No

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                                                       )(
                                                                                     )(
Vs.                                                                                )(
                                                                                     )(
G. DAVID WESTFALL                                               )(
CHRISTINA WESTFALL                                           )(
STEFANI PODVIN                                                   )(
John Doe                                                                      )(
Mary Doe                                                                     )(

SECOND SUPPLEMENT TO MOTION FOR APPOINTMENT OF AUDITOR etc. PROVIDING WRITTEN DENIAL PER RULE 185 RCP

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, UDO BIRNBAUM and would show the Court the following:

Plaintiff THE LAW OFFICES OF G. DAVID WESTFALL, P.C. filed suit on September 21, 2000 on what it claimed was an open account, but did not support the suit by affirmation.

II.

Plaintiff THE LAW OFFICES OF G. DAVID WESTFALL, P.C. ON September 4, 2001, three (3) days ago, and nearly one year after filing suit, filed PLAINTIFF'S FIRST AMENDED PETITION, making identical claims, but now including a "VERIFICATION" which reads:

Before me the undersigned Notary Public in and for the State of Texas, on this day personally appeared G. David Westfall, who being by me duly sworn stated on oath that the foregoing and annexed account in favor of Plaintiff and against Udo Birnbaum for the sum stated above is within the knowledge of affiant, just and true, that it is due and unpaid, and that all just and lawful offsets, payments and credits have been allowed.

&# G. DAVID WESTFALL

III.

Such claim of a valid open account are contradicted by all the matters previously filed in this case, and specifically the Affidavits of Michael Collins and Kathy Young (Appendix to Birnbaum's responses to motions for summary judgment, exhibits 9-B and 9-C) and the Affidavit of Udo Birnbaum dated August 16, 2000, on file as part of Birnbaum's initial pleading.

IV.

G. David Westfall's claim is contradicted by his answers to interrogatories:

FIRST SET OF INTERROGATORIES, NO. 8:

Identify the manner in which you systematically, routinely, or otherwise cause charges for your time to become reflected in the "systematic records" and "account for services rendered" as you use those phrases in Plaintiff's Original Petition, and such source documents, as they pertain to my "account for services rendered" as you systematically, routinely, or otherwise produced.

ANSWER: I make time records which are later put into a bill.

The Videotaped Deposition of G. David Westfall shows that The Law Office of G. David Westfall, P.C. does not keep accounts at all, and that everything occurs "on the side" without being reflected in any records. (somewhere around page 36). The transcript also indicates that G. David Westfall knows he does not have any account or billing records to even look at (page 20 and continuing for pages).

VI.

Birnbaum again, this time upon the "Verification" by G. David Westfall, affirms that the "bill" provided as an Exhibit "A" in PLAINTIFF'S FIRST AMENDED COMPLAINT is a fraud.

VII.

"When an investigation of accounts or examination of vouchers appears necessary for the purpose of justice between the parties to any suit, the court shall appoint an auditor or auditors to state the accounts between the parties and to make report thereof to the court as soon as possible. The auditor shall verify his report by his affidavit stating that he has carefully examined the state of the account between the parties, and that his report contains a true statement thereof, so far as the same has come within his knowledge, etc." Rule 172, RCP (emphasis added)

VIII.

Contradicting Affidavits have now been provided by both sides, and Birnbaum again moves the Court to appoint such auditor. Such appointment is also necessary because opposing parties are concealing evidence by refusing to abide by the rules of discovery as is before the Court in motions to compel.

WHEREFORE, for the reasons given above, Birnbaum again 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.

Respectfully submitted,

___________________
Udo Birnbaum, Pro Se
540 VZ 2916
Eustace, Texas 75124
(903) 479-3929

STATE OF TEXAS

COUNTY OF VAN ZANDT

Before me, a notary public, on this day personally appeared Udo Birnbaum, known to me to be the person whose name is subscribed to the foregoing document, and being by me first duly sworn, declared that the statements therein contained are true and correct.

Given under my hand and seal of office this _____ day of September, 2001

_________________________
Notary in and for The State of Texas

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this document has been served via hand delivery on this the _____ day of September, 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.

___________________

UDO BIRNBAUM