NO. 2002-42081

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

RESPONDENT’S MOTION TO VACATE, MODIFY OR CLARIFY
THE COURT’S ORDER OF SEVERANCE
DATED AUGUST 27, 2003

TO THE HONORABLE JUDGE OF SAID COURT

COMES NOW, John WorldPeace, Defendant in the above styled and numbered cause, and files this RESPONDENT’S MOTION TO VACATE, MODIFY OR CLARIFY THE COURT’S ORDER OF SEVERANCE DATED AUGUST 27, 2003 and would show the Court the following:

FACTS

April 9, 2003, The Commission filed its MOTION FOR SEVERANCE.

April 9, 2003 Third Party Defendant John Lang filed THIRD PARTY DEFENDANT JOHN LANG’S MOTION FOR DISMISSAL OF WORLDPEACE’S THIRD PARTY CLAIM AS TO JOHN LANG AND RESPONSE TO WORLDPEACE’S MOTION TO DISQUALIFY COUNSEL FOR JOHN LANG. (Exhibit “G”)

April 14, 2003 The court, in pretrial, ruled on John Lang’s motion as follows: Judge Fry: Now, with regard to the motion to dismiss filed by Mr. Lang, here is what I am going to do. I’m going to deny the motion to dismiss. I am going to sever the third party claims against Land and Apodaca. Trial at a later time. That I think will let us move to the motion to disqualify.

(Exhibit “B”)

April 23, 2003 The court signed and entered a Judgment for Disbarment against WorldPeace. The Judgment for Disbarment did not mention any issues other than the TDRPC Rule violations that had been tried to the jury. No severance order was signed by the court.

June 23, 2003 The court signed an order setting aside the April 23, 2003, Judgment for Disbarment.

July 21, 2003 WorldPeace in his response to the Commission’s Second Amended Motion for No Evidence Summary Judgment complained about the lack of a severance order which had been ruled on by Judge Fry on April 14, 2003. (Exhibit “C”)

August 5, 2003 WorldPeace filed a Motion for Severance which Judge Fry refused to hear. (Exhibit “D”)

August 27, 2003 The court signed a second Judgment for Disbarment (Exhibit “E”), an order granting the Commission’s Second Amended Motion for No Evidence Summary Judgment, and an Order of Severance (Exhibit “F”). The court incorporated by reference the Order of Severance and Order granting the Summary Judgment into the Judgment for Disbarment.

ARGUMENT

The PETITIONER’S MOTION FOR SEVERANCE (Exhibit “A”) states:

Citing McGuire – This controversy involves more than one cause of action, each capable of being brought as separate suits with separate final judgments…“The allegations of Religious Discrimination, Political Discrimination and Intentional Infliction of Emotional Distress recently raised by Respondent are separate and independent claims which neither affect nor depend upon the result of the attorney disciplinary case which the court has been appointed to hear. Granting the Motion to Sever will avoid delays in the prompt resolution of the lawyer discipline case which the court was appointed to hear.”

The court’s August 27, 2003, Order of Severance, (Exhibit “F”) states, to wit: “On the 14^th day of April, 2003, this court considered the Commission for Lawyer Discipline’s Motion for Severance in the above-entitled and numbered cause. The court, after considering the pleadings and arguments of counsel, is of the opinion that the motion should be granted. It is, therefore, ordered, that the causes of action asserted by John WorldPeace against John Lang and Phillip Apodaca, third-party defendants, are severed from this action and made the subject of a separate action styled John WorldPeace v. John Lang and Philip Apodaca and having docket number 2002-42081- A.”

The order appears to have severed WorldPeace’s constitutional claims for religious discrimination and political discrimination (free speech) and Intentional Infliction of Emotional Distress as well as the counterclaims against John Lang and Phillip Apodaca.

It is an abuse of discretion to sever mandatory counterclaims. (Exhibit “H”)

The problem is that the Commission filed its Second Amended Motion for No Evidence Summary Judgment which attempted to address the causes of action for religious discrimination and political discrimination (free speech) and Intentional Infliction of Emotional Distress in the primary cause of action 2002-42081 as opposed to the severed 2002-42081-A cause of action into which it was severed per the local rules of Harris County.

Therefore, the court by its severance order granted a summary judgment for the Commission on these issues pled by the Commission within the wrong lawsuit where it was misfiled.

Further, there is no question but the court intended to sever the cause of action per Rule 41 TRCP as opposed to Rule 174(b) because only Rule 41 TRCP makes use of the word “sever”. Further, Rule 174(b) separate trials are not given a separate cause number because they are part of one underlying cause number which will result in one final judgment per Rule 301 TRCP.

CONCLUSION

Judge Fry undeniably severed the John Lang, Phillip Apodaca, religious discrimination, political discrimination (free speech) and Intentional Infliction of Emotional Distress into cause number 2002-42081-A.

It is an abuse of discretion to sever mandatory counterclaims.

It was an abuse of discretion for the trial court to grant a summary judgment regarding WorldPeace’s religious discrimination, political discrimination (free speech) and Intentional Infliction of Emotional Distress causes of action when they were filed in the wrong cause of action: 2002-42081 as opposed to 2002-42081-A.

PRAYER

Wherefore, premises considered, WorldPeace prays the court to set aside it August 27, 2003, Judgment for Disbarment, Order for Severance and Order granting Petitioner’s Second Amended Motion for No Evidence Summary Judgment because they are as written interrelated, conflicting, confusing, not final, unappealable, and chaotic; and for such other and further relief at law or in equity as this court deems proper.

Respectfully submitted,

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

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing pleading was forwarded to opposing counsel and Judge Fry on November 6, 2003 by fax.

_________________________________ John WorldPeace

EXHIBIT LIST

PETITIONER’S MOTION FOR SEVERANCE

APRIL 14, 2003, PRETRIAL SEVERANCE RULING BY JUDGE FRY

RESPONDENT’S RESPONSE TO PETITIONER’S SECOND MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT

WORLDPEACE’S MOTION FOR ORDER OF SEVERANCE AND REQUEST FOR HEARING

JUDGMENT OF DISBARMENT SIGNED ON AUGUST 27, 2003

ORDER OF SEVERANCE SIGNED ON AUGUST 27, 2003

THIRD PARTY DEFENDANT JOHN LANG’S MOTION FOR DISMISSAL OF WORLDPEACE’S THIRD PARTY CLAIM AS TO JOHN LANG AND RESPONSE TO WORLDPEACE’S MOTION TO DISQUALIFY COUNSEL FOR JOHN LANG

CASE LAW ON ABUSE OF DISCRETION REGARDING SEVERANCE

NO. 2002-42081

AFFIDAVIT OF JOHN WORLDPEACE

STATE OF TEXAS §

COUNTY OF HARRIS §

BEFORE ME, the undersigned authority, on this day personally appeared John WorldPeace, who being by me first duly sworn, on his oath did depose and state as follows:

“My name is John WorldPeace. I am over the age of eighteen years, have never been convicted of a felony or crime of moral turpitude, and am competent to make this affidavit. I am duly authorized and qualified to make this affidavit. I have personal knowledge of the facts stated herein, and they are true and correct.

The Exhibits attached to Respondent WorldPeace Motion to Vacate are true and correct copies of the original. The transcript of the pretrial conference in the above cause of action was recorded by WorldPeace in the regular course of business where WorldPeace as a practicing attorney has a pattern and practice of making audio recordings of judicial hearings in which he participates, transferring the digital recording to his computer and transcribing relevant parts of the recordings

Further affiant sayeth not.”

___________________________________
John WorldPeace

SUBSCRIBED AND SWORN TO BEFORE ME on this _____day of ___________, 2003.

                                                                                   ____________________________________
                                                                                   NOTARY PUBLIC IN AND FOR THE
                                                                                   STATE OF TEXAS

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