No. 00-00619
THE LAW OFFICES OF )( IN THE DISTRICT COURT
G. DAVID WESTFALL, P.C. )(
)( 294TH JUDICIAL DISTRICT
Vs. )(
)( VAN ZANDT COUNTY, TEXAS
UDO BIRNBAUM )(
)(
Vs. )(
)(
G. DAVID WESTFALL )(
)(
CHRISTINA WESTFALL )(
)(
STEFANI PODVIN )(
)(
John Doe )(
Mary Doe )(
UDO BIRNBAUM'S RESPONSE TO COUNTER DEFENDANT
LAW OFFICE OF G. DAVID WESTFALL, P.C. MOTION FOR SUMMARY JUDGMENT
Summary of this response:
Plaintiff Law Office's motion is procedurally insufficient for failing designate as to which element there is no evidence, other than to conclusorily allege that the evidence does not show a violation. Plaintiff does not even mention Birnbaum's Texas Deceptive Trade Practices Act (DTPA) counter-cause of action.
The ultimate issue of the violation of the DTPA is, however, the prerogative of the jury to be made upon the totality of the evidence and is not subject to summary judgment disposition. Plaintiff is making a mockery of the whole summary judgment process. Birnbaum comes to show that Plaintiff, in the very bringing of this suit, is abusing the judicial process to collect upon a fraudulent "bill".
Birnbaum's Summary of Evidence to DTPA "elements" designates his summary judgment evidence. Other evidence is in the witnesses named and their affidavits as already provided and as provided in an Appendix.
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, UDO BIRNBAUM, ("Birnbaum"), Defendant and Counter-claimant of The Law Offices of G. David Westfall, P.C. ("Law Office"), and in response to the Law Office of G. David Westfall, P.C.'s Motion for Summary Judgment would show the Court as follows:
I.
PROCEDURAL HISTORY
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.
II.
PLAINTIFF'S NO-EVIDENCE MOTION
1. Plaintiff, the Law Office, is seeking summary judgment under Rule 166a(i) ("No-Evidence Motion"). Rule 166(a)(i) states:
After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. (emphasis added)
2. Plaintiff's motion fails to state the elements as to which there is no evidence. Plaintiff's motion is so computer-canned that it utterly fails to even name or refer to Birnbaum's counter-cause of action under the Texas Deceptive Trade Practices Act (DTPA), much less even refer to the essential elements to state as to which element or elements there is no evidence. Plaintiff Law Office 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. Plaintiff is abusing the summary judgment process. Birnbaum comes to show that Plaintiff, 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.
III.
THE DTPA ISSUES OF FACT "ELEMENTS"
1. The DTPA is a 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:
As to materiality, substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant will not be counted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)
Again in Adickes v. S.H. Kress & Co., 398 U.S. 177 (1970), the Court emphasized that the availability of summary judgment turned on whether a proper jury question was presented. There, one of the issues was whether there was a conspiracy between private persons and law enforcement officers. The District Court granted summary judgment for the defendants, stating that there was no evidence from which reasonably minded jurors might draw an inference of conspiracy. We reversed, pointing out that the moving parties' submissions had 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 there had been a meeting of the minds. Id., at 158-159. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)
"The attorneys also challenge the jury's finding of liability for actual and additional damages under the Texas Deceptive Trade Practices Act. The DTPA "protect[s] consumers against false, misleading, and deceptive business practices, unconscionable actions, [and failures to disclose] . . . in the course of any trade." Tex. Bus. & Com. Code §§ 17.44, 17.46(a). To prove a violation of the DTPA, plaintiffs must prove that: (1) they are a consumer, (2) victimized by false, misleading, or deceptive acts, failures to disclose, or an unconscionable course of action, (3) which was a "producing cause" of damages. See Doe v. Boys Clubs of Greater Dallas, 907 S.W.2d 472, 478 (Tex. 1995). Violations produce liability for "actual damages", and "knowing" violations allow for "additional damages" which could raise the total damage award to as much as three times the amount of actual damages. See Tex. Bus. & Com. Code § 17.50(b)(1).
The attorneys first assert that Terry's DTPA claim is merely a claim that they provided bad advice and, therefore, that the claim is not cognizable under the DTPA. While they are correct that mere claims of attorney negligence may not be cognizable under the DTPA, see Latham v. Castillo, 972 S.W. 2d 66, 69 (Tex. 1998); Greathouse v. McConnell, 982 S.W.2d 165, 172-73 (Tex. App.Houston [1st Dist.] 1998, pet. denied),(38) Terry has alleged that the attorneys affirmatively misrepresented facts and otherwise deceived them. If Terry produced evidence of specific deceptive acts, her claim was cognizable under the DTPA as well as under the common law of legal malpractice. As the Texas Supreme Court has held,
Recasting the [plaintiffs'] DTPA claim as merely a legal malpractice claim would subvert the Legislature's clear purpose in enacting the DTPA to deter deceptive business practices. If the [plaintiffs] had only alleged that [ their attorney] had negligently failed to timely file their claim, their claim would properly be one for legal malpractice. However, the [ plaintiffs] alleged and presented some evidence that [their attorney] affirmatively misrepresented to them that he had filed and was actively prosecuting their claim. It is the difference between negligent conduct and deceptive conduct. To recast this claim as one for legal malpractice is to ignore this distinction. The Legislature enacted the DTPA to curtail this type of deceptive conduct. Latham, 972 S.W.2d at 69." Parker v. Hunter, 5th Cir No. 99-50054, Aug. 4, 2000 (emphasis added).
2. Plaintiff in its motion have 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. Plaintiff, in its 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 DTPA. The ultimate issue of the violation of the DTPA, however, is the prerogative of the jury and not subject to summary judgment disposition.
IV.
BIRNBAUM'S DESIGNATED EVIDENCE
1. Udo Birnbaum's Amended Answer, Counterclaim, and Cross-complaint, clearly indicates the evidentiary underpinnings of his claim of false, misleading, deceptive, and unconscionable acts by the LAW OFFICE and G. DAVID WESTFALL, which were the producing cause of Birnbaum's damages.
2. The Law Office of G. David Westfall, P.C. and G. David Westfall engaged in the unconscionable act of concealing and failing to disclose that they were running a racketeering enterprise right there out of the Law Office. The following is directly out of the above pleading, starting on page 4:
The "pattern of racketeering activity" and the "conducting of the affairs of the enterprise" is clearly visible in the testimony of G. David Westfall and accountant Richard Alderson for the whole Law Office "Westfall Bunch" (David Westfall, Christina Westfall, Stefani Podvin), as shown in the 237 page transcript of the September 20, 2001 bankruptcy proceedings against G. David Westfall (No. 300-34287-HCA in the Dallas Bankruptcy Court, already filed as an Exhibit 8 in this Cause).
The "pattern of racketeering activity" is also evident from the following acts of "racketeering activity":
The "pattern of racketeering activity" is to be found in all the exhibits previously provided in this cause, the persons named, their affidavits, together with whatever they may have.
The "pattern of racketeering activity" is also clearly visible in the testimony of G. David Westfall as taken by Udo Birnbaum on July 3, 2001. It shows G. David Westfall had no intent of ever abiding by the terms of the retainer contract he signed with Udo Birnbaum. (end of direct quote)
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:
Q (By Mr. Fleming) Can you point out to me any documents - - any and all documents under your custody or control that refer to or evidence any fraud or misrepresentation that you are alleging occurred in your dealings with Mr. Westfall, the P.C., Ms. Podvin or Christina Westfall?
A. Yes. As to you questions as to the documents that I designate constituting fraud, racketeering and deceptive trade practices, I hereby designate whatever documents Mr. Westfall filed in his recent bankruptcy proceedings claiming that he had more than twelve creditors against him, the series of documents between him and his daughter designating him as the director of the law office.
I designate Mr. Westfall's tax return using that fraudulent representation. I designate the retainer agreement which you put in here previously in cause 399-CV-696 [in] the Dallas federal court from which Mr. Westfall was my lawyer. I designate that as a fraudulent - - a document stating my cause. I designate the retainer agreement in the Jerry Michael Collins case. 3:99-CV-641. I designate the document that Mr. Westfall calls his, quote, bill, which I allege to be a fraudulent pleading for him to try to get more money out of me. That is this suit.
And I specifically designate these documents as constituting racketeering activity, and I designate them as - - also as constituting a specific pattern of racketeering activity by Mr. Westfall and others and designate all the evidence I have provided, all the persons I have named in the affidavits together with the bills they have as showing this pattern of racketeering activity.
The fraud is that Mr. Westfall did not tell me he was running a racketeering enterprise. It has - - it goes through all the motions. Looks like a perfectly harmless document. (page 82 line 12, end of quote)
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:
Q (By Mr. Fleming) I'm asking you right now for the fourth time, Mr. Birnbaum. This is your pleading. You came to the courthouse and filed it.
And I'm asking you the totality of the factual basis for this pleading.
A The totality of the factual basis for this pleading is those items that I specifically designated. One was the retainer agreement. Two was the fraudulent - - or whatever it is, bill. Three is this suit. Four, all the evidence that comes out of the bankruptcy things, okay. The swapping of legal fees for all kinds of stuff and where looked at in totality of this - - this shows, and the transfer of income, the one big slush fund out of which everything comes in, the flow of money from one thing to another.
And all that evidence shows the RICO violation between all of them. And I close my answer on that, and that's the end of my answer on that issue. If you can't understand, I don't know what to do. (page 133 line 6, end of quote)
V.
EVIDENCE IN PLAINTIFF'S OWN DOCUMENTS
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 the Law Office did, he was (1) a consumer, (2) victimized by false, misleading, or deceptive acts, failures to disclose, or an unconscionable course of action, (3) which was a "producing cause" of damages, and it shows a violation of the Texas Deceptive Trade Practices Act (DTPA). Plaintiff of course claims that all this stuff does not show such violation.
3. Even looking at only Plaintiff's own documents and exhibits, as presented for the Videotaped Deposition of Udo Birnbaum of July 3, 2001, when looked at in light most favorable to Birnbaum, such documents and exhibits show false, misleading, or deceptive acts, failures to disclose, or an unconscionable course of action:
a. Plaintiff's Deposition Exhibit 1: Agreement of retainership:
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. Such concealment is unconscionable. The scheme is clearly shown in the Videotaped Deposition of David Westfall, taken July 3, 2001, starting page 18 line 19 through page 24 line 8. It makes very interesting reading. (Attached)
The evidence also shows the Law Office 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. (July 3, 2001 Videotaped Deposition of David Westfall, 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. Plaintiff'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.
c. Plaintiff's Deposition Exhibit 3: Motion to withdraw as attorney:
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.
d. Plaintiff's Deposition Exhibit 4: Original order sent for approval:
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 Birnbaum's 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. Plaintiff's Deposition Exhibit 5: 9/15/00 Affidavit of Udo Birnbaum:
David Westfall's conduct is unconscionable. Birnbaum gives evidence upon the following matters:
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 Westfalls 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.
VI.
EVIDENCE IN OTHER DOCUMENTS
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:
a. Deposition Exhibits 2 through 9: "Written consent of shareholders":
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.
b. Deposition Exhibit 10: Election to S corporation:
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 G. David Westfall "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.
c. Deposition Exhibit 11: Department of Treasury Document:
G. David Westfall and Christina Westfall succeeded in fooling the Internal Revenue Service with the above document.
d. Deposition Exhibit 13: Bankruptcy Transcript:
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".
e. Deposition Exhibit 14: Bankruptcy Transcript pages 29 and 30:
Showing how, through their long time accountant, they have been operating their "enterprise".
f. Deposition Exhibit 15: Bankruptcy Transcript pages 31:
Evidence the profits from "Stefani Podvin's" Law Office wind up at "Westfall Farms".
g. Deposition Exhibit 18: Bankruptcy Transcript pages 44 and 45:
Everyone is funded out of one giant slush fund account made possible by the RICO scheme.
h. Deposition Exhibit 19: 9/22/2000 Bankruptcy Transcript pages:
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."
i. Deposition Exhibit 21: Copies of checks:
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.
VII.
SUMMARY OF EVIDENCE TO DTPA "ELEMENTS"
Evidence: Law Office's letterhead, Law Office's suit for legal fees, the "bill", the retainer contract, etc. Can also be found by jury.
Evidence:
Evidence: The "bill" showing the $20,000 of which Birnbaum was stripped. G. David Westfall caused it as an officer of The Law Office.
VIII.
RE: LAW OFFICE REPRESENTATIONS TO THIS COURT
1. Par I: "The foregoing shows as a matter of law that with regard to the issues raised there is no genuine issue as to any material fact, and that the Law Office of G. David Westfall, P.C. and G. David Westfall are entitled to judgment as a matter of law."
Response: There is nothing "foregoing". Failure to identify the "issues" or their author. Failure to even identify the cause of action.
2. Par II: "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."
Response: Conclusary wishful thinking.
IX.
SUMMARY
1. Plaintiff, in its motion, failed 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 DTPA. The ultimate issue of the violation of the DTPA, however, is the prerogative of the jury and not subject to summary judgment disposition.
2. Plaintiff is abusing the summary judgment process. Birnbaum of comes to show that Plaintiff, in the very bringing of this suit, is abusing the judicial process to collect upon a fraudulent "bill".
3. If Plaintiff had not for its dark reasons solicited Birnbaum and concealed their sorry pattern, Birnbaum would not have contracted with Plaintiff in the first place. If Plaintiff had not concealed from Birnbaum the degree to which G. David Westfall is able to worm his way into Plaintiff's accounting and billing system, if any, Birnbaum would have fired G. David Westfall within a month of having retained him. But for Plaintiff's false, misleading, or deceptive acts, failures to disclose, or an unconscionable course of action, Birnbaum would not have been damaged as shown in his pleadings.
Attached to this response by reference, and filed separately, are the following"
Attached to this response by reference, and already previously filed, are the following:
PRAYER
WHEREFORE, Premises considered, UDO BIRNBAUM prays that Plaintiff's motion for summary judgment be in all things denied.
Respectfully submitted,
___________________
Udo Birnbaum, Pro Se
540 VZ 2916
Eustace, Texas 75124
(903) 479-3929
CERTIFICATE OF SERVICE
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.
___________________
UDO BIRNBAUM