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. "The Westfalls" (G. David Westfall, wife Christina Westfall, and daughter Stefani Podvin) moved for summary judgment on August 17 and 18, 2002. Such summary judgment was granted on November 13, 2001. (attached ) THAT PUT THEM OUT OF THE CASE.

However on May 9, 2002, and a full month after trial in which they chose not to participate, they suddenly reappear, making wild claims against me seeking attorneys fees under color of "frivolous lawsuit" sanctions!

2. I did not bring this lawsuit. 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.

3. I did not bring this lawsuit, but denied, under oath, plaintiff's version of the state of the accounts. Had this Court appointed an auditor as was required under the circumstances, this Court would have seen that the Westfalls (G. David, Christina, and daughter Stefani Podvin) were lying in their pleadings, and that the Westfalls were indeed conducting a racketeering enterprise just as I was claiming, and that I was their latest victim.

Had this Court timely denied such Auditor, instead of considering for one year, the proceedings would not have expanded as they did, for I would have known that this Court would not accept a civil racketeering claim, and there would not have been this horrible waste of judicial resources, nor time for the Westfalls to run up such humongous "legal fees".

4. Noteworthy in the Westfalls' Motion for Sanction are the claims that I "chose to make this lawsuit into [my] own public forum to make a mockery of all lawyers and the entire legal system", and that I was "attempting to implicate the owner of the Plaintiff, G. David Westfall, as well as his wife and daughter in a totally frivolous claim of running an organized crime syndicate in the form of a law office." Those were not the precise words I used under 18 U.S.C. $ 1961 et seq. (civil RICO), but this is generally the issue of great public importance I raised in my defense regarding the conduct of the Westfalls. And of course all civil RICO defendants always claim the suit against them is "frivolous".

5. In my responses I pleaded that "Only the U.S. Justice Department can determine whether the [Westfalls] were indeed running a racketeering enterprise … … as Birnbaum complains", and that "Birnbaum has a First Amendment right to speak out against public corruption as he sees it, without fear of retaliation masquerading as 'sanctions'."

This Court was no more entitled to weigh the evidence to make a finding that there was no RICO violation, and sanction me, than it was entitled to find that there was a RICO violation, and throw the Westfalls in jail. The Court has no investigative capability. Hence my call for the U.S. Justice Department.

I am being punishing 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.

This is to certify that a true and correct copy of this document has been served via Regular Mail and FAX on this the _19__ day of August, 2002, on Frank C. Fleming, Law Office of Frank C. Fleming, 6611 Hillcrest, Suite 305, Dallas, Texas 75205-1301.

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