IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all the parties and the names and addresses of all counsel in the underlying lawsuit.

Relator (Respondent)
John WorldPeace

John WorldPeace

2620 Fountainview, Suite 106

Houston , Texas 77057

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, 269^th District Court, Harris County , Texas )

15^th Judicial District Court

200 S. Crockett St .

Sherman , Texas 75090

Tel: 903-813-4303

Fax: 903-813-4304

Real Parties in Interest and Parties to the Case. (Petitioner)
Commission for Lawyer Discipline

Dawn Miller

J. G Molleston

State Bar of Texas

1111 Fannin, Suite 1370

Houston , Texas 77002

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.........................................................................................................................5

Is it an abuse of discretion for Judge Fry to refuse to perform his ministerial duties of ruling on motions and trying the unadjudicated issues in the underlying lawsuit?

ARGUMENT……………………………………………………………………….……..7

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

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

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

INDEX OF AUTHORITIES

A. CASES

Appleton v. Appleton ……………………………………………………………………...5

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

Bohart v. First National Bank in Dallas …………………………………………………...6

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

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

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

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

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

In re: Meador……………………………………………………………………………...6

968 S.W. 2d 346, 353 ( Tex. 1997)

In re: News America Publishing, Inc……………………………………………………...6

974 S.W. 2d 97, 106 ( Tex. App. – San Antonio 1998)

In re: Tasby…………………………………………………………………………….6,10

40 S.W. 3d 190, 191 ( Tex. App. – Texarkana 2001)

Jordan v. Landry’s Seafood Restaurant, Inc. ……………………………………………13

89 S.W. 3d 737, 742 ( Tex. App. – Hous. [1^st Dist.] 2002)

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

778 S.W. 2d 105, 106 (Tex. App. – Texarkana 1989)

Priest v. Texas Animal Healt Comm’n…………………………………………………..14

780 S.W. 2d 874, 875 (Tex. App. – Dallas 1989)

Ryland Group, Inc. v. White………………………………………………………………7

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

Trinity Capital Corporation v. Briones……………………………………………………6

847 S.W. 324, 326 (Tex. App. – El Paso 1993)

Wyatt v. Shaw Plumbing Company……………………………………………………….7

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

STATUTES

Rule 13 Texas Rules of Civil Procedure………………………………………………….9

Rule 41 Texas Rules of Civil Procedure………………………………………….10,11,12

Rule 166a(i) Texas Rules of Civil Procedure............................………………………...13

Rule 174(b) Texas Rules of Civil Procedure……………………………………………12

Rule 3.01 Texas Rules of Disciplinary Procedure…………………………..1,2,5,7,8,9,13

Rule 3.02 Texas Rules of Disciplinary Procedure……………………………………...1,7

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

Chapters 9 & 10 Texas Civil Practices and Remedies Code……………………………...9

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, 269^th 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

Relator WorldPeace prays the court to mandamus Judge Fry to set a hearing and rule on WorldPeace’s Motion to Compel Rule 3.01 TRDP documents from J.G. Molleston, attorney for the Commission for Lawyer Discipline, and to mandamus Judge Fry to try the unadjudicated issues in the underlying lawsuit.

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 Texas Constitution.

ISSUES PRESENTED

ISSUE ONE

Is it an abuse of discretion for Judge Fry to refuse to perform his ministerial duties of ruling on motions and trying the unadjudicated issues in the underlying lawsuit?

TO THE HONORABLE JUDGES OF THIS COURT:

STATEMENT OF FACTS

On April 10, 2003, WorldPeace filed Respondent’s Motion to Dismiss and/or Motion for Consolidation and Plea to the Jurisdiction (Record “383”) asserting that Judge Fry had no jurisdiction to hear the five additional complaints added to the underlying disciplinary petition by the Commission in violation of Rule 3.01 TRDP; and that Judge Fry did not have jurisdiction to hear the additional complainants because he was not appointed to hear them by the Supreme Court per Rule 3.02 TRDP.

On April 14, 2003 , Judge Fry orally severed the underlying lawsuit such that only the TDRPC violations would be tried. (Record “8”)

On April 14, 2003 , at pretrial, J.G. Molleston, attorney for the Commission, stated to Judge Fry that he had violated Rule 3.01 TRDP several times in the six years he had worked for the State Bar. (Record “14”)

On April 23, 2003 , Judge Fry signed and entered a Judgment for Disbarment against WorldPeace. On June 23, 2003 , Judge Fry set aside the April 23, 2003 , Judgment for Disbarment. On June 24, 2003 , WorldPeace wrote a letter to Mr. Molleston demanding to know the cases in which Molleston violated Rule 3.01. (Record “15”) On June 24, 2003 , Molleston wrote a letter to WorldPeace refusing to produce the Rule 3.01 cases. (Record “16”) On June 25, 2003 , WorldPeace filed a Motion to Compel J. G. Molleston to Produce the Rule 3.01 TRDP records. (Record “17”)

Judge Fry has refused to set a hearing on WorldPeace’s Motion to Compel Mr. Molleston to produce documents.

On June 26, 2003 , WorldPeace filed a grievance on Molleston with the State Bar regarding Molleston lying to the court regarding Rule 3.01. (Record “20”)

On July 1, 2003 , Molleston filed the Commission’s Second Motion for No-evidence Summary Judgment and Notice of Submission for July 28, 2003 . (Record “33”)

On July 7, 2003 , the State Bar dismissed WorldPeace’s grievance against Molleston. (Record “59”) On July 10, 2003 , WorldPeace appealed the denial. (Record “61”)

On July 21, 2003 , WorldPeace filed Defendant’s Seventh Amended Original Answer and Counterclaims and Third Party Claims (Record “64”) adding a cause of action for injunctive relief. (Record “124”)

On July 21, 2003 , WorldPeace filed WorldPeace’s Response to the Commission’s Second Motion for No-evidence Summary Judgment (Record “128”) and in that motion demanded that Judge Fry sever the lawsuit per his pre-trial oral rulings. (Record “128-130”)

On August 5, 2003 , WorldPeace filed WorldPeace’s Motion for Order of Severance (Record “138”) because Judge Fry refused to sever the lawsuit per his pretrial rulings. Judge Fry refused to hear or respond to WorldPeace’s Motion for Severance Order.

On August 7, 2003 , the Board of Disciplinary Appeals sent a letter to WorldPeace denying WorldPeace’s grievance against Molleston for lying to Judge Fry regarding Rule 3.01 TRDP. (Record “149”)

On August 13, 2003 , WorldPeace filed a Supplemental Petition adding a cause of action for Declaratory Judgment. WorldPeace filed under the original cause number because Judge Fry had refused to sever the lawsuit. August 13, 2003 , was four months after Judge Fry’s April 14, 2003 , pre-trial oral severance rulings.

On August 27, 2003, Judge Fry signed and entered 1) an Order granting Petitioner’s Second Motion for No-evidence Summary Judgment (Record “150”) 2) an Order of Severance (Record “151”) 3) a second Judgment for Disbarment. (Record “152”)

On September 26, 2003 , WorldPeace filed WordlPeace’s Second Amended Motion to Vacate or Modify Judgment of Disbarment of August 27, 2003 . (Record “159”) On September 26, 2003 , WorldPeace filed Respondent WorldPeace’s Third Amended Motion for New Trial and Motion for JNOV Regarding the Court’s August 27, 2003 , Judgment for Disbarment. (Record “200”) On October 31, 2003 , WorldPeace filed Respondent’s Amended Motion for Rehearing on Petitioner’s Second Motion for No-evidence Summary Judgment. (Record “263”) On November 5, 2003 , WorldPeace filed Respondent’s Short Rendition Regarding Respondent’s Motion for New Trial, Respondent’s Motion to Modify and Response to Petitioner’s Motion for Summary Judgment. (Record “318”)

On November 7, 2003 , Judge Fry held a hearing on WorldPeace’s Motions.

However, Judge Fry again refused to hear WorldPeace’s Motion to Compel Molleston to produce Rule 3.01 cases. (Record “348”)

On November 7, 2003 , Judge Fry signed and entered 1) an Order on Respondent’s Motion for Rehearing on Petitioner’s Second Motion for No-evidence Summary Judgment. (Record “351”) The motion was denied 2) an Order on WorldPeace’s Third Amended Motion for New Trial. (Record “352”) The motion was denied 3) an Order on WorldPeace’s Second Amended Motion to Vacate or Modify Judgment of Disbarment of August 27, 2003 . (Record “353”) The motion was denied 4) an Order on WorldPeace’s Motion for JNOV. (Record “354”) The motion was denied.

On November 19, 2003 , WorldPeace sent a letter to Judge Fry demanding that Judge Fry rule on WorldPeace’s motions and proceed to trial on the unadjudicated issues. (Record “382”)

On November 19, 2003 , WorldPeace filed a Motion for Trial Setting. (Record “355”) WorldPeace sent a copy of the Motion for Trial Setting to Judge Fry. (Record “382”) Judge Fry refused to respond.

On November 19, 2003 , WorldPeace filed a Motion (Demand) for Hearing on Respondent’s Motion to Compel Production (Record “362”) and sent a copy to Judge Fry. (Record “382”) Judge Fry refused to respond.

On November 20, 2003 , WorldPeace filed WorldPeace’s Demand for Judge Fry to set aside his Interlocutory August 27, 2003 , Judgment for Disbarment (Record “366”) and sent a copy to Judge Fry. Judge Fry refused to respond.

Judge Fry did not respond to WorldPeace’s November 19, 2003, Motion for Trial Setting, Motion (Demand) for Hearing on Respondent’s Motion to Compel Production or to WorldPeace’s November 20, 2003, Demand for Judge Fry to set aside his Interlocutory August 27, 2003, Judgment for Disbarment.

Judge Fry refuses to hear and rule on WorldPeace’s Motion to Compel Rule 3.01 TRDP cases from Mr. Molleston or try the unadjudicated issues 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.

4) This Application for Writ of Mandamus is in regards to Judge Fry’s refusal to perform his ministerial duty in that he has refused to hear or rule on WorldPeace’s Motions and refuses to try the unadjudicated issues in underlying lawsuit.

ISSUE ONE

Is it an abuse of discretion for Judge Fry to refuse to perform his ministerial duties of ruling on motions and trying the unadjudicated issues in the underlying lawsuit?

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 abuses its discretion when it acts in an unreasonable or arbitrary manner or, stated differently, when it acts without any reference to guiding rules or principles. See Beaumont Bank, N.A. v. Buller, 806 S.W. 2d 233, 226 ( Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W. 2d 238, 241-42 ( Tex. 1985)’

In re: Meador, 968 S.W. 2d 346, 353 ( Tex. 1997)

“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)

“A trial court may not arbitrarily halt proceedings in a pending case, and mandamus will lie to compel a trial court to hear and rule on motions pending before it.”

In re: Tasby; 40 S.W. 3d 190, 191 ( Tex. App. – Texarkana 2001)

“…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)

ARGUMENT

REFUSAL TO HEAR WORLDPEACE’S MOTION

In the pretrial hearing on April 14, 2003, when the court was considering WorldPeace’s Plea in Abatment, (Record “383”) the court asked J.G. Molleston if he, Judge Fry, had jurisdiction to hear the additional five grievances added by the Commission in light of the fact that the Commission did not file them with the Clerk of the Supreme Court as mandated by Rule 3.01 Texas Rules of Disciplinary Procedure; and therefore Judge Fry had no jurisdiction to hear the additional complainants because he had not been appointed to hear them per Rule 3.02 TRDP.

Mr. Molleston stated that he had violated Rule 3.01 several times in the six years he had been working for the State Bar. (Record “14”) Judge Fry denied WorlPeace’s Plea to the Jurisdiction.

On April 23, 2003 , Judge Fry signed and entered a Judgment for Disbarment against WorldPeace. On June 23, 2003 , Judge Fry vacated its April 23, 2003 , Judgment for Disbarment.

On June 24, 2003 , WorldPeace sent a letter to Molleston demanding to see those Rule 3.01 lawsuits he referenced in pre-trial. (Record “15”) On June 24, 2003 , Molleston responded to WorldPeace’s letter refusing to produce any cases. (Record “16”) On June 25, 2003 , WorldPeace filed WorldPeace’s Motion to Compel J.G. Molleston to Produce Documents. (Record “17”)

Judge Fry knows that Molleston lied to him in pre-trial and that Molleston had no cases in which he violated Rule 3.01 as he had in WorldPeace’s disciplinary petition wherein Molleston added five additional complainants to the underlying lawsuit without filing them with the Clerk of the Supreme Court.

WorldPeace filed a grievance on Molleston for lying to the court which was denied because the State Bar is not going to go after its own personnel. (Record “20,59”)

WorldPeace would show the court that the cases or lack of cases referred to by Molleston are relevant to the Rule 3.01 TRDP issue of whether Judge Fry has jurisdiction over the five additional grievances added to the underlying disciplinary petition on November 18, 2003 by the Commission outside Rule 3.01 TRDP. If this practice exists it should be ratified or sanctioned. It is important to the jurisprudence of the state.

WorldPeace would show the court that the sole reason for Molleston to lie to the court was to influence the court to proceed against WorldPeace knowing that on its face Rule 3.01 TRDP mandated Judge Fry to dismiss the additional complainants from the underlying lawsuit.

WorldPeace would show the fact that there are no cases that are relevant to WorldPeace’s Motion for Rule 13 TRCP and Chapter 9 & 10 TCP&RC Sanctions against Molleston for lying to the detriment of WorldPeace in addition to determining whether Judge Fry had jurisdiction to hear the additional complainants under the Rule 3.01 TRDP issue.

Judge Fry knows that if Molleston does not produce these cases, he will be disbarred. Judge Fry is covering Molleston’s back to WorldPeace’s detriment. There are no “on point” Rule 3.01 TRDP cases in the case law. If Mr. Molleston has no cases that have not been appealed which are on point, then Judge Fry’s hearing of the five additional complainants was a blatant abuse of discretion and the Judgment for Disbarment with regards to those additional complainants is void because Judge Fry lacked jurisdiction.

Lastly, on November 7, 2003 , Judge Fry heard WorldPeace Motion for New Trial, JNOV, Motion to Modify and Motion for rehearing on the Commission’s Second Motion for no evidence summary judgment. At the beginning of that hearing, Judge Fry stated that he was not going to hear WorldPeace’s Rule 3.01 TRDP Motion against Molleston because discovery in the lawsuit has been closed prior to trial. (Record “346”)

WorldPeace would show the court that WorldPeace’s Rule 3.01 TRDP Motion to Compel has to do with Molleston’s statements to the court at pretrial and has nothing to do with the facts of the underlying disciplinary petition. Molleston’s lies have to do with sanctions for his actions in pretrial as well as determining whether the State Bar has a habit of adding additional complainants to an existing disciplinary petition without first filing them with the Clerk of the Supreme Court per Rule 3.01 TRDP. WorldPeace’s motion must be heard and ruled on by Judge Fry. For Judge Fry to refuse to rule is an abuse of discretion regarding this ministerial duties per Tasby.

“A trial court may not arbitrarily halt proceedings in a pending case, and mandamus will lie to compel a trial court to hear and rule on motions pending before it.”

In re: Tasby; 40 S.W. 3d 190, 191 ( Tex. App. – Texarkana 2001)

JUDGE FRY’S REFUSAL TO TRY THE UNADJUDICATED ISSUES

On April 14, 2003 , in pretrial Judge Fry severed the underlying lawsuit into three lawsuits. (Record “10-12”) One was the TDRPC rule violations which were tried to a jury. Two was the Lang and Apodaca Counterclaims. And Three was WorldPeace constitutional counterclaims. At the time, Judge Fry made no mention of what he was going to do with the rest of WorldPeace causes of action like his cause of action for intentional infliction of emotional distress.

Judge Fry made these pre-trial rulings orally. At the time Judge Fry entered his first Judgment of Disbarment on April 23, 2003 , he did not issue any other orders regarding the rest of the lawsuit. Judge Fry did insert a “mother hubbard” clause into his Judgment for Disbarment which indicated on the one hand that the TDRPC violations had in fact been severed and that severance per Rule 41 TRCP lawsuit was final.

“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)

However, since Judge Fry did not enter a severance order regarding the rest of the lawsuit, that “mother hubbard” clause became a global dismissal of the balance of WorldPeace’s issues in the lawsuit. At least, this was the law under the old Mafrige ruling. However, out of an abundance of caution, WorldPeace filed a Motion to Modify the Judgment for Disbarment and a Motion for New Trial and the Judgment for Disbarment was vacated on June 23, 2003 .

On July 1, 2003 , Mr. Molleston filed a Second Motion for No Evidence Summary Judgment. On July 21, 2003 , in his response WorldPeace complained to the court that there was no severance order in place and therefore there was a question as to which cause number Mr. Molleston was required to file his motion for Summary Judgment under.

Per the local rules of Harris County , Rule 41 TRCP severed lawsuits must be assigned a new cause number. (Record “332”)

Judge Fry refused to sign a severance order and so on August 5, 2003 , WorldPeace filed a Motion for a Severance Order. Judge Fry refused to set a hearing on the Motion.

On August 27, 2003 , Judge Fry entered an Order Granting the Commision’s summary judgment, (Record “150”) an Order of Severance (Record “151”) and a Judgment for Disbarment (Record “152”). The problem with the orders was that they contradicted the pretrial severance ruling and they contradicted each other.

On April 9, 2003 , Mr. Molleston had filed a Motion to Sever WorldPeace’s constitutional claims for religious and political discrimination (free speech) and WorldPeace’s counterclaim for intentional infliction of emotional distress. (Record “3”)

At the pretrial hearing Judge Fry only referenced constitutional counterclaims in his severance rulings and not which constitutional counterclaims. (Record “10”)

Judge Fry in response to Complainant Lang’s Motion to Dismiss, denied the motion and severed WorldPeace counterclaims for attorney fees with regards to Lang and Apodaca. (Record “10”)

The Judgment for Disbarment (Record “152”) indicates that the constitutional counterclaims were not severed per Rule 41 TRCP but were in separated per Rule 174(b). This was the first time that Judge Fry had indicated he was speaking about a Rule 174(b) separate trials in one lawsuit as opposed to separate lawsuits. Judge Fry only used the word “sever” in pretrial (Record “10”). He never referred to Rule 41 or Rule 174(b) TRCP at pre-trial or any time afterward.

The Order for Severance stated that the Commission’s Motion for Severance was granted. This means that the religious discrimination and political discrimination (free speech) issues and the intentional infliction issues had been severed into the “A” case. (Record “151”)

However, these issues were in the Commission’s Second Motion for No Evidence Summary Judgment and filed under the primary cause number. (Record “38,49”) The Summary Judgment and Order of Severance were incorporated into the Judgment for Disbarment.

Judge Fry on November 7, 2003 , after hearing WorldPeace Motion to Modify, vacate or Clarify his August 27, 2003 , orders refused to make any changes. Therefore, no one really knows what Judge Fry intended with these disjunctive and conflicting orders.

More importantly, the Summary Judgment did not list WorldPeace’s constitutional issues of self incrimination, (Record “76”) and did not list the elements for WorldPeace constitutional issues of due process and equal protection as is required by Rule 166a(i) TRCP. Therefore, these issues have not been adjudicated.

In addition, on July 21, 2003 , seven days prior to the submission of the Commission Motion for Summary Judgment, WorldPeace added a cause of action for injunctive relief. This issue has never been tried.

REFUSAL TO PROCEED TO TRIAL ON THE UNDAJUDICATED ISSUES

Judge Fry has refused to perform his ministerial duty to rule on WorldPeace’s motions regarding Molleston and Rule 3.01 TRDP. Judge Fry has refused to try the unadjudicated issues, all of which is an abuse of discretion for a refusal to perform his ministerial duties.

“To be entitled to a permanent injunction, Jordan had to plead and prove: (1) a wrongful act; (2) imminent harm; (3) irreparable injury; and (4) no adequate remedy at law.”

Jordan v. Landry’s Seafood Restaurant, Inc., 89 S.W. 3d 737, 742 ( Tex. App. – Hous. [1^st Dist.] 2002)

“A successful applicant for injunctive relief must demonstrate the following four grounds for relief: 1) the existence of a wrongful act; 2) the existence of imminent harm; 3) the existence of irreparable injury; and 4) the absence of an adequate remedy at law. Frey v. DeCordova Bend Estates Owners Ass’n, 632 S.W. 2d 877, 881 (Tex. App. – Fort Worth 1982), aff’d, 647 S.W. 2d 246 ( Tex. 1983)”

Priest v. Texas Animal Healt Comm’n, 780 S.W. 2d 874, 875 (Tex. App. – Dallas 1989)

Therefore, for example, the Commission would have to file a motion for No-evidence Summary Judgment stating that WorldPeace had no evidence of one of the elements of due process and if that was not possible then the Commission would have to allege that WorldPeace did not have evidence of one of the other elements of injunctive relief with regards to due process.

The Commission took a position in its disciplinary petition that says that the only relief WorldPeace had with regards to his constitutional issues was under 42 US Code § 1983.

But this is not true. WorldPeace never pled for damages and never pled 42 US Code § 1983 but only pled injunctive relief. (Record “38,45,49”)

In addition, the Commission never mentioned WorldPeace’s cause of action regarding violation of his rights against self incrimination in his Seventh Amended Petition. (Record “76”)

Also, by Judge Fry’s refusal to sign a severance order even when asked by WorldPeace in WorldPeace’s response to the Commission’s Second Motion for No-evidence Summary Judgment (Record “128”) and by a separate motion (Record “138”) that WorldPeace placed in a petition that he had to file regarding his supplemental petition for declaratory judgment under the main cause number.

Judge Fry tried to dismiss WorldPeace’s cause of action for declaratory judgment in his summary judgment ruling. However, since Judge Fry created an “A” case, the declaratory judgment could have been filed in the “A” case. The declaratory judgment issue is in limbo.

All of these problems were created due to Judge Fry refusing to sign a severance order and then when he did sign one, it did not integrate with his Order for Summary Judgment or his Judgment for Disbarment all entered on August 27, 2003 . In addition, to all this Judge Fry has refused to clarify his orders. (Record “353”)

In a nutshell, WorldPeace’s constitutional issues in regards to WorldPeace’s cause of action for injunctive relief and his cause of action for declaratory judgment have not been adjudicated and Judge Fry refuses to set them for trial.

PRAYER

WHEREFORE, premises considered, Relator moves this court to mandamus Judge Fry to set a hearing on WorldPeace’s Motion to Compel and Motion to Sever and set a trial date for the unadjudicated issues in the underlying lawsuit and for such other and further relief at law or in equity as this court may deem proper.

Respectfully submitted,

_______________________________
John WorldPeace
2620 Fountainview, 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

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

E. June 25, 2003 WORLDPEACE’S MOTION TO COMPEL J. G. MOLLESTON TO PRODUCE DOCUMENTS

J. July 21, 2003 DEFENDANT’S SEVENTH AMENDED ORIGINAL ANSWER AND COUNTERCLAIMS AND THIRD PARTY CLAIMS

K. July 21, 2003 RESPONDENT’S RESPONSE TO COMMISSIONER’S SECOND MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT

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

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

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

R. 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

S. October 31, 2003 RESPONDENT’S AMENDED MOTION FOR REHEARING ON PETITIONER’S SECOND MOTION FOR NO EVIDENCE SUMMARY JUDGMENT

T. 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

U. November 7, 2003 Transcript from Hearing on Motions regarding Fry and no Rehearing (First three pages)

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

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

AA. November 20, 2003 WORLDPEACE’S DEMAND FOR JUDGE FRY TO SET ASIDE HIS INTERLOCUTORY AUGUST 27, 2003 , JUDGMENT FOR DISBARMENT

AB. November 20, 2003 WORLDPEACE’S DEMAND FOR JUDGE FRY TO SET ASIDE HIS INTERLOCUTORY AUGUST 27, 2003 , JUDGMENT FOR DISBARMENT

AC. November 19, 2003 WorldPeace’s Letter to Fry Regarding MOTION (DEMAND) FOR HEARING ON RESPONDENT’S MOTION TO COMPEL PRODUCTION and MOTION FOR TRIAL SETTING

AD. April 10, 2003 RESPONDENT’S MOTION TO DISMISS AND/OR MOTION FOR CONSOLIDATION PLEA TO THE JURISDICTION

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?