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Court Cause No. 2002-42081
COMMISSION FOR LAWYER
IN THE DISTRICT COURT OF
269TH JUDICIAL DISTRICT
On the 7th day of November, 2003, the following proceeding
came on to be heard in the above-entitled and numbered cause before the
Honorable Judge James Fry, Judge Presiding, held in Houston, Harris County,
Proceedings taped by digital recorder and audio cassette recorder and
transcribed as a part of normal business records.
COUNSEL FOR THE STATE BAR OF
Mr. Jed Molleston
Assistant Disciplinary Counsel
State Bar of
Ms. Vicki Rudel, Legal Assistant
COUNSEL FOR DEFENDANT:
Mr. John WorldPeace, Pro Se
Attorney at Law
Ms. LeAnne Lyne, Legal Assistant
Now. We are here on Cause
Number 2002-42081; Commission for Lawyer Discipline v. John WorldPeace.
All the parties are here. Counsel,
a couple of matters to take up first, regarding what we are going to hear today.
Mr. WorldPeace has sent me a request to hear a Motion for Discovery.
That was filed back inÖ
Filed back in June your honor.
Number one. Discovery in this
case was complete before the trial. Number
two. There is no verified Motion for
Continuance in the file prior to the Motion for Summary Judgment or Affidavit to
refer to Discovery which would be required to hear that matter under Crow v.
Rocket Specialty Utility District, 17 S.W. 3d 320.
It says that you have to file a Verified Motion for Continuance prior to
Summary Judgment being entered in these matters and Mohawk v. or In re: Mohawk
Rubber Company simply entails that discovery does not have to be complete at the
time of the hearing. So for the
record I am not going to take up this motion.
Number two. Let me finish.
Number two. The state has
filed a Motion for Contempt which they are requesting me to sign today.
I have, Frankly, I have looked at all the case law that I can find and I
think that that appears to be premature. I
agree with Mr. WorldPeace and I donít think that this Judgment is even
enforceable until such time as the trial courts plenary power elapses.
Now as soon as it does, because the only thing that the, that the Rules
of Disciplinary Procedure talk about is a supercedious.
They cannot supercede it until, they cannot be superceded until the
disbarment. But supercedious
doesnít come into play until after the Courtís plenary power is gone.
So I donít think its even enforceable.
Now, that leaves us with the Motion to Vacate or Modify the Judgment, the
Motion for New Trial, the Motion for Judgment NOV, Motion for Rehearing on the
Motion for Summary Judgment. There
have been some pleadings filed after
Your honor. I would like to
respond to your first ruling about discovery.
And I would like to point out to the Court that you set up an ďAĒ
case. Now, if you close off
An ďAĒ case on what?
You have an orderÖ
For severance and you set up an ďAĒ case.
Severing the counter, the third party claims.
Thatís a whole different case and in that case I can ask for discovery.
There is no time limits on that. That
is a whole new ball game and soÖ
Thatís fine. I am just
making sure that we understand that I am not taking up that up today, and that
is not a part of what I am going to consider.
Ok. The, we can start your
honor with the, which is what I am going to use as a template to present my
case. The Brief that I sent you, I
called it a Short Hand Rendition. Now,
that covers everything, not everything, that covers the major issues with one
exception. I filed yesterday, a
which I believe is a corollary to all of this, a Respondentís Motion to Vacate
or Modify the Courtís Order of Severance.
Now, I do not know if the Court got that yesterday or not.
I faxed this probably about
in the afternoon.
I got some things. I canít
tell you what all I got, but the fax machine was on the blitz.
Um, um, If you sent it to me yesterday I got it.
I have courtesy copies. Ok.
The document that I filed yesterday was just really a supplement to and
has to do with the Motion for Modification, Vacation, Clarification, etc.
So I would proceed by starting with this Short Hand Rendition if you have
I do have that.
And I am going to go ahead and go to the end of that which has the Abuse
of Discretion Argument on page eighteen.
No sir. This deals with all
of these issues. It deals with all
of the motions.
Why are we dealing with the motions?
Well I have a Motion to Modify, a Motion for New Trial, a Motion
regarding the Summary Judgment and this Short Hand Rendition includes all of
those major areas and all of those motions.
So it is more a way to move through the material.
Now, I donít have any, frankly I am glad you sent this, I thought it
was an excellent idea. Uh, my
question is what particular point are we going to.
Just to say abuse of discretion, what I am saying is, you are claiming
abuse of discretion for what?
In all of these motions, the Courtís ruling, I am alleging is an abuse
of discretion. And I have all of
those motions referenced in this argument on page eighteen.
Oh Iím sorry.
Iím sorry. I found it.
Iím with you.
Ok. I wanted to back up just
a second. Every motion that I filed
was just supplementing those motions file on the twenty-sixth.
So the motions, the most recent Motion to Modify, New Trial, Summary
Judgment were filed this week. So I
donít know, I didnít quite understand what you were saying about 320Ö
You. Let me tell you.
Because I have done a lot of this reading on this periodically.
On the Motion to Modify and Motion for New Trial, the only time that you
can file either an original or an amended is prior to thirty days after the
judgment. After that anything that
is, the courtís should deem an amendment or some ______ or some form of those,
under the case law cannot even be considered.
Now if it is just, you added things, and frankly it is so voluminous, I
couldnít begin to tell you exactly what it does.
If it adds things, those things that were added I cannot consider.
I can consider those based motions that were filed on the twenty-sixth,
because that was the last day to file.
I donít think there was much that was added and what is added goes
straight to the document with or without the motion anyway.
So anyway. To begin on page
eighteen. I still assert that per
Rule 3.01 Texas Rules of Disciplinary Procedure the State Bar was required to
file its petitions with the Clerk of the Supreme Court.
There is no question in this case but the State Bar did not do that.
The State Bar filed a, an original petition against Johnell Collins, with
the Clerk of the Supreme Court and then, that was August 20, 2002, and November
15, 2002, the State Bar added on five additional grievances by putting them
straight into the petition in this court. My
position is that the court does not have jurisdiction over that matter, because
the court was not appointed to hear those matters by the Supreme Court under
Rule 3.02 Texas Rules of Disciplinary Procedure.
Even though it is not official the Texas Rules of Disciplinary Procedure
are being revised, considered to be, or are being considered and revised and
when you go to Rule 3.01 there is a change made in that rule, proposed change.
And that is that the Commission can file three or four complaints in one
petition which is kind of a corollary question here, but the part of that rule,
last part of 3.01 it says, once the attorney makes the election, the Commission
must file a Disciplinary Petition and it must, M U S T, not may, not shall, but
must be filed with the Clerk of the Supreme Court and that wasnít done and so
I would say that on those five grievance, the court does not have jurisdiction
to hear those additional five grievances, never did, and that part of that order
is void, so that is point number one.
Alright. Let me, let me, go
through this just for clarityís sake. Let
me stop you and see if he has any response to that particular issue.
Thatís a, thatís a fairly simple issue for him.
Your honor. Our argument
remains the same as it has since the day that this was first raised.
The cases permitting us from, in our petition, under Rule 51 Rules of
Civil Procedure have the amendments that we made in this case, those can be,
Rule 51 of the Rules of Civil Procedure controls, not Rule 3.01, 3.02, 3.03.
Why donít we address that point _______.
There are, you know I found something else.
I have found four cases. And
the order they come in, I think is very important.
The first one is Diaz.
Reporter Iím sorry
Diaz, D I A Z, I am probably
pronouncing that wrong. Versus
Commission for Lawyer Discipline. In
Diaz what the court basically said was
that the case was governed by point three Rules of Disciplinary Procedure that
to make it quite clear that this court proceeding however, original or
independent proceeding, are not proceedings of in which the court can call upon
to review an action taken by an administrative proceeding.
In such, court proceedings, Texas Rules of Civil Procedure apply as it
may be varied by the Rules of Disciplinary Procedure.
Ordinary civil suits, in a district court a plaintiff may be joined in an
independent claim for any claims that he may have against an opposing party.
One thing I think is important here, to remember here, is that these
individuals who had complaints against Mr. WorldPeace are not parties.
They are claimants. The State
Bar is a party. Now, after Diaz which was in 1997, weíve got Weiss which came on in 1998. Diaz
was an Austin Court of Appeals. Weiss was
Comment your honor is that Rule 3.08 says, of Disciplinary Procedure says
that the Rules of Civil Procedure will be followed unless modified by the Texas
Rules of Disciplinary Procedure. There
is no question but that 3.01 modifies where and how a Disciplinary Petition must
be filed. It doesnít use the
discretionary language must, it doesnít use language shall, it uses the
language must. Which means there is
no wiggle room, no place to go. Now,
my position is that 3.01 does in fact, contrary to what Diaz
said, thatís my argument with Diaz
that it didnít consider 3.01. But
3.01 is perfectly clear as to the petitions must be filed with the Clerk of the
Supreme Court. Now thatís my
position. I would remind the court
that there is a Writ of Mandamus up and has been up with the Supreme Court.
As far as I know they havenít ruled on it, on this one and only one
issue regarding Rule 3.01. The most
important thing with regards to 3.01 for me though is the fact that at pre-trial
Mr. Molleston, when you asked him, what do you do about this, and Mr. Molleston
said we filed, in other cases, just like we did here.
And I asked the Court to make Mr. Molleston produce those other cases.
Now theyíre probably cases, they are definitely cases that are not in
the case law. But I think that
itís critical that Mr. Molleston come up with some day to day, working
examples of where he has violated 3.01 on prior occasions and he has not done
that and the Court has decided not to make him do that and I think that thatís
key to what the procedures are internally at the State Bar with this matter and
that bolsters, one way or another, the argument about whether or not they can do
that. And, lastly, youíre
absolutely right, no cases are absolutely on point.
Itís not something that has been specifically adjudicated, everything
in those cases is dicta.
Um. The courtís have found
that you can add all the claims that you have.
I guess I would refer the Court to one other case.
The case of Mechum v. Commission for Lawyer Discipline 36 S.W. 3d 6Ö
Wait, wait, wait. Mechum?
Whatís the cite on it?
36 S.W. 3d 612.
What did Mechum do?
Mechum said that, itís a
different issue, than this. It is an
issue related to foundation of the griev, formation of the grievance committee,
said at least one Appellate Court has determined the District Courtís
authority to hear disbarment proceedings will, is derived from its
Constitutional grant of jurisdiction, citing State v. Pounds 525 S.W. 2d 547.
Similarly, another Court of Appeals, this, where the trial court did not
match up these subject matter jurisdiction because the grievance committee
allegedly failed to comply with the rights granted by the State Bar, thatís
Smith versus Grievance Committee, State Bar of Texas, 475 S.W. 2d 396 Corpus
Christi. So when you look at the
liberal construction that has been given to our rules, the different types of
circumstances, if you look at Diaz, Hawkins, and Favoloro,
judge, itís quite apparent that judicial efficiency is going to control a
situation like this and we are going to be permitted to try all the cases we
have. So thatís what we did in Mr.
WorldPeaceís case and I, I just donít think that thatís a problem.
Your honor. I would like to
point out something. That in all my
motions, Mr. Molleston the Commission, has not filed a single response, nothing
there. And he is sitting here
arguing off the top of his head and if I, if the Courtís rule is that I
canít modify or change my order, which really doesnít effect me that much,
what does it say to Mr. Molleston who doesnít file a single sentence in any of
these motions. And we are talking
about one-hundred and sixty to seventy pages without exhibits.
So where does he come in to start arguing off the top of his head in
response to my motions. Now that,
thatís a global issue that I have. Bottom
line is, and again the rule is just about as clear as anything gets.
Must. And the detriment to me
is that the trial court generally has a one hundred and eighty day window to get
these cases tried and after eighty days had elapsed in this case the State Bar
came in and dropped these five additional grievances.
Now this court was good enough to extend the deadline by two months and
extend this on out. But regardless
of that at the time I feel I was blindsided by this late filing and there is
another sub point and this is why this gets completely off into a hundred rabbit
trails. Three of those cases that
they filed after they filed the original one had already had elections on them.
Two of the cases had the elections made, I think one week and three weeks
prior to when they filed it. So
theyíve got four elections, they file on one on
Alright. Move on to the next
Next point your honor. I
filed, this morning, this is not, this is not a pleading, this is a notice of
filing, I would like to hand it to your honor, this is a courtesy copy.
What that is your honor, it regards the Collins grievance which was the
original grievance filed by the State Bar. When
the State Bar filed suit on me in August of 2002 I didnít find out about it, I
was not served. I found out through
the grapevine that a petition had been served.
I knew that I already had a case against Johnell Collins in the 281st
District Court and when I went down to the ancillary court and asked about this
case they said it had been originally assigned to the 125th, but
there was a problem with the clerk and they didnít know where the case wasÖ
Molleston Iím going to object at this point
judge, itís just a waste of time for him to use our time to arguments about
matters that are not an issue or part of anything that he has filed in a timely
manner. This is a document he filed
last night. In the middle of the
night as far as our reception of it was concerned and you know I would justÖ
Let me ask a question counsel. What
point is this going to?
The point is judgeÖ
Because Iíve heard, so much of this Iíve already heard.
You havenít heardÖ
Ok, I donít think you have heard this part judge.
The Collins case. Me versus
Collins had a Nunc Pro Tunc Order signed on
What was the Collins suit for?
The Collins suit was me, which started this whole thing off, suing
Collins for my fees, and she didnít want to pay her fees, so she filed a
grievance. Actually, she filed a
grievance and then I realized she wasnít going to pay and I filed suit on her.
It was filed in June of 2000.
Ok. The suit you are talking
about in the 281st was not a Lawyer Discipline case?
No but they appeared in it and responded to it and I filed an answer to
that Lawyer Discipline case in that case and they began to participate in that
case and thatís what that Notice of Filing is, is just what is part of what is
in the 281st file. They
appeared and answered and filed motions and responses in the 281st
did not get their Plea to the Jurisdiction and there is a Final Judgment over
there. I donít see that theyíve
got any way to come into this court and do anything on their own.
Again, Mr. Molleston hasnít filed a single word in response to that
argument. So the court doesnít
have jurisdiction to hear that case either.
Alright. Next point.
Iíve sent the court, and it is in all of these motions and it goes all
the way through the file and I have asked the court to take judicial notice of
its own file. Four or five pages of
cases that say that you cannot separate, sever Rule 41 sever mandatory
counterclaims. Now here is the
problem with the State Bar and the Disciplinary Rules.
The Disciplinary Rules say that Mr. Mollestonís client is the
Commission, but Rule, I think it is 408 or 314, Iím not sure, says that the
Commission acquires the common law rights of the claimant.
The Commission steps in the shoes of the claimant.
Therefore, even though the claimant is not officially a party it is the
vicarious application of the claimants common law rights that brings, that
allows the Commission to sue me. Because
I never did anything to the Commission. What
I did, the transaction, the underlying transaction, which is what res
judicata, Rule 97 compulsory counterclaims is all about, is that in this
state you have a transactional approach to res
judicata if the facts that you are suing on, or defending on, are the same
thing that is a mandatory counterclaim and if you donít file your mandatory
counterclaim, you lose it, period. Now,
the Commission is suing me for restitution based upon Johnell Collinsí common
law rights, which she doesnít have any and so the problem here is, and I
donít know what the State Bar is going to do about this in this new
disciplinary rules, but when you have a situation like you have in this case,
with Lang and Apodaca, and later on against Collins I filed counterclaims
against them personally. As appears
to be required by Rule 97 Texas Rules of Civil Procedure again no law, no
comment from the bar ever. If I have
a claim against those people, I need to go ahead and file.
Now, I counterclaimed against Lang and Apodaca based upon the same facts
that gave them a cause of action against me, the same fact pattern, the same
Hold on. Letís make sure
weíre clear. What you are talking
about is the Third Party Claims, not the counterclaims.
They are not parties. If you
are not a party, then anything you have is a third party claim.
Well they are in the lawsuit and my position is that they are in fact, I
see where the court is going, they are not termed parties so they donít come
under 97(a) however, the State Bar has stepped into their shoes.
And I have counterclaimed against the State Bar and officially,
terminology wise, third party claims against Apodaca and Lang.
And so my position is that that is a mandatory counterclaim, whether
theyíre third parties, claimants, or whatever, they are mandatory
counterclaims and this is where it gets crazy, if I sue the State Bar and they
have the common law rights of Lang and Apodaca then they have to defend Lang and
Apodaca. Because there is nothing in
the rules that says they donít. If
they are going to step into those shoes and take over those common law rights
then they are going to have to defend. Now
they donít want to defend. And so
what happens is Lang and Apodaca, Apodaca didnít, but Lang got his own
attorney. So we have this gigantic
grey area. But the law is clear.
When you sever mandatory counterclaims whether they are counterclaims or
third party claims, you sever those out thatís an abuse of discretion.
For judicial economy the court came back over and over, on four pages of
case law, thereís a lot more than that, you canít sever this, these claims,
sever, Rule 41 sever, not Rule 174 separate trials.
Sever, you cannot sever these people out of this lawsuit.
You can separate try it if you want, but you cannot sever those parties
that are a part of that underlying transaction.
And so I am saying it is an abuse of discretion for the court to sign a
severance order breaking out Lang and Apodaca and try those as separate lawsuits
which is what this court did on
Theyíre not parties, and the counterclaims are not compulsory
counterclaims, as severance of the three, of the two individual complainants out
of the cases ________. Our position
is that counterclaims for discrimination that were filed directly against us
were not compulsory either, they didnít arise out of the same facts that are
part of the allegations of the Disciplinary Petition.
They arise, arose out of imaginary facts conjured by Mr. WorldPeace as
alleged to have occurred during the pendancy of the case related to the handling
of the case. They are not compulsory
counterclaims. The facts alleged in
the petitions and had a severance order, a permanent severance order been made
as to those I think that would have been ______.
However, whatís happened is the Court set aside the judgment related to
the, the uh, had the ďmother hubbardĒ clause, to foreclose the
counterclaims, reopened the case, we filed our Motion for Summary Judgment, the
Court dealt with those counterclaims properly and all these arguments as to some
improper severance are moot. They
are moot. The Court dealt with that
in the proper way and heís had his opportunity to present his counterclaims to
the court and during the time when there was no Final Judgment in the case and
so that issue is gone for him. That
severance issue is gone for him. It
I would again assert my objection that Mr. Molleston has not written one
single thing so that you and I both can consider whatever he is talking about
Counsel, as much as I would like something like that there is no
requirement that he file a response. The
only time they are required to file a response, is when, I mean they are very
limited situations whereÖ
Well it is not. But the
bottom line is, who knows what validity there is to anything he is saying or
anything he is quoting when we canít look at it.
So that, I continue to object. My
position is, my interpretation of the law is correct, if he had anything to
really say, any cases, any statute, he would have already put it out on the
Alright. I need to go through
some points _______. Uh, there are
_____ case on point. There are cases
that, when you are dealing with severance there are two things, one is that the de
facto severance that would have occurred had the judgment, the original
judgment become final, because that would have been the severance where the word
severance was used or not or whether or not there was a ______.
Normally there is a requirement of an order.
The case is also _____ that whether you have an order or not if you in
fact end up doing something where it constitutes a severance it is a severance.
Now, I set that a side. What
we have to look at. Iím looking at
the case that uh, Mathis v. Bill de la
Garza one that WorldPeace cited to me. Very
interesting language here. Because
in this case what the court was trying to do was to say that separate trial when
what he had actually done was sever. What
they said was moreover the order here is one of severance in fact as well as in
name, because at the conclusion of the trial a Final Judgment was rendered.
That was not done here. If
you look at, there it is, this is a federal case but it is a case that deals
Well your honor. My next
point is really on that point.
I filed yesterday, even though, officially the court doesnít have to
look at it, the courtís order of severance.
Let me back up first for a moment. On
END OF TAPE 1 SIDE A
BEGINNING OF TAPE 1 SIDE B
Respondentís Motion to Vacate the Severance Order dated
Reporter August what
I didnít get the exhibits, but I remember the Order.
Well here is what the Order says judge.
The court considered the Commission for Lawyer Disciplineís Motion for
Severance in the above entitled and numbered cause.
The court after considering the pleading and argument of counsel is of
the opinion that it should be granted. Mr.
Mollestonís Motion for Severance was to sever the religious discrimination,
the political discrimination and the intentional interference with, the
intentional infliction of emotional distress.
Thatís what was in his motion. He
never filed a Motion to Sever Lang and Apodaca.
What happened was that Mr. Langís attorney filed a Motion to Dismiss my
petition against Mr. Lang and the Court denied that Motion to Dismiss and suasponte severed Lang and Apodaca.
And what this order says is that in the first paragraph it grants his
Motion for Severance, severing religious and political discrimination, which is
really free speech and intentional interference, infliction of emotional
distress. And then down in the
second paragraph further severs out Lang and Apodaca into the ďAĒ case.
So this court signed an order, signed an Order of Severance, incorporated
the Order of Severance in the Judgment of Disbarment, and by so doing; the court
without any comment here has granted his motion, and that is what he prayed for,
that in those two religious discrimination, political, whatever, thatís in the
ďAĒ case. Now that is what the
record reflects. So we are not just
talking about aligningÖ
Let me see, itís been a while since Iíve seen that order.
The only thing it says here is that in regards to the causes of action of
John Lang and Philip Apodaca, third party defendants were severed.
It says you granted his Motion for Severance, judge.
And his Motion for Severance had nothing to do with Lang and Apodaca.
I know but, that is not what it ordered.
Judge, with all do respect, it orders what it orders.
Yes, it does order what it orders. It
orders that the causes of action of John WorldPeace against John Lang and Philip
Apodaca, third party defendants are severed. That is all it orders.
It grants his motion and his motion judgeÖ
Alright, move on to your next point.
A reinteration of the point, regardless of what is in the court, the case
law I think is pretty clear, Rule 41 uses the word sever.
Rule 174(b) does not use the word sever.
When the court uses the word sever, I have the right to use that word as
itís used in the statutes. RuleÖ
Objection, this is his third shot at the same point, judge, andÖ
I, was wondering __________. Move
When Mr. Molleston filed his Motion for Summary Judgment in the first two
paragraphs of that motion I complained that the Court had not signed a Severance
Order and I didnít know where to file, or, any future pleadings.
And then on
Those were Bills of Exception?
Done outside the presence of the jury?
Then what difference does that make if that _______?
Well if it was a separate lawsuit, I would not have had a need to put a
Bill of Exception in a different lawsuit, I put it in because I thought it was a
different lawsuit. I wouldnít have
put it in if I thought we had a severed lawsuit.
I guess what I am asking is if it didnít go to the jury what difference
does it make?
Well it just bolsters the fact that I am proceeding on with the law as it
is in Rule 41 as a severance, not a separate trial.
And I proceeded differently than I would have, that is one instance of
it, had I known that we were having separate trials.
Well lets move on to something other than the severance issue.
Frankly, I think weíve covered that.
Since the court severed the case there is now an ďAĒ case, a separate
lawsuit. Up until the time the court
severed the lawsuit, at the time it signed the Judgment of Disbarment, I had a
right, have a right, to file a cause of action for declaratory judgment.
I still have a right to file a cause of action for Declaratory Judgment
and I can put it in that ďAĒ case. But
at the time that I filed that cause of action for Declarative Judgment there was
no severance order. And so I was
forced to file my Declaratory Judgment in the only case number that existed.
So when the Court comes in and says that in regards to the Summary
Judgment that my Declaratory Judgment and my cause of action against Johnell
Collins dealt with, are not allowed with regards to the Summary Judgment that
Court cannot say that they are not allowed in regards to the Lang and Apodaca
case that was later severed but had not been severed at the time that I filed
the motions. Now had this Court severed the case at the time it made the order
in pre-trial I could have filed my Declaratory Judgment and whatever else under
the ďAĒ case. Because there is
no deadlines on the ďAĒ case. So
what we have then is where the Court has said in its Summary Judgment you
canít file the Declaratory Judgment, and you canít file against Johnell
Collins, because you are not within seven days of the Submission date.
But those causes of action can go into the ďAĒ case and the court in
its Judgment for Disbarment has not dealt with those two issues.
So the question is where dose the Declaratory Judgment go.
It can go in the ďAĒ case, but the court didnít put it in the
ďAĒ case specifically. And so we
have two things sitting out in the entire lawsuit, the Declaratory Judgment and
a cause of action against Johnell Collins that have not been dealt with by the
court in the Judgment for Disbarment which makes the Judgment for Disbarment
interlocutory at this point. So the
court is going to have to decide what it is going to do with those two issues.
They donít go over here, then theyíve got to go over here in the
ďAĒ case then if they donít go in either place then they go somewhere else
in another severed part. But those
issues are hanging out and because they are hanging out we donít have a 3.01
Texas Rules of Civil Procedure Final Judgment.
We have dealt with the late filed pleadings in the Judgment, the
Disbarment Judgment. Correctly
finding that anything filed after seven days prior to the Submission date to the
Summary Judgment Motion in this case the Submission date was
Your honor. That issue is
dealt with however he wants to characterize it.
That issue is dealt with after the fact.
I had no other case number to file in and I have a right to put a
Declaratory Judgment in the ďAĒ case. Now
I say that in my pleadings. Iím
Wait, wait, wait. The ďAĒ
case, lets make sure the record is clear. The
two items that were severed were your counterclaims, or third party claims
against Apodaca and Lang. Ok.
Your late filed application for Declaratory Judgment asked the Court to
declare multiple sanctions of the State Barís actions unconstitutional,
whatís that got to do with the Lang and Apodaca claim?
Well I can put that in the Lang and Apodaca case judge.
It is a separate lawsuit, I can ask for a Declaratory Judgment inside the
Lang and Apodaca case. If that case
had already been severed I could have filed it in the ďAĒ case.
I can file it in the ďAĒ case even now.
But the court cannot dismiss my Declaratory Judgment, it can.
I can see how you can keep it out of the primary case, but you canít
keep it out of the ďAĒ case because I said to the court, Iím filing this
petition not knowing where to put it, because the court hasnít severed, I have
only one place to put it, and essentially the court is going to have to deal
with it at some point in time. So
regardless of whether its not going to fly or whatever or whatever arguments may
exist down the road I have a cause of action for Declaratory Judgment filed in
the only case that was there, which could have been filed in the Lang ďAĒ
case if Iíd of felt like it.
How are you going to do that when they are not a party to what has been
They are a party and that is back to my argument.
These are third party claims against Lang and Apodaca.
It is all one case judge. It
was one case when I filed it.
That is where the confusion is. And
not only that I go back to the Order of Severance.
It granted there constitutional issues into the ďAĒ case and that
Declaratory Judgment will fit in there.
Iíve heard what you have said. And
I suggest you all look at 971 S.W. 2d 744, Automaker, Inc. v. CCRT, Ltd. v. U.S.
Bankers and Financial Services. Now
you donít often get one that is as a white horse case as this one.
This case on
Alright. Move on to your next
Judge. There was no severance
in that case. It doesnít matter.
Along that same line I would show the court that it abused its discretion
with the ďmother hubbardĒ clause by not addressing those issues and
dismissing them through the ďmother hubbardĒ clause.
Number nine, you have already covered judge.
The Judgment for Disbarment cannot be effective until the Court looses
its plenary power. The court has
signed an order that says I am disbarred on
Well let me say this counsel. Number
one. The date is inserted in that
Judgment, because we donít know whether you are going to file a Motion for New
Trial or Appeal. The fact of the
matter is that when you sign that you have to set a day.
Number two. I think that,
everything that I have read is pretty clear that that is not enforceable until
such time as the court loses its plenary power.
So what you do for a New Trial then brings into play the extend deadline
for the courtís plenary power. I
donít think that is the courtís ________ but I do _______.
Counsel, your standing up. Youíre
bound to have something to say.
I donít want to argue with the court.
The courtís ruled on this point, but I will tell the court that it is
our position that the order is enforceable.
Now how the court decides to enforce it or what the court does with that
is in the courtís discretion. It
canít be just because you change the order, that the order is signed
unenforceable, your honor. And I
donít think, I think that the intention of Rule 3.14 of the Rules of
Disciplinary Procedure is that once the order is signed the date set by the
Is that the. Let me interrupt
you here. I donít have all of the
case. Is that part the part that is
That is a whole different ball game, supercidious.
It doesnít come into play before the court has lost it.
At that point you are absolutely able to enforce the judgment unless it
is supercidious. The only thing that
is said in that is that you canít supercede ________, I think you can _______
Mr. WorldPeace ______. Alright.
Well the question is whether the order has to be modified or not.
No, the court, the order does not have to be modified, it is simply not
My belief is that it does, because the in fact confusion that it causes
with the judges as to whether it is or not enforceable and I have in dealing
with that. The repercussions of that
order being a date of disbarment not being enforceable or being enforceable
depending on which judge you are talking about and so it is creating confusion,
and it will continue to create confusion for the next thirty days and it needs
to be modified. And again Mr.
Molleston, doesnít have a single bit of law or anything else to counter any of
Well Iíve heard all that. Next
Next point judge is along with the Declaratory Judgment.
The Attorney General was served, has not answered.
The courtís Judgment for Disbarment had nothing to say about the
Attorney General who is a party in this case and therefore the Judgment is, the
Judgment for Disbarment is interlocutory. The
other issue, your honor, is the Summary Judgment.
Mr. Molleston did not file, did not address in his Motion for Summary
Judgment, he did not address at all my issues of the suit within a suit.
He did not address at allÖ
Iím going to object. I
believe counsel is reading from a document that was filed after the
I think I, that was also one of the issues that was raised, that issue
has been raised multiple times.
He didnít serve us with a motion, his initial pleadings your honor.
He served me. Let meÖ
The question of the suit within a suit was raised in pre-trial.
This, it was dealt with.
There is no place, your honor, in the judgment dealing with that issue.
There is no place dealing with the Fifth Amendment in your Judgment for
Disbarment and it was not raised by Mr. Molleston.
The court said it severed the Constitutional Counterclaims at post trial,
that means the Fifth Amendment was not dealt with, it was not dealt with in Mr.
Mollestonís Motion for Summary Judgment. Mr.
Molleston didnít speak to the issue of res
judicata on Johnell Collins. The
Commission did not speak to the issue of multiple complainants in one
disciplinary petition. None of those
issues were put into Summary Judgment. But
more importantly. More importantly.
Is on the issue of Equal Protection the Summary Judgment Rule 166a(i)
requires Mr. Molleston to state the issues, again like Rule 3.01 of the
Let me interrupt you for a second counsel.
Um. Lavy v. Pitts, 29 S.W. 3d
353 is written by a case out in
Your honor. I did file a
response to his Summary Judgment and I did say he has not listed the elements.
I did that.
This was filed on
What day was this set for Submission?
Well wait a minute. Injunctive
relief was a question in the late filed petition.
Well the whole, the whole thing objects to no elements being.
I had my injunctive relief, I am still reading on this other issue.
The injunctive relief was added on
Let me ask a question to make it real clear for the record.
Is what you are saying is that he has to put down every single element
for a cause of action to decide which one you are going to negate or does he
have to simply say that this is an element, we donít think he made it.
He doesnít have to list them all, but he has to say which ones.
He didnít even say which ones. Nothing.
All he did was call my fact patterns and my relation of the facts, he
renamed those elements. He never
said that in any of these, never stated the elements.
Now he knows what he is supposed to do, because in the Rule 13 and
Chapter 9 & 10 intentional infliction of emotional distress, he lists those
elements. And then he goes down and
says there is no evidence of this element, or that element and so forth.
But when you get through everything else he never stated what the
elements are. The elements of due
process, you have to have notice of hearing and so forth.
He didnít put that, anywhere in there.
And so when you take the fact that he didnít put the elements of the
Constitutional parts and then he didnít put anything about injunctive relief,
those four elements, you kind of have a double problem there, but none of these
issues, none of these issues did he put down the elements and you can go right
through the Summary Judgment and you can see that he didnít do it.
And so you canít grant, and I objected to it, you canít grant his
Motion for No-elements, I mean for No-evidence Summary Judgment when he hadnít
followed the Rules and Iíve objected. What
am I going to do? And I, you know,
what, what heís saying there is no evidence, no evidence to what?
Read the Summary Judgment that is what he does, but he knows what he has
to do, because he did it with the intentional infliction.
So the court cannot grant that Summary Judgment on those particular
causes of action. What Mr. Molleston
seems to be saying is that whatever the elements are, I controvert all of the
facts alleged by Mr. WorldPeace. Consequently,
Mr. Mollestonís No-evidence Summary Judgment is not consistent with 166a(i).
Out of an abundance of caution, however, I filed a sworn affidavit that
supported the facts that he said there were no evidence of.
So he didnít do it and I complained and the court granted that Summary
Judgment and those elements even if you figure it is a partial Summary Judgment,
you get into other problems, because my reading of your Order of Severance and
injunctive, intentional infliction of emotional distress didnít even belong in
that case, but yeah you can grant that. But
you canít grant Summary Judgment on other issues that he didnít put the
elements on and I complained about.
I put the elements. I cited
the court cases to say that there is no independent right under Texas law for a
claim of Constitutional violations and the ________ made in the state court must
necessarily rely on 42 U.S. Code ß 1983. And
I cited the elements of U.S. Code, 42 U.S. Code ß 1983, and in each instance I
alleged that there is no evidence that the two elements are a person under,
acted under the color of state law regarding Respondentís claim of due process
violation and that some conduct of a person acting under color of state law
deprived him of rights, privileges, or immunities, _________ by the Constitution
for laws of the United States and I made, I alleged and made reference to prove
those elements with regards to each allegation he made.
And so, and so, this, this is not true.
What he is saying that we didnít notify him what the elements were, is
not true. We did do that.
We found the elements, in the law. We
showed the court the cases to support those elements, we alleged the absence of
evidence, that is what you do for a No-evidence Summary Judgment and that is
what we did. We went through ever
part of this counterclaim, every apparent affirmative allegation and we negated
the factual allegations and we negated the elements and I think the Motion is
wrapped pretty well judge, I really do.
Your honor. Mr. Molleston
comes in with a Summary Judgment saying I didnít pled elements on a cause of
action I never pled. I never pled 42
Well that is the only cause of action that was related to the facts
before the court. So those, this,
forces to you to present evidence on the facts, present evidence on the
elements, the causes of action arguably raise those facts.
That is what you do. That is
what we did. Its, so, its good
Summary Judgment Motion, the Courts order Granting the Summary Judgment is a
good order. ________
WorldPeace Mr. Mollestonís also in his pleadings said, tries to do a General Demurer, which you do in Federal Court in that he says, the only thing Mr. WorldPeace has is ß 1983. Well that is not true. And so Summary Judgment cannot, cannot, dismiss those other causes of action, because he says that there arenít any. Heís got to by Rule 90, heís got to do his special exceptions, there is case law that I have quoted here, heís got to do his special exceptions before the court can do a Summary Judgment. The Supreme Court says you canít dismiss on Summary Judgment without these special exceptions, so in addition to citing ß 1983 that I didnít, that was not one of my causes of action, then he says, there isnít anything else anyway. You canít do that.
Let me ask a question. You
are saying that what your allegations was is that you wanted or what you
requested was injunctive relief?
I moved in my Seventh Amended Petition, which the Court said it
considered in its Order, the last paragraph of that Seventh Amended Petition,
the last section says that I moved for injunctive relief against J.G. Molleston,
Dawn Miller, and Leigh Arneman and the Commission.
That is my point.
That is a remedy, not a cause of action.
Injunctive relief is what you get in result of a cause of action.
You are asking for that. The
question is do you have a cause of action.
And since. And yes I do.
And since he did not state the elements, any elements of that, of those
causes of action, not even one that I didnít have any evidence of, the Summary
Judgment is no good. So if youíre
saying that injunctive relief is a remedy well damages are a remedy.
He is arguing this damage thing so I sit in there and I countered that
with the injunctive relief. So we
still get back to the main elements of the causes of action and he did not put
those in there. The Summary Judgment
is no good. I mean you can go right
down his Summary Judgment and you can see that he just did not do it.
He didnít even quote any law or anything.
He just said, he got on this damages thing and he went on down the road
with the two elements of Federal damages, but nothing as to the primary cause of
action, and if he can show me that right now, where he has put those elements
anywhere in this petition, well, lets look at it, but it ainít there, because
I have been through this line by line. Rule
13, Chapter 9 & 10 intentional infliction of emotional distress, yes he did.
Constitutional claims, no.
Alright. Lets move on.
In regarding the Judgment NOV. Youíre
required to have an expert witness to prove up reasonably prudent attorney for
Rule 103(a) & (b) Texas Rules of Professional Conduct.
Are you talking about for a malpractice case?
Well the case law says that you have to have an expert witness to prove
up a reasonable prudent attorney. A
reasonably prudent attorney is used in the State Bar rules.
Now it is very difficult for me to believe that over here in the
malpractice case youíve got to have an expert witness to prove that, but over
here in the disciplinary petition you donít have to have that.
Either you have to have it, the state law is full of law that says that
youíve got to have an expert witness to testify to that and I donít think
the State Bar rules, the disciplinary rules, are exempt from that expert witness
which goes back again, everything is interrelated, to me appointing myself as an
expert to say that youíve got to have an expert witness.
He did not designate an expert witness and the Court did not let me
testify as an expert witness. Part
of that due to the fact that they were able to come in eighty days after they
filed the petition and shorten me up to one hundred days.
Not only that. Again the
Fifth Amendment, if you look at the current proposed rules for Disciplinary
Procedure, they wipe out 106(Q)4. The
reason they wipe that out, which has to do with you having the right as an
attorney not to respond to the State Bar. The
reason that they are wiping that out, is because the case law has not been
specific except again, in one of the Federal cases, where Spevic
said you cannot disbar an attorney for asserting his Fifth Amendment rights,
period. And there are some other
cases. So for the court to find
disbarment for Fifth Amendment assertions on my part, they donít have to be
verbal, is against the law. You
canít do that. And the State Bar
rules, which are not law now, the proposed rules understand that, and that is
why they struck 106(Q)4. My position
overall your honor, is pretty simple, but very complicated.
I asked the court to continue this matter before we went to trial,
because I said as part of that Motion for Continuance that this case was too
complicated and was not ready for trial. I
think that what the court has seen, post trial is that this is a complicated
case and there is more to it than just running me in, and get a jury, to say I
violated some rule violations. I
also told the court from day one that I was going to stop the State Bar because
of what they did to me ten years ago, again where they filed suit on me outside
the statute of limitations. Now they
come in outside the disciplinary rules 3.01 and file suit on me in here as
opposed to go to the Supreme Court. They
filed a Motion for Summary Judgment where they ignore 166a(i) again, the must
dicta. This case is complicated and
I understand what the court is saying about your Order of Severance, but it does
lead, the way that it is written, it does lead to a question of what the court
ordered. I also feel that Mr.
Molleston should have produced some of those documents that have to do with
3.01. I also feel very strongly that
after asking the court on
END OF TAPE 1 SIDE B
BEGINNING OF TAPE 2 SIDE A
I wonít repeat myself regarding Summary Judgment.
This case isnít complicated. Mr.
WorldPeace mistreated and abused his clients over a period of a couple of years.
Took money that didnít belong to him.
Took money and didnít do any work.
That is what this case is about. To
honor this frivolous, procedural, road block isnít justice.
It is form over substance. I
would sure ask the court not to do anything.
Likewise, the Commission for Lawyer Discipline and the
Now. I have.
Prior to this time of _____. I
have read all of the things that you have sent to me, plus the case law that I
have cited here. I have reviewed
these motions, Motion for New Trial, Motion for Judgment NOV, Motion for
Rehearing on Summary Judgment, Motion to Modify or Vacate Judgment all should be
denied. Counsel, we will go forward
I assume with this Appeal. Alright,
we are in recess.
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