§ IN THE DISTRICT COURT
JOHN WORLDPEACE § 269TH JUDICIAL DISTRICT
RESPONDENT’S SHORT HAND RENDITION REGARDING
RESPONDENT’S MOTION FOR NEW TRIAL,
RESPONDENT’S MOTION TO MODIFY,
AND PETITIONER’S motion for SUMMARY JUDGMENT
COMES NOW, WorldPeace, and files this RESPONDENT’S SHORT HAND RENDITION REGARDING RESPONDENT’S MOTION FOR NEW TRIAL, RESPONDENT’S MOTION TO MODIFY, AND PETITIONER’S SUMMARY JUDGMENT, and would show the court the following:
brief is for the purpose of creating a short hand rendition of the major
problems with the court’s
WorldPeace prays the court to take judicial notice of the contents of the file.
TABLE OF CONTENTS
I. THE COMMISSION’S SECOND AMENDED MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT………………………………………….…………………………….
II. WORLDPEACE’S MOTION TO
VACATE, MODIFY, OR CLARIFY THE
III. WORLDPEACE’S MOTION FOR JNOV AND MOTION FOR NEW TRIAL………..
IV. ABUSE OF DISCRETION…………………………………………………………………..
i. THE COMMISSION’S SECOND AMENDED MOTION FOR
NO-EVIDENCE Summary Judgment
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) (Exhibit “B”) were not adjudicated and the August 27, 2003, Judgment for Disbarment is interlocutory because it is not a final judgment per Rule 301 TRCP.
NOTE: It is an abuse of discretion for the court to use a “mother hubbard” clause as a vehicle to arbitrarily dismiss issues and parties which have not been adjudicated.
A. 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.
1. WorldPeace’s defense regarding a “suit within a suit”.
2. WorldPeace’s Constitutional counterclaim for violations of his Constitutional rights against self incrimination. (Under the heading regarding Rule 801 and 804 TDRPC)
3. WorldPeace’s affirmative defense of Res Judicata regarding Johnell Collins and the Commission.
4. WorldPeace defense and Constitution counterclaim regarding multiple complainants in one disciplinary petition.
the above issues were not adjudicated, the
B. 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
2. WorldPeace’s issue regarding awarding attorney fees to the Commission and WorldPeace’s counterclaim for attorneys fees.
3. Violations of WorldPeace Constitutional due process rights
4. WorldPeace issue regarding unconstitutional range of punishment
5. WorldPeace’s Constitutional counterclaims regarding oppressive, arbitrary, and capricious nature of the Texas Rules of Disciplinary Procedure.
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).
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.
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. WORLDPEACE’S SEVENTH AMENDED ORIGINAL ANSWER AND COUNTERLAIM AND THIRD PARTY CLAIMS 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 that was not pled in the Commission’s Second Amended Motion for No-Evidence Summary Judgment.
injunction issue was not pled in the Commission’s Second Amended Motion for No-Evidence
Summary Judgment, it was not adjudicated and the
“Jones is not inconsistent with our holding today to the extent Jones is understood as approving suits for injunctive relief.”
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.”
D. 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) WorldPeace never pled for damages related to his Constitutional issues but pled only for injunctive relief.
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,
Garza v. State of
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.
the Commission did not file for special exceptions, the issues listed in Section
I. A, B and C were not adjudicated and
II. MOTION TO VACATE, MODIFY, CLARIFY THE
A. THE JUDGMENT FOR DISBARMENT
A. All the issues that were not addressed in the
Commission’s Second Amended Motion for No-evidence Summary Judgment, (Section
I. A & C) and all the issues for which the Commission did not specifically
list the ELEMENTS of which there was no evidence, (Section I. B above) and issues
that were not TDRPC Rule violations that were tried to the jury, were not adjudicated. Therefore the
B. In addition, Respondent’s supplemental petitions for 1) Declaratory Relief filed on August 13, 2003, and 2) counterclaims against Johnell Collins filed on August 5, 2003, were not adjudicated, severed or specifically addressed in the August 27, 2003, Judgment for Disbarment.
The court stated
these issues were not a part of the Commission’s Second Amended Motion for
No-evidence Summary Judgment but did not in its
C. The Attorney General is a party to the underlying lawsuit and has been served but has not answered.
B. RULE 174(B) AND RULE 41 TRCP
The court stated
in pretrial and post trial that the mandatory counterclaims by Respondent
against the claimants were severed per Rule 41 TRCP. (Exhibit “B”)
“Appellee argues that the
trial court’s order can be construed as an order for separate trial of issues
as permitted by
Mathis v. Bill de la Garza & Associates, P.C.; 778 S.W. 2d 105, 106 (Tex. App. – Texarkana 1989)
The April 23, 2003, Judgment for Disbarment made no reference to any cause of action outside the TDRPC Rule violations. It was intended to be a final judgment regarding the Rule violations which had been severed.
However, since no severance order was entered, the April 23, 2003, Judgment for Disbarment became a global final judgment.
The court ordered a severance of WorldPeace’s Lang and Apodaca counterclaims on August 27, 2003, and a Rule 174(b) separate trial ruling in its August 27, 2003 Judgment for Disbarment which was contrary to the court’s Rule 41 TRCP separate lawsuit rulings in response to the Commission’s Motion to Sever at pretrial. The court reiterated the severance in post trial.
filed a Petition for Severance on
Further, Rule 174(b) TRCP does not use the word sever. Only Rule 41 TRCP uses the word sever.
The law is based upon precise legal terms and definitions. The court never stated its severance ruling in terms of Rule 41 TRCP or Rule 174(b) TRCP but only used the word SEVER regarding WorldPeace’s Lang, Apodaca, constitutional and intentional infliction of emotional distress claims as well as the TDRPC violations.
WorldPeace was disadvantaged because WorldPeace would have tried the case differently had WorldPeace understood the court’s ruling to mean Rule 174(b) TRCP separate trials.
WorldPeace would have pointed out to the court how the Constitutional issues impacted and interrelated on the various TDRPC violations to show the court that Rule 174(b) TRCP separate trials would be an exception to the discretion afforded a judge under Rule 174(b) TRCP. Rule 174(b) TRCP does not allow the court to try liability and damages separately.
Our conclusion is that although the discretion lodged in trial judges by Rule 174(b) in ordering separate trials of ‘issues’ is indeed broad and realistic, it does not authorize separte trials of liability and damage issues in personal injury litigation.
Iley v. Hughes; 311 S.W. 2d
648, 651 (
Rule 174 provides in pertinent part as follows:
(b) Separate Trials.
The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or any number of claims, cross-claims, counterclaims, third-party claims, or issues.
A reading of this rule makes it clear that it is for the convenience of the court and to avoid prejudice. Separate trials, under rule 174, involve interlocutory orders determining the claims or issues tried, but there is only one final judgment which is entered after all the claims and issues involved have been tried. An issue that has been tried under rule 174 does not necessarily constitute a complete lawsuit.
is possible only where the suit involves two or more separate and distinct
causes of action. Each of the causes under which the action is severed must be
such that the same might be properly tried and determined if it were the only
claim in controversy.
A distinction between separate trials as provided in rule 174 must be made with a severance that is allowed under rule 41, which provides that "any claim against a party may be severed and proceeded with separately." Severance divides a law suit into two or more independent causes, each of which terminates in a separate, final and enforceable judgment. Kansas University Endowment Association v. King, supra.
Vautrain v. Vautrain; 646 S.W. 2d 309, 309 (Tex. App. – Fort Worth 1983)
WorldPeace had a right to rely on the fact that the court’s wrongful Rule 41 TRCP severance of WorldPeace’s mandatory counterclaims would be reversed by the appeals court and to proceed with trial with this knowledge.
WorldPeace has a right to expect the court to know the nuances of the law and a right to expect the court to use statutory terms properly in his rulings.
WorldPeace has a right to expect the court to understand that the meaning of the word sever refers to Rule 41 TRCP and only Rule 41 TRCP and not Rule 174(b) TRCP.
To sever Mandatory
Counterclaims is an abuse of discretion.
This court, on
D. RES JUDICATA AND THE JOHNELL COLLINS COMPLAINT
It was an abuse of discretion for this court to retry the Collins matter. Collins could not sue for restitution because she did not counterclaim for restitution in the WorldPeace v. Collins lawsuit in the 281st District Court. The Commission takes on the common law rights of a complainant, if the complainant has any rights, per Rule 406(A) TRDP.
So if Collins had no rights for restitution because she did not file a counterclaim in the WorldPeace v. Collins lawsuit and was bared by res judicata, the same applies to the Commission. Therefore, the Commission could not file for restitution in the Commission v. WorldPeace lawsuit.
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. Each Committee possesses all rights characteristically reposed in a client by the common law of this State relative to Complaints being handled by such Committee until either: (i) twenty days after a Just Cause determination has been made; or (ii) a Disciplinary Action is filed in a court of competent jurisdiction.
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 [1st 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.
Co. v. Valero Energy Corp., 999 SW2d 203, 206-207 (
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.
The Commission responded to several motions filed by WorldPeace in the WorldPeace v. Collins lawsuit in the 281st District Court, where WorldPeace originally filed his answer to the Commission’s disciplinary petition.
In addition, the
Commission filed a Plea to the Jurisdiction in the WorldPeace v. Collins lawsuit.
The Plea to the Jurisdiction
was never granted by the 281st District Court. A final nunc pro tunc judgment was signed by
the court on
The Commission’s causes of action against WorldPeace regarding Collins were adjudicated in the 281st District Court and were barred by res judicata in the underlying disciplinary petition.
The Commission was never dismissed from the 281st District Court lawsuit and so it was barred by res judicata from filing against WorldPeace in the underlying disciplinary petition.
The current proposed changes to the TRDP still do not allow the Commission to add disciplinary petitions per Rule 3.01 to an existing disciplinary petition. They still MUST be filed with the Clerk of the Supreme Court.
The court had no jurisdiction to try the five additional grievances added to the original disciplinary petition in this lawsuit.
E. EFFECTIVE DATE OF DISBARMENT
The trial court cannot make a disbarment
effective until it loses it plenary power.
The trial court attempted to make WorldPeace’s Judgment for Disbarment
effective long before the court was to lose its plenary power. The court still has its plenary power and
will not lose it before
The Judgment for Disbarment must be modified to reflect this.
it is true that there can be only one final appealable judgment in any lawsuit,
Woosley v. Smith, 925 S.W. 2d 84, 87 (Tex. App. – San Antonio 1996)
III. MOTION FOR JNOV AND NEW TRIAL
Did the trial court abuse its discretion by
finding violations of Rule 1.03 TDRPC by WorldPeace when the Commission for
Lawyer Discipline did not offer expert testimony at trial regarding a
“reasonably prudent attorney” which is a necessary element of Rule 1.03 (a)
& (b) TDRPC?
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
“Reasonable” or “Reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.
WorldPeace would show the court that the significant attorney malpractice law in this state requires an expert attorney witness to prove up the standard of care of a “reasonably prudent attorney”. WorldPeace would show that the terminology section of the TDRPC defines the “reasonable” and “reasonably” essential elements of Rule 1.03 (a) & (b) as applying to a “reasonably prudent attorney”.
The Commission did not designate an expert witness per Hall to testify as to the duty owed the complainants by a “reasonably prudent attorney”.
WorldPeace designated himself as an expert witness 58 days prior to trial but the court abused it discretion and refused to allow him to testify as an expert allegedly because WorldPeace did not designate himself in a timely manner.
WorldPeace would show the court that without considering the fact that WorldPeace was not allowed to testify as an expert witness, the fact remains that the Commission did not prove up the essential element of “reasonable” of Rule 1.03 (a) & (b) because it did not designate or call an expert attorney witness for that purpose per Hall.
WorldPeace would therefore show the court that the trial court abused its discretion allowing the jury to find that WorldPeace violated Rule 1.03 (a) & (b) in the underlying lawsuit without the testimony of an expert witness and therefore all the Rule 1.03 (a) & (b) violations regarding the various complainants should be vacated.
WorldPeace would show that the trial court also abused its discretion by not allowing WorldPeace to testify as an expert witness.
Did the trial court abuse its discretion by sanctioning WorldPeace for violations of Rule 8.04 (a) (8) TDRPC and Rule 1.06 (Q)(4) of TRDP for relying on the Fifth Amendment of the Federal Constitution and Article I, section 10 of the Texas Constitution?
The Fifth Amendment can be asserted
in both civil and criminal trials “wherever the answer might tend to subject to
criminal responsibility him who gives it.
Generally, the exercise of the privilege should not be penalized. Spevack v. Klein, 385
Texas Department of Public Safety
Officers Association v.
897 SW2d 757, 760 (
We conclude that Cohen v. Hurley should be overruled, that the Self-Incrimination Clause of the First Amendment has been absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it.
Spevack v. Klein, 385
Rule 8.01 TDRPC comment 2
This Rule is subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of Article 1, Section 10 of the Texas Constitution. A Person relying on such a provision in response to a specific question or more general demand for information, however, should do so openly and not use the right of non-disclosure as an unasserted justification for failure to comply with this Rule.
Rule 8.04 (8) TDRPC
A lawyer shall not fail to timely furnish to the Chief Disciplinary Counsel’s office or a district grievance committee a response or other information as required by the TRDP, unless he or she in good faith timely asserts a privilege or other legal ground for failure to do so.
Rule 1.06 (q)(4) TRDP
“Professional Misconduct” includes failure of a Respondent to furnish information subpoened by a Committee, unless he or she, in good faith, asserts a privilege or other legal grounds for the failure to do so.
Rule 15.02 TRDP
If any witness, including the Respondent, fails or refuses to appear or to produce the things named in the subpoena, or refuses to be sworn or to affirm or to testify, the witness may be compelled to appear and produce tangible evidence and to testify at a hearing before a district judge of the county in which the subpoena was served.
Actions taken by the grievance committee are not accorded finality; therefore, due process does not attach. (Minnick below) The decision of the grievance committee regarding the complaint against Flume had no finality absent Flume’s consent. Because Flume did not accept the decision of the committee, the State Bar filed suit and a trial de novo was held in the district court according Flume due process.
Flume v. State Bar of
A grievance committee’s investigations have been compared to an inquisition by a grand jury. Nonetheless, as long as an indictment is valid on its face and the grand jury is legally constituted, a due process complaint will not be sustained.
Minnick v. State Bar, 790 SW2d 87, 90 (Tex. App. - Austin, 1990)
Further, in the current proposed changes to the TRDP Rule 1.06(Q)(H) is being eliminated.
WorldPeace would show the court that per Spevack the court could not sanction WorldPeace for refusing to incriminate himself in his refusal to respond to the grievance committee’s original demand for a response under Rule 2.09 TRDP nor in WorldPeace refusal to submit to the grievance committees subpoena under Rule 15.01 TRDP.
would also show the court that on the day of the grievance hearing on
Nash-Fraser and Apodaca he was stuck in
WorldPeace would show the court that per Minnick a grievance investigation is similar to a grand jury investigation and WorldPeace therefore has no due process rights in the grievance investigation because he elected a trial de novo in the district court.
WorldPeace would show the court in regards to the subpoena power of Rule 15.01 TRDP, the Commission had the choice of having a district judge order WorldPeace to comply with the subpoena under Rule 15.02 TRDP. The grievance committee did not use this vehicle.
WorldPeace would show the court that if he has no due process rights in the grievance process, then he would be foolish to respond to the demands for information from the grievance committee especially since his license was subject to being revoked. It made more sense for WorldPeace to refuse to respond especially since WorldPeace knew that he would demand a trial de novo based on his prior negative experiences with the State Bar in general and with Dawn Miller in particular.
WorldPeace would show the court that the State Bar cannot be allowed to deny WorldPeace due process rights in the grievance investigation process and then attempt to sanction WorldPeace for refusing to cooperate.
The State Bar should not be allowed to use the lack of due process in the grievance process as a shield denying due process and at the same time use it as a sword to disbar WorldPeace for failure to participate in a process which does not afford him due process under the Texas or Federal Constitutions.
not only did the court abuse its discretion by sanctioning WorldPeace when he
exercised his Fifth Amendment right, per Spevack,
it also abused its discretion by sanctioning WorldPeace for refusing to
participate in a process in which he had no due process rights under the
Also, comment 2 to Rule 8.01 TRDP indicates that WorldPeace was not required to openly assert his rights against self incrimination.
The Rule 8.04(a)(8) and Rule 1.06(Q)(4) violations should be vacated as an abuse of discretion.
IV. ABUSE OF DISCRETION
“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)
“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 (
In re: Meador, 968 S.W. 2d 346, 353 (
“Aside from the “clear abuse of
discretion” threshold set forth in
Monroe v. Blackmon, 946 S.W. 2d 533, 536 (Tex. App. – Corpus Christi 1997)
“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)
its holding in
Trinity Capital Corporation v. Briones, 847 S.W. 324, 326 (Tex. App. – El Paso 1993)
“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)
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 (
1) It was an abuse of discretion for the court to try the five additional complainants added by the Commission to the underlying disciplinary petition without authority from the Supreme Court per Rule 3.02 TRDP. The additional complaints were not filed with the Clerk of the Supreme Court as ordered by Rule 3.01 TRDP.
The proposed amended rules to the TRDP do not eliminate the MUST dictate from Rule 3.01 even though the proposed Rule 3.01 does allow for multiple complaints to be filed in one petition.
2) It is an abuse of discretion to try the Collins complaint that had been tried to conclusion prior to trial in the underlying lawsuit regarding both Collins and the Commission. Collins and the Commission were barred by res judicata from trying a disciplinary petition against WorldPeace.
3) It is an abuse of discretion to sever the mandatory counterclaims against Lang and Apodaca.
4) It is an abuse of discretion to order the underlying lawsuit severed per Rule 41 TRCP (which contains the WORD sever) and then enter a Judgment for Disbarment ruling there was a Rule 174(b) TRCP (which does not use the word sever) order for separate trials.
5) It is an abuse of discretion to refuse to sign a severance order prior to final judgment when the Respondent moved for a severance in his Response to the Commission’s Motion for No-evidence Summary Judgment and in a separate motion. Without a severance order, WorldPeace was at a disadvantage as to how to proceed especially when WorldPeace believed there was a Rule 41 TRCP severance as opposed to a Rule 174(b) separate trials ruling by the court.
6) It is an abuse of discretion to attempt to dismiss WorldPeace’s causes of action for declaratory judgment, counterclaim against Collins, injunctive relief and other causes of action that were not adjudicated with a “mother hubbard” clause.
7) It is an abuse of discretion to fail to state the scope and basis of the summary judgment ruling when asked for clarification by Respondent.
8) It is an abuse of discretion to refuse to hear WorldPeace’s motion to compel Molleston to produce 3.01 cases that are material and relevant to WorldPeace’s Motion for Rule 13 and Chapter 9 & 10 TCP&RC violations. Molleston stated in pretrial he had often violated Rule 3.01 (Exhibit “D”).
of evidence will prove a pattern and practice of violating the law by Dawn
Miller and J.G. Molleston, attorneys for the Commission. WorldPeace’s motion was filed on
“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: Johnnie Tasby, 40 S.W. 3d
190, 191 (
9) It is an abuse of discretion to sign a Judgment for Disbarment with a disbarment date prior to the time when the court loses it plenary power. This creates an incredible amount of confusion in the courts in which the Respondent practices.
10) It is an abuse of discretion to grant a no evidence summary judgment on issues in which the Commission did not list the elements as mandated by Rule 166a(i) TRCP.
11) It is an abuse of discretion to not tell WorldPeace at trial that his bills of exceptions regarding his religious discrimination claims were unnecessary because the court had made a Rule 174(b) TRCP order for separate trials as opposed to a Rule 41 TRCP order for separate lawsuits.
It is an abuse of discretion to dismiss the Attorney General of Texas who has
been served regarding WorldPeace’s cause of action for a declaratory judgment
but has not answered, with a mother hubbard clause in the court’s
It is an abuse of discretion to use a “mother hubbard” clause to try to dismiss
causes of action and parties to a lawsuit which have not been adjudicated.
PRAYER FOR RELIEF
PREMISES CONSIDERED, WorldPeace prays this Court to set aside its August 27,
2003, Judgment for Disbarment and its Summary Judgment for the Commission for
Lawyer Discipline and its severance of the Lang and Apodaca lawsuits and for
such other and further relief at law or in equity as this court may deem
TBA No. 21872800
2620 Fountain View,
CERTIFICATE OF SERVICE
I certify that a true and correct
copy of the foregoing pleading was forwarded to opposing counsel and Judge Fry
_________________________________ John WorldPeace
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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