ISSUES PRESENTED
ISSUE ONE

            Did Judge Fry abuse his discretion by trying the disciplinary petition against WorldPeace which included the issue of restitution when the Complainant Collins was barred by res judicata from asserting a claim for restitution against Respondent WorldPeace?  

ISSUE TWO

            Does Rule 97(a) TRCP require a consolidation of a suit for fees by an attorney with a disciplinary petition filed two years later pursuant to Rule 3.01 TRDP when both suits are grounded in the same transaction and concern the same parties (attorney and client)?  

ISSUE THREE

            When the local rules of the county in which the Respondent attorney resides require that Motions to Consolidate be filed with the court where the first filed case is pending and there are no TRDP rules that override the local rules per Rule 3.08(b) TRDP, is it an abuse of discretion for the presiding judge of the non-disciplinary petition to refuse to consolidate the cases if each case is a Rule 97(a) TRCP compulsory counterclaim to the other case?  

ISSUE FOUR  

            Does the language “This is a Final Judgment, as amended.”  In the March 10, 2003 , Final Judgment in the WorldPeace v. Collins lawsuit, in fact create a Rule 301 TRCP final judgment under Lehmann when the Final Judgment does not dispose of all the parties who appeared in the lawsuit: specifically the Commission for Lawyer Discipline and Defendant Collins declaratory judgment issue was not adjudicated?  

ISSUE FIVE

            If the final judgment in the WorldPeace v. Collins lawsuit is not a final judgment, is it an abuse of discretion not to stay the WorldPeace v. Collins lawsuit, which is in fact a Rule 97(a) TRCP compulsory counterclaim to the underlying disciplinary petition which sued for restitution on behalf of Complainant Collins.

ISSUE SIX  

            Did Judge Fry abuse his discretion by trying a disciplinary petition where the Commission has already appeared in another lawsuit regarding the same underlying disciplinary petition and that lawsuit had been tried to finality without granting the Commission’s Plea to the Jurisdiction?  

ISSUE SEVEN

            Is it an abuse of discretion to sever per Rule 41 TRCP or have separate trials in one lawsuit per Rule 174(b) TRCP, the Respondent attorney’s cause of action for his attorney fees and the Commission’s cause of action for restitution when both are grounded in the same transaction and include the same parties?  

ISSUE EIGHT

            Must a Respondent attorney be forced to try his cause of action for attorneys fees as a Plaintiff in one lawsuit against his client and then defend the Commission’s cause of action for restitution in a completely separate lawsuit when the basis of both lawsuits is the same transaction and the same parties?  

TO THE HONORABLE JUDGES OF THIS COURT:

STATEMENT OF FACTS

            In April 1999 WorldPeace entered into a retainer contract with Collins.  (Record “1”)  WorldPeace was to take the case over from Collins’ prior attorney for $2,500 plus a percentage of the recovery.

            WorldPeace won the lawsuit and Collins was awarded her $22,000 semi-tractor trailer and $3,000 cash from Alvin Arbuckle.  A Final Judgment was signed on January 2000.  (Record “5”)

            WorldPeace demanded his $10,000 fee from Collins per the Retainer Agreement.  In response, Collins filed a grievance on WorldPeace (Record “9”) and WorldPeace believing the grievance was an undeniable indication that Collins was not going to pay WorldPeace, on June 20, 2000 , filed an Original Petition against Collins. (Cause Number 2000-31108; John WorldPeace v. Johnell Collins, 281^st District Court, Harris County, Texas) (Record “22”)

            On July 21, Collins filed an answer, pro se, in the 281^st District Court which breached the confidentiality requirement of Rule 2.15 TRDP. (Record “28”)

            On October 27, 2000 , Collins’ attorney McNab Miller, filed a First Amended Answer in the 281^st District Court on which she went to trial. (Record “29”)

            On November 8, 2000 , WorldPeace filed his Third Amended Original Petition in the 281^st District Court on which he went to trial. (Record “35”)

            On August 20, 2002 , the Commission filed the underlying disciplinary petition regarding Johnell Collins. (Record “41”)  The original disciplinary petition was originally assigned to the 125^th District Court.

            On August 29, 2002 , WorldPeace answered the disciplinary lawsuit in the 281^st District Court because WorldPeace believed that the disciplinary petition would have to be transfered to the 281^st District Court.  (Record “49”)

On August 29, 2002 , WorldPeace filed a Motion in the 281^st District Court to Consolidate the two cases (Record “50”) per the local rules (Record “60”).

On September 6, 2002 , the Commission filed Commission for Lawyer Discipline’s Motion for Protective Order in the 281^st District Court. (Record “62”)

On September 6 2002 , the Commission filed a Plea to the Jurisdiction of the Commission for Lawyer Discipline of the State Bar of Texas in the 281^st District Court. (Record “80”)

On September 16, 2002 , the Commission filed Commission for Lawyer Discipline’s Response to Petitioner’s Motion to Disqualify Dawn Miller in the 281^st District Court. (Record “87”)

On September 16, 2002 , the Commission filed a Response to Motion for Rule 13 Sanctions in the 281^st District Court. (Record “91”)

On September 16, 2002 , the Commission filed Commission for Lawyer Discipline’s Response to Petitioner’s Motion to Consolidate in the 281^st District Court. (Record “94”)

On September 16, 2002 , the Commission filed a Response to Motion to Dismiss in the 281^st District Court. (Record “97”)

On September 16, 2002 , the Commission filed Commission for Lawyer Discipline’s Response to Petitioner’s Motion to Show Authority in the 281^st District Court. (Record “100”)

On September 20, 2002 , Judge Bland presiding judge of the 281^st District Court signed an order denying WorldPeace’s Motion for Consolidation. (Record “103”)

On March 10, 2003 , Judge Bland entered a Nunc Pro Tunc Take Nothing Final Judgment including an award of Rule 13 Sanctions against WorldPeace in the 281^st District Court.  (Record “104”)  The Final Judgment did not have a “mother hubbard” clause but per Lehman the final judgment specifically stated it was a final judgment.

On April 10, 2003 , WorldPeace’s filed Respondent’s Motion for Continuance 269^th District Court. (Record “111”)

On April 23, 2003 , Judge Fry signed and entered a Judgment for Disbarment in the 281^st District Court. (Record “115”)

On May 28, 2003 , WorldPeace filed a Notice of Appeal in WorldPeace v. Collins.  (Record “121”)

On June 23, 2003 , Judge Fry signed and entered an Order Setting Aside the April 23, 2003 , Judgment for Disbarment. (Record “122”)

On August 5, 2003 , WorldPeace filed WorldPeace’s Supplemental Answer and Counterclaim in Regards to Collins in the 281^st District Court. (Record “124”)

On August 5, 2003 , WorldPeace filed WorldPeace’s Motion for Order of Severance and Request for Hearing. (Record “129”)

On August 13, 2003 , WorldPeace filed WorldPeace’s Supplemental Third Party Petition adding a cause of action for Declaratory Judgment. (Record “140”)

On August 27, 2003 , Judge Fry signed and entered his Second Judgment for Disbarment. (Record “142”)

On October 22, 2003 , WorldPeace filed Respondent’s Motion for Rehearing on Petitioner’s Motion for No-evidence Summary Judgment as to Rule 13 Sanctions. (Record “149”)

On October 23, 2003 , the Justice Information Management System Civil Court Activity – General Inquiry had no record of the Court’s signature on the Commission’s Plea to the Jurisdiction. (Record “152”)

On October 31, 2003 , WorldPeace filed Appellant WorldPeace’s Motion for Continuance in the WorldPeace v. Collins Appellate case. (Record “159”)

On November 5, 2003 , WorldPeace filed 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 “164”)

On November 7, 2003 , Judge Fry signed and entered an Order on Respondent’s Motion for Rehearing on Petitioner’s Second Motion for No-evidence Summary Judgment.  WorldPeace’s motion was denied (Record “192”)

On November 7, 2003 , Judge Fry signed and entered an Order on WorldPeace’s Third Amended Motion for New Trial. WorldPeace’s motion was denied (Record “193”)

On November 7, 2003 , Judge Fry signed and entered an Order on WorldPeace’s Second Amended Motion to Vacate or Modify Judgment of Disbarment of August 27, 2003 . WorldPeace’s motion was denied (Record “194”)

On November 7, 2003 , Judge Fry signed and entered an Order on WorldPeace’s Motion for JNOV.  WorldPeace’s motion was denied (Record “195”)

On November 7, 2003 , Judge Fry held a hearing on WorldPeace’s Motions. (Record “196”)

On November 19, 2003 , WorldPeace filed WorldPeace’s Motion (Demand) for Hearing on Respondent’s Motion to Compel Production. (Record “201”)

On November 21, 2003 , WorldPeace filed WorldPeace’s Demand for Judge Fry to Set Aside his Interlocutory August 27, 2003 , Judgment for Disbarment. (Record “205”)

The 281^st District Court never granted the Commission’s Plea to the Jurisdiction.

Collins never pled for restitution in any of her pleadings in the underlying lawsuit.   

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.  This Application for Writ of Mandamus involves the construction or validity of statutes: Rule 3.12 TRDP, Rule 97(a) TRCP and Rule 4.06(a) TRDP, Rule 15.04 TRDP, and the local rules of Harris County regarding consolidation of cases in the district courts.

ISSUE ONE

            Did Judge Fry abuse his discretion by trying the disciplinary petition against WorldPeace which included the issue of restitution when the Complainant Collins was barred by res judicata from asserting a claim for restitution against Respondent WorldPeace?  

ISSUE TWO

            Does Rule 97(a) TRCP require a consolidation of a suit for fees by an attorney with a disciplinary petition filed two years later pursuant to Rule 3.01 TRDP when both suits are grounded in the same transaction and concern the same parties (attorney and client)?  

ISSUE THREE

            When the local rules of the county in which the Respondent attorney resides require that Motions to Consolidate be filed with the court where the first filed case is pending and there are no TRDP rules that override the local rules per Rule 3.08(b) TRDP, is it an abuse of discretion for the presiding judge of the non-disciplinary petition to refuse to consolidate the cases if each case is a Rule 97(a) TRCP compulsory counterclaim to the other case?  

ISSUE FOUR  

            Does the language “This is a Final Judgment, as amended.”  In the March 10, 2003 , Final Judgment in the WorldPeace v. Collins lawsuit, in fact create a Rule 301 TRCP final judgment under Lehmann when the Final Judgment does not dispose of all the parties who appeared in the lawsuit: specifically the Commission for Lawyer Discipline and Defendant Collins declaratory judgment issue was not adjudicated?  

ISSUE FIVE

            If the final judgment in the WorldPeace v. Collins lawsuit is not a final judgment, is it an abuse of discretion not to stay the WorldPeace v. Collins lawsuit, which is in fact a Rule 97(a) TRCP compulsory counterclaim to the underlying disciplinary petition which sued for restitution on behalf of Complainant Collins.

ISSUE SIX  

            Did Judge Fry abuse his discretion by trying a disciplinary petition where the Commission has already appeared in another lawsuit regarding the same underlying disciplinary petition and that lawsuit had been tried to finality without granting the Commission’s Plea to the Jurisdiction?  

ISSUE SEVEN

            Is it an abuse of discretion to sever per Rule 41 TRCP or have separate trials in one lawsuit per Rule 174(b) TRCP, the Respondent attorney’s cause of action for his attorney fees and the Commission’s cause of action for restitution when both are grounded in the same transaction and include the same parties?  

ISSUE EIGHT

            Must a Respondent attorney be forced to try his cause of action for attorneys fees as a Plaintiff in one lawsuit against his client and then defend the Commission’s cause of action for restitution in a completely separate lawsuit when the basis of both lawsuits is the same transaction and the same parties?

AUTHORITIES

ABUSE OF DISCRETION

            “A trial court abuses its discretion by (1) acting arbitrarily and unreasonably, without reference to any guiding rules or principles, or (2) misapplying the law to the established facts of the case.  Downer v. Aquamarine Operators, Inc., 701 S.W. 2d 238, 241-42 ( Tex. 1985)”

            Appleton v. Appleton , 76 S.W. 3d 78, 86 ( Tex. App.  – Hous. [14^th Dist] 2002)

“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)  

“A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.”

            In re:  News America Publishing, Inc., 974 S.W. 2d 97, 106 (Tex. App. – San Antonio 1998)

“Following its holding in Walker v. Packer, 827 S.W. 2d 833 ( Tex. 1992), the Court noted that “[A] clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion…” 842 S.W. 2d at 271.”

            Trinity Capital Corporation v. Briones, 847 S.W. 324, 326 (Tex. App. – El Paso 1993)     

We find the trial court further erred in severing appellant’s cross action because same is based upon identical facts and issues growing out of and connected with appellee’s cause of action against him.  Such cross action or counterclaim is styled ‘compulsory counterclaims,’ under (a), Rule 97, Texas Rules of Civil Procedure.  It is mandatory to file such action in the cause of action set up by the opposing party in order to avoid circuity of action, inconvenience, expense and consumption of the court’s time in trying said cross action in an independent suit.  We deem if it is necessary to file such cross action that it is also imperative to try it in the same cause.  See notes under Rule 97, sec. (a).

We do not find, as contended by appellee, that section (b) under Rule 174, T.R.C.P., is sufficiently broad to grant a trial court authority to sever causes of action relating to the same subject matter, such as the one before this court.

            Judgment of the trial court is reversed and the cause remanded for another trial not inconsistent with this opinion.

            Ulmer v. Mackey, 242 SW2d 679, 682 (Tex. App. – Fort Worth, 1951)  

AUTHORITIES
RES JUDICATA

            Rule 4.06  Texas Rules of Disciplinary Procedure  

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.

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 [1^st 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 ( Tex. 1999).

            Rule 97(a) Texas Rules of Civil Procedure  

            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 15.04 Texas Rules of Disciplinary Procedure  

            Effect of Related Litigation. The processing of an Inquiry, Complaint, Disciplinary Proceeding, or Disciplinary Action is not, except for good cause, to be delayed or abated because of substantial similarity to the material allegations in pending civil or criminal litigation.  

“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)  

ARGUMENT  

THE WORLDPEACE V. COLLINS LAWSUIT  

Prior to being served in the underlying disciplinary petition WorldPeace filed an answer to the disciplinary petition in the 281^st District Court (Record “47”) where he had a suit pending against Johnell Collins, for attorneys fees, the original Complainant in the Commission’s August 20, 2002, disciplinary petition. (Record “41”)

WorldPeace filed his answer in the 281^st District Court because he expected that the Disciplinary Petition would be consolidated in the 281^st District Court per Rule 97(a) TRCP.

The Commission appeared and responded to several motions filed by WorldPeace in the WorldPeace v. Collins lawsuit in the 281^st District Court.  (Record “87-100”)

In addition, the Commission filed a Motion for Protection and a Plea to the Jurisdiction (Record “80”) in the WorldPeace v. Collins lawsuit.  The Plea to the Jurisdiction was never granted by the 281^st District Court. 

The Commission did not participate at trial.

A final nunc pro tunc judgment was signed by the court on March 10, 2003 .  (Record “104”)

Despite this Final Judgment and a trial which was grounded in the same transactions and was between the same parties as the disciplinary petition, on April 14, 2003 , Judge Fry proceeded to try the Collins complaint with the disciplinary petition when it was barred by res judicata.

THE COMMISISON WAS BARRED BY RES JUDICATA FROM PROCEEDING AGAINST WORLDPEACE FOR RESTITUTION REGARDING COMPLAINANT COLLINS

WorldPeace would show the court that he sued Complainant Collins in Cause Number 2000-31108; WorldPeace v. Collins, 281^st District Court, Harris County, Texas.  (Record “22”)

WorldPeace would show the court that Collins did not sue for restitution in her First Amended Answer and Counterclaim on which she went to trial. (Record “29”)

WorldPeace would show the court that a Final Judgment (Record “104”) was entered in the WorldPeace v. Collins lawsuit on March 10, 2003 , a month before trial began in the underlying disciplinary petition against WorldPeace on April 14, 2003 . 

Per Rule 4.06(a) TRDP, (Appendix) the Commission is placed in privity with a Complainant Collins and stepped into the shoes of Complainant Collins with regards to all of her common law rights. 

If the Complaint has no common law rights, then the Commission had no common law rights.  If Collins is barred by res judicata from suing WorldPeace for restitution, then the Commission is barred as well.

WorldPeace would show the court that this issue also relates to the “suit within a suit” requirement of a malpractice suit.  The Commission must prove that Collins could have won a suit for restitution.  Since the only basis for restitution is in Rule 4.06A TRDP which grants the Commission the Complainants common law rights, at the least, a Complainant must have a common law right of restitution. 

Consequently, Collins waived her right to restitution when she failed to file a Rule 97(a) TRCP compulsory counterclaim for restitution in the WorldPeace v. Collins lawsuit.  WorldPeace pled waiver in his answer in addition to res judicata.

In the underlying disciplinary petition, Collins could not have won a suit for restitution because she was barred by res judicata under Rule 97a TRCP from bringing such a suit due to the fact that she had not filed a Rule 97(a) compulsory counterclaim for restitution in the underlying WorldPeace v. Collins lawsuit.

Since the Commission had appeared in the lawsuit in the 281^st District Court, it knew of the existence of the lawsuit, knew there was no TRDP Rules overriding Rule 97(a) TRCP, knew that all Collins’ Rule 97(a) causes of action would be extinguished by the WorldPeace v. Collins lawsuit, knew that without Collins there was no cause of action in the 269^th District Court lawsuit and after trial in the WorldPeace v. Collins lawsuit all of Collins other issues would be barred by res judicata.

Wherefore, premises considered, Judge Fry abused his discretion by awarding restitution to Complainant Collins and finding violations of Rule 1.14 (a, b and c) regarding Collins and so should be stricken from Judge Fry’s August 27, 2003, Judgment for Disbarment.  The other rule violations should also be vacated because neither Collins or the Commission had standing to sue WorldPeace after final judgment was entered in the WorldPeace v. Collins lawsuit.

RELATIONSHIP BETWEEN THE TWO LAWSUITS  

The problem that exists in this matter is that WorldPeace had filed suit on Collins in June 2000 right after she filed her grievance.  The Commission knew about the lawsuit and even though WorldPeace made his election for a trial de novo in the district court on June 7, 2001 , and even though the Commission knew that the WorldPeace v. Collins lawsuit was ongoing, it chose not to do anything until August 20, 2002 a year later.

At the time the Commisison filed suit, the WorldPeace v. Collins lawsuit was about to go to trial.  When WorldPeace discovered that a petition had been filed against him, he assumed that it would be consolidated in the 281^st District Court due to Rule 97(a) and so WorldPeace filed an Answer in that court.

The Commission entered the WorldPeace v. Collins lawsuit in the 281^st District Court and responded to several of WorldPeace motions and filed a Motion for Protection and a Plea to the Jurisdiction.  The Plea to the Jurisdiction was never granted.

On March 10, 2003 , a Final nunc pro tunc Judgment was signed. (Record “104”)

There is now a question as to whether the March 10, 2003 Final Judgment was final per Lehmann because it did not resolve the issue of the Commission’s presence in the WorldPeace v. Collins lawsuit.  (Record “29”)  Further, Collins had a cause of action for Declaratory Judgment that was never ruled on and was not referenced in the Final Judgment because the court never made a ruling on the Declaratory Judgment.

It appears that per Lehmann, there is no final judgment in the WorldPeace v. Collins lawsuit. 

WorldPeace, out of an abundance of caution filed a Notice of Appeal. (Record “121”)

Further, WorldPeace on August 5, 2003 , due to the fact the Judge Fry refused to sever the lawsuit per his April 14, 2003 , pre-trial ruling was forced to file a counter claim against Collins in the 269^th Court under the primary cause number. 

WorldPeace’s counterclaim against Collins can now be added to the “A” lawsuit that also includes WorldPeace’s counterclaims against Lang and Apodaca.  Of course the question is whether or not it is an abuse of discretion for Judge Fry to have severed those counterclaims in the first place.  

Since Lang and Collins were both awarded restitution, it would seem that WorldPeace counterclaims for attorney fees should not have been severed or tried separately in the first place.  See Ulmer above.

If the Collins lawsuit is final, then it would seem that the Judge Fry abused his discretion by retrying it.  If it is not final, then it would seem that there are now two jury trials in the Collins matter on the same underlying transaction with the same parties.

There is another question, if the WorldPeace v. Collins judgment is final in the 281^st, what happens if it is reversed on appeal?  And does that affect whatever happens in the appeal of the 269^th.

All of this is what Rule 39(a)(2)(ii) TRCP was meant to avoid.  It was the rule that Judge Bland refused to adopt.  (Record “56”)  Now the worst case scenario exists because there are two trials on the same issues and same parties that are on two different tracks and will probably never be reconciled but be opened for the next decade as rulings in one potentially reopens the other.

It would seem that if the 281^st District Court judgment is final, then Judge Fry abused his discretion by retrying the Collins matter.  If it is not final, then Judge Fry abused his discretion by not retrying the WorldPeace counterclaim for fees with the case in chief.

This is just one of the many problems that exists when the court tried to reconcile the TRDP with the larger body of law.  It is almost impossible to try a TDRPC case in a vacuum. 

SUMMARY

The Commission’s causes of action against WorldPeace regarding Collins restitution was adjudicated in the 281^st District Court and were barred by res judicata in the underlying disciplinary petition.

The Commission it self was never dismissed from the 281^st District Court lawsuit and so it was barred by res judicata from trying its causes against WorldPeace in the underlying disciplinary petition.

PRAYER

WHEREFORE, premises considered, Relator moves this court to mandamus Judge Fry to vacate the Rule violations regarding Collins from his August 27, 2003 , Judgment for Disbarment 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 24, 2003 , by fax and to the Clerk of the Supreme Court of Texas on November 24, 2003 , via HAND DELIVERY.
 

                                                                                                                                                            
John WorldPeace  

CERTIFICATE OF CONFERENCE  

            Opposing Counsel opposes the RELATOR’S APPLICATION FOR MANDAMUS.
 

____________________________________
                                                                        John WorldPeace

APPENDIX  

EXHIBIT LIST  

EXHIBIT       DESCRIPTION

 A.  August 27, 2003              Judgment for Disbarment  

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

C.  August 27, 2003              Order of Severance  

D.  November 7, 2003         Order on WorldPeace’s Second Amended Motion to Vacate or Modify Judgment of Disbarment of August 27, 2003  

E.  November 7, 2003          Order on WorldPeace’s Third Amended Motion for New Trial  

F.  November 7, 2003          Order on WorldPeace’s Motion for JNOV  

G.  November 7, 2003         Order on Respondent’s Motion for Rehearing on Petitioner’s Second Motion for No Evidence Summary Judgment      

Rule 2.15  Texas Rules of Disciplinary Procedure

Rule 3.12  Texas Rules of Disciplinary Procedure

Rule 3.14  Texas Rules of Disciplinary Procedure

Rule 4.06  Texas Rules of Disciplinary Procedure

Rule 15.04  Texas Rules of Disciplinary Procedure

Rule 97  Texas Rules of Civil Procedure

Rule 39(a)(2)(ii)  Texas Rules of Disciplinary Procedure

Rule 41  Texas Rules of Civil Procedure

Rule 97  Texas Rules of Civil Procedure

Rule 174(b)  Texas Rules of Civil Procedure

NO. 03-1084

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 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.”  

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

RECORD  

DATE                                     DESCRIPTION

A.  April 28, 1999                  Retainer Agreement between WorldPeace and Collins  

B.  January 19, 2000              Final Judgment Against Alvin Arbuckle and Order of Non Suit of all other Defendants in Collins v. Arbuckle  

C.  June 13, 2000                   Collins Grievance against WorldPeace  

D.  June 20, 2000                   WorldPeace’s ORIGINAL PETITION  

E.  July 21, 2000                    Collins’ ORIGINAL ANSWER pro se  

F.  October 27, 2000              FIRST AMENDED ANSWER AND COUNTERCLAIM    FOR                                                     DECLARATORY JUDGMENT  

G.  November 8, 2000           WorldPeace’s THIRD AMENDED ORIGINAL PETITION  

H.  June 7, 2001                     RESPONDENT WORLDPEACE’S ELECTION AND PRINCIPAL PLACE OF PRACTICE CERTIFICATION  

I.  August 20, 2002                 ORIGINAL DISCIPLINARY PETITION (Commission v. WorldPeace)  

J.  August 29, 2002                WORLDPEACE’S DEFENDANT’S ORIGINAL ANSWER to Commission in the 281^st     

K.  August 29, 2002               WorldPeace’s MOTION TO CONSOLIDATE in the 281^st

September 16, 2003 ,   COMMISISON FOR LAWYER DISCIPLINE’S RESPONSE TO PETITIONER’S MOTION TO CONSOLIDATE  

September 17, 2003 ,   REPLY TO THE COMMISSSION FOR LAWYER DISCIPLINE’S RESPONSE TO PETITIONER’S MOTION TO CONSOLIDATE  

L.  Local Rules Regarding Consolidation  

M.  September 6, 2002          commission for lawyer discipline’s motion for                                                     protective Order  

N.  September 6 2002            PLEA TO THE JURISDICTION OF  THE COMMISSION FOR                                                 LAWYER DISCIPLINE OF THE STATE BAR OF TEXAS  

O.  September 16, 2002        COMMISSION FOR LAWYER DISCIPLINE’S                                                 RESPONSE TO PETITIONER’S MOTION TO                                                                              DISQUALIFY DAWN MILLER  

P.  September 16, 2002         RESPONSE TO MOTIoN FOR RULE 13 SANCTIONS  

Q.  September 16, 2002        commission for lawyer discipline’s                                                 response to petitioner’s motion to                                                 consolidate  

R.  September 16, 2002         Response to motion to dismiss  

S.  September 16, 2002         COMMISSION FOR LAWYER DISCIPLINE’S                                    
                                                RESPONSE TO PETITIONER’S MOTION TO                                                 SHOW AUTHORITY  

T.  September 20, 2002         Judge Bland Order Denying MOTION TO CONSOLIDATE  

U.  March 10, 2003                AMENDED TAKE NOTHING JUDGMENT AND                                                 AWARD OF RULE 13 SANCTIONS in the 281^st  

V.  April 10, 2003                  WorldPeace’s RESPONDENT’S MOTION FOR CONTINUANCE in the 269^th  

W.  April 23, 2003                 JUDGMENT OF DISBARMENT  

X.  May 28, 2003                  NOTICE OF APPEAL in WorldPeace v. Collins  

Y.  June 23, 2003                   ORDER SETTING ASIDE the April 23, 2003 , JUDGMENT FOR DISBARMENT  

Z.  June 30, 2003                   Letter from Charles Bacarisse to John WorldPeace Regarding Notice of Appeal  

AA.  August 5, 2003               WORLDPEACE’S SUPPLEMENTAL ANSWER AND COUNTERCLAIM REGARDS TO COLLINS  

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

AC.  August 13, 2003            WORLDPEACE’S SUPPLEMENTAL THIRD PARTY PETITION  

AD.  August 27, 2003            JUDGMENT OF DISBARMENT  

AE.  October 22, 2003          RESPONDENT’S MOTION FOR REHEARING ON PETITIONER’S MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT AS TO RULE 13 SANCTIONS  

AF.  October 23, 2003           Justice Information Management System
                                                Civil Court Activity – General Inquiry           

AG.  October 31, 2003          APPELLANT’S WORLDPEACE’S MOTION FOR CONTINUANCE in Appellate case  

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

AI.  November 7, 2003          ORDER ON RESPONDENT’S MOTION FOR REHEARING ON PETITIONER’S SECOND MOTION FOR NO EVIDENCE SUMMARY JUDGMENT  

AJ.  November 7, 2003          ORDER ON WORLDPEACE’S THIRD AMENDED MOTION FOR NEW TRIAL  

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

AL .  November 7, 2003         ORDER ON WORLDPEACE’S MOTION FOR JNOV  

AM.  November 7, 2003        Transcript from Hearing on Motions  

AN.  November 19, 2003      MOTION (DEMAND) FOR HEARING ON
                                    RESPONDENT’S MOTION TO COMPEL PRODUCTION  

AO.  November 21, 2003      WORLDPEACE’S DEMAND FOR JUDGE FRY TO SET ASIDE HIS INTERLOCUTORY AUGUST 27, 2003 , JUDGMENT FOR DISBARMENT

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?

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