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NO.
03-1083
COMPANION
TO: 03-978, 03-990, 03-1022,
03-1023, 03-1049
IN
THE
SUPREME
COURT
OF
______________________________
IN
RE:
JOHN
WORLDPEACE
______________________________
Re:
Cause No. 2002-42081; Commission for Lawyers Discipline v. John
WorldPeace, 269th District Court
______________________________________________________________________
RELATOR’S
APPLICATION FOR WRIT OF MANDAMUS
REGARDING
JUDGE
FRY’S INTERLOCUTORY JUDGMENT FOR DISBARMENT
AND
DEFACTO DISBARMENT OF WORLDPEACE
______________________________________________________________________
Filed by: John WorldPeace, Relator
John WorldPeace
2620 Fountainview,
Tel. 713-784-7618
Fax. 713-784-9063
TBA# 21872800
Attorney Pro Se
IDENTITY
OF PARTIES AND COUNSEL
Relator (Respondent)
John WorldPeace
John WorldPeace
2620 Fountainview,
Tel. 713-784-7618
Fax. 713-784-9063
Attorney Pro Se
Respondent: Honorable
James R. Fry
Presiding Judge in the
Underlying Disciplinary Petition
(Cause No. 2002-42081; Commission for Lawyer Discipline v. John
WorldPeace, 269th District Court,
15th Judicial
District Court
Tel:
903-813-4303
Fax:
903-813-4304
Real Parties in Interest
and Parties to the Case. (Petitioner)
Commission
for Lawyer Discipline
J. G Molleston
State Bar of
1111 Fannin,
Tel:
713-759-6931
Fax: 713-752-2158
Attorneys for the Commission for Lawyer Discipline
TABLE
OF CONTENTS
IDENTITIES OF PARTIES AND
COUNSEL...................................................................ii
TABLE OF
CONTENTS...................................................................................................iii
INDEX OF
AUTHORITIES..............................................................................................iv
STATEMENT OF THE
CASE...........................................................................................vi
STATEMENT OF
JURISDICTION.................................................................................vii
ISSUES
PRESENTED.....................................................................................................viii
STATEMENT OF FACTS
……………………………………………………………….1
ISSUE
ONE.........................................................................................................................4
Is it an abuse of
discretion for a trial court to use a “mother hubbard” clause to attempt
to dismiss issues and parties in a lawsuit that have not been adjudicated
contrary to the Supreme Court’s ruling in Lehmann?
ISSUE
TWO………………………………………………………………………………4
Is Judge Fry’s
ISSUE
THREE…………………………………………………………………………….4
Is it an abuse of discretion for Judge Fry to refuse to vacate or
modify his
PRAYER............................................................................................................................15
APPENDIX……………………………………………………………………….……...17
AFFIDAVIT OF JOHN WORLDPEACE…………………………………………….…18
INDEX
OF AUTHORITIES
A.
CASES
76
S.W. 3d 78, 86 (
City
of
896 SW2d 143 (
Garza v. State of
878
S.W. 2d 671, 673-4 (Tex App. – Corpus Christi 1994)
Hartford Accident &
Indemnity Company v. Abascal……………………………………5
831
S.W. 2d 559, 563 (Tex. App. – San Antonio 1992)
Howell v. Hilton Hotels
Corp……………………………………………………………11
84
S.W. 3d 708, 715 (
89
S.W. 3d 737, 741 (
In re:
News America Publishing,
Inc……………………………………………………..5
974
S.W. 2d 97, 106 (Tex. App. – San Antonio 1998)
Lehmann v. Har-Con
Corp…………………………………………………………….4,13
39
S.W. 3d 191, 192-3 (
Lewis v. Skippy’s
Mistake
Bar…………………………………………………………..14
944 S.W. 2d 1, 1 (Tex. App. – Fort Worth 1996)
Miller v.
Elliott…………………………………………………………………………...11
94
S.W. 3d 38, 42 (
97 SW3d 205 (Tex.App – Corpus Christi, 2003)
O’Bryant
v. City of
949 SW2d 406 (Tex.App.- Austin, 1997)
Trinity Capital
Corporation v. Briones……………………………………………………5
847
S.W. 324, 326 (Tex. App. – El Paso 1993)
STATUTES
Rule 13
Rule 41
Rule 90
Rule 166a(i)
Rule 174 (b)
Rule 301
Rule 801
Rule 804
Chapter 9 & 10
Rule
3.01
Rule
3.02
Rule 3.14
STATEMENT
OF THE CASE
NATURE
OF THE CASE
The
underlying case is a disciplinary petition filed by the Commission for Lawyer
Discipline against Relator WorldPeace (Cause
No. 2002-42081; Commission for Lawyer Discipline v. John WorldPeace, 269th
District Court).
THE
RESPONDENT
The
Respondent is Judge James R. Fry, in his capacity as presiding judge,
appointed by the Supreme Court to preside over the underlying disciplinary
petition.
RELIEF
SOUGHT BY RELATOR
WorldPeace prays the court to mandamus Judge Fry to vacate or modify
his
REGARDING FILING IN THE SUPREME COURT
RELATOR’S APPLICATION FOR WRIT OF MANDAMUS was not first filed in the appeals court because jurisdiction over disciplinary petitions is with the Supreme Court per Rule 3.01 and Rule 3.02 Texas Rules of Disciplinary Procedure.
STATEMENT
OF JURISDICTION
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
ISSUES
PRESENTED
ISSUE
ONE
Is it an abuse of discretion for a trial court to use a “mother hubbard”
clause to attempt to dismiss issues and parties in a lawsuit that have not been
adjudicated contrary to the Supreme Court’s ruling in Lehmann?
ISSUE
TWO
Is Judge Fry’s
ISSUE
THREE
Is it an abuse of discretion for Judge Fry to refuse to vacate or modify
his
TO THE HONORABLE JUDGES OF THIS COURT:
STATEMENT
OF FACTS
On
On
On
On
On
Only
Only July 21, 2003, WorldPeace filed a Response to the Commission’s
Second Motion for No-Evidence Summary Judgment complaining that the
court had not signed a severance order per the local rules and
therefore there was no way for WorldPeace to know what cause number included
the Summary Judgment issues. (Record “147”)
Also on
On
On
On
Finally, on
The orders when viewed together are disjunctive and conflictive.
On
On
On
On
On November 5, 2003, WorldPeace filed Respondent WorldPeace’s Fourth
Amended Motion for New Trial and Motion for JNOV Regarding the Court’s
August 27, 2003 Judgment for Disbarment. (Record “444”)
On
On
On
On
On
On
On
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
ISSUE
ONE
Is it an abuse of discretion for a trial court to use a “mother hubbard”
clause to attempt to dismiss issues and parties in a lawsuit that have not
been adjudicated contrary to the Supreme Court’s ruling in Lehmann?
ISSUE
TWO
Is Judge Fry’s
ISSUE
THREE
Is it an abuse of discretion for Judge Fry to refuse to vacate or
modify his
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 (
Appleton v.
“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
Trinity Capital Corporation v. Briones, 847 S.W. 324, 326 (
On
The August 27, 2003, Severance order (Record “187”) granted the
Commission Motion to Sever (Record “508”) the religious and political
discrimination issues as well as WorldPeace issue for Intentional Infliction
of Emotion al Distress.
The Severance Order also severed the Lang and Apodoca counterclaims which
were not pled by the Commission in its Motion for Severance but were
severed by Judge Fry after he denied Lang’s attorney’s Motion to Dismiss.
(Record “47”)
In Judge Fry’s August 27,
2003, Judgment for Disbarment, he ordered a Rule 174 (b) separate trial of all
the issues except the TDRPC violations as opposed to a Rule 41 TRCP severance
per his oral rulings on April 14, 2003. (Record
“47”)
Unfortunately for Judge Fry,
Rule 41 TRCP uses the word sever, Rule 174(b) TRCP does not.
WorldPeace had no idea that Judge Fry was talking about Rule 174(b)
TRCP at pretrial because Judge Fry never mentioned a TRCP Rule number but only
used the word sever. (Record “47”)
On
WorldPeace had complained
in his response to the Commission’s Motion for No-Evidence Summary Judgment
on July 21, 2003, (Record “147”) and in the Motion for a Severance Order
(Record “162”) on August 5, 2003, that it
was impossible to know where to file additional pleadings because the trial
court refused to sign an order severing the lawsuit per his pre-trial oral
rulings.
At the
Sever has to do with Rule 41
TRCP only. Not Rule 174(b) TRCP.
WorldPeace has a right to expect a District Judge to be judicious in
his use of words. Lawsuits are won
and lost on words. WorldPeace has
a right to understand “sever” to mean Rule 41 TRCP and not Rule 174(b)
TRCP separate trials in a lawsuit.
Had Judge Fry not waited four months to sign a severance order, and not
refused to have a hearing on WorldPeace’s Motion for a Severance Order, this
problem would not exist. (Record “162”)
On
Judge Fry is trying to dismiss WorldPeace’s declaratory judgment
issue by saying it was filed after the submission date for the Commission’s
Second Motion for Summary Judgment. Which
was
However, Judge Fry’s Severance Order (Record “182”)
created an “A” case which severed the religious and political
constitutional issues and the intentional infliction of emotional distress
issues into the “A” case per the Commission’s Motion to Sever.
WorldPeace
had the right to file his declaratory judgment in the “A” case.
To date this issue has not been adjudicated or severed or added to the
“A” case because Judge Fry refused to Modify or Clarify his three orders
of
On
The problem is that the severance order granted the Commission’s
Motion to Sever and also severed out Lang and Apodaca all into an “A”
case. This is right in line with
the
Not a single word was said about Rule 174(b) separate trials anywhere
in the Commission’s Second Motion to Sever or in the
WorldPeace alleges the declaratory judgment issues and the Collins
counterclaim have not been adjudicated and even if the court could
dismiss them in the primary cause number for being late filed with regards to
the Commission’s Motion for No-evidence Summary Judgment, he could not
dismiss them in the “A” case he created.
The court seems to be saying that he did not grant the Commission’s
Motion to Sever the religious and political (free speech) issues.
Yet Judge Fry granted the Commission’s Motion that said just that.
WorldPeace would show the
court that there is no way to reconcile the Severance Order and the Judgment
for Disbarment and the order granting the Commission’s Motion for
No-Evidence Summary Judgment.
WorldPeace would show the court that Judge Fry on
THE
COMMISSION’S SECOND AMENDED MOTION FOR
NO-EVIDENCE
Summary Judgment
To add more problems, the Summary Judgment did not address all the
issues or specify the elements of the majority of issues it challenged per
Rule 166a(i) TRCP.
The
court’s order granting the Commission’s Motion for Summary Judgment did
not contain a “mother hubbard” clause.
Therefore, all issues and parties in DEFENDAN’T SEVENTH AMENDED
ORIGINAL ANSWER AND COUNTERCLAIM AND THIRD PARTY CLAIMS not specifically
addressed in the Commission’s Second Amended Motion for No-evidence Summary
Judgment and not tried (only the rule violations were tried) were not
adjudicated and the August 27, 2003, Judgment for Disbarment is therefore
interlocutory because it is therefore, not a final judgment per Rule 301 TRCP
or per Lehmann.
A.
Issues not addressed by the
No-evidence
Summary Judgment
The following issues in DEFENDANT’S SEVENTH AMENDED ORIGINAL
ANSWER AND THIRD PARTY CLAIMS were not addressed in the Commission’s Second
Amended Motion for No Evidence Summary Judgment nor were they tried to the
jury nor were they severed into the “A” case.
1. WorldPeace’s defense
regarding a “suit within a suit”. (Record “94”)
2.
WorldPeace’s Constitutional counterclaim for violations of his
Constitutional rights against self incrimination.
(Under the heading regarding Rule 801 and 804 TDRPC) (Record “95”)
3.
WorldPeace’s affirmative defense of Res
Judicata regarding Johnell Collins and the Commission. (Record “86 &
96”)
4. WorldPeace defense and
Constitution counterclaim regarding multiple complainants in one disciplinary
petition.
Since the above issues were not adjudicated, the
B. ISSUES
FOR WHICH THE NO-EVIDENCE SUMMARY JUDGMENT LISTED NO ELEMENTS
The ELEMENTS of the following issues in WorldPeace’s Seventh
Amended Original Answer and Counterclaim that were listed in the
Commission’s Second Amended Motion for No-Evidence Summary Judgment were not
specifically listed as mandated by Rule 166a(i).
(No elements)
1.
WorldPeace’s equal protection rights.
(Record “88”)
2.
WorldPeace’s issue regarding awarding attorney fees to the Commission
(Record “90”) and WorldPeace’s counterclaim for attorneys fees. (Record
“91”)
3.
Violations of WorldPeace Constitutional due process rights (Record “91”)
4.
WorldPeace issue regarding unconstitutional range of punishment (Record
“92”)
5.
WorldPeace’s Constitutional counterclaims regarding oppressive,
arbitrary, and capricious nature of the Texas Rules of Disciplinary Procedure.
(Record “92”)
5.
WorldPeace’s counterclaims for Rule 13 TRCP and Chapter 9 & 10
TCP & RC violations (The Commission did not list all the elements in
Chapter 9 & 10). (Record “88”)
It was an abuse of discretion
for the court to grant a summary judgment on these issues where the Commission
did not follow the mandatory (MUST) dictates of Rule 166a(i) TRCP and
specifically list the ELEMENTS of the issues which the Commission claims
WorldPeace had no evidence.
Since the ELEMENTS of these issues were not specifically identified by
the Commission in its Second Amended Motion for No-Evidence Summary Judgment,
they could not be adjudicated and the August 27, 2003, Judgment for Disbarment
is interlocutory per Rule 301 TRCP. Judge
Fry tried to dismiss these causes of action with a “mother hubbard”
clause.
TRCP
Rule 166a(i) states, to wit: After adequate
time for discovery, a party without presenting summary judgment evidence may
move for summary judgment on the ground that there is no evidence of one or
more essential elements of a claim or defense on which an adverse party would
have the burden of proof at trial. The
motion must state the elements as to which there is no evidence.
The court must grant the motion unless the respondent produces summary
judgment evidence raising a genuine issue of material fact.
“The
motion must be specific in alleging a lack of evidence on an essential element
of a cause of action, but
need not specifically attack the evidentiary components that may prove an
element of the cause of action.”
Miller
v. Elliott, 94 S.W. 3d 38, 42 (
“After
adequate time for discovery and without presenting summary judgment evidence,
a party is permitted by rule of civil procedure 166a(i) to move for summary
judgment on the ground that no evidence supports one or more essential
specified elements of an adverse party’s claim or defense on which the
adverse party would have the burden of proof at trial.”
Howell
v. Hilton Hotels Corp, 84 S.W. 3d 708, 715 (
“The motion for summary
judgment may not be general, but must state the elements on which there is no
evidence”
Jordan v. Landry’s Seafood Restaurant, Inc., 89 S.W. 3d 737, 741 (
C. INJUNCTIVE RELIEF – ISSUE
NOT PLED
WORLDPEACE’S
SEVENTH AMENDED ORIGINAL ANSWER AND COUNTERLAIM AND THIRD PARTY CLAIMS (Record
“83”) timely filed seven days prior to the date of the Commission’s
submission date of July 28, 2003, for its Second Amended Motion for
No-Evidence Summary Judgment, added a cause of action for injunctive
relief (Record “143”) that was not pled in the Commission’s
Second Amended Motion for No-Evidence Summary Judgment.
Because the injunction issue was not pled in the
Commission’s Second Amended Motion for No-Evidence Summary Judgment, it was
not adjudicated and the August 27, 2003, Judgment for Disbarment is
interlocutory per Rule 301 TRCP.
“Jones
is not inconsistent with our holding today to the extent Jones is
understood as approving suits for injunctive relief.”
City
of
“In
Bouillion, the
O’Bryant
v. City of
“However,
suits brought pursuant to constitutional provisions are limited to
equitable relief and do not allow a claim for monetary damages except to
the extent specifically enunciated in the constitutional provision.”
“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 (
D. 42 USCA § 1983 – NOT
PLED BY RESPONDENT
WorldPeace
never pled for damages related to his Constitutional issues but pled only for injunctive
relief. 42
E. COMMISSION’S GENERAL
DEMURER
The
Commission entered a general demurrer when it wrongly stated in its
Second Amended Motion for No-evidence Summary Judgment that the only cause of
action for Constitutional violations that Respondent WorldPeace had was
provided by 42 USCA § 1983. (See
Page 7, last sentence in the Commission’s Second Amended Motion for
No-evidence Summary Judgment)
Summary
judgment should not be based on a pleading deficiency such as whether a cause
of action has been sufficiently pled. Massey
v. Armco Steel Co., 652 S.W. 2d 932, 934 (
Garza v. State of
In general, it is improper to
grant a summary judgment on a deficient pleading’s failure to state a cause
of action when the deficiency can be attacked through a special exception.
Lewis v. Skippy’s Mistake Bar, 944 S.W. 2d 1, 1 (Tex. App. – Fort
Worth 1996)
Texas does not have a general demurrer due to Rule 90 TRCP and
therefore the Commission was required to file a motion for special exceptions
before WorldPeace’s Constitutional issues or any other non TDRPC Rule issues
(which were tried) could be dismissed by summary judgment.
Since the Commission did not file for special exceptions, the issues
listed in Section A, B and C above were not adjudicated and therefore the
Judge Fry by his language in the November 7, 2003, hearing where he
said WorldPeace would appeal is an indication that Judge Fry
considered his Judgment for Disbarment to be final.
The Judgment for disbarment is not final per Rule 301 TRCP because it
does not adjudicate all of WorldPeace’s causes of action and defenses.
The intent of Judge Fry is a defacto
disbarment of WorldPeace by signing a Judgment for Disbarment and claiming it
is a Rule 301 TRCP final judgment when it is interlocutory.
SUMMARY
The
There is no question but that WorldPeace’s constitutional issues, his
injunctive relief issue and declaratory judgment issues were never
adjudicated. There is no question
but that the Commission did not specify elements of most of WorldPeace’s
causes of action that had no evidentiary support.
There is no question but that Judge Fry’s
The problem is that it is an abuse of discretion to sever compulsory
counterclaims and it is reversible. The
Lang and Apodaca cases should not have been severed.
Judge Fry refused to modify his
It is an abuse of discretion to defacto
disbar WorldPeace by refusing to modify or vacate Judge Fry’s Judgment for
Disbarment which he knows is interlocutory but is preventing WorldPeace from
practicing law.
PRAYER
WHEREFORE,
premises considered, Relator moves this court to mandamus Judge Fry to vacate
or modify his Judgment for Disbarment of
Respectfully
submitted,
_______________________________
John WorldPeace
2620 Fountainview,
Tel. 713-784-7618
Fax. 713-784-9063
TBA No. 21872800
I certify that a true and correct copy of the foregoing pleading was
forwarded to opposing counsel and Judge Fry on
John WorldPeace
CERTIFICATE
OF CONFERENCE
Opposing
Counsel opposes the RELATOR’S APPLICATION FOR MANDAMUS.
____________________________________
John WorldPeace
APPENDIX
EXHIBIT
LIST
EXHIBIT
DESCRIPTION
B.
C.
D.
November 7, 2003 Order on
WorldPeace’s Second Amended Motion to Vacate or Modify Judgment of Disbarment
of August 27, 2003
E.
F.
G.
Rule 3.14
Rule
13
Rule 41
Rule 174(b)
Rule
301
Rule
166a(i)
Chapter
9 & 10
NO.
03-1083
IN
THE SUPREME COURT
OF
______________________________
IN
RE:
JOHN
WORLDPEACE
______________________________
Re:
Cause No. 2002-42081; Commission for Lawyers Discipline v. John
WorldPeace, 269th District Court
______________________________________________________________________
AFFIDAVIT
OF JOHN WORLDPEACE, ATTORNEY AT LAW
______________________________________________________________________
STATE OF
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
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
RECORD
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
N.
O.
P.
Q.
September 26, 2003
RESPONDENT WORLDPEACE’S THIRD AMENDED MOTION FOR NEW TRIAL AND MOTION
FOR JNOV REGARDING THE COURT’S AUGUST 27, 2003, JUDGMENT FOR DISBARMENT
R.
S.
T.
U.
V.
W.
Y.
Z.
AA.
AB.
November 5, 2003
RESPONDENT WORLDPEACE’S FOURTH AMENDED MOTION FOR NEW TRIAL AND MOTION
FOR JNOV REGARDING THE COURT’S AUGUST 27, 2003, JUDGMENT FOR DISBARMENT
AC.
April 9, 20003
PETITIONER’S MOTION FOR SEVERANCE
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