No. 05-02-01683-CV
In the Court of Appeals
Fifth District of
UDO BIRNBAUM
Defendant, Counter-claimant,
Third Party Plaintiff - Appellant
vs.
THE LAW OFFICES OF G. DAVID
WESTFALL, P.C.
Plaintiff, Counter Defendant
- Appellee
G. DAVID WESTFALL
Third Party Defendant,
Sanction Movant - Appellee
CHRISTINA WESTFALL
Third Party Defendant,
Sanction Movant - Appellee
STEFANI PODVIN
Third Party Defendant,
Sanction Movant - Appellee
Appeal from the 294th
Judicial
The Honorable Paul Banner,
by assignment
Trial cause no. 00-00619
------------------------------
Appellant's
[RCP Rule 298] Response and Objection to
Appellees'
Motion to Allow the Filing of the Trial Judge's
Findings of
Facts and Conclusions of Law
These Findings of "bad
faith", just made, have no support in the trial court record,
and are in direct
conflict with a prior determination of "well-intentioned"
------------------------------
Because of the harm and prejudice that could be caused
by Judge Banner's belated Findings and Conclusions, I PETITION
THAT THIS ENTIRE DOCUMENT BE PRESENTED TO THE ENTIRE PANEL IN
THEIR CONSIDERATION UPON THE ENTIRE APPEAL. (One original and SIX copies
are being provided)
I
petition for such regardless of this Court's ruling on Appellees' Motion, as
their Motion, and this Response relates directly to the
matters on Appeal. (lawlessness)
UDO BIRNBAUM, Pro
Se
540 VZ CR 2916
(903) 479-3929
* * * * * * * * *
IDENTITY OF
PARTIES AND COUNSEL
The
Law Offices of G. David Westfall, P.C.[1] Frank C. Fleming[2]
Plaintiff, Counter-defendant PMB 305,
(214)
373-1234
(214)
373-3232 (fax)
Udo
Birnbaum[3] Udo
Birnbaum, pro se
Defendant, Counter-claimant, 540 VZ 2916
Third party plaintiff
(903) 479-3929
(903) 479-3929 fax
G.
David Westfall[4] Frank
C. Fleming
Third party defendant
Stefani
Podvin[5] Frank
C. Fleming
Third party defendant
Christina
Westfall[6] Frank C. Fleming
Third party defendant
Hon.
Paul Banner[7],
trial judge
* * * * * * * * *
Appellant's
[RCP Rule 298] Response and Objection to
Appellees'
Motion to Allow the Filing of the Trial Judge's
Findings of
Facts and Conclusions of Law
These Findings of "bad
faith", just made, have no support in the trial court record,
and are in direct conflict
with a prior determination of "well-intentioned"
To this
Honorable Appeals Court:
Please forgive my trying to address this
matter at a little higher and concise level. Details can be found on your
computer docket sheet and my previous briefs and motions.
Introduction
and summary
1. The
essence of this Response and Objection is that Appellees' motion to allow the
trial judge to now make findings is a continuation of their lawlessness
in the trial court:
·
These new Findings were belatedly crafted to paint me as some sort
of monster.
·
These new Findings are not supported by the trial court record .
·
These new Findings are not supported by the rules and law
that apply to sanctions.
·
These new Findings are in conflict with the trial record[8]
of "well-intentioned"
·
These new Findings come as a surprise, and may cause harm to
Appellant, lest this [RCP Rule 298] Response and Objection be
presented in its entirety to the entire panel for consideration of this entire
Appeal. (SIX copies provided)
Background
2. The
essence of my Appeal Brief (
3. The
essence of my Reply Brief (July 17, 2003) was that Appellees' contentions in
their Response Brief (June 20, 2003) do not "fit",
i.e. they were quoting something out of a law book that sounds good, but that
their answers do not "fit" the appeals issues. Also that they were lying[10]
when they told this Appeals Court that they were at that time (June 20,
2003) in the process of having Judge Banner make Findings. (as indicated by
their now bringing "findings")
4. I
submitted Appellant's Motion to Have the Trial Judge Produce Findings and
Conclusions (
5. Next
the Appellees come into this Appeals Court with Appellees' Response to
Appellant's [DENIED] Motion to have Trial Judge Produce Findings and
Conclusions (Sept. 24, 2003), asking that "the Court allow[12]
Judge Banner to file his Findings of Fact and Conclusions of Law in this
matter, etc.", with their letter[13]
to Judge Banner and a proposed[14]
eight (8) page vituperation[15]
("finding", Exhibit "A") they have concocted out of thin
air to paint me as some sort of monster to the judicial system. My response letter[16]
to Judge Banner gives details. (attached)
6. On
7. Now
(October 6, 2003) Appellees come into this Appeals Court with Appellees'
Motion to Allow The Filing of the Trial Judge's Findings of Facts and
Conclusions of Law, accompanied by an Exhibit "A", a seven
(7) page[18] signed
Finding
and Conclusions.
8. Attached
to this Response and Objections are copies of the rapid-fire
documents being put
before Judge Banner, with my handwritten notations thereto. I am also providing
a copy of Judge Banner's prior determination regarding my conduct during
the entire proceeding: "well-intentioned".
(Judge Banner's last words, just after he sanctioned me $62,000 for
having made a civil RICO claim)
Regarding
Judge Banner's latest Findings
9. This
groundless Finding now being flashed by Appellees has no particularity
or specificity or detail whatsoever, only a general condemnation
for my having made a "RICO civil
conspiracy claim". (their phrase for
"civil RICO", I presume). The real issue in this
10. In
his Finding,
again and again Judge Banner now finds violations of "§
9.000 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
As shown below, NONE of this law applies
to the facts in this case. Also note that §9.000 et seq. Civ. Prac. Rem. Code is the only statutory
provision that allows attorney fees for an entire proceeding (Judge
Banner's sanction of $62,000).
11. Regarding § 9.000 et seq. Civ. Prac. Rem. Code:
· Section §9.000 et seq. of course only applies to "injury, property damage, or death", under any cause of action, and to TORT causes of action (my pleading was civil RICO, statutory law).
· Section §9.000 also specifically excludes Texas DTPA claims (a mini-RICO). Also it has a 90-day "safe-harbor" provision, and applies only after a determination of "frivolous pleadings", which Judge Banner never made, except now in this Finding, after everything is finished! I had of course asked for appointment of an auditor, to show that the "collection" suit against me was frivolous.
· Also it specifically states that section $9.000 does not apply if Rule 13 is involved.
· (This section is also the only one that allows attorney fees for the entire proceeding, after a "frivolous lawsuit" determination, which there was not, and opportunity to withdraw an supposedly offending pleading).
·
So much
for monetary sanctions under §9.000
et seq.
12. Regarding §10.000 et seq. Civ. Prac. Rem. Code:
· Section §10.000 et seq. only applies to attorney fees in obtaining a §10.000 sanctions
· Sanctions under §10.000 require the naming of the conduct which violated §10.000, which the Sanctions Order did not. (It gave NO REASON WHATSOEVER)
·
So much
for monetary sanctions under §10.000
et seq.
13. Regarding T.R.C.P.
Rule 13:
· This Rule states that "No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanctions order".
· No "particulars" were stated in the Sanction Order of $62,000 (nor in this Finding)
· The "appropriate sanctions available" are those under Rule 215-2b, which only include the court issuing Orders (of which there were none), and payment for damages caused for violation of an ORDER (of which there was none)
· So much for monetary sanctions under T.R.C.P. Rule 13.
14. Regarding "and/or
the common law":
· The "common law" does not provide for the imposition of sanctions.
Regarding
the trial court record
15.
The trial record, however, gives the true reason Judge Banner
PUNISHED[19]
me $62,000, namely for making a civil RICO pleading when I was sued:
"[A]lthough
Mr. Birnbaum may be well-intentioned
and may believe that he had some kind of real claim as far as RICO there was nothing
presented to the court in any of the
proceedings since I've been involved that suggest he had any
basis in law or in fact to support his suits against the individuals,
and I think -- can find that such sanctions
as I've determined are appropriate."
Close
of hearing on Motion for Sanctions,
Note:
·
My civil RICO claim was against "the individuals", i.e. that "The [three]
Westfalls" were using their Law office as a RICO "enterprise".
(More precise language in my Brief). This was the only
claim I made against "the
individuals"
·
Again note, that I was found "well-intentioned".
·
Also note, there is no record of anything
other than "well-intentioned" in the entire proceeding, except this
newest Finding which Judge Banner is trying to now bring to this
Regarding the Appeals Issue
(and
the Finding I was trying to have Judge Banner make)
16. The
core of the issues in my Appeal is how Judge Banner arrived
at the two (2) judgments against me. As
I asked in my Notice of Past Due Findings and Conclusions":
"Your Honor, please let the record know what findings
of fact, and conclusions of law you made to come
up with the two judgments you
awarded against me in this case:
·
How, upon a pleading
of an unpaid open account,
and absent a finding to you by an Auditor under RCP Rule 172 regarding such
claimed unpaid open account,
and absent a finding by a jury as to the state of the account, what findings
of fact, and what conclusions of law did you make to
award a judgment totaling $59,280.66
against me upon such pleading, an
issue I had asked to be resolved by jury?
·
How upon my
cross and counter claim under 18 U.S.C. §
1961, et seq. ("civil RICO"), against three (3) persons, and
having dismissed such three (3)
persons on November 13, 2001, what findings of fact and what conclusions
of law did you now make,
on August 21, 2002, so as to entitle these dismissed
parties to a $62,885.00 second
judgment against me, in the same case, on an issue I had asked to be resolved by jury?
17. My
Appellant's
Brief shows in detail why the $62,000 Sanction Judgment is not only
UNLAWFUL, but is a punitive (criminal, not "coercive")
sanction, imposed on me without full due criminal process.[20]
Conclusion
18. My
briefs and motions detail a flagrant abuse of the judicial system against me.
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.
19. It
is clear what Appellees and their lawyer are up to now, namely trying to
"undo" the finding of "well-intentioned",
and blaming me for their sins of the whole proceedings. Please
recognize that the evil is on their side of the telescope.
20. This
whole matter on me started with a fraudulent "beaver dam" case
against me in 1995 (still in the 294th EIGHT (8) years later). Then this
fraudulent case against me claiming an unpaid "open account" for legal fees.
21. There
is no underlying damage. There is
no underlying OPEN ACCOUNT. All fraudulent "legal
fees" and more "legal fees" for "collecting" on
fraudulent legal fees. It is past time to call on the U.S. Justice
Department.
PRAYER
WHEREFORE,
Respondant/Appellant Birnbaum prays that this court deny Appellees' Motion and disallow
the making by Judge Banner of Findings so contrary to the trial
court record.
I have provided, for this Court's
consideration, Birnbaum's [RCP Rule 298] Response to Judge Banner's Findings.
I provide such since I would under normal circumstances have a right and
opportunity under RCP Rule 298 to request additional or amended findings of
fact and conclusions of law. Please
forgive the somewhat rough and incomplete nature of that document.
Because of the harm and prejudice that
could be caused by Judge Banner's belated Findings and Conclusions, I PETITION
THAT THIS ENTIRE DOCUMENT BE PRESENTED TO THE ENTIRE PANEL IN
THEIR CONSIDERATION UPON THE ENTIRE APPEAL. (One original and SIX copies
are being provided)
I petition for such regardless of
this Court's ruling on Appellees' Motion, as their Motion,
and this Response relates directly to the matters on Appeal. (lawlessness)
______________________
UDO BIRNBAUM
540 VZ CR 2916
(903) 479-3929 phone
(903) 479-3929 fax
Attachments:
1.
Trial court record of "well-intentioned"
- caught by the court reporter
2.
Order on Motion for
Sanctions
- $62,000 sanctions without ANY
particularity
3.
Fleming's
4.
Fleming's
5.
My (Birnbaum)
6.
My (Birnbaum)
7.
Judge Banner's
8.
Fleming's
9.
Fleming's
Certificate of Service
This is
to certify that on this the __13____ day of October, 2003 a copy of this document
was sent by Regular Mail to attorney Frank C. Fleming at PMB 305,
___________________
Udo Birnbaum
[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] Somehow appeared as "co-counsel" for the "Law Office" shortly before trial. Then the only lawyer. But no document "of record" of his appearance for the "Law Office".
[3] Nincompoop for having let G. David Westfall talk him into paying non-refundable $20,000 UP FRONT money for a civil racketeering suit against state judges and other state officials. (suit had no worth)
[4] 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.
[5] Attorney daughter of G. David Westfall, and OWNER of the "Law
Office" (at least on paper).
[6] Wife of G. David Westfall and long time BOOKKEEPER at the "Law Office"
[7] "Visiting judge", literally. Did not go through regular court-coordinator Betty Davis, nor had clerk or bailiff present during trial. Did it all by himself. See Appeals issues.
Listed as a participant because of Appeals Issue 5 (denied motion for recusal). Also because of unlawful (punitive, not coercive) $62,255 "frivolous lawsuit" sanction (Issue 4)
[8] "[A]lthough Mr. Birnbaum may be well-intentioned and may believe
that he had some kind of real claim as far as RICO there was nothing presented to the court in any
of the proceedings
since I've been involved that suggest he had any basis in law or in fact
to support his suits against the individuals, and I think -- can find
that such sanctions as I've
determined are appropriate." Close
of hearing on Motion for Sanctions,
[9] Wrong jury questions, would not let me show
my best case, evidence, etc. Also the
judge himself decided the civil RICO issue, i.e. whether my claim was
"frivolous" as Appellees TWO YEARS LATER claimed (but NOT in their
pleadings! ), or bona fide RACKETEERING as I was
trying to show. (I had asked that the
civil RICO issue be tried by JURY).
[10] Their footnote 4, page 25, reads: "While
a jury trial verdict did not require finding of facts and conclusions of
law to be filed in order to support the verdict on appeal, the Court's
ruling on the sanctions motions should be accompanied by findings of facts and
conclusions of law. This point has been recognized by the Appellees
and late findings of fact and
conclusions of law are NOW BEING REQUESTED from the trial judge. The
trial court can file findings of fact after the deadline to file them has
expired. (Jefferson Cty. Drainage Sist. V.
[11] Regarding the first judgment, over my objections, Judge Banner did not ask the right questions to the jury. In the second judgment, whether there was indeed a violation of RICO as I claimed, and whether I was "injured in my property or business by reason [thereof]", Judge Banner did not allow me to take this to the jury, and Judge Banner himself decided that the evidence showed that there had been no RICO violation, and unconditionally punished me. But I had asked for determination by jury.
[12] "Wherefore, premises considered, Respondent prays this Court deny the relief sought by the Movant [to make Judge Banner to make Findings!!!!!] in delaying the Court's consideration of this matter except to the extent that the Court allow Judge Banner to file his Findings of Fact and Conclusions of Law in this matter, and for such other and further relief … … etc. (Their Response, page 3, last paragraph).
[13] Attached to this Response
[14] Attached to this Rfesponse
[15] Vituperation (Webster's Dictionary): "sustained and bitter railing and condemnation", an act or instance of vituperating, i.e. to abuse or censure severely or abusively : BERATE: syn ABUSE: to use harsh condemnatory language syn SCOLD
[16] And also the rapid faxes passing between Frank Fleming and Judge Banner, made an attachment to this document.
[17] Attached
[18] Judge Banner apparently communicated with them, but not me, and got them to remove some of their hyper-ridiculous words.
[19] It is also a CRIMINAL type sanction (UNCONDITIONAL, not "coercive"), imposed without due CRIMINAL process, including a finding of "beyond a reasonable doubt". See my Appeal Brief.
[20] See my briefs for case law and details