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
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
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
(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
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
"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
"[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.
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
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
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
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
(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,
___________________
Udo Birnbaum