September 30, 2003

 

The Hon. Paul Banner

Senior Judge, 196th District Court

Sitting for 294th District Court

c/o 294th District Court

Canton, Texas 75103

 

                                    Re:      Cause No. 00-00619

294th District Court

The Law Offices of G. David Westfall, P.C. v. Udo Birnbaum v. etc

 

Honorable Judge Banner:

 

      This letter is in response to a copy of a letter I received from opposing attorney in this matter. According to Fleming he mailed the same letter[1] to you, with an enclosed eight (8) page proposed Findings for you to make[2].

 

      This matter has been in the Dallas Fifth Appeals Court for nearly a year. Over three (3) months ago, June 10, 2003, Attorney Fleming told the Appeals Court[3] that he was having you make Findings. As you see by his current letter he obviously was not successful in having you do so, or else he never asked you. Your Findings is the subject of my Reply Brief, i.e. that Fleming is simply blowing smoke[4] to the Appeals Court. 

 

      Attorney Fleming is now blaming me for you not having previously made Findings. Correct me if I'm misunderstanding Fleming, but Fleming is saying[5] I did not submit proposed Findings to you as to the reasons you sanctioned me $62,000 !

 

      Frankly, Your Honor, I have no idea how anyone could prepare a document for you to sign that stated what was on your mind.  In your first hearing, two years and two months ago, you did state that you simply "did not like civil RICO claims". And you went on to say, "I have never seen one [civil RICO claim] that had any merit."

 

      And equally as frank, I have no idea how anyone could prepare a document for you to sign that stated all of the reasons you sanctioned me, especially considering the fact that never once did you order me to do or not do anything. I was never disobedient and you never warned me about disobedience or anything.  In fact, it was you who ordered me to take the depositions of the Westfalls. For that and other issues, you unconditionally punished me three months after you had signed final judgment! 

 

      Again, I have no idea how attorney Fleming intends to put all those thoughts into your mind, when he heard you say no more than what I heard you say, that "Mr. Birnbaum may be well-intentioned"  [6].  Nowhere did you ever say anything about "bad faith"[7]. 

 

      Again and again, Fleming is obfuscating the real issue in the Appeals Court, and keeps on trying to paint me as some sort of monster for making a civil RICO claim in state court, when all I was doing is representing myself under the civil RICO law when I was sued.   The real issue in the Appeals Court, however, is upon what you did, as I stated to you in my Notice Of Past Due Findings Of Fact And Conclusions Of Law[8] :

 

"Your Honor, please let the record know what findings of fact, and conclusions of law you made to come up with the two judgments you awarded against me in this case:

  1. How, upon a pleading of an unpaid open account, and absent a finding to you by an Auditor under RCP Rule 172 regarding such claimed unpaid open account, and absent a finding by a jury as to the state of the account, what findings of fact, and what conclusions of law did you make to award a judgment totaling $59,280.66 against me upon such pleading, an issue I had asked to be resolved by jury?

 

  1. How upon my cross and counter claim under 18 U.S.C. § 1961, et seq. ("civil RICO"), against three (3) persons, and having dismissed such three (3) persons on November 13, 2001, what findings of fact and what conclusions of law did you now make, on August 21, 2002, so as to entitle these dismissed parties to a $62,885.00 second judgment against me, in the same case, on an issue I had asked to be resolved by jury?

 

      I am providing you the referenced documents by attaching Appellee's Response To Appellant's Motion To Have Trial Judge Produce Findings And Conclusions, another document sent to me by Fleming.

      It is noteworthy that the Appeals Court long ago already denied my Motion [to have you make findings].  Also when I contacted them they informed me that no such Response [by Fleming] had been filed in the Appeals Court, and also that you, at this point, do not have jurisdiction over this case.

 

      Then on careful reading of Fleming's Response, I note that he [Fleming] is now asking them to allow[9] you [Judge Banner] to make Findings. The problem I am having is that Fleming is already flashing his [Fleming's] "findings" in the Appeals Court, without your signature, as if he [Fleming] is asking them [Appeals Court] permission for you to affix your signature to it.   Sort of like you not filing Findings was like a clerical oversight, like you just did not "get around to" filing this document.

 

      But the issue in the Appeals Court is how you came up with the two judgments you made, NOT my conduct.  You already made a finding upon that:

 

"[A]lthough Mr. Birnbaum may be well-intentioned and may believe that he had some kind of real claim as far as RICO there was nothing presented to the court in any of the proceedings since I've been involved that suggest he had any basis in law or in fact to support his suits against the individuals, and I think -- can find that such sanctions as I've determined are appropriate."

            Close of hearing on Motion for Sanctions, July 30, 2002. (attached) 

 

 

Sincerely,

 

 

UDO BIRNBAUM

540 VZ CR 2916

Eustace, Texas 75124

(903) 479-3929  phone 

(903) 479-3929  fax

 

 

 


[1][Fleming] Letter Sept. 24, 2003. (attached) .

 

[2] [Fleming Proposed] Findings Of Fact And Conclusions Of Law (attached)

 

[3]  [Fleming Appeals Court Response Brief]: "While a jury trial verdict did not require finding of facts and conclusions of law to be filed in order to support the verdict on appeal, the Court's ruling on the sanctions motions should be accompanied by findings of facts and conclusions of law. This point has been recognized by the Appellees and late findings of fact and conclusions of law are now being requested from the trial judge. The trial court can file findings of fact after the deadline to file them has expired. (Jefferson Cty. Drainage Sist. V. Lower Neches Valley Auty. Etc)" (emphasis added)  Fleming Appeals Reply Brief, June 10, 2003, Footnote 4, page 25

 

[4]  "NO SUCH REQUEST BY APPELLEES HAS BEEN FILED OR SERVED".  Appellant's Reply Brief, on my web site OpenJustice.US , as are most of the documents in the case.

 

[5]  [Fleming Sept 24, 2003 Letter}: "I [attorney Fleming] was also under the impression that the requesting party was supposed to submit the first draft for your consideration which Mr. Birnbaum never submitted".   Sept. 24, 2003 Letter, first paragraph.

 

[6]   "[A]lthough Mr. Birnbaum may be well-intentioned and may believe that he had some kind of real claim as far as RICO there was nothing presented to the court in any of the proceedings since I've been involved that suggest he had any basis in law or in fact to support his suits against the individuals, and I think -- can find that such sanctions as I've determined are appropriate."    Close of hearing on Motion for Sanctions, July 30, 2002. (attached)

[7]  Fleming uses the term xxx times in his proposed finding.  You never used the word even once in the entire proceedings.

[8]  Appendix 93, Record 492

[9]       Now in his belated Response to the Appeals Court, Mr. Fleming is asking that "the Court allow Judge Banner to file his Findings of Fact and Conclusions of Law in this matter".  Appellees' Response, page 3, last paragraph.