www.OpenJustice.US
Note:
Click on any of the (145) [superscript] footnotes. Then click on the [footnote]
number to go back. PICTURE of file near end of Brief, just before the
footnotes.
No.
05-02-01683-CV
§
In the Court of Appeals
Fifth District of Texas at
Dallas
UDO BIRNBAUM
Defendant, Counter-claimant,
Third Party Plaintiff - Appellant
v.
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
District Court of Van Zandt County, Texas
The Honorable Paul Banner,
by assignment
Trial cause no. 00-00619
------------------------------
BRIEF FOR APPELLANT
(Civil Appendix is
bound separately)
------------------------------
OTHER SEPARATE DOCUMENTS: UDO BIRNBAUM
Trial Closing
Argument (transcription) PRO
SE
"Frivolous Lawsuit" Sanction Hearing 540 VZ CR 2916
(see
Index page 4) Eustace,
TX 75124
(903) 479-3929
IDENTITY OF
PARTIES AND COUNSEL
The
Law Offices of G. David Westfall, P.C. Frank
C. Fleming[1]
Plaintiff, Counter-defendant PMB 305, 6611 Hillcrest Ave.
Dallas,
Texas 75205-1301
(214)
373-1234
(214)
373-3232 (fax)
Udo
Birnbaum 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[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
Hon.
Paul Banner[5]
Trial
Judge
TABLE OF
CONTENTS
(a)
Identity of Parties and Counsel
……………………………………………… 2
(b)
Table of Contents
…………………………………….……………………… 3
(c)
Index of Authorities
…………………………….…………………………… 5
(d)
Statement of the Case …………………………………….…………………. 6
The nature of the case ……………………………………………………. 6
Course of proceedings …………………………………………………… 8
The trial court's disposition of the Case ………………………………… 11
(e)
Issues Presented
……………………………………………………………. 13
1. WHETHER the
$59,280.66 judgment is unlawful
2. WHETHER
defendant Birnbaum had a right to a court-appointed Auditor
3. WHETHER the
"RICO relief" summary judgment is also unlawful
4. WHETHER the
$62,255.00 "sanction" judgment is also unlawful
5. WHETHER the
trial judge should have been recused from the case
6. WHETHER
there was fraud, fraud, and more fraud
7. WHETHER due
process demands a new trial
(f)
Statement of Facts
[6] …………………………………………………….….. 14
Westfall ("The Law Office") had no case!
Westfall's "legal services had NO WORTH because
of judicial immunity .. 14
Auditor under RCP Rule 172 was never appointed ………………………..
17
Obstruction of discovery …………………………………………………... 17
Unlawful summary judgment ……………………………………………… 17
Fraud in submission of jury issues ………………………………………… 18
The trial
……………………………………………………………………. 20
Sanction judgment
………………………………………………………… 21
Post judgments motions in the trial court …………………………………. 22
(g)
Summary of the Argument
………………………………………………... 24
(h)
Argument
………………………………………………………………….. 26
1. The
$59,280.66 judgment is unlawful
…………………………………. 26
2. Defendant
Birnbaum had a statutory Right to a court-appointed Auditor .. 27
3. The
"RICO Relief" summary judgment is also unlawful ………………..
28
4. The
$62,255.00 "sanction" judgment is also unlawful …………………..
31
5. The trial
judge should have been recused from the case
……………...… 35
6. Fraud,
fraud, and more fraud
……………………………………………. 36
7. Due process
demands a new trial
……………………...………………... 38
(i)
Prayer
……………………………………………………………………….. 42
The trial judge's last words in the
case ………………………………….. 43
(j)
Civil Appendix (separately bound document)
OTHER SEPARATE DOCUMENTS
·
CLOSING
ARGUMENTS from the jury trial of April 11, 2002
D. Keith Johnson, RDR, CRR (provided directly to this Appeals Court)
·
EXCERPT
FROM [SANCTION] HEARING held 7-30-02
Barbara J. Roberson (provided directly
to this Appeals Court)
·
CLERK'S
RECORD (Volume 1 and Volume 2)
INDEX OF
AUTHORITIES
Estee Lauder, Inc. v. Harco
Graphics, Inc.,
D.C.N.Y.1983, 558 F.Supp.83 …………………………………………….. 3
Lode v. Leonardo, D.C.Ill.1982, 557 F.Supp. 675 ………………………..… 30
Milligan v. R&S
Mechanical,
NO. 05-87-01341-CV,
Court of Appeals, Fifth District of Texas, Aug. 11,
1998 ……………….. 26
Rotella v. Wood et al., 528 U.S. 549 (2000) ……………………………… 7, 25
Team Central, Inc. v.
Teamco, Inc., 271 N.W.2d 914,
920 (Iowa 1978)
……………………………………………..…………… 27
United Mine Workers v.
Bagwell,
512 U.S. 821 (1994) ……………….…….. 31
Westfall Family Farms, Inc.
v. King Ranch, Inc.,
852 S.W.2d 587 (1993) ………………………………..………….. 17,
23, 24
Wilcox Development Co. v.
First Interstate Bank of Oregon,
N.A., D.C.Or.1983, 97 F.R.D. 440 …………………………….………….. 30
Texas
Court of Criminal Appeals, No. 73,986 (June 5, 2002) ………...……… 32
RCP Rule 13.
Sanctions
………………………………………...………… 33
RCP Rule 172. Audit (appointment of auditor) …………….…………. 28, 38
RCP Rule 185. Suit on Account ………………………..………………….. 37
RCP Rule 276
Refusal or Modification (of requested jury issues) ……
22, 39
RCP Rule 301. Judgment ……………………………………….……...
21, 27
18 U.S.C. §
1964(c) ("civil RICO")
………………………….…………. 6, 30
STATEMENT
OF THE CASE
The nature
of the Case
A pattern of
flagrant abuse of the judicial system
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.
PLAINTIFF The Law Offices of G. David
Westfall, P.C. ("Law Office") claimed an UNPAID OPEN ACCOUNT[7]
for "legal services" in the amount of $18,121.10 and pleaded no
other cause of action[8].
DEFENDANT Udo Birnbaum
("Birnbaum") answered
[9]
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[10]
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
[11]
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.[12]
THE U.S.
SUPREME COURT
established 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)
THE TRIAL COURT, Hon. Paul Banner, stated
at his appearance on June 20, 2001, that he had "never seen one [civil RICO
case] that had any merit"[13].
At the July 30, 2002
sanctions hearing[14]
(after the Apr. 8-11 trial), Judge Banner weighs the evidence
(see quote next paragraph), and somehow "finds" that I had no basis
in law or in fact 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
[15]. In pronouncing sanctions ($62,255.00
[16])
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."
[17]
DEFENDANT Birnbaum claims that Judge Banner hid the law and the facts
[18]
from the jury by not abiding by statutory law ("civil RICO"), the
rules of procedure (summary judgment rules), and the mandates of the Supreme
Court of the United States ("private attorneys general"), and that
the $62,255 sanction
[19]
Judge Banner imposed was not coercive (civil) at all but punitive
(criminal sanction), for it was for a completed act (had, was, had,
above), and was imposed on him without due (full criminal) process
including a finding beyond a reasonable doubt (by a jury)[20].
DEFENDANT Birnbaum claims that he is the victim of retaliation and official oppression[21]
for having spoken out via his civil RICO claim on corruption and racketeering,
and that Judge Banner should have been recused long ago for not abiding by the
law of the land
[22]. (Also Issue 5 of this Appeal).
Course of proceedings
The Law Office and each of
the Westfalls moved to quash depositions and objected to numerous interrogatory
and production requests[23],
but never moved to dismiss any of Birnbaum's claims against them[24].
On June 20, 2001, nine
(9) months since the suit upon Birnbaum started, visiting judge Paul Banner
appeared as the first judge ever in the case, having been assigned on
January 26, 2001 by Judge John Ovard of the First Administrative Judicial
Region, without any motion for recusal, or order of recusal or referral
from 294th District Judge Tommy Wallace. Hearings had been set for May 9, June 6, and then June 20, 2001,
but June 20, 2001 was the first actual hearing in the case[25].
Judge Banner asked the parties if there were any pending motions to dismiss
or for summary judgment. There
were none, and Judge Banner issued a handwritten scheduling order[26]
that ordered depositions of all parties, and set certain deadlines,
but made no ruling and issued no order regarding Birnbaum's
complaint of obstruction of discovery[27]
and Birnbaum's motion for appointment of an auditor per RCP Rule 172 to
investigate and report on the state of the claimed account. (Judge
Banner NEVER ruled on Birnbaum's motion for appointment of an auditor, he just
NEVER appointed one)
On August 17, 2001 all the
Westfalls[28] moved for summary
judgment[29]. Birnbaum filed separate responses[30]
to the four (4) parties, i.e. 1) The Law Office, 2) G. David Westfall, 3)
Stefani Podvin, and 4) Christina Westfall, such responses accompanied by the
filing of an Appendix consisting of VOLUMES of additional exhibits[31].
Each of Birnbaum's responses designated specific evidence to each and every
"issue of fact" in his civil RICO claims (civil RICO has no
"elements" of law in the tort sense. Birnbaum used the U.S. Fifth
Circuit civil RICO Pattern Jury Instructions as a template, and designated
evidence to each jury issue of fact.)[32].
At a hearing on September 7,
2001 Judge Banner granted[33]
summary judgment against Birnbaum's civil RICO claims, but still did not rule
on Birnbaum's long-standing motion to appoint an auditor[34]
per RCP Rule 172 to investigate the state of the account. (Judge Banner
NEVER ruled on Birnbaum's motion for an auditor)
On September 10, 2001
Birnbaum moved for recusal[35]
of Judge Banner, such hearing being held before Judge Chapman on November 1,
2001, who denied such motion.[36] (See docket sheet)
On November 7, 2001 Birnbaum
submitted a petition for writ of mandamus[37]
to make Judge Banner appoint an auditor, and to let Birnbaum show his civil
RICO defense and claims. Such petition was denied on November 9, 2001.
No notice of any kind regarding the long ago set
trial[38] for Monday, Nov. 12, 2001 was received, and no
request issued for the parties' jury issues and instructions[39]. Indeed the Courthouse was closed[40].
So on Tuesday, Nov. 13,
2001, I went to the courthouse and asked Betty Davis, then Court Administrator,
if anything was to be heard that day for my case. Betty said that she was "out" of my case, but that nothing
civil was scheduled for the day[41],
so I started going home. It was then
that I saw Judge Paul Banner coming up the stairs and I followed him into the
courtroom.
It was then that David Westfall,
previously pro se, suddenly and
without any prior notice of any kind, was allowed representation by
"co-counsel" attorney Frank C. Fleming, Judge Banner granting their
motion in limine that I could not show the jury anything about anyone that
would not be present as a witness at the trial, and setting trial for
the next day, November 14,
2002.
With "co-counsel"
now on board, even the presence of G. David Westfall at the trial was no longer
a given, and I would not be able to present even my deposition evidence about
him. So I immediately had subpoena issued for G. David Westfall, and had such
served on him in Dallas that afternoon.
About noon on November 14,
2001, during jury selection, and with G. David Westfall present, Judge Banner called
the "trial" off.
The trial
court's disposition of the case
Trial started on April 8,
with a verdict and judgment[42]
pronounced on April 11. On May 9, 2002,
SEVEN MONTHS after having been removed from the case (by SUMMARY
JUDGMENT on Sept 7, 2001[43],
and ONE MONTH after pronouncement of judgment), the Westfalls moved for
sanctions[44]. On
July 30, 2002 judgment of $59,280.66 was entered against me, and sanctions of
$62,255.00 also pronounced. On August 21, 2002 Judge Banner "signed with
the clerk" (entered by filing) $62,255.00 in "frivolous lawsuit"
sanctions, which stated no particulars at all[45],
and made no findings of bad faith. Judge Banner had never warned me
regarding anything. I had never been disobedient to anything.
On Aug. 19, 2002 I filed Notice of Appeal[46],
Motion to Reconsider the $59,280.66
Judgment[47], Motion to
Reconsider the $62,255.00 Sanctions[48].
On Aug. 28, 2002 I filed Motion for New
Trial[49]
and on Sept. 3, 2002 Request for Findings
of Fact and Conclusions of Law[50]
regarding the $62,255.00 sanctions, and on Oct. 1, 2002 Notice of Past Due Finding of Facts and Conclusions of Law[51].
On September 18, 2002 I
filed a complaint[52]
with the Van Zandt Criminal District Attorney regarding retaliation by official
oppression for having spoken out against corruption in the trial court, the 294th
District Court of Van Zandt County.[53] On Oct. 8, 2002 I filed Notice
of Official Oppression and Unlawful Judgments Against Me[54]
with the Clerk of the trial court.
ISSUES
PRESENTED
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
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.
STATEMENT
OF FACTS
(A pattern of
flagrant abuse of the judicial system!)
Westfall ("The Law
Office") had no case!
[55]
On May 5, 1999 G. David Westfall and Udo Birnbaum signed an
attorney-client agreement[56].
Udo Birnbaum paid a $20,000 non-refundable retainer fee to be credited
against the overall fee in the matter. G. David Westfall agreed to bill monthly and not to obligate Udo
Birnbaum for any large expense without prior approval. G. David Westfall also asked Udo Birnbaum to pay expenses as they
are incurred, and reserved the right
to terminate the attorney-client relationship for non-payment of fees or cost.[57]
That was the only remedy G. David Westfall had for non-payment.
Besides that, it was NOT AN OPEN ACCOUNT at all as claimed in the suit, but a
$20,000 NON-REFUNDABLE PREPAID RETAINER AGREEMENT.
IT ALSO WAS NO CONTRACT. Careful reading shows that Birnbaum
promised NOTHING, but only agreed as to the use of the $20,000 RETAINER,
i.e. that it was for the purpose "of
insuring our availability in your matter"
[58],
and that it was non-refundable, and that Westfall could terminate upon certain
stated conditions.(See Appeals issue 6)[59] As a matter of law, Westfall had no case!
Westfall's "legal services" had NO WORTH
because of judicial immunity
In the letter agreement David Westfall told Udo Birnbaum: "I
will state parenthetically, from what you have told me, you have a very good
case". Based on the information and evidence
provided by Birnbaum, G. David Westfall filed amended civil RICO pleadings (No.
3-99-CV0696-R) in the Dallas Federal Court, (First Amended Complaint, June 28,
1999) accusing ten (10) defendants of engaging in
"a scheme round and about the 294th
District Court in Canton, Texas ("Wallace's Court") in which one or
more of the Defendants attempted to 'enrich' themselves by using their
relationships in the Court to extort legal fees, moneys, and other valuable
things, by the use of fraudulent documents, arguments, and corrupt Court
process as weapons for malicious prosecution".
The defendants included three state judges, one ex state judge,
a district attorney, two attorneys, the court coordinator and a court reporter.
The suit (No. 3-99-CV0696-R) was dismissed on September 20, 1999 by judgment
under Federal Rule 12(b)(6) ("failure to state a claim"), by reason
of absolute and derived judicial immunity, i.e. even if all things were as stated, it would still "fail to state a
claim".
The suit had no worth.
About that time (May 3, 1999) G. David Westfall and a Jerry
Michael Collins also signed a similar attorney-client agreement. G. David
Westfall likewise agreed to bill monthly.
G. David Westfall likewise told such Jerry Michael Collins: "I
will state parenthetically, from what you have told me, you have a very good
case".
The defendants included twenty or so defendants, including the
same state district judge, Tommy Wallace, another state district judge, the
same district attorney, a sheriff, an ex-sheriff, a constable, the same
court-coordinator, various lawyers, etc., also centered on the same 294th
District Court.
That suit (No. 3-99-CV0641) was
dismissed on March 10, 2000, and G. David Westfall sanctioned for acting in
"bad faith" in the suit, and ordered to pay the court a $2500 fine under the court's inherent power, and further to pay the
Comptroller of the State of Texas $189.97,
and $54.30 in damages to the state
district judge who had wanted Westfall "hammered"
"with
all the power it can legally muster, and thereby end this horribly dangerous
and abusive precedent against the judiciary itself." As the
federal judge said in the sanction order, "the filing of frivolous civil lawsuits
against judicial officers deserves a special place in the cornucopia of evils
plaguing our judicial system because such lawsuits are not only an affront to
the dignity of the courts but also an assault upon the integrity of our
judicial system".
[60]
Westfall's "legal services" in said Collins suit likewise
had no worth.
G. David Westfall in depositions stated that he never billed in
the Collins case.[61] Then, however, in the same deposition he
claims he did send a bill "at the same time as he billed me
[Birnbaum]". Birnbaum claims
Westfall never sent him anything until July 31, 2000, even though the
"bill" at issue in this case claims to be of December 31, 1999
origin, and to show several attempts of collection. Birnbaum denies all this,
claiming that the "bill" and the handwritten notations of "demand"
is all fraud. The deposition testimony of Westfall[62]
(very revealing!) shows that
Westfall never even intended to bill,
even though he promised in the letter agreement to do so monthly. Also that he did not even have an accounting system! ("We just simply keep time
records")[63]
Auditor under RCP Rule 172
was never appointed
The $18,121.10 sought by plaintiff in this cause was upon a
claimed open account for "legal services" regarding the federal civil RICO suit above. Birnbaum was
claiming that there was no "open" account at all, but a $20,000
PREPAID account, that the entries were fraud, that it was not a
"bill" at all, that all "legal work" in the case had no
worth, that the "Law Office" had no "systematic
records" as claimed in the pleadings, that Westfall had failed to openly
and honestly bill, and that the suit was a fraud, and moved the Court for appointment of an auditor
under RCP rule 172 to make a finding of the state of the accounts. Such motion
for an appointed auditor was totally ignored by the court despite
numerous request for such auditor.
Obstruction of discovery
During the proceeding in this case (Westfall v. Birnbaum,
etc) Birnbaum on numerous occasions
complained to the Court about obstruction of discovery by "the
Westfalls". These are the same "the Westfalls" in Westfall v. King Ranch No. 05-92-00262-CV
Fifth District of Texas at Dallas (1993) ("King Ranch alleges that
for almost eighteen months the Westfalls engaged in a campaign of delay,
deceit, and disobedience to prevent King Ranch from getting the requested
discovery")[64]
Unlawful summary judgment
On Aug. 17, 2001 the Westfalls ("The Law Office", G.
David Westfall, Christina Westfall, Stefani
Podvin) entered motions for summary judgment[65],
without even designating as to which element of Birnbaum's claims they
were claiming there was no evidence[66].
Civil RICO of course only has three elements: 1) a violation of RICO, 2)
direct injury from such violation, and 3) damage, all jury issues not
subject to disposal by summary judgment[67].
Birnbaum did, however, designate evidence to each and every "issue
of fact" in the U.S. Fifth Circuit civil RICO "pattern jury
instructions[68]", and
gave the law that summary judgment is not even available under civil RICO.[69]
The Court did, nevertheless, on Sept. 20, 2001, grant summary
judgment to the three Westfalls (G. David Westfall, Christina Westfall, and
Stefani Podvin), and signed the Order Sustaining Motions for Summary
Judgment[70] on
Nov. 13, 2001.[71]
Fraud in submission of jury
issues
Defendant Birnbaum on April 1, 2002 requested
the following jury issue as part of his DTPA (Texas Deceptive Trade Practices
Act) jury issues:
Did the Law Offices of G. David Westfall, P.C. engage in any false,
misleading, or deceptive act or practice that Udo Birnbaum relied on to his
detriment and that was a producing cause of damages to Udo Birnbaum?[72]
"False,
misleading, or deceptive act" means any of the following:
Failing to disclose information etc
Representing that
services had or would have worth
that they did not have[73]
(The Texas pattern jury
instructions had used the phrase a characteristic, I substituted worth.)
THE TRIAL JUDGE DID NOT
ALLOW THIS INSTRUCTION (i.e. this QUESTION)
[74]
Plaintiff "Law
Office"
on April 3, 2002 requested the following jury issues[75]
regarding their ["open account"] claim[76]:
1.
Did the Defendant, Udo
Birnbaum, fail to comply with the terms of the attorney-client agreement,
between the Law Offices of G. David Westfall, P.C. and Udo Birnbaum?
2.
What sum of money, if any, if paid now in cash, would
fairly and reasonably compensate the Law Offices of G. David Westfall, P.C. for
its fees and expenses, if
any, that resulted from Udo Birnbaum's failure to comply with the attorney-client agreement
between the Law Offices of G. David Westfall, P.C., and Udo Birnbaum?
3.
What is a reasonable fee for
the necessary services of the Law
Offices of G. David Westfall, P.C.'s attorneys in this case, stated in
dollars and cents?
Defendant Birnbaum on April 4, 2002 objected
to these issues[77], demanding
the following question between No. 1 and No. 2 above:
Was Udo Birnbaum's failure to comply excused?
"Failure to comply by Udo
Birnbaum is excused by The Law Offices of G. David Westfall, P.C.'s
previous failure to comply with a material obligation of the same agreement"
[78]
THE TRIAL JUDGE DENIED
BIRNBAUM THIS ISSUE[79]
Plaintiff Law Office, on the last day of
trial (April 11, 2002) handed [80]
the following jury issue to Birnbaum:
1.
What sum of money, if paid
now in cash, would fairly and reasonably compensate the Law Offices of G. David
Westfall, P.C., for its damages,
if any, that resulted from Defendant, Udo Birnbaum's failure to comply with the
agreement between the
Plaintiff and the Defendant?
2.
What is a reasonable fee for
the necessary services of the Plaintiff's
attorneys in this case, stated in dollars and cents?
Defendant Birnbaum thereupon objected to
Plaintiff's issues with handwritten objections
[81]
as follows:
"Elimination of Pl's Initial question 1 with current phraseology does not allow for Defendant's Question
as to whether he is excused
by Plaintiff's prior failure to abide by a material issue in the same contract
(FAILURE TO BILL MONTHLY, Not
get HIS APPROVAL BEFORE LARGE EXPENSE)"
Served today. 4-11-02 by hand to Fleming. Udo Birnbaum (Emphasis as in original)
Just before the case went to the jury, the judge borrowed Texas Pattern Jury Charges from
Defendant Birnbaum. The Court had previously requested "citations of
source". Birnbaum had provided citations[82]
straight out of Texas Pattern Jury
Charges. Plaintiff had not provided any citations.
Over Birnbaum's objections to the judge, the Court
incorporated Plaintiff's that day's version in the Court's Charge, and denied Birnbaum's "excused"
issue, as well as his "no worth" issue.
[83]
(Note the dropping of "if
any", "fees and expenses" becoming "damages", "attorney-client
agreement" becoming "agreement", "Law
Offices of G. David Westfall, P.C.'s attorneys" becoming "Plaintiff's
attorneys")
The trial
There was no bailiff or other officer at the trial, and
on several occasions, even during jury deliberations, the judge went into the
jury room and stayed there for extended periods.
[84]
Judgment for $59,255 was pronounced upon the verdict on
April 11, 2002 and signed July 30, 2002. This
judgment is unlawful for it does not "conform to the pleadings,
the nature of the case proved and the verdict" under RCP Rule 301.
The jury made no finding of the "state of the
accounts" as pleaded by Plaintiff Law Office.
The jury made no finding of all the elements of a breach
of contract either. (Plaintiff did not prove they had abided by the agreement.
(to bill monthly, not obligate to large expenses without approval). Plaintiff
of course did not plead breach of contract at all. THE JURY ISSUES ARE
IRRELEVANT.
Sanction Judgment
The Westfalls had on May 9, 2002 (one month after of judgment
on Apr. 11, 2002, and eight (8) months after they were removed from the case
by summary judgment
[85])
moved for sanctions against Birnbaum
[86].
The sanctions they requested were punitive in nature. (The sanctions
requested were not coercive, but for the completed act of having
made civil RICO claims against them in October, 2000, seventeen (17)
months ago!).[87]
Sanction judgment for $62,885 was pronounced on July 30,
2002, "signed" on Aug. 9, 2002,
and "signed with the clerk" on Aug. 21, 2002
[88].
Birnbaum received first notice of signing on Aug. 22, 2002.
This sanction judgment
is also unlawful for it is criminal in nature, and was
imposed without due process. The Court cannot punish for a completed
act except by FULL DUE CRIMINAL PROCESS. (The proceedings had been closed by
final judgment rendered on April 11, 2002)
Post judgment motions in the
trial court
On Aug. 19, 2002 Defendant Birnbaum filed Motion to Reconsider the
$59,280.66 Judgment
[89]
and Motion
to Reconsider the $62,885.00 "Frivolous Lawsuit" Sanction[90].
The Court did not reconsider.
On Aug. 20, 2002 Defendant Birnbaum filed Rule 276 Request for Endorsement
by the Court of "Refusals" and "Modifications
[91]
(of the "refusals" and "modifications" made by the
Court to Birnbaum's requested jury instructions, questions, and definitions).
No response.
On Aug. 28, 2002 Defendant Birnbaum submitted Motion
for New Trial
[92] and
on Aug. 29, 2002 Supplement to Motion for New Trial [93]
upon many of the above matters. No response.
On September 3, 2002 Defendant Birnbaum submitted Request
for Findings of Facts and Conclusions of Law
[94]
regarding just what findings of fact and conclusions of law
the judge had made to resolve the issue of "frivolous lawsuit" vs. "bona
fide racketeering" as Birnbaum had alleged, an issue Birnbaum had
asked to be resolved by jury. No response.
On Oct. 1, 2002 Birnbaum submitted Notice of Past Due Findings of
Fact and Conclusions of Law
[95].
IT GOES TO THE HEART OF THE ISSUE. No response.
Retrospect
The Sanction imposed is by
far the largest sanction ever imposed in the 294th District
Court. Appointment of an Auditor under
RCP Rule 172 early in the proceedings would have gone a long way in saving
precious resources in these proceedings.
Furthermore this Appeals Court in
Westfall v. King Ranch (same "The Westfalls") ruled that a
court could not impose severe sanctions without having first tried and
imposed lesser sanctions. The trial court never imposed any lesser
sanction nor ever found "bad faith", and in fact found
just the opposite. (see italicized quote in the Summary of the Argument, below)
SUMMARY OF
THE ARGUMENT
A pattern of
flagrant abuse of the judicial system
The nature of this case is most clearly seen through the prism
of the $62,255.00 sanction imposed, three months after the entry of
judgment, such "sanction" for filing, two years earlier,
civil RICO claims, as a defendant!
Without ever being disobedient to anything[96],
without ever any warning by the judge, without any lesser sanctions
ever imposed, without the judge ever making a finding of bad faith,
and in fact finding just the opposite at the close of the sanction
hearing
[97]:
"In assessing the
sanctions, the Court has taken into consideration that although 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 in his Sanction Order!"
Such sanctions are excessive
and not just under this Fifth Circuits own Westfall Family Farms, Inc. v.
King Ranch, Inc., 852 S.W.2d 587 (1993), the very same "The
Westfalls" that brought this case against me, the very same
"The Westfalls" that "for
almost eighteen months the Westfalls engaged in a campaign of delay,
deceit, and disobedience to prevent King Ranch from getting the requested
discovery". Same in this
case. "The Westfalls" never
brought anything to depositions other than the clothes they were wearing!
[98] And Judge Paul Banner never did anything
about it. Never appointed an auditor as due process demanded under Rule 172.
As for the judge's "as far as RICO", no less than
the Supreme Court of the United States encourages the filing of civil RICO
claims, citing a
"congressional
objective of encouraging civil litigation to supplement Government efforts
to deter and penalize the respectively prohibited practices. The object of civil RICO is thus not merely
to compensate victims but to turn them into prosecutors, "private
attorneys general," dedicated to eliminating racketeering activity" Rotella v. Wood.
On the contrary, the judge
granted The Westfalls summary judgment "RICO relief", denying
me from presenting to the jury a timely and viable alternative to what The
Westfalls claimed the evidence shows.
Summary judgment is of course not available under civil RICO [99],
but the judge granted it anyway.
This judge just does not
like civil RICO, as indicated by his early comment at his appearance on June
20, 2001, that he "had never seen
one [civil RICO case] that had any merit". I should have asked for his recusal right there on the spot.
Anyhow, when the judge
granted summary judgment "RICO relief" I moved for recusal of the
judge because due process entitles me to a judge who will abide by statutory
laws, the rules of procedure, and the mandates of the Supreme Court. Upon denial of my motion to recuse I asked
for a writ of mandamus on these issues, but it was denied also.
The failure to appoint an
auditor, together with me not being allowed to show my best evidence, coupled
with wrong jury issues, resulted in an unlawful $59,000 judgment. I was not
allowed to show the Westfalls' prior "pattern of racketeering
activity"[100],
to show that their "collection" suit was a fraud, and just another
"predicate act" in their pattern, and that my damages flowed from that
pattern.
ARGUMENT
1. THE $59,280.66 JUDGMENT
[101]
IS UNLAWFUL
It does not
conform to the pleadings and the verdict.
The jury answers are irrelevant. (Details in Motion to Reconsider the $59,280.66 Judgment)
There was no finding by the jury
regarding Plaintiff's claim[102]
of the state of the accounts, i.e. how much is owed:
The elements of
an action on account are: (1) that there was a sale and delivery,
(2) that the amount alleged on the account is just, i.e., the prices charged
are consistent with an agreement, or in the absence of agreement, are usual,
customary and reasonable prices for the things sold and delivered;
and (3) that the amount alleged is unpaid. See Maintain, Inc. v.
Maxson-Mahoney-Turner, Inc., 698 S.W.2d 469, 471 (Tex. App.--Corpus Christi
1985, writ ref'd n.r.e.). Milligan v. R&S Mechanical, NO.
05-87-01341-CV, Court of Appeals, Fifth District of Texas, Aug. 11, 1998.
There
certainly was no finding[103]
by the jury of a "sale" and "delivery", and Birnbaum
certainly raised the jury issue that all of plaintiff's "legal goods"
(of suing judges) had no worth
[104],
for judges in their judicial capacity are absolutely immune from suit!
And
in light of plaintiff's requested jury issues in the nature of a breach of
contract, Birnbaum even submitted the jury issue of being excused
by reason of plaintiff's prior failure to live up to the agreement
[105],
i.e. to bill monthly, and not to obligate to large expenses without prior
approval. Plaintiff certainly did not get a jury finding that it had abided by
the contract by systematically and honestly billing monthly. The purpose of "systematic
billing", of course, is to keep someone from suddenly coming up with a
humongous $18,121.10 surprise owed
"bill" as plaintiff did.
At issue in this
cause was the existence of the account, i.e. how much money was owed , not "damages"
under some other theory:
At trial, McIntire had
"the burden of proving the account, including that the prices charged were
fair and reasonable." In
establishing the existence of the account, the burden is to prove more
than something is owed, but
rather precisely how much. Team
Central, Inc. v. Teamco, Inc., 271 N.W.2d 914, 920 (Iowa 1978)
RCP
Rule 301 states: "The
judgment of the court shall conform to the pleadings, the nature of the
case proved and the verdict, etc. " Staring at each other are two diametrically opposed verified
pleadings as to the state of the accounts, i.e. how much is owed, with no report by an auditor
[106],
and no finding by the jury of the state of the accounts.[107]
This $59,280.66 judgment is unlawful,
for it does not conform to the pleadings and the verdict. The jury answers are
irrelevant to Plaintiff's cause of action.
2. 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
(Details in Motion
for Appointment of Auditor Pursuant to Rule 172 RCP)
[108]
At issue was Plaintiff's
claim of the state of the accounts. Due process demanded the appointment of an
auditor, not only in light of the diametrically opposite verified pleadings
staring at each other, but also in light of Birnbaum's complaint of fraud,
racketeering, deceptive trade practices, and obstruction of
discovery
[109]:
"When an investigation of accounts or examination
of vouchers appears necessary for the purpose of justice between the parties to
any suit, the court shall appoint
an auditor or auditors to state the accounts between the parties and to
make report thereof to the court as soon
as possible. The auditor shall
verify his report by his affidavit stating that he has carefully examined the
state of the account between the parties, and that his report contains a true
statement thereof, so far as the same has come within his knowledge, etc."
RCP Rule 172, (emphasis added)
Due process demanded
appointment of an auditor per RCP Rule 172 to report on the state of the
account, i.e. how much, if any, money was owed.
Timely appointment of such
auditor would have gone far to avoid the horrible waste of energy, money, and
judicial resources in not only the trial court, but in this appeals court as
well. (Note: the motion for appointment was never denied or granted. The Court
completely ignored it despite numerous requests to grant such auditor)
Due process demanded
appointment of an auditor per RCP Rule 172 to address the issue of fraud, and
particularly in light of the claim of fraud, racketeering, and obstruction of
discovery.
3. 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.
Granting the Westfalls "Rico relief", as the judge
termed it
[110], denied
Birnbaum his Right to show his best claim and evidence. Birnbaum had a statutory
right to show the jury G. David Westfall's prior "pattern of
racketeering activity", to show that this very suit against me was
just another "predicate act" that in that pattern.
Each of the Westfalls' motions failed to even designate which
"element" supposedly lacked evidence! (details in the Motions,
Responses, Replies
[111]) This issue is fully developed in the four
(4) separate responses in which I showed exactly what the law is, and
exactly what evidence I designated to each of the "issues of fact" in my civil RICO
cross and third party claim. Birnbaum also had a statutory right to show the
Westfall's prior "pattern of racketeering activity", in order to show
that this entire suit was just another "predicate act", and that
Birnbaum's damage stemmed from Westfall's "pattern of racketeering
activity."
Civil RICO of course does not have "elements" in a
tort case sense
[112],
only "issues of fact". And as shown in my responses, summary judgment is not available under
civil RICO. The pleading does of course have to allege the right
relationship between the "enterprise", "person",
"predicate acts", "pattern of racketeering activity", etc
as established by precedent, i.e. case law.
I used the U.S. Fifth Circuit Court of Appeals (New Orleans)
"pattern jury instructions" as a snapshot of current case law as it
applies to a civil RICO claim. These
"pattern jury instructions" are quite extensive (8 page) and very
specific as to what issues of fact the jury has to find. I studied them
extensively, investigated the facts thoroughly, and presented them as the
Supreme Court of the United States said
I should by becoming a "private
attorney general" "dedicated to eliminating
corruption". I even deposed the defendants upon the "pattern
jury instructions" and included the depositions in the designated summary
judgment evidence, even included the "instructions".
[113]
None of the Westfalls ever claimed that my pleading was
insufficient under the Law. Even the trial judge did not find that I had not
pleaded things right. What I found was
that the Westfalls were ignorant of civil RICO law[114],
and even the trial judge did not want to know.
I should have been more concerned when the judge stated early on that he
had never seen a civil RICO case that had any "merit". But when he
granted summary judgment on civil RICO, I knew he was not going to give me
justice by following the law, and I asked for his recusal. (More on that under
separate issue)
Here are a few excerpts from my responses[115]
to motions for summary judgment:
"Any
person injured in his business or property by reason of a violation of
section 1962 of this chapter may sue therefor in any appropriate United States
district court and shall recover threefold the damages he sustains and the cost
of the suit, including a reasonable attorney's fee." 18 U.S.C. § 1964(c) "civil RICO"
"There are three
essential elements in a private action under this chapter: a violation
of this chapter; direct injury to plaintiffs from such a violation; and damages
sustained by plaintiffs." Wilcox Development Co. v. First
Interstate Bank of Oregon, N.A., D.C.Or.1983, 97 F.R.D. 440.
"Congress did not limit scope of this chapter
to those persons involved in what traditionally has been thought of as
"organized crime," but, rather, any
"person" as term is broadly defined in this chapter, whether associated with organized crime or
not, can commit violation, and any
person injured in his business or property by such violation may then sue violator
for damages in federal court." Lode v. Leonardo, D.C.Ill.1982,
557 F.Supp. 675.
"Material
issues of genuine fact existed with respect to existence of an enterprise
as defined by this chapter, association of defendant printing company with such
enterprise, association of the alleged enterprise with organized criminal
activity, the intent and knowledge of defendant concerning the underlying
predicate acts and the existence of injury caused by alleged violation of this
chapter, precluding summary judgment
in favor of defendant in action alleging the kickback scheme. Estee
Lauder, Inc. v. Harco Graphics, Inc., D.C.N.Y.1983, 558 F.Supp.83.
As shown by case law in each of my four (4) responses
[116],
due process demanded denial of the summary judgment motions against the civil
RICO claims. Allowing Plaintiff to go to a jury with summary judgment
"RICO relief", as the Order termed it, precluded defendant Birnbaum
from presenting the jury with a viable and timely alternative to Plaintiff's
arguments as to what the evidence really showed. Birnbaum had a statutory right to show the jury Westfall's
prior "pattern of racketeering activity", to show that this entire
suit was just another "predicate act" in that pattern.
4. THE $62,255.00 "SANCTION"
JUDGMENT [117] IS ALSO
UNLAWFUL
The sanction
is CRIMINAL in nature, for it is for a COMPLETED act
(for making a
civil RICO defense and claim TWO years ago)
First, this sanction is
patently UNLAWFUL because it is not a civil sanction at all, but a
CRIMINAL sanction, imposed on me without full due criminal process,
including a finding beyond a reasonable doubt:
Whether a contempt is civil
or criminal turns on the "character and purpose" of the
sanction involved. Thus, a contempt sanction is considered civil
if it "is remedial, and for the benefit of the complainant. But if
it is for criminal contempt the sentence is punitive, to vindicate
the authority of the court. U.S.
Supreme Court in United Mine
Workers v. Bagwell, 512 U.S. 821 (1994)
The distinction between civil and criminal
contempt has been explained as follows: The purpose of civil contempt is
remedial and coercive
in nature. A judgment of civil contempt exerts the judicial authority of
the court to persuade the contemnor to obey some order of the
court where such obedience will benefit an opposing litigant. Imprisonment is conditional upon obedience
and therefore the civil contemnor carries the keys of (his) prison in
(his) own pocket. In other words, it is civil contempt when one may procure
his release by compliance with the provisions of the order of the court.
Criminal contempt on the other hand
is punitive in nature. The sentence is not conditioned upon some promise
of future performance because the contemnor is being punished for some completed
act which affronted
the dignity and authority of the court.
The Texas Court of Criminal
Appeals, No. 73,986 (June 5, 2002)
So what had I done? There was never a warning. The
sanction Order[118]
does not even hint at wrongs (details below). RCP Rule 13 of course prohibits
sanctions "except for good cause,
the particulars of which must be stated in the sanction
order". The only clue comes
from the transcript of the sanctions hearing[119]
at which the trial judge certainly made no finding of "bad faith":
"In assessing the sanctions, the Court has taken into
consideration that although 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."
The answer is that I was sanctioned because I "had" made a civil
RICO counterclaim in the case TWO years ago, a long ago completed act, that somehow now
suddenly "affronted"
the judge, making the sanction a CRIMINAL sanction, imposed on me without full
criminal process. (Note: They file
counterclaims all the time, but not civil RICO. I was the first.)
Without "any basis in law or in fact"? Then why did the trial judge not dismiss on the pleadings
instead of granting summary judgment by weighing the evidence? ("nothing … involved that suggests") And is not civil RICO the law? And he is again weighing the evidence
at the sanction hearing! His belief
that I may be "well-intentioned"
and "may believe that he had some
kind of real claim" surely did not weigh on him heavily as he
assessed sanctions of $62,885.00 on the "frivolous v. racketeering"
issue, an issue I had asked to be determined by jury.[120] And appointing an auditor under RCP Rule 172
surely would have determined early on whether Birnbaum or David Westfall was
the one who was acting in "bad faith".
Rule 13, Rules of Civil Procedure, states:
"Courts shall presume that pleadings,
motions, and other papers are filed in good faith. No sanctions under this
rule may be imposed except for good cause, the particulars of which must be
stated in the sanction order."
So what particulars does the "Sanction Order"
state? NOTHING!
"Based upon the pleadings of the parties, the evidence presented
at trial and the evidence presented at the sanctions hearing and the arguments
of counsel and by the pro se defendant, the
Court is of the opinion that the Movants, Christina Westfall and Stefani
Westfall are entitled to prevail on their claim for sanctions against the
Defendant, Udo Birnbaum." NOTHING MORE!
[121] NOTHING!
My Motion to Reconsider
[122]
shows that the Westfalls had no standing on the date they moved
for "frivolous lawsuit sanction", and had no standing in the
trial court to get anything other than what they already got when they
were granted summary judgment! (res judicata).
That I did not bring this suit. That the court was required to appoint
an auditor. That I am entitled to free speech on an issue of great
public importance, i.e. the Westfalls' abuse of the judicial system. That
civil RICO defendants always claim "frivolous".
That I had cried for the trial judge to call on the U.S. Justice Department. That the trial
judge was no more entitled to weigh the evidence to make a finding that
there was no RICO violation, and sanction
me, than he was entitled to find that there was a RICO violation,
and throw the Westfalls in jail. Hence my call for the U.S. Justice Department.
My Request for Findings
[123]
asked the court judge to please put down on paper, per RCP Rule 296, just exactly
what he found that I did that was so wrong to incur a $62,885.00
sanction. I asked the judge to reduce to writing just how he arrived at
his version of the "frivolous" vs. "bona-fide racketeering"
issue. I asked him to rule specifically
on the "sanctionable facts" in the Westfalls' motion for sanctions. I pleaded with the judge that this was the second
suit in which I had been run over by lawyers and judges in this trial court,
that I had become the victim of Official Oppression for having spoken out on
corruption in this court. I pleaded
with him that I did not bring this suit, and that I did not bring the other one
either.
The record is replete with the trial judge letting the Westfalls
run amuck. Again and again they
obstructed discovery
[124],
moved for unwarranted sanctions against me, and the trial judge did nothing
except let the clock tick and the Westfalls run up "legal fees". It is elementary that had the Court duly
appointed an Auditor this whole case would not have expanded as it did.
How could the Court now suddenly find that the RICO issue,
on which it had allowed and ordered discovery[125],
now suddenly was so frivolous, when the Court, upon hearing, had ordered the
discovery?
The sanction is CRIMINAL in
nature, for it is for a COMPLETED act, namely for making a civil RICO defense
and claim TWO years ago. It is patently UNLAWFUL because it was imposed on me without
full due criminal process, including a finding beyond a reasonable doubt.
5. THE TRIAL JUDGE SHOULD HAVE BEEN RECUSED
FROM THE
CASE
For failure to
go by statutory law, the Rules of Procedure,
and the
mandates of the Supreme Court of the United States
This point is fully addressed in my Position Supporting Recusal of
Judge Paul Banner [126].
It is a detailed pleading as to why Judge Banner should be
gotten off this case, i.e. for having shown that he does not abide by statutory
law, the rules of procedure, nor the mandates of the Supreme
Court of the United States, and that I am entitled to a judge who
will. My plea was simple and direct.
And I asked the judge hearing the recusal motion to refer this entire case to
the U.S. Justice Department, just as I had asked Judge Banner to do.
I wanted Judge Banner removed as judge for the following
reasons:
·
Violation
of the Law by not timely appointing an auditor
·
Violation
of the Law by not following summary judgment procedure
·
Violation
of the Law by "weighing" the evidence
·
Violation
of the Law by blocking civil RICO claims
·
Appearance
of condoning racketeering activity in the court
The following is the
Conclusion of my Position etc. as I argued at the recusal hearing. I still do
not know any better way to plead this point. Emphasis as in the original:
1. This is not a garden variety suit. I did not bring this suit. I am the victim, for the second time, of
massive fraud in this court, and I am not the only victim. There is a sign in the Clerk's Office that
says it is a crime to file a fraudulent
document in this Court. Westfall's
whole suit is fraud, both intrinsic and extrinsic. Yet Judge Banner will not
appoint an auditor under Rule 172 RCP as he is administratively and procedurally
required to do in a suit claiming an open account countered by not only my sworn complaint of fraud,
but two (2) additional affidavits by other victims detailing the Westfall
Bunch fraud in my case and theirs!
2. This is not a matter of "judicial discretion" or
"errors" on the part of a judge.
Judge Banner has shown that he will not abide by the rules of procedure,
statutory law, and the mandates of the Supreme Court of the United States.
3. Judge Banner has become knowledgeable, and gives the appearance
of facilitating G. David Westfall's pattern of racketeering activity by
condoning such conduct. It is time for
the removal of Judge Banner from this cause, to be replaced by an unbiased
judge who will abide by the law
and duly appoint an auditor under the circumstances of this case.
4. It is time for this Court, under the circumstances of this
case, to call on the Justice Department to bring an end to the Westfall
Bunch's' racketeering and their hijacking of the judicial process in this
Court.
Alternatively, if allowed to
stay, ORDERED to abide by the Law.
So here we are, my arguing to this honorable Appeals Court, upon
the same issues I argued at the recusal hearing, that I had not been given DUE
PROCESS, i.e. that the trial judge was not ABIDING BY THE LAW.
6. FRAUD, FRAUD, AND MORE FRAUD
FRAUD from start to finish, intrinsic and extrinsic,
turning into retaliation by
official oppression
Plaintiff's Original Petition[127]
claimed an OPEN ACCOUNT:
·
"The legal and/or
personal services were provided at the special instance and requested of
Defendant in the regular course of business".
·
"In consideration of
such services, on which systematic records were maintained,
Defendant promised and became bound and liable to pay Plaintiff the
prices charged for such services and expenses".
·
"A true and accurate
photostatic copy of the accounts for services rendered are attached
hereto by reference"
·
"Has refused to pay the
account in the total amount of $18,121.10. All just and lawful offsets,
payments and credits have been allowed."
The attorney RETAINER agreement
[128]
of May 5, 1999, however, shows that I was not
bound by ANYTHING AT ALL, only that by my signature I ACCEPTED (NOTE THE
"ACCEPTED" CAPTION BY MY SIGNATURE) the terms under which the ATTORNEY
could use the $20,000 RETAINER:
·
That I accepted that the RETAINER would be nonrefundable
·
That I accepted the rate at which attorney could charge into the $20,000
·
That I accepted that the lawyer could ask for reimbursement of current expenses
(not attorney time or paralegal time)
·
That I accepted that if I did not pay the
lawyer, the lawyer could quit
·
That I accepted that if I failed to cooperate, the lawyer could quit
·
That I accepted that if I engaged in certain conduct, the lawyer could quit
·
That I accepted that if the lawyer wanted to hire another attorney, that could be
charged into the $20,000 RETAINER also.
* *
* * * * * * * *
If I had not made the mandatory
counterclaim[129] under
RCP Rule 185 the lawyer would have gotten by with his fraud.
Rule 185. Suit
on Account: When any action or defense is founded upon
an open account, or other claim for goods, wares and merchandise,
including any claim for a liquidated money demand based upon written
contract or founded on business dealings between the parties,
or is for personal service rendered, or labor done or labor or
materials furnished, on which a systematic record has been kept, and is
supported by the affidavit of the party, his agent or attorney taken before
some officer authorized to administer oaths, to the effect that such claim
is, within the knowledge of the affiant, just and true, that it
is due, and that all just and lawful offsets, payments and credits have
been allowed, the same shall be
taken as prima facie evidence thereof, unless the party resisting
such claim shall file a written denial, under oath.
A party resisting such a
sworn claim shall comply with the rules of pleading as are required in any
other kind of suit, provided, however, that if he does not timely file a written denial, under oath, he shall
not be permitted to deny the claim, or any item therein, as the case
may be.
The sword has two sides, however, as RCP Rule
172 shows:
Rule 172.
Audit: When
an investigation of accounts or examination of vouchers appears
necessary for the purpose of justice between the parties to any suit, the court shall appoint an auditor
or auditors to state the accounts between the parties and to make
report thereof to the court as soon as possible. The auditor shall verify his report by his affidavit stating
that he has carefully examined the state of the account between the
parties, and that his report contains a true statement thereof, so far as the
same has come within his knowledge. Exceptions to such report or of any item
thereof must be filed within 30 days of the filing of such report. The court
shall award reasonable compensation to such auditor to be taxed as costs of
suit.
Under DUE PROCESS I had a
RIGHT to such appointment, and the
judge had a DUTY to appoint such auditor, particularly in light of my
complaints of FRAUD, RACKETEERING, and OBSTRUCTION OF DISCOVERY. Add to this
the fraud in the submission of the jury issues as shown above. A pleading of an
unpaid OPEN ACCOUNT for "legal services"? There is no such animal!
There was no SALE and DELIVERY![130]
And submitting a jury question that PRE-SUPPOSES a BREACH OF CONTRACT?
[131]
(There was no contract, only a PREPAID RETAINER!) FRAUD, FRAUD, and MORE FRAUD, and the judge
would not appoint an auditor!
7. 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.
This appeals point is fully addressed in my Motion for New Trial
[132],
and Supplement
to Motion for New Trial
[133],
and the exhibits and affidavits thereto. The points raised in the above motion
in the trial court were as follows (some of the trial court points are the same
as the ones in this appeal):
Points in the Motion
for New Trial:
Point 1: For not appointing an auditor as required
by RCP Rule 172.
Point 2: For not making Plaintiff abide by the
rules of discovery.
Point 3: For granting summary judgment on my civil
RICO claims and cross-claims.
Point 4: For allowing Plaintiff to submit
"surprise" jury issues not in its pleadings.
Point 5: For not allowing submission to the jury of
my "excused" issue
Point 6: For not allowing submission to the jury of
my "no worth" issue
Point 7: For jury misconduct by the judge himself.
Point 8: For not allowing my evidence of DTPA
"false, misleading, or deceptive act or practice".
Point 9: For absurdly excessive "legal
fee" damages.
Point 10: For incurable jury argument.
The trial judge did not respond to this motion, nor my Motion
to Reconsider the $59,280.66 Judgment
[134],
nor my Rule 276 Request for Endorsement by the Court of "Refusals"
and "Modifications [135]"
(re jury instructions, questions, and definitions), nor my Motion to Reconsider the
$62,255.00 "frivolous lawsuit" Sanction
[136],
nor my Request for Findings of Facts and Conclusions of Law
[137],
nor my Notice of Past Due Findings of Fact and Conclusions of Law
[138]
regarding the trial judge sanctioning me $62,255.00 for having raised a civil
RICO cross and third party claim.(i.e. the judge himself making a finding on
the "frivolous" vs. "bona-fide racketeering" issue, an
issue I had asked to be determined by jury.) Details are in the individual motions included in the Clerk's
Record.
I refer this Appeals Court to my Oral Pleading in Writing
[139],
and also my Closing Pleading in Writing [140],
pleading that the entire proceedings are retaliation by official oppression for
having spoken out on corruption in the trial court.
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.
CONCLUSION
A pattern of
flagrant abuse of the judicial system
The failure of the trial
judge to appoint an auditor under RCP Rule 172, together with me not being
allowed to show my best evidence under civil RICO because of "RICO
relief" summary judgment, together with wrong jury questions, resulted in
an unlawful $59,280.66 judgment. I was
not allowed to show the Westfalls' prior "pattern of racketeering
activity", to show that their alleged "collection" suit was
nothing but fraud stemming from more fraud in their involuntary bankruptcy
proceedings, and just another "predicate act" in their "pattern
of racketeering activity", and that my damages flowed from that pattern.
The whole proceedings could
of course have been nipped in the bud if the trial judge had appointed an
auditor as he was required to do with a suit claiming an unpaid open account,
with two diametrically opposed affidavits as to the "state of the
accounts". And if the judge truly
believed there was "no basis in
law", he could have dismissed my civil RICO pleadings
two years ago, instead of letting the case drag on with the Westfalls running
up legal fees.
The following directly from
my Notice
Of Past Due Findings Of Fact And Conclusions Of Law[141]
pretty much sums up this issue (emphasis as in original):
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?
* * * * * * * *
As shown above, not only the two judgments, but the
entire process was lawless. If there is a problem that any judge has in
complying with the objectives of civil RICO as interpreted by the Supreme Court
of the United States ("private attorneys general")[142],
he has the right to recuse himself. If
there is a judge who is concerned about being the one opening up Pandora's box
in Texas district courts with civil RICO, because the Texas Rules of Civil
Procedure do not allow early dismissal by a rule such as federal rule 12(b)(6)
for "failure to state a claim", let him recuse himself.
But a trial judge does not
have the right to take it out on me for following the Supreme Court's urging
that victims injured "by reason of a violation" of RICO file civil
RICO claims. I am entitled to a new
trial by a judge who will abide by the law and the rules of procedure.
PRAYER
So here we are, my asking this Appeals Court, on the same issue
I pleaded in my motion to recuse the trial judge, i.e. that I was not being
given DUE PROCESS.
I petition this
Appeals Court to free me from the TWO unlawful judgments upon me, to reverse
the unlawful "RICO relief" summary judgment, and to remand the
case back to the trial court, with a recusal of Judge Paul Banner, and in the
alternative, very strong guidance as to due process in a civil RICO
environment.
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.
Assessing a [criminal] punishment
of $62,255 for having made a civil RICO defense is NOT "OBJECTIVELY
REASONABLE", and especially so in light of a finding that "Mr.
Birnbaum may be well-intentioned and may believe that he had some kind of real
claim". Also see the judge's VERY LAST WORDS, below, and my
replies thereto[143].
Sincerely,
________________________
Udo Birnbaum, pro
se
540 VZ 2916
Eustace, Texas 75124
(903) 479-3929 phone and fax
THE TRIAL JUDGE'S LAST WORDS
IN THE CASE
(End of the 7-30-02
"frivolous lawsuit sanction" hearing. Brackets [] and emphasis added)[144]
THE COURT: Now, I am told that this Court should not engage in the
discussion of why the Court did or didn't do something. [1] The
testimony, as I recall before the jury, absolutely was that Mr. Birnbaum entered into a contract, which the
signature is referred to, agreed that
he would owe some money that -- for attorneys' fees.
Mr
Westfall, on behalf of the P.C., testified to the same. [2] There was no dispute as to the contract or its terms.
What was in dispute is whether or not Mr. Westfall's P.C. [3] would have been entitled to any residual amount. That's
what was submitted to the jury. The jury resolved that issue and found a
figure. And therefore, I think [4]
what was submitted to the jury is appropriate and subject to review.
And that's it. This Court stands in recess.
MR. FLEMING: Thank you, Your Honor.
END OF HEARING
[1] NO! Mr.
Birnbaum was claiming fraud, deceptive trade practices, and racketeering, and asked for
appointment of an AUDITOR and
that you call on the U.S. Justice
Department!
[2] NO! Mr.
Birnbaum claimed that Plaintiff had
breached the agreement long ago, and you did not allow submission of
Mr. Birnbaum's "excused"(because of plaintiff's prior breach)
and also Mr. Birnbaum's "no worth" issues!
[3] NO! The
question you put to the jury was not
regarding "residual"
(state of the account), but breach of
contract, which Plaintiff did
not plead!
[4] YES, "what
was submitted to the jury is appropriate and subject to review".
%20of%20APPEAL%20-%20BRIEF%20HTML%20via%20Word%202000_files/image002.jpg)
%20of%20APPEAL%20-%20BRIEF%20HTML%20via%20Word%202000_files/image004.jpg)
Documents in the cause on
file with the clerk. If the trial judge had duly appointed an AUDITOR
per RCP Rule 172, it would have cut through all the fraud of "open
account" for "legal services" (Westfall: "We just
simply keep time records")[145],
and the suit against me not expanded as it did!
AFFIDAVIT
I, Udo
Birnbaum, certify that all statements in this brief are made upon personal
knowledge acquired under the described circumstances and upon diligent
investigation of the facts and the law, and that my statements are true,
correct, and complete to the best of my ability, and that the exhibits I have
provided in the referenced Civil Appendix are true copies of the originals.
___________________
Udo
Birnbaum
STATE
OF TEXAS
COUNTY
OF VAN ZANDT
Before
me, a notary public, on this day personally appeared Udo Birnbaum, known to me
to be the person whose name is subscribed to the foregoing document, and being
by me first duly sworn, declared that the statements therein contained are true
and correct.
Given
under my hand and seal of office this ___ day of April, 2003
________________________
Notary
in and for The State of Texas
Certificate of Service
This
is to certify that on this the __23__ day of April, 2003 a copy of this
document, together with the referenced Civil Appendix, was sent by Certified
Mail to attorney Frank C. Fleming at PMB 305, 6611 Hillcrest Ave., Dallas Texas
75205-1301.
___________________
Udo Birnbaum