No. 00-619

The Law Offices of G. David Westfall, P.C )( In the 294th District Court.

v. Udo Birnbaum )( Of Van Zandt County

v. The Three Westfalls             )(

 

Udo Birnbaum's RCP Rule 298 Request for Clarification and Amendment regarding Judge Banner's Findings of Fact and Conclusions of Law

These Findings of "bad faith", just made, have no support in the trial court record,

and are in direct conflict with a prior determination of "well-intentioned"

 

 

Note: I have repeated each and every sentence of Judge Banner's Findings of Fact and Conclusions of Law. (There was no emphasis in the original Findings and Conclusions)

For details as to my responses below, please refer to my briefs

 

Introduction and summation

In his Finding, again and again Judge Banner now finds violations of "9.000 et seq. Civ. Prac. Rem. Code, 10.000 et seq. Civ. Prac. Rem. Code, Rule 13, T.R.C.P., and/or the common law of Texas".

As shown below, NONE of this law applies to the facts in this case. Also note that 9.000 et seq. Civ. Prac. Rem. Code is the only statutory provision that allows attorney fees for the damage in an entire proceeding (but only after a finding of "frivolous", and after a 90-day "safe-harbor" period!) Also that punishment, for a completed act, unconditionally imposed, is a criminal sanction, requiring full due CRIMINAL process, including a finding of "beyond a reasonable doubt".

Regarding 9.000 et seq. Civ. Prac. Rem. Code:

         Section 9.000 et seq. of course only applies to "injury, property damage, or death", under any cause of action, and to TORT causes of action (my pleading was civil RICO, statutory law).

         Section 9.000 also specifically excludes Texas DTPA claims (a mini-RICO). Also it has a 90-day "safe-harbor" provision, and applies only after a determination of "frivolous pleadings", which Judge Banner never made, except now in this Finding, after everything is finished! I had of course asked for appointment of an auditor, to show that the "collection" suit against me was frivolous.

         Also it specifically states that section $9.000 does not apply if Rule 13 is involved.

         (This section is also the only one that allows attorney fees for the entire proceeding, after a "frivolous lawsuit" determination, which there was not, and opportunity to withdraw an supposedly offending pleading).

         So much for monetary sanctions under 9.000 et seq.

 

 

Regarding 10.000 et seq. Civ. Prac. Rem. Code:

         Section 10.000 et seq. only applies to attorney fees in obtaining a 10.000 sanctions

         Sanctions under 10.000 require the naming of the conduct which violated 10.000, which the Sanctions Order did not. (It gave NO REASON WHATSOEVER)

         So much for monetary sanctions under 10.000 et seq.

 

Regarding T.R.C.P. Rule 13:

         This Rule states that "No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanctions order".

         No "particulars" were stated in the Sanction Order of $62,000 (nor in this Finding)

         The "appropriate sanctions available" are those under Rule 215-2b, which only include the court issuing Orders (of which there were none), and payment for damages caused for violation of an ORDER (of which there was none)

         So much for monetary sanctions under T.R.C.P. Rule 13.

 

Regarding "and/or the common law":

        The "common law" does NOT provide for the imposition of sanctions.

 

 

 

* * * * * *

 

Udo Birnbaum's RCP Rule 298 Request for Clarification and Amendment regarding Judge Banner's Findings of Fact and Conclusions of Law

These Findings of "bad faith", just made, have no support in the trial court record,

and are in direct conflict with a prior determination of "well-intentioned"

 

 

"The above-captioned cause came on for trial to a jury on April 8, 2002. At the conclusion of the evidence, the Court submitted questions of fact in the case to the jury."

        Yes, Judge Banner had a jury sitting there, but he did not use it. Wrong jury questions, missing jury questions, missing instructions, etc. Also my civil RICO claim and evidence was not allowed to go to the jury. ("The [three] Westfalls" were dismissed by summary judgment seven (7) months earlier)

 

"In addition to the matters tried to the jury the Court took under consideration the Motion filed by David Westfall, the Plaintiff (the "Plaintiff"), and Christina Westfall, and Stefani Podvin (Christina Westfall and Stefani Podvin collectively referred herein as the "Counter-Defendants") concerning the filing of a frivolous lawsuit and Rule 13 Sanctions."

        David Westfall was NOT the Plaintiff. "Plaintiff" was "The Law Offices of G. David Westfall, P.C.". David Westfall was one of "The Westfalls", as he was in Westfall v. King Ranch, Texas Fifth Circuit No. 05-92-00262-CV (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". Same in this cause.

        In responding to the use of the word "Counter-Defendants", I will use "The [three] Westfalls" (G. David Westfall, wife Christina, and his daughter Stefani Podvin). Again, please note that David Westfall was NOT the Plaintiff, and that the "The [three] Westfalls" were cross and third-party defendants under my civil RICO claim against them.

 

The combined issues of the counter-claim on frivolous lawsuit and the Rule 13 Motion were tried together to the Court on July 30, 2002.

        No. The [three] Westfalls made NO counterclaim in any of their pleading. Their pleadings were a GENERAL DENIAL. Besides that, they had already been removed from the case by SUMMARY JUDGMENT over ten (10) months earlier (Sept. 20, 2001).

 

At the proceedings on July 30, 2002, the Plaintiff appeared by counsel, the Counter-Defendants appeared in person and were also represented by their attorney. At the proceedings on July 30, 2002, Udo Birnbaum (the "Defendant/Counter-Plaintiff"), the Defendant/Counter-Plaintiff, appeared pro se.

        G. David Westfall was deceased at this time, as was the "Law Office". Westfall had claimed he was the ONLY shareholder of "The Law Office", was its ONLY officer ("director"), and the ONLY attorney associated with "The Law Office". THE LAW OFFICE was DEAD. Westfall died May 2002, shortly after the April 2002 trial.

 

After considering the pleadings, the evidence presented at the trial to the jury as well as the evidence presented at the summary judgment hearings and the sanctions hearing before the Court, in response to a request from the Defendant/Counter-Plaintiff, the Court makes its findings of fact and conclusions of law as follows:

        These findings are not in response to my Motion. My Motion had been long ago denied. Also my request was upon how Judge Banner came up with the TWO JUDGMENTS against me, not a finding as to my conduct. He had already made such at the close of the Sanctions Hearing :

 

"[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."

(Note: My civil RICO suit was upon "the individuals", i.e. "The [three] Westfalls", and "The Westfalls" only. No civil RICO claim was made against the "Law Office" plaintiff.

 

 

Findings of Fact

 

1. The Defendant/Counter-Plaintiff's claims concerning RICO civil conspiracy claims against Christina Westfall and Stefani Podvin (the wife and daughter of the Defendant/Counter-Plaintifff's former attorney, David Westfall) were groundless and totally unsupported by any credible evidence whatsoever.

        "Credibility " determinations are of course the prerogative of the JURY, whether as to witnesses, documents, or whatsoever.

        Also I did not make "RICO civil conspiracy claims". My claim was for "injury to property or business by reason of a violation" [of RICO], i.e. stemming or flowing from a "pattern of racketeering activity", i.e. "produced by", etc. (no proximate cause required). See my Brief

        Also my civil RICO claim was against all three "The Westfalls". Cross-claims upon what they were now trying to get from me through their Law Office "enterprise" (fraudulent "collection suit"), plus third-party claims for what they had already done to me previously ($20,000 retainer paid for a no-worth suit against Texas district judges). Same "enterprise" (Law Office), same "pattern of racketeering activity", same scheme.

        Also Christina Westfall and Stefani Podvin were far more than only "wife and daughter". Christina (wife) was long-time book-keeper at the Law Office, and Stefani Podvin (daughter) the only share-holder "owner" of the Law Office, at least on paper. (So G. David Westfall could be "bullet-proof" from judgment, and engage in his unlawful "pattern of racketeering activity". (Evidence in my huge summary judgment Appendix)

 

2. The Defendant/Counter-Plaintiff's claims concerning RICO civil conspiracy claims against Christina Westfall and Stefani Podvin were without merit and brought for the purpose of harassment, delay, and to seek advantage in a collateral matter by attempting to cause the original Plaintiff, David Westfall to drop his claim for un-reimbursed legal services provided to the Defendant.

        The "Plaintiff" was not David Westfall, but "The Law Office"

        "un-reimbursed legal services"? Plaintiff (The Law Office P.C.) were claiming an unpaid OPEN ACCOUNT! There was no OPEN ACCOUNT, and the JURY certainly made no finding of an OPEN ACCOUNT, and how much money was OWED. See my Appeal Brief.

 

3. The Defendant/Counter-Plaintiff was afforded numerous opportunities to marshal his evidence and present any facts to support his allegations concerning RICO civil conspiracy claims against the wife and daughter of the Defendant/Counter-Plaintiff's attorney, David Westfall.

        NO. Judge Banner did not allow me to show my VOLUMES of Evidence to the Jury, particularly the HISTORY OF FRAUD by David Westfall as shown by document in the INVOLUNTARY BANKRUPTCY proceedings against him, the findings of BAD FAITH by Federal Judge Jorge Solis, and numerous sanctions for FRAUD and suspensions of his law license.

 

The Defendant/Counter-Plaintiff wholly failed to provide any such credible evidence at either the summary judgment phase of the lawsuit or at the hearing on the motion for sanctions.

        I had asked that my evidence to my civil RICO claim be weighed by a JURY, not by Judge Banner.

 

4. The attempt to provide testimony by the Defendant/Counter-Plaintiff concerning RICO civil conspiracy claims were his own opinions and totally uncorroborated by any other evidence.

        What about the findings by Federal Judge Jorge Solis, Federal Bankruptcy Judge Harold C. Abramson, other findings of fraud, the AFFIDAVITS I presented? All this, and my civil RICO claim, Judge Banner would NOT ALLOW ME TO SHOW TO THE JURY!

        "The attempt were his own opinions"???

 

5. The Defendant/Counter-Plaintiff never established that he had suffered any economic damages as a result of an alleged conspiracy.

        "economic damages" is of course a matter to be determined by the JURY. I had claimed the $20,000 non-refundable retainer I had been tricked into paying, and other moneys.

        Also I was not alleging damages "as a result of a conspiracy", but as a result of G. David Westfall's RICO violative conduct, i. e. "by reason of the RICO violation", i.e. flowing from the alleged "pattern of racketeering activity".

 

The Defendant/Counter-Plaintiff was sued by his former counsel to collect money for legal work which had been performed for the Defendant/Counter-Plaintiff for which the Defendant/Counter-Plaintiff had not paid his attorney in full.

        "not paid his attorney"? I was sued by a "Law Office".

        I was not sued for "money I had not paid to my attorney", but for money supposedly OWED on an OPEN ACCOUNT at a "Law Office". All FRAUD! ("open account" requires sale and delivery). What had existed was a $20,000 pre-paid, non-refundable attorney retainer agreement "to ensure our availability", and the attorney had "reserved the right to terminate for non-payment". That was his only remedy. No open account, no contract either.

 

The jury found that the work had been performed by the attorney, the amount charged to the client was reasonable, and that there was an amount owed by the Defendant/Counter-Plaintiff to the Plaintiff.

        NO. The jury was NOT asked how much money was OWED. They certainly received NO INSTRUCTIONS as to what constitutes an OPEN ACCOUNT. (sale and delivery, systematic records, etc. See my Appeal Brief.

 

The Defendant/Counter-Plaintiff's claims concerning RICO civil conspiracy claims had no bearing on whether or not the Defendant/Counter-Plaintiff received the legal services and owed the balance of the outstanding attorney's fees.

        My civil RICO claim HAD a bearing. In a civil RICO suit the JURY can reach back TEN (10) years into Westfall's past CONDUCT, to establish whether his CONDUCT was VIOLATIVE OF RICO, to reveal the scheme and the pattern of racketeering activity, to show that my injury flowed from his RICO violative conduct (i.e. his "pattern of racketeering activity"), and that this fraudulent "collection suit" was in the "pattern" of his "pattern of racketeering activity".

 

6. The filing of the Defendant/Counter-Plaintiff's claims concerning RICO civil conspiracy was a blatant and obvious attempt to influence the outcome of the Plaintiff's legitimate lawsuit against the Defendant/Counter-Plaintiff and to cause harassment to the Plaintiff and his family members.

        My civil RICO claim was to show that the lawsuit against me was a "predicate act" in a "pattern of racketeering activity" that could only be seen by reaching back into David Westfalls CONDUCT of a "pattern of racketeering activity", to show the SCHEMES he was using, and that this suit was part of his pattern.

        My civil RICO claim was not to "cause harassment", but to hold "The [three] Westfalls" accountable for what they were doing through their RACKET of using the LAW OFFICE in perpetrating this fraudulent suit on me. Their RACKET of course can only be seen by allowing me to show ALL of my evidence to the JURY, in the form of my civil RICO claim.

7. The behavior of the Defendant/Counter-Plaintiff in filing claims concerning RICO civil conspiracy in this lawsuit have been totally without substantiation on any cause of action pled.

        "Behavior have been without substantiation .." What sort of MUMBO-JUMBO did attorney Fleming put down for Judge Banner to sign? Besides I asked for "substantiation" by JURY, not by JUDGE.

        As if a civil RICO claim has to have "substantiation" on another cause of action???

 

8. The conduct of the Defendant/Counter-defendant giving rise to the award of punitive damages was engaged in willfully and maliciously by the Defendant/Counter-Plaintiff with the intent to harm the Plaintiff and the Counter-Defendants.

        Emphatic statement, but no SPECIFICITY or PARTICULARITY as required by Rule 13. Not in this statement, nor in anything in any of the previous statements. Also Judge Banner, at the close of the Sanction Hearing, found me to be "well-intentioned".

 

9. The amount of actual damages, attorney's fees, suffered by the Counter-Defendant was proven to be reasonable and necessary by a preponderance of the evidence and not challenged by the Defendant/Counter-Plaintiff at the hearing on sanctions. The amount of actual damages awarded was in an amount that was proven at the hearing.

        The amount of sanctions are to be reasonable and necessary to be sufficiently "COERCIVE" to prevent a repetition of conduct, NOT to punish for any "damages" or "attorney's fees" that may have been "suffered" by The [three] Westfalls".

        The U.S. Supreme Court has of course ruled that the purpose of civil sanctions is to COERCE, not to PUNISH. And that any sanction, when unconditionally imposed to PUNISH, not to COERCE into compliance, is a CRIMINAL sanction, requiring full due CRIMINAL process, including a finding BEYOND A REASONABLE DOUBT. See my Brief.

 

10. The amount of damages for inconvenience awarded by the court was proven at the hearing by a preponderance of the evidence and not challenged by the Defendant/Counter-Plaintiff at the hearing on sanctions. The court awarded damages for inconvenience in an amount the Court found to be reasonable and necessary, supported by evidence, and appropriate considering the circumstances.

        Not much specificity or particularity as to what is "reasonable and necessary" "considering the circumstances". Also not much specificity and particularity as to the exact "circumstances", i. e. WHAT WAS IT I WAS SUPPOSED TO HAVE DONE WRONG, WHICH ORDER, IF ANY, I WAS SUPPOSED TO HAVE VIOLATED, etc.

        "Not challenged"? See my Oral Pleading in Writing, and my Closing Pleading in Writing, in which I pleaded retaliation by official oppression.

 

11. The amount of punitive damages awarded by the Court were found to be supported by the evidence and necessary under the circumstances to attempt to prevent similar future action on the part of the Defendant/Counter-Plaintiff.

        Not much specificity or particularity as to "under the circumstances" or "similar future action"

        Also, these were not awards based on The Westfalls' pleadings, but PUNITIVE SANCTIONS imposed as a result of a MOTION FOR SANCTIONS, intended to "CHILL" my First Amendment and statutory right to access to the courts.

 

12. The sanction award is directly related to the harm done.

        A civil sanction is to COERCE compliance. This is a sanction for supposed "harm done", making it a CRIMINAL sanction, imposed without full CRIMINAL due process.

 

13. The sanctions award is not excessive in relation to the harm done and the net worth of the Defendant/Counter-Plaintiff.

        "Net worth" was never raised in any of the pleadings or proceedings. And again "harm done".

        And of course the trial judge is there so that there is no "harm done" in a civil proceeding. At least not to the tune of $62,000. Without Judge Banner ever WARNING or REPRIMANDING or ORDERING me to do or not do anything, and in fact finding me to be "well-intentioned", while at the same time pronouncing a $62,000 sanction against me for having made a civil RICO pleading TWO years before!

 

14. The sanctions award is an appropriate amount in order to gain the relief which the Court seeks, which is to stop the Defendant/Counter-Plaintiff and others similarly situated from filing frivolous lawsuits.

        A civil sanction is to coerce compliance in the PROCEEDINGS. A criminal sanction is to PUNISH and set an EXAMPLE for "others similarly situated". This is a CRIMINAL sanction!

        What is the "message" the Court is trying to send? DO NOT MAKE CIVIL RICO CLAIMS, even if you have a First Amendment and statutory right to do so!

 

15. The amount of the punitive damage award is an amount narrowly tailored to the amount of harm caused by the offensive conduct to be punished.

        "conduct to be punished" ? "tailored to the harm caused" ? "punitive damage" ?

        Is not a civil sanction to be tailored to coerce someone into compliance with a judge's order, and to be the least amount necessary to accomplish such compliance?

        And a court cannot impose severe civil sanctions without having tried (and actually imposed! ) lesser sanctions to see if they will accomplish such compliance?

        And an unconditional punishment or for a completed act is a criminal sanction, requiring full CRIMINAL process, including a finding of "beyond a reasonable doubt".

Does not Judge Banner know anything about Due Process, and the right of access to the courts, free from fear of unlawful punishment? Or is this whole "Finding" just "stuff" put down by attorney Frank C. Fleming, on a piece of paper, and Judge Banner just signed it.

 

16. The Counter-Defendants suffered both economic and emotional damages as a result of the Defendant/Counter-Plaintiff's lawsuit and specifically the frivolous nature of the lawsuit caused damages which included expenses in addition to taxable court costs, attorney's fees, harassment, inconvenience, intimidation, and threats.

        "specifically the frivolous nature of the lawsuit caused intimidation, and threats"?

        Not much specificity and particularity in this finding, as required by RCP Rule 13, particularly regarding such "intimidation" and "threats".

 

17. The Counter-Defendants established a prima facie case that this lawsuit was filed by the Defendant/Counter-Plaintiff without merit and for the purpose of harassment. The prima facie case was made by the testimony and documents introduced as evidence by the Counter-Defendants at the summary judgment proceedings as well as at the hearing on sanctions on July 30, 23002.

        The only "prima-facie" case is the one I am making by this response.

        That I was punished for engaging in "protected activity", i.e. for filing my civil RICO claim

        And that such punishment is RETALIATION as a matter of law.

 

18. After the Counter-Defendants established their prima facie case, the Defendant/Counter-Plaintiff failed wholly to provide any credible evidence to support the legal theories of the Defendant/Counter-Plaintiff.

        Credibility determinations are of course the prerogative of the JURY, whether about witnesses or documents, or whatsoever

        Also civil RICO is not a "legal theory", but STATUTORY LAW, clearly established by the U.S. Supreme Court.

 

 

Conclusions of Law

 

1. The Defendant/Counter-Plaintiff wholly failed to provide any credible evidence to substantiate any of his claims concerning a RICO civil conspiracy claim.

        Credibility determinations are of course the prerogative of the JURY

        Whether there was a violation of RICO, and whether I was injured "by reason of" such violation was of course an issue I asked to be made by the JURY

 

2. An essential element of each of Defendant/Counter-Plaintiff's claim was damages.

 

3. The Defendant/Counter-Plaintiff failed to prove any damage as a direct result of any action or inaction caused by the Plaintiff or the Counter-Defendants.

        I did not make a civil RICO claim against the Plaintiff [Law Office]

        "damage" is of course a JURY issue, as is "direct result" (proximate cause)

        Also, civil RICO does not require "damage as a direct result of any action or inaction", but "injury by reason of" the RICO violative conduct, i.e. flowing from the "pattern of racketeering activity", i.e. more like producing cause.

 

4. All of Defendant/Counter-Plaintiff's claims were as a matter of law unproved and untenable on the evidence presented to the Court

        "as a matter of law unproved"? What sort of MUMBO-JUMBO is this that Fleming put down for Judge Banner to sign?

        And had I not asked for determination by JURY?

 

5. Based upon the facts presented to support Defendant/Counter-Plaintiff's claim concerning RICO civil conspiracy charges, the Defendant/Counter-Plaintiff's claims concerning RICO civil conspiracy were completely untenable.

        Is this a conclusion of law (as to my civil RICO claim) made by Judge Banner, "upon the facts presented"?

        But I had asked for a finding of fact (as to my civil RICO claim) to be made by a JURY, "upon the facts presented"

 

6. The Defendant/Counter-Plaintiffs claims concerning RICO civil conspiracy charges were not based upon the law, were not a good faith extension of existing law, and were brought and continued to be urged for the purpose of harassment.

        Not based on the law??? Civil RICO IS the law! 18 U.S.C. $ 1964(c)

 

7. The court concludes as a matter of law that Defendant/Counter-Plaintiff's claims concerning RICO civil conspiracy were brought for the purpose of harassment.

        Since when has the filing of a civil RICO claim become "harassment" "as a matter of law"???

 

8. The Defendant/Counter-Plaintiff's behavior in bringing and prosecuting this frivolous lawsuit was a violation of one or more of the following: $9.000 et seq. Civ. Prac. & Rem. Code, $10.000 et seq. Civ. Prac. & Rem. Code, and/or Rule 13, T.R.C.P.

        $9.000 et seq. does not apply to my civil RICO nor my DTPA cause of action pleaded (in essence because it is not a tort but a statutory law claim). Also the court has to first give me a warning under $9.000, and a 90 day opportunity to withdraw any pleading.

        "behavior" does not have much specificity or particularity.

        Even if it were a "violation", Judge Banner cannot unconditionally punish me for a completed act.

        Such unconditional punishment, without full criminal process, is outlawed as a matter of law.]

 

9. The Court has the power to award both actual and punitive damages against the Defendant/Counter-Plaintiff for the filing and prosecution of a frivolous lawsuit. This authority stems from one or more of the following $9.00 et seq. Civ. Prac. & Rem. Code, $10.000 et seq. Civ. Prac. & Rem. Code, Rule 13, T.R.C.P., and/or the common law of Texas.

        YES, but only to COERCE, not to unconditionally punish or for a completed act, without full due CRIMINAL process.

        So says the U.S. Constitution and U.S. Supreme Court!

 

10. The behavior and attitude of the Defendant/Counter-Plaintiff in filing and prosecuting this claim against the Counter-Defendants calls out for the award of both actual and punitive damages to be assessed against the Defendant/Counter-Plaintiff.

        Judge Banner found me "well-intentioned".

        Also, I did not get to "prosecute" this claim. Judge Banner granted summary judgment.

 

11. The Counter-Defendants were successful in presenting a prima facie case to the Court on the issue of sanctions. After the prima facie case was made, the burden of proof shifted to the Defendant/Counter-Plaintiff and the Defendant/Counter-Plaintiff failed in its effort to prove good faith in the filing of the RICO civil conspiracy claims.

        There is no "burden-shifting" upon a motion for sanctions!

        It is not up to me to prove good faith. Good faith is "presumed". Judge Banner even found "well-intentioned"!

 

12. The appropriate award for actual damages as a result of the filing and full prosecution of this frivolous lawsuit is an award of $50,085.00 in attorney's fees. The Court makes this award under power granted to the Court by $9.000 et seq. Civ. Prac. & Rem. Code, $10.000 et seq. civ. Prac. & Rem. Code, Rule 13, T.R.C.P., and/or the common law of Texas.

        Damages only come into play under $9.000. This section however does not apply, as there was no finding of bad faith under the "safe-harbor" provision of this section. The other sections do not allow for assessing attorney's fees for "damages", ONLY to "coerce"

        Under the "common law"?????

 

 

13. The appropriate sanction for the inconvenience suffered by the Counter-Defendants for the filing and full prosecution of this frivolous lawsuit is an award of $1,000.00 to Christina Westfall and $1,800.00 to Stefani Podvin, to be paid by the Defendant/Counter-Plaintiff to the Counter-Defendants.

        See above

 

14. The appropriate punitive sanction for the filing and full prosecution of this frivolous lawsuit is an award of $5,000.00 to Christina Westfall and an award of $5,000.00 to Stefani Podvin, to be paid by the Defendant/Counter-Plaintiff to the Counter-Defendants.

        "Full prosecution"? Judge Banner granted summary judgment.

 

15. The award of punitive damages is directly related to the harm done.

        The only legal sanctions are of course those to "coerce", and they do NOT relate to the harm done, but to what is necessary to "coerce" into compliance. I never disobeyed NOTHING!

 

16. The award of punitive damages is not excessive.

        See above

 

17. The award of punitive damages is an appropriate amount to seek to gain the relief sought which is to stop this Defendant/Counter-Plaintiff, and others like him, from filing similar frivolous lawsuits.

        Judge Banner had found me "well-intentioned"

        Are there special sanctions for filing "similar" frivolous suits, i.e. civil RICO?

 

18. The amount of the punitive damage award is narrowly tailored to the harm done.

        Does not the law say it should be tailored to "coerce", and that a sanction for "harm done", i.e. a "completed act", is by law a CRIMINAL sanction?

 

19. Authority for the punitive damage award is derived from $10.000 et seq. Civ. Prac. & Rem. Code, Rule 13, T.R.C.P., and/or the common law of Texas.

        No specificity and particularity as to just exactly what I was supposed to have done.

        No "authority" of course over-rides the Constitution and the Supreme Court, i.e. that a punitive (as opposed to "coercive") sanction cannot be imposed except by full CRIMINAL process.

 

Any finding of fact herein which is later determined to be a conclusion of law, is to be deemed a conclusion of law regardless of its designation in this document as a finding of fact. Any conclusion of law herein which is later determined to be a finding of fact, is to be deemed a finding of fact regardless of its designation in this document as a conclusion of law.

 

SIGNED THIS _______ day of September, 2003

___________________

JUDGE PRESIDING

 

 

 

 

 

 

 

 

 

______________________

UDO BIRNBAUM

540 VZ CR 2916

Eustace, Texas 75124

(903) 479-3929 phone

(903) 479-3929 fax

 

 

Certificate of Service

This is to certify that on this the __13__ day of October, 2003 a copy of this document was sent by Regular Mail to attorney Frank C. Fleming at PMB 305, 6611 Hillcrest Ave., Dallas Texas 75205-1301. A copy of this document has also been provided to Judge Paul Banner through Pam Kelly, Court Coordinator for the 294th District Court in Canton, Texas.

 

___________________

Udo Birnbaum