CAUSE NO

CAUSE NO. 00-00619

THE LAW OFFICES OF § IN THE DISTRICT COURT

G. DAVID WESTFALL, P.C. §

Plaintiff. §

V. § 204th JUDICIAL DISTRICT

UDO BIRNBAUM, §

Defendant. § VAN ZANDT COUNTY, TEXAS

THIRD PARTY DEFENDANT, CHRISTINA WESTFALL'S,

MOTION FOR SUMMARY JUDGMENT

COMES NOW, third party defendant, Christina Westfall (hereinafter referred to as "Christina Westfall" or "Movant"), third party defendant in the above-styled and numbered cause and moves for summary judgment as to all of counter-Plaintiff, Udo Birnbaum's ("Respondent") causes of action as pled in any current live pleading of Udo Birnbaum ("Birnbaum") and would hereby show the Court as follows:

1.

Procedural HistoEy:

I Plaintiff, The Law Offices of G. David Westfall, P.C., filed this action on September 21,

2000.

2. On October 2, 2000, defendant, Birnbaum, filed his Original Answer, his Cross-Claim

against The Law Offices of G. David Westfall, P.C., and his Third Party Claims against G. David

Westfall, Christina Westfall, and Stephanie Podvin. 1

3. Since the original filing, Birnbaum has sent to the Movant, interrogatory requests,

requests for production, and requests for disclosure.

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4. On July 3, 2001, Udo Birnbaum was given the opporV~nity and gave his deposition in this

matter.

5. On July 20, 2001, Christina Westfall gave her deposition in this matter.

6. This matter is currently set for trial on the Court's docket for November 13, 2001.

II.

SummaEy Judgment Eviderice

This motion for summary judgment is based upon the current live pleadings on file with

the Court at the time this motion is filed as well as any amended pleading on file at the time of

the ruling on this motion, all discovery requests and responses thereto or lack of responses

thereto. An examination of the foregoing shows that as a matter of law, with regard to one or

more of the elements on which the defendant, Birnbaum, bas the burden of proof, there is no

genuine issue as to any material fact, and that there is no competent summary judgment evidence

to suppor t at least one or more of the essential elements of each of the causes of action pled by

Birnbaum against the Movant. Therefore, Movant is entitled to a judgment against Birnbaum,

denying all of Birnbaum's causes of actions against Movant, as a matter of law under T.R.C.P.

166a (c) and/or (i).

IV.

Summarv Judgment Argument

I An adequate time for discovery has passed. At the tinie of the hearing on this motion, the

suit will have been on file for a year. The Respondent has utilized the discovery tools of

interrogatories, request for production, request for disclosure, and deposition of the parties.

Further, 'an adequate amount of time to develop the facts is admitted by Birnbaum in a judicial

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admission contained in paragraph 5 of Udo Birnbaum's Amended Third Party Plaintiff Civil RICCO Claim, filed in this Court on July 11, 2001.

2. There is no evidence to support one or more essential elements of each and every one of

Birnbaum's claims or defenses on which Birnbaum has the burden of proof.

Birnbaum's Complaints against Christina Westfall:

3. Birnbaum alleges that Christina Westfall is a participant in a "pattern of racketeering activity" by acts of "racketeering activity" (predicae acts) of obstruction in the administration of justice on the part of G. David Westfall in the Dallas Federal Court. Birnbaum's RICCO complaint further alleges that Christina Westfall was the recipient of a flow of income from a pattern of racketeering activity. That is it! Birnbaum makes no other allegation against Christina Westfall other than Christina Westfall's participation in this "RICCO" type behavior. Birnbaum's pleadings contain no other allegation against Christina Westfall on any lesser type of cause of action. This is the "sole indictment" brought by Birnbaum against Christina Westfall.

Essential Factual Elements Missing in Birnbaum's Complaints:

4. Birnbaum has fully failed to provide even one single bit of summary judgment adequate evidence which in a light most favorable to Birnbaum would even tend to support a fact that Christina Westfall was engaged in any sort of illegal, corrupt, or clandestine activity whatsoever, let alone the types of activity alleged in Birnbaum's pleadings. What the summary judgment evidence does prove is that Christina Westfall assisted the Law Offices of G. David Westfall, P.C. in routine, non lawyer related matters, in order to assist her husband in his legal practice. That is it! Christina Westfall is the wife of the lawyer in the liw firm. She has assisted from time

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to time in . and around the office, and having done so, is embroiled in an alleged RICCO violation arising out of a fee dispute for the legal services rendered by her husband to Birnbaum.

5. There is no summary judgment type evidence to support a genuine fact issue for several of the elements of Birnbaum's cause of action. Bimbaurr's own pleading outlines several elements in paragraph 65, on pages 10- and I I of Udo Birnbaum's Amended Third Party Plaintiff Civil RICCO Claim.

(a) There is no evidence that Christina Westfall knowingly and willfully conducted or participated, directly or indirectly, in the conduct of the affairs of an enterprise through a pattern of racketeering activity.

(b) There is no evidence -that Christina Westfall participated in the operation or

management of the enterprise.

activity as claimed by Birnbaum.

(d) There is no evidence that Christina Westfall's association with the enterprise

facilitated the commission of racketeering acts.

6. Further, there is no evidence that Christina Westfa.11 ever received any income from

Birnbaum or the alleged racketeering enterprise.

7. Further, there is no evidence that Birnbaum has suffered any damages which is an

essential element of Birnbaum's claims against Christina Westfall. 1

8. The Texas "no-evidence" motion for summary judgment [T.R.C.P. 166a (i)] requires, like

the federal standard, that if the issue is one on which the Movant does not bare the burden of

proof, and after an adequate time for discovery bas passed, summary judgment is mandated if the

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respondent fails to make a showing sufficient to establish the existence of at least a fact issue on each and every one of the elements essential to prevail on its case. Celotex v. Catrett, 477 U.S. 317 (1986), see Clay M. White, "A New Rule For Texas Sjunmary Judgments," INSURANCE DEFENSE LEGAL UPDATE December 1997.

9. Moreover, simply showing the existence of a fact issae will not suffice to defeat a "noevidence" summary judgment; there must be a "genuine issue" regarding a "material fact." There is no genuine issue where the record, taken as a whole, could not lead a rational trier of fact to find for the respondent. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In the present situation, after a review of the record as a whole, a rational trier of fact could not find for Birnbaum on any of his claims against Movant, Christina Westfall.

Prayer For Relief-

WHEREFORE, PREMISES CONSIDERED, Movant request this matter be set for hearing with notice to Udo Birnbaum and upon hearing thereof, the Court enter judgment that as a matter of law, Birnbaum's causes of action against Movant, as plead in Birnbaum's current live pleading or any amended petition filed prior to the hearing on this motion are dismissed with prejudice, and for such other and further relief, both at law and in equity, to which this Movant

may show himself justly entitled.

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Respqctfully submitted,

4--~-~K C. FLEMING

State Bar No. 00784057

6611 Hil!crest Ave. #3 05

Dallas, Texas 75205-1301

(214) 373-1234

(214) 373-3232 (fax)

ATTORNEY FOR MOVANT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above Motion For Summary Judgment has this day been ser~,ed upon all parties by regular mail.

SIGNEDthis 1'-Z-,~ictayof August, 2001.

FRANK C. FLEMING

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