No. 95-63


WILLIAM B. JONES                                                  )(          IN THE DISTRICT COURT              


Vs.                                                                               )(          294TH JUDICIAL DISTRICT             


UDO BIRNBAUM                                                      )(          VAN ZANDT COUNTY, TEXAS





COMES NOW, Udo Birnbaum ("Birnbaum"), Defendant in the above styled and numbered cause and would show the Court the following:


1.         This Cause stems from a Van Zandt landowner by the name of William B. Jones ("Jones") undertaking to claim land from nature, by excavating the creek on his property, and doing so without acquiring professional advice and guidance.

2.         Conflict between the parties arose sometime in the fall of 1994, when Jones, after having killed all beaver on his property, for the first time ever complained to Birnbaum about beavers or water, and demanded the removal of a small beaver dam ("dam" or "dams") on Birnbaum's land supposedly backing water up on Jones' property.

3.         This cause of action under Section 11.086 of the Texas Water Code, alleging that Birnbaum, as a person, in 1994 built a specifically described dam ("The Dam") that supposedly violated such Code, arose sua sponte upon a piece of paper a certain Canton attorney by the name of Richard L. Ray ("Ray") filed as "Original Petition".

4.         This Motion for New Trial arises from the circumstances surrounding the trial in this cause, including the jury making only irrelevant findings of fact, as described below, that makes it impossible for this Court to enter a judgment that "conforms to the pleadings and verdict".  That is the below described "dilemma" before this Court.


The Pleadings

5.         Plaintiff claims (Exhibit A) that Birnbaum "wrongfully built and has at all times since then wrongfully maintained" a specifically described dam ("The Dam") and seeks removal of said supposed dam.  Birnbaum pleads fabrication, being legally assaulted, fraudulent process, and seeks affirmative relief by having this Court to refer these matters to the U. S. Justice Department.

The Trial

6.         The cause was filed February 6, 1995 and came to trial May 26 through May 29, 1998.  Testimony was heard regarding everything under the sun except as to the matter of Birnbaum having built a supposed "The Dam" dam, Birnbaum "maintaining" any such "The Dam", that any such "The Dam" violated the Texas Water Code, or Jones having been flooded or in any way damaged by any such "The Dam" dam.

7.         Testimony about "dams" was strictly in the context of "dams" built by beavers in a creek known as Steve's Creek. The issues ranged from as to why beavers build dams, how they build dams, what beavers eat, whether they are nocturnal, whether they are in the rodent class, how one counts beaver dams, i.e. does one count a big one the same way one counts a little one, or does one count the little one as a fraction of a "standard" beaver dam, the difference between beaver "dams" and beaver "terraces", etc, etc.

8.         Not one shred of evidence about "The Dam". When Birnbaum attempted to show "The Dam" fabrication by showing Plaintiff's Original Petition, First Amended Original Petition, and Second Amended Original Petition, Birnbaum was instructed by the Court that these documents could not be shown to the jury, could not be read to the jury, and could not be talked about to the jury, because pleadings were not "evidence".  "The Dam" dam had procedurally disappeared.


A Verdict but no Judgment

9.         The Court's Charge consisted of only three questions.  The Verdict of the jury (Exhibit B) was as follows:

QUESTION NO. 1:     Did Birnbaum allow dams upon his land to flood Jones' upstream property in 1994?      We Answer:            YES


INSTRUCTION:         If you have answered "Yes" to Question No. 1, then answer Question No. 2.  Otherwise, do not answer Question No. 2.

QUESTION NO. 2:     What sum of money, if paid now in cash, would fairly and reasonably compensate William B. Jones for his loss, if any, resulting from the occurrence in question?    We Answer: 0


INSTRUCTION:         If you have answered "Yes" to Question No. 1, then answer Question No. 3.  Otherwise, do not answer Question No. 3.

QUESTION NO. 3:     What sum of money, if any, do you find from the preponderance of the evidence would be reasonable and necessary attorney's fees for the services, if any, performed by Plaintiff's attorney:           We Answer: $10,000


10.       Judge Zimmermann told the jury that he was particularly proud of them for "not going back there and giving a lick and a promise, and coming back in 10 minutes with a verdict", and that "You spent however much time you needed, and that's the way it ought to be - - And no one can thank you enough for giving this week to justice in Van Zandt County."  Yet despite a verdict, no judgment was pronounced or entered.


The "dilemma" before the Court

            11.       Rule 300 RCP requires that the Court enter judgment:  

Rule 300.  Court to Render Judgment:  Where a special verdict is rendered, or the conclusions of fact found by the judge are separately stated the court shall render judgment thereon unless set aside or a new trial is granted, or judgment is rendered notwithstanding verdict or jury finding under these rules. (emphasis added)


            12.       Rule 301 RCP however places restrictions on such judgment:

Rule 301.  Judgments: The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.  Provided, that upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any jury finding on a question that has no support in the evidence.  Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law.  Judgment may, in a proper case, be given for or against one or more of several plaintiffs, and for or against one or more of several defendants or intervenors. (emphasis added)


13.       No judgment is possible conforming to Plaintiff's pleading of damage by a "The Dam", Birnbaum's pleadings that "The Dam" dam is a fabrication, and a verdict that makes no finding upon "The Dam" dam issue.  The jury's findings regarding beaver "dams" are entirely irrelevant.

            14.       The transcript of the hearing of October 6, 1998 (Exhibit C) fully shows the "dilemma" before the Court, and why a new trial is the only way out. (See transcript for details). 

            15.       And on August 17, 1999, at the last hearing in this cause, again to "enter judgment", Judge Zimmermann recused himself (Exhibit D).  There is no judge currently assigned to the case (Exhibit E ).


Motion for New Trial

For all of the above reasons Birnbaum hereby moves the Court for a new trial in this matter.



                                                                                                Respectfully submitted,




540 VZ 2916

Eustace, Texas 75124

(903) 479-3929




This is to certify that a true and correct copy of this document has been served via Regular Mail on this the _____ day of April, 2001 upon Richard L. Ray, 300 S. Trade Days Blvd. (300 S. HWY 19), Canton, Texas 75103.