No. 00-00619

THE LAW OFFICES OF                                         )(                                     IN THE DISTRICT COURT

G. DAVID WESTFALL, P.C.                                  )(

                                                                                 )(                                     294^TH JUDICIAL DISTRICT

Vs.                                                                            )(

                                                                                 )(                                     VAN ZANDT COUNTY, TEXAS

UDO BIRNBAUM                                                   )(

TO THE HONORABLE JUDGE OF SAID COURT:

        COMES NOW, Udo Birnbaum, Defendant and Counter and Cross Claimant, in the above-styled and numbered cause and makes and files this his Motion For Appointment of Auditor Pursuant to Rule 172 RCP to Make Finding of State of the Accounts Between Parties and would thereby show the Court the following:

I.

        Birnbaum moves the Court to note the nature and state of the pleadings, including the issue of fraud in the "accounts for services rendered" as evidenced by Defendant's Answer, Counterclaim, and Cross-Complaint and exhibits attached thereto, and moves for appointment of an auditor to make a finding for the Court of the state of the accounts between the parties.

II.

        Plaintiff "The Law Offices of G. David Westfall, P.C." even now has failed to provide a copy of the "accounts for services rendered" allegedly attached as Exhibit "A" to Plaintiff's Original Petition. Furthermore no copy is to be seen with the document Plaintiff filed with the Clerk.

III.

        At issue in this Cause is whether the alleged "accounts for services rendered" (allegedly shown as Exhibit "A") is fraudulent or not. At issue in the process is whether the filing of Plaintiff's Original Petition without Exhibit "A", and still without Exhibit "A", is fraud in itself.

        WHEREFORE Birnbaum requests a hearing upon these matters as to show that such appointment of an auditor is necessary for the efficient and just adjudication of this Cause.

This is to certify that a true and correct copy of this document has been served via CMRR on this the _____ day of December, 2000 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.