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 )(

G. David Westfall's motion is procedurally insufficient for failing designate as to which element, of which cause of action against him, there is no evidence, other than to conclusorily allege that "In the present situation, after reviewing the record as a whole, a rational trier of fact could not find for Udo Birnbaum on any of his claims against the Law Office of G. David Westfall, P.C. and G. David Westfall."

RICO is statutory law and of course does not have "elements" to point to. It does have "material issues of fact", i.e. that which is in the statute as interpreted by case law and as embedded in the U.S. Fifth Circuit Civil RICO pattern jury instructions (attached). Such "material issues of fact" are of course in the realm of the jury in making its finding as to whether the totality of the evidence actually shows a RICO violation and whether injury is by reason of such violation.

The elements of Civil RICO stem from the language itself which authorizes a private cause of action under the RICO (18 U.S.C. § 1961, et seq.) statute:

The party moving for summary judgment is either hopelessly confused or willfully trying to confuse the Court. Summary judgment is not available under the circumstances:

Birnbaum's Summary of Evidence to Civil RICO "elements" designates his summary judgment evidence. Other evidence is in the witnesses named and their affidavits as already provided or in the Appendix to this response.

Birnbaum petitions this Court to require G. David Westfall to argue his Motion for summary judgment in light of this response and the evidence hereby presented and designated. Full argument will show that summary judgment is not available under the circumstances of this case.

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, UDO BIRNBAUM, ("Birnbaum"), Defendant and Counter-claimant against The Law Offices of G. David Westfall, P.C. ("Law Office"), and Cross-claimant and Third Party Plaintiff against G. David Westfall, and in response to G. David Westfall's Motion for Summary Judgment, would show the Court as follows:

1. Plaintiff, The Law Offices of G. David Westfall, P.C., filed this action on September 21, 2000 against Udo Birnbaum for "legal fees" of $18,121.10 beyond the $20,000 Birnbaum had paid up front on May 5, 1999.

2. On October 3, 2000 Birnbaum filed Defendant's Answer, Counterclaim, and Cross-complaint, as amended on July 6, 2001 by Defendant's Amended Answer, Counterclaim, and Cross- complaint, counter-claiming of the "Law Office" under the Texas Deceptive Trade Practices Act (DTPA), and cross-complaining of G. David Westfall, Christina Westfall, and Stefani Podvin.

3. On December 26, 2000 Birnbaum filed Motion for Appointment of Auditor Pursuant to Rule 172 RCP to Make Finding of State of the Accounts between the Parties. On January 8, 2001 Birnbaum filed Supplement to Motion for Appointment of Auditor, etc. The Law Office never responded to this motion, and this motion is currently still pending before the Court.

4. On April 20, 2001 Birnbaum filed Udo Birnbaum's Motion Under Rule 193.4 for Hearing and Ruling on Objections and Assertions of Priviledge. The Law Office as well as the other individual parties never responded to this motion, and this motion is currently still pending before the Court.

5. On April 30, 2001 Birnbaum filed Udo Birnbaum's Third Party Plaintiff Civil RICO Claim Against G. David Westfall, Christina Westfall, and Stefani Podvin. This pleading, as amended on July 11, 2001 by Udo Birnbaum's Amended Third Party Plaintiff Civil RICO Claim against G. David Westfall, Christina Westfall, and Stefani Podvin, complains of violations of 18 U.S.C. § 1961 et seq. ("RICO"), by the three named individuals and also of fraud by G. David Westfall. The "Law Office" is not named as a RICO defendant, but is instead designated as the "enterprise" associated with the above individual "persons".

6. At various times various parties moved to quash the taking of depositions. However the Court, on June 20, 2001 ordered dates for the taking of depositions of the respective parties.

7. On July 3, 2001, Udo Birnbaum gave his deposition in this matter. On this date G. David Westfall also gave his deposition, although time ran out and Westfall refused to produce any documents whatsoever as required by the notice duces tecum.

8. On July 20, 2001 Stefani Podvin and Christina Westfall gave their deposition. Both refused to produce any documents whatsoever as required by the notices duces tecum.

9. The Law Office, however, refused to allow the taking of their deposition as shown by Udo Birnbaum's Motion to Compel Deposition of the Law Offices of G. David Westfall, P.C., filed July 16, 2001. The Law Office has not responded to this motion, and this motion is currently still pending before the Court.

10. On August 17, 2001 all four (4) opposing parties mailed motions seeking summary judgment, although they were not actually filed with the Clerk by this designated deadline.

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

1. G. David Westfall is seeking summary judgment under Rule 166a(i) ("No-Evidence Motion"). Rule 166a(i) states:

2. G. David Westfall's motion fails to state the elements as to which there is no evidence. G. David Westfall's motion is so computer-canned that it utterly fails to even name or refer to Birnbaum's cross-cause or third party plaintiff cause against him under 18 U.S.C. § 1964(c) ("Civil RICO"), much less even refer to the essential elements to state as to which element or elements there is no evidence. G. David Westfall merely states that "[t]he foregoing shows as a matter of law that with regard to the issues raised there is no genuine issue as to any material fact, etc.", when there is nothing "foregoing" in its motion.

3. G. David Westfall is abusing the summary judgment process. Birnbaum comes to show that G. David Westfall, in the very bringing of this suit, is abusing the judicial process itself to collect upon a fraudulent "bill".

4. Birnbaum challenges Movant to disprove , at the hearing now set for September 7, 2001, any element of Birnbaum's cross and third party cause of action against him. However, the only way to prove or disprove anything upon the pile of evidence before the Court is under cross-examination before a jury.

1. RICO is statutory law. Its "elements", more properly its "genuine issues of material fact", are the issues of fact raised by the language of the statute itself, all of which are of course "material" and to be proved to the jury:

2. Movant, in his motion, has not foreclosed the possibility of the existence of certain facts from which "it would be open to a jury … to infer from the circumstances" that Plaintiff had engaged in "false, misleading, or deceptive acts, failures to disclose, or an unconscionable course of action."

3. Movant, in his motion, did not designate as to which element there is no evidence, other than to conclusorily allege that the evidence does not show a violation of the RICO. The ultimate issue of the violation of the RICO, however, is the prerogative of the jury and not subject to summary judgment disposition.

4. The "material issues of fact" can be clearly found in the "Fifth Circuit Civil RICO pattern jury instructions" hereby made a part of this response. The material issues, and Birnbaum's evidence thereto, are developed in the context of these instruction. Since these instructions are sufficient for the jury to make a finding upon the evidence, then this document may as well serve as the framework for directing Birnbaum's evidence toward these individual issues of fact, and Birnbaum will do so.

1. Udo Birnbaum's Amended Answer, Counterclaim, and Cross-complaint, and Udo Birnbaum's Amended Third Party Plaintiff Civil RICO Claim against G. David Westfall, Christina Westfall, and Stefani Podvin clearly indicates the evidentiary underpinnings of his claim. The following is directly out of paragraphs 12 through 14 of the latter:

• Mr. Alderson, the accountant for everybody, including "The Law Office", "Westfall Farms", Mr. Westfall, Mrs. Westfall for ten (10) years claiming not to "know" if Mr. Westfall is a shareholder of "The Law Office of G. Westfall, P.C." page 33 line 9.
• Mr. Alderson's testimony that funds are co-mingled across the board. page 40 starting line 12 and going on for pages.
• The Court reprimanding Mr. Alderson: "I don't understand how you can put your name on a tax return if you haven't looked to at least spot check checks." And "Aren't you sticking your neck out when you put your name on a return like that?" page 52 starting line 15.
• David Westfall funding the whole bunch out of a single account. Starting page 64.
• Neither David Westfall nor Christina Westfall have personal checking accounts. Everything comes out of a "Law Office" slush fund account. Starting at page 77
• David Westfall hiding that his daughter Stefani Podvin is the real owner of "The Law Offices of G. David Westfall". page 87 line 16.
• When Westfall shuffled assets and the old Westfall Farms became a "dormant corporation".
• David Westfall trying to make himself bullet proof from a pending $500,000 King Ranch judgment.

• The documents filed by or in behalf of David Westfall in his recent bankruptcy proceeding in which he claimed he had more than twelve (12) creditors against him
• The series of documents between David Westfall and his daughter Stefani Podvin designating him as director of the Law Office each year
• The retainer agreement between David Westfall and Udo Birnbaum
• The retainer agreement between David Westfall and Jerry Michael Collins
• The document in this cause which David Westfall calls his "bill"
• The fraudulent pleading David Westfall used to bring this suit.

2. The "pattern of racketeering activity" is also clearly visible in the Videotaped Deposition of David Westfall as taken by Udo Birnbaum on July 3, 2001, starting page 18 line 19. It shows G. David Westfall had no intent of ever abiding by the terms of the retainer contract he signed with Udo Birnbaum.

3. Further evidence is in the documents named by Birnbaum on pages 80 line 23 through page 82 line 12 in the Videotaped Deposition of Udo Birnbaum as taken of him on July 3, 2001:

4. And again, on page 132 line 12 through page 133 line 6 of the Videotaped Deposition of Udo Birnbaum as taken of him on July 3, 2001. The tone and tenor of the proceedings again does not fully come through on the transcript, as does the scheming throughout the deposition as caught by the video camera:

1. There is plenty of evidence around, and Birnbaum designates all of it as his summary judgment evidence. There have been three deep reaching depositions, each reaching into the exhibits made a part of such depositions. There are discovery documents. Then there is the transcript of the bankruptcy proceedings against G. David Westfall as referred to in the pleadings and as filed in this Court. Then there is the entire record in the Dallas Federal Court made a part of Birnbaum's cause of action by reference. Then of course there is the "bill" with the supposed demands for payment. There clearly is no lack of evidence.

2. The question before the Court is what does all of this stuff mean. Birnbaum claims that, as far as what David Westfall and Stefani Podvin did, it shows a violation of RICO by a pattern of racketeering activity.

Birnbaum claims that the "Law Office" through G. David Westfall was deceiving him with this document by concealing that the "Law Office" never intended to bill monthly. If the "Law Office" would have billed him monthly, such would have precluded G. David Westfall from coming up with whatever giant "bill" he wished to come up with at whatever time he chose, and to try to enforce such fraudulent "bill" with a fraudulent collection suit in the name of the "Law Office".

In depositions of David Westfall he claims he never promised anyone that he would bill them monthly, but this document clearly shows that he did. The scheme is clearly shown in the Videotaped Deposition of David Westfall, taken July 3, 2001, starting page 18 line 19 through line 8. It makes very interesting reading. (Attached)

The evidence also shows that G. David Westfall has a pattern of coming up with such fraudulent giant summary "bills". Rather than go into detail here, the matter is clearly documented in the Videotaped Deposition of David Westfall, taken July 3, 2001, and particularly how a charge for 7/31/00 could be reflected on a complete "billing statement" dated July 31, 2000. (Page 41 line 23 through page 42 line 22).

The videotape of the parties before the camera of course shows the continuing scheme much better than the mere "objection form" that appears on the transcribed document.

b. Westfall's Deposition Exhibit 2: Letter from Westfall to Birnbaum:

Birnbaum claims this is a letter to get G. David Westfall out of the mess he had painted himself in the Dallas Federal Court, i.e. to conceal that he had been fired long ago and should have stopped meddling in the courts and stopped charging. It is obstruction in the administration of justice because it involves an attorney as an officer of the court.

Birnbaum claims this is a fraudulent "CYA" document. Client had not "disregarded the advice of counsel … … making it impossible for his attorney to properly handle the matter …", as Westfall tells the Court, but had fired him three months ago.

Birnbaum claims this document was fraudulently submitted by Westfall to the Court. Deposition testimony shows that Westfall did not "deliver a copy of this Motion to Plaintiff" as he claims in the above document. Furthermore Westfall did not need my signature as he claimed in Exhibit 2 above. It was all a "CYA" scheme, and getting Birnbaum's signature was the name of the game.

e. Westfall's Deposition Exhibit 5: 9/15/00 Affidavit of Udo Birnbaum:

David Westfall's conduct is unconscionable. Birnbaum gives evidence upon the following matters:

• David Westfall's Solicitation and Concealment of Solicitation shows collusion
• David Westfall's delay in making a formal appearance shows collusion
• Westfall's attemt to release Judges Zimmermann and McDowell as defendants shows collusion
• Westfall's fraudulent motion to withdraw shows collusion
• Westfall not doing anything about the strange "Judgment" and "de novo determination" in my Cause shows collusion

f. Deposition Exhibit 6: "Billing" statement with handwriting on it:

Birnbaum testified that the whole document is a fraud, as is the handwriting on it.

g. Deposition Exhibit 7: Diagram by Birnbaum:

Birnbaum is diagramming the RICO violative scheme involving the Law Office. Birnbaum is testifying under examination upon the unconscionable scheme of the Westfall Bunch running a full blown racketeering scheme right there out of the Law Office. The Law Office, in soliciting and inducing Birnbaum to take G. David Westfall as attorney, was clearly concealing that it was an enterprise controlled by the Westfalls for perpetrating their scheme.

1. Other evidence of the pattern of racketeering activity is to be found in the exhibits to the Videotaped Deposition of Stefani Podvin of July 20, 2000:

What these documents show is G. David's scheme to make himself "bullet proof", i.e. not owning the Law Office checking account. G. David Westfall, in depositions (page 52, line 17) claims he is the owner of the Law Office, yet gets himself appointed ten (10) years in a row by straw person Stefani Podvin participating in his scheme to get himself "appointed" director by fraudulently "appointing" him director, claiming she is the owner of the Law Office (page 12 line 20). Being director permits him to do the pattern of racketeering activity. Not owning any assets makes him "bullet proof" to judgment and allows him to risk acts of "racketeering activity" that one would not take if one were not "bullet proof" to judgment.

This document shows G. David Westfall's scheme to maintain control of the profits of "Stefani Podvin's" Law Office by funneling them back to Christina and David Westfall, to be ultimately funneled back to "Westfall Farms", of which David Westfall, Christina Westfall, and Stefani Podvin are "limited partners" as Stefani Podvin testified in depositions.

Not owning any assets makes him "bullet proof" to judgment and allows him to risk acts of "racketeering activity" that one would not take if one were not "bullet proof" to judgment.

G. David Westfall and Christina Westfall succeeded in fooling the Internal Revenue Service with the above document.

This transcript, together with the bankruptcy exhibits, shows the RICO scheme between G. David Westfall, Christina Westfall, and Stefani Podvin in setting up and controlling the "Law Office" and "Westfall Farms" to do the "pattern of racketeering activity".

Showing how, through their long time accountant, they have been operating their "enterprise".

Evidence the profits from "Stefani Podvin's" Law Office wind up at "Westfall Farms".

Everyone is funded out of one giant slush fund account made possible by the RICO scheme.

Everyone has agreed to release everyone. Problem is the release needs to be signed by the parties, one of them being STEFANI PODVIN as supposed "owner" of the "Law Office". The scheme slips out:

Mr. Pronske (Westfall's lawyer): " We have agreed that there will be mutual releases between the parties . . [list] . . Are there any others that we need? And the professional corporation."

Mr. Westfall: "I hadn't thought about it. I don't want her to have to execute anything."

Proving the transfer of income from the "Law Office" to G. David Westfall personally, then to "G. David Westfall Family LP" ("Westfall Farms"). G. David Westfall, Christina Westfall, and Stefani, as partners of Westfall Farms derived each derived income from the "pattern of racketeering activity".

2. Evidence of the knowledge of the pattern of racketeering activity is to be found throughout the Videotaped Depositions of G. David Westfall, Stefani Podvin, and Christina Westfall, as indicated by all their "I do not know" answers, when the evidence in the documents and each others testimony clearly conflicts with theirs.

(In the format of the "issues of fact" in the Fifth Circuit

Civil RICO pattern jury instructions)

COUNT ONE - - RICO

(participating through a pattern of racketeering activity)

Defendants: G. David Westfall, Stefani Podvin

1. That an enterprise existed.

Evidence: The "Law Office" is the alleged "enterprise". It is an "enterprise" by the definitions under RICO.

2. That the enterprise engaged in, or had some effect upon, interstate or foreign commerce.

Evidence: The "Law Office" pays for equipment made in other states. It loads up the United States mail with legal documents. David Westfall takes trips out of the state and spends money there.

3. That the defendant was employed by or associated with the enterprise.

Evidence: G. David Westfall claims he is the president of "The Law Office of G. David Westfall, P.C. and also contracts through that "enterprise".

4. That the defendant knowingly and willfully conducted or participated, directly or indirectly, in the conduct of the affairs of the enterprise.

Evidence: To be determined by the jury upon evidence per the instructions below.

5. That the defendant did so knowingly and willfully through a pattern of racketeering activity.

1. That the defendant participated in the operation or management of the enterprise itself in such a way, directly or indirectly, as to have played some part in directing the affairs of the enterprise.

Evidence: G. David Westfall is the "director" who runs the "Law Office". See exhibits above and the surrounding circumstances for more detail.

2. That the defendant in fact engaged in the pattern of racketeering activity as the plaintiff claims

Evidence: All the exhibits referred to above and the surrounding circumstances for more detail.

3. That the defendant's association with or employment by the enterprise facilitated his commission of the racketeering acts

Evidence: He is able to do "racketeering acts" by making them appear as legal documents in the name of the "Law Office". See the exhibits above and the surrounding circumstances for more detail.

4. That the commission of these predicate acts had some direct or indirect effect on the alleged enterprise.

1. Some person or persons willfully and knowingly devised a scheme or artifice to defraud, or a scheme for obtaining money or property by means of false pretenses, representations or promises, and

Evidence: All the exhibits above. They show the scheme to contract through the "Law Office" while at the same time making himself bullet proof to do his acts of "racketeering activity" as shown by the documents above.

2. Some person or persons used the United States Postal Service by mailing, or by causing to be mailed, some matter or thing for the purpose of executing the scheme to defraud.

(acquiring interest in enterprise with income derived from a pattern of racketeering activity)

Defendants: G. David Westfall, Christina Westfall, and Stefani Podvin

1. That there was an "enterprise".

Evidence: The G. David Westfall Family Limited Partnership ("Westfall Farms") is the alleged "enterprise". It is an "enterprise" by definitions under RICO.

2. That the enterprise engaged in, or had some effect "on interstate commerce".

Evidence: "Westfall Farms" buys equipment made in other states.

3. That the defendant derived income, directly or indirectly or indirectly, from a "pattern of racketeering activity". (NOTE: "a pattern", not "her pattern", i.e. David Westfall's and/or Stefani Podvin's pattern)

Evidence: Deposition exhibit to the Videotaped Deposition of Stefani Podvin of July 20, 2000. It shows the transfer of income from the "Law Office" to G. David Westfall personally, than to "G. David Westfall Family LP ("Westfall Farms"). G. David Westfall, Christina Westfall, and Stefani, as partners in "Westfall Farms" each derived income from their "pattern of racketeering activity" involving the Law Office.

4. That some part of that income was used in acquiring an interest in or operating the enterprise (NOTE: interest in Westfall Farms)

1. That the defendant knowingly and willfully committed, or knowingly and willfully aided and abetted in the commission of two or more alleged predicate offenses that constitute the alleged pattern of racketeering activity. (NOTE: i.e. aided and abetted David Westfall and/or Stefani Podvin) (emphasis added)

Evidence: The agreement of retainership, the "billing" statement with handwriting on it, the "written consent of shareholders" documents, the "election to S corporation" 9/20/2000 bankruptcy transcript, copies of checks.

2. That the defendant knowingly and willfully received income derived directly or indirectly, from that alleged pattern of racketeering activity.

COUNT THREE - - FRAUD

Defendants: G. David Westfall

1. a material representation,

Evidence: The "retainer agreement" to entice Birnbaum

2. which was false, and

• G. David Westfall misrepresented himself and the "Law Office" as honest providers of legal services. He had all his honor certificates plastered all over the walls but was concealing that he was running a racketeering ring right there out of the "Law Office".

• Frank C. Fleming's questions at the Videotaped Deposition of Udo Birnbaum of July 3, 2001 show that the Westfalls (David, Christina, and Stefani) were engaged in a racket of hiding behind the "Law Office".
• G. David Westfall's subsequent actions as shown by the documents to the Videotaped Deposition of David Westfall of July 3, 2001 show that he never intended to live up to the terms of the agreement

• G. David Westfall's own testimony in the Videotaped Deposition of David Westfall of July 3, 2001 shows that he never intended to live up to the terms of the agreement.
• G. David Westfall's questions at the Videotaped Deposition of Udo Birnbaum of July 3, 2001 show that he never intended to live up to the terms of the agreement

1. which was intended to be acted upon,

Evidence: G. David Westfall intended Udo Birnbaum to be suckered in by the "retainer agreement" contract.

2. which was relied upon, and

(Same evidence upon the same "elements" as above, different liability)

COUNT ONE - - RICO

For violation of 18 U.S.C. §1962(c)

(participating through a pattern of racketeering activity)

Defendants: G. David Westfall, Stefani Podvin

For violation of 18 U.S.C. §1962(a)

(acquiring interest in enterprise with income derived from a pattern of racketeering activity)

Defendants: G. David Westfall, Christina Westfall, and Stefani Podvin

Defendants: G. David Westfall

Response: There is nothing "foregoing". Failure to identify the "issues" or their author. Failure to even identify the cause of action.

Response: Conclusary wishful thinking.

G. David Westfall's motion fails to designate as to which element there is no evidence, other than to conclusorily allege that the evidence does not show a violation of the RICO. The ultimate issue of the violation of the RICO, however, is the prerogative of the jury and not subject to summary judgment disposition.

G. David Westfall is abusing the summary judgment process. Birnbaum comes to show that G. David Westfall, in the very bringing of this suit, is not only abusing the judicial process to collect upon a fraudulent "bill" but is continuing in his "pattern of racketeering activity".

Attached to this response by reference, and filed separately, are the following"

• Transcript of July 3, 2001 Videotaped Deposition of Udo Birnbaum and exhibits thereto.
• Transcript of July 3, 2001 Videotaped Deposition of David Westfall and exhibits thereto.
• Transcript of July 20, 2001 Videotaped Deposition of Stefani Podvin and exhibits thereto.
• Transcript of July 20, 2001 Videotaped Deposition of Christina Westfall and exhibits thereto.

Attached to this response by reference, and already previously filed, are the following:

• Transcript of September 20, 2000 trial of G. David Westfall in the Dallas Bankruptcy Court.

WHEREFORE, Premises considered, UDO BIRNBAUM prays that G. David Westfall be required to argue his motion in light of this response and the evidence hereby presented and designated, and that his motion for summary judgment be in all things denied.

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

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