No.   04-0078

 

IN THE

SUPREME COURT OF TEXAS

AUSTIN, TEXAS

 

UDO BIRNBAUM,

Petitioner

 

vs.

 

THE LAW OFFICES OF G. DAVID WESTFALL, P.C., ET AL.,

Respondents

 

 

On appeal from the 5th Court of Appeals, Dallas

 

------------------------------

 

PETITION FOR REVIEW

(Appendix bound separately)

------------------------------

 

Question presented:

 

Whether the precedent of a Texas court actually assessing a FINE of $62,000 (or ANY fine), merely because the evidence did NOT prove a person's claim under  18 U.S.C. 1964(c) "civil RICO", defeats the stated purpose of the [civil RICO] statute, and offends the Constitution

"[a] Congressional objective [in enacting civil RICO with treble damages] of encouraging civil litigation not merely to compensate victims but also to turn them into private attorneys general, supplementing Government efforts by undertaking litigation in the public good." Rotella v. Wood et al., 528 U.S. 549 (2000),

 

"clearly established that filing a lawsuit was constitutionally protected conduct." Rutan v. Republican Party of Illinois, 497 U.S. 62, 73 , 76 n.8 (1990).

 

Udo Birnbaum, Pro Se

540 VZ 2916

Eustace, Texas 75124

(903) 479-3929

 

 

IDENTITY OF PARTIES AND COUNSEL

 

PETITIONER (Defendant, Counter-claimant, Third party plaintiff in Trial Court):

 

Udo Birnbaum, Pro Se

540 VZ 2916

Eustace, Texas 75124

(903) 479-3929

(903) 479-3929 fax

 

RESPONDENTS (Plaintiff, etc. in the trial court as indicated):

(Same attorney in the trial court and the appeals court)

 

The Law Offices of G. David Westfall, P.C.[1] Frank C. Fleming

Plaintiff, Counter-defendant PMB 305, 6611 Hillcrest Ave.

Dallas, Texas 75205-1301

(214) 373-1234

(214) 373-3232 (fax)

 

G. David Westfall[2] Frank C. Fleming

Third party defendant

 

Stefani Podvin[3] Frank C. Fleming

Third party defendant

 

Christina Westfall[4] Frank C. Fleming

Third party defendant

 


TABLE OF CONTENTS

 

Identity of Parties and Counsel ii

 

Table of Contents . iii

 

Index of Authorities . iv

 

Statement of the Case .. v

 

Statement of Jurisdiction .. v

 

Issues Presented . vi

 

Points of Error .. vii

Statement of Facts ... 1

Misstatements of facts by the Court of Appeals 2

 

Summary of the Argument ... 8

 

Argument .. 9

The $59,280.66 Judgment is unlawful .. 9

Defendant Birnbaum had a Right to a court-appointed auditor . 10

The "RICO Relief" summary judgment is also unlawful .. 11

The $62,255.00 "Sanction" judgment is also unlawful . 12

"Fraud, fraud, and more fraud" .. 13

Due process demands a new trial ... 14

Conclusion .. 14

 

Prayer ... 15

 

Certificate of Service ... 16

 

Basis to this whole suit (for real handy reference)

"Attorney retainer agreement" ... Exhibit A

Plaintiff's First Amended Original Petition . Exhibit B

 

Index (only) to separate Appendix . Exhibit C

INDEX OF AUTHORITIES

 

Estee Lauder, Inc. v. Harco Graphics, Inc.

D.C.N.Y.1983, 558 F.Supp.83 ... 11, 12

 

Jones v Andrews,

873 S.W.2d 102, 106 (Tex. App. -- Dallas 1994) 7 fn12

 

McCain, 856 S.W.2d at 757 . 7 fn13

 

Milligan v. R&S Mechanical, No. 05-87-01341- CV,

Court of Appeals, Fifthe District of Texas, Aug. 11, 1998 ... 9

 

Rotella v. Wood et al., 528 U.S. 549 (2000) ... 9, 15

 

Rutan v. Republican Party of Illinois,

497 U.S. 62, 73, 76 n.8 (1990) ... 3 fn6, 15

 

Texas Court of Criminal Appeals, No. 73,986 (June 5, 2002) .. 6 fn11, 12

 

United Mine Workers v. Bagwell, 512 U.S. 821 (1994) (footnote)... 12

 

RCP Rule 13 .. 3 fn8, 7 fn13

 

RCP Rule 172. Audit .. 11 fn23

 

RCP Rule 215-2b(7) ... 3 fn8

 

RCP Rule 301... 7 fn14

 

18 U.S.C. 1964(c) ("civil RICO") .. 1, 5 fn11, 9, 11, 12

 


STATEMENT OF THE CASE

 

Introductory Note: This is really a very simple case once one recognizes the pattern of FRAUD from start to finish, intrinsic and extrinsic, turning into retaliation by official oppression and unlawful judgments against pro se Birnbaum for having made a civil racketeering ("civil RICO") defense against a fraudulent suit by lawyers.

 

(1) Nature of the case

PLAINTIFF The Law Offices of G. David Westfall, P.C. ("Law Office") claimed an UNPAID OPEN ACCOUNT[5] for "legal services" in the amount of $18,121.10 and pleaded no other cause of action[6].

 

DEFENDANT Udo Birnbaum ("Birnbaum") answered [7] by denying such alleged "open account" under oath, asserted defenses of FRAUD, counter-claimed under the Texas Deceptive Trade Practices Act (DTPA), and made cross and third party claims[8] under 18 U.S.C. 1964(c) ("civil RICO") against three (3) persons associated with the "Law Office" (G. David Westfall, Christina Westfall, and Stefani [Westfall] Podvin, "The Westfalls"), and asked for trial by jury. Birnbaum also moved for APPOINTMENT OF AN AUDITOR per RCP Rule 172 to investigate and report on the alleged OPEN ACCOUNT [9] to show that there existed no open account at all, nor systematic records, etc. as claimed, but only a $20,000 prepaid non-refundable retainer paid to lawyer G. David Westfall.[10]

 

(2) Judge who signed the order and judgment: Hon. Paul Banner

 

(3) Trial Court: 294th District Court of Van Zandt County

 

(4) Disposition by trial court:

        $59, 000 judgment against me to "Law Office"

        Summary judgment against my civil RICO claim

        $62,000 SANCTION against me for having made my civil RICO claim

 

(5) Parties in the court of appeals:

Udo Birnbaum - Appellant

The Law Offices of G. David Westfall, P.C. - Appellee

G. David Westfall - Appellee (Deceased)

Christina Westfall - Appellee

Stefani Podvin - Appellee

 

(6) District of the court of appeals: Fifth Court of Appeals in Dallas, Texas

 

(7) Justices participating in the court of appeals:

ORDER - signed by Justice Whittington (DENIED motion to make the trial judge make Findings)

OPINION - Justices Whittington (author), Wright, and Bridges

JUDGMENT - signed by Justice Mark Whittington

ORDER - signed by Justice Whittington (DENIED En Banc)

 

(8) Citation for the court of appeals' opinion:

PUBLISHED, but citation unknown (but available at COA web site)

 

(9) Disposition by the court of appeals:

OPINION - Oct. 23, 2003

JUDGMENT - Oct. 23, 2003

ORDER (Motion for Rehearing En Banc) - DENIED Dec. 10, 2003

 

STATEMENT OF JURISDICTION

Jurisdiction is per RCP Rule 53.1: "The Supreme Court may review a court of appeals' final judgment on a petition for review addressed to "The Supreme Court of Texas."

 

ISSUES PRESENTED ON APPEAL

The matters originating in the trial court and assigned as error in the court of appeals were as follows (presented here in the exact format as presented as issues to the Fifth Court of Appeals):

1. WHETHER THE $59,280.66 JUDGMENT IS UNLAWFUL

It does not conform to the pleadings and the verdict

 

2. WHETHER DEFENDANT BIRNBAUM HAD A RIGHT TO A COURT-APPOINTED AUDITOR

Due process demanded appointment of an auditor per RCP Rule 172 to address the issue of fraud

 

3. WHETHER THE "RICO RELIEF" SUMMARY JUDGMENT IS ALSO UNLAWFUL

I have the Right to show my best defense, claim, and evidence. The Rules of Procedure and the law do not allow a judge to weigh the evidence to grant summary judgment on civil RICO claims.

 

4. WHETHER THE $62,255.00 "SANCTION" JUDGMENT IS ALSO UNLAWFUL

It is a criminal punishment without due process for having made a civil RICO claim

 

5. WHETHER THE TRIAL JUDGE SHOULD HAVE BEEN RECUSED FROM THE CASE[11]

For not abiding by statutory law, the Rules of Procedure, and the mandates of the Supreme Court

 

6. WHETHER THERE WAS FRAUD, FRAUD, AND MORE FRAUD

FRAUD from start to finish, intrinsic and extrinsic, turning into retaliation by official oppression

 

7. WHETHER DUE PROCESS DEMANDS A NEW TRIAL

I am entitled to appointment of an auditor, enforcement of the rules of discovery,

and my best defense, claim, and evidence under civil RICO.

 


ISSUES PRESENTED TO THE APPEALS COURT

IN MY MOTION FOR REHEARING EN BANC

(essentially the same as the Question in this Petition for Rehearing)

 

1. Whether the Panel's Opinion is devoid of Constitutional considerations

                    It is "clearly established that filing a lawsuit was constitutionally protected conduct " Rutan , 497 U.S. 62

 

2. Whether the Panel micro-procedurally upholds a patently unlawful $62,000 punitive sanction for having made a civil RICO (civil racketeering) pleading

                    "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of criminal proceedings, including the requirement that the offense be proved beyond a reasonable doubt. Hicks v. Feiock, U.S. Supreme Court, 485 U.S. 624 (1988)

 

3. Whether the Panel micro-procedurally upholds a $59,000 judgment that does not conform to the pleadings and the verdict.

                    It does not conform to the pleadings and the verdict (RCP Rule 301. Judgments)

 

 

 

ISSUES PRESENTED IN THIS PETITION FOR REHEARING

 

Question presented:

Whether the precedent of a Texas court actually assessing a FINE of $62,000 (or ANY fine), merely because the evidence did NOT prove a person's claim under 18 U.S.C. 1964(c) "civil RICO", defeats the stated purpose of the [civil RICO] statute, and offends the Constitution?

"[a] Congressional objective [in enacting civil RICO with treble damages] of encouraging civil litigation not merely to compensate victims but also to turn them into private attorneys general, supplementing Government efforts by undertaking litigation in the public good." Rotella v. Wood et al., 528 U.S. 549 (2000),

 

"clearly established that filing a lawsuit was constitutionally protected conduct. "

Rutan v. Republican Party of Illinois.", 497 U.S. 62, 73 , 76 n.8 (1990).



[1] Suit initially brought by attorney G. David Westfall in behalf of the "Law Office", claiming an unpaid OPEN ACCOUNT for LEGAL FEES. There of course never was an open account, not with a $20,000 NON-REFUNDABLE prepayment "for the purpose of insuring our [lawyer's] availability", and the lawyer reserving the "right to terminate" for "your [Birnbaum] non-payment of fees or costs".

[2] Told me I had "a very good case" in suing 294th District Judge Tommy Wallace, and others under civil RICO, for what they had done to me with their "BEAVER DAM" scheme on me.

 

[3] Attorney daughter of G. David Westfall, and OWNER of the "Law Office" (at least on paper).

 

[4] Wife of G. David Westfall and long time BOOKKEEPER at the "Law Office"

 

[5] Plaintiff's Original Petition 9-20-00 (Clerk's Record 16-17) and First Amended Original Petition 9-05-01 (Clerk's Record 229-237), ONE YEAR LATER, no difference except for attached exhibit "A" and verification. There is of course no such thing as an OPEN ACCOUNT for "legal services", not with a $20,000 non-refundable prepayment.

[6] Plaintiff did not plead breach of contract, and certainly not all the elements of breach of contract, although the jury issues were made to sound in breach of contract. See Issue 1 and Issue 6 in this Petition.

[7] Defendant's Amended Answer, Counterclaim, and Cross-Complaint 7-06-01 (Clerk's Record 92-99)

[8] Udo Birnbaum's Amended Third Party civil RICO claim, against G. David Westfall, Christina Westfall, and Stefani Podvin 7-11-01 (Clerk's Record 100-114)

[9] Motion for Appointment of Auditor Pursuant to Rule 172 RCP to Make Finding of State of the Accounts between the parties. 12-26-00 (Record 65-66). Also Supplement to Motion for Appointment of Auditor etc 1-8-01 (Record 67-68). RCP rule 172 says the trial judge SHALL appoint an auditor, but this trial judge would not do so. See Issue 2, this Petition.

[10] Exhibit A, at the end of this Petition

[11] Not presented in this Petition because of page limitation.