BUSINESS RECORD

VOLUME 1 OF 1

Trial Court Cause No. 2002-42081

COMMISSION FOR LAWYER                   ß          IN THE DISTRICT COURT OF

DISCIPLINE                                                  ß

                                                                        ß

VS.                                                                  ß          HARRIS COUNTY , TEXAS

                                                                        ß

JOHN WORLDPEACE                                ß          269TH JUDICIAL DISTRICT

 

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POST TRIAL HEARING

PROCEEDINGS HELD ON NOVEMBER 7TH, 2003

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            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, Texas.

            Proceedings taped by digital recorder and audio cassette recorder and transcribed as a part of normal business records.


APPEARANCES

 

COUNSEL FOR THE STATE BAR OF TEXAS :

Mr. Jed Molleston

Assistant Disciplinary Counsel

State Bar of Texas

1111 Fannin, Suite 1370

Houston , Texas      77002

(713) 759-6931

and

Ms. Vicki Rudel, Legal Assistant

 

COUNSEL FOR DEFENDANT:

Mr. John WorldPeace, Pro Se

Attorney at Law

2620 Fountainview, Suite 106

Houston , Texas      77057

(713) 784-7618

and

Ms. LeAnne Lyne, Legal Assistant

 

 

PROCEEDINGS

 

            Judge Fry                    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.

            WorldPeace               Judge.

Judge Fry                    That was filed back inÖ

WorldPeace               Filed back in June your honor.

            Judge Fry                    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.

            WorldPeace               Your HonorÖ

Judge Fry                    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 September 26, 2003 .  September 26, 2003 , is the last day in which anyone can file a, an original or an amended Motion for New Trial or Motion to Modify.  They are very perfectly clear, the very first part of Rule 329(b), which indicates that, the following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments.  Therefore I will consider the motions that were previously filed, youíve got the four, which one do you want to take up first Mr. WorldPeace?

            WorldPeace               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 discovery.

Judge Fry                    An ďAĒ case on what?

WorldPeace               You have an orderÖ

            Judge Fry                    Yes.

WorldPeace               For severance and you set up an ďAĒ case.

Judge Fry                    Severing the counter, the third party claims.

WorldPeace               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

            Judge Fry                    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.

WorldPeace               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 three oíclock in the afternoon.

            Judge Fry                    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.

WorldPeace               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 that.

            Judge Fry                    I do have that.

WorldPeace               And I am going to go ahead and go to the end of that which has the Abuse of Discretion Argument on page eighteen. 

Judge Fry                    Severance?

WorldPeace               No sir.  This deals with all of these issues.  It deals with all of the motions.

Judge Fry                    Why are we dealing with the motions?

WorldPeace               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. 

Judge Fry                    Alright.

WorldPeace               So it is more a way to move through the material.

            Judge Fry                    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?

WorldPeace               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.

Judge Fry                    Ok.

WorldPeace               Oh Iím sorry.

Judge Fry                    Iím sorry.  I found it.  Iím with you.

WorldPeace               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

Judge Fry                    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.

WorldPeace               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.

Judge Fry                    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.

Molleston                  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.

Judge Fry                    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.

Court Reporter          Iím sorry judge.

Judge Fry                    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 San Antonio Court .  Weiss they basically looked at what Diaz did and said that as far as they were concerned they were not going along with Diaz _________ the allegations the Commission may bring in this Court are limited in matter described.  I think that is the one Mr. WorldPeace has decided to sit on.  There are two additional cases that deal with this.  One is Hawkins which is 988 S.W. 2d 927 the other is Favoloro 994 S.W. 2d 815; both of these cases were decided in 1999 after both Diaz and Weiss.  The point I think is important, and frankly, factually, I am not sure that any of these have the exact point that we have here.  But in discussing it the Favoloro court as well as the court on Hawkins chooses to follow the same thing that wass set out in Diaz as opposed to Weiss.  Do we have a conflict among the courts?  Sure appears to me that we do, but I, there are at least three courts, Favoloro is a Dallas case, Hawkins is an El Paso case; that seem to follow the um, what the Diaz court is indicating.  Comments.

WorldPeace               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.

Molleston                  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

Judge Fry                    Wait, wait, wait.  Mechum?  Yes.  Whatís the cite on it?

Molleston                  36 S.W. 3d 612.

Judge Fry                    Alright.

Molleston                  Um.

Judge Fry                    What did Mechum do?

Molleston                  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.

WorldPeace               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 August 20, 2002 .  Then they get two more elections I think at the end of October first week in November and then they take those three plus those other two and drop them into this case.  And I think thatís wrong.  And in addition, if this court remembers.  I designated myself after we had a hearing in December we had another hearing I believe in February, I designated myself as an expert witness after I got the video tapes from the Bar.  But when I got those video tapes I believe I was like three days from the ninety day deadline to appoint an expert witness.  And so when I pointed out to the court at pre-trial that I had designated myself as an expert witness and one of these rule violations required an expert witness, and that the State Bar had not designated an expert witness the court made a ruling that I was within the ninety day window from trial.  But all of that was there because of the short fuse on the case and it was exacerbated by the fact that they laid around for eighty days on three grievances they knew, they already had elections on and then come in.  And so, to me it is nothing but a dilatory tactic.  I believe that the intent, if you could ever figure it out, of what the Supreme Court had determined was to prevent all of this kind of nonsense you have to file those petitions with the Clerk of the Supreme Court then we the Supreme Court, we have the jurisdiction, we are going to decide what to do.  Other collateral issues.  If they file five petitions and you become the judge on three of them, can you consolidate, we donít know.  Those are questions that I have up at the Supreme Court, but the core question is can they add those petitions on and the flat out, straight up, no nonsense, statute says, no.  You have to file with the Clerk of the Supreme Court and then the Supreme Court has to appoint you to hear that case.

Judge Fry                    Alright.  Move on to the next point.

WorldPeace               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

Judge Fry                    Let me ask a question counsel.  What point is this going to?

WorldPeace               The point is judgeÖ

Judge Fry                    Because Iíve heard, so much of this Iíve already heard.

            WorldPeace               You havenít heardÖ

Judge Fry                    Move on.

WorldPeace               Ok, I donít think you have heard this part judge.  The Collins case.  Me versus Collins had a Nunc Pro Tunc Order signed on March 10, 2003 , five weeks before we started trial in this case.  Johnell Collins, in the case against me, my case against her, is required by 97(a) to file the compulsory counterclaim against me for anything she has and one of those issues, one of those things she has is restitution.  Which was filed on by the State Bar.  She did not file for restitution.  I believe it is Rule 3.14 of the Texas Rules of Disciplinary Procedure, says that the State Bar, the Commission, acquires whatever common law rights Johnell Collins has.  At the time this trial started Johnell Collins didnít have any rights to restitution, because under Compulsory Counterclaims and several cases from the Supreme Court and 97(a) she didnít file a counterclaim, so she doesnít get it.  The second issue which the Court has not considered and has not come out is that the State Bar when I answered in the 281st the State Bar responded in the 281st that list that I just gave you is nothing more than what the Court can take judicial notice of in this court of the 281st which is a county, a district court in this county, in this building, in fact I think itís just down the hall.  Mr. Molleston responded to four or five of my motions.  Mr. Molleston filed two motions of his own.  A Motion for Protection and a Plea to the Jurisdiction and his argument was to Judge Bland that you donít have jurisdiction because this jurisdiction belongs only to the Supreme Court.  Which is interesting because he is saying that 3.01 doesnít apply, but in the 281st he said only the Supreme Court can say who can hear this case.  Judge Bland signed a Motion for Protection and at the back of that is a certified copy of the JIM system here in Harris County .  The court never signed an Order regarding his Motion for a, his Plea to the Jurisdiction, which means he never got out of the 281st case.  And then the 281st signed a final judgment, it did not have a ďmother hubbardĒ clause in it.  But there is no question and there is, there is a question, was it a final order, was it not,  I have appealed that case, but the reality is that as things stand now, and the Commission hasnít filed any motions, there is a final judgment in the 281st where he appeared for the Commission, where a formal Plea to the Jurisdiction was filed and no order ever signed, so my position is not only are they barred to sue me by res judicata from Collins claims herself, as the rulings of various courts show right now this case was tried by default in the 281st.  And so he canít come in here and try the Collins matter, because it has already been officially tried in the 281st, because he did not get out of that case and there is a Final Judgment in that case.  So for two reasons, Collins, the original case is barred by res judicata. 

Judge Fry                    What was the Collins suit for?

            WorldPeace               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.

Judge Fry                    Ok.  The suit you are talking about in the 281st was not a Lawyer Discipline case?

            WorldPeace               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.

Judge Fry                    Alright.  Next point.

            WorldPeace               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 transaction.

Judge Fry                    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.

            WorldPeace               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 August 27, 2003 .

Judge Fry                    Mr. Molleston

Molleston                  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 is moot.

            WorldPeace               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 and heÖ

Judge Fry                    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 

            WorldPeace               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 table.

Judge Fry                    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 with Texas severance and separate trials and statutes and has to do with whether or not this case is moot.  This is G U A G N I N I, I wonít, versus Prudential Securities, Inc. and it is found at 872 Fed. Supp. 361 its out of the Western District of Texas, United Court .  The reason that I point it out to you all is because it has a pretty good discussion in here of the law in Texas regarding severance of separate trial.  One of the things that it points out here is the terms separate trial and severance have often been treated as synonymous, but the terms are confused or used incorrectly a separate trial order does not automatically transform into an order of severance, because the trial judge used the word sever.  Uh.  There is one other case this is called The City of Austin it is a Supreme Court case 450 S.W. 2d 836.  It is pointed out in the Opinion, it is pointed out that ______ the _____ was cited above there has been some confusion on the part of both courts and lawyers in using the term severance and separate trials.  The fact of the terms are not always used properly, and no basis, however, for treating an order for separate trials separate.  What weíve got here is a situation where in fact the only things that were severed were the things that I did by order of severance.  Which are third party claims, call them what you want, but they are third party claims, they are not parties to that suit and therefore they canít.  Those were severed, you can sever out a third party claim, thatís no problem, other than that there has been no severance.  Alright, next point.

            WorldPeace               Well your honor.  My next point is really on that point.

Judge Fry                    Ok.

            WorldPeace               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 April 23, 2003 , the Court tried the disciplinary rule violations and the Court issued an Order with a ďmother hubbardĒ clause in it.  Now the court did not, at the same time or prior, file, or sign or enter any kind of severance order.  But because there was no severance order entered that ďmother hubbardĒ clause regarding the disciplinary rules became a global Final Judgment and it was vacated.  So my position is that the Court severed that case out and did file a Final Order, but it was vacated.  Now, if you go to the Courtís Order of Severance andÖ

END OF TAPE 1 SIDE A

BEGINNING OF TAPE 1 SIDE B

            WorldPeace               Respondentís Motion to Vacate the Severance Order dated August 27, 2003 , I have a courtesy copy if you would like.

Judge Fry                    Hold on.

Court Reporter          August what Iím sorry.

            WorldPeace               August 27, 2003 .  F.  F is the Order of Severance your honor.  Exhibit F in that document.

Judge Fry                    I didnít get the exhibits, but I remember the Order.

            WorldPeace               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

Judge Fry                    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.

            WorldPeace               It says you granted his Motion for Severance, judge.  And his Motion for Severance had nothing to do with Lang and Apodaca.

Judge Fry                    I know but, that is not what it ordered.

            WorldPeace               Judge, with all do respect, it orders what it orders.  It ordersÖ

Judge Fry                    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.

WorldPeace               It grants his motion and his motion judgeÖ

Judge Fry                    Alright, move on to your next point.

            WorldPeace               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

Molleston                  Objection, this is his third shot at the same point, judge, andÖ

Judge Fry                    I, was wondering __________.  Move on.

            WorldPeace               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 August 5, 2003 , I filed an official motion to ask the Court to sever the case, because my position was even at the time Mr. Molleston filed his Motion for Summary Judgment, I didnít know what case we were dealing with.  And I have a right to know what case we are dealing with.  There was a verbal order to sever this case and nothing was done until August 27, 2003 .  So Iím objecting to the fact that the Court did not sign a Severance Order until it signed the Judgment for Disbarment which put me in a tremendous disadvantage of not knowing what to do, how to do, and further regarding Rule 41 and 174 at trial I thought we were dealing with a severed lawsuit as opposed to a separate lawsuit.  And I put in two Bills of Exception, one with regards to religious discrimination.  Now if there were separate trials I donít know that that would have even been necessary and I donít think that I would have even proceeded on in that manner.  So knowing whether the case is severedÖ

Judge Fry                    Those were Bills of Exception?

            WorldPeace               Yes sir.

Judge Fry                    Done outside the presence of the jury?

            WorldPeace               Yes sir.

Judge Fry                    Then what difference does that make if that _______?

            WorldPeace               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.

Judge Fry                    I guess what I am asking is if it didnít go to the jury what difference does it make?

            WorldPeace               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.

Judge Fry                    Alright.

            WorldPeace               And I proceeded differently than I would have, that is one instance of it, had I known that we were having separate trials.

Judge Fry                    Well lets move on to something other than the severance issue.  Frankly, I think weíve covered that.

            WorldPeace               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.

Judge Fry                    Counsel

Molleston                  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 July 28, 2003 , the final date for Mr. WorldPeace to file a pleading would have been July 21, 2003 .  That was correct in doing in the Disbarment Judgment.  Mr. WorldPeaceís confusion not withstanding, that is a dead pleading.  It was filed in an, after the time provided by the Rules of Civil Procedure for filing amendments and _______ and so it is dead, its not, and its dealt with, and it is not, an issue that is hanging, it is just gone.

            WorldPeace               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 filing thisÖ

Judge Fry                    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?

            WorldPeace               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.

Judge Fry                    How are you going to do that when they are not a party to what has been severed?

            WorldPeace               They are a party and that is back to my argument.

Judge Fry                    These are third party claims against Lang and Apodaca.

            WorldPeace               It is all one case judge.  It was one case when I filed it. 

Judge Fry                    Well.

            WorldPeace               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.

Judge Fry                    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 October 14, 1994 , the trial court heard a Motion for Summary Judgment.  It rendered and signed a Judgment, granting Summary Judgment on November 11, 1994 .  The day before trial court rendered the Summary Judgment, Automakers, U.S. _____, and Stringer filed an Amended Third Party action adding a claim for breach of settlement, compromised agreement, in the Fort Bend County lawsuit, and that is all.  It did not file a Motion for requesting leave of court to file their pleadings.  The trial court on February 21, 1995 , ok, it is well settled Summary Judgment law that a non-movant for Summary Judgment files an Amended pleading after the Summary Judgment hearing and two the Amended pleading breaks from traditional claims not mentioned in Summary Judgment Motion.  The trial court does not error in granting the Summary Judgment Motion for both pleadings on file at the time of the hearing or filed thereafter or with the permission of the court show that there are no declaration of _________.

            WorldPeace               JudgeÖ

Judge Fry                    Alright.  Move on to your next point.

            WorldPeace               Judge.  There was no severance in that case.  It doesnít matter.

            WorldPeace               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 October 14, 2003 .  I have judges that do not allow me to practice in their court, because the Judgment for Disbarment says October 15, 2003 .  I have judges that have said just what you have said, that the court doesnít have, as long as the court has plenary power there is no final judgment and I practice in those courts.  So what is happening is that there is confusion all over this court house, in the district and family courts about whether I can practice or not.  And as far as what you said earlier.  I can practice.  And we are having this hearing today, pending on what the court does, or regardless of what the court does, thereís thirty more days of plenary power that the court has to change, modify, correct, or whatever the judgment.  So the Judgment for Disbarment needs to be modified and clarified to state that I am disbarred effective the date the court loses its plenary power.  It is impossible for the court to know when that is going to be.  But the current order is just creating confusion and de facto in fact disbarring me when I am not disbarred.

Judge Fry                    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.

Molleston                  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 courtÖ

Judge Fry                    Is that the.  Let me interrupt you here.  I donít have all of the case.  Is that part the part that is supercedious?

Molleston                  Yes sir.

Judge Fry                    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.  Next point.

            WorldPeace               Well the question is whether the order has to be modified or not.

Judge Fry                    No, the court, the order does not have to be modified, it is simply not enforceable.

            WorldPeace               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 that.

Judge Fry                    Well Iíve heard all that.  Next point.

            WorldPeace               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

Molleston                  Iím going to object.  I believe counsel is reading from a document that was filed after the September 26, 2003 Ö

Judge Fry                    I think I, that was also one of the issues that was raised, that issue has been raised multiple times.

Molleston                  He didnít serve us with a motion, his initial pleadings your honor.

Judge Fry                    He served me.  Let meÖ

            WorldPeace               What initialÖ

Judge Fry                    The question of the suit within a suit was raised in pre-trial.  This, it was dealt with.

            WorldPeace               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 Disciplinary ProcedureÖ

Judge Fry                    Let me interrupt you for a second counsel.  Um.  Lavy v. Pitts, 29 S.W. 3d 353 is written by a case out in Eastland Court it indicates.  Counsel it suggests that Lavy argues that the trial court errored in granting his Motion for Summary Judgment _______ requirements of Rule 166a(i).  Claim and Summary Judgment grounds are unclear in that and that is the Rule that provides that a Motion must state the elements as to which there is no evidence.  The right to Summary Judgment grounds are unclear, a non-movant must accept the claim.  The rationale behind these cases is that the Summary Judgment practice requires parties to assert their position in writing accept as by the Summary Judgment motion must be brought to the trial courts attention before the Summary Judgment is ________.  However, ______ did not request the trial court to rule on these objections, yes no evidence of Summary Judgment on hearing for Motion on Lavyís Motion for Rehearing _____ failed to _______.

            WorldPeace               Your honor.  I did file a response to his Summary Judgment and I did say he has not listed the elements.  I did that.

Judge Fry                    _______.

            WorldPeace               This was filed on July 21, 2003 .  It starts off about the severance problem.

Judge Fry                    What day was this set for Submission?

Molleston                  JulyÖ

            WorldPeace               July 28, 2003 .  I filed it on the 21st.  Right here on page four it says that Mr. Molleston did not pled that there was no evidence as to the elements of the cause of action for injunctive relief, etc.

Judge Fry                    Well wait a minute.  Injunctive relief was a question in the late filed petition.

            WorldPeace               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 July 21, 2003 , seven days prior to the hearing, to the submission.  That is a live issue and it is not in the Summary Judgment, but.  And then on page five it, in its Motion for No-evidence Summary Judgment the Commission did not state the necessary elements for a cause of action for a violation of oneís due process rights, violation of oneís religious freedom rights, violation of oneís equal protection rights, violation of oneís right against self incrimination which wasnít even pled.  In my response I said you havenít put the elements down.  And I go on to sayÖ

Judge Fry                    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.

            WorldPeace               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.

Judge Fry                    Molleston

Molleston                  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.

            WorldPeace               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 U.S. Code ß 1983.  Who cares what he did with that.  But I want to show you how ridiculous this is.  On the last page, page twenty-one of his motion, he cites a case, and I believe it is, must be Slavin v. State Bar or Bishop v. State Bar and at the end of that case, in his own pleadings it says, as with Judge Lindsay who is in this court, that immunity from suing for damages does not extent do immunity for equitable relief.  This portion of the case must also be remanded for additional proceedings.   His own case tells him, you canít sue for damages, which I never did, so what, but you can sue for injunctive relief, which I did.  Now him coming in and citing the elements of ß 1983 and saying I canít prove it, so what, I never pled it.  The issue is on Fifth Amendment and all these other Constitutional violations, what are the elements.  I can bet you right now he canít even tell you right now what those elements are.  But there is still, even with that, the injunctive relief is sitting there.  So his Summary Judgment is just flat defective.  I did what I had to do.  Tattling.  And that Summary Judgment Order should not have been granted.  And again no response from Mr. Molleston.  No line by line response saying wait a minute, here are the elements.  Yes, heís got elements that I didnít prove up on a cause that I didnít pled.

Molleston                  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.

Judge Fry                    Let me ask a question.  You are saying that what your allegations was is that you wanted or what you requested was injunctive relief?

            WorldPeace               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.

Judge Fry                    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.

            WorldPeace               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.

Judge Fry                    Alright.  Lets move on.

            WorldPeace               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. 

Judge Fry                    Are you talking about for a malpractice case?

            WorldPeace               No.  Yes.  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 July 21, 2003 , in my Summary Judgment and asking the court formally in a Motion on August 5, 2003 , please sever the case.  Tell me what to do.  And the court didnít do it.  I really feel that was not proper.  I have a right to know that if the court doesnít believe that sever means sever then I have a right to know that.  If the court is ruling on Rule 41 I need to know that as opposed to Rule 174.  I have a right to listen to what is said.  I have a right to interpret words that are critical in the law, sever means sever, officially, statutorily, it only has to do with Rule 41 and when I didnít understand and I asked the court, tell me what is going on, sever this case, and the court didnít do it until the end.  I think that put me in a disadvantage all the way through this.  But I believe still the Judgment of Disbarment is interlocutory, because there is a Declaratory Judgment of Johnell Collins and some other things that are still hanging out there.  I believe it is interlocutory because it incorporates a Summary Judgment that did not meet Rule 166a(i) and gave more relief than could be granted.  And so there is several, many reasons that that Judgment for Disbarment is interlocutory and I believe that the court needs to re-write that order I still believe, as I said last time when we came in here, this is a night mare to go up to the Appeals Court, because there is questions about severance, there is questions about all kinds of things.  So I am asking the Court at a minimum to do another Judgment for Disbarment, take into consideration all the stuff that is here not put in there that I am disbarred to until the plenary power ending, because it does nothing but create confusion.  So that is where we are.  I believe I have enough stuff here especially with the Summary Judgment those issues didnít get tried, they did not get adjudicated, heís been here, he knows what is in his motion, he hasnít shown you anywhere in there where he put the

END OF TAPE 1 SIDE B

BEGINNING OF TAPE 2 SIDE A

Molleston                  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 Harris County legal community is forced to deal with this man, we need closure in this case.  And what that means Judge is that we strongly request that you not sign any new judgments, or waist any more time to file Motions for New Trial, or anything other than taking the Appeal up and seeing what happens.  Weíve all done our best, yourself more so that the Petitioner in this matter.  And it is time that we have a Judgment that can be enforced so we can _______ a Final Judgment.  Thank you.

Judge Fry                    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.

_______________________

(Conclusion of Hearing)

 


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