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NO. 2002-42081
COMMISSION FOR
LAWYER
§ IN THE DISTRICT COURT
DISCIPLINE
§
§
V. §
§
JOHN WORLDPEACE § 269TH JUDICIAL DISTRICT
RESPONDENT
WORLDPEACE’S FOURTH AMENDED MOTION FOR NEW TRIAL
AND
MOTION FOR
JNOV
REGARDING THE
COURT’S
Comes
now, WorldPeace, and files this RESPONDENT WORLDPEACE’S THIRD AMENDED MOTION
FOR NEW TRIAL AND MOTION FOR JNOV REGARDING THE COURT’S
WorldPeace
will file an Exhibit list under a different cover.
WorldPeace
would show the court that:
1) there is no-evidence to support many of the
jury's findings
2) there is a factual insufficiency of the
evidence to support many of the jury's findings
3) many of the jury's findings are against the
overwhelming weight of the evidence;
TABLE OF CONTENTS
AUTHORITY
REGARDING LEGAL AND FACTUAL SUFFICIENCY...................................4
STATEMENT OF
FACTS..........................................................................................................4
I.
LACK OF PERSONAL AND
SUBJECT MATTER JURISDICTION
RULES
3.01, 3.02, 3.03
TRDP............................................................................7
II. MANDATORY
COUNTER CLAIMS
RULE
97(a) TRCP.............................................................................................11
III. RES JUDICATA RE: COLLINS
COMPLAINT....................................................20
IV. EXPERT WITNESS
RULE
1.03
TDRPC...........................................................................................25
V. FIFTH
AMENDMENT..................................................................................................27
VI. RESTITUTION
RULE
3.12 TRDP..............................................................................................30
VII. OTHER
CHANGES TO JUDGMENT FOR DISBARMENT........................................31
VIII. NEGLECTING A LEGAL MATTER
RULE
1.01(b)(1) TDRPC..................................................................................38
"SUIT
WITHIN A SUIT"...................................................................................38
A.
NASH................................................................................................................41
B. REILLY.............................................................................................................44
C. WILLIAMS........................................................................................................49
D. LANG................................................................................................................54
IX. PROTECTING
A CLIENTS INTERESTS
RULE
1.15(d) TDRPC.......................................................................................56
A. NASH................................................................................................................57
D. LANG................................................................................................................58
X. CONTINGENCY
FEE REQUIREMENTS
RULE
1.04(d) TDRPC.......................................................................................59
C. WILLIAMS........................................................................................................60
XI. DECEIT,
DISHONESTY, FRAUD, MISREPRESENTATION
RULE
8.04(a)(3) TDRPC...................................................................................61
E.
COLLINS..........................................................................................................61
XII. DECLARATORY JUDGMENT………………………………………………………...63
XIII. COUNTERCLIAMS AGAINST JOHNELL COLLINS………………………………...64
PRAYER...................................................................................................................................64
EXHIBITS (FILED AS SEPARATE
DOCUMENT)
AUTHORITY
REGARDING LEGAL AND FACTUAL SUFFICIENCY
There are two standards by which
the sufficiency of the evidence to support the findings of the jury may be
reviewed: legal sufficiency (sometimes referred to as “no evidence”) and
factual sufficiency (sometimes referred to as “insufficient evidence”).
Section 137,
Where appellant attacks legal
sufficiency of the evidence, appellate court will review only that evidence
which supports the verdict: however, where appellant’s challenge is to factual
sufficiency of evidence, appellate court must consider all evidence.
Country Roads, Inc. v. Witt, 737
SW2d 362 (Tex.App. – Houston [14 Dist.], 1987)
STATEMENT OF FACTS
(Ex “Q”) In her answer, Collins violated Rule 2.15
TRDP by revealing that she had filed a grievance against WorldPeace. However,
since Collins is not an attorney there is no remedy available to sanction
Collins for her bad acts in violating Rule 2.15.
(Ex “D”)
August 20, 2002, per Rule 3.01 TRDP, the Commission for Lawyer Discipline
filed a petition with the Clerk of the Supreme Court with regards to the
Collins complaint only. (Ex “P”)
September 23, 2002, trial was held in the WorldPeace v. Collins matter under a Motion in Limine prohibiting
any mention of the Commission for Lawyer
Discipline v. WorldPeace lawsuit or WorldPeace’s alleged violations of the
TDRPC.
November 8, 2002, the Commission for Lawyer Discipline, added the Nash,
Apodaca/Reilly, Williams, Lang and Lynch complaints to the Collins lawsuit
without submitting disciplinary petitions to the Clerk of the Supreme Court or
acquiring an order from the Supreme Court assigning Judge Fry to hear these
additional complaints. (Ex “R”)
I. JUDGE FRY'S LACK OF PERSONAL
AND SUBJECT MATTER JURISDICTION
(Rules 3.01, 3.02, 3.03 TRDP)
ISSUE ONE
The trial court abused its discretion by hearing five grievances that
were not submitted to the Supreme Court by the Chief Disciplinary Counsel as
mandated by Rule 3.01, 3.02 and 3.03 Texas Rules of Disciplinary Procedure and
for which there was no order from the Supreme Court authorizing Judge Fry to
hear the five additional complaints?
AUTHORITIES
Rule 3.01
If the Respondent timely files an election for trial de
novo in accordance with Section 2.14, the Chief Disciplinary Counsel shall file a Disciplinary
Petition in the name of the Commission…The Disciplinary Petition must be filed with the Clerk of
the Supreme Court of Texas.
Rule 3.02
Upon receipt of a Disciplinary Petition, the Clerk of the
Supreme Court of
Rule 3.03
After the trial judge has been appointed, the Clerk of
the Supreme Court shall
promptly forward the Disciplinary Petition and a copy of the Supreme Court’s appointing Order to the
district clerk of the county of venue.
Upon receipt of the Disciplinary Petition and copy of the Supreme
Court’s appointing Order, the district clerk shall transmit a copy of the Supreme Court’s appointing
Order to the Chief Disciplinary Counsel.
“A judgment is void only when it is apparent that the
court rendering the judgment had no jurisdiction of the parties, no
jurisdiction of the subject matter, no jurisdiction to enter the judgment, or
no capacity to act as a court.” Mapco,
Inc. v. Forrest, 795 SW2d 700, 703 (
Masonite Corp. v. Garcia, 951 SW2d 812, 819 (Tex.
App. San Antonio, 1997)
We further explained it was only a trial court judgment
rendered without “jurisdictional power” in the sense of lack of subject matter
jurisdiction that could be set aside by the trial court at any time.
A judgment is
void only when it is apparent that the court rendering the judgment had no
jurisdiction of the parties, no jurisdiction of the subject matter, no
jurisdiction to enter the judgment, or no capacity to act as a court.
Mapco, Inc v.
Forrest, 795 SW2d 700, 703 (
A judgment is void only when it is apparent that the
court rendering the judgment “had no jurisdiction of the parties, no
jurisdiction of the subject matter, no jurisdiction to enter the judgment, or
no capacity to act as a court.” Browning
v. Placke, 698 SW2d 362,363.
Cook v. Cameron,
733 SW2d 137, 140 (
And a judgment is void only when it is shown that the
court had no jurisdiction of the parties or property, no jurisdiction of the
subject matter, no jurisdiction to enter the particular judgment or no capacity
to act as a court.
Browning v.
Placke, 698 SW2d 362, 363 (
(1) As previously noted, the Rules provide that it
"is the Complaint" that is heard in the trial at district court. See id. at 2.14. We also take note of the fact that the Rules
define "Complaint" to include not only that which appears on
the face of the written matters received by the Office of Chief Disciplinary
Counsel, but also that which arises upon screening or preliminary investigation
of the written matters received.
Weiss v.
Commission for Lawyer Discipline, 981 SW2d 8, 14 (Tex.App-SanAntonio, 1998)
The case was governed by part III of the Rules of
Disciplinary Procedure. The various
provisions in Part III make it quite clear that district court proceedings
thereunder are original and independent proceedings. They are not proceedings in which the
court is called upon to review an action taken in the administrative
proceedings that were interrupted by the lawyer's removal of the case to
district court. In such court
proceedings, "the
Tex.R. Disciplinary
P.3.08(b). In ordinary civil suits in district court, a
plaintiff may join as independent claims "as many claims...as he may have
against an opposing party."
Rule 51(a).
Diaz v. CLD, 953 SW2d 435, 437 (Tex.
App-Austin, 1997)
There is no
question but that Dawn Miller, the Chief Disciplinary Counsel for the State
Bar, did not follow the clear pronouncements Rules 3.01, 3.02 and 3.03, TRDP
when she added the five additional complaints to the existing Collins lawsuit
on
Judge Fry had no personal or
subject matter jurisdiction from the Supreme Court to hear the additional five
complaints because there was no order signed by the Supreme Court vesting him
with that authority.
WorldPeace
filed RESPONDENT’S MOTION TO DISMISS AND/OR MOTION FOR CONSOLIDATION PLEA TO
THE JURISDICTION bringing this issue to the attention of the Court. (Ex “K”)
The Commission for Lawyer Discipline did not deny that it had not
followed Rules 3.01, 3.02 and 3.03 when it added the additional complaints
to the lawsuit. The Commission for
Lawyer Discipline did not file a written response to WorldPeace motion but
responded orally during pre-trial. No
law was cited by the Commission for Lawyer Discipline to support its position
that it could add additional complainants to the lawsuit contrary to Rule 3.01,
3.02, 3.03 TRDP.
Judge Fry
granted the Commission for Lawyer Discipline's motion to sever and proceeded to
trial on the additional five grievances knowing that he had no authority from
the Supreme Court to proceed.
Judge Fry and the Chief
Disciplinary Counsel usurped the authority of the Supreme Court to WorldPeace’s
substantive and procedural determent with regards to the five additional
grievances.
Per Masonite, Mapro, Cook and Browning
above, the Judgment of Disbarment is void.
Per Weiss above, additional violations of
the TDRPC can be added to a disciplinary petition but there is no authority
that allows the addition of other complainants to a disciplinary petition.
Weiss
references the Diaz case which talks
about this in its dicta (Diaz was also about additional rule violation related
to the same complainants and not additional complainants being added to the
lawsuit.)
But Diaz
also references the fact that this is only true if the TRCP are not modified by
the TRDP as they are in this lawsuit.
TRDP 3.01, 3.02 and 3.03 requires a disciplinary petition to be filed
with the Clerk of the Supreme Court.
These TRDP's modify the TRCP which allows the addition of parties to a
lawsuit by amending one's pleadings.
There are no cases which speak to the issue of adding additional complainants to an existing lawsuit.
The trial
court abused its discretion by hearing the five additional grievances without
authority and the Judgment of Disbarment with regards to these five additional
grievances should therefore be vacated as being void per the above cited cases;
most are which were handed down by the Supreme Court of Texas.
II. MANDATORY COUNTER CLAIMS
ISSUE TWO
The trial
court abused its discretion by severing the mandatory counterclaims of
WorldPeace?
AUTHORITIES
Rule 97(a)
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 39(a)
A person who is subject to service of process shall be
joined as a party in the action if he claims an interest relating to the
subject of the action and is so situated that the disposition of the action in
his absence may leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent
obligations by reason of his claimed interest.
If he has not been so joined, the court shall order that he be made a
party. If he should join as a plaintiff
but refuses to do so, he may be made a defendant, or, in a proper case, an
involuntary plaintiff.
Rule 3.08 (b)
In all Disciplinary Actions brought under this part,
the following additional rules apply:
Except as varied by these rules, the
A trial court abuses its
discretion if its decision “is arbitrary, unreasonable, and without reference
to guiding principles.”
Mercedes-Benz Credit Corp. v. Rhyme, 925 SW2d 664, 666 (
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
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.
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 Discipline 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)
SEVERANCE Abuse of Discretion CASES
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,
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)
We deem if it is necessary to file such cross action that
it also imperative to try it in the same cause. ‘This same case also points out
that the purpose of rule 97(a) is to ‘avoid circuity of action inconvenience,
expense and consumption of the court’s time in trying said cross action in an
independent suit’.
Bolding v.
Chapman, 394 SW2d 862, 864 (Tex. App. - Austin, 1965)
We are of the opinion that appellants’ contention must be
sustained. As we construe the pleadings
of the parties, they do not present two distinct lawsuits subject to a
severance under the Rules of Civil Procedure No. 41.
The whole controversy grows out of but one transaction
and should be tried in one case.
***Our courts have always frowned upon piecemeal trials,
deeming the public interest, the interests of litigants and the administration
of justice to be better served by rules of trial which avoid a multiplicity of
suits.***
We have direct authority that it was error for the trial
court to sever the cross action of defendants Ulmer v. Mackey, Tex.Civ.App.,
242 SW2d 679.
*** We find the trial court further erred in severing
appellant’s cross action because same is based upon identical facts and issues
growing out of and connected with appellee’s cause of action against him. Such cross action or counterclaim is styled
‘compulsory counterclaims,’ under (a), Rule 97,
Since the trial
court erred in granting a severance in this case, it is our opinion that the
judgment of the trial court should be reversed and the cause remanded to that
court for another trial.
Spangler v. Hickey, 401 SW2d 721, 723 (Tex. App. –
Tyler, 1966)
A counterclaim meets the
provisions of Rule 97(1), T.R.C.P., which states:
‘Compulsory
Counterclaims. A pleading shall state as
a counterclaim any claim within the jurisdiction of the court, not the subject
of the 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 trial court abused its
discretion in severing the Bank’s claim from Bohart’s compulsory counterclaim
arising out of and turning upon the same facts.
We hold the compulsory
counterclaim of Bohart and the Bank’s claim involve identical facts, issues,
and subject matter, and are so interwoven a severance would occasion
unnecessary litigation and a multiplicity of suits. As stated in 3
“…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…”
The granting of the severance was an abuse of
discretion. Bates v. First National Bank of
We can find nothing in the
record to cause us to change the judgment heretofore entered. The motion for rehearing is overruled.
Bohart v. First National Bank in
“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.” Straughan v. Houston Citizens
Bank & Trust Co., 580 SW2d 29, 33 (Tex.Civ.App. – Houston [1st
Dist.] 1979, no writ). Broad discretion
is given to the trial court to determine joinder of parties and severances, and
a trial court’s ruling will not be disturbed absent a showing of an abuse of
discretion. Squires v. Squires, 673 SW2d
681, 684 (Tex.App. – Corpus Christi 1984, no writ). Severance is appropriate if the controversy involves
two or more distinct causes of action, Duke v. Merkin, 599 SW2d 877
(Tex.Civ.App. – El Paso 1980, no writ); however, an order that splits a single
cause of action, or that serves compulsory counterclaims from the primary suit,
will constitute an abuse of discretion.
See Nueces County Hospital District v.
These pleadings clearly
illustrate that the alleged personal injury and property claims arose from a
single wrongful act and should not be severed.
In light of these findings,
we hold that the order entered by the respondent on May 13, 1985, severing personal injury claims from
property claims, was improper and therefore an abuse of discretion.
Ryland Group, Inc. v. White, 723 SW2d 160, 161-2 (
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,
Wyatt v. Shaw Plumbing Company, 760 SW2d 245, 246-7
(
Although the trial court has
broad discretion in ordering severances, the severance of a compulsory
counterclaim which arises out of the same contract or issue that is the subject
of the suit, constitutes an abuse of
discretion and is reversible error.
Ryland Group, Inc. v. White, 723 SW2d 160 (Tex. App. – Houston [1st
Dist.] 1986, no writ).
Mathis v. Bill de la Garza & Associates, P.C.,
778 SW2d 105, 106-7 (Tex. App. – Texarkana, 1989)
We will first address
whether the severance was proper under the
Trial court possess broad
discretion in severing and proceeding separately with “[a]ny claim against a
party.” Tex.R.Civ.P. 41. The decision to
grant a severance will not be disturbed unless the trial court has abused its
discretion. Guaranty Federal Savings
Bank v. Horseshoe Operating Company, 793 SW2d 652 (
The first two criteria are
readily satisfied since the controversy between Stephens and Cass involve a
number of causes of action, any one of which could have been independently
asserted. It is the third requirement
for a proper severance that is not so easily satisfied. The counterclaim asserted by Cass against
Stephens was a compulsory claim under Tex.R.Civ.P. 97 since it arose out of the
same transaction or occurrence that is the subject matter of Stephens’ claims
against Cass and did not require for adjudication the presence of a third
party. Mathis v. Bill de la Garza &
Associates, 778 SW2d 105, 106 (Tex.App. – Texarkana 1989, no writ). Although the severance of a compulsory counterclaim
ordinarily constitutes an abuse of discretion and is reversible error,
In the absence of a valid severance, there is no
final judgment before us. Discovery sanctions are not appealable until
the trial court renders a final judgment.
Transamerican Natural Gas
Corporation v. Powell, 811 SW2d 913 (
Cass v. Stephens, 823 SW2d 731, 733-4 (Tex. App. –
El Paso 1992)
In the first point of error,
Fuentes contends that the trial court erred in severing his compulsory
counterclaim from the trial on the merits.
The counterclaim alleged fraud in the inducement as well as a violation
of the
Significantly,
The
The facts necessary to
prevail in the counterclaim are identical to the facts necessary to prove the
breach of contract cause of action.
Based on the above information, we find that the
counterclaim is compulsory and the trial court improperly severed the claim
from the main cause of action.
Consequently, the trial court’s severance constituted an abuse of
discretion. Point of Error No. One is
sustained.
Based on the disposition of Point of Error No. One,
the judgment of the trial court is reversed, and the cause is remanded for the
purpose of litigating the compulsory counterclaim with the main cause of action.
Fuentes v. McFadden, 825 SW2d 772, 779-80 (Tex. App.
– El Paso 1992)
The Restatement of Judgments
also takes the transactional approach to claims preclusion. It provides that a final judgment on an
action extinguishes the right to bring suit on the transaction, or series of
connected transactions, out of which the action arose. Restatement of Judgments § 24(1). A “transaction” under the Restatement is not
equivalent to a sequence of events, however, the determination is to be made
pragmatically, “giving weight to such considerations as whether the facts are
related in time, space, origin, or motivation, whether they form a convenient
trial unit, and whether their treatment as a trial unit conforms to the
parties’ expectations or business understanding or usage.”
We conclude that the
transactional approach to claims preclusion of the Restatement effectuates the
policy of res judicata with no more hardship than encountered under rule 97(a)
of the rules of civil procedure. Modern rules of procedure obviate the need to
give parties two bites at the apple, as was done in
We reaffirm the “transactional” approach to res
judicata. A subsequent suit will be barred if it arises
out of the same subject matter of a previous suit and which through the
exercise of diligence, could have been litigated in a prior suit. For these reasons, the judgment of the court
of appeals is reversed and that of the trial court is affirmed.
Barr v. Resolution Trust Corp.,
Rule 41 of the
An order that severs a compulsory counterclaim from
the main suit, however, is an abuse of discretion. Ryland Group, Inc. v. White,
723 SW2d 160, 161 (Tex.App. – Houston [1st Dist.] 1986, orig.
proceeding). To be compulsory, a
counterclaim must: (1) be within the jurisdiction of the court; (2) not be the
subject of a pending action at the time of filing the answer; (3) be mature and
owned by the pleader at the time of filing the answer; (4) arise out of the
transaction or occurrence that is the subject matter of the primary claim; (5)
be against the opposing party in the same capacity in which the party brought
the suit; and (6) not require the presence of third parties over whom the court
cannot acquire jurisdiction for the claim’s adjudication. Wyatt v. Shaw Plumbing Co., 760 SW2d 245, 247
(
Goins v. League Bank and Trust, 857 SW2d 628, 630 (
It is evident from the final
judgment before this court that the trial court did not purport to dispose of
all claims, but instead relied on the severance to make the judgment final and
appealable. Therefore, if the severance was improper under the
Stroud v. VBFSB Holding Corporation, 901 SW2d 657,
658-9 (Tex. App. – San Antonio 1995)
Rule 41 of the
A “cause of action” consists
of a plaintiff’s primary right to relief and the defendant’s act or omission
that violates that right.
Duncan v. Calhoun County Navigation District, 28
SW3d 707, 709-10 (
Guarantors’ counterclaim was compulsory since it
arose out of the same transaction that was the subject matter of Bank One’s
suit and did not require for adjudication the presence of a third party. As a result, the trial court’s severance
constituted an abuse of discretion.
Mathis, 778 SW2d at106. Thus, we
must vacate the order of severance.
Rucker v. Bank One
ARGUMENT
WorldPeace
filed his SIXTH AMENDED ANSWER AND COUNTER CLAIMS (Ex “J”) on
WorldPeace
would show the court that the grievance process is unconstitutional due to its
oppressive, arbitrary and capriciousness as exemplified by: 1) Attorney
respondents in the grievance process are subject to being sanctioned for
revealing any confidences in the process but if the complainant non-attorney
reveals those confidences there is no sanctions applicable to the complainant,
2) There is a conflict in laws such that confidences that are prohibited from
being revealed can be revealed in a pleading in a lawsuit without
repercussions: 3) The senior investigator can designate intolerant grievance
panels to hear grievances against attorneys the investigator wants sanctioned;
4) the offer of a private or public reprimand by the grievance committee can be
forced upon an attorney because the filing of a civil suit against the attorney
acts as a public reprimand thus making a settlement offer of a private or
public reprimand an empty offer or a coercive demand; 5) the commission can
enforce double sanctions through Rule 8.04 (a)(1) which boosts any violation of
the TDRPC; 6) the attorney is intimidated and coerced into presenting to the
grievance panel evidence that will violate his rights against self
incrimination - all demands for information from the State Bar states that the
information may be forwarded to law enforcement and all grievance hearings open
with an admonition to the attorney about his rights against self incrimination;
7) the grievance process can be abused to influence legitimate attorney client
fee disputes ; 8) the Commission can seek attorney fees sanctions even when it
incurs none; 9) attorney fees can be calculated on the rates charged by private
attorneys when the State Bar’s in house attorneys make about 15% of the private
rate - the best evidence of reasonable attorney fees is what the State Bar
attorneys are paid; 10) attorney fees
can be charged for attorneys who are employed by the State Bar and no proof is
required by the State Bar that “but for” the acts of the Respondent, the State
Bar would not have employed said attorneys;
11) there is no range of punishment that limits the sanctions available
to the court in a disciplinary action so not returning one phone call can
result in disbarment; there is no standard for which the various judges who
hear these matters can use as a guideline;
(12) the attorneys for the State Bar are immune from prosecution for
their tortuous, corrupt and even criminal acts committed during the course of
attempting to sanction an attorney; (13)
the most abusive attorneys can avoid prosecution by becoming a member of the
grievance panels; (14) the grievance process is so skewed against the
respondent attorney that his or her best strategy is to not cooperate with the
State Bar and let the grievance go into a civil lawsuit where the respondent
has a level playing field under the civil law and the TRCP; 15) the grievance process allows for
arbitrary application of the TDRPC to attorneys; 16) a pro se Respondent attorney is not
allowed attorney fees; 17) the State Bar
is allowed to combine grievances into one lawsuit by alleging common violations
of the TDRPC even though those violations do not apply to every grievance. This undeniably sends a prejudicial message
to the jury.
Regarding
the question of WorldPeace’s Fifth Amendment rights, the law is clear in Spevack that WorldPeace cannot be
sanctioned for his refusal to respond to requests for information in the
grievance process.
In
addition, the trial court severed out the compulsory counter claims WorldPeace
filed against Lang and Apodaca under quantum
meruit.
The Lang
and Apodaca causes of action and complaints against WorldPeace are reposed in
the Commission per Rule 4.06 TRDP and Wade. WorldPeace’s counterclaims were therefore
compulsory against the complainants and against the Commission for its separate
acts of “bad faith”.
WorldPeace
would show the court that his counterclaims against the Commission for
violating his constitutional rights against self incrimination, due process
and equal protection as well as his cause of action for intentional
infliction of emotional distress meets the elemental requirements of compulsory
counterclaims per Rule 97(a) TRCP as interpreted by Wyatt as do the
counterclaims for quantum meruit
against Lang and Apodaca especially since the trial court awarded
restitution in both those cases.
Further,
per Rule 3.08 TRDP, there is nothing in the TRDP that exempts the Commission
from being bound by Rule 97(a) TRCP with regards to the Commission v. WorldPeace lawsuit.
The
trial court abused its discretion by severing out WorldPeace compulsory
counterclaims which included multiple examples of the violations of
WorldPeace’s due process rights, right against self-incrimination and equal
protection rights under the state and federal constitutions as recited in
WorldPeace’s Sixth Amended Answer and Counter Claim (Ex “J”).
In addition,
WorldPeace’s counterclaim for intentional infliction of emotional distress and quantum meruit claims against
Lang and Apodaca were also illegally severed per Goins and Rucher
above.
The trial court abused its
discretion be severing out these compulsory counterclaims and as the above
cases show, the Appeals' Courts reverse and remand cases that have been illegally
severed.
III. RES JUDICATA
RE: COLLINS COMPLAINT
ISSUE THREE
The trial court abused its discretion by allowing the Collins
grievance to be heard in the Commission
v. WorldPeace lawsuit despite it having been tried in the WorldPeace v. Collins lawsuit in the 281st
District Court?
AUTHORITIES
Rule
4.06
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.
Ingersoll-Rand Co. v. Valero Energy Corp., 999 SW2d
203, 206-207 (
Much of the difficulty associated with the doctrine of
res judicata is due to the confusion of several related theories. Broadly speaking res judicata is the generic
term for a group of related concepts concerning the conclusive effects given
final judgments. Puga v. Donna Fruit
Co., 634 SW2d 677, 679 (
The question that has given courts the most difficulty is
determining what claims should have been litigated in the prior suit. Early on, this Court held that res judicata
“is not only final as to the matter actually determined, but as to every other
matter which the parties might litigate in the cause, and which they might have
decided. We have never repudiated this
definition of claim preclusion, and it appears in some form in most definitions
of res judicata.
Any cause of action which arises out of those same facts
should, if practicable, be litigated in the same lawsuit.
We conclude that the transactional approach to claims
preclusion of the Restatement effectuates the policy of res judicata with no
more hardship than encountered under rule 97(a) of the rules of civil
procedure.
We reaffirm the
“transactional” approach to res judicata.
A subsequent suit will be barred if it arises out of the same subject
matter of a previous suit and which through the exercise of diligence, could
have been litigated in a prior suit.
Barr v. Resolution Trust Corp.,
A final judgment settles not only issues actually
litigated, but also any issues that could have been litigated. That the judgment may have
been wrong or premised on a legal principle subsequently overruled does not
affect application of res judicata.
Segrest v. Segrest, 649 SW2d 610, 612 (
The rule of collateral
estoppel, or as sometimes phrased, estoppel by judgment, bars relitigation in a
subsequent action upon a different cause of action upon a different cause of
action of fact issues actually litigated an essential to a prior judgment.
The rule is generally stated as binding a party and
those in privity with him.
…states that a person who is not a party but who is
in privity with the parties in an action terminating in a valid judgment is
bound by the rules of res judicata.
‘Privity is a word which
expresses the idea that as to certain matters and in certain circumstances
persons who are not parties to an action but who are connected with it in their
interests are affected by the judgment with reference to interests involved in
the action, as if they were parties…for the purpose of the case at hand he is
bound by all or some of the rules of res judicata by way of merger, bar or
collateral estoppel.’ It has been
emphasized that privity is not established by the mere fact that persons may
happen to be interested in the same question or in proving the same state of
facts.
Also, that privity connotes those who are in law so
connected with a party to the judgment as to have such an identity of interest
that the party to the judgment represented the same legal right.
No generally prevailing
definition of privity which can be automatically applied to all cases involving
the doctrine of res judicata and the determination of who are privies requires
careful examination into the circumstances of each case as it arises.
Privity was defined as
meaning the mutual or successive relationship to the same rights of property;
and it was said that persons are privy to a judgment whose succession to the
rights of property therein adjudicated are derived through or under one or the
other of the parties to the action, and which rights accrued subsequent to the
commencement of the action. It has also
been said that the Restatement definition corresponds to results generally
reached by the courts, the elements of which are summarized in these words:
‘(t)he word ‘privy’ includes those who control an action although not parties
to is ***,those whose interests are represented
by a party to the action ***, successors in interests ***.’ Developments in the Law-Res Judicata, 65
Harv.L.Rev. 818, 856 (1952).
Benson v. Wanda Petroleum Company, 468 SW2d 361 (
Rule
97(a)
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.
ARGUMENT
WorldPeace
would show the court that the alleged violations of the TDRPC by WorldPeace in
the Collins matter had to do solely with $3,000 allegedly collected by
WorldPeace from Arbuckle for the benefit of Collins. See the Final Judgment (Ex
“D”) It was alleged that WorldPeace did
not keep these monies separate in a trust account for Collins.
However,
WorldPeace pled an affirmative defense of waiver and Collins abandoned her
claim to the Arbuckle monies because she never filed a counterclaim for those
monies in the WorldPeace v. Collins lawsuit.
Per Rule 97(a) TRCP, as interpreted
by Wyatt and Ingersoll-Rand, a claim for the Arbuckle monies was a compulsory
counterclaim. There were no motions
filed by Collins regarding those monies, no jury question and nothing in the
Final Orders. Collins had by law
undeniably abandoned her claims to those Arbuckle monies.
The WorldPeace v. Collins lawsuit was filed
in June 2000, and did not go to trial until September 2002.
The Final
Judgment was not entered until
Per Rule 4.06 TRDP, the rights of the
complainants are reposed in the Commission.
Therefore, if a Complainant has no rights in the law then neither does
the Commission.
Benson above rules that the CLD had
privity with Collins in that they were trying to enforce her interest in the
Arbuckle monies.
Further,
the court awarded restitution to Collins which is nothing more that a claim
that Collins was required to assert in the WorldPeace
v. Collins suit for the Arbuckle monies but did not and therefore waived
the claim.
When
the Commission for Lawyer Discipline v.
WorldPeace trial began, the WorldPeace
v. Collins lawsuit had already been tried to Final Judgment and there was
no claim by Collins for the Arbuckle monies.
Collins was barred by res judicata
from suing for those monies per Ingersoll-Rand. No motion was ever filed by Collins’ attorney
with regards to the Arbuckle monies in the WorldPeace
v. Collins lawsuit.
In
the WorldPeace v Collins lawsuit, all
of the elements of Ingersoll-Rand
were met; 1) the cause of action for the
Arbuckle monies was in the courts jurisdiction; 2) at the time of Collins answering the lawsuit
there was no other lawsuit regarding the Arbuckle monies; 3) the Collins claim
for the Arbuckle monies was mature and owned by Collins at the time she filed
her answer; 4) the Arbuckle money issue
arose out of the same Final Judgment upon on which WorldPeace was suing for his
fees from Collins; 5) Collins’ cause of action regarding the Arbuckle monies
was against WorldPeace and 6) it did not require the presence of any third
parties over whom the court could not acquire jurisdiction.
Therefore,
the trial court abused its discretion by allowing the Commission to pursue a
barred by res judicata cause of
action in the Collins complaint.
Further,
after Final Judgment was rendered in the Commission
v. WorldPeace lawsuit, WorldPeace filed an AMENDED MOTION FOR NEW TRIAL
in the WorldPeace v. Collins lawsuit. (Ex “M”)
The
problems that Rule 39 TRCP seeks to avoid are now evident in the two Collins
related lawsuits. If the 281st
District Court does not grant a new trial, then there is the possibility that
the appeals court will vacate the trial court’s Final Judgment and remand the
matter long after the Commission v.
WorldPeace lawsuit has been appealed to conclusion.
The
trial courts have created a nightmare with regards to requiring WorldPeace to
try the same sets of facts in two different lawsuits and in two different
courts and they have also sent a ripple effect into the appeals court.
Further, restitution of the Arbuckle
monies has been ordered in the Commission
v. WorldPeace lawsuit, (Ex “L”); an award that Collins has no rights to
under the law due to the fact that no compulsory counterclaim was filed in the WorldPeace v. Collins lawsuit per Rule
97(a) TRCP Ingersoll-Rand Co. The Commission for Lawyer Discipline had no
right to sue for the monies.
The
Collins matter is barred by res judicata and
the trial court abused its discretion by allowing the Collins matter to be
retried in the Commisison v. WorldPeace
lawsuit.
There
is no evidence that Collins claimed the Arbuckle monies. Collins waived or abandoned her claim by not
filing a counter claim in the WorldPeace v. Collins lawsuit. The evidence is factually insufficient to
support the jury finding and the jury finding is against the overwhelming
weight of the evidence.
IV. EXPERT
WITNESS RE: RULE 103 TDRPC
The trial court abused 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?
With regards to Rule 1.03, WorldPeace would show the
court that there is no evidence and factually insufficient evidence to support
a jury finding against WorldPeace. In
addition, the jury finding against WorldPeace is against the overwhelming
weight of the evidence.
Rule
1.03 Texas Disciplinary Rules of Professional Conduct
(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.
In Texas, a lawyer is held
to the standard of care that would be exercised by a reasonably prudent attorney.
Therefore, expert testimony of an attorney is necessary to establish this standard of skill and care ordinarily exercised by
an attorney. The plaintiff is then
required to controvert the expert testimony with other expert testimony.
Hall v.
Rutherford, 911 SW2d 422 (Tex. App. San Antonio, 1995)
ARGUMENT
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 the court 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 TDRPC Rule 1.03 (a) &
(b) violations regarding the various complainants should be vacated.
WorldPeace would show the court that the trial court also abused its discretion by not allowing WorldPeace to testify as an expert witness.
There was no competent evidence regarding the essential element of reasonable as in a reasonably prudent and competent attorney. Also, the evidence was factually insufficient to support the jury finding on Rule 1.03. And the finding was against the overwhelming weight of the evidence and does not support the jury's verdict.
V. FIFTH
AMENDMENT
ISSUE FIVE
The trial court abused 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 during the grievance process prior to suit being filed.
AUTHORITIES
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 US 511 (1967)
Texas Department of Public Safety Officers Association v.
Denton,
897 SW2d 757, 760 (Tex.
1995)
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 US 511(1967)
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 Texas, 974 SW2d 55, 59 (Tex. App. -San Antonio, 1998)
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)
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 for WorldPeace's refusal to submit to the grievance committees
subpoena under Rule 15.01 TRDP.
WorldPeace
would also show the court that on the day of the grievance hearing on
Fraser-Nash and Apodaca he was in Corsicana
due to a political event he attended when he was running for governor. WorldPeace had car trouble and the grievance
committee proceeded without WorldPeace.
These are the hearings when the subpoenaed information was due. WorldPeace would also show the court that WorldPeace
had given the Apodaca file to Apodaca per the trial testimony and there was
nothing for WorldPeace to give to the Committee.
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.
Also there is no despositive Texas law on how the Fifth Amendment applies to the grievance process. There is no law that says it does not apply. Spevach says it does.
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.
Therefore,
not only did the court abuse its discretion by sanctioning WorldPeace when he
exercised his Fifth Amendment right during the grievance process, 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 Texas or Federal Constitutions.
Also,
comment 2 to Rule 8.01 TDRPC 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.
Further,
in regards to Apodaca, Apodaca testified at trial that he picked up his file
from WorldPeace. Therefore, the evidence
is factually insufficient to support the jury verdict on Rule 8.04(a)(8) and
Rule 1.06(Q)(4). Also, the jury verdict
on these rules is against the overwhelming weight of the evidence and the
jury's finding on these rules should therefore be vacated.
VI. RESTITUTION
WorldPeace
would show the court that restitution is only available as a sanction under
Rule 3.12 TRDP where it states:
"In all cases in which the
proof establishes that the Respondents conduct involved misapplication of
funds."
WorldPeace
would show the court that only the Collins grievance alleged misapplication of
funds and the Collins claim was barred by res
judicata. In none of the other
grievances did the Commission allege Rule 1.14 violations. Therefore, there is no evidence to support an
award for restitution. Also, the
evidence is factually insufficient to support the courts award of restitution
and the award of sanctions is against the overwhelming weight of the evidence.
Therefore
it was an abuse of discretion for the court to award restitution in the Nash,
Lang, and Williams complaints and the restitution should be vacated.
VII. OTHER
CHANGES TO JUDGMENT FOR DISBARMENT
The
following are changes that need to be made to the Judgment for Disbarment if it
is not vacated as being void or as an abuse of discretion.
The
trial court cannot set any dates for enforcement to begin prior to the Final
Judgment becoming final and appealable.
This means that any orders will become effective thirty days after
signing if no Motion for New Trial is filed and seventy-five days if a Motion
for New Trial is filed. The Final
Judgment should so state:
JUDGMENT OF
DISBARMENT OF
******************************************************************************
The
following are changes that need to be made to the Judgment for Disbarment if it
is not vacated as being void or as an abuse of discretion.
On the 14th day of April,
2003, the above-styled and numbered case was called to trial by the Court. Petitioner, the Commission for Lawyer
Discipline (hereinafter called the “CFLD”), appeared through counsel, J.G.
Molleston, and announced ready.
Respondent, John WorldPeace (hereinafter called “Respondent”)
appeared. Complainants, Johnell Collins,
Helene Fraser-Nash, Darlene A. Williams, John Lynch, and John A. Lang appeared.
Prior to trial, the Court granted the
Commission for Lawyer Discipline’s Motion to Sever the Third-Party Claims
against John Lang and Philip Apodaca.
The order dated the 27th day of August, 2003, is incorporated
herein by reference.
The Commission did not file a Motion to Sever on Lang and Apodoca.
Lang’s attorney filed a Motion to Dismiss which the court denied in
pretrial and then sua sponte said it
would sever Land and Apodoca.
The cause proceeded to trial before a
jury of twelve (12) duly qualified and selected jurors. After due deliberation, on
Pursuant to Rule 174 of the Texas
Rules of Civil Procedure, the Court considered separately the counterclaims made
by John WorldPeace and contained in his Seventh Original Answer and
Counterclaims and Third Party Claims.
Summary Judgment was granted regarding those counterclaims by order
dated the 27th day of August 2003, an incorporated in this Judgment
by reference.
The court said in pre and post trial it was severing the constitutional
counterclaims and trying the Rule violations by themselves. The court made no comment about Worldpeace’s
other issues and causes of action.
The court used the word sever which is included in Rule 41 TRCP. The world sever is not in Rule 174 (b)
TRCP.
This part of the court’s judgment is
contrary to the court’s ruling in pre and post trial.
After hearing and considering the
evidence, arguments of counsel and the applicable law, the Court finds and
concludes that Respondent has, by his conduct, as alleged in Petitioner’s
Second Amended Disciplinary Petition on file in this case and as found by the
jury by a preponderance of the evidence presented at final trial on the merits
of this case, committed professional misconduct as defined in Part 1, 1.06(Q),
of the Texas Rules of Disciplinary Procedure.
After the verdict was read.
Respondent moved for a Judgment NOV which the court determined would be
heard at a later date and the court dismissed the jury.
The Court finds and concludes that
Respondent has violated Rules 1.03(a), 1.14(a), 1.14(b), 1.14(c),
and 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct
regarding the Johnell Collins complaint.
The Court finds and concludes that
Respondent has violated 1.01(b)(1), 1.03(a), 1.15(d), and 8.04(a)(8)
of the Texas Disciplinary Rules of Professional Conduct and 1.06(Q)(4)
of the Texas Rules of Disciplinary Procedure regarding the Helene Fraser-Nash
complaint.
The Court finds and concludes that
Respondent has violated 1.01(b)(1) and 8.04(a)(8) of the Texas
Disciplinary Rules of Professional Conduct and 1.06(Q)(4) of the Texas
Rules of Disciplinary Procedure regarding the Penny Jo Reilly and Philip
Apodaca complaint.
The Court finds and concludes that
Respondent has violated 1.01(b)(1), 1.03(a), 1.03(b), 1.04(d) and
8.04(a)(8) of the Texas Disciplinary Rules of Procedure regarding the Darlene
A. Williams complaint.
The Court finds and concludes that
Respondent has violated 1.01(b)(1), 1.02(a)(1), 1.03(a), 1.15(d) of the
Texas Disciplinary Rules of Procedure regarding the John Lang complaint.
The Court does not find professional
misconduct regarding the John Lynch complaint.
The Court finds it has jurisdiction
over the subject matter and parties in this cause of action and venue is proper
in Harris County, Texas.
The Court, therefore, finds that the
proper discipline of the Respondent for each occurrence of professional
misconduct is disbarment.
This is contrary to the court’s ruling in which the court stated it found
disbarment due to 23 cumulated violations.
It is accordingly ORDERED, ADJUDGED,
and DECREED that the Respondent is disbarred as an attorney at law in the state
of
The court cannot enforce a disbarment prior to when it loses it plenary
power.
It is further ORDERED, ADJUDGED, and
DECREED that effective the 15th day of October, 2003, Respondent is
permanently enjoined from practicing law in Texas, holding himself out as an
attorney, performing any legal services for others, accepting any fee directly
or indirectly for legal services, appearing as counsel or in any representative
capacity in any proceeding in any Texas court or before any Texas
administrative body, or holding himself out to others or using his name in any
matter in conjunction with the words “attorney,” “counselor at law,” or
“lawyer.”
The court cannot enforce a disbarment prior to when it loses it plenary
power.
It is further ORDERED that on or
before the expiration of thirty (30) days from the 27th day of
August, 2003, Respondent shall notify each of his current clients in writing of
this disbarment. In addition, Respondent
is ORDERED to return all files, papers, monies (including unearned fees), and
other property belonging to clients in Respondent’s possession to the
respective clients or another attorney at the client’s or former client’s
request. Respondent is ORDERED to file
with this Court on or before the 15th day of October, 2003, an
affidavit stating that all current clients have been notified of Respondent’s
disbarment and that all files, papers, monies (including unearned fees), and
other property belonging to clients have been returned as ordered in this
Judgment, together with a true and correct copy of any communication directed
to the clients and a list setting forth the name and addresses of the intended
recipients of the communications. In the
event Respondent is unable to comply in any respect with this requirement, he
shall state with particularity under oath what client or clients he was unable
to contact and what efforts he made to comply with this order.
The court cannot enforce a disbarment prior to when it loses it plenary
power.
It is further ORDERED that on or
before the expiration of thirty (30) days from the 27th day of
August, 2003, Respondent shall notify in writing each and every court in which
Respondent has any matter pending of the terms of this Judgment, the style and
cause number of the pending matters in which Respondent appears as an attorney,
together with the name, address, and telephone number of the client Respondent
is representing in that court.
The court cannot enforce a disbarment prior to when it loses it plenary
power.
It is further ORDERED that Respondent
surrender his
The court cannot enforce a disbarment prior to when it loses it plenary
power.
It is further ORDERED, ADJUDGED, and
DECREED that Respondent pay to the State Bar of Texas (hereinafter called the
“SBOT”) the amount of Thirty-One Thousand Two Hundred Sixty Dollars and No
Cents ($31,260.00) (These attorney fees
need to be separated by individual complaints) as attorneys’ fees to the
State Bar of Texas on or before the 1st day of December, 2003. Payment shall be made in the form of a
certified cashier’s check or money order and shall be made payable to the State
Bar of Texas and remitted to Chief Disciplinary Counsel, State Bar of Texas,
Attention J.G. Molleston, Assistant Disciplinary Counsel, 1111 Fannin,
The court cannot enforce a disbarment prior to when it loses it plenary
power.
It is further ORDERED, ADJUDGED, and
DECREED that Respondent pay to Johnell Collins, by and through the State Bar of
Texas, the amount of One Thousand Five Hundred Sixty Dollars and No Cents
($1,560.00) as restitution on or before the 1st day of December,
2003. Such payment shall be made in the
form of a certified cashier’s check or money order and shall be made payable to
Johnell Collins and remitted to the State Bar of Texas, Attention J.G.
Molleson, Assistant Disciplinary Counsel, 1111 Fannin,
The court cannot enforce a disbarment prior to when it loses it plenary
power.
Further, Collins restitution is barred by res judicata and this section must be deleted.
It is further ORDERED, ADJUDGED, and
DECREED that Respondent pay to John Lang, by and through the State Bar of
Texas, the amount of Nine Hundred Thirty Dollars and No Cents ($930.00) as
restitution on or before the 1st day of December, 2003. Such payment shall be made in the form of a
certified cashier’s check or money order and shall be made payable to John Lang
and remitted to the State Bar of Texas, Attention J.G. Molleson, Assistant
Disciplinary Counsel, 1111 Fannin,
The court has no authority to award non trust monies as restitution. The section must be struck.
It is further ORDERED, ADJUDGED, and
DECREED that Respondent pay to Helene Fraser-Nash, by and through the State Bar
of Texas, the amount of Five Hundred Dollars and No Cents ($500.00) as
restitution on or before the 1st day of December, 2003. Such payment shall be made in the form of a
certified cashier’s check or money order and shall be made payable to Helene
Fraser-Nash and remitted to the State Bar of Texas, Attention J.G. Molleson,
Assistant Disciplinary Counsel, 1111 Fannin,
The court has no authority to award non trust monies as restitution. The section must be struck.
It is further ORDERED, ADJUDGED, and
DECREED that Respondent pay to Darlene Williams, by and through the State Bar
of Texas, the amount of Three Hundred Seventy-five Dollars and No Cents
($375.00) as restitution on or before the 1st day of December,
2003. Such payment shall be made in the
form of a certified cashier’s check or money order and shall be made payable to
Johnell Collins and remitted to the State Bar of Texas, Attention J.G.
Molleson, Assistant Disciplinary Counsel, 1111 Fannin,
The court has no authority to award non trust monies as restitution. The section must be struck.
All attorneys’ fees, costs, and
restitution amounts ordered herein are due to the misconduct of the attorney
and are assessed as a part of the sanction in accordance with Rule 1.06(t) of
the
It is further ORDERED that the Clerk
of this Court shall forward one (1) certified copy of the Second Disciplinary
Petition on file in this case, along with a copy of this Judgment, to the Clerk
of the Supreme Court of Texas, Supreme Court Building, Austin, Texas 78711, to
the General Counsel of the State Bar of Texas, P.O. Box 12487, Austin, Texas,
78711, and to Respondent, John WorldPeace, Pro Se, 2620 Fountainview, Houston,
Texas 77057.
This cannot be done until the court loses its plenary power.
It is further ORDERED that the Clerk
of this Court shall forward two (2) certified copies of the Second Amended
Disciplinary Petition on file in this case, along with a copy of this Judgment,
to the State Bar of Texas, Attention J.G. Molleston, Assistant Disciplinary
Counsel, 1111 Fannin,
All relief not expressly granted in
this Judgment is DENIED.
This mother hubbard clause must be struck because so many of WorldPeace’s
issues and causes have not been adjudicated.
The court cannot arbitrarily dismiss WorldPeace lawsuit by use of a
mother hubbard cause.
Signed in Harris County, Texas, this
27th day of August, 2003.
____________________________________
THE
HONORABLE JAMES R FRY
SPECIALLY
APPOINTED JUDGE
******************************************************************************
VIII. NEGLECTING A LEGAL MATTER RULE 1.01(b)(1)
TDRPC
Rule 1.01(b)(1) “In representing a client, a lawyer shall not neglect a
legal matter entrusted to the lawyer: As
used in this Rule, “neglect” signifies inattentiveness involving a conscious
disregard for the responsibilities owed to a client."
Rule 1.02(a)(1) "A
lawyer shall abide by a client's decision concerning the objectives and general
methods of representation.
“SUIT-WITHIN-A-SUIT”
§ 3.26
Cause in fact: Suit-within-a-suit
requirements. To
establish cause-in-fact in a legal malpractice case generally requires proving
a "suit within a suit."
Where a client sues his attorney on the ground that the
latter caused him to lose his
cause of action, the burden of proof is on the client to prove that his suit would have been
successful but for the negligence of his attorney, and to show what amount
would have been collectible had he recovered the judgment.
Jackson v.
Urban, Coolidge, Pennigton & Scott, 516 S.W. 2d 948,
949 (Tex. Civ. App. -- Houston [1st Dist.] 1974, writ ref'd n.r.e.);
see also - Schlager v. Clements,
939 S.W. 2d 183 (Tex. App. -- Houston [14th Dist.] 1996, writ
denied)("To prevail in a legal malpractice action, a plaintiff must prove
'a suit within a suit' by demonstrating that he would have prevailed in the
underlying action but for his attorney's nevgligence."); Hall v. Stephenson,
919 S.W. 2d 454, 466 (Tex. App. -- Fort Worth 1996, writ denied)("In
negligence cases, a party must prove both cause in fact and foreseeability to
show proximate cause...Cause in fact means that the defendant's act or omission
was a substantial factor in bringing about the injury that would not otherwise
have occurred."); Mackie v. McKenzie,
900 S.W. 2d 445, 449 (Tex. App. -- Texarkana 1995, writ denied)(citing and following
Jackson, and stating that "[t]o succeed in a legal malpractice action, the
plaintiff must prove 'a suit within a suit' by showing that he would have
prevailed in the underlying action but for his attorney's negligence."); Zuniga v. Groce, Locke & Hebdon,
878 S.W. 2d 313, 318 (Tex. App. -- San Antonio 1994, writ ref'd)(disapproving
the assignment of legal malpractice claims, and noting that the litigants would
have to reverse roles: "The two litigants would have to take positions
diametrically opposed to their positions during the underlying litigation
because the legal malpractice case requires a 'suit within a suit.' To prove proximate cause, the client must
show that his lawsuit or defense would have been successful 'but for' the
attorney's negligence."); cf. In re Legal Econometrics, Inc., 191 B.R.
331, 348 (Bankr. N.D.
"The burden of proof
is on the client to prove that his suit would have been successful but for the
negligence of his attorney, and to show what amount would have been collectible
had he recovered judgment. 'The attorney
stands in exactly the same position as that which the defendant in the lawsuit
would have stood in the trial against him, and is entitled to present to the jury
a brief fact that would have tended to lessen the damages against that
defendant.'" Gibson v. Johnson,
414 S.W. 2d 235, 238-39 (Tex.Civ.App. -- Tyler 1967, writ ref'd
n.r.e.)(citation omitted), cert. denied, 390
In Mackie v. McKenzie,
900 S.W. 2d 445 (Tex. App. -- Texarkana 1995, writ denied), a malpractice case
arising from an unsuccessful will contest suit, the court of appeals affirmed a
summary judgment in favor of the defendant lawyer on the ground that the
evidence established as a matter of law that "regardless of the attorneys'
conduct, [the plaintiff] would not have succeeded in having the [will] set
aside because of undue influence."
WorldPeace
would show the court that if the rights of a client are reposed in the State
Bar per Rule 4.06(a) TRDP then the rules that are applied to a civil lawsuit
regarding a client suing an attorney would also apply to the State Bar. The State Bar has a derivative lawsuit in
that without a disgruntled complainant ex-client, the State Bar has no suit
against an attorney regarding the vast majority of the TDRPC. In this lawsuit, all the alleged Rule
violations are derivative of six complaints filed with the State Bar.
In
particular this would mean that the State Bar would have to follow the same
“suit within a suit” logic that is required in all legal malpractice lawsuits
in regards to Rules 1.01 and 1.15(d) TDRPC.
If the client does not have a case, then the State Bar does not have a
case.
The State
Bar cannot sue an attorney for violations of Rule 1.01 or Rule 1.15 when in
truth the client had no viable lawsuit in the beginning. The State Bar must prove that there was a
viable lawsuit and that “but for” the attorney’s neglect or failure to protect
the client's interest, the client would have won the client's lawsuit. If a "suit within a suit" is
applied to the Lang, Apodaca, Nash and Williams complaints against WorldPeace,
WorldPeace would show the court that the Rule violations relating to these complaints
would have been dismissed.
Further
WorldPeace would show that neither Nash, Lang nor Williams pursed their causes
of action either because they abandoned them or because no attorney would take
their frivolous and groundless lawsuits.
There is no
evidence that WorldPeace violated Rule 1.01 by neglecting a legal matter in
relation to any of the complainants.
There is no evidence that Lang or Nash were prejudiced by a failure of
WorldPeace's to make sure they received their files.
There is
factually insufficient evidence and it is against the overwhelming weight of
the evidence that WorldPeace neglected a legal matter in relation to any of the
complainants or prejudiced any clients in pursuit of their causes of action.
VIII. A - HELENE FRASER NASH
With regards to Rule 1.01(b)(1), WorldPeace would show
the court that there is no evidence and factually insufficient evidence to
support a jury finding against WorldPeace.
In addition, the jury finding against WorldPeace is against the
overwhelming weight of the evidence.
WorldPeace
would show the court that the testimony of Helene Fraser Nash per the grievance
hearing video entered at trial was that she paid WorldPeace $500 to stop the
foreclosure on her home and that her home was in fact not foreclosed upon. The $500 paid to WorldPeace was the only money
paid to WorldPeace by the Fraser-Nash and it was specifically to stop the
foreclosure.
Helene
Fraser-Nash also testified in the grievance hearing video that she received no
certified mail from the lien holder regarding the mandatory default and acceleration
notices nor the foreclosure notices required by the Property Code (Ex. “V”)
regarding foreclosures on residential property.
Clive
Fraser-Nash also testified in his video deposition entered at trial that no
certified mail was received by him regarding default, acceleration or
foreclosure.
Clive
Fraser-Nash testified that he well remembered that at his and his wife’s first
meeting with WorldPeace, that WorldPeace had told himself and his wife that the
lien holder had not sent them the proper notice for foreclosure and therefore a
foreclosure on
There was
no rebuttal or controverting evidence submitted by the Commission that the
Property Code did not apply to the Fraser-Nash lien and no testimony that
certified letters were not required prior to foreclosure accelerating the
Fraser-Nash note and foreclosing on the property per the Texas Property Code.
Clive
Fraser-Nash also stated that WorldPeace was hired to stop the foreclosure even
though he knew that no foreclosure was in the process at the time that he and
his wife visited WorldPeace in June, 2001.
Both the
Fraser-Nashes testified that they made a second visit to WorldPeace office in
mid-June wherein they discussed the foreclosure for an hour.
The
Fraser-Nash’s testified that on or about
The
testimony from the Fraser-Nashes was that they paid the $912 to the lien holder
out of an abundance of caution.
Stephanie
Cluver, WorldPeace’s daughter and legal assistant, testified that she had
talked to the lien holder on several occasions.
There was no rebuttal or controverting testimony by the Commission
that she did not talk to the lien holder.
The
affidavit from the lien holder stated only that there was no telephone calls to
or from John WorldPeace. However, there
was no testimony that no one in WorldPeace’s office had been called or had
called the lien holder. The testimony was only in regards to WorldPeace
personally.
WorldPeace
was hired to stop the foreclosure.
WorldPeace was hired by the Fraser-Nash's knowing that no foreclosure
was in process at the time of the initial meeting between WorldPeace and the
Fraser-Nashes. There was an
understanding that without the required certified letters that there could be
no foreclosure. WorldPeace had nothing
to do unless the Fraser-Nashes received a valid acceleration or foreclosure
notice from the lein holder.
Based on
the Property Code, if the initial default and acceleration notices had not been
sent by
When the
Fraser-Nashes had their second visit with WorldPeace on or about
The
question is what exactly what was WorldPeace required to do? There was communication between Helene
Fraser-Nash and Stephanie Cluver per both their trial testimony. There was a second visit to WorldPeace
office to discuss the foreclosure. There
were no certified mail acceleration or foreclosure related notices sent to the
Fraser-Nash’s and therefore nothing further for WorldPeace to do.
The two
visits to WorldPeace office used up $300 of the $500 retainer. There was testimony by Helene Fraser-Nash and
Stephanie Cluver that there were at least five or six calls between them and
these calls plus the calls that Cluver made to the lien holder were certainly
worth more than $200.
There is no
evidence that WorldPeace neglected the Fraser-Nash matter by inattentiveness
involving a conscious disregard in regards to the potential foreclosure.
Even in the
worst case scenario, if WorldPeace did nothing, the fact is that there was
nothing to do unless a foreclosure notice was received by the Fraser-Nash’s
which it was not. Clive Fraser-Nash’s
testimony was that WorldPeace was hired in the event a foreclosure was
attempted. In the worst case scenario,
what was there for WorldPeace to do to stop a foreclosure that was not in
process?
How exactly
was WorldPeace to earn his fee was paid to deal with a foreclosure that never
took place? The fact is that two
meetings with the Fraser-Nash’s would have been billed at $150 per hour. Molleston, the attorney for the Commission,
and WorldPeace testified that the reasonable and customary fees for an attorney
in
There was
no testimony that the Fraser-Nashes were not to be charged for the two
one-hour, consultations with WorldPeace.
There was no testimony that the $500 was to be held in trust and
distributed to WorldPeace only in the event that the Fraser-Nashes received an
acceleration or foreclosure notice and to be returned in full to the
Fraser-Nashes in the event that no foreclosure notice was received even after
the two one-hour office consultations with WorldPeace.
WorldPeace
did not violate Rule 1.01(b)(1) TDRPC and this violation should be vacated from
the Final Judgment. There was no
inattentiveness involving a conscious disregard for the responsibilities
WorldPeace owed to the Fraser-Nash's.
The fact
that WorldPeace had two meetings with the Fraser-Nash's and that Helene
Fraser-Nash had several conversations with Stephanie Cluver, WorldPeace's
assistant, proves that the jury's verdict was contrary to the overwhelming
weight of the evidence. The evidence
proved that WorldPeace was not inattentive to Fraser-Nash's foreclosure.
VIII. B - PENNY JO REILLY
With regards to Rule 1.01(b)(1), WorldPeace would show
the court that there is no evidence and/or factually insufficient evidence to
support a jury finding against WorldPeace.
In addition, the jury finding against WorldPeace is against the
overwhelming weight of the evidence.
There was
testimony by Apodaca that after Apodaca claimed that WorldPeace refused to go
to a third hearing on the same matter (which WorldPeace denied), that WorldPeace
offered to immediately file a Motion for New Trial which Apodaca rejected.
Apodaca
testified that two weeks after refusing to allow WorldPeace to file a Motion
for New Trial, he picked up his file from
WorldPeace and filed a pro se Motion for New Trial. Apodaca testified that the matter was settled
later in mediation where he agreed to allow his ex-wife to move to
The
evidence is factually insufficient to prove by a preponderance of the evidence
that WorldPeace neglected Apodaca’s legal matter.
There is no
evidence that Apodaca would have won his case and kept his child in
This is a
prime example of the need for a “suit within a suit” application to the
grievance process. There is nothing but
speculation about what would and would not have happened unless there is a
requirement to prove a “suit within a suit”.
The court rejected this and there was no question submitted to the jury
as to whether Apodaca would have won his lawsuit.
If Apodaca
would not have won his lawsuit, then he would have no cause of action for
neglect against WorldPeace because in this case WorldPeace had in fact spent
many hours working on Apodaca’s case. In
fact, Apodaca testified at trial that WorldPeace had spent at least twenty
hours on Apodaca's case.
Because the
court illegally severed WorldPeace’s counter claims there was no jury question
about how much money that Apodaca owed WorldPeace.
It was
uncontroverted that Apodaca owed WorldPeace $3,000 per Apodaca's testimony and
that Apodaca had not paid WorldPeace more than $1,500. There can be no neglect of Apodaca’s lawsuit
if Apodaca owed WorldPeace $3,000 for services rendered per his own testimony.
There is no
evidence that WorldPeace neglected Apodaca’s suit in the sense of WorldPeace having a conscious indifference
regarding the lawsuit. The weight
of the evidence is that after the
Apodaca is
not an attorney and his testimony about what would and would not have happened
had WorldPeace attended the
There is no
evidence, factually insufficient evidence and the jury verdict is against the
overwhelming evidence that WorldPeace neglected Apodaca’s lawsuit and therefore
the Rule 1.01 violations should be vacated.
On or about
November 2000, Phillip Apodaca (hereinafter referred to as “Apodaca”) hired
Respondent to modify the divorce decree of Apodaca on which WorldPeace was his
attorney. Specifically, WorldPeace was
to modify the decree to prevent Apodaca’s ex-wife from moving to
WorldPeace would show the court that after a
However, subsequent to that hearing,
where Apodaca, his live in friend, Penny Reilly, his mother, his father, his
ex-wife, his ex-wife sister and his ex-wife sister’s husband all testified,
Apodaca told Emily, his ex-wife, that she could take the child to Atlanta,
thereby negating all the work that WorldPeace had done to keep the child in
Houston, Texas.
Apodoca then changed his mind again
and told Emily that she could not take the child to
However, at the end of the hearing the judge rendered an order in which
he stated that Apodaca had refused to conform to his order of
The judge also made several
restrictions regarding Penny Jo Reilly, with whom he was disgusted. Due to the fact that Apodaca had in fact told
his ex-wife that she could take the child to
However, after the court's ruling
WorldPeace talked to the opposing attorney and as a result, Ms. Apadoca did
agree not to go to
On August 4, Mr. Apadoca’s parents
came in to see WorldPeace and hired WorldPeace and paid him $500.00 to file an
Intervenor for them so they could acquire grandparent’s rights regarding their
grandson.
The judge had stated off the record
to WorldPeace and Boler that he had wished that the grandparents had some kind
of pleading because in the judge’s opinion the child should not be with either
parent and definitely not with Penny Jo Reilly.
After thinking about it for many months, Apadoca’s parents determined
that they would go ahead and try to get some kind of grandparents rights to
help keep Eric in
WorldPeace would not be taking
$500.00 to file an Inventor on a final trial that was going to take place nine
days later on
However, the reason that WorldPeace did not attend the hearing was
because in conversing with Apodaca he found out that Apodaca was still on drugs
and he could not pass a drug test. The
court had in November 2000, at the first hearing, ordered both Emily and
Phillip Apodaca to take a drug test.
Apodaca got a drug evaluation on
WorldPeace told Apodaca that if he
was using drugs that he would never get his child again. Further, the only issue at the hearing was
the child going to
After the hearing, WorldPeace talked to Apodaca and said in that Penny Jo
Reilly did not give a damn about his son.
Because of that remark, Penny Jo Reilly filed a grievance on behalf of
Phillip Apodaca. In the judges’ order of
May 30, 2001, it was clear that he had contempt for Penny Jo Reilly and it
seemed obvious from that order that Penny Jo Reilly did not care about
Apodaca’s son. On
In the first hearing, he wanted him to stay in
Then Apodaca at the final trial decided that he was going to let the
child go to
The problem that Mr. Apodaca had was
his girl friend, Penny Reilly, who is 10 years his senior and two of whose
children do not live with her, does not want Apodaca’s son is her life. Apodaca’s mother insisted that the child be
in Phillip’s life. So the problem was
the conflict between Apodaca’s mother and his girlfriend.
The judge was extremely upset that
the girlfriend was living with Apodaca without being married to him. Generally, in a family law case, the court
stops any visitation when there are unmarried people in the house
overnight. On
In November, 2001, Apodaca’s parents hired another attorney to file
another Intervenor and 30 days later they dismissed their Intervenor.
In the end, Apodaca entered into a mediated settlement where he finally
allowed Emily Apodaca, his ex-wife to take their child to
After being the Attorney on
Apodaca’s divorce, attending two hearings regarding the ex-wife going to
Atlanta with Apodaca's son and after taking $500.00 form Apodaca’s parents to
file an Intervenor, why would WorldPeace tell Apodaca there was no hearing.
In the end Apodaca agreed to let
Emily go to
WorldPeace was not inattentive regarding a conscious disregard for
Apodaca's lawsuit and therefore the Rule 1.01 violations should be vacated.
VIII. C. -
WILLIAMS
With regards to Rule 1.01(b)(1), WorldPeace would show
the court that there is no evidence and/or factually insufficient evidence to
support a jury finding against WorldPeace.
In addition, the jury finding against WorldPeace is against the
overwhelming weight of the evidence.
FACTS
Darlene
Williams had an affair with a Mr. Tiller.
She then gave Mr. Tillman $10,000 to invest in some tax bonds. Tillman gave Williams a Promissory Note for
$10,000 at 25% interest payable in one year.
There
was no reference on the Note to the tax investment or any other investment and
apparently Mr. Tiller never made the investment.
At
the end of the year, Tiller gave Williams a new note for $15,000, $5,000 of
which was interest: making the effective interest rate 50%.
The
legal interest rate was 10% for promissory notes. The interest rate on the Williams Note was
25%, more than twice the legal rate.
The
Texas Finance Code provides that a person who lends money at more than twice
the legal rate loses both interest and principle.
Williams
did not file suit on the Note after terminating WorldPeace. The statute of limitations had run at the
time of trial in the underlying case.
None
of this was controverted by the Commission or any of its witnesses.
AUTHORITIES
Rule 3.01 TDRPC
A
lawyer shall not bring or defend a proceeding, or assert or controvert an issue
therein, unless the lawyer reasonably believes that there is a basis for doing
so that is not frivolous.
Rule 1.15 (b)(4) TDRPC
Except
as required by paragraph (a), a lawyer shall not withdraw from representing a
client unless a client insists upon pursuing an objective that the lawyer
considers repugnant or imprudent or with which the lawyer has fundamental
disagreement.
ARGUMENT
WorldPeace
would show the court that in the Darlene Williams complaint he was sanctioned
under Rule 1.01 (b)(1) TDRPC for refusing to file suit on a usurious promissory
note owned by Williams. The interest
rate on the note was more than twice the legal rate of interest and therefore
it was WorldPeace’s opinion that Williams had no cause of action for either the
interest or the principle.
Further,
there were no other viable causes of action because the Note was the best
evidence of the agreement between Williams and Tiller.
Under
Rule 3.01 TDRPC WorldPeace is prohibited from filing a frivolous and groundless
lawsuit. WorldPeace would show the court
that no client has the right to force an attorney to file a frivolous and
groundless lawsuit and the Commission does not have the right to require such a
filing of an attorney. In fact, the
Commission could disbar an attorney for such a filing.
Further,
WorldPeace has the right under Rule 1.15 (b)(4) TDRPC not to file such a
lawsuit to which he has a fundamental objection.
Further,
the Commission did not prove that the lawsuit that WorldPeace refused to file
was a viable lawsuit. WorldPeace would
show the court that if the Commission cannot prove that there was in fact a
viable lawsuit to be filed on behalf of Williams, WorldPeace should not be sanctioned
for refusing to file such a lawsuit. If
Williams had no right to file suit neither did the Commission has no right to
file a collateral lawsuit against WorldPeace for failing to file a groundless
lawsuit.
Even
if this court decides that the Commission does not have to prove a suit within
a suit, there was no rebuttal testimony offered by the Commission that Williams
could have succeeded in filing such a suit.
The
trial court abused its discretion when as a matter of law it did not rule that
WorldPeace did not have an obligation to file suit for Williams under Rules
3.01 and 1.15(b)(4) TDRPC (which WorldPeace asserted at trial) and that he
therefore did not violate Rule 1.01 TDRPC in regards to Williams.
There
was no evidence presented by the Commission that Rule 3.01 and 1.15(b)(4) did
not apply to the Williams Note.
WorldPeace testified that there was no suit for fraud or conversion
because the Note was the best evidence of the agreement between Williams and
Tiller. This was WorldPeace legal
opinion.
There
was no expert opinion offered by the Commission that there was a viable suit
for fraud or conversion. This is what is
nonsense about not applying a “suit within a suit” logic to these matters.
The
testimony was that WorldPeace did in fact work on the Williams matter and that he
did communicate with Williams. There is
no evidence that WorldPeace neglected the Williams matter but there was
uncontroverted evidence that WorldPeace believed that a suit on the note would
have been illegal as well as not viable.
An
attorney cannot be found guilty of neglect for conscious indifference when the
uncontroverted testimony at trial was that the suit was not viable and was
groundless.
The
court cannot ignore WorldPeace right not to file suit. There was no allegations by the Commission that
any of the monies paid to WorldPeace were trust monies. There were no Rule 1.14 TDRPC violations
alleged by the Commission against WorldPeace.
There
is no evidence that WorldPeace did not spend over three hours on the Williams
lawsuit and did not earn the monies paid to WorldPeace by Williams. Molleston and WorldPeace testified that the
reasonable and customary fees for an attorney in
WorldPeace
moves the court to vacate the Rule 1.01(b)(1) violations from its Judgment of
Disbarment.
On
or about November 9, 1999, Complainant Williams hired Respondent to represent
her in the collection of a promissory note.
Respondent was given One Hundred and 00/100 Dollars ($100.00) to draft a
demand letter which was done.
On or about
January 6, 2000, Respondent drafted Complainant Williams’ demand letter. On February 28, 2001, month later WorldPeace
was paid $375.00 in legal fees to proceed with the lawsuit.
WorldPeace
would show that after he received the $375.00 from Williams, he continued his
due diligence and researched the matter regarding Darlene Williams. The law clearly states that in the event that
a person charges more than twice the usury amount of interest, that person
looses not only the interest but also the principal.
Per the
TDRPC Rule 3.01
A lawyer shall not bring or
defend a proceeding, or assert or controvert an issue therein, unless the
lawyer reasonably believes that there is a basis for doing so that is not
frivolous.
TDRPC Rule
3.01 states that attorney should not file a groundless lawsuit.
Ms.
William’s lawsuit was groundless. There
is no question that the $100.00 was paid to send a demand letter which was
sent. Had Williams collected any monies
she would not have owed WorldPeace anything.
The
second thing to be done was to file a lawsuit.
After WorldPeace received the $375, he continued to perform his due
diligence and to research the matter.
That is when WorldPeace found that a suit would have been
groundless. WorldPeace communicated this
information to Ms. Williams. There was
nothing further to do but WorldPece agreed to try to get some money for Ms.
Williams.
WorldPeace
did about 3 hours of research, worth about $450.00. Ms. Williams had paid WorldPeace $375.00 and
that was the end of the matter.
WorldPeace
would show that he talked to Williams several times and she testified to that
in the grievance hearing and at trial.
Williams testified that she knew there was a usury problem with the
Note.
There
was no evidence presented by the Commission that Williams had a viable
lawsuit. WorldPeace cannot be found
guilty of refusing to file a groundless lawsuit. Rule 1.08 TDRPC violations should be vacated.
VIII. D - LANG
With regards to Rule 1.01(b)(1), WorldPeace would show
the court that there is no evidence and factually insufficient evidence to
support a jury finding against WorldPeace.
In addition, the jury finding against WorldPeace is against the
overwhelming weight of the evidence.
The trial court abused its discretion when it refused to rule as a matter
of law that WorldPeace did not have to file what he considered a frivolous and
groundless lawsuit on behalf of John Lang thus ignoring WorldPeace discretion
under Rules 3.01 and 1.15 (b)(4) of the TDRPC.
Lang
owns an auto storage lot. Three
individuals who had totaled out their cars signed contracts with Lang for the
storage of the wrecked cars.
The
insurance companies settled with the owners of the cars but the titles remained
in the name of the owners and in one particular case the owner agreed to pay
the storage charges. Lang had
not been paid his storage fees. Lang
wanted to sue the insurance companies under Article 6687-9a Vernon‘s Revised
Civil Statutes Annotated section 14A.
Lang
had an attorney prior to WorldPeace who did not file suit. And Lang never filed suit after terminating
WorldPeace. The statute was repealed on
June 1, 2003.
WorldPeace
took the case and after researching the law contacted Lang a month later and
stated that he had researched the law and did not want to sue the insurance
companies unless Lang agreed to sue the car owners at the same time. Lang refused and WorldPeace refused to file
suit.
AUTHORITIES
Rule 3.01 TDRPC
A
lawyer shall not bring or defend a proceeding, or assert or controvert an issue
therein, unless the lawyer reasonably believes that there is a basis for doing
so that is not frivolous.
Rule 1.15 (b)(4) TDRPC
Except
as required by paragraph (a), a lawyer shall not withdraw from representing a
client unless a client insists upon pursuing an objective that the lawyer
considers repugnant or imprudent or with which the lawyer has fundamental
disagreement.
ARGUMENT
WorldPeace
would show the court that Lang testified that WorldPeace told him about a month
after he hired WorldPeace that WorldPeace did not want to file suit against the
insurance companies without suing the car owners because the car owners
contracts were with Lang and the insurance companies had settled with the car
owners.
Per
Rule 3.01 and 1.15 (b)(4) TDRPC (which WorldPeace asserted at trail) WorldPeace
was not required to file suit as Lang demanded.
Even
if this court decides that the Commission does not have to prove a suit within
a suit, there was no rebuttal testimony that Lang could have succeeded in
filing such a suit. Lang did not file
suit after terminating WorldPeace.
Whether it was because he abandoned his claim or could not find an
attorney to take his case does not matter.
WorldPeace cannot be sanctioned for not filing suit.
WorldPeaace
did not inattentively consciously disregard Lang's suit. Lang testified that WorldPeace did contact
him and explain his position when WorldPeace refused to file suit unless Lang
agreed to sue the owners of the cars in addition to the insurance companies.
The
trial court abused its discretion by not ruling as a matter of law that
WorldPeace was not required to file suit for Lang since WorldPeace was relying
on Rules 3.01 and 1.15(b)(4) TDRPC (which WorldPeace asserted at trial) and
therefore did not violate Rule 1.01(b)(1) and 1.02(a)(1) TDRPC.
WorldPeace
moves the court to vacate the Rule 1.01(b)(1) and 1.02(a)(1) TDRPC violations.
IX.
PROTECTING A CLIENTS INTERESTS RULE 1.15(d) TDRPC
Rule 1.15 (d) TDRPC Declining or Terminating
Representation
Upon termination of representation,
a lawyer shall take steps to the extent reasonably practicable to protect a
client’s interests, such as giving reasonable notice to the client, allowing
time for employment of other counsel, surrendering papers and property to
which the client is entitled and refunding any advance payments of fee that
has not been earned. The lawyer may
retain papers relating to the client to the extent permitted by other law only
if such retention will not prejudice the client in the subject matter of the
representation.
Weiss urges in points of
error numbers six and seven that there is no evidence, or alternatively,
insufficient evidence, to support the jury's answer to Question 1. The jury found in answer to that question
that Weiss, in his handling of the Del Castillos' cases, knowingly failed to
surrender papers to which the Del Castillos were entitled and that his failure
prejudiced the Del Castillos. Weiss
urges that because of the lack of evidence, the trial court erred in rendering
judgment for the Commission, in denying his motion for judgment n.o.v. and
motion for new trial, and in finding that he violated Rule 1.15(d) of the
Texas Disciplinary Rules of Professional Conduct.
While the evidence is
undisputed that Weiss did not return the entire file to the Del Castillos,
there is no evidence that his failure prejudiced the Del Castillos. Consequently, there is no evidence to support
the jury's finding that Weiss, in his handling of the Del Castillos' cases,
knowingly failed to surrender papers to which the Del Castillos were entitled
and that his failure prejudiced the Del Castillos. We sustain point of error numbers six and
seven.
Weiss v.
Commission for Lawyer Discipline, 981 S.W. 2d 8, 15 (Tex. App. -- San Antonio,
1998).
IX. A
- NASH
With regards to Rule 1.15(d), WorldPeace would show
the court that there is no evidence and factually insufficient evidence to
support a jury finding against WorldPeace.
In addition, the jury finding against WorldPeace is against the
overwhelming weight of the evidence.
The
testimony from both the Fraser-Nash’s is that they do not pick up their
certified mail. The testimony from
Helene Fraser-Nash was that the neighbors who she authorized to pick up her
mail and send it to
There was
testimony from Stephanie Cluver that Helene Fraser-Nash refused to pick up her
certified mail from the lien holder.
WorldPeace
testified that he returned the Fraser-Nash file by certified mail.
The
evidence is factually insufficient to support a verdict against WorldPeace
violation of Rule 1.15(d).
When a
person testifies that several people are authorized to pick up her mail and her
testimony is that no one is authorized to sign for certified mail is rebutted
and that person states she has a habit of not picking up her certified mail,
then it could not be proved by a preponderance of the evidence that WorldPeace
did not return the Fraser-Nash file.
Further,
there was no obligation for WorldPeace to tell Nash to a find another attorney
because there was no foreclosure on August 17, 2003. In addition, there was no evidence that any
fees were owed to Nash because the evidence was clear that WorldPeace had
earned the five hundred dollars. There
was no statement that any of the monies were trust monies and the Commission
never alleged any Rule 1.14 violations by WorldPeace.
Further,
there is no evidence that WorldPeace prejudiced Nash case because there was no
foreclosure and there was no testimony by Nash that she could not pursue her
lawsuit, if she even had a lawsuit, because WorldPeace did not return her
documents. In fact, the testimony of
Clive Fraser-Nash was that all those documents could be retrieved if they
wanted to file suit. There was no
testimony that they were going to file suit or had hired an attorney to file
suit or that they had made any efforts to file suit.
Again, it
is necessary to prove a suit within a suit in order to show that the Nash were
prejudiced.
The
violation of this Rule should be vacated from the Judgment of Disbarment.
IX. D -
JOHN LANG
With regards to Rule 1.15(d), WorldPeace would show
the court that there is no evidence and factually insufficient evidence to
support a jury finding against WorldPeace.
In addition, the jury finding against WorldPeace is against the
overwhelming weight of the evidence.
There was testimony by Lang that he did not pursue his lawsuits even
after he received his documents at the grievance hearings. He had not hired another attorney and made no
effort to pursue his case. He also
stated that he did not know that the law was about to expire. He had almost a year to file suit. There is no evidence that not receiving his
file prejudiced him.
There is no evidence that WorldPeace did not advis Lang to get another
attorney. The testimony from Lang was that WorldPeace was not going to file
suit. This is testimony that Lang knew he would need to get another attorney. WorldPeace was not Lang’s first
attorney. In fact, Lang's testimony was
that he had an attorney 18 months prior to WorldPeace who refused the case.
The indication was that two attorney refused to take the case.
There is no evidence that WorldPeace owed any monies to Lang. There was no rule 1.14 violations alleged by
the Commission and further, the court severed the counter claim of WorldPeace
that Lang owed WorldPeace money. There
could not be a resolution of the monies owed to Lang without a jury question on
whether or not Lang had not paid WorldPeace his fees.
There is no evidence that Lang was prejudiced. The weight of the evidence shows WorldPeace
did inform Lang to get an attorney.
There is no evidence that WorldPeace owed Lang any money.
The Rule 1.15 violations should be vacated.
X. CONTINGENCY FEE REQUIREMENTS RULE 1.04(d)
TDRPC
Rule 1.04 (d) TDRPC Fees
A fee may be
contingent on the outcome of the matter for which the service is rendered,
except in a matter in which a contingent fee is prohibited by paragraph (e) or
other law. A contingent fee agreement
shall be in writing and shall state the method by which the fee is to be
determined. If there is to be a
differentiation in the percentage or percentages that shall accrue to the
lawyer in the event of settlement, trial or appeal, the percentage for shall be
stated. The agreement shall state the
litigation and other expenses to be deducted from the recovery, and whether
such expenses are to be deducted before or after the contingent fee is
calculated. Upon conclusion of a
contingent fee matter, the lawyer shall provide the client with a written
statement describing the outcome of the matter and, if there is a recovery,
showing the remittance to the client ant the method of its determination.
X. C - DARLENE WILLIAMS
With regards to Rule 1.04(d), WorldPeace would show
the court that there is no evidence and factually insufficient evidence to
support a jury finding against WorldPeace.
In addition, the jury finding against WorldPeace is against the
overwhelming weight of the evidence.
No suit was
filed by WorldPeace because there was no viable cause of action. Since there was no suit filed there was no
retainer contract signed. WorldPeace did
not agree to file a frivolous and groundless lawsuit for Williams and therefore
there was no retainer agreement putting this matter into writing.
There is no
evidence that WorldPeace filed suit and therefore there was no need to draft a
contingeny arrangement. The evidence was
that WorldPeace would not file suit which he considered to be frivolous and
groundless and not viable. If there was
not suit to be filed, then there was no need for a contingency contract. The work that WorldPeace did was by the hour
and not on a contingency fee.
If there was
a contingency fee agreement then Williams would not have had to pay WorldPeace
any money.
The Rule
1.04(d) TDRPC regarding Williams should be vacated from the Final Judgment.
The
Commission did not allege any Rule 1.14 violations and so the monies paid to
WorldPeace were not trust monies.
There was
no evidence that suit was filed and so there was no reason to sign a retainer
agreement. WorldPeace moves for a JNOV
on this issue.
XI. DECEIT, DISHONESTY, FRAUD, MISREPRESENTATION
-
RULE
8.04(a)(3) TDRPC
RULE
8.04 MISCONDUCT: a) A lawyer shall not: (3) engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.
XI. E -
COLLINS
With regards to Rule
1.15(d), WorldPeace would show the court that there is no evidence and
factually insufficient evidence to support a jury finding against
WorldPeace. In addition, the jury
finding against WorldPeace is against the overwhelming weight of the evidence.
WorldPeace
would show the court that per the testimony at trial, on April 28, 2000,
Johnell Collins terminated the services of John WorldPeace in regards to the Collins
v. Arbuckle suit in which a Final Judgment had been signed on January 19,
2000. Three or four days later around
the beginning of March, Wayne Slaughter contacted WorldPeace, per Slaughter's
testimony at trial, as Collins' new attorney of record and discussed with
WorldPeace the Arbuckle monies and so forth.
WorldPeace
would show the court that Collins never informed WorldPeace that she has
terminated Wayne Slaughter. WorldPeace
was prevented from speaking to Collins after she hired Slaughter per Rule
4.02(a) TDRPC.
Collins
answered to WorldPeace's lawsuit against Collins in July 2000, pro se. In October 2000, Collins had hired McNab
Miller, attorney at law, to substitute into the WorldPeace v. Collins lawsuit.
WorldPeace
would show the court that there was never at any time any deceit. There was never at any time any
dishonesty. There was never at any time
any misrepresentation. There was
definitely no fraud, because there were no elements of fraud asked to the jury
and no elements of fraud proved up by the Commission during trial. There was not even a jury instruction as to
what constituted fraud. There was no
definition of dishonesty, deceit, nor misrepresentation going to the jury.
WorldPeace
would show the court that this matter was a simple fee dispute. WorldPeace filed suit in June 2000.
At
any time Collins could have requested Production of Documents from WorldPeace
regarding these matters. WorldPeace had
a right to defend himself and to prosecute his case in any manner that he
wanted to. Collins and WorldPeace were
on different terms after suit was filed.
All of the information that Collins demanded was available to her
through the lawsuit.
WorldPeace
would show the court that Collins never filed a counter claim for the Arbuckle
monies and therefore waived and abandoned any rights that she had to those
monies. As stated above the Commission
had no right to file suit on WorldPeace, because there was no common law rights
reposed in Collins and therefore the Commission for Lawyer Discipline's rights
are derivative of the client's rights in this matter. Since Collins had abandoned her rights
regarding the Arbuckle monies the Commission had no rights regarding the
Arbuckle monies.
WorldPeace
would show the court that during that lawsuit which began in June 2000, at no
point did Collins ever make a claim for the Arbuckle monies nor did she ever
make a formal request regarding those monies.
WorldPeace
would show the court that there can be no dishonesty, fraud, deceit, or
misrepresentation in the processing of a lawsuit. If the questions are not asked in a lawsuit,
WorldPeace is not required to forward anything to Collins outside of the
parameters of the lawsuit.
WorldPeace
would show the court that WorldPeace was not required to speak with Collins
after she hired Wayne Slaughter as her attorney four days after she terminated
WorldPeace. The termination by Collins
of WorldPeace was absolute per Rule 1.15(a)(3) TDRPC.
WorldPeace
would show the court that there was no argument between Collins and WorldPeace
until WorldPeace made a claim for his fees after the final judgment was signed
in the Collins v. Arbuckle lawsuit on January 19, 2000.
WorldPeace
would show the court that the WorldPeace v. Collins matter was nothing
but a fee dispute and it was filed in court.
There is no TRDPC rule violation because WorldPeace had a lawsuit
going. There is no evidence of fraud,
deceit, misrepresentation, or dishonesty between WorldPeace and Collins in
regards to Collins. There can be no
deceit, misrepresentation, dishonesty, or fraud in a cause or a lawsuit.
It
is definite that the
elements of fraud were not proved up by the Commission for Lawyer
Discipline. Consequently, this rule
violation should be vacated.
XII. DECLARATORY JUDGMENT
On
The court
tried to dismiss WorldPeace’s cause of action by ending its
WorldPeace
demands the court to set his declaratory judgment for trial.
XIII COUNTER CLAIMS AGAINST JOHNELL COLLINS
On
The court
tried to dismiss WorldPeace’s cause of action by ending its
WorldPeace
demands the court to set WorldPeace’s counterclaims against Collins for trial.
PRAYER
WorldPeace
prays the court vacate the Judgment of Disbarment in whole or in part and
modify its sanctions accordingly and for such other and further relief at law
or in equity as this court deems proper.
Respectfully
submitted,
__________________________________
John
WorldPeace
TBA
No. 21872800
2620
Fountain View, Suite 106
Houston,
Texas 77057
Tel: 713-784-7618
Fax: 713-784-9063
CERTIFICATE OF
SERVICE
I certify that a true and correct copy of the foregoing
pleading was forwarded to opposing counsel on
John
WorldPeace
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