No. 00-00619

THE LAW OFFICES OF                                             )(                                 IN THE DISTRICT COURT
G. DAVID WESTFALL, P.C.                                      )(
                                                                                     )(                                 294^TH JUDICIAL DISTRICT 9; 9;
Vs.                                                                                )( 9;
                                                                                     )(                                 VAN ZANDT COUNTY, TEXAS 9;
UDO BIRNBAUM                                                       )(
                                                                                     )(
Vs.                                                                                )(
                                                                                     )(
G. DAVID WESTFALL                                               )(
CHRISTINA WESTFALL                                           )(
STEFANI PODVIN                                                     )(

TO THIS HONORABLE COURT:

COMES NOW Udo Birnbaum, showing as follows:

1. Plaintiff, claiming "systematic records" and an unpaid account of $18,121.10, brought suit falling under RCP Rule 185, "Suit on [sworn] Account", and no other cause of action. Birnbaum timely complied with the mandatory counterclaim, and denied the "account" under oath, claiming fraud, and moved for the mandatory appointment of an Auditor per RCP Rule 172. Such motion was, however, denied and no auditor's report of the "state of the accounts between the parties" was ever made to the Court or the jury.

At issue was the state of the accounts. Plaintiff pleaded no other cause of action.

2. 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)

At issue was the state of the accounts. Plaintiff pleaded no other issue. And neither an auditor, a jury, or the Court ever made a finding of such state of the accounts.

3. The only issues of Plaintiff submitted to the jury were in the nature of a breach of contract, which Plaintiff had not pleaded, and to which Birnbaum had objected. The issues actually submitted were as follows:

• What sum of money, if paid now in cash, would fairly and reasonably compensate The Law Offices of G. David Westfall, P.C. for its damages, if any, that resulted from the Defendant, Udo Birnbaum's, failure to comply with the agreement between the Plaintiff and the Defendant?
• What is a reasonable fee for the necessary services of the Plaintiff's attorneys in this case, stated in dollars and cents?

These issues are not relevant to Plaintiff's cause of action, i.e. the state of the accounts.

4. Even if Plaintiff had pleaded in the nature of a breach of contract, which it did not, at issue would still be whether Birnbaum was excused by Plaintiff's prior breach of the "agreement", i.e. not billing monthly and not obligating to large expenses without Birnbaum's prior approval. Birnbaum submitted these issues to be determined by the jury, but such request was denied by the Court. Plaintiff certainly did not plead that he had complied with the agreement, and submitted no such issue to the jury. Hence the jury verdict, even if Plaintiff had pleaded "breach of contract", certainly would not support all the elements of a "breach of contract".

5. At issue was the state of the accounts. There certainly was no "sale", and even "delivery" is at issue. The legal "goods" (bringing a federal civil racketeering suit on judges!) were worthless. As this Court even lectured the jury, judges are immune from suit, and as this Court stated early on in this cause, it had never seen a civil racketeering suit that had any merit.

Birnbaum submitted this issue of "no worth" for determination by the jury. But such request was also denied by the Court. The Court knew the "goods" plaintiff had "delivered" had no worth.

6. Staring at each other are two diametrically opposed verified pleadings as to the state of the accounts, with no report by an auditor, and no finding by the jury of the state of the accounts.

No judgment, under RCP Rule 301, "conforming to the pleadings and the verdict" is possible, because the verdict did not resolve the state of the accounts.

        Birnbaum moves the Court to reconsider the judgment, and to declare a mistrial, because the jury made no finding of the state of the accounts, the very matter at issue.