Note: Request for Findings document is below.   ("Judge Banner, tell us exactly how you came up with this!")


                                                           

 

I am asking the Appeals Court to make the judge put it ON PAPER!

What I was supposed to have done that he thought so AWFUL

Go see the Sanction Order  Supposed to state with "particularity". Says NOTHING!
 


"Visiting judge" Paul Banner PUNISHED me $62,255 for having DEFENDED myself in our [old] District Court by speaking out about fraudulent suits against me. All started with the fraudulent "beaver dam" suit in 1995!

 

And he will not put down ON PAPER, as he is supposed to, what he thought I did so AWFUL.

I am now trying to get the Appeals Court to have him PUT IT IN WRITING.

 

I cannot let these UNLAWFUL judgments stand.

"As only ONE, I may not be able to make them do RIGHT,

 but I can let them SHAME THEMSELVES into ever more obvious WRONGS."

 

Click why Judge Banner cannot put it ON PAPER!  It would show he hid the case from the jury!

Click here to go right to the heart of the First Amendment issue   I have a Right to speak out

This case has become far more than a matter between parties   UNLAWFUL punishment

    All stemmed from [old] court. Let us NEVER again let crooks run our District Court!

    Vote responsibly!  Act locally. Learn.

"I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man." -- Thomas Jefferson, 1800, as inscribed in the Jefferson Memorial

"There is nothing more terrifying than ignorance in action" Goethe (1749-1832)

So here goes:
 

* * * * * * * * * * *  * * * * * * * * * *  * * * * * * * * * * * * * * ** *  * * * * * * * * * * * * * * *

 

No. 05-02-01683-CV

In the Court of Appeals

Fifth District of Texas at Dallas

 

UDO BIRNBAUM

Defendant, Counter/Cross-claimant, Third Party Plaintiff - Appellant

 

v.

 

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

Plaintiff, Counter Defendant - Appellee

 

G. DAVID WESTFALL

Cross/Third Party Defendant, Sanction Movant - Appellee

 

CHRISTINA WESTFALL

Cross/Third Party Defendant, Sanction Movant - Appellee

STEFANI PODVIN

Cross/Third Party Defendant, Sanction Movant - Appellee

 

 

Appeal from the 294th Judicial

District Court of Van Zandt County, Texas

The Honorable Paul Banner, "visiting judge"

Trial cause no. 00-00619

 

 

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

APPELLANT'S MOTION TO HAVE THE TRIAL JUDGE

PRODUCE FINDINGS AND CONCLUSIONS

And permit Appellant to respond thereto, including oral presentation

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

UDO BIRNBAUM

PRO SE

540 VZ CR 2916

Eustace, TX 75124

(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, 6611 Hillcrest Ave.

Dallas, Texas 75205-1301

(214) 373-1234

(214) 373-3232 (fax)

 

Udo Birnbaum[3] Udo Birnbaum, pro se

Defendant, Counter-claimant, 540 VZ 2916

Third party plaintiff Eustace, Texas 75124

(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 MOTION TO HAVE THE TRIAL JUDGE

PRODUCE FINDINGS AND CONCLUSIONS

And permit Appellant to respond thereto, including oral presentation

 

PLAINTIFF The Law Offices of G. David Westfall, P.C. ("Law Office") claimed an UNPAID OPEN ACCOUNT[8] for "legal services" in the amount of $18,121.10 and pleaded no other cause of action.

DEFENDANT Udo Birnbaum ("Birnbaum") answered 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 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 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 a lawyer named G. David Westfall, for the purpose "of insuring our availability in your matter".[9]

The trial judge, Hon. Paul Banner, over Appellant Udo Birnbaum's objections[10] submitted jury[11] issues NOT sounding in open account (sale, delivery, systematic records, amount owed), and somehow arrived at a judgment of 59,280.66 against Birnbaum, regardless.

Other issues too numerous to detail aside, Judge Banner ultimately unconditionally sanctioned[12] Birnbaum by additional $62,885 judgment for having made civil RICO cross and third party claims TWO YEARS early, without stating ANY reasons, without ever having warned Birnbaum about anything, without ANY disobedience EVER on the part of Birnbaum. Such unconditional sanction is of course punitive, not coercive, and patently UNLAWFUL on Constitutional DUE PROCESS grounds , in addition to violating this own circuit's Westfall Family Farm, Inc. v. King Ranch, Inc., 852 S.W.2d 587 (1993) (same "The Westfalls")

On Sept. 3, 2002 Birnbaum asked for Finding Of Facts and Conclusions Of Law[13] as to how Judge Paul Banner came up with such judgments. The issue is perhaps best summed up in Birnbaum's Notice of Past Due Findings Of Fact and Conclusions Of Law[14]:

 

"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:

1.     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?

 

2.     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?

 

The LAWLESSNESS of sanctioning me for having voiced my civil RICO complaint is perhaps best summed up in my Motion To Reconsider The $62,885 'Frivolous Lawsuit Sanction' Against Me[15]

 

"If, after reconsideration, this Court still feels that what I did was so sanctionable, please advise me as to other views I am also not allowed to voice, whether to this Court, on Appeal, or elsewhere, lest I unknowingly risk being subjected to further sanctions".

 

It was at the July 30, 2002 "sanctions hearing"[16] (after the Apr. 8-11 trial, and after having pronounced the first judgment), that Judge Banner somehow weighed[17] the evidence (see quote next paragraph), and somehow "found" that I had no basis in law or in fact[18] to make a civil RICO claim, and unconditionally punishes me $62,255 for having made such civil RICO claim 14 months earlier on Apr. 30, 2001 [19]. In pronouncing sanctions[20] ($62,255.00) on July 30, 2002, Judge Banner states:

"[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." [21]

 

This short statement is the ONLY hint in the entire proceeding as to why I was sanctioned! (This Motion is of course to have Judge Banner make more formal findings of fact and conclusions of law ). Apparently even the Appellees are becoming concerned. Their footnote 4, their 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. Lower Neches Valley Auty. Etc)" (emphasis added)

 

 

However, NO SUCH REQUEST has been FILED or SERVED! Also why the Appellee Westfalls believe that Judge Banner would favor them with a finding, when he would not do it for me.[22] ALL SMOKE AND MIRRORS.

 

SUMMARY

FINDINGS by the trial judge are MANDATORY for an intelligent review of this case by this Appeals Court, and higher courts, should I have to take it there.

 

Findings not only regarding the SANCTION JUDGMENT, but also regarding the FIRST JUDGMENT, the "open account" pleading issue, for it was NEVER SUBMITTED TO THE JURY, and Judge Banner just came up with it on his own, despite my wanting it heard by JURY!

 

It is also fundamental that I be allowed to respond to such FINDINGS, by Briefing this Appeals Court upon such findings.

 

This case has become far more than a matter between parties. I am pleading to this Honorable court about UNLAWFUL judgments put on me by a judge, whom I had previously tried to get recused[23] off my case for having shown that he CANNOT or WILL NOT abide by statutory law, the Rules of Procedure, nor the mandates of the Supreme Court of the United States.

 

 

PRAYER

 

WHEREFORE, Appellant Birnbaum moves this Appeals Court:

1.     That trial judge Paul Banner produce Findings regarding BOTH judgments.

 

2.     That I be allowed a SUPPLEMENTAL BRIEF to address the issues raised by such Findings.

 

3.     That I be allowed to ARGUE to this Appeals Court, upon the Findings, as a minimum. THIS IS NOT A GARDEN VARIETY APPEAL.

 

4.     That submission before the panel now scheduled for October 21 be deferred, if necessary, to allow for me to SUPPLEMENT my Brief.

 

5.     AND IN THE ALTERNATIVE, for this Court to ORDER the appointment of an Auditor, as the trial court should of course have done under RCP Rule 172, with diametrically opposite sworn affidavits as to the "state of the account" staring at each other, and especially so with the complex nature of the pleadings (civil RICO).

 

NOTE: I am also providing, under separate cover, my Motion To Consider, re the "waiver" entry (regarding ORAL ARGUMENT) appearing on your Fifth Circuit web site. This case deserves more than being a mere "blip" (number) on a "list of cases" handed to a clerk at the front desk to mail out generic letters. See my Motion To Consider for details. I have the Right to be heard in a higher court, upon LAWLESSNESS upon me by a lower court.

 

 

Sincerely,

 

________________________

Udo Birnbaum, pro se

540 VZ 2916

Eustace, Texas 75124

(903) 479-3929 phone and fax

 

 

 

Certificate of Service

This is to certify that on this the _5___ day of August, 2003 a copy of this document was sent by Regular Mail to attorney Frank C. Fleming at PMB 305, 6611 Hillcrest Ave., Dallas Texas 75205-1301. A copy of this document has also been provided to Judge Paul Banner through Pam Kelly, court coordinator for the 294th District Court in Canton, Texas.

 

___________________

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] Plaintiff's Original Petition 9-20-00 (Civil Appendix 18, Clerk's Record 16-17) and First Amended Original Petition 9-05-01 (Civil Appendix 20, 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.

[9] Letter agreement between Westfall and Birnbaum 5-5-99 Civil Appendix 15, paragraph 2.

[10] Defendant Birnbaum's Objections etc. Civil Appendix 35, Clerk's Record 339.

Also Objections to today's plaintiff's court charge, Civil Appendix 37, Clerk's Record 344

[11] Court's Charge. Civil Appendix 38, 41. Clerk's Record 345, 348.

[12] Order on Motions for Sanctions, Civil Appendix 11, Clerk's Record 432. NO "PARTICULARITY" AT ALL.

[13] Request For Finding Of Fact And Conclusions Of Law Clerk's Record 461

[14] Notice Of Past Due Findings Of Fact And Conclusions Of Law, Civil Appendix 93, Clerk's Record 492.

[15] Motion To Reconsider The $62,255.00 "Frivolous Lawsuit" Sanction Against Me Civil Appendix 78, 80, Clerk's Record 441, 443.

[16] This was after the Apr. 8-11, 2002 trial at which Judge Banner would not let me show the jury my civil RICO claim and evidence. (Summary Judgment "RICO relief" on 9-7-01, Civil Appendix 4)

[17] Whether he thought my evidence showed "frivolous", as the Westfalls claimed, or "bona fide racketeering", as I was claiming, I guess. I had of course asked for trial by jury.

[18] Is not civil RICO the law? And does not the law say that only the jury is to weigh the evidence?

[19] Udo Birnbaum's Third Party Plaintiff civil RICO Claim against G. David Westfall, Christina Westfall, and Stefani Podvin 4-30-01, amended by Udo Birnbaum's Amended Third Party Plaintiff civil RICO Claim against G. David Westfall, Christina Westfall, and Stefani Podvin 7-11-01 (Record 100)

[20] Civil Appendix 11, Clerk's Record 432

[21] Transcription of ending of sanctions hearing of 7-30-02, Civil Appendix 13, also separately provided by court reporter Barbara J. Roberson to the Fifth Court of Appeals

[22] Request For Finding Of Fact And Conclusions Of Law Clerk's Record 461. Also Notice Of Past Due Findings Of Fact And Conclusions Of Law, Civil Appendix 93, Clerk's Record 492.

[23] Motion For Recusal Of Hon. Paul Banner. Clerk's Record 263. Also Docket Sheet, Civil Appendix 1, Clerk's Record 1.