TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL...................................................................ii

TABLE OF CONTENTS...................................................................................................iii

INDEX OF AUTHORITIES................................................................................................v

STATEMENT OF THE CASE.........................................................................................vii

STATEMENT OF JURISDICTION................................................................................viii

ISSUES PRESENTED.......................................................................................................ix

STATEMENT OF FACTS ……………………………………………………………….1

ISSUE ONE.........................................................................................................................5

Is it an abuse of discretion for the trial court to refuse to clarify its Order of Severance which conflicts with its Order for Summary Judgment and its Judgment for Disbarment all of the same date?

ISSUE TWO………………………………………………………………………………5

Is it an abuse of discretion for the trial court to carelessly use legal terms and create confusion in its oral and written orders? Does the word “sever” refer exclusively to Rule 41 TRCP because it uses “sever” in the Rule and means separate lawsuits or can “sever” be carelessly used to apply to Rule 174(b) TRCP which has to do with separate trials within one lawsuit and does not use the word “sever”?

ISSUE THREE…………………………………………………………………………….5

Is it an abuse of discretion for the trial court to consider a Motion for No-evidence Summary Judgment filed under the wrong cause number?

ISSUE FOUR……………………………………………………………………………5

Does Rule 15.05 TRDP modify Rule 97(a) TRCP per Rule 3.08(B) TRDP such that Rule 97(a) does not apply to a Rule 41 TRCP or a Rule 174(b) TRCP Order in a disciplinary petition?

ISSUE FIVE………………………………………………………………………………5

Is a complainant in a disciplinary petition the same as a party per 97(a) TRCP because of the privity created between the Commission and the complainant per Rule 4.06A TRDP when the Respondent sues the complainant under a Third Party claim in a disciplinary petition or does the Commission become the party per Rule 97(a) and therefore the Respondent must file a counterclaim against the Commission as opposed to a Third Party Claim against the complainant?

ARGUMENT……………………………………………………………………….……..6

PRAYER............................................................................................................................15

APPENDIX……………………………………………………………………….……...17

AFFIDAVIT OF JOHN WORLDPEACE…………………………………………….…18

INDEX OF AUTHORITIES

A. CASES

Bohart v. First National Bank in Dallas …………………………………..……………...14

536 SW2d 234, 235-6 (Tex. App. – Eastland, 1976)

Crouch v. Gleason…………………………………………………………………………6

875 S.W. 2d 738, 739 (Tex. App. – Amarillo 1994)

Guajardo v. Conwell……………………………………………………………………..11

46 S.W. 3d 862, 863-4 ( Tex. 2001)

Hartford Accident & Indemnity Company v. Abascal……………………………………6

831 S.W. 2d 559, 563 (Tex. App. – San Antonio 1992)

Iley v. Hughes…………………………………..………………………………………..13

311 S.W. 2d 648, 651 ( Tex. 1958)

Lehmann v. Har-Con Corp………………………………………………………………11

39 S.W. 3d 191, 192-3 ( Tex. 2001)

Mathis v. Bill de la Garza & Associates, P.C. …………………………………………..10

778 SW2d 105, 106-7 (Tex. App. – Texarkana, 1989)

Monroe v. Blackmon……………………………………………………………………...6

946 S.W. 2d 533, 536 (Tex. App. – Corpus Christi 1997)

Ryland Group, Inc. v. White…………………………………..…………………………14

723 SW2d 160, 161-2 ( Tex. App. – Hous. (1 Dist.) 1986)

Spangler v. Hickey…………………………………..…………………………………...14

401 SW2d 721, 723 (Tex. App. – Tyler, 1966)

Vautrain v. Vautrain…………………………………..………………………………….13

646 S.W. 2d 309, 309 (Tex. App. – Fort Worth 1983)

Wyatt v. Shaw Plumbing Company…………………………………..………………….14

760 SW2d 245, 246-7 ( Tex. 1988)

STATUTES

Rule 3.08 Texas Rules of Disciplinary Procedure………………………………………..5

Rule 3.14 Texas Rules of Disciplinary Procedure……………………………………..5, 9

Rule 4.06(a) Texas Rules of Disciplinary Procedure…………………………………5, 15

Rule 15.05 Texas Rules of Disciplinary Procedure…………………………………..5, 15

Rule 41 Texas Rules of Civil Procedure……………………………...1, 5, 8, 9, 12, 13, 15

Rule 97(a) Texas Rules of Civil Procedure…………………………………………..5, 15

Rule 174(b) Texas Rules of Civil Procedure…………………..1, 3, 5, 8, 9, 11, 12, 13, 15

Rule 44 Texas Rules of Appellate Procedure………………………………………….....9

The Supreme Court has jurisdiction to issue a Writ of Prohibition/Mandamus against a district judge under Section 22.002(a) of the Government Code and Article V. Section 3 of The Texas Constitution.

Is it an abuse of discretion for the trial court to refuse to clarify its Order of Severance which conflicts with its Order for Summary Judgment and its Judgment for Disbarment all of the same date?

Is it an abuse of discretion for the trial court to consider a Motion for No-evidence Summary Judgment filed under the wrong cause number?

Does Rule 15.05 TRDP modify Rule 97(a) TRCP per Rule 3.08(B) TRDP such that Rule 97(a) does not apply to a Rule 41 TRCP or a Rule 174(b) TRCP Order in a disciplinary petition?

TO THE HONORABLE JUSTICES OF THIS COURT:

STATEMENT OF FACTS

On April 9, 2003, John Lang, complainant and Third Party Defendant filed a 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. (Record “1”)

On April 9, 2003 , the Commission filed a PETITIONER’S MOTION FOR SEVERANCE of WorldPeace’s religious discrimination, political discrimination (free speech) and intentional infliction of emotional distress counterclaims. (Record “10”)

The Commission’s Motion for Severance used the word sever and in its prayer the Commission prayed for severance but the motion cited Rule 174(b) TRCP (Record “11”) which is for separate trials within one lawsuit and does not use the word sever. Only Rule 41 TRCP uses the word sever.

The language used by the Commission was, to wit: “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.”

This is Rule 41 TRCP severance language not Rule 174(b) separate trial language.

On April 14, 2003 , in pre-trial, Judge Fry said that he was denying Lang’s Motion to Dismiss and was severing WorldPeace’s counterclaim against Lang and Apodaca and severing WorldPeace’s constitutional counterclaims and trying only the TDRPC rule violations. (Record “20-22”) WorldPeace’s other causes of action were not specifically mentioned at pre-trial.

After a trial on the TDRPC Rule violations, on April 23, 2003 , Judge Fry signed a Judgment for Disbarment against WorldPeace but did not sign a severance order memorializing his pre-trial oral rulings. (Record “308”)

On June 23, 2003 , Judge Fry signed an Order Setting Aside his April 23, 2003 , Judgment for Disbarment. (Record “314”)

On July 1, 2003 , the Commission filed Petitioner’s Second Motion for No-evidence Summary Judgment.

Only July 21, 2003 , WorldPeace responded to the Commission’s July 1, 2003 , Second Motion for No-Evidence Summary Judgment and complained that Judge Fry refused to sign a severance order in line with his pretrial severance rulings and therefore WorldPeace questioned which cause number was valid regarding the Commission’s Second Motion for No-evidence Summary Judgment. (Record “57-59”)

On August 5, 2003 , WorldPeace filed a Motion for a Severance Order which Judge Fry refused to hear. (Record “131”)

On August 27, 2003, Judge Fry signed a Judgment for Disbarment, which stated, to wit, “Prior to trial, the Court granted the Commission for Lawyer Discipline’s Motion to Sever Third-Party Claims against John Lang and Philip Apodaca. The order dated the 27^th day of August, 2003, is incorporated herein by reference.” (Record “144”)

However, the Commission’s Motion for Severance did not plead to sever Lang and Apodaca, but pled to sever WorldPeace’s counterclaim for religious and political (free speech) discrimination and WorldPeace claims for Intentional Infliction of Emotional Distress. (Record “12”)

For the first time ever, Judge Fry in his August 27, 2003 , Judgment for Disbarment mentioned Rule 174(b), to wit: 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 27^th day of August, 2003, and incorporated in this Judgment by reference.

On August 27, 2003 , Judge Fry signed an Order of Severance severing WorldPeace’s counterclaims against Lang and Apodaca and granting the Commission’s Motion to Sever, which pled WorldPeace’s religious and political (free speech) discrimination counterclaims and WorldPeace’s counterclaims for intentional infliction of emotional distress but did not plead the Lang and Apodaca claims. (Record “10”)

Judge Fry’s August 27, 2003 , Order for Severance 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 Philip 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. (Record “10”)

Judge Fry’s August 27, 2003, Order of Severance duplicates the language of Judge Fry’s April 14, 2003, pretrial oral severance of both WorldPeace’s Lang and Apodaca Third Party Claims and WorldPeace’s constitutional counterclaims. (Record “20-22”)

Included in the Commission’s Second Motion for No-evidence Summary Judgment were the counterclaims for religious and political discrimination and WorldPeace’s counterclaims for intentional infliction of emotional distress which had been severed by the August 27, 2003 , Order for Severance into the “A” lawsuit. (Record “29-31, 40-42”)

On September 26, 2003 , WorldPeace filed WORLDPEACE SECOND AMENDED MOTION TO VACATE OR MODIFY JUDGMENT OF DISBARMENT OF AUGUST 27, 2003 . (Record “153”)

On November 5, 2003 , WorldPeace filed a RESPONDENT’S SHORT HAND RENDITION REGARDING RESPONDENT’S MOTION FOR NEW TRIAL, RESPONDENT’S MOTION TO MODIFY, AND PETITIONER’S MOTION FOR SUMMARY JUDGMENT. (Record “194”)

On November 6, 2003 , WorldPeace filed WORLDPEACE THIRD AMENDED MOTION TO VACATE OR MODIFY JUDGMENT OF DISBARMENT OF AUGUST 27, 2003 . (Record “222”)

On November 7, 2003 , Judge Fry signed his ORDER ON WORLDPEACE’S SECOND AMENDED MOTION TO VACATE OR MODIFY JUDGMENT OF DISBARMENT denying WorldPeace’s motion. (Record “264”)

REQUIREMENTS FOR MANDAMUS

1) There is no remedy on appeal because per Rule 3.14 Texas Rules of Disciplinary Procedure (Appendix) a Judgment for Disbarment cannot be superseded or stayed. 2) Judge Fry’s actions in the underlying disciplinary petition as presiding judge are a clear abuse of discretion. 3) The Texas Disciplinary Rules of Professional Conduct affect over 67,000 attorneys in Texas and so WorldPeace’s Application for Writ of Mandamus regarding the underlying disciplinary petition is important to the jurisprudence of the state.

ISSUE ONE: Is it an abuse of discretion for the trial court to refuse to clarify its Order of Severance which conflicts with its Order for Summary Judgment and its Judgment for Disbarment all of the same date?

ISSUE TWO: Is it an abuse of discretion for the trial court to carelessly use legal terms and create confusion in its oral and written orders? Does the word “sever” refer exclusively to Rule 41 TRCP because it uses “sever” in the Rule and means separate lawsuits or can “sever” be carelessly used to apply to Rule 174(b) TRCP which has to do with separate trials within one lawsuit and does not use the word “sever”?

ISSUE THREE: Is it an abuse of discretion for the trial court to consider a Motion for No-evidence Summary Judgment filed under the wrong cause number?

ISSUE FOUR: Does Rule 15.05 TRDP modify Rule 97(a) TRCP per Rule 3.08(B) TRDP such that Rule 97(a) does not apply to a Rule 41 TRCP or a Rule 174(b) TRCP Order in a disciplinary petition?

ISSUE FIVE: Is a complainant in a disciplinary petition the same as a party per 97(a) TRCP because of the privity created between the Commission and the complainant per Rule 4.06A TRDP when the Respondent sues the complainant under a Third Party claim in a disciplinary petition or does the Commission become the party per Rule 97(a) and therefore the Respondent must file a counterclaim against the Commission as opposed to a Third Party Claim against the complainant?

AUTHORITIES: ABUSE OF DISCRETION

“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)

“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)

“Aside from the “clear abuse of discretion” threshold set forth in Walker , supra, the supreme court has also stated that mandamus will lie to correct a “gross” abuse of discretion by the trial court. State v. Sewell, 487 S.W. 2d 713, 718 ( Tex. 1972). “The relator must establish, under the facts of the case, that the facts and law permit the trial court to make but one decision.” Johnson v. Fourth Court of Appeals, 700 S.W. 2d 916, 917 ( Tex. 1985). Put differently: “[A] clear abuse of discretion, when utilized as the basis for an original mandamus proceeding, refers to the unique situation wherein the lower court, exercising a ‘discretionary’ authority, has but one viable course to follow and one legitimate way to decide the question presented, but instead issues a contrary ruling.” Cessna Aircraft Co. v. Kirk, 702 S.W. 2d 321, 323 (Tex. App. – Eastland 1986, orig. proceeding).”
Monroe v. Blackmon, 946 S.W. 2d 533, 536 (Tex. App. – Corpus Christi 1997)

ARGUMENT

The problem with Judge Fry’s August 27, 2003, Order of Severance, Order for Summary Judgment and Judgment for Disbarment is that they conflict with each other and are unclear when read together.

WorldPeace would show the court that Judge Fry’s August 27, 2003 , Order of Severance granted the Commission’s Motion to Sever WorldPeace’s counterclaims on religious and political (free speech) discrimination and WorldPeace’s counterclaim for Intentional Infliction of Emotional Distress. In addition, the severance order severed WorldPeace’s Lang and Apodaca Third Party counterclaims all into an “A” case. (Record “152”) This order was exactly what Judge Fry ruled at pre-trial. (Record “20-22”)

The Commission never requested a severance of the Lang and Apodaca lawsuits in its April 9, 2003 , Motion for Severance. (Record “12”) The court sua sponte severed Lang and Apodaca after denying John Lang’s Motion to Dismiss (Record “20”) at pretrial on April 14, 2003 .

On August 27, 2003 , the court granted the Commission’s Second Amended Motion for No-evidence Summary Judgment (Record “151”) which was filed under the original cause of action’s number and not under the severed “A” cause of action.

Judge Fry incorporated his Order of Severance (Record “152”) and the Order for Summary Judgment (Record “151”) into his August 27, 2003 , Judgment for Disbarment. (Record “144”)

Judge Fry refused to sign a severance order memorializing his April 14, 2003 , pre-trial ruling until August 27, 2003 , when he signed the Judgment for Disbarment and the order granting the Summary Judgment for the Commission.

WorldPeace had objected to the fact that there was no severance order in his Response to the Commission’s Second Motion for No-evidence Summary Judgment (Record “57-59”) on July 21, 2003, and also filed a Motion to Sever (Record “131”) on August 5, 2003, which Judge Fry refused to set for a hearing.

There is a conflict between the Order for Severance and the Judgment for Disbarment because the Order of Severance (Rule 41 TRCP) severs the constitutional claims of religious and political discrimination and the Judgment for Disbarment makes a Rule 174(b) TRCP separate trials ruling on the constitutional counterclaims by incorporating the August 27, 2003 , Summary Judgment Order. (Record “152”)

The Order of Severance specifically severed out two of WorldPeace’s constitutional counterclaims and the Intentional Infliction of Emotional Distress into the “A” case and appears to have left the rest of the constitutional issues in the primary case.

There is also an issue as to which lawsuit (Cause No. 2002-42081 or Cause No. 2002-42081-A) WorldPeace’s issues of declaratory judgment which was filed on August 13, 2003 , (Record “142”) will be adjudicated.

WorldPeace’s declaratory judgment issue (Record “142”) can be tried in the “A” case (2002-42081-A) and therefore cannot be completely dismissed for not being timely filed in the primary lawsuit (2002-42081) as alluded to in Judge Fry’s August 27, 2003 , Order for Summary Judgment. (Record “151”)

These problems were created by Judge Fry’s refusal to issue a severance order prior to the time he issued his Judgment for Disbarment.

Judge Fry says he only severed the Lang and Apodaca counterclaims as requested by the Commission. But the Commission’s Motion for Severance says nothing about Lang and Apodaca but only pleas for severance of the religious and political (free speech) discrimination and intentional infliction of emotional distress counterclaim. (Record “12”)

In its Motion for Severance, the Commission used “sever” and it prayed for severance but cited Rule 174(b) TRCP as opposed to Rule 41 TRCP. (Record “10-12”)

Rule 41 TRCP is about severance and separate lawsuits (Appendix). Rule 174(b) TRCP (Appendix) is about separate trials in one lawsuit.

Judge Fry used the word “sever” in his oral pretrial ruling (Record “20-22”) as well as his post trial ruling (Record “17”) regarding both Lang and Apodaca as well as WorldPeace’s constitutional counterclaims and his Order of Severance of August 27, 2003, reflects those pre-trial rulings. (Record “152”) In his Order for Severance, Judge Fry used severance in the title of his Order and gave the severed cases an “A” case designation per the local rules of Harris County for severed lawsuits.

WorldPeace has a right to have the three August 27, 2003, orders make sense and not conflict with each other. It is an abuse of discretion for Judge Fry to refuse to clarify his orders when it has been pointed out to him by WorldPeace’s post trial motions (Record “199-203”) that the orders conflict with each other.

It is nonsense that WorldPeace and the Appellate courts be required to opine what Judge Fry was thinking especially when WorldPeace filed a Motion to Vacate, Modify or clarify the Orders. (Record “200-203”) The Appeals Court through Rule 44 TRAP can order Judge Fry to clarify his orders but since WorldPeace has no remedy on appeal due to Rule 3.14 TRDP (no supersedeas on appeal) Judge Fry’s confusing orders will have the effect of an arbitrary de facto disbarment of WorldPeace.

WorldPeace cannot be expected to appeal from disjunctive orders.

It is an abuse of discretion for Judge Fry to try to foist these disjunctive orders on WorldPeace, the trial courts in Harris County and the Appellate courts by refusing to respond to WorldPeace’s Motion to Modify and Clarify his three orders of August 27, 2003.

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. (Record “17, 20-22”) The court’s April 23, 2003 , Judgment for Disbarment (Not the August 27, 2003 Judgment for Disbarment) is evidence of the severance of the TDRPC Rule violations because the “mother hubbard” clause in that April 23, 2003 , Judgment for Disbarment, made it final and that Judgment for Disbarment referenced no other issues but the TDRPC violations. It was a final order on the severed Rule violations per Mathis below.

“Appellee argues that the trial court’s order can be construed as an order for separate trial of issues as permitted by Tex. R. CIv. P. 174(b), rather than a severance. We cannot agree. The trial court on several occasions referred to the order as one of severance, and stated that he was severing the counterclaim “from this case” and “completely out of this matter.” Moreover, the order here is one of severance in fact as well as in name, because at the conclusion of the trial a final judgment was rendered.”
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 and tried. (Record “308”)

However, since no severance order was entered on April 23, 2003 , the April 23, 2003, Judgment for Disbarment became a global final judgment due to the “mother hubbard” clause. Had WorldPeace not timely filed a Motion to Modify, under Mafrige and under Lehman since there was a trial, all of WorldPeace’s counterclaims could have been poured out.

“In Lehmann, we held that a judgment is final for purposes of appeal in circumstances like those of this case “If and only if either it actually disposes of all claims and parties then before the court, or it states with unmistakable clarity that it is a final judgment. Id at 192. We apply this rule to the present case.
As we held in Lehmann, “Mother Hubbard” language like that contained in the July 9 summary judgment does not indicate finality.
Guajardo v. Conwell; 46 S.W. 3d 862, 863-4 ( Tex. 2001)

“We no longer believe that a Mother Hubbard clause in an order or in a judgment issued without a full trial can be taken to indicate finality. We therefore hold that in cases in which only one final and appealable judgment can be rendered, a judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.”
Lehmann v. Har-Con Corp.; 39 S.W. 3d 191, 192-3 ( Tex. 2001)

Fortunately, Judge Fry set aside the April 23, 2003 , Judgment for Disbarment on June 23, 2003 . (Record “314”) But he did so without comment.

Judge Fry ordered a Rule 41 TRCP severance of WorldPeace’s Lang and Apodaca counterclaims and WorldPeace’s constitutional counterclaims for religious and political (free speech) discrimination on August 27, 2003, in his Order of Severance (Record “152”) and a Rule 174(b) separate trial ruling in his August 27, 2003 Judgment for Disbarment. (Record “144”) The two orders when read together do not make sense.

The Commission filed a Motion for Severance on April 9, 2003 , but referenced Rule 174(b) TRCP as opposed to Rule 41 TRCP. (Record “11”) The court never made a specific oral ruling at pre-trial on the Commission’s Motion for Severance, but the court used the word SEVER regarding the Lang and Apodaca counterclaims and WorldPeace constitutional counterclaims and the TRDPC violations: meaning Rule 41 TRCP.

Judge Fry seems to be saying that sever meant sever with Lang and Apodaca and sever meant separate trials with regards to the Commission’s Motion to Sever.

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. (Record “17, 20-22”)

WorldPeace has been disadvantaged because WorldPeace would have tried the case differently had WorldPeace understood the court’s pre-trial April 14, 2003 , oral severance rulings to mean Rule 174(b) TRCP separate trials as opposed to Rule 41 TRCP separate lawsuits.

WorldPeace would have pointed out to the court how the Constitutional issues and Lang and Apodaca Third Party Claims 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. For example, Rule 174(b) TRCP does not allow the court to try liability and damages separately. Ryland below.

WorldPeace believes that it is an abuse of discretion to have a Rule 41 or Rule 174(b) separation of TDRPC Rule violations and the Respondent’s Third Party claims when both are grounded on the exact same transaction. If one is tried to the jury both need to be tired to the jury.

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 ( Tex. 1958)

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 has a right to expect Judge Fry to know the nuances of the law and a right to expect Judge Fry to use statutory terms properly in his rulings.

WorldPeace has a right to expect Judge Fry 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.

AUTHORITIES -- ABUSE OF DISCRETION REGARDING SEVERANCE

WorldPeace also alleges that it is an abuse of discretion to sever Rule 97(a) TRCP compulsory counterclaim.

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

“…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…”
Bohart v. First National Bank in Dallas , 536 SW2d 234, 235-6 (Tex. App. – Eastland, 1976)

“For a severance to be proper, the following elements are necessary: (1) the controversy must involve more than one cause of action, (2) the severed cause must be one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed causes must not be so intertwined as to involve the same identical facts and issues.” …An order that splits a single cause of action, or that severs compulsory counterclaims from the primary suit, will constitute an abuse of discretion. See Nueces County Hospital District v. Texas Health Facilities Commission, 576 SW2d 908 (Tex.Civ.App. – Austin 1979, no writ).
These pleadings clearly illustrate that the alleged personal injury and property claims arose from a single wrongful act and should not be severed.
Ryland Group, Inc. v. White, 723 SW2d 160, 161-2 ( Tex. App. – Hous. (1 Dist.) 1986)

It has long been the policy of the courts and the legislature of this state to avoid multiplicity of lawsuits. The need for judicial economy has recently become more acute because the dockets of our trial courts are overburdened, and litigants must wait far too long for their cases to be heard. In keeping with the policy to avoid multiple lawsuits, Texas Rule of Civil Procedure 97(a) was promulgated. If a claim meets these elements, it must be asserted in the initial action.
Wyatt v. Shaw Plumbing Company, 760 SW2d 245, 246-7 ( Tex. 1988)

To sever compulsory counterclaims is an abuse of discretion. Judge Fry, on August 27, 2003 , severed the Lang and Apodaca Third Party Claims as well as WorldPeace’s counterclaims for religious and political (free speech) discrimination and intentional infliction of emotional distress into an “A” lawsuit. (Record “152”)

The Commission steps into the shoes of a complainant per Rule 4.06(A) TRDP (Appendix) in a disciplinary petition and WorldPeace’s claims against Third Party Defendants Lang and Apodaca were based on the same facts and transactions that form the basis of the TDRPC violations.

There is a question as to whether Rule 15.05 TRDP conflicts with or modifies

Rule 97(a) TRCP. WorldPeace asserts that it does not.

WorldPeace asserts that when the Commission steps into the shoes of the complainant per Rule 4.06(a) TRDP there is a question as to whether WorldPeace should file his causes of action against the Complainants as counterclaims against the Commission or Third Party claims against the Complainants. In either case, WorldPeace’s claims against the complainants are Rule 97(a) claims.

Regardless, it is an abuse of discretion to try TDRPC violations separately (Rule 41 or Rule 174(b)) from an attorney’s claim for fees when both are based upon the exact same transactions.

To try these issues separately deprives the attorney from marshalling all of his evidence in defending against causes of action for TDRPC violations.

PRAYER

WHEREFORE, premises considered, WorldPeace moves this court to order Judge Fry to modify his August 27, 2003 , orders such that they do not conflict with each other and for such other and further relief at law or in equity as this court may deem proper.

Respectfully submitted,

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

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 13, 2003 , by fax and to the Clerk of the Supreme Court of Texas on November 13, 2003 , via HAND DELIVERY.

John WorldPeace

CERTIFICATE OF CONFERENCE

Opposing Counsel opposes the RELATOR’S APPLICATION FOR MANDAMUS.

____________________________________
John WorldPeace

APPENDIX

EXHIBIT DESCRIPTION

A. August 27, 2003 ORDER OF SEVERANCE

B. August 27, 2003 ORDER GRANTING PETITIONER’S SECOND MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT

C. August 27, 2003 JUDGMENT FOR DISBARMENT

D. November 7, 2003 ORDER ON WORLDPEACE’S SECOND AMENDED MOTION TO VACATE OR MODIFY JUDGMENT OF DISBARMENT OF AUGUST 27, 2003

Rule 3.14 Texas Rules of Disciplinary Procedure

Rule 4.06(a) Texas Rules of Disciplinary Procedure

Rule 15.05 Texas Rules of Disciplinary Procedure

Rule 41 Texas Rules of Civil Procedure

Rule 97(a) Texas Rules of Civil Procedure

Rule 174(b) Texas Rules of Civil Procedure

Rule 44 Texas Rules of Appellate Procedure

NO. 03-1049

IN THE SUPREME COURT

OF TEXAS

______________________________

IN RE:

JOHN WORLDPEACE

______________________________

Re: Cause No. 2002-42081; Commission for Lawyers Discipline v. John WorldPeace, 269^th District Court

Harris County , Texas

______________________________________________________________________

AFFIDAVIT OF JOHN WORLDPEACE, ATTORNEY AT LAW

______________________________________________________________________

STATE OF TEXAS

COUNTY OF HARRIS

BEFORE ME, the undersigned authority, on this day personally appeared the affiant, John WorldPeace, who being by me first duly sworn, on his oath stated:

My name is John WorldPeace, I am over 21 years of age, of sound mind, capable of making this affidavit and fully competent to testify to the matters stated herein, have personal knowledge of each of the matters stated herein, and the facts contained in this affidavit are true.

The exhibits in the Appendix and Record attached to RELATOR’S Application for Writ of Mandamus are true and correct copies of the originals.

The transcript of the November 7, 2003 , hearing is a part of my business records, kept in the normal course of business. I recorded the hearing with two tape recorders and had my legal assistant transcribe the tapes and then I listened to the tapes and read the transcript and then edited the transcript. It is a standard practice of mine to record and transcribe parts or all of hearings as needed.”

SUBSCRIBED AND SWORN TO BEFORE ME on this _______ day of _________________, 2003.

____________________________________
NOTARY PUBLIC IN AND FOR THE
STATE OF TEXAS

A. April 9, 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

June 23, 2003 Order setting aside April 23, 2003 , Judgment for Disbarment is Record “S”

F. July 21, 2003 RESPONDENT’S response to PETITIONER’s SECOND motion for no-evidence summary judgment

G. July 21, 2003 DEFENDANT’S seventh amendED ORIGINAL ANSWER AND counterclaimS and third party CLAIMS

H. August 5, 2003 WORLDPEACE’S MOTION FOR ORDER OF SEVERANCE AND REQUEST FOR HEARING

K. August 27, 2003 Order Granting Petitioner’s Second Motion for No Evidence Summary Judgment

M. September 26, 2003 WORLDPEACE SECOND AMENDED MOTION TO VACATE OR MODIFY JUDGMENT OF DISBARMENT OF AUGUST 27, 2003

N. November 5, 2003 RESPONDENT’S SHORT HAND RENDITION REGARDING RESPONDENT’S MOTION FOR NEW TRIAL, RESPONDENT’S MOTION TO MODIFY, AND PETITIONER’S SUMMARY JUDGMENT

O. November 6, 2003 WORLDPEACE THIRD AMENDED MOTION TO VACATE OR MODIFY JUDGMENT OF DISBARMENT OF AUGUST 27, 2003

P. November 7, 2003             ORDER ON WORLDPEACE’S SECOND AMENDED
              MOTION TO VACATE OR MODIFY JUDGMENT OF
              DISBARMENT OF AUGUST 27, 2003

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?