No. 00-00619

THE LAW OFFICES OF                                     )(                         IN THE DISTRICT COURT
G. DAVID WESTFALL, P.C.                              )(                        OF VAN ZANDT COUNTY

Vs.                                                                                                 294TH DISTRICT COURT

UDO BIRNBAUM

Vs.

G. DAVID WESTFALL
CHRISTINA WESTFALL
STEFANI PODVIN 

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, UDO BIRNBAUM ("Defendant", "Birnbaum"), answering THE LAW OFFICES OF G. DAVID WESTFALL, P.C. ("Plaintiff", "Law Office"), and counter-claiming of same, and cross-complaining of G. DAVID WESTFALL ("David Westfall", "Westfall"), CHRISTINA WESTFALL , and STEFANI PODVIN, and would show the Court the following:

G. DAVID WESTFALL is an individual whose residence is in Dallas, Dallas County, Texas and may be served with process at 6623 Norway Road, Dallas, Texas 75230. (Ph. 361-2124)

CHRISTINA WESTFALL is an individual whose residence is in Dallas, Dallas County, Texas and may be served with process at 6623 Norway Road, Dallas, Texas 75230. (Ph.361-2124)

STEFANI PODVIN is an individual whose residence is in Dallas, Dallas County, Texas and may be served with process at 5935 Royal Crest Drive, Dallas, Texas 75230. (Ph. 987-4740)

Plaintiff's allegation: "On or about May 5, 1999, Defendant retained Plaintiff to perform legal services in a civil matter in Cause No. 3:99-CV-0696-R in the United District Court for the Northern District of Texas in Dallas, Dallas County, Texas." (Plaintiff's Original Petition paragraph II)

My answer: Denied. Defendant did not retain Plaintiff, but G. David Westfall, and not to "perform legal services", but to "act as [his] attorney ", and "provide reasonable and necessary legal services to the best of [his] ability." G. David Westfall did not provide services such as he promised. Plaintiff did not abide by the terms of the retainer. (Exhibits 1, 2, 3, 4)

Plaintiff's allegation: "The legal and/or personal services were provided at the special instance and requested of Defendant and in the regular course of business." (Plaintiff's Original Petition paragraph III)

My answer: Denied. The services were provided not at the instance of the Defendant, but at the instance of Plaintiff "Law Offices" and / or attorney G. David Westfall. Defendant was fraudulently and deceptively solicited by Plaintiff and G.David Westfall in violation of Rule 7.03 of the Texas State Bar Rules (Texas Disciplinary Rules of Professional Conduct). (Exhibit 1, 2, 3)

Plaintiff's allegation: "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 in the amount of $18,121.10, being a reasonable charge for such services." (Plaintiff's Original Petition paragraph III)

My answer: Denied. Defendant alleges that no systematic records were maintained. Defendant avers that the only "bill" he ever received was about July 31, 2000, such document titled "Billing Statement, December 31, 1999", with handwritten notation portraying attempts at collection dated 2/1/00, 4/3/00, 6/1/00, and 7/31/00. (Exhibits 1, 2, 1-A, 4). Plaintiff avers that no such attempts at collection were made (Exhibit 4). Plaintiff avers that this "Last notice B-4 collection 7/31/00" was the first, and only notice ever, and that it was not accompanied by any explanation or communication. (Exhibit 1, 4). Defendant alleges this "bill" is fraudulent and not of December 31, 2000 origin.

Plaintiff's allegation: "Despite Plaintiff's demands upon Defendant for payment, Defendant has refused and failed to pay the account to Plaintiff's damage in the total amount of $18,121.10. All just and lawful offsets, payments and credits have been allowed. (Plaintiff's Original Petition paragraph III)

My answer: Denied. G. David Westfall fraudulently solicited me in violation of Texas Bar Rule 7.03 (Solicitations and Prohibited Payments). Texas Bar Rule 7.03(d) unconditionally prohibits charging for, or collecting a fee for professional employment obtained in violation of Rule 7.03 (a), (b), or (c). Plaintiff's charges are not lawful. Additionally, the only "bill" I ever saw was certainly also fraudulent. (Exhibits 1, 2, 3, 4). Recent testimony by G. David Westfall at the deposition of him taken by Udo Birnbaum shows that the whole "accounting system" at the Law Office is one of occasionally getting around to it.

Defendant asserts that "Plaintiff's Original Petition" in this Cause is a fraudulent document, known to be fraudulent by G. David Westfall when he caused it to be mailed for filing on September 20, 2000.

Defendant Birnbaum respectfully requests that Plaintiff be required to prove the charges and allegations against Defendant by a preponderance of the evidence as is required by the Constitution and Laws of the State of Texas and demands a jury trial.

Birnbaum, a consumer of legal services, makes counterclaims against Plaintiff the "Law Office" under the Texas Deceptive Trade Practices Act for false, misleading, deceptive, and unconscionable acts by the LAW OFFICE and G. DAVID WESTFALL, which were the producing cause of Birnbaum's damages. Demand was made.

G. David Westfall, in misrepresenting himself as an honest provider of legal services, concealed and failed to disclose that he was running a racketeering ring ("Westfall Bunch") right there out of the Law Office.

If Birnbaum would have known of the "Westfall Bunch", he surely would never have contracted through Plaintiff "Law Office" in the first place. But for G. David Westfall committing the unconscionable act of soliciting Birnbaum to obstruct in the administration of justice in the Collins matter in the Dallas Federal Court as shown by the attached exhibits, Birnbaum would not have been damaged, and neither the suit upon Birnbaum, nor this claim under the Texas DTPA, would exist.

Evidence of a "pattern of racketeering activity" by G. David Westfall is shown by the exhibits to this document. Exhibit 2, in particular, gives evidence of a "pattern of racketeering activity" by acts of "racketeering activity" (predicate acts) of obstruction in the administration of justice on the part of G. David Westfall in the Dallas Federal Court. The "bill" in this cause, reflecting charges for "conferences" with Stefani Podvin, together with her admitting that she submitted "Billing time cards created by Stefani Podvin and provided to David Westfall", shows that money flowed to Stefani Podvin. Similar arguments can be made for Christina Westfall's work at the Law Office. Such flow of income from a "pattern of racketeering activity" violates 18 U.S.C. $ 1962(a) ("RICO").

Evidence obtained from Court documents in involuntary bankruptcy proceedings against G. David Westfall in the Dallas Bankruptcy Court (Bk. No. 300-34287-HCA-70 shows the RICO violative "pattern of racketeering activity" as involving not only G. David Westfall, but also Christina Westfall, and Stefani Podvin. This involvement was of course also evident to Birnbaum upon the sudden appearance about July 31, 2000 of the fuzzy giant balloon "bill" of $189,121.10 that initiated these whole proceedings, and all the fuzzy and strange documents emanating from somewhere within the Dallas Federal Court.

Birnbaum therefor brings this cross-complaint under 18 U.S.C. $ 1964(c) ("Civil RICO") against David Westfall, Christina Westfall and Stefani Podvin. DAVID WESTFALL, CHRISTINA WESTFALL and STEFANI PODVIN are liable to Defendant Birnbaum for such part of Plaintiff's claims as they are liable to Birnbaum by reason of their violation of RICO.

The "pattern of racketeering activity" and the "conducting of the affairs of the enterprise" is clearly visible in the testimony of G. David Westfall and accountant Richard Alderson for the whole Law Office "Westfall Bunch" (David Westfall, Christina Westfall, Stefani Podvin), as shown in the 237 page transcript of the September 20, 2001 bankruptcy proceedings against G. David Westfall (No. 300-34287-HCA in the Dallas Bankruptcy Court, already filed as an Exhibit 8 in this Cause).

• Mr. Alderson, the accountant for everybody, including the "Law Office", "Westfall Farms", David Westfall, and Christina. Westfall for ten (10) years claiming not to "know" if Mr. Westfall is a shareholder of "The Law Office of G. Westfall, P.C." page 33 line 9.
• Mr. Alderson's testimony that funds are co-mingled across the board. page 40 starting line 12 and going on for pages. Supported by the testimony of G. David Westfall himself at that hearing.
• The Court reprimanding Mr. Alderson: "I don't understand how you can put your name on a tax return if you haven't looked to at least spot check checks." And "Aren't you sticking your neck out when you put your name on a return like that?" page 52 starting line 15.
• David Westfall funding the whole bunch out of a single account. Starting page 64.
• Neither David Westfall nor Christina Westfall have personal checking accounts. Everything comes out of the slush fund "Law Office" account. Starting at page 77
• David Westfall hiding that his daughter Stefani Podvin is the real owner of "The Law Offices of G. David Westfall". page 87 line 16.
• When Westfall shuffled assets and the old Westfall Farms became a "dormant corporation".
• David Westfall trying to make himself bullet proof from a pending $500,000 King Ranch judgment.

The "pattern of racketeering activity" is also evident from the following acts of "racketeering activity":

• The documents filed by or in behalf of David Westfall in his recent bankruptcy proceeding in which he claimed he had more than twelve (12) creditors against him
• The series of documents between David Westfall and his daughter Stefani Podvin each year designating him as director of the Law Office
• The retainer agreement between David Westfall and Udo Birnbaum
• The retainer agreement between David Westfall and Jerry Michael Collins
• The document David Westfall calls a "bill"
• The fraudulent pleading David Westfall used to bring this suit.

The "pattern of racketeering activity" is to be found in all the exhibits previously provided in this cause, the persons named, their affidavits, together with whatever they may have.

The "pattern of racketeering activity" is also clearly visible in the testimony of G. David Westfall as taken by Udo Birnbaum on July 3, 2001. It shows G. David Westfall had no intent of ever abiding by the terms of the retainer contract he signed with Udo Birnbaum.

Wherefore, Defendant Udo Birnbaum respectfully requests that judgment be entered against parties THE LAW OFFICES OF G. DAVID WESTFALL, P.C., G. DAVID WESTFALL, CHRISTINA WESTFALL, and STEFANI PODVIN for the reasons given above.

Their conduct was knowing, intentional, with malice, demonstrated a complete lack of care, and was in conscious disregard for the rights of Defendant. Defendant is therefore entitled to an award of punitive damages. Defendant seeks judgment against Plaintiff:

(a) In an amount not less than $40,000

(b) For the costs of suit, including reasonable attorney's fees, if any

(c) Pre-judgment interest at the maximum rate allowed by law

(d) Post-judgment interest at the maximum rate allowed by law

(e) Punitive damages in an amount as the jury may award at its discretion

Defendant seeks judgment against cross-defendants for such amount as they are liable to him for his liability to Plaintiff The Law Offices of G. David Westfall, P.C.

This is to certify that a true and correct copy of this document has been served via CMRR on this the _____ day of July, 2001 upon G. David Westfall, 5646 Milton, Suite 520, Dallas, Texas 75206 and Frank C. Fleming, Law Office of Frank C. Fleming, 6611 Hillcrest, Suite 305, Dallas, Texas 75205-1301.