. Payment shall be made in the form of a
certified cashier’s check or money order and shall be made payable to the State
Bar of Texas and remitted to Chief Disciplinary Counsel, State Bar of Texas,
Attention J.G. Molleston, Assistant Disciplinary Counsel, 1111 Fannin,
The court cannot enforce a disbarment prior to when it loses it plenary
power.
It is further ORDERED, ADJUDGED, and
DECREED that Respondent pay to Johnell Collins, by and through the State Bar of
Texas, the amount of One Thousand Five Hundred Sixty Dollars and No Cents
($1,560.00) as restitution on or before the 1st day of December,
2003. Such payment shall be made in the
form of a certified cashier’s check or money order and shall be made payable to
Johnell Collins and remitted to the State Bar of Texas, Attention J.G.
Molleson, Assistant Disciplinary Counsel, 1111 Fannin,
The court cannot enforce a disbarment prior to when it loses it plenary
power.
Further, Collins restitution is barred by res judicata and this section must be deleted.
It is further ORDERED, ADJUDGED, and
DECREED that Respondent pay to John Lang, by and through the State Bar of
Texas, the amount of Nine Hundred Thirty Dollars and No Cents ($930.00) as
restitution on or before the 1st day of December, 2003. Such payment shall be made in the form of a
certified cashier’s check or money order and shall be made payable to John Lang
and remitted to the State Bar of Texas, Attention J.G. Molleson, Assistant
Disciplinary Counsel, 1111 Fannin,
The court has no authority to award non trust monies as restitution. The section must be struck.
It is further ORDERED, ADJUDGED, and
DECREED that Respondent pay to Helene Fraser-Nash, by and through the State Bar
of Texas, the amount of Five Hundred Dollars and No Cents ($500.00) as
restitution on or before the 1st day of December, 2003. Such payment shall be made in the form of a
certified cashier’s check or money order and shall be made payable to Helene
Fraser-Nash and remitted to the State Bar of Texas, Attention J.G. Molleson,
Assistant Disciplinary Counsel, 1111 Fannin,
The court has no authority to award non trust monies as restitution. The section must be struck.
It is further ORDERED, ADJUDGED, and
DECREED that Respondent pay to Darlene Williams, by and through the State Bar
of Texas, the amount of Three Hundred Seventy-five Dollars and No Cents
($375.00) as restitution on or before the 1st day of December,
2003. Such payment shall be made in the
form of a certified cashier’s check or money order and shall be made payable to
Johnell Collins and remitted to the State Bar of Texas, Attention J.G.
Molleson, Assistant Disciplinary Counsel, 1111 Fannin,
The court has no authority to award non trust monies as restitution. The section must be struck.
All attorneys’ fees, costs, and
restitution amounts ordered herein are due to the misconduct of the attorney
and are assessed as a part of the sanction in accordance with Rule 1.06(t) of
the
It is further ORDERED that the Clerk
of this Court shall forward one (1) certified copy of the Second Disciplinary
Petition on file in this case, along with a copy of this Judgment, to the Clerk
of the Supreme Court of Texas, Supreme Court Building, Austin, Texas 78711, to
the General Counsel of the State Bar of Texas, P.O. Box 12487, Austin, Texas,
78711, and to Respondent, John WorldPeace, Pro Se, 2620 Fountainview, Houston,
Texas 77057.
This cannot be done until the court loses its plenary power.
It is further ORDERED that the Clerk
of this Court shall forward two (2) certified copies of the Second Amended
Disciplinary Petition on file in this case, along with a copy of this Judgment,
to the State Bar of Texas, Attention J.G. Molleston, Assistant Disciplinary
Counsel, 1111 Fannin,
All relief not expressly granted in
this Judgment is DENIED.
This mother hubbard clause must be struck because so many of WorldPeace’s
issues and causes have not been adjudicated.
The court cannot arbitrarily dismiss WorldPeace lawsuit by use of a
mother hubbard cause.
Signed in Harris County, Texas, this
27th day of August, 2003.
____________________________________
THE
HONORABLE JAMES R FRY
SPECIALLY
APPOINTED JUDGE
******************************************************************************
VIII. JUDGMENT FOR DISBARMENT OF
A. In pretrial the court denied Lang’s Motion to
Dismiss and sua sponte several out
WorldPeace’s Counterclaims.
CONCLUSION
1)
Per Rule 3.02 TRDP, the court had no personal or
subject matter jurisdiction from the Supreme Court to hear the additional five
complaints added by the Commission ten weeks after the Commission filed its
initial lawsuit against WorldPeace.
Therefore the Judgment for Disbarment as it relates to those complaints
is void.
2)
The trial court abused its discretion by severing
WorldPeace’s mandatory counterclaims against Lang and Apodaca and therefore the
entire
3)
The complaint against WorldPeace by Collins and the
Commission was barred by res judicata
and collateral estoppel and therefore this part of the Judgment for Disbarment must
be vacated.
4)
The alleged Rule 1.03 TDRPC violations were not proven
up by an expert witness for the Commission and the court refused to allow
WorldPeace to testify as an expert witness even though he had so designated
himself. Therefore, these Rule
violations must be vacated from the Judgment.
5)
The trial court abused its discretion by disbarring
WorldPeace for asserting his Fifth Amendment rights in the grievance
investigating process and therefore these violations must be vacated from the
Judgment.
6) The court did not find that each violation of
the TDRPC resulted in disbarment and this section of the Judgment must be modified.
7) The court granted the Commission’s Motion to
Sever WorldPeace’s Constitutional Counterclaims in pretrial. However, in the Judgment of Disbarment of
8) The trial court never ruled on WorldPeace’s
Declaratory Judgment nor WorldPeace’s Counterclaims against Johnell Collins but
wrongly tried to dismiss those issues with a mother hubbard clause.
For these reasons, supported by the
facts, authorities and arguments below, this court should vacate its Judgment
of Disbarment or significantly modify it.
WorldPeace
prays this court to vacate or modify the trial court’s Judgment of Disbarment
and for such other and further relief at law or in equity as this court deems
proper.
______________________________
John
WorldPeace
2620
Fountain View,
TBA
No. 21872800
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
______________________________
John
WorldPeace
EXHIBITS
FILED AS
SEPARATE DOCUMENT
Exhibit Description
“A” DISCIPLINARY PETITION – 93-018049; The State Bar of
“B” ORDER OF DISMISSAL - 93-018049; The State Bar of
“C” RETAINER
FEE AGREEMENT
“D” FINAL JUDGMENT AGAINST ALVIN ARBUCKLE and ORDER OF NON-SUIT OF
ALL OTHER DEFENDANTS
“E” Respondent’s
Election & Principal Place of Practice
Certification. (Trial De
Novo).
Letter from Arnemann regarding Petition will be
filed with the
Supreme Court for:
Collins
Lynch
Lang
Nash
Reilly
Williams
“F” Local Rules of
“G” ORDER DENYING MOTION TO CONSOLIDATE
“H” TAKE NOTHING JUDGMENT AND AWARD OF RULE 13 SANCTIONS
“I” AMENDED TAKE NOTHING JUDGMENT AND AWARD OF RULE 13 SANCTIONS
“J” DEFENDANT’S SIXTH AMENDED ORIGINAL ANSWER AND COUNTERCLAIMS
AND THIRD PARTY CLAIMS
“K” RESPONDENT’S MOTION TO DISMISS AND/OR MOTION FOR CONSOLIDATION
PLEA TO THE JURISDICTION
“L” JUDGMENT OF DISBARMENT
“M” WORLDPEACE’S AMENDED MOTION FOR NEW TRIAL
“N”
“O” JURY CHARGE
“P” ORIGINAL PETITION - Commission
v. WorldPeace
“Q” Collins ORIGINAL ANSWER in WorldPeace
v. Collins
“R” FIRST AMENDED PETITION in WorldPeace
v. Collins
"S" Article 6687-9a
"T" Affidavit of Salvage rendition by Angela
Nolte
"U" Williams Promissory Notes
"V" Property Code
"W" COMMISSION MOTION TO SEVER
"X" RESPONDENT'S RESPONSE TO PETITIONER'S MOTION
TO SEVER
"Y" TRANSCRIPTION OF PRE-TRIAL DATED
"AA"
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