Opinion
02-23-00143-CV
05-12-2023
In re Samuel Kadyebo, Relator
SAMUEL KADYEBO PRO SE
Original Mandamus Proceeding from County Court at Law No. 1 at Tarrant County, Texas Cause No. 2023-002125-1, the Honorable Don Pierson
SAMUEL KADYEBO PRO SE
MOTION FOR EN BANC RECONSIDERATION OF ORIGINAL PETITION FOR MANDAMUS and MOTION TO STAY WRIT OF POSSESION
EMERGENCY STAY OF WRIT OF POSSESION REQUESTED
TO THE HONORABLE SECOND COURT OF APPEALS:
Pursuant to Tex.R.App.P. 49.5 and 41.2(c), the Relator, Samuel Kadyebo, files this his "Motion For En Banc Reconsideration of Original Petition for Mandamus and Motion to Stay Writ of Possession" as follows:
INTRODUCTION
The standard set forth in TRAP 41.2(c) regarding an appellate court's en banc consideration of a case speaks to "extraordinary circumstances requiring en banc consideration." The panel's opinion - denying this Relator's mandamus cause of action - is strangely shrouded in a problem called 'the opacity of law' i.e., A legal text, such as a statute or regulation, becomes opaque if a legal authority is not able to grasp its full linguistic content but is nevertheless in a position to use it. This 'opacity of law' phenomenon/characteristic of the panel's opinion illustrates this case to be worthy of the additional analyses to be obtained from the full court. Here the issue reduces to what action or absence of action by the judge of a Texas State court i.e., the Respondent, constitutes an actual or constructive denial of Relator's rights in violation of the Due Process Clause of the U.S. Constitution. United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) ("The right to a tribunal free from bias or prejudice is based, not on section 144, but on the Due Process Clause.").
Relator believes it to be an extraordinary circumstance that the panel's opinion shows that no Texas appellate court has addressed this issue of TRCP Rule 507.1 Plenary Power - A justice court loses plenary power over a case when an appeal is perfected - in terms of protecting the "due process" rights of a non represented litigant - like the Relator - as guaranteed under the Due Process Clause of the United States Constitution. Or does a manifest "fraud upon the court" count as a legitimate/lawful exemption to TRCP Rule 507.1. "Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. "Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final."
The Supreme Court has also held that if a judge wars against the Constitution, or if he acts without jurisdiction, he has engaged in treason to the Constitution. If a judge acts after he has been automatically disqualified by law, then he is acting without jurisdiction, and that suggest that he is then engaging in criminal acts of treason, and may be engaged in extortion and the interference with interstate commerce. Should a judge issue any order after he has been disqualified by law, and if the party has been denied of any of his / her property, then the judge may have been engaged in the Federal Crime of "interference with interstate commerce".
STAMENT OF FACTS AND THE LAW
1. To be entitled to mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A court abuses its discretion if it refuses to perform a ministerial act, clearly fails to correctly analyze or apply the law, or reaches an arbitrary or unreasonable decision. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). Relator is without an adequate appellate remedy because the ORDER authorizing immediate issuance of writ of possession - is arbitrary and is also an unreasonable decision under the Texas law enshrined in TRCP Rule 507.1 - violates Relator's rights under the Due Process Clause of the U.S. Constitution. (See EXHIBITS: A& C).
2. This matter was first introduced at the appellate level on 9/12/2022 as County Court at Law Case No. 2022-005407-1 and thus has now morphed into County Court at Law Case No. 2023-002125-1 (See EXHIBTS: A, B &D). The Respondent entered a final order in this matter on February 28, 2023 and thus subject to TRCP Rule 507.1 i.e. County Court at Law Case No. 2023002125-1 has already been closed-out by the final order in County Court at Law Case No. 2022005407-1, because TRCP Rule 507.1 bars County Court at Law Case No. 2023-002125-1 from ever happening - so as protect Relator's "Due Process" rights - thus this new "writ of possession" order in this matter reflects a conflict of/in law whereof is a clear failure to correctly analyze or apply the law, and thus thereof Respondent has to reach an arbitrary or unreasonable decision. (See EXHIBIT: A, B &D); See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).
3. No such "Plaintiff has given Defendant proper notice of such failure" as assumed in the judgment actually exists in the record, but also since - as Respondent ought to know - it would have been irrelevant if applied on a VOIDED legal premise as a matter of law and thus furthermore the nature of this order violates Tex.R.Civ.P. 505.1 (See EXHIBITS: A &D).
4. A judgment is final for purposes of appeal where it either (1) actually disposes of all parties and claims at issue in the lawsuit, or (2) expressly states that it disposes of all claims and parties in the lawsuit even if it does not actually do so. Farm Bur. Cty. Mut. Ins. v. Rogers, 455 S.W.3d 161, 163 (Tex. 2015); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001). (See EXHIBITS: A& B).
5. On April 10, 2023 Relator - in facilitating a final VACATING judgment in this matter -submitted a motion for summary judgment to be done by SUBMISSION i.e. some seventeen days before the Respondent entered the judgment for "writ of possession". The Relator's motion for summary judgment raised issues for which a court ought VACATE a judgment as a matter of law i.e. if a party or their attorney engaged in fraud, misrepresentation or misconduct. "Fraud upon the court" makes void the orders and judgments of that court. It is also clear and well-settled Illinois law that any attempt to commit "fraud upon the court" vitiates the entire proceeding. The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) ("The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions. "); Allen F. Moore v. Stanley F. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) ("The maxim that fraud vitiates every transaction into which it enters ..."); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) ("It is axiomatic that fraud vitiates everything."); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Thomas Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935). Under Illinois and Federal law, when any officer of the court has committed "fraud upon the court", the orders and judgment of that court are void, of no legal force or effect (See EXHIBITS: A, B &C).
6. Texas courts have held that "If there is any doubt as to a judgment's finality, the question must be resolved by determining the trial court's intention as gathered from the language of the order and the record as a whole, 'aided on occasion by the conduct of the parties.'" American Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 870(Tex. App.-Dallas 2014, no pet.) (citing Vaughn v. Drennon, 324 S.W.3d 560, 563 (Tex. 2010) (per curiam)). (See EXHIBTS: A, B, C, D &E).
7. From Relator's point of view, the Respondent order of April 28, 2023 reflects an unlawful 'bias' in this matter i.e. Relator's motion for summary judgment was filed on April 10, 2023 and remains undecided but that of the other party filed on April 21, 2023 has a confusing partial determination in violation of a previous final order/judgment pursuant to TRCP Rule 507.1 and thus thereof also in violation of Relator's guarantees under the Due Process Clause of the U.S. Constitution. Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement, only the appearance of partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or prejudice but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985). (See EXHIBITS: A, B, C& D).
8. The failure to decide the Relator's motion for summary judgment before entering judgment for writ of possession in this matter is not only a clear manifestation of Respondents 'bias' but also a failure in ministerial duty by Respondent i.e. An act is ministerial if it does not involve the exercise of discretion. See State ex rel. Hill v. Court of Appeals for the Fifth District, 34 S.W.3d 924, 927 (tex.Crim.App2001). A court abuses its discretion if it refuses to perform a ministerial act, clearly fails to correctly analyze or apply the law, or reaches an arbitrary or unreasonable decision. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).
WHEREFORE PREMISES CONSIDERED, Relator Samuel Kadyebo prays that this his "Motion For En Banc Reconsideration of Original Petition for Mandamus and Motion to Stay Writ of Possession" be granted, and further prays for any such other relief to which he is entitled to at law or in equity.
VERIFICATION/DECLARATION OF SAMUEL KADYEBO
I, Samuel Kadyebo, hereby declare:
1. I am a resident at CENTENNIAL COURT and have been so since August 1st 2017. I am over twenty-one years of age and of sound mind. I have never been convicted of a crime. I am competent to testify and have personal knowledge of the facts stated in Relator's "Motion For En Banc Reconsideration of Original Petition for Mandamus and Motion to Stay Writ of Possession".
2. I have read the Relator's "Motion For En Banc Reconsideration of Original Petition for Mandamus and Motion to Stay Writ of Possession". The facts stated therein and evidence attached hereof are true and correct.
My name is Samuel Kadyebo, my date of birth is June 20, 1962, and my physical address is 801 Bering Drive, Unit 1123, Arlington Texas 76013. I declare under penalty of perjury that the foregoing is true and correct.
Executed in Tarrant County, TX, on the 12th of May, 2023.
Samuel Kadyebo
EXHIBIT: A
CENTENNIAL COURT
V.
SAMUEL KADYEBO AND ALL OCCUPANTS
NO. 2022-005407-1
MARCH 1, 2023
IN THE COUNTY COURT AT LAW NUMBER ONE OF TARRANT COUNTY, TEXAS
ORDER OF DISMISSAL
AFTER DUE NOTICE AS REQUIRED BY RULES OF CIVIL PROCEDURE AS AMENDED, IT IS THE ORDER AND DECREE OF THE COURT THAT THIS CAUSE OF ACTION BE DISMISSED FOR WANT OF PROSECUTION AT THE COST OF PLAINTIFF AND LET EXECUTION ISSUE FOR COSTS.
SIGNED ON THIS THE 28TH DAY OF FEBRUARY, 2023
JUDGE DON PIERSON COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY, TEXAS
EXHIBIT: B
17. Lastly, there is another de novo appeal of a forcible detainer action between the same parties that the JP Court No. 2 finalized on March 14, 2023, under Cause No: LP02-E00141472, which will be heard by this Court in the near future. Thus, the tenets of judicial economy demand that the motion to reinstate be denied and the dismissal of this action be confirmed.
18. Therefore, the Court should deny the motion to reinstate and confirm the dismissal of this action.
RESPONSE IN OPPOSITION [3] MLG No: 23-01377
PRAYER
19. WHEREFORE, Plaintiff prays the Court deny Tenant's motion to reinstate, confirm the matter is dismissed, and for all other relief Court deems appropriate
Respectfully submitted, MARINOSCI LAW GROUP, P.C. Sammy Hooda / SBN: 24064032 16415 Addison Road, Suite 725 Addison TX 75001
EXHIBIT: C
CENTENNIAL COURT Plaintiff(s)
V.
SAMUEL KADYEBO Defendant
COUNTY COURT AT LAW CASE NO. 2023-002125-1
IN THE COUNTY COURT AT LAW NUMBER ONE TARRANT COUNTY, TEXASDEFENDANT'S MOTION FOR SUMMARY JUDGMENT
COMES NOW, Samuel Kadyebo, "Movant" and here after as Defendant herein, and files this his DEFENDANT'S MOTION FOR SUMMARY JUDGMENT pursuant to Tex R. Civ P. 166a(b) - against Plaintiff - in the above referenced cause as follows:
FACTS AND THE LAW
1. Texas has long required lawyers to certify that a lawsuit is not groundless and is not brought in bad faith, to harass a defendant, or to delay or increase the cost of litigation. In Texas, the rules governing procedures for lawsuits can be implemented in two ways: through bills passed by the Texas Legislature or through rules of civil procedure created by the Texas Supreme Court. Texas uses a common-law system. In a common-law system, decisions from high courts are binding on lower courts - a concept known as setting a precedent. Case law is derived from these past decisions made by the courts. Frivolous or groundless lawsuits are those that are not based on facts or the law and these cases can be expensive, stressful and time consuming for those fighting them.
The Legislature has declared that if a court determines that a pleading is groundless and filed for an improper purpose-to harass, cause delay or increase cost-the court is required to impose a sanction that could include striking the pleading, dismissing the party's case or ordering the offending person to pay the other side's expenses and attorney's fees. Under texas law, signing a pleading certifies to the best of the signer's knowledge that: the pleading is not being presented for any improper purpose, including to harass or cause unnecessary delay or needless increase in the cost of litigation, each legal contention is warranted by the law, each allegation about facts has evidentiary support; and each denial of a factual contention is warranted on the evidence
2. This cause: County Court at Law Case No. 2023-002125-1, is a result of a 'spoliation' tool/invention in this matter by Plaintiff - disguised as a new Plaintiff case JP02-23-E0014I472 - so as to nullify this Court's due appellate authority hereof under TRCP Rule 507.1 as represented/confirmed by this Court's County Court at Law Case No. 2022-005407-1 (see EXHIBITS: A and O). This Court closed out County Court at Law Case No. 2022005407-1 on February 28, 2023 by ordering Plaintiff to 'pay' and thus this County Court at Law Case No 2023002125-1 has effectively been decided - as a matter of law - pursuant to this Court's ORDER on February 28, 2023 in County Court at Law Case No. 2022-005407-1.
3 To disguise and bring Plaintiffs case JP02-23-E00141472 as a new case filed on February 9, 2023, Plaintiff used Ms. Keres Garrett who is not a licensed attorney or attorney of record in this matter so as to circumvent the law in this matter as imposed from a lawyer's perspective pursuant to TRCP Rule 507,1 Plenary Power[s] (see EXHIBIT I). Than on February 27,2023, Plaintiff was represented by a masquerading trajon horse attorney - whose 'identity' is 'hidden' because he is unnamed/unknown in this matter as an attorney of record; Section 81.115 of the Texas Government Code, . attorney profile information is required to be provided to the public - so as to delude/derail to Justice of Peace Court process and thus to defraud and steal S7239.90 - which constitute[s] a theft under the Texas Theft Liability Act and for damages resulting from theft of property and theft
EXHIBIT: D
CENTENNIAL COURT
V.
SAMUEL KADYEBO AND ALL OCCUPANTS
2023-002125-1
COUNTY COURT AT LAW NO. 1 TARRANT COUNTY, TEXAS
ORDER
Authorizing Immediate Issuance of Writ of Possession
Came before the Court Plaintiff's (sworn) Motion for Default for Tenant's failure to pay rent Into the Court Registry. After considering such Motion, the Court finds that Defendant has not paid rent into the Court as ordered by the Justice Court, that Plaintiff has given Defendant proper notice of such failure, that Defendant is therefore in default, and that Plaintiff is entitled to judgment for the immediate issuance of a writ of possession for the Premises.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Plaintiff have judgment for the immediate issuance of a writ of possession of the subject Premises, 801 Bering Drive, Apt 1123, Arlington, Texas, 76013, which may not be executed before the sixth day after the writ is issued.
This is not a final order
SIGNED April 28, 2023.
Don Pierson, Judge Presiding
EXHIBIT: E
PRAYER
WHEREFORE, Plaintiff prays the Court grant this Motion, enter Judgment in favor of Plaintiff for possession of the premises, issuance of a writ of possession to enforce the said
Motion Summary Judgment [6] MLG No: 2023-002125-1 judgment, for all cost of Court, together with the Judgment the issuance of all such writs and processes necessary to enforce the judgment. Additionally, Plaintiff requests a judgment for Plaintiff, and against Defendant(s) for unpaid rents totaling $5,274.00 (Five Thousand Two Hundred Seventy-Four Dollars and 00/100), plus interest at the statutory rate. Strictly in the alternative, Plaintiff prays the Court grant partial summary judgment on all issues that are not in genuine dispute And for all other relief the Court deems appropriate.
Respectfully Submitted, MARINOSCI LAW GROUP, P.C. Sammy Hooda/ SBN: 24064032 Arnetta J Porter / SBN: 24107899 The Charter 16415 Addison Rd., Suite 725 Addison, TX 75001 Telephone: (972)331-2300 Facsimile: (972) 331-5240 shooda@mlg-defaultlaw.com aporter"mlg-defaultlaw.com Attorneys for Plaintiff