HIED/N 'STCOURTOFAPPEAR HOUSTON, TEXAS CAUSE NO 01-15-00066-CV MAR 10 2015 IN THE "WOPHPRK CHRISTOF PR,NE
FIRST COURT OF APPEALS
HARRIS COUNTY TEXAS
PATRICK OLAJIDE AKINWAMIDE
APPELLANT
V
TRANSPORTATION INSURANCE COMPANY
CNA INSURANCE COMPANY AND
AUTOMATIC DATA PROCESSING INC.
APPELLEES
FROM THE 80th DISTRICT COURT OF HARRIS COUNTY, TEXAS
MOTION FOR AN ORDER TO INCLUDE THE APPEAL FROM THE TRIAL
COURT'S ORDER OF OCTOBER 3,2014 IN APPELLATE CASE NO 01-15-00066 CV
PATRICK OLAJIDE AKINWAMIDE, PROSE 2151 SOUTH KIRKWOOD ROAD, #295 HOUSTON, TEXAS 77077
(832) 620-9345 TO THE HONORABLE JUSTICES OF SAID COURT:
The Appellant, Patrick Olajide Akinwamide files his motion to the Court for an order to include the appeal from the Trial Court's order of October 3,2014 in Appellate Case No. 01-15-00066-CV. On January 15,2015 a letter of assignment from the 80th District Court Trial Court Clerk and a copy of the notice of appeal filed by the Appellant, Patrick Olajide Akinwamide in the Trial Court was received by the First Court ofAppeals and docketed as Cause No. 01-15-00066-CV.
Appellant's notice of appeals filed with the District Clerk on November 25, 2014 includes appeals from the orders of October 3,2014 and November 4,2014. See attachment 'A' and hereby incorporated by reference. According to the First Court ofAppeals order on motions dated March 3,2015, the Appellant's appeal from the Trial Court's order of October 3,2014 was not included in the Appellant's appeals, pursuant to the Tex. Civ. Prac. & Rem. Code §§ 11.101,11.102 and the mandate ofthe Court issued on May 13,2013.
First, there was no notice filed by any party with the clerk and served on Plaintiff, Patrick Olajide Akinwamide and other parties in Cause No. 97-48526 stating that the Plaintiff I a vexatious litigant required to obtain permission under CPRC §11.102. See CPRC %\ 1.1035(a).
Second, Appellant, Patrick Olajide Akinwamide obtained an order from the appropriate local Administrative Judge described by CPRC §11.102(a) permitting the filing of appeals from the orders ofOctober 3,2014 and November 4,2014. See CPRC§11.1035(b); See also, attachment 'B' hereby incorporatedby reference.
Third, the Trial Court, and the Trial Court's Clerk (District Clerk) do not have the authority to withhold an appeal from being forwarded to the Court ofAppeals once the notice of appeal is filed and stamped. See CPRC §11.1035. Also, the Trial Court and the Trial Court's Clerk (District Clerk) do not have the authority to remove any part of the notice of appeal. The second page to the Appellant's notice of appeal, which is the signature page, was removed from the notice of appeals. See attachment 'C' hereby incorporated by reference.
Fourth, appellant filed with the Trial Court Clerk (District Clerk) requests and supplemental request to include the complete notice of appeals filed November 25, 2014 and the "Plaintiffs Motion to Correct the Omission of Automatic Data
Processing Inc. and CNA Insurance Company from the style of Cause No. 97*48526 in the Court's Order of October 3,2014 without success. The First Court ofAppeals should take judicial notice in the record ofthis appeal.
Fifth, the Trial Court's order of October 3,2014 and the Plaintiffs motion to correct the order filed October 9,2014 preceded the order declaring Plaintiff a vexatious litigant. As such, CPRC §§11.101,11.102 would not bar Appellant's appeal from the Trial courts order of October 3,2014. See attachment 'D' and hereby incorporated by reference.
Sixth, the First Court ofAppeals should consider the Appellant's appeal from the Trial Court's order of October 3,2014 because Appellant challenges the Trial Court's jurisdictional power under the Texas Workers' Compensation Act over the claim for compensation in Cause No. 97-48526. Jurisdiction, once challenged, cannot be assumed and must be decided. See Main v Thiboutot 100 S. CT. 2502 (1980). A Court cannot confer jurisdiction where none existed and cannot make a void judgment valid See Old Wayne Mut. L. Ass 'nv McDonough, 204 U.S. 8, 27, S. CT. 236 (1907).
The Trial Court lacked the jurisdictional power under the Texas Workers' Compensation Act over the claim for compensation when the final judgment was 3 signed August9,2000 in CauseNo. 97-48526. The Appellee's employer, Automatic Data Processing Inc. failed to provide proofofits Workers' Compensation Insurance Policy to establish itself a a subscriber under the Texas Workers' Compensation Act at the time of Appellant's work-related injuries. See attachment 'D', andhereby incorporated byreference. This attachment 'D' is offered as exhibit 'A' to the "Plaintiffs Motion to Correct the Omission ofAutomatic DataProcessing Inc in the Court's Order ofOctober 3, 2014" andalsopart ofevidence admitted in the show cause hearing.
TheTexas Workers' Compensation Actrequires the proofof the employer's Workers' Compensation InsurancePolicy to establishthe employeras a subscriber under the Texas Workers' CompensationAct at time ofemployee's work-related injuries, before the Act can take effect or be appliedto a claim for compensation. See Tex. Rev. Civ. Stat. Ann. Arts. 8306-8309, 8306, §4, 8308 §§19, 20, 8309, §1; See Middleton v Texas Power & Light Co., 249 US. 152, 153-54, 39 S. CT. 227, 63 L. Ed 527 (1919); Paradissis v Royal Indemnity Co., 507 S. W. 2d 526, 529 (Tex. 1974); Guerrero v StandardAlloys Mfg. Co., 598 S.W. 2d 656, 657 (Civ. App.-Beaumont 1980, refdnr.e.); Johnston Testers vRangel, 435 S.W. 2d 927, 930, 931 (Tex. Civ. App. San Antonio 1968 ref n.r.e.); Aerospatiate Helicopter v Universal Health 778 S W. 2d 492 (Tex. App.-Dallas 1989, writdenied)
The Appellee-employer, automatic Data Processing Inc. did not provide any proof of its Workers' Compensation Insurance policy at the time ofAppellant's work- related injuries to establish itself as a subscriber under the Texas Workers' Compensation Act. See exhibit 'A'there is no proof or evidence in Cause No. 97- 48526 that the employer, or any ofthe defendants provided proof ofAutomatic Data Processing Inc's Workers' Compensation Insurance Policy at the time ofPlaintiffs work-related injuries. 4 Because the legislature did not authorize the Trial courtto grantreliefsought in theAppellant's claim for compensation, the Trial Court lacked jurisdictional power over the claimfor compensation. See Tex. Rev. Civ. Stat. Ann Art. 8306§4; Metro Transit Auth. v Jackson, 212 S.W. 3d 797, 801 (Tex. App.-Houston [1st Dist.] 2006, Pet denied).
The lack of subject matter jurisdiction is fundamental error. See Saudi v Brieven 16S. W. 3d 108, 110 (Tex. App.-Houston [1st Dist.] 2004, no Pet). Thetest for subject matter jurisdiction is whether the courthas power to enterthejudgment upon an inquiry and not whetherits conclusion is correct. See Dioceses ofGalveston- Houston vStone, 892 S. W. 2d169, 174 (Tex. App.-Houston [14th Dist] 1994, Org proceeding). Thejury finding and verdict upon which the Trial court's final judgment was based is immaterial withoutproof ofthe employer, automatic Data Processing Inc.'s Workers' Compensation Insurance policy at the time of Appellant's work- related injuries. See Guerrero v StandardAlloys Mfg. Co., 598 S. W. 2d 656, 657 (Civ. App.-Beaumont 1980, Refd n.r.e.); Johnston Testers v Rangel, 435 S.W. 2d 927, 930, 931 (Tex. Civ. App.-San Antonio 1968refd n.r.e.); Aerospatiate Heleicopterv Universal Health 778S.W. 2d 492 (Tex. App. Dallas 1989, writ denied).
At the same time, in order to claim a right to protections afforded an employer under the Workers' Compensation Act, the Appellee, automatic Data Processing Inc must provide Appellant with actual or constructive notice that the employer, Automatic Data Processing Inc. provided compensation for injuries sustained in the course and scope ofemployment. See Tex. Rev. Civ. Stat. Ann. Art8308, §§19, 20; Regalado v HE. Butt Grocery Co., 863 S.W. 2d 107, 110 (Tex. App.-San Antonio 1993, no writ); Rodriguez v Martin Landscape Management, Inc., 882 S.W. 2d 602, 606 (Tex. App.- Houston [1st Dist] 1994, no writ); Ferguson vHospital Corp. Int'l, 769 F. 2d268, 271-72 (5th Cir. 1985). 5 CERTIFICATE OF SERVICE
I certify that a true and correct copy of the forgoing instrument was delivered via certified mail, return receipt requested or hand delivered to all counsels ofrecord on this the 10*day ofMarch 2015.
Mr. Jeffrey L. Diamond TX Bar No. 058025000 1010 San Jacinto Street Houston, Texas 77002 Attorney ofRecord for Transportation Insurance Company, CNA Insurance Company and Automatic Data Processing Inc.
Court Clerk Attention: The 80* District Court 201 Caroline, 9th Floor Houston, Texas 77002
Harris County District Clerk Attention: Civil/Family Post Trial 201 Caroline, 2nd Floor Houston, Texas 77002
Patrick Olajide Akinwamide, ProSe 2151 S. Kirkwood Rd., Apt. 295 Houston, TX 77077 Tel: (832) 620-9345 ATTACHrntrVT 'A
DiST^icr (Luetic 01M r40vfo'Vfet£/£-5,2.oif Cause No. 97-48526
Patrick Olajide Akinwamide § In the District Court of
vs § Harris County, Texas
Transportation Insurance Company § 80th Judicial District
CNA Insurance Company, and §
Automatic Data Processing Inc. § FILED ftftftSl NOV 2 5 2014 Timet. luiil»d!ounty,TMar NOTICE OF APPEAL Dopirty"
TO THE HONORABLE COURT:
Patrick Olajide Akinwamide, Plaintiffin the above Styled and numbered Cause, gives notice ofhis intent ordesire to appeal the Trial Court's Order and rendered on October 3,2014 denying Plaintiffs Motion to set aside the final judgment in Cause No. 97- 48526 as void, dismiss the Plaintiffs claim for commendation or lack ofjurisdiction under TWCA, and the Trial Court to proceed with Plaintiffs Common Law Causes of action until its final resolution.
Plaintifffurther appeals Trial Court's orders ofNovember 4,2014 that: 1) Declared orfind Plaintiffa vexatious litigant 2) Sanctioned Plaintiff
3) Order finding that the appropriate security/sanction, including the award of reasonable expenses and cost including reasonable attorney's fees to the defendant is $2,500.00 4) Ordered Plaintiffto pay $2,500.00 to the defendant no later than December 1, 2014
5) Ordered to pay the amount of$500.00 to the clerk of the court no later than December 1,2014
6) Order that prohibit Plaintifffrom filing in Propria Persona, anew litigation in a court in this state without first obtaining permission from a local administrative judge under Texas Civil Practices Remedial Code Section 11.101, and order that restricts Plaintiff as indigent to file new litigation in Propria Persona.
Plaintifffiled onOctober 9, 2014, amotion to correct the omission of the defendants Automatic Data Processing Inc., and CNA Insurance Company from the style ofCause No. 97-48526 in the Trial Court's order ofOctober 3,2014 which has not been ruled upon by the Court. Plaintiffalso, filed his objections to the Trial Court's Order ofNovember 4,2014 and the Court's Clerk did not accept Plaintiffs objections for filing and direct Plaintiffto the Administrative Judge without success. Plaintiff did not request for findings offact and conclusions oflaw because ofthe refusal oftheTrial Court's Clerk to file my documents.
This Appeal is to the First Court ofAppeals in Houston, Texas Respectfully submitted,
Patrick Olajide Akinwamide, ProSe 2151 S. KirkwoodRd., Apt. 295 Houston, TX 77077 Tel: (832) 620-9345 Certificate of Service
I certify that a true and correct copy ofthe forgoing instrument was delivered via certifiejhnail, return receipt requested or hand delivered to all counsels ofrecord on this the _day of November 2014.
Mr. Jeffrey L. Diamond TX Bat No. 058025000 1010 San Jacinto Street
Houston, Texas 77002
Attorney ofRecord for Transportation Insurance Company, CNA Insurance Company and Automatic DataProcessing Inc.
PatrickOlajide Akinwamide, ProSe 2151 S. Kirkwood Rd., Apt. 295 Houston, TX 77077 Tel: (832) 620-9345 \ ~ I
-rv+P i Tsr^i_ AOirllH,-sT' CAUSE NO. 1997-48526
Patrick Olajide Akinwamide. § In The District Court Of Plaintiff § § vs. § Harris County, Texas § Transportation Insurance Co., § ETAL. § Defendants 80th Judicial District
Order
On November 4, 2014, the 11th District Court entered an order adjudicating the Petitioner, Patrick Olajide Akinwamide (Akinwamide), as a vexatious litigant in the above case. On January 14, 2015, Mr. Akinwamide filed a request with the Harris County Local Administrative District Judge (Admmistrative Judge) asking for permission to appeal the judgment in the above case.
•? Although it appears this case has been final since May 16, 2013, the Administrative Judge nevertheless Grants Mr. Akinwamide's request to file an appeal in the above matter.
Signed January 23,2015.
Robert K. Schaffer Local AclministrativeDistrict Judge Harris County Texas Chris Daniel District Clerk
JAN 23 2015, Time:. lav Harris County, Taxes By- Deputy jffir
RECORDER'S MEMORANDUM This instrument isofpoor quality at the timeofimaging
Page 1 of1 Cause No. 97-48526
Patrick Olajide Akinwamide In the District Court of
vs § Harris County, Texas
Transportation Insurance Company § 80th Judicial Distri Chris Daniel CNA Insurance Company, and § District Clerk
JAN 1 k 2015 Automatic Data Processing Inc. Time:. Harris County, Texas By Deputy
REQUEST
FOR PERMISSION TO FILE APPEAL
TO THE HONORABLE ADMINISTRATIVE JUDGE:
Comes now, Patrick Olajide Akinwamide, Plaintiffin the above-styled and numbered cause and request the permission ofthe Honorable Administrative Judge to allow the appeal ofthe orders oftheTrial Court dated October 3,2014 and November 4, 2014 which were filed with the District Clerk on November 25,2014.
Plaintiffwas lead to believe that after an attempt to file objections atthe Trial Court concerning the orders ofthe November 4, 2014 on November 7, 2014, that it was not required to request permission from the Honorable Administrative Judge to file an appeal, since similar request for permission to file objections was not considered by the Administrative Judge.
i gg^^K^MgBBBSS^B8SE5B3gB)gaggagngEgZ Plaintiffdid not intentionally disregard the provision ofCPRC §§11.101, and 11.102. Plaintiffwas lead to believe that the request for permission ofthe Administrative Judge to file his appeal was not necessary when the Administrative Judge said he has no jurisdiction to permit filing ofobjections. The appeal from the order ofOctober 3,2014 was based on the denial ofthe motion to vacate the final judgment in Cause No. 97-48526. The motion to vacate the judgment was denied and the order signed October 3,2014 before the declaration ofPlaintiffas avexatious litigant bythe order ofNovember 4,2014.
Plaintiffs appeal is not (1) frivolous, (2) groundless and brought in bad faith or
groundless and brought for the purpose ofharassment, or groundless and interposed for any improper purpose, such as to cause unnecessary needless increase in the cost of litigation.
Plaintiffs appeal will be supported by proper argument and evidence warranted by law as demonstrated in the pleadings and motions at the Trial Court. Plaintifffiled his appeal from the order ofOctober 3,2014 and orders of November 4,2014 on the 25th ofNovember, 2014 with the District Clerk as required by law.
The issue ofPlaintiffs failure to obtain pre-filing permission from the Honorable Administrative Judge to file his appeal was for the first time brought to the attention ofPlaintiffwhen Plaintiffcalled the Post Judgment office (District Clerk) on Tuesday, January 13,2015 to check the status ofthe appeal, because Plaintiffhad not received anything from the First Court ofAppeal.
The manager in the Post Judgment Office (District Clerk) informed Plaintiff Tuesday, January 13,2015 that the County Attorney for the Honorable Administrative Judge is reviewing the case and that the office would notify Plaintiffofthe outcome.
Vfc Plaintiffprays that the Honorable Administrative Judge will permit or approve the filing ofthe Plaintiffs Appeal for the purpose ofpreserving justice and fairness. Respectfully submitted,
Patrick Olajide Akinwamide, ProSe 2151 S. Kirkwood R&, Apt. 295 Houston, TX 77077 Tel: (832) 620-9345 CERTIFICATE OF SERVICE
Icertify that atrue and correct copy ofthe forgoing instrument was delivered via certified mail, return receipt requested or hand delivered to all counsels ofrecord on this the 14th day ofJanuary 2015.
Mr. Jeffrey L. Diamond TX Bat No. 058025000 1010 San Jacinto Street Houston, Texas 77002
Attorney ofRecord for Transportation Insurance Company, CNA Insurance Company and Automatic Data Processing Inc.
Patrick Olajide Akinwamide, ProSe 2151 S. Kirkwood Rd., Apt. 295 Houston, TX 77077 Tel: (832) 620-9345
I ATTPitBWlcMT "C'
f^ with -me h^^TOt" >••**
o
CM Cause No. 97-48526 \v Patrick Olajide Akinwamide § In the District Court of 1 3 H fa vs § Harris County, Texas S
Transportation Insurance Company § 80th Judicial District o rj
CNA Insurance Company, and §
Automatic Data Processing Inc. §
NOTICE OF APPEAL Deputy
^„.
TO THE HONORABLE COURT:^ Patrick Olajide Akinwamide, Plaintiffin the above Styled andnumbered Cause, gives notice of his intent or desire to appeal the Trial Court's Order and rendered on October 3,2014 denying Plaintiffs Motion to set aside the final judgment in Cause No. 97- 48526 as void, dismiss the Plaintiffs claimfor commendation or lack ofjurisdiction under TWCA, and the Trial Court to proceed with Plaintiffs Common Law Causes of action until its final resolution.
Plaintiff further appeals Trial Court's orders of November 4,2014 that: 1) Declared or find Plaintiff a vexatious litigant 2) Sanctioned Plaintiff
3) Order finding that the appropriate security/sanction, including the awardof reasonable expenses and cost including reasonable attorney's fees to the defendant is $2,500.00 •«.. •
Certificate of Service
1 certify that a true and correct copy ofthe forgoing instrument was delivered via certified mail, return receipt requested or hand delivered to all counsels of record on this the _day of November 2014.
Mr. Jeffrey L. Diamond TX Bat No. 058025000
1010 San Jacinto Street
Houston, Texas 77002 Attorney of Record for Transportation Insurance Company, CNA Insurance Company and Automatic Data Processing Inc.
Patrick Olajide Akinwamide, ProSe 2151 S. Kirkwood Rd., Apt. 295 Houston, TX 77077 Tel: (832) 620-9345 ATTAC H'rvY&TT V
OR(?5C Oh OCTo&er? 3>, a£»
^ftovio im mi? TieirU- dF" ^ ^ ^°\f Chris Daniel District Clerk OCT oq ?ni4 <£> Cause No.X-48526 Time: * UH>?'.5oP^ Harris county, Texas
Deputy ™~~"~~~
PatrickOlajide Akinwamide § In the District Court of
vs § Harris County, Texas
o o Transportation Insurance Company § 80th Judicial District
CNA Insurance Company, and §
AutomaticData Processing Inc. §
MOTION TO CORRECT THE OMISSION OF AUTOMATIC DATA PROCESSING INC. AND CNA INSURANCE COMPANY FROM THE STYLE OF CAUSE NO. 97-48526 IN THE COURT'S ORDER OF OCTOBER 3.2014
TO THE HONORABLE JUDGE OF SAID COURT: Comes now, Patrick Olajide Akinwamide, Plaintiffin the above-styled and numbered cause, and files this Motion to correct the omission ofAutomatic Data Processing Inc., CNA Insurance Company from the style ofCause No. 97-48526 in the court's order ofOctober 3,2014 and the Plaintiff would respectfully show the courtthefollowing: 1) In its memorandum opinion ofSeptember 6,2012, the Court ofAppeal for the First District ofTexas states that'% pleading inthe alternative, Appellant's Amended Petition did not dismiss the IAB issue but rather added Alternative Pleadings to that original claim.'' Citirig Gen. Elec. Co.; Ducane Heating Corp.; 561S. W. 2d 49-50 (Tex. Civ. App.-Houston [14^.Dist.] 1978, no Wfit(pp5). 2) Also in the response, defendants assert that "Plaintiffamended his original petition by filing Plaintiffs first amended original petition alternative pleadings" to bring common-law causes of action against thedefendants." The defendants filed a
^^mentisofpoorji* atthetime ofimaging motion to strike the pleadings butdidnotfile an amended answer." Further, in the motion to strike a Plaintiffs first amended original petition alternative pleadings signedby the counsel, Mr. JefferyL. Diamond, it was assertedthat "Plaintiff is now alleging various causes ofaction against defendant and additional parties." See defendants response andmotionforsanctionsfiledwith the court on October 2, 2014; Plaintiff's Exhibit "D" attached to the motion to set-aside thefinaljudgment in Cause No. 97-48526....,) Plaintiffherby adopted the entire motion andresponse by reference. Plaintiffs first amended original petition alternative pleadings was not stricken and it is before the court. The attorney, Mr, Jeffrey L. Diamond was the attorney for bothAutomatic DataProcessing Inc. and CNA Insurance in CauseNo, 97-48526. See Exhibit 'K' attached to Plaintiffs motion to set-aside thefinal judgment...). Automatic Data Processing Inc. and CNA Insurance Company are the added parties referred to inthe motion to strike. As such, by filing a dilatory plea in the form ofa motion to strike, and asserting that the court clearly lackedjurisdiction to preside over the additional parties or causes of action containedm Plaintiffs first amended original petition, the defendants Transportation Insurance Company, CNA Insurance Company, and Automatic Data Processing Inc, made a general appearance and waives service of process ofthe Plaintiffs first amended original petition alternative pleadings in Cause No. 97-48526. See Tex. R. Civ. P. 120;120a; 120 a(I); VonBriesen, Purtell, Roper vFrench, 78S.W. 3d570, 575, (Tex.App.- Amarillo 2002, Pet Dism 'd); Weiner v Colwell 909 S.W. 2d866 (Tex. 1995); Dawson-Austin vAustin, 968 S. W. 2d319, 321-322 Tex. 1998). The test for fan- notice is "whether an opposing attorney ofreasonable competence withthe pleadings before him, can ascertain the nature and the testimony probably relevant See State Fidelity Mortgage Co. v Vomer 740 S.W. 2d477, 479 (Tex. App.-Houston [1stDist] 1987, no writ). As such, the employer, Automatic Data Processing Inc. andCNA Insurance Company are added parties and defendants in Cause No. 97- 48526. 3) Notice to the Industrial Accident Board (TWCC) of Workers Compensation Insurance coverage is necessary to achieve subscriber status under the Texas Workers' Compensation Act orsystem. See Tex. Rev. Civ. Sua. Art. 8308 § 18a; Aguilar v Wenglar Construction Co, 871S. W. 2d829, 832-833 (Tex. App.-Corpus Christi 1994, nowrit); Ferguson vHospital Corp. Intern. LTD. 769 F. 2d 268 (1985). With regard tothe Industrial Accident Board (TWCC) finding, roll number 1, the board finds that "onthe date of injury saidemployer was either a subscriber, authorized self*insured, orhad provided Workers' Compensation coverage in Texas by virtue ofArticle 8306, Section 18 R.C.S. That said employer was insured with the insurance carrier, or self-insured, as namedabove." The Industrial Accident Board (TWCC) was notcertain and definite with this finding. Implicitly, tins finding shows that there was no proofinthe records oftheIAB, that the employer was a subscriber, self-insured, orhad Workers' Compensation Insurance coverage at thetime ofPatrick Olajide Akinwamide's on-thevjob injuries, on October 15,1989. Otherwise, the finding would have been certain about the subscriber status of Automatic Data Processing Inc. and it provision of Workers' Compensation Insurance coverage at thetime ofthe employee's Patrick Olajide Akinwamide's on- the-job injuries on October 15,1989. Based on the finding in Roll Number 1ofits final decision or award the Industrial Accident Board (TWCC) finds in Roll Number 9 that the evidencesubmittedis legallyinsufficient to establishmat the claimant sustained a compensable injury inthecourse of employment. The Board denied the claim because there was no proofthat the employer Automatic Data Processing Inc. was a subscriber under the Texas Workers' Compensation Act and did not provide Workers' Compensation coverage atthe time ofPatrick Olajide's on-the-job injuries as required by the Texas Workers' Compensation Laws. See Exhibit 'G' attached to Plaintiff's motion to set-aside thefinaljudgment... and incorporated by reference. For the employer, Automatic DataProcessing Inc. to prevail as asubscribing employer that had Workers' Compensation Insurance coverage under the Texas Workers' Compensation laws, the findings ofthe Industrial Accident Board in Roll 1must be based on certainty. In other words, the JAB (TWCC) finding must affirmatively state that the employer, Automatic Data Processing Inc. was a subscriber under the Texas Workers' Compensation Act and hadWorkers' Compensation Insurance coverage atthe time ofPatrick Olajide Akinwamide's on- the-job injuries. Otherwise, the Industrial Accident Board (TWCC) did not have the jurisdiction over the claim and theemployer. See Tex. Rev. Civ. Stat. Ann. Art 8306, Section 4. Therefore, the employer failed toprove that it was a subscriber underthe Texas Workers' Compensation Act and that it had Workers' Compensation Insurance at the time ofPatrick Olajide Akinwamide's on-the-job injuries. 4) During the trial ofCause No. 97-48526, Plaintiffbrought tothe attention ofthe court the issue ofthe employer Automatic Data Processing Inc. not having Workers' Compensation Insurance coverage (Policy) at the time ofPlaintiffs on-the-job injuries. The defendant's attorney Mr. Jeffrey L. Diamond in his representative capacity told the court that the issue was notbrought totheattention ofthe Industrial Accident Board. Assuch, thematter was waived. And theonly issue before this court which the court would havejurisdiction was what was discussed at the Industrial Accident Board The court asked Mr. Diamond whether the Industrial Accident Board ever asked for proofof coverage, and Mr. Diamond responded "not when I was present in front oftheBoard " See Exhibit 'fitCRRPgs. 12-13; 83-84; 98 and hereby incorporated by reference. Under the Texas Workers' Compensation Laws, the employer Automatic Data Processing Inc. subscriber status to the Texas Workers' Compensation Act (system) and proofofWorkers' Compensation coverage at the time ofemployee's on-the-job injuries are the requirements to be met to invoke the Trial court's statutory authority over the Plaintiffs claim for compensation. See Tex. Civ. Stat. Arm. Art 8306 et. seq. Middleton vTexas Power &Light Co. 294 U.S. 152,153-54, 39 S. ct227, 63 L. Ed527 (1919); HartfordAccident &Indemnity Company vChristenson, 149 Tex. 79, 228S. W. 2d 135, 138, (1950); Paradissis vRoyalIndemnity Company, 507S.W. 2d526, 529 (Tex. 1974). The defendant Automatic Data Processing Inc. did not prove its "subscriber" status and its Workers' Compensation coverage (policy) at the time ofPlaintiffs work-related injuries as required by Texas Workers' Compensation Laws in Cause No. 97-48526. The provision ofthe Tex. Const. Art 1Section 13 is premised upon the rational that the legislature has no power to make aremedy by due course oflaw contingent upon an impossible condition. See Moreno vSterlingDrugInc. 787S. W. 2d348, 355 (Tex. 1990). In Cause No. 97-48526, there was no proofthat the defendant Automatic Data Processing Inc. was asubscriber to Texas Workers' Compensation Act at the time of Haintiffson-the-job injuries and there was no proofofits Workers' Compensation Insurance policy that covered the Plaintiffs on-the-job injuries. The due process oflaw and Texas Workers' Compensation Laws require that the defendants, specifically, Automatic DataProcessing Inc. provide proofof"subscriber'' status and the proofofits Workers' Compensation Insurance policy at the time ofPlaintiffs on-the.job injuries, for it to qualify for the protection provided under the Texas Workers' Compensation Laws.
Acceptance ofthe claim by the Industrial Accident Board (TWCC) as argued by the defendants in Cause No. 97-48526 was not proofthat the employer, Automatic Data Processing Inc. was asubscribing employer that had Workers' Compensation Insurance coverage at the time ofPlaintiffs on-the-job injuries, on October 15,1989. The defendants, Automatic DataProcessing Inc, Transportation Insurance Company and CNA Insurance Company did not file an answer to "the Plaintiffs first amended petition alternative pleadings" but filed amotion to strike the amended pleadings which was not struck by the court For an employer to satisfy its burden ofestablishing its status as aWorkers' Compensation subscriber for the purposes ofproving entitlement to protection from eivil liability under Act's Exclusive Remedy Provision, Automatic DataProcessing Inc. must prove that at the time the Plaintiffsustained his work-related injuries, it had Workers' Compensation Insurance in effect from an insurance company authorized to write Workers' Compensation Insurance in the State ofTexas. See Tex. Rev. Civ. Stat. Arts. 8306-8309, ofthe Texas Workers'Compensation Act. The Haintiffs common law causes of action remain as the only viable pleadings in Cause No. 97-48526, and all affirmative defenses available to the defendants are waived because the defendants did not file answer. As such, Automatic Data Processing Inc. and CNA Insurance Company are defendants in Cause No. 97-48526. The Honorable Court should amend its order ofOctober 3,2014 to include Automatic Data Processing Inc. and CNA Insurance Company as defendants in the style of cause No. 97-48526 WHEREFORE Premises Considerect, Plaintiff; Patrick Olajide Akinwamide pray that the court grants his motion to correct the style of Cause No. 97-48526 to include Automatic Data Processing Inc. and CNA Insurance Company as defendants, and for such other and future relief, both legal and equitable, to which Plaintiffis justly entitled Respe
Patrick Olajide Akinwamide, Pro Se / 2151 S. Kirkwood Road, Apt. #295 Houston, TX 77077 (832) 620-9345 CERTIFICATE OF SERVICE
I hereby certify that a trueand correct copyofthe forgoing instrument was delivered via certified mail, returnreceiptrequestedor hand deliveredto all counsels ofrecordon this the 9^day ofOctober, 2014
Mr. Jeffrey L. Diamond TX Bar No. 058025000
1010 San Jacinto Street
Houston, Texas 77002 Attorney ofRecord for Transportation Insurance Company, CNA Insurance Company and Automatic Date Processing Inc.
Patrick Olajide Akinwamide, ProSe 2151 S. Kirkwood Rd, Apt 295 Houston, TX 77077 Tel: (832) 620-9345 State ofTexas§ Harris County§
VERIFICATION
BeforeMe, the Undersigned Notary, on this personally appeared, Patrick Olajide Akinwamide, the Affiant a person whose identity is known to me after I administered an oath to Affiant Affiant testified 1. "My name is Patrick Olajide Akinwamide. I am over 18 years of age, of sound mind and capable of making this affidavit The facts in mis affidavit are within my personal knowledge and are true and correct 2. I am the Plaintiffand representing myself. All the documents included as exhibits in this motion are true and correct copies ofme original. 3. The Court Reporters Record in the trial ofCause No. 97-48526 was not available in the records of the case with the District Clerk's office
4. Plaintiffmade several attempts to reach the court reporter, Mrs. Carol N. Castillo but was not successful.
5. The excerpts ofthe original court reporters record returned to the Plaintiff from the Clerk ofthe 13th Court of Appeals, Corpus Christi are attached to this motion as Exhibit 'B\
6. The excerpts attached to this motion as Exhibit 'B'are true and correct copies ofthe original.
ROSA E. JIMENEZ NotaryPublic. State of Texas Patrick Olajide Akinwamide, ProSe My Commission Expires June 09, 2017 2151 S. KirkwoodRoad, Apt. 295 Houston, TX 77077 (832) 620-9345 Signed and sworn before me onthe 9*day ofOctober 2014
Notary Public 12
1 understood.
2 The Plaintiff has brought to my
3, attention the fact. that he thinks that the
4 Defendant cannot prove that this case is the
5 correct workers' compensation case.
I6 Did I understand that correctly?
7 MR. AKINWAMIDE: Yes, and that they
8 don't have insurance with my employer, Automatic
9 Data Processing, at the time of this injury.
10 THE COURT: And he believes that
11 they did not have insurance with his employer at 12 the time of this injury. 13 Is there a response to that?
14 MR. DIAMOND: Yes, ma'am. Number 1,
15 this matter was never brought to the attention Of 16 the Industrial Accident Board. At the time that
17 this case was initially heard -- 18 THE COURT: You mean this specific
19 issue as to whether or not it was the correct
120 injury?
21 MR. DIAMOND: Yes, exactly. And as
22 such, it is waived. The only issue that was \2 3 brought to the Industrial Accident Board is whether
14 this gentleman sustained an injury in the course
?5 and scope of his employment. And under the Texas
LEX COURT REPORTING SERVICES, INC. (713) 524-0040 13
1 Workers' Compensation Act, the only issue that
2 could then be brought to this Court and over which
3 this Court would have jurisdiction is. what is
4 discussed at the Industrial Accident Board. There
5 has been no findings, filings, or anything by — 6 MR. AKINWAMIDE: Excuse me. Can I
7 get something from evidence?
8 THE COURT: Yes, you can pull
9 something from your file, yes, sir.
10 MR. DIAMOND: -- by Mr. Akinwamide
11 regarding this matter that he's raised to the Court
12 on the day of trial. I don't know if the Court has
13 jurisdiction over that issue, and it's been 14 waived. , 15 THE COURT: You may go ahead and
16 bring them in and get them seated. 17 MR. DIAMOND: I think it's also been
18 already addressed by the Court when Mr. Akinwamide 19 attempted to have the case tried in the common law
20 against ADP. That was the basis of his motion at
21 that time. And it was denied by Judge Link. 22 THE COURT: Okay. Let me look at
23 your papers, sir.
24 MR. AKINWAMIDE: Yes, ma'am. If I
25 may respond to this.
LEX COURT REPORTING SERVICES, INC (713) 524-0040
I 83
1 relations hip with ADP?
2 MR. AKINWAMIDE: My relationship is
3 that during the time I was injured, I was working
4 with them So Transportation Insurance is not the
5 one that I was working with during the time that I
6 was injured. I was working with ADP. \ 4 %W^ \ - THE COURT: Were you the carrier for
ADP at th e time he was injured?
MR. DIAMOND: Yes, ma'am.
10 THE COURT: Do you understand that
11 relations hip?
12 MR. AKINWAMIDE: Excuse me, ma'am?
13 THE COURT: Do you understand that
14 Transportation Insurance Company carried a policy
15 of workers' compensation?
16 MR. AKINWAMIDE: That is what is
17 creating problem now. They didn't have that
18 insurance They didn't have workers' compensation
19 insurance , and I have it in the file — in the file
20 that ADP sent to me. That's the reason why I made
21 my petition. I said I had the -- the defendants.
22 THE COURT: What was your date of
2 3 injury?
24 MR. AKINWAMIDE: That's October of /^N 25 [ 1998J and they have been struggling since that time "*, .-*'
LEX COURT REPORTING SERVICES, INC. (713) 524-0040 84
1 that they have insurance. They have the money
2 to -- Texas Workers' Compensation. Even ADP and
3 everybody, they were just telling me different
4 things. The workers' compensation ruled on it and
5 without — they don't have insurance. They were
6 trying to back them down -- I mean, to cover them
7 up. Even I asked for the investigation they did;
8 they never gave it to me.
9 THE COURT: Can you respond to that,
10 Counsel?
11 MR. AKINWAMIDE: This Defendant —
12 THE COURT: I understand, sir, and I
13 certainly understand — ( i 14 MR. AKINWAMIDE: They've got to —
15 this is our insurance then --
16 THE COURT: I understand that.
17 MR. AKINWAMIDE: -- under oath.
18 THE COURT: Hold on a second. Tell
19 me when the policy of the insurance went into
20 effect.
21 MR. DIAMOND: Ma'am, Your Honor, I
22 don't have that information, because, like I said,
this was not an issue at any point in time during
the pendency of this case.
THE COURTS It wasn't an issue
v..
LEX COURT REPORTING SERVICES, INC. (713) 524-0040 98
1 after about the three months they filed the paper
2 that I told you that they don't have record, the
3 Industrial Accident Board was asking the
4 Transportation Insurance Company to present the
5 employers and part of the injury and asked ADP to
6 supply the same. They never did. It was --
7 THE COURT: What did the Board
8 rule?
9 MR. DIAMOND: The Board ruled there
10 was no injury in the course and scope.
11 THE COURT: Did the Board ever ask
12 for proof of coverage?
13 MR. AKINWAMIDE: Yes.
MR. DIAMOND: Not when I was present
15 in front of the Board. And my firm has been
representing Transportation Insurance Company prior
to the issuance of the award, which was issued, I
want to say, in -- it was issued in '98, or '99
even, maybe '97.
MR. AKINWAMIDE: Yeah, that award
21 pape r was issued, but is it true ltr.h e operation of
I f 22 Transportation Insurance, ADP, and workers'
2 3 compensation? I filed a motion for that, even I ni 24 say that to them at the workers' compensation. I
25 wrote my complaint to the investigator in this case
LEX COURT REPORTING SERVICES, INC. (713) 524-0040 FILE J Chris Daniel District Clerk CAUSE NO. 9748526 OCT 0 3 2014 PATRICK OLAJIDE AKINWAMIDE § IN THE DISTRICT CO^UffiT ORarrls County, Texas § By I. Deputy VS. 8 HARRIS COUNTY, TEXAS
TRANSPORTATION INSURANCE iTH COMPANY 80'" JUDICIAL DISTRICT
ORDER
ON THIS DAY, the Court considered PlaintifFs "PlaintifFs Motion to Set Aside the
Final Judgment in Cause No. 97-48526 as Void, Dismiss the Plaintiffs Claim for Compensation for Lack of Jurisdiction Under the TWCA, and The Trial Court To Proceed With The Plaintiffs Common Law Causes Of Action Until Its Final Resolution"; Defendant's Response to same; and the arguments ofPlaintiff and counsel. The Court finds that it has no plenary power over this case and the common law claims are barred by res judicata and collateral estoppel. Further, the PlaintifFs Motion is frivolous, groundless, brought in bad faith and brought for the purpose of harassment. Therefore, the Court DENIES PlaintifFs Motion as the Court has no plenary power to hear same and ORDERS the Plaintiff to jiimi I ilni P fegflgg ill 111JiMMIlMiilli ji
Signed this the day of October, 2014. - , ' * 1 d-U" f*** *<^v
J- DIAMOND AND ASSOCIATES, PLLC ° cJ^y^e^ ^*f -^ -vf ^ •» » -'* ^~K^ •^ A11 %M ° *-«, Mr./Jeffery L. Diamond State Bar No. 05802500 1010 n. San Jacinto Street Houston, Texas 77002 Telephone: 713-227-6800 Facsimile: 713-227-6801