No. 05-02-01683-CV
§
In the Court of Appeals
Fifth District of
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
The Honorable Paul Banner,
by assignment
Trial cause no. 00-00619
------------------------------
APPELLANT'S REPLY BRIEF
------------------------------
OTHER
SEPARATE DOCUMENTS:
Civil Appendix is bound separately UDO BIRNBAUM
Trial Closing Argument (transcription) PRO SE
"Frivolous Lawsuit" Sanction Hearing 540 VZ CR 2916
(see Index page 4)
(903) 479-3929
Appellant
Birnbaum petitions for ORAL ARGUMENT to detail
the abuse of the
judicial system upon him as shown within
IDENTITY OF
PARTIES AND COUNSEL
The Law Offices of G. David Westfall, P.C. Frank C. Fleming[1]
Plaintiff, Counter-defendant PMB 305,
(214)
373-1234
(214)
373-3232 (fax)
Udo
Birnbaum Udo
Birnbaum, pro se
Defendant, Counter-claimant, 540 VZ 2916
Third party plaintiff
(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
(in response to Appellees' Brief)
……………………. 6
For reference only. Issues that were in
original Appellant's Brief:
The nature of the case
Course of proceedings
The trial court's
disposition of the Case
(e)
Issues Presented (NOTE: Appellee's released lots of RABBITS [6]
) ….…….
8
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
8. RULE 296 PRECLUDES FINDINGS OF FACT AND CONCLUSIONS OF LAW IN A
JURY TRIAL (NEW APPELLEE'S ISSUE)
(f)
Statement of Facts (in response to Appellees' Brief) ……………………… 9
For reference only. Issues that were in
original Appellant's Brief:
Westfall ("The Law
Office") had no case!
Westfall's "legal
services had NO WORTH because of judicial immunity
Auditor under RCP Rule 172
was never appointed
Obstruction of discovery
Unlawful summary
judgment
Fraud in submission of jury
issues
The trial
Sanction judgment
Post judgments motions in
the trial court
(g)
Summary of the REPLY Argument ……………………………..……….. 13
APPELLEES WANT THIS COURT TO BELIEVE THAT "BIRNBAUM NOW SEEKS REVERSAL BASED UPON
A LACK OF EVIDENCE ARGUMENT", AND THAT BY PROVIDING ONLY A PARTIAL
REPORTER'S RECORD, "BIRNBAUM HAS WAIVED ANY AND ALL ISSUES
PRESENTED ON APPEAL."
APPELLANT
BIRNBAUM IS NOT APPEALING ON A "LACK
OF EVIDENCE ARGUMENT", BUT ON DUE
PROCESS AND LAWLESSNESS
ISSUES.
IF AN
AMERICAN CAN BE DEPRIVED OF HIS RIGHT TO APPEAL UPON THE ISSUE OF
HAVING BEEN ROBBED OF HIS RIGHT TO DUE PROCESS AND TO BE FREE FROM
LAWLESSNESS IN A COURT OF LAW, SIMPLY BECAUSE HE ONLY FILED A "PARTIAL REPORTER'S RECORD",
GOD HELP US ALL.
(h)
Argument (Reply. See footnote 6 on "RABBITS" ) ……………….……..
15
1. The
$59,280.66 judgment is unlawful …………………….……………. 15
2. Defendant
Birnbaum had a statutory Right to a court-appointed Auditor
.. 17
3. The
"RICO Relief" summary judgment is also unlawful ……………….. 19
4. The
$62,255.00 "sanction" judgment is also unlawful ………………….. 20
5. The trial
judge should have been recused from the case ……………...… 23
6. Fraud,
fraud, and more fraud
……………………………………………. 24
7. Due process
demands a new trial ……………………...………………... 25
8. Rule 296 precludes findings of fact and
conclusions of law in a jury trial 28
Conclusions
…………………………………………..…………………. 29
(i)
Prayer ……………………………………………………………………….. 31
The trial judge's last words in the case ………………………………….. 33
(j)
Civil Appendix (separately bound document)
OTHER SEPARATE DOCUMENTS
CLOSING ARGUMENTS from the jury trial of
D. Keith Johnson, RDR, CRR (provided directly to this
EXCERPT
FROM [SANCTION] HEARING held
Barbara J. Roberson (provided directly
to this
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 ………………………………….……….. 20
Milligan v. R&S
Mechanical,
NO.
05-87-01341-CV,
Court of Appeals, Fifth District of Texas,
Rotella v. Wood et al., 528
United Mine Workers v.
Bagwell,
512
..
Villiers v. Republic
Financial Services, Inc., 602
S.W.2d 566, etc. ……….….. 18
Westfall Family Farms, Inc.
v. King Ranch, Inc.,
852 S.W.2d 587 (1993) ………………………………..…………..…….. 21
Wilcox Development Co. v. First Interstate Bank of
N.A., D.C.Or.1983, 97 F.R.D. 440 …………………………….…..……. 20
18
U.S.C. § 1964(c) ("civil
RICO") ………… See Appellant's
Brief
STATEMENT 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.
Birnbaum stands by the
"Statement of the case" in his Appellant's Brief. In reply to Frank C. Fleming's "Statement of Facts",
Birnbaum shows the following:
Frank Fleming claims that "Birnbaum filed a counterclaim against the Law Office and
third-party claims against G. David Westfall ("D. Westfall"),
Christina Westfall ("C. Westfall"), and Stefani Podvin
("Podvin"), for fraud and violation of the federal civil RICO law,
among other allegations. (Appellees'
page 8 line 4)
NOT TRUE. Birnbaum made the following claims: (
·
Law Office:
·
D. Westfall:
·
D. Westfall, C. Westfall,
and Podvin
("The Westfalls"): CROSS and third party claims under civil RICO. (same
"enterprise", "scheme", etc. but different damages. Holding them responsible for
the "Law Office".)
See
Appellant's Brief page 6 for details).
Frank Fleming states "Christina Westfall was David Westfall's wife. Stefani Podvin was
David Westfall's daughter"
MISLEADING AND
NOT THE WHOLE TRUTH:
·
C. Westfall was D. Westfall's longtime
bookkeeper at the "Law Office"
·
Podvin was D. Westfall's attorney
daughter, OWNER of the Law Office, and as such had appointed D. Westfall
TEN YEARS IN A ROW, as the ONLY OFFICER ("director") of the "Law
Office".
My civil RICO claim alleged that C. Westfall and
Podving were FACILITATORS ("principals") to the "pattern of
racketeering activity"
See Appellant's Brief as to how to find my pleadings
and evidence, particularly my summary judgment Appendix (CR 213-228). Also see
Clerk's Record 282-316
and the Affidavits therein. Also D. Westfall having been
sanctioned by federal judge Jorge Solis for abuse of the judicial system. (CR 300-306)
Fleming states "A
jury ruled in favor of the Law Firm and against Birnbaum for unpaid
legal fees" (Appellees' page 8 line 11)
NOT
TRUE. The jury ruled on "damages" for "failure to abide" by
an "agreement". See the issues in these briefs.
Fleming
states "Following the trial, D.
Westfall, C. Westfall, and Podvin filed Motions for Sanctions against Birnbaum
for frivolous lawsuit in Birnbaum's counter-claim. Sanctions were awarded to
both C. Westfall and to Podvin."
MISLEADING
AND INCOMPLETE: D. Westfall, C.
Westfall, and Podvin had long ago
been removed from the case by
summary judgment. See the issues in these briefs. Also, the
"American Rule" does not allow for attorney fees for having been
granted "summary judgment".
Trial Court disposition:
Apparently
Appellees are at this time trying to make Judge Banner make findings of facts and conclusions of law
regarding the $62,255.00 "frivolous lawsuit" sanctions against me. See footnote 4, Appellees' page 25.
However
there is nothing filed in the court that I know of, and I certainly have not
been served with any documents to that effect.
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
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.
8. RULE 296 PRECLUDES FINDINGS OF FACT AND
CONCLUSIONS OF LAW IN A JURY TRIAL (NEW APPELLEE'S ISSUE)[7]
STATEMENT OF FACTS
In response to
Fleming's statements in Appellees' Brief
Birnbaum stands by the
"Statement of Facts" in his Appellant's Brief. In reply to Frank C. Fleming's "Statement of Facts",
Birnbaum shows the following:
(1) Fleming's replies don't fit the Issues.
(2) Fleming lies.
Fleming's pattern is to make up an issue,
copy something out of a law-book that sounds good, BUT IT DOES NOT FIT.
"Birnbaum seriously
misstated the facts in his brief. In his brief, Birnbaum argued the facts the
same way he argued the facts at trial. Birnbaum asserts his personal opinion as
a fact without ever providing any other evidence to support his opinion"
(page 10, line 1)
Good sounding opinion,
but let us await Fleming's "evidence".
"The jury's verdict
obviously reflected that the jury totally rejected Birnbaum's version of
events.
Good
sounding opinion and position.
But Judge Banner NEVER ALLOWED the jury to SEE Birnbaum's
"version of events" (a finding by an AUDITOR or his civil RICO defense
and cross-claim) See issues in
Birnbaum's Brief and this Reply Brief.
The Law Office, D. Westfall,
and Podvin, challenge all factual statements made in Birnbaum's brief as
provided in T.R.A.P.38.1(f) (page 10, next)
Sounds good. But does not have much
"specificity" or "particularity".
"Birnbaum retained
the Law Office to represent him in an ongoing legal matter that he had
initiated pro se (CR 365-67)
ANOTHER LIE and NOT THE WHOLE TRUTH. Good sounding statement, but it is a LIE.
Birnbaum did NOT "retain the Law Office", but G.
David Westfall. The "Law
Office" was the FRONT "enterprise" for G. David Westfall's
"pattern of racketeering activity".
Honorable
Judges, look just past Fleming's citation at CR 365-67, and read the short
excerpt from Deposition of G. David Westfall (CR 368-375). It shows that the
"Law Office" DID NOT EVEN HAVE AN ACCOUNTING SYSTEM,
and that everything about "The Law Office" was a FRAUD. Then I get sued by David Westfall, in the name of his
"Law Office", claiming an unpaid OPEN ACCOUT! And Fleming knew it
all, for he "officed" right there out of
Westfall's "Law Office."
Birnbaum did not dispute the existence of the attorney-client agreement, the contents of the
agreement, nor that legal service had been performed
on his behalf by the Law Firm. (Appellant's Brief, p. 14)"
ANOTHER LIE and NOT THE WHOLE TRUTH. Just LOOK at the cited page 14. Birnbaum
there stated exactly why it was NOT an "open account" (as the
"Law Office" was suing), but a $20,000 NON-REFUNDABLE PREPAID
RETAINER AGREEMENT.
Just LOOK at the cited page
14: "[Westfall] reserved the right to
terminate the attorney-client relationship for non-payment of fees
or cost." This is NOT an
OPEN ACCOUNT at all, NOR A CONTRACT, and I show the details right there, with
references to the RECORD. That it was for the purpose "of insuring our availability in your matter".[8]
"Instead, Birnbaum
argued that he was excused
from paying the outstanding balance of attorney fees because he did not like
the result and because the legal service had no worth (followed by Fleming's footnote 3)
ANOTHER LIE. There is
not a word about "excused"
anywhere on or near Birnbaum's page 14.
I only raised the "excused" issue when Fleming
fraudulently brought jury issues sounding in BREACH OF CONTRACT (which
he had of course not even pleaded. See issues in my Appellant's Brief, and in this Reply Brief)
Fleming footnote 3,
bottom of his page 10): "Birnbaum argues that because some of the defendants in the underlying cause of action
were judges and that judges have judicial immunity, the legal services provided
him were of no value. (Appellant's Brief, p. 14-15). Birnbaum admits that only 2 of the 20 or more defendants in
that case were judges. (Appellant's Brief, p. 15)"
ANOTHER LIE. Just LOOK at
Appellant's Brief page 15:
"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. Also there were "only" ten (10) defendants, and all were
claiming either absolute or derived judicial immunity.
"Birnbaum's counterclaim against the Law
Firm was clearly intended to intimidate, harass, and inconvenience the Law
Office in its attempt to collect past due balances." (Fleming p. 10)
"Birnbaum's third-party
claims against D. Westfall, C. Westfall, and Podvin were clearly intended to
intimidate, harass, and inconvenience all of the parties."
"This was evidenced by
Birnbaum's failure to present any
evidence of a conspiracy, scheme, or any act or omission by which the attorney
individually, the attorney's wife, or the attorney's daughter ever caused any
harm to Birnbaum"
MORE LIES. Birnbaum went into
EXCRUTIATING DETAIL is his FOUR (4) responses to each of these parties
motions for summary judgement, designating specific "material of
record" as to each "issue of fact" in his civil RICO cross
and third party claims, and supplied an EXCRUTIATINGLY DETAILED Appendix
with his responses to the motions for summary judgment.
Just
LOOK at the Appendix to my responses to the motions for summary Judgment
against me, (CR 213-228). It has Affidavits in there that make ONE'S HAIR STAND
UP! There were SEVENTEEN (17) VOLUMES (See CR 213) of Exhibit, including HAIR
RAISING depositions, and specifically Exhibit 9 (CR 215, "Regarding G.
David Westfall Conduct"):
Judge
Banner kept me from showing all this stuff to the jury by granting SUMMARY JUDGEMENT
on my civil RICO claim, and even when I tried to show just some of the pieces
to the jury, he would not let me. See details in my Appellant's Brief.
"For this reason ["failure to bring any
evidence"], the trial court imposed sanctions against Birnbaum for
having brought a frivolous counter-claim against C. Westfall (the wife) and
Podvin (the daughter) (CR 432-33, RR6-7)
ANOTHER LIE: Christina
Westfall was the book-keeper for G.
David Westfall, and Podvin, FRONTING as the OWNER of the "Law Office", would
for TEN YEARS in a row appoint G. David Westfall as the ONLY "director". All in my responses to the four (4) motions
for summary judgment against my civil RICO claim. EXCRUCIATINGLY DETAILED. Also
see CR 282-316, CR 213-228.
Again,
Judge Banner kept me from showing this, MY BEST EVIDENCE, and BEST CAUSE, to
the jury.
"For this reason, … …"
The
sanctions Order gives NO REASONS as
required by RCP Rule 13. More details in my Brief and this Reply Brief. It is also patently UNLAWFUL because it is
not "coercive", but PUNITIVE. Details in my Brief.
Also note Footnote 4, Appellees' page 25, Appellees now suddenly wanting
Findings!
And
since Fleming gave his "reason" as to why Judge Banner imposed
sanctions, I will give mine:
Judge Banner just did not like me
because I brought a civil RICO defense and claim, claiming, of all
things, RACKETEERING by an attorney regarding that HOLIEST of HOLIES, "legal fees".
Also, PLEASE NOTE that in footnote 2, page
8, Fleming states "D. Westfall died in May 2002 after the entry of the Final
Judgment and before the hearing on the Motion for Sanctions". How Fleming can speak for a dead man and a
dead "Law Office" is beyond me.
Also as to how he can keep on lying for them in this
In short, (1) Fleming's replies don't fit the
Issues, and (2) Fleming lies.
SUMMARY OF
THE ARGUMENT
Appellant Birnbaum makes the following replies to the statements by Frank C. Fleming in Appellees' Brief:
Appellees
want this Court to believe that "Birnbaum
seeks an appellate reversal based upon several cleverly concealed arguments
that are all essentially based upon a lack
of evidence standard review." (Appellee's page 12, Summary of
the Argument, first sentence)
Appellees also contend that "Birnbaum only brought forth on appeal
a partial reporter's record and failed to include in the request a statement of
the points or issues to be presented on appeal" (page 12, line 5) and that thereby somehow "when Birnbaum only requested a partial
reporter's record, Birnbaum then waived his right to prevail on any
appellate issue that attacked the legal and/or factual sufficiency of
the evidence presented at trial". (page 12,
line 12)
Also, that "Birnbaum cannot prevail on appeal
without a complete transcript from the trial proceeding that Birnbaum failed to
bring forward." (page 13, line 3)
NOT
TRUE. Birnbaum is not
attacking any "legal and/or factual sufficiency of the evidence AT
ALL. As detailed in the issues, what
Birnbaum is appealing is upon the general LAWLESSNESS
of the whole proceedings that one can see from just the Clerk's record
provided: That the judgment is UNLAWFUL
because it "does not conform to the pleadings and the verdict', that the
"Sanction judgment" is UNLAWFUL
because it flies in the face this very Fifth Appeals Court ruling in Westfall v. King Ranch (Same
"The Westfalls"), the Rules of procedure, and Constitutional Rights
as clearly established by the U.S. Supreme Court, etc.
Furthermore, if I only request the court
reporter to provide the "argument" portion of the proceeding, it is
clear that my issue is upon opposing council's ARGUMENT. Also, in my Notice
of Appeal (Record 436), and First Amended Notice of Appeal Regarding The $59,280.66 Judgment (record 490), I
notified Appellants as to my issues. More notices as to the issues were in Notice
of Appeal Regarding the $62,255 [Second] Judgment (record 490), Motion
for New Trial (record 444), and Supplement To Motion For New Trial
(record 459), and specifically "Point
10, incurable jury argument".
Also Notice of Official Oppression and Unlawful
Judgments Against Me (record 497), which
includes a copy of my complaint to the Criminal
District attorney of Van Zandt County.
I made it clear as to my appeals issues : RAMPANT LAWLESSNES as shown by the Clerk's
record provided, and incurable jury argument as shown by
the Court Reporter's record of Appellees' argument (Frank C. Fleming).
IF
AN AMERICAN CAN BE DEPRIVED OF HIS RIGHT TO APPEAL UPON THE ISSUE
OF HAVING BEEN ROBBED OF HIS RIGHT TO DUE PROCESS AND TO BE FREE FROM
LAWLESSNESS IN A COURT OF LAW, SIMPLY BECAUSE HE ONLY FILED A "PARTIAL REPORTER'S RECORD",
GOD HELP US ALL.
ARGUMENT
NOTE: The below assumes that the
reader has (Appellee Plaintiff Law
Office's) pleadings
and the Court's Charge before him/her. Also
Appellant's and Appellee's BRIEFS as to the issues. Also re-read "Fraud in submission of jury
issues", Appellant's Brief pages 18-20.
[Appellant's] ISSUE 1
WHETHER THE $59,280.66 JUDGMENT IS UNLAWFUL
Birnbaum's
Contention:
The $59,280.66 judgment is unlawful.
It does not conform to the pleadings
and the verdict. The jury answers are irrelevant). See Brief.
Fleming's
"Reply to Issue 1":
"The 59,280.66 judgment was lawful because
it did
conform to the pleadings and to the verdict."
Fleming: In reviewing
the factual sufficiency of the evidence, an appellate court considers
all the evidence in the record. Ortiz v. Jones, Burnett " (Appellees page 15, Issue 1, par 1, line 4)
Birnbaum's
issue is UNLAWFULNESS, not "factual sufficiency"
Fleming: "Reversal would only
be appropriate where the finding was so against the great weight
and preponderance of the evidence as to be manifestly unjust. Cain v.
Bain" (next sentence, Appellees page 15, Issue 1, par 1, line 6)
Birnbaum
is not arguing upon the "finding" or "weight and preponderance
of the evidence", but as to the UNLAWFULNESS of the judgment in light of the PLEADINGS and the VERDICT
(including jury issues)
Fleming: "Appellate
courts are mandated to interpret jury findings so as to hold up the
trial court judgment whenever possible. Rice Food Market v. etc"
(Appellees page 15, last line)
Appellate courts are
mandated to strike down UNLAWFUL judgments that do not conform to the
pleadings and the verdict.
Fleming: "The plaintiff pleaded
and proved the existence of a contract.." Appellees page 16, line 14 from top of page.
NOT TRUE. Plaintiff pleaded
UNPAID OPEN ACCOUNT.
Fleming: "The
jury found the defendant to be in breach of contract".
Appellees page 16, line 14 from top.
NO! The judge put questions to the jury that presumed
a contract, that
presumed Birnbaum had failed to
abide, and that presumed Birnbaum was not excused by Plaintiff's prior breach. (THREE ELEMENTS of a breach of
contract, and at a JURY trial, the judge would not let the JURY decide!)
Also
re-read "Fraud in submission of jury issues, Appellant's brief 18-20.
Fleming: "The
Law Office filed its Original Petition and Amended Petition as a suit on a sworn account".
Appellees page 18, line 2 from top.
This
is directly CONTRARY to what Fleming said just above (breach of contract)!
Fleming: "A
suit on a sworn account is merely a specific type of a breach of
contract lawsuit". Appellees page 18, line 5 from top.
NO, a VERY
"specific type" of suit that requires the element of "sale
and delivery", which Fleming fraudulently pleaded, but certainly did
not prove in the jury verdict.
Also, a prepaid and non-refundable $20,000 attorney
retainer agreement, for "insuring our availability in your matter",
certainly does not even contemplate "SALE AND DELIVERY", nor a
CONTRACT!)
Fleming: "The fact that the Court's charge used language
"damages" does not mean that the amount owed was determined under any
other theory other than a contract and/or sworn account ….." Appellees
page 18, line 8 from top.
NO.
The fact that the Court's charge did not use the word "owed",
nor any question or instructions as to "open
account", nor sale
or delivery,
means that the jury's answers do NOT relate to "owed", nor "open
account".
There was no finding by the jury regarding Plaintiff's claim[9] 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,
The
$59,280.66 judgment does not conform to the pleadings and the verdict.
[Appellant's]
ISSUE 2
WHETHER
DEFENDANT BIRNBAUM HAD A RIGHT
TO
Birnbaum's
Contention:
Defendant
Birnbaum had a right to a court-appointed auditor. And particularly so
in light of his claim of FRAUD, DECEPTIVE TRADE PRACTICES, and RACKETEERING by
THREE persons, and his call for the U.S. JUSTICE DEPARTMENT, motion for RECUSAL
of the judge, and petition for writ of MANDAMUS to make the judge abide by the
LAW!
Fleming's
"Reply to Issue 2":
"There was sufficient
evidence in the trial court's record to support the court's non-decision
on the issue of the Defendant's request for a court-appointed auditor under
TEX. R. Civ. P. 172"
"[S]ufficient
evidence in the trial court's
record to support the court's non-decision
… … ". (in the"Reply to Issue 2, just above)
What sort
of mumbo-jumbo is "non-decision"? How can evidence support a "non-decision"? And was
this not to be a jury trial? So what entitles the judge to weigh anything,
including determining if it was "sufficient"
enough?
Fleming: There
was nothing unusual or extensive about the bill presented to the Defendant by
the Plaintiff. The bill, and the account it represented, were not the type that
were contemplated by Rule172. An auditor should only be appointed in a suit involving
numerous or unusual matters of account.
Whitaker v. Bledsloe, 34
Villiers uses the phrase "complicated
nature of this suit as it appeared
from the pleadings before
trial, and the time and
difficulty involved in resolving the disputed accounts in a jury
trial".
My claim of FRAUD, DECEPTIVE
TRADE PRACTICES, and a PATTERN OF RACKETEERING ACTIVITY by THREE (3) persons,
should surely have put it in the "unusual matters of account"
category.
So
should my civil RICO claim on its own. Any civil RICO cause is a
complaint of CRIMES (injury
"by reason of " violation of the RICO LAW),
and my complaint of CRIMES was for ABUSE OF THE JUDICIAL PROCESS, by a
"pattern of racketeering activity", which required an AUDITOR
(and a CRIMINAL DISTRICT ATTORNEY!)
Fleming: "Birnbaum
waived appellate review by failing to warn the trial judge of any
continuing objection he had to starting trial." (Appellees page 19, 2nd
line from bottom)
NOT SO.
Birnbaum moved for recusal of Judge Banner for failing to abide
by "the Rules of Procedure, Statutory Law, and the Mandates of the Supreme
Court".
Birnbaum
next moved for Writ of Mandamus upon Judge Banner on the same issues, to
be ultimately "sanctioned" $62,000 for having made a civil RICO defense
and claim TWO YEARS EARLIER!
Birnbaum "got the attention" of Judge Banner, but instead of
doing the RIGHT thing, Judge Banner PUNISHED Birnbaum. (See Appellant's Brief,
and especially "Conclusion", starting page 40 of appellants original
Brief, and repeated in its entirety in this Reply Brief)
IF THERE
EVER WAS A CASE that REQUIRED appointment of an AUDITOR in the INTEREST OF
JUSTICE, and to preserve precious judicial resources, THIS CASE WAS IT! (read RCP Rule 172)
Defendant Birnbaum had a Right to a court-appointed auditor under the pleadings and
circumstances of this case.
[Appellant's]
ISSUE 3
WHETHER THE
"RICO RELIEF" SUMMARY JUDGMENT
IS ALSO UNLAWFUL
Birnbaum's Contention:
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. See
Appellant's Brief, Issue 3.
Fleming's "Reply to Issue 3":
"There Was Sufficient
Evidence To Support The Trial Court's Summary Judgment Dismissal Of The
Defendant's Civil Rico Claims."
"Sufficient evidence to support … … summary judgment dismissal
…"
What sort
of MUMBO-JUMBO is this? Is not dismissal
by "summary judgment" supposed to be upon lack of evidence to
an ELEMENT of a cause of action?
And is not the burden on the Movant?
Fleming: "In fact, the Motions
for Summary Judgment filed by Podvin and C. Westfall did contain very detailed
outlines of the elements
about which they alleged that there was no evidence. (CR 120,
126). Both C. Westfall and Podvin alleged tha there was no evidence that
either or both of them:
1) participated in the operation or management
of the enterprise; and engaged in the pattern of racketeering activity as
alleged;
2) had an association
with the enterprise that facilitated the commission of racketeering acts; and,
3) ever received any
income from Birnbaum or the alleged racketeering enterprise
WHAT
MUMBO-JUMBO. These are not elements, but "issues of fact" as to the RICO
violation, such "issues of fact" (upon proper instructions)
to be considered by the JURY in saying YES or NO regarding the RICO
violation ("essential element" number 1, just below).
The "elements" of a civil RICO action are:
(as stated in Birnbaum's brief on page 30)
"There are three
essential elements in a private action under this chapter: 1) a
violation of this chapter; 2) direct injury to plaintiffs from such a
violation; and 3) damages sustained by plaintiffs." Wilcox Development Co. v. First Interstate Bank of
Note: Fleming does not even state the
"issues of fact" correctly. For correct "issues of fact",
see Appellant Birnbaum's FOUR (4) responses[10]
to each of Appellee's motions for summary judgment, DESIGNATING specific
evidence to EACH and EVERY "issue of fact" required to be found per
"pattern jury instructions for civil RICO".
Fleming: "Additionally
both C. Westfall and Podvin asserted that there was no evidence that Birnbaum
had suffered any damage as a result of their alleged activity. (CR 120, 1260
This is of
course a jury issue as to whether Birnbaum was injured "by
reason" of their violation of 18 U.S.C. $ 1962 ("RICO"):
"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. (additional
EMPHASIS added)
(See Birnbaum Brief, pages 28-31)
The "RICO Relief" Summary Judgment Is Also Unlawful. I have the Right to show my best defense, claim, and evidence. The Rules and the Law do not allow a judge to weigh the evidence to grant summary judgment on civil RICO claims.
[Appellant's]
ISSUE 4
WHETHER THE
$62,255.00 "SANCTION" JUDGMENT
IS ALSO UNLAWFUL
Birnbaum's contention:
It is a criminal punishment
without due process
for having made a civil RICO
claim
Fleming's "Reply to Issue 4":
"The
Trial Court Did Not Abuse Its Discretion By
Granting Sanctions
Against Birnbaum Under
T.R.C.P. 13, and/or
Fleming keeps wanting to talk about "discretion". My ISSUE
is that it is UNLAWFUL, because it is not "coercive",
but PUNITIVE, unconditionally
imposed on me. That I do not "have the keys to my own release", that
it is for a COMPLETED ACT, TWO YEARS AGO!
See my Appeal Brief, which is VERY SPECIFIC.
Also note
that I was PUNISHED for speaking out on RACKETEERING, an "issue of great
public importance", and just because I did it with a civil RICO counter
and cross-claim, it is still FIRST AMENDMENT SPEECH, and I WAS PUNISHED
FOR IT!
JUDGE
BANNER EVEN STATED THAT I was being punished for my civil RICO claim,
although Judge Banner COMPLETELY FAILED to put into the SANCTION ORDER[11]
(per RCP Rule 13) what I was supposed to have done wrong! See my Brief, Section
3, pages 20-22).
Also this
Honorable Fifth Appeals Court itself ruled in Westfall Family Farms, Inc. v. King Ranch, Inc. 852 S.W.2d
857 (1993) that a court could not impose severe sanctions without having
first tried and imposed lesser
sanctions. (Same "The Westfalls", "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"). See my Brief.
Fleming: "Birnbaum only supports his argument with more of his opinions,
not with any citation to the record of any evidence or lack of evidence and not
to any authorities."
NOT
SO. Birnbaum quotes the U.S. Supreme
Court in United Mine Workers v. Bagwell,
the Texas Court of Criminal Appeals, RCP Rule 13, this Fifth Appeals Court in Westfall, etc.
Fleming: "By failing to provide a complete record, Birnbaum has again
waived his appellate argument" page 23 near top.
NOT SO. One does not WAIVE
one's Constitutional Rights to be free of UNLAWFUL
SANCTIONS, by not providing a "complete record". I do not need a "complete record"
to show UNLAWFUL. All one has to look at is the Sanction Order and the
transcript of the last hearing, all provided to this
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.
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
The
$62,255.00 "sanction" is an UNLAWFUL criminal punishment
without due process for having made a civil RICO counter claim
after being sued.
HONORABLE
[Appellant's]
ISSUE 5:
WHETHER THE
TRIAL JUDGE
SHOULD HAVE BEEN RECUSED FROM THE CASE
Birnbaum's contention:
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.
Fleming's "Reply to Issue 5":
"The
Trial Judge Did Not Abuse His Discretion
In Refusing To Recuse Himself."
My issue is
not whether he "abused his
discretion", but whether he should have been removed from the
case for having shown that he cannot or does not want to abide by the rules
of procedure, statutory law, nor the mandates of the Supreme
Court.
Fleming: "If there
had been any legitimate grounds for the advancement of Birnbaum's argument,
then Judge Ron Chapman would have considered and weighed that evidence at the
hearing on Judge Banner's recusal"
ANSWER: By this
time Fleming may be wishing that Judge Chapman had gotten Judge Banner off this
case. Anyhow, that was before
Fleming: "Birnbaum's
argument gave Judge Banner no basis on which to recuse himself from
presiding over this lawsuit and therefore, his continuance as the trial judge
in this proceeding was proper" page 23
ANSWER: Birnbaum
gave Judge Banner a full "basis" with all the stuff I put in the
motion for recusal, and in my petition for writ of mandate to make him obey the
law. I surely gave him a
"basis".
Judge Paul Banner should have been recused from my case, for having demonstrated, before the trial, that he would or could not abide by statutory law, the Rules of Procedure, and the mandates of the Supreme Court.
[Appellant's]
ISSUE 6
WHETHER
THERE WAS FRAUD, FRAUD, AND MORE FRAUD
Birnbaum's contention:
There was fraud, fraud, and
more fraud. FRAUD from start to finish,
intrinsic and
extrinsic, turning into retaliation by official oppression
Fleming's "Reply to Issue 6":
"The trial court did not abuse its discretion
by entering
judgment on the jury's findings."
Birnbaum
Reply:
My Issue 6 is not about "abuse of discretion", but
about FRAUD.
Fleming: "Birnbaum failed to refer to any matter
in the record on appeal that supported Appellant's argument for Appellant's
Issue 6".
Honorable
Fleming: "Again,
Birnbaum merely uses his opinions as argument and fails to support those
opinions with any evidence from the record to support them or any citation
to authority to validate them.
Honorable
There was fraud, fraud, and more fraud. FRAUD from start to finish, intrinsic and extrinsic, turning into retaliation by official oppression
[Appellant]
ISSUE 7
WHETHER DUE PROCESS DEMANDS A NEW TRIAL
Birnbaum's
contention:
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.
Fleming's
"Reply to issue 7":
"The trial court's
summary judgment rulings on the civil RICO claims and the lack of evidence ruling, did not violate Birnbaum's right of due
process."
Birnbaum
reply to Fleming's Brief:
Fleming is NONRESPONSIVE. I am talking about TEN (10) POINTS as to a
NEW TRIAL, not the "trial
court's summary judgment rulings". Also:
Fleming: "Birnbaum
failed to refer to any matter in the record on appeal that supported
Appellant's Argument for Appellant's Issue 7.
Therefore, Appellee was unable to cite the Court of Appeals to any
evidence to counter, ……etc."
Look for
yourself, Honorable Appeals Judges. I have ten (10) points in my Appellant's
Brief, quoted there for Fleming and everyone to see, coming directly out of my Motion
for New Trial (properly cited and in
the record):
THE TEN (10) POINTS in my Motion
for New Trial (as listed in my Issue 7):
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:.
Fleming's
incurable jury argument
lying and just making things up
in closing argument:
·
"When you're analyzing
what the truth is, just like those judges in that 12(b)(6)
motion had to analyze what the truth is … …".
Upon
a federal 12(b)(6) motion judges do not "analyze what the truth is",
and Fleming knows it. What they do is to
take everything in the claim to be true, and it still did not
"state a claim" because of judicial immunity. The suit had no
worth!
·
"It didn't turn out to
be true, as far as what the federal magistrate and the federal judge
thought."
As
shown above, Westfall's civil RICO suit (the one he was trying to get
$18,121.10 more "legal fees" on top of the $20,000 up front
prepayment) was dismissed on 12(b)(6) judicial immunity grounds, not because
it was not true, as Fleming was telling the jury. Judges are immune from suit. Westfall's
"legal services" had NO WORTH, AND FLEMING KNEW IT.
·
"And Mr. Collins got
his message. He changed … … He changed his lawsuit".
Fleming
is saying I should have let Mr. Westfall "change" my lawsuit (by
dropping judges) just like he "changed" Collins'. Well, Westfall did not drop all the judges,
and got sanctioned $2500 for being the "cornucopia of evil that is plaguing the judicial system"
even after he "changed"
it. Fleming is hiding from the jury
that Westfall's two civil RICO suits (mine was one) HAD NO
WORTH, and he
knew it, and is hiding all of this from the jury. (Clerk's
record 300-306).
·
"But Mr. Birnbaum has
alleged a lot of conspiracies all throughout his 15 years of living here in Van
Zandt County. Not one of them has come
true yet." (Fleming's last statements before jury deliberations)
Not
true, and there was no testimony to this effect. Fleming just keeps making
up more
"facts".
·
"A
Beautiful Mind"
"I have to admit I haven't seen it yet, but I
feel like I have, there's been so much talk about it, a great movie out, "A Beautiful Mind.". I
imagine some of y'all have seen it.
"You
know, some people have a beautiful
mind to do certain things. Mr. Birnbaum has a beautiful mind. And, boy, when you go into integrated circuits
and you go into electronics, he has a
beautiful mind. And he came to Mr. Westfall and convinced Mr. Westfall
that he had a beautiful mind,
and "I know all about this corruption down here in Van Zandt County, and I
know how to do a lot of my legal research. And with my beautiful mind and your legal abilities, we're going to get
this case going and we're going to make a million dollars, Mr. Collins [should
be Mr. Birnbaum] thought, "using my beautiful
mind.
"Well,
you know sometimes that beautiful mind
doesn't work as good in other areas as it does in some areas.
"You
know, they also say that a mind is a
terrible thing to waste. And I would argue with you that Mr. Birnbaum
has spent a whole lot of time wasting his beautiful
mind in courtrooms in Van Zandt County, in
"I
think it's just like Mr. Westfall said. If Mr. Birnbaum thinks something, if he conceives of it in his head,
he's already jumped to the conclusion that it's true.
"But
Mr. Birnbaum has alleged a lot of
conspiracies all throughout his 15 years of living here in Van Zandt
County. Not one of them has proved
true yet. I think you need to send a message to Mr. Birnbaum,
"Take your beautiful mind
and quit putting it to waste in the courtroom. Pay your legal fees, and go on
about your life."
* * * * * *
*
Judges
permit lawyers to lie. Their objective in lying is to make their lies
believable to a jury. However, NO
honest, honorable judge
would ever permit a lawyer to tell a jury that the person his client had filed
a civil suit against was a child molester, rapist or serial killer.
Fleming
cleverly told the jury what could have been perceived as a compliment to a
non-movie-goer. That jury had seen the
award winning movie, "A Beautiful
Mind", and knew it was not about the scientific accomplishments of
John Nash. They knew it was about a man who conceived things in his head that
were not true, but believed them - a paranoid
schizophrenic.
Fleming
told the jury, " think it's just like Mr.
Westfall said. If Mr. Birnbaum thinks something, if he conceives of it in his
head, he's already jumped to the conclusion that it's true."
The jury heard nothing
else except that Mr. Birnbaum was a paranoid schizophrenic. And the Judge knew
it.
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.
[Apellee] ISSUE 8
"RULE 296 PRECLUDES FINDINGS OF FACT AND
CONCLUSIONS OF LAW IN A JURY TRIAL"
Appellant
Birnbaum does not know what to make of this issue or contention brought by
Appellees, particularly in light of Appellees statement that "Appellees
respectfully request this Court deny this issue as presented by the Appellees".[12]
Appellant
Birnbaum believes that what Appellees are CONCERNED about (and should be
concerned about, as should this Appeals Court), were the matters in Birnbaums
CONCLUSION, particularly the direct quote Birnbaum made from his Notice
Of Past Due Findings Of Fact And Conclusions Of Law.
Therefore Birnbaum will close with exactly the same CONCLUSION, including the exact same direct quote out of his Notice Of Past Due Findings Of Fact And Conclusions Of Law, except that the quote, this time, is in BOLDER TYPE.
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[13]
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?
- 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?
(End of direct quote)
* * * * * *
* *
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
But a trial
judge does not have the right to take it out on me for following the
Supreme Court's urging in Rotella v. Wood
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.
The same matter is of course pretty much
summed up in Constitutional terms in the Prayer of my Motion to Reconsider the $62,885
"Frivolous Lawsuit" Sanctions Against Me[15]:
"I am
being punished for the sins of this entire proceeding. 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" [for
being a whistle-blower[16]].
PRAYER
So here we are, my asking this
I
petition this
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[17].
Apparently even the Appellees
are 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.
NOTE: If there was indeed such request, I
(Birnbaum) am not aware of it.
NO SUCH REQUEST BY APPELLEES
HAS BEEN FILED OR SERVED.
APPELLANT PETITIONS
FOR ORAL ARGUMENT
TO DETAIL THE FRAUD
Sincerely,
________________________
Udo Birnbaum, pro
se
540 VZ 2916
(903) 479-3929 phone and fax
THE TRIAL JUDGE'S LAST WORDS
IN THE CASE
(End of the
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 appro priate and subject to review".
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")[19],
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
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 July, 2003
________________________
Notary
in and for The State of
Certificate of Service
This
is to certify that on this the _17___ day of July, 2003 a copy of this document
was sent by Regular Mail to attorney Frank C. Fleming at PMB 305,
___________________
Udo Birnbaum