No. 00-00619

THE LAW OFFICES OF

G. DAVID WESTFALL, P.C.

Plaintiff

v.

UDO BIRNBAUM

Defendant/Counter-Plain tiff

G. DAVID WESTFALL, CHRISTINA WESTFALL, and STEFANI PODVIN,

Counter-Defendants

§ § § § § § § § § § § § § §

S

"

LUU:, C ,:, :~ i IN THE DISTRICT COURT

294th JUDICIAL DISTRICT

VAN ZANDT COUNTY, TEXAS

ORDER ON MOTIONS FOR SANCTIONS

On April, 2004, came on to be heard, defendant, Udo Birnbaum's ("Birnbaum") Motion

for Recusal of Judge Paul Banner. Prior to the hearing, the Court and Mr. Birnbaum were each

served with notice of a Motion for Sanctions filed by G. David Westfall, P.C., Christina Westfall,

and Stefani Podvin (referred to herein collectively as the "Sanctions Movants") and that Motion for

Sanctions was also heard. The Sanctions Movants appeared by their attorney of record. Birnbaum,

appeared in person, pro se. All parties announced ready for the hearing.

Based upon the pleadings of the parties, the evidence presented at the motion hearing, and

the arguments of counsel and the arguments of the pro se defendant, the Court is of the opinion that

Birnbaum's Motion to Recuse Judge Paul Banner should be in all things be denied.

Based upon the pleadings of the parties, the evidence presented at the motion hearing, and

the arguments of counsel and the arguments of the pro se defendant, the Court is of the opinion that

the Sanctions Movants are entitled to prevail on their claim for sanctions against the Defendant,

Udo Birnbamn.

Order on Sanctions PAGE1of8

westfall\udo\pleadings\Order 02


It is therefore, ORDERED, ADJUDGED, and DECREED that the motion by the

defendant, Udo Birnbaum, that Judge Paul Banner be recused from further matters effecting this

cause of action is denied.

It is therefore, FURTHER ORDERED, ADJUDGED, and DECREED that the Plaintiff,

G. David Westfall, P.C., and Counter-Defendants, Christina Westfall and Stefani Podvin, are

awarded damages as a sanction against and to be paid by defendant, Udo Birnbaum, to G. David

Westfall, P.C., Christina Westfall, and Stefani Podvin as follows:

A. A monetary sanction in the amount of $1,000.00 as actual damages, representing the

reasonable value of the legal services rendered to the Sanctions Movants by their attorney for the

defense of Birnbaum's Motion to Recuse and the prosecution of the Sanctions Movants' Motion for

Sanctions.

B. A monetary sanction in the amount of $124,770.00 as exemplary and/or punitive damages

to serve as a deterrent to prevent Birnbaum from committing further similar acts again in the future.

IT IS FURTHER ORDERED THAT the judgment here rendered shall bear interest at the

rate of five percent (5%) from the date of the signing of this order, until paid.

All other relief regarding any motions for relief on file in this cause of action not expressly

granted in this order is hereby denied.

With regard to the award of sanctions, the Court makes the following findings and

conclusions in support of the Court's award of sanctions and in support of the type and dollar

amount of the sanctions imposed:

Order on Sanctions PAGE 2 of8

westfall\udo'.pleadings\Order 02


Findings of Fact

1. Birnbaum's claims regarding the attempt to have Judge Paul Banner recused were

groundless, vacuous, manufactured, and totally unsupported by any credible evidence

whatsoever.

2. Birnbaum's claims regarding the attempt to have Judge Paul Banner recused were without

merit and brought for the purpose of harassment and/or delay.

3. The testimony of Birnbaum regarding the attempt to have Judge Paul Banner recused was

biased, not credible, and totally uncorroborated by any other evidence.

4. The sole purpose of Birnbaum filing the motion regarding the attempt to have Judge Paul

Banner recused was an attempt to harass, intimidate, and inconvenience the Sanctions Movants.

5. Birnbaum has a track record and history of filing lawsuits, motions, and writs of mandamus

against judges that rule against him in litigation.

6. Birnbaum filed a pleading containing a completely false and outrageous allegation that

Judge Paul Banner had conducted himself in a manner that showed bias and a lack of impartiality.

7. Birnbaum's difficulties with judges and the repeated allegations of a lack of impartiality

have had nothing at all to do with the conduct of the judges that Birnbaum has appeared before, but

instead, is a delusional belief held only inside the mind of Birnbaum.

8. Birnbaum will seemingly go to any length, even filing new lawsuits in State and Federal

courts in an attempt to re-litigate issues which a court has already ruled upon and which all

appropriate courts of appeal have affirmed.

9. Birnbaum's filing of this Motion to recuse Judge Banner was consistent with a proven

pattern and practice of behavior engaged in by Birnbaum over many years and currently ongoing

now in this court and in other federal courts.

Order on Sanctions PAGE 3 of8

westfall\udo\pkadings\Order 02


10. Birnbaum has a track record and history of bickering and quarreling with judges that have

ruled against him in litigation.

11. Birnbaum has a track record and history of filing lawsuits without merit against judges,

attorneys, and other individuals in an attempt to gain tactical advantage in other ongoing litigation.

12. Prior to this hearing, Birnbaum filed in March 2004, new legal action in Federal District

Court against Judge Paul Banner, G. David Westfall, Christina Westfall, and Stefani Podvin. This

new Federal lawsuit attempts to re-litigate the same issues Birnbaum unsuccessfully raised in this

lawsuit.

13. Prior to this hearing, Birnbaum has initiated a lawsuit against the attorney for the Sanctions

Movants, Frank C. Fleming. Birnbaum admitted in open court that he has never had any dealings

with Frank C. Fleming other than in connection with Mr. Fleming's representation of the Plaintiff

and the counter-defendants in this cause of action. Birnbaum admitted in open court that the legal

basis of his lawsuit against Mr. Fleming, civil RICO, is the same basis Birnbaum was previously

sanctioned in this lawsuit for attempting to bring against Christina Westfall and Stefani Podvin.

14. The behavior of Birnbaum himself in prosecuting the Motion to recuse Judge Banner has

been vindictive, unwarranted, mean-spirited, frivolous, and totally without substantiation on any

legally viable theory for the recusal of Judge Banner.

15. The Motion itself to Recuse Judge Banner without any ounce of evidence to support it, was

frivolous, vindictive, and brought for the purpose of harassment.

16. The conduct of Birnbaum giving rise to the award of exemplary and/or punitive damages

was engaged in by Birnbaum willfully and maliciously with the intent to harm the Sanctions

Movants, Judge Paul Banner, and the attorney for the Sanctions Movants, Mr. Fleming.

Order on Sanctions PAGE 4 of8

westfall\udo\pleadings\Order 02


17. Prior to the hearing on the Motion to Recuse, the Court admonished Birnbaum that if his

Motion to Recuse Judge Banner was not withdrawn, that if it became appropriate, the Court would

hear the Motion for Sanctions. In response to this admonition, Birnbaum unequivocally elected to

move forward with a hearing on his Motion in an attempt to have Judge Banner recused.

18. The type and dollar amount of the sanctions award is directly related to the harm done. The

Court has not been presented with any evidence to believe that the amount of the sanctions award is

excessive in relation to the net worth of Birnbaum.

19. The type and dollar amount of the sanctions award is appropriate in order to gain the relief

which the Court seeks, which is to stop this litigant and others similarly situated from filing

frivolous motions, frivolous lawsuits, frivolous defenses, frivolous counter-claims, and new

lawsuits which attempt to re-litigate matters already litigated to a conclusion.

20. The amount of the exemplary and/or punitive damage award is an amount narrowly tailored

to the amount of harm caused by the offensive conduct to be punished.

21. The Sanctions Movants have suffered damages as a result of Birnbaum's frivolous counter-

claims and Birnbaum's motion to recuse. These damages include expenses (in addition to taxable

court costs), attorney's fees, harassment, inconvenience, intimidation, and threats.

Conclusions of Law

1. On the issue of the recusal of Judge Paul Banner, Birnbaum wholly failed to provide any

credible evidence to substantiate any of his claims.

2. All of Birnbaum's claims were as a matter of law unproved and untenable on the evidence

presented at the hearing.

3. The court concludes as a matter of law that Birnbaum's claim that Judge Paul Banner acted

biased and with a lack of impartiality, was brought for the purpose of harassment. The Court makes

Order on Sanctions PAGE 5 of8

westfall\udo\pJeadings\Order 02


this conclusion based upon the fact that Birnbaum was not a credible witness, that other credible

witnesses totally contradicted Birnbaum's version of the facts, and that evidence was presented

establishing that Birnbaum has had a track record and history of harassment towards other opposing

litigants, opposing counsels, and other judges before whom Birnbaum has appeared.

4. The Plaintiffs behavior in bringing and prosecuting this frivolous motion to recuse Judge

Banner was a violation of one or more of the following: §§1O.001, et seq., Tex .. Civ. Prac. &

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

5. The Court has the power to award both actual and exemplary (and/or punitive) damages

against Birnbaum for the filing and prosecution of a frivolous motion. This authority stems from

one or more of the following: 10.001, et seq., Tex. Civ. Prac. & Rem. Code, Rule 13, T.R.C.P.,

and/or the common law of Texas.

6. The behavior and attitude of Birnbaum in filing and prosecuting this Motion to Recuse

claim against Judge Paul Banner calls out for the award of both actual and exemplary (and/or

punitive) damages to be assessed against Birnbaum.

7. The appropriate award for actual damages as a result of the filing and prosecution of the

frivolous Motion to Recuse, is an award of $1,000.00 in attorney's fees. The Court makes this

award under power granted to the Court by 10.001, et seq., Tex. Civ. Prac. & Rem. Code, Rule

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

8. The appropriate exemplary and/or punitive sanction for the filing and full prosecution of the

frivolous Motion to Recuse is an award of $124,770.00 to be paid by Birnbaum to the Sanctions

Movants.

9. The award of exemplary and/or punitive damages is directly related to the harm done.
10. The award of exemplary and/or punitive damages is not excessive.

Order on Sanctions PAGE 6 of8

westfall\udolpleadingslOrder 02


11.

The award of exemplary and/or punitive damages is an appropriate amount to seek to gain

the relief sought by the Court which is to stop Birnbaum and others like him from filing similar

frivolous motions and other frivolous lawsuits.

12. The amount of the exemplary and/or punitive damage award is narrowly tailored to the

harm done.

13. The amount of the exemplary and/or punitive damages is narrowly tailored to exactly

coincide with the amount (in total) assessed against Birnbaum to date in this litigation. This amount

was selected by the Court deliberately and on purpose to send a clear message to Birnbaum. The

message this award of damages is intended to relay to Mr. Birnbaum is that this litigation is over,

final, and ended. The message is that further attempts to re-open, re-visit, and re-litigate matters

which have already been decided in court, reduced to judgment, and affirmed on appeal will not be

tolerated; and that further attempts by this litigant to engage in such activity will not be conducted

without the imposition of very serious and substantial monetary sanctions imposed upon Mr.

Birnbaum.

14. Authority for an exemplary and/or punitive damage award is derived from 10.001, et

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

Any finding of fact herein which is later determined 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 finding of fact, is to be deemed a finding

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

Order on Sanctions PAGE 7of8

westfall\udo\pleadings\Order 02


THIS JUDGMENT RENDERED ON APRIL 1, 2004, AND SIGNED THIS

24 day of Oct., 2006.  .

Order on Sanctions PAGE 8 of8

westfallludolpleadingslOrder 02