Lincoln | Feb 17 Order Denying Recusal Etc

IN THE UNITED STATES DISTRICT COURT · I I,. ' . ' ; ~ l'j ~ I FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION .' ", i 7 r'.:',: S2 r

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AAMES CAPITAL CORPORATION, Plaintiff, Case No. A-04-CA-614-SS

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CHARLES EDWARD LINCOLN, Defendant.

ORDER

q, BE IT REMEMBERED on the ~day of February 2005 the Court reviewed the file in the above-styled cause, and specifically Charles Edward Lincoln's "Motion to Recuse the Honorable Sam Sparks" l#59 filed January 31, 2005], and thereafter, enters the following: This is the second motion to recuse filed by Charles Edward Lincoln in the above-styled case. In light of the inappropriate conclusions and allegations made by pleading and affidavit, the undersigned believes that a little history is necessary. On July 31, 1997, the Honorable James R. Nowlin entered an order requesting an investigation by the Admissions Committee of the Western District of Texas (Austin Division) regarding Charles Edward Lincoln's conduct. Judge Nowlin apparently had concerns about Mr. Lincoln's conduct as a practicing lawyer in cause numbers A-97-CA-164, A-97-CA-221, A-97-CA290, and A-96-CA-579. The committee did investigate, interviewed witnesses, took sworn testimony, and repOlted its findings and the evidence supporting the same to Judge Nowlin on or before December 2, 1997. On this date, Judge Nowlin entered an order acknowledging the receipt of the investigation and the recommendation of the Admissions Committee that Charles Edward Lincoln's license to practice law in the Western District be terminated. On December 2, 1997, Judge

Nowlin entered an order notifying Mr. Lincoln of these facts and setting an evidentiary hearing for January 21, 1998, regarding the recommendations of the Admissions Committee. On January 20, 1998, Charles Edward Lincoln and his then counsel filed a motion to recuse Judge Nowlin, alleging in both pleadings and an affidavit that Judge Nowlin was biased and prejudiced against Mr. Lincoln. The motion to recuse was filed on the aftel1100n before the evidentiary hearing, set since December 2,1997. Judge Nowlin simply assigned the case to the undersigned in cause number A-98-CA-071. On January 21, 1998, an evidentiary hearing was held, and Mr. Lincoln appeared, was represented by counsel, and testified in said hearing. On February 13, 1998, the undersigned entered an order in A-98-CA-071 terminating the license of Charles Edward Lincoln to practice in the Westel11 District of Texas. A copy ofthat order is attached to this order for reference purposes only. Charles Edward Lincoln appealed the order of February 13, 1998, and the United States Court of Appeals for the Fifth Circuit affirmed the termination ofMr. Lincoln's license to practice law in the Westel11 District of Texas on February 8, 1999. At some time subsequent, the Clerk of this Court received a notice from the State Bar of Texas that Charles Edward Lincoln had been disbatTed and could no longer practice law in the courts of the State of Texas. The undersigned was advised that Mr. Lincoln had been convicted of some criminal offense. However, the undersigned does not know any of the particulars of the alleged disbarment by the State Bar of Texas or of any criminal conviction of Mr. Lincoln. The next contact the undersigned had with Mr. Lincoln was his conduct as a "paralegal" in cause number A-03-CA-896. This was a lawsuit wherein the plaintiffs were represented by Valorie Davenport and Francis Montenegro. The case was assigned on June 29, 2000. It was clear from the

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pleadings Mr. Lincoln was preparing the pleadings and working with these lawyers and his presence in the courtroom was noted. Notwithstanding that this lawsuit requested injunctive relief and substantial damages against the Austin Community College and the Austin Independent School District, counsel for the plaintiff failed to comply with discovery and orders of the Court and ultimately the case was dismissed on July 16, 2004, forfailure to diligently prosecute the case. There was no appeal. On May 6, 2003, the undersigned was assigned the case of Aames Capital Corporation v.

Charles Edward Lincoln, A-03-CA-282. This case was removed by Mr. Lincoln from the state court to the federal court on May 6, 2003. Mr. Lincoln was representing himself pro se. The pleadings indicated Mr. Lincoln had applied for and obtained a loan, received the money, executed a mortgage on certain property to secure the payment of the loan, failed to pay the loan, and the holder of the mortgage wanted a declaratory judgment ofMr. Lincoln's liability. Notwithstanding the issue to be litigated was Mr. Lincoln's liability under the note, Mr. Lincoln, by third-party action, sued his former counsel, John F. Campbell and d/b/a the Law Firm of John F. Campbell, P.c. d/b/a Campbell & Morgan, P.c.; another lawyer, Mark Clemens; and One Stop Mortgage, Inc. On June 19,2003,

Mr. Lincoln filed a motion to recuse the undersigned on the same theories and grounds he had pleaded against Judge Nowlin, that is, that the presiding judge was biased and prejudiced against him. The motion to recuse was referred to the Honorable HatTy Lee Hudspeth on June 30, 2003, and Judge Hudspeth entered his order on July 15,2003, denying the motion to recuse. As the time for trial came forth in cause number A-03-CA-282, all third-party defendants were dismissed and the remaining parties, Aames Capital Corporation and Charles Edward Lincoln, announced a settlement and jointly asked for a dismissal with prejudice, which was entered on February 5,2004. There was

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no appeal, and this became a final judgment. However, subsequently, pleadings were filed by Aames Capital Corporation requesting the re-opening of the file, alleging Mr. Lincoln had breached the settlement agreement and no payment on the promissory note had been made. The Court declined to re-open the case because of the law of the Circuit and granted Mr. Lincoln's motion to strike the pleadings of Aames Capital Corporation to re-open. On June 22, 2004, in the above-captioned cause, Aames Capital Corporation sued Charles Edward Lincoln for the alleged breach of the settlement agreement involved in A-03-CA-282. Again, Mr. Lincoln started suing third-party defendants, including Corinne Irwin, Corinne Irwin Foundation, Mack Ray Hernandez, Fred Miller, Karl Shackelford, Arthur Stone, Karen Stone, and John and Jane Does 1-13. Subsequently, he also filed third-party petitions against Glenn J. Deadman and Glenn 1. Deadman, P.c., counsel of record of Aames Capital Corporation; and one of its employees, Deborah H. Gershon. After reviewing volumes of pleadings filed by Mr. Lincoln, this Court entered a scheduling order on December 9, 2004, setting, among other things, trial for May 2005. Thereafter, on December 29, 2004, Mr. Lincoln continued his traditional practices for delay and filed his first of two motions to recuse the undersigned. He then filed a motion to stay on January 3, 2005. The first motion to recuse was denied by the undersigned on January 6,2005. However, on January 31,2005, Mr. Lincoln filed a second motion to recuse, attaching his own affidavit setting forth his opinions and conclusions regarding the alleged bias and prejudice of the undersigned against him. Mr. Lincoln is an intelligent person with an above-average legal education and experience. He well knows what he is doing and does no act without deliberate intentions. His personal involvement in the cases on this docket results in the issues and the number of parties becoming

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more numerous and complicated and extreme difficulty in getting to a trial on the merits to conclude the cases. Mr. Lincoln is prolific in filing motions, advisories, and lengthy pleadings. Ironically, other than oven'uling his motions for recusal and ordering Mr. Lincoln to comply with discovery, the undersigned has ruled in his favor more times than not. I personally harbor neither bias, prejudice nor, in fact, ill will toward Mr. Lincoln. There is no question Mr. Lincoln takes up an inordinate amount of time with his voluminous pleadings, theories and causes of action which bear no fruit and multiple hearings on discovery and other matters primarily to avoid trial and judgment. Mr. Lincoln's conduct has resulted in his successfully remaining for years on the property which is the subject of the mortgage without making any payment on the promissory note, the signing of which netted him substantial monies. Of course, Mr. Lincoln is not the only litigant and not even the only litigant in multiple cases who has appeared before the undersigned attempting to use the judicial system for his own purposes and to delay a trial and entry of judgment. Further, on this date was presented Mr. Lincoln's latest pleading, a Motion to Quash a Subpoena Duces Tecum and a Motion for Protective Order. Mr. Lincoln has declined to appear pursuant to a notice to give his sworn testimony by deposition in this case and asserts and re-asserts all sorts of defaults and reasons for not proceeding with discovery and requesting a protecti ve order, which is neither necessary nor meritorious. On December 9,2004, this Court entered its scheduling order allowing discovery before February 21,2005, and setting the case for trial in May 2005. There is absolutely no reason that Mr. Lincoln cannot be deposed nor is there any reason a subpoena duces tecum could not be served on him or a motion to produce documents could not be served on him.

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Mr. Lincoln should be given ten days notice to comply with either a deposition or providing documents under a subpoena. Because it is additionally clear Mr. Lincoln intends to attempt to use the judicial process and this particularjudge (who unfortunately has witnessed Mr. Lincoln's conduct in previous cases over which he has presided), the Court will not permit this as the basis for any further delay of trial nor any delay after trial as an issue on appeal. Therefore, the Court enters the following orders: IT IS ORDERED that the Motion to Stay is DENIED. IT IS ORDERED that the Motion to Quash a Subpoena Duces Tecum and Motion for Protective Order are DENIED. IT IS ORDERED that the parties shall continue to follow the scheduling order of December 9,2004, with the following exception herein ordered: IT IS FURTHER ORDERED this case is specially set for jury selection at 9:00 a.m. on May 9,2005, and trial immediately thereafter. All statement of contentions, witness and exhibit lists, motions in limine, and requested jury instructions and verdict forms are to be filed by April 24, 2005. IT IS FINALLY ORDERED that this case is assigned to the Honorable Lee Yeakel to hereafter preside over this case and the trial beginning at 9:00 a.m. on May 9,2005. SIGNED this the

-'J-*day of February 2005.

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