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                               )(
STEFANI PODVIN                                     )(
CHRISTINA WESTFALL                            )(

REQUEST FOR FINDINGS OF FACTS AND CONCLUSIONS OF LAW

REGARDING THE $62,885 "FRIVOLOUS LAWSUIT SANCTION" JUDGMENT
"signed" on Aug. 9, 2002, but the judge did not give it to the Clerk
until Aug. 21, 9:59 am (see stamp on bottom of second page),
not mailed out to me till Aug. 22 (postmark date).

COMES NOW Udo Birnbaum under RCP Rule 296, " Requests for Findings of Facts and Conclusions of Law", requesting that this Court reduce to writing its findings and conclusions as to exactly what the Court found that he did that was so wrong as to incur a $62,885.00 "frivolous lawsuit" sanction, when he did not even bring this suit!

My request for this reduction to writing is not for the purpose of harassment of this Honorable Court or the Westfalls, but to facilitate an intelligent review at the Appeals Court level of the basis of this Honorable Court's decision and ruling.

I specifically request findings and conclusions regarding the divergent versions of the truth ("frivolous" vs. "racketeering") as alleged to this Court in the Westfalls' Motion for Sanctions and in my Response thereto, i.e. a finding and conclusion regarding:

The central Issue regarding this Judgment:

Regarding my civil RICO claim and cross-claim, and absent a finding of fact by a jury (that I had indeed not been damaged by reason of a RICO violation), what conclusions of law, if any, and what findings of fact, if any, this Court made to adjudicate the sanction issue of fact, i.e. whether there was a bona fide "pattern of racketeering activity" by the Westfalls, just as I was trying to show, or whether my claims were indeed "frivolous".

(plain English: How did Your Honor arrive at a finding on this central issue, an issue I had asked to be resolved by jury?)

For the convenience of the Court I am providing copies of the above referenced two documents with this request. Also, this request will try to stay with the flow of each fact issue in these two documents as much as possible. I am also attaching a copy of the civil RICO pattern jury instructions used in our U.S. Fifth Circuit.

I also request findings and conclusions regarding the underlying issues in dispute in the above referenced Motion and in my Response:

The Westfalls' "sanctionable facts" issue 1:

"This lawsuit was brought by Plaintiff to collect on overdue legal fees for legal services rendered to the Defendant at Defendant's request". (Movants starting page 1 paragraph I)

Fact issue: Were the legal services at issue (the $18,121.10) actually rendered, or did they have no worth?

Fact issue: Were these $18,121.10 legal services actually "at Defendant's request"?

Fact issue: Did Plaintiff (or sanction movants) obtain a jury finding upon these issues?

Fact issue: Had Plaintiff previously breached his agreement by not openly billing monthly?

(The Westfalls' "sanctionable facts" issue 2)

"Instead of a mounting a normal defense to a rather simple lawsuit such as this and raising the normal objections to a suit on a sworn account, the Defendant/Third Party Plaintiff chose instead to make this lawsuit into his own public forum to make a mockery of all lawyers and the entire legal system".

Law issue: Does denying the account under oath and calling for an appointment of an auditor under RCP Rule 172 qualify as a "normal defense" and "normal objection"?

Fact issue: Is that exactly what Birnbaum did, and if so, why is it "sanctionable"?

Fact issue: Was this really a "rather simple lawsuit" or part of a "pattern of racketeering activity" by the Westfalls?

Law issue: Does an allegation of a "pattern of racketeering activity" constitute a sanctionable pleading as a matter of law?

Law issue: Does a cross-defense of damage by a RICO "pattern of racketeering activity" constitute a sanctionable defense as a matter of law?

Law issue: Does a third party claim upon the same RICO "pattern of racketeering activity" constitute a sanctionable claim as a matter of law?

The Westfalls' "sanctionable facts" issue 3:

"Defendant/Third Party Plaintiff tried unsuccessfully to intimidate and harass the Plaintiff into dropping this lawsuit by 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".

Fact Issue: Was G. David Westfall, as well as his wife and daughter, actually "running an organized crime syndicate in the form of a law office"?

Law Issue: Does a claim of "running an organized crime syndicate in the form of a law office" constitute a sanctionable act as a matter of law?

Fact Issue: Did Birnbaum actually make such "claim of running an organized crime syndicate in the form of a law office" as the Westfalls claim, or was he more specific and used the language of civil RICO?

Law Issue: Is it a sanctionable act as a matter of law to bring before the court a claim that one has been "injured in his business or property by reason of a violation of section 1962 of this chapter"? (18 U.S.C. $ 1964(c), "civil RICO")

Fact Issue: Was Birnbaum trying "to intimidate and harass the Plaintiff into dropping this lawsuit", or were the Westfalls running a "pattern of racketeering activity" on him?

Law Issue: Is it a sanctionable act to try to "attempt to implicate the owner", if the owner is indeed implicated?

The Westfalls' "sanctionable facts" issue 4:

"The Defendant/Third Party Plaintiff has attempted to use the forum of this lawsuit to launch a full scale attack on the integrity and character of G. David Westfall, Christina Westfall, and Stephanie Podvin".

Law Issue: Does an "attack on the integrity and character" of the party who has brought suit constitute a sanctionable act as a matter of law?

Fact Issue: Was Birnbaum's attacking "integrity and character", or was his language more in the nature of "pattern of racketeering activity" under civil RICO?

The Westfalls' "sanctionable facts" issue 5:

"If those attacks were not enough, the Defendant/Third Party Plaintiff broadened his attack in his pleadings and so called "Open Letters" to include casting aspersions at this Court, the visiting Judge, the Hon. Paul Banner, the Coordinator of the Court, the Court Reporter for the Court, and the Court of Appeals".

Law Issue: Is it a sanctionable act to speak out, under the First Amendment, or in a court of law, on corruption as one has personally experienced it?

Further Westfalls' "sanctionable facts" issues:
(Movants starting page 2 paragraph II)

"Specifically, Movants file this request for sanctions against the Defendant/Third Party Plaintiff for the following actions of the Defendant/Third Party Plaintiff:"

See Birnbaum Response to Motion for Sanctions.

Summary

WHEREFORE, Udo Birnbaum requests the Court to file findings of fact and conclusions of law as to exactly what the Court found that he did that was so wrong as to incur a $62,885.00 "frivolous lawsuit" sanction, when he did not even bring this suit, and specifically upon the central issue regarding this Judgment ("racketeering" vs. "frivolous") as alleged to this Court in the Westfalls' Motion for Sanctions and in my Response thereto, i.e. whether:

The central Issue regarding this Judgment:

Regarding my civil RICO claim and cross-claim, and absent a finding of fact by a jury (that I had indeed not been damaged by reason of a RICO violation), what conclusions of law, if any, and what findings of fact, if any, this Court made to adjudicate the sanction issue of fact, i.e. whether there was a bona fide "pattern of racketeering activity" by the Westfalls, just as I was trying to show, or whether my claims were indeed "frivolous".

(plain English: How did Your Honor arrive at a finding on this central issue, an issue I had asked to be resolved by jury?)

This is the second suit in which I have been run over by lawyers and judges in this Court, and I have come to recognize the retaliation by Official Oppression that has come upon me for having spoken out on corruption in Tommy Wallace's 294^th District Court, as I pleaded at the sanction hearing "trial" of July 30, 2002.

I did not bring this suit! I did not bring the other one either!

                                                                                                    Respectfully submitted
                                                                                                    ________________________
                                                                                                    UDO BIRNBAUM, Pro Se
                                                                                                    540 VZ CR 2916
                                                                                                    Eustace, TX 75124
                                                                                                    (903) 479-3929

att:     The "frivolous lawsuit" judgment
          Motion for Sanctions (by the Westfalls)
          Birnbaum Response to Motion for Sanctions
          Civil RICO pattern jury instructions

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this document has been served via Regular Mail and FAX on this the __3__ day of September, 2002, on Frank C. Fleming, Law Office of Frank C. Fleming, 6611 Hillcrest, Suite305, Dallas, Texas 75205-1301.

___________________
UDO BIRNBAUM

UDO BIRNBAUM