No. 04-0078
IN THE
SUPREME COURT OF
UDO
BIRNBAUM,
Petitioner
vs.
THE
LAW OFFICES OF G. DAVID WESTFALL, P.C., ET AL.,
Respondents
On appeal from the
------------------------------
PETITION FOR
REVIEW
(Appendix bound separately)
------------------------------
Question presented:
Whether
the precedent of a
"[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
"clearly established that filing
a lawsuit was constitutionally protected conduct." Rutan
v. Republican Party of Illinois, 497
Udo Birnbaum, Pro Se
540 VZ 2916
(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
(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,
(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
Rotella v. Wood et al., 528
Rutan v. Republican Party of
497
United Mine Workers v.
Bagwell,
512
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
(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
(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 -
JUDGMENT -
ORDER (Motion for Rehearing En Banc) - DENIED
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
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
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
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.
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
"[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
"clearly established that filing a lawsuit was constitutionally protected conduct. "
Rutan v. Republican Party of Illinois.", 497
[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).
[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
[8] Udo Birnbaum's Amended Third Party civil
RICO claim, against G. David Westfall, Christina Westfall, and Stefani Podvin
[9] Motion for Appointment of
Auditor Pursuant to Rule 172 RCP to Make Finding of State of the Accounts
between the parties.
[10] Exhibit
A, at the end of this Petition
[11] Not presented in this Petition because of page limitation.