IN THE DISTRICT COURT

No. 00-00619

§ § § § § § § § § § §

G. David WestfaU. Christina Westfall, and§ Stefani Podvin, §

§ §

THE LAW OFFICES OF

G. DAVID WESTFALL, P.C.

Plaintiff

v.

UDO BIRNBAUM

DefendantlCounteJ:'- Plaintiff

CouRter-Defendants

294th JUDICIAL DlSTRlq{

.."

VAN ZANDT COUNTY, TEXAS

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The above-captioned cause came on for trial to ajury on April 8,2002. At the conclusion of

the evidence, the Court submitted questions of fact in the case to the jury.

In addition to the matters tried to the jury the Court took under consideration the Motion

filed by David Westfall, the Plaiutiff (the "Plaintiff'), and Christina Westfall, and Stefani Podvin·

(Christina Westfall and Stefani Podvin collectively referred to herein as the "Counter-Defendants)

concerning the filing of a frivolous lawsuit and Rule 13 Sanctions. The combined issues of the

counter~claim on frivolous lawsuit and the Rule 13 Motion were. tried toget.her to the Court on July

30. 2002. At the proceedings on July 30, 2002, the Plaintiff appeared by counsel, the COU11ter-

Defendants appeared in person and were also represented by their attorney. At the proceedings on

July 30, 2002, Udo Birnbaum (the "Defendant/Counter-Plaintiff'), the Defendant/Counter-Plaintiff:

appea,red pro se.

After considermg the pteadings, the evidence presented at thG trial to the jury as well as f.t~e

evidence presented at the summary judgment hearings and the sanctions hearing before the Court,

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in re3ponse to a r~q\,\~st from the DefendantlCoilllter-Plaintiff, the Court makes its findings of fact

and cQnclusions oflaw ~ fo11o\"l5:

Findings of Fact

Cb...ristioa Westfall and Stefani Podvin (the wife and daughter of the Defendant/Counter-Plaintiffs

fonn~r attorney, David Westftd!) w~r~ groundless and totally unsupported by any credible

~vidcnce '\.vhatscever.

against Christina Westfall and Stefani Podvin were without merit and brought for the purpose of

hf.rassment, delay; and tQ seek advantage in a collateral matter by attempting to cause the original

Plaintiff, David Westfal! to drop his claim for lm-r~imb~ed legal services provided to the

Defendant.

3.

The Defendant/Counter-Plaintiff was afforded numerous opportunities to marshal his

gvidenc:e aA4 present any facts to support his alle~ations concerning RICO civil conspiracy claims

against the wife and daughter of the Defen@pt/Counter-Plaintiff's attorney, David Westfall. The

DefendantiCoilllter-Plaintiff wholly failed to provide any such credible evidence at either the

summary judgment phase of the lawsuit or at the hearing on the motion for san<:tlous,

civil cor..spiracy claims were his O"Ml opi.nions an4 tQta1ly UJlcorroborated by any other evidence.

damages as a result of an alleged conspir~y. The Defendant/Counter-Plaintiff was sued by his

fonner counsel to collect money for legal work which had been perfonned for the

Defendant/Counter-Plaintiff for wpjf;h th~ Defendant/Counter-Plaintiff had not paid his attorney in

Findings of Fad and Conclusions of Law PAGE 2 of7

full The jury found that the work had been performed by the attorney, the amount charged to the client was reasonable, and that there was an amount owed by the DefendantiCOlUlter-Plaintiff to the

Plaintiff. The Defendant/Counter-Plaintiff's claims concerning RICO civil c.onspiracy claims had

no bearing on whether or not the Defendant/Counter-Plaintiffreceived the legal services and owed

the balance of the outstanding attorney's fees.

v.ras a blatant and obvious attempt to influence the outcome of the Plaintiffs legitimate lawsuit

against the Defendant/Counter-Plaintiff and to cause harassment to the Plaintiff and his family

members.

conspiracy in this lawsuit have been totally without substantiation on any cause of action pled.

~'.

damages was engaged in willf\tlly and maliciously by the Defendant/Counter-Plaintiff with the

intent to harm the Plaintiff and the Counter-Defendants.

proven to be reasonable and necessary by a preponderance of the evidence and not challenged by

the DefendantJCounter-Plaintiff at the hearing on sanctions. The amount of actual damages

awarded was in an amount that was proven at the hearing.

by a preponderance of the evidence and not challenged by the Defendant/Counter-Plaintiff at the

hearing on sanctions. The court awarded damages for inconvenience in an amount the Court found

to be reasonable and necessary, supported by eviden.ce, and appropriate considering the

circumstances.

"indings of F.2lct and Conclusions of Law PAGE 3 of7

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evidence and necessary under the circumstances to attempt to prevent similar future action on the

part of the Defendant/Counter-Plaintiff.

Defendant/Counter-Plaintiff.

seeks, which is to stop the Defendant/Cmmter-Plaintiff and others similarly situated from filing

frivolous lawsuits.

hann caused by the offensive conduct to be punished.

Defendant/Counter-Plaintiffs lawsuit and specifically the frivolous nature of the lawsuit caused

damages which included expenses (in addition to taxable coW1 costs), attorney's fees, harassment,

inconvenience, intimidation, and threats.

Defendant/Counter-Plaintiff without merit and for the purpose of harassment. The prima facie case

was made by the testimony and documents introduced as evidence by the Counter-Defendants at the

summary judgment proceedings as well as at the hearing on sanctions on July 30, 2002.

Plaintiff failed wholly to provide any credible evidence to support the legal theories of the

Defendant/Counter-Plaintiff.

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Conclusions of Law

substantiate any of his claims concerning a RlCO civil conspiracy claim.

or inaction caused by the Plaintiff or the Counter-Defendants.

on the evidence presented to the Court.

RICO civil conspiracy charges, the Defendant/Counter-Plaintiff's clairos concerning RICO civil

conspiracy were completely untenable.

not based upon the law, were not a good faith extension of existing law, and were brought and

continued to be urged for the pwpose of harassment.

concerning RICO civil conspiracy were brought for the purpose of harassment.

lawsuit was a violation of one or more of the follo\Ving: §9.000 et seq- Civ. Prac. & Rem. Code,

§lO.OOO et seq. Civ. Prac. & Rem. Code, and/or Rule 13, T.RC.P.

Defendant/Counter-Plaintiff for the filing and prosecution of a frivolous lawsuit. 'This authority

stems from one or more of the following: §9.000 et seq. Civ_ Prac. & Rem. Code, §lO.OOO et seq.

Civ. Prac. & Rem. Code, Rule 13, T.R.C.P., and/or the common law of Texas.

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be assessed against the DefendantJCoWlter-Plaintiff.

the issue of sanctions. After the prima facie case 'was made, the burden of proof shifted to the

DefendantJCounter-Plaintiff and the Defendant/Counter-Plaintiff failed in its effort to prove good

faith in the filing of the RICO civil conspiracy claims.

this frivolous lawsuit is an award of $50,085.00 in attorney's fees. The Court makes this award

Wlder power granted to the Court by §9.0oo et seq. Civ. Prac. & Rem. Code, §10.000 et seq. Civ.

Prac. & Rem. Code, Rule 13, T.R.C.P., and/or the common law of Texas.

- . ,.,~'

filing and full prosecution of this frivolous lawsuit is an award of $1,000.00 to Christina Westfall

and $1,800.00 to Stefani Podvin, to be paid by the Defendant/Counter-Plaintiff to the Counter-

Defendants.

is an award of $5,000.00 to Christina Westfall and an award of $5,000.00 to Stefani Podvin, to be

paid by the Defendant/Counter-Plaintiff to the Counter-Defendants.

which is to stop this Defendant/Counter-Plaintiff, and others like him, from filing similar frivolous

lawsuits .

......

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Code, Rule 13, T.R.C.P., and/or the common law of Texas.

Any finding of fact herein which is later detennined to be a conclusion of law, is to be

deemed a conclusion of law regardless of its designation in this document as a finding of fact. Any

conclusion of law herein which is later determined to be a ftnding of fact, is to be deemed a finding

of fact regardless of its designation in this document as a conclusion oflaw.

SIGNED THIS .3 0 day of September, 2003.

JUDGE PRESIDING

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