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 )(

Stefani Podvin's motion is procedurally insufficient for failing designate as to which element there is no "even one single bit of summary judgment adequate evidence" (paragraph IV, subparagraph 4), other than to conclusorily allege that the evidence does not show a violation of "RICCO".

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 Stefani Podvin to argue her 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 Stefani Podvin, and in response to Stefani Podvin'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. Stefani Podvin is seeking summary judgment "under T.R.C.P. 166a(c) and/or (i)". Rule 166a(i) ("No-Evidence Motion") states:

2. Stefani Podvin's motion under "no-evidence" fails to state the elements as to which there is no evidence. Stefani Podvin's motion under general summary judgment of course requires the movant to actually disprove at least one element of the cause of action:

3. Movant has failed to even designate the element she is trying to disprove. 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 her. 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. STEFANI PODVIN, in her 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.

3. STEFANI PODVIN, in her 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 she had indeed violated RICO.

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. And all of it is material to Birnbaum's statutory claim against the "Law Office".

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. 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 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. (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.

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.

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

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

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 Westfall's 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.

3. That the defendant [STEFANI PODVIN] was employed by or associated with the enterprise.

Evidence: She is the owner of the "Law Office". She works around the law office. She fills out billing time cards.

4. That the defendant [STEFANI PODVIN] 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 [STEFANI PODVIN] did so knowingly and willfully through a pattern of racketeering activity.

1. That the defendant [STEFANI PODVIN] 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: She is the sole owner of the "Law Office", and as such has total control over the Law Office through her election of officers.

2. That the defendant [STEFANI PODVIN] 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 [PODVIN'S] association with or employment by the enterprise facilitated his commission of the racketeering acts

Evidence: She was able to do her acts of "racketeering activity" of appointing G. David Westfall by reason of her being the owner of the Law Office. She was able to facilitate G. David Westfall's acts of "racketeering activity" by reason of appointing him ten (10) years in a row. 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 of G. David Westfall and Stefani Podvin to contract through the "Law Office", while at the same time making G. David Westfall 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 [STEFANI PODVIN] 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 the "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 [STEFANI PODVIN] 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 documents showing her appointment of G. David Westfall as "director" of her Law Office ten (10) years in a row. Her working around the Law Office in the manner she does, claiming she does not receive compensation for it, yet filling out "billing time cards".

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

COUNT ONE - - RICO

(participating through a pattern of racketeering activity)

Defendants: G. David Westfall, Stefani Podvin

COUNT TWO - - RICO

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

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

IX.

1. Par II: "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, has the burden of proof, there is no genuine issue as to any material fact, and there is no competent summary judgment evidence to support at least one or more of the essential elements of each of the causes of action pled by Birnbaum against the Movant." (emphasis added)

Response: Failure to designate the missing essential elements and each of the causes.

2. Par IV subpar 1: "An adequate time for discovery has passed. At the time of the hearing on this motion, the suit will have been on file for a year."

Response: Movant held up deposition for six (6) months with motion to quash. Then Movant failed to produce documents at deposition. Currently pending before the Court is Udo Birnbaum's Motion Under Rule 193.4 for Hearing and Ruling on Objections and Assertions of Privilege.

3. Par IV subpar 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." (emphasis added)

Response: Failure to designate the essential elements or even the claims.

4. Par IV subpar 1: "Further, an adequate amount of time to develop the facts is admitted by Birnbaum in a judicial admission contained in paragraph 5 of Udo Birnbaum's Amended Third Party Plaintiff Civil RICCO (sic) Claim, filed in this Court on July 11, 2001."

Response: Not so. Paragraph 5 reads: "Having diligently investigated both the facts and the law, Birnbaum has found that the various matters he is complaining of are not isolated garden variety wrongs, but that the evidence shows he is the victim of conduct proscribed by 18 U.S.C. § 1931 et seq. ("RICO")

5. Par IV subpar 3: "Birnbaum alleges that Stephanie (sic) Podvin is a participant in a "pattern of racketeering activity" by acts of "racketeering activity" (predicate acts) of obstruction in the administration of justice on the part of G. David Westfall in the Dallas Federal Court."(emphasis as in original)

Response: Movant fails to designate where Birnbaum made such allegation, and Birnbaum does not phrase his complaint in this manner.

6. Par IV subpar 3: "Birnbaum's RICCO (sic) complaint further alleges that Stephanie (sic) Podvin was the recipient of a flow of income from a pattern of racketeering activity. That is it. Birnbaum makes no other allegations against Podvin other than Podvin's participation in this "RICCO" type behavior. Birnbaum's pleadings contain no other allegation against Podvin on any lesser type of cause of action. This is the "sole indictment" brought by Birnbaum against Podvin." (emphasis added)

Response: Not so. In his paragraph 13 Birnbaum designates the series of documents between David Westfall and his daughter Stefani Podvin designating him as director of the Law Office each year as predicate acts. Also that she violated 18 U.S.C. § 1962(a) by knowingly and willfully receiving such income.

7. Par IV subpar 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 at Podvin was engaged in any sort of illegal, corrupt, or clandestine activity whatsoever, let alone the types of activity alleged in Birnbaum's pleadings."(emphasis added)

Response: Not So. Birnbaum has provided the transcript of the September 20, 2000 bankruptcy trial of G. David Westfall. It, together with the documents entered in that trial, the affidavits, witnesses named, and discovery including depositions in this cause, shows that STEFANI PODVIN was deeply involved in illegal, corrupt, and clandestine activity to such an extent as to actually violate RICO.

8. Par IV subpar 4: "What the summary judgment evidence does prove is that Stephanie (sic) Podvin assisted the Law Office of G. David Westfall, P.C. in the law office's efforts to provide Birnbaum with legal services which had been requested by Birnbaum. That is it! Stephanie (sic), as an independent contractor to a law firm, assisted in providing legal services for Birnbaum, and having done so, is embroiled in an alleged RICCO (sic) violation arising out of a fee dispute for the legal services provided." (emphasis added)

Response: Not So. Stefani Podvin is not an independent contractor. She testified at depositions and documents she that she owns the Law Office. Furthermore she testifies, that she does not get paid for her work, and that her work is not for the Law Office but for G. David Westfall. Furthermore this whole cause is not about a mere "fee dispute".

9. Par IV subpar 5: "There is no summary judgment evidence to support a genuine fact issue for several of the elements of Birnbaum's cause of action. Birnbaum's own pleading outlines several element in paragraph 65, on pages 10 and 11 of Birnbaum's Amended Third Party Plaintiff Civil RICCO (sic) Claim." (emphasis added)

Response: These are not the elements of Birnbaum's cause of action! These are the pleading "elements", i.e. "Allegations conforming to the elements contained in U.S. Fifth Circuit Civil RICO pattern jury instructions" to make findings upon the "issues of material fact"! Birnbaum's paragraph 75, on page 12 avoids the "element" problem by simply calling it "Allegations conforming to U.S. Fifth Circuit Civil RICO pattern RICO instructions." Civil RICO of course has only three essential elements:

10. Par IV subpar 5a: "There is no evidence that Podvin knowingly and willfully conducted or participated, directly or indirectly, in the conduct of the affairs of an enterprise through a pattern of racketeering activity."

Response: Not so. Podvin appointed G. David Westfall as sole director ten (10) years in a row. Whether each of these "appointment" documents constitute an act of "racketeering activity" and constitute a "pattern of racketeering activity" is of course a "material issue of fact" for the jury.

11. Par IV subpar 5b: "There is no evidence that Podvin participated in the operation or management of the enterprise."

Response: Not so. Podvin, as sole owner, appointed G. David Westfall as sole director ten (10) years in a row.

12. Par IV subpar 5c: "There is no evidence that Podvin engaged in the pattern of racketeering activity as claimed by Birnbaum".

Response: Not so. There is plenty of evidence. All of it. Podvin appointed G. David Westfall as sole director ten (10) years in a row. Whether this is a "pattern of racketeering activity" is up to the jury.

13. Par IV subpar 5d: "There is no evidence that Podvin's association with the enterprise facilitated the commission of racketeering acts."

Response: Not true nonsense. If Stefani Podvin were not associated with the Law Office as the sole owner, she would not be able to get by with the acts of racketeering activity of appointing the likes of G. David Westfall as the sole director for ten (10) years in a row!

14. Par IV subpar 6: "Further, there is no evidence that Podvin ever received any income from Birnbaum or the alleged racketeering enterprise."

Response: Not so. In Stefani Podvin's responses and Objections Answers to Defendant's First Set of Interrogatories : Interrogatory No. 7: "Identify all records as reflect charges for work done by you, Stefani Podvin, in behalf of my Civil Rico suit, and specifically identify the source documents." Answer: "Billing time cards created by Stefani Podvin and provided to David Westfall."

Further evidence is in Videotaped Deposition of Stefani Podvin of July 20, 2001, 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".

(already referred to elsewhere in this response)

15. Par IV subpar 7: "Further, there is no evidence that Birnbaum has suffered any damages which is an essential element of Birnbaum's claims against Podvin."

Response: Not true. Birnbaum claims he was damaged by the $20,000 paid other injuries. Whether this $20,000 or the other $18,121.10 for which he is being sued is proper "legal fees" or "damages" is of course a "material issue of fact" for the jury.

16. Par IV subpar 9: "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, Stephanie (sic) Podvin."

Response: Conclusary. At this summary judgment stage, and if looked at in light most favorable to Birnbaum, it shows a violation of RICO.

Stefani Podvin'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.

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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