No. 00-619
The
Law Offices of G. David Westfall, P.C )( In the 294th District
Court.
v.
Udo Birnbaum )( Of Van Zandt County
v.
The Three Westfalls )(
Udo Birnbaum's RCP Rule 298
Request for Clarification and Amendment regarding Judge Banner's Findings of Fact and Conclusions of Law
These Findings of "bad
faith", just made, have no support in the trial court record,
and are in direct conflict with a prior
determination of "well-intentioned"
Note: I have repeated each and every sentence of Judge
Banner's Findings of Fact and Conclusions of Law. (There was no emphasis
in the original Findings and Conclusions)
For details as to my responses below, please
refer to my briefs
Introduction
and summation
In his Finding, again and again
Judge Banner now finds violations of "§9.000 et seq. Civ. Prac. Rem. Code, §10.000 et seq. Civ. Prac. Rem. Code,
Rule 13, T.R.C.P., and/or the common law of
As shown below, NONE of this law applies to the facts in this case. Also
note that §9.000 et seq. Civ. Prac.
Rem. Code is the only statutory provision that allows attorney fees for
the damage in an entire
proceeding (but only after
a finding of "frivolous", and after
a 90-day "safe-harbor"
period!) Also that punishment, for
a completed act, unconditionally imposed, is a criminal
sanction, requiring full due CRIMINAL process, including a finding of
"beyond a reasonable doubt".
Regarding §
9.000 et seq. Civ. Prac. Rem. Code:
· Section §9.000 et seq. of course only applies to "injury, property damage, or death", under any cause of action, and to TORT causes of action (my pleading was civil RICO, statutory law).
· Section §9.000 also specifically excludes Texas DTPA claims (a mini-RICO). Also it has a 90-day "safe-harbor" provision, and applies only after a determination of "frivolous pleadings", which Judge Banner never made, except now in this Finding, after everything is finished! I had of course asked for appointment of an auditor, to show that the "collection" suit against me was frivolous.
· Also it specifically states that section $9.000 does not apply if Rule 13 is involved.
· (This section is also the only one that allows attorney fees for the entire proceeding, after a "frivolous lawsuit" determination, which there was not, and opportunity to withdraw an supposedly offending pleading).
·
So much
for monetary sanctions under §9.000
et seq.
Regarding §10.000
et seq. Civ. Prac. Rem. Code:
· Section §10.000 et seq. only applies to attorney fees in obtaining a §10.000 sanctions
· Sanctions under §10.000 require the naming of the conduct which violated §10.000, which the Sanctions Order did not. (It gave NO REASON WHATSOEVER)
·
So much
for monetary sanctions under §10.000
et seq.
Regarding T.R.C.P. Rule 13:
· This Rule states that "No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanctions order".
· No "particulars" were stated in the Sanction Order of $62,000 (nor in this Finding)
· The "appropriate sanctions available" are those under Rule 215-2b, which only include the court issuing Orders (of which there were none), and payment for damages caused for violation of an ORDER (of which there was none)
· So much for monetary sanctions under T.R.C.P. Rule 13.
Regarding "and/or the common law":
·
The "common law" does NOT
provide for the imposition of sanctions.
* *
* * *
*
Udo Birnbaum's RCP Rule 298
Request for Clarification and Amendment regarding Judge Banner's Findings
of Fact and Conclusions of Law
These Findings of "bad
faith", just made, have no support in the trial court record,
and are in direct conflict with a prior
determination of "well-intentioned"
"The above-captioned
cause came on for trial to a jury on
·
Yes, Judge Banner had a jury sitting there, but he did not use it. Wrong jury questions, missing jury questions,
missing instructions, etc. Also my civil
RICO claim and evidence was not allowed to go to the jury. ("The [three] Westfalls" were
dismissed by summary judgment seven (7) months earlier)
"In addition to the
matters tried to the jury the Court took under consideration the Motion filed
by David Westfall, the Plaintiff (the "Plaintiff"), and Christina
Westfall, and Stefani Podvin (Christina Westfall and Stefani Podvin collectively referred herein as
the "Counter-Defendants") concerning the filing of a frivolous
lawsuit and Rule 13 Sanctions."
·
David Westfall was NOT the Plaintiff.
"Plaintiff" was "The Law Offices of G. David Westfall,
P.C.". David Westfall was one
of "The Westfalls", as he was in Westfall
v. King Ranch, Texas Fifth Circuit No. 05-92-00262-CV (1993) "King Ranch
alleges that for almost eighteen months the Westfalls engaged in a campaign
of delay, deceit, and disobedience to prevent King Ranch from getting the
requested discovery". Same in this cause.
·
In responding to the use of the word
"Counter-Defendants", I will use "The [three]
Westfalls" (G. David Westfall, wife Christina, and his daughter Stefani
Podvin). Again, please note that David Westfall was NOT the Plaintiff, and that
the "The [three] Westfalls" were cross and third-party
defendants under my civil RICO claim against them.
The combined issues of the counter-claim
on frivolous lawsuit and the Rule 13 Motion were tried together to the
Court on July 30, 2002.
·
No. The [three] Westfalls made NO counterclaim in any of their
pleading. Their pleadings were a GENERAL
DENIAL. Besides that, they had already been removed from the case by SUMMARY
JUDGMENT over ten (10) months earlier (
At the proceedings on
·
G. David Westfall was deceased at this time, as was the
"Law Office". Westfall had
claimed he was the ONLY shareholder of "The Law Office", was its ONLY
officer ("director"), and the ONLY attorney associated with "The
Law Office". THE LAW OFFICE was
DEAD. Westfall died May 2002,
shortly after the April 2002 trial.
After considering the
pleadings, the evidence presented at the trial to the jury as well as the
evidence presented at the summary judgment hearings and the sanctions hearing
before the Court, in response to a request from the
Defendant/Counter-Plaintiff, the Court makes its findings of fact and
conclusions of law as follows:
·
These findings are not in response to my Motion. My Motion had
been long ago denied. Also my
request was upon how Judge Banner came up with the TWO JUDGMENTS against
me, not a finding as to my conduct. He
had already made such at the close of the Sanctions Hearing :
"[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."
(Note: My civil RICO suit was upon "the individuals", i.e.
"The [three] Westfalls", and "The Westfalls" only.
No civil RICO claim was made against the "Law Office" plaintiff.
Findings of Fact
1. The
Defendant/Counter-Plaintiff's claims concerning RICO civil conspiracy claims
against
Christina Westfall and Stefani Podvin
(the wife and daughter of
the Defendant/Counter-Plaintifff's former attorney, David Westfall) were
groundless and totally unsupported by any credible evidence whatsoever.
·
"Credibility " determinations are of course the prerogative
of the JURY, whether as to witnesses, documents, or whatsoever.
·
Also I did not make "RICO
civil conspiracy claims". My
claim was for "injury to property or business by reason of a
violation" [of RICO], i.e. stemming or flowing from a
"pattern of racketeering activity", i.e. "produced by",
etc. (no proximate cause required). See my Brief
·
Also my civil RICO claim was against all three "The
Westfalls". Cross-claims
upon what they were now trying to get from me through their Law Office
"enterprise" (fraudulent "collection suit"), plus third-party
claims for what they had already done to me previously ($20,000 retainer
paid for a no-worth suit against
·
Also Christina Westfall and Stefani Podvin were far more than only "wife and daughter". Christina
(wife) was long-time book-keeper at the Law Office, and Stefani Podvin
(daughter) the only share-holder "owner" of the Law Office, at
least on paper. (So G. David Westfall
could be "bullet-proof" from judgment, and engage in his unlawful
"pattern of racketeering activity". (Evidence in my huge summary
judgment Appendix)
2. The
Defendant/Counter-Plaintiff's claims concerning RICO civil conspiracy claims
against Christina Westfall and Stefani Podvin were without merit and brought
for the purpose of harassment, delay, and to seek advantage in a collateral
matter by attempting to cause the original Plaintiff, David Westfall to
drop his claim for un-reimbursed legal services provided to the
Defendant.
·
The "Plaintiff" was not David Westfall, but "The Law
Office"
·
"un-reimbursed legal
services"? Plaintiff (The Law Office P.C.) were
claiming an unpaid OPEN ACCOUNT! There
was no OPEN ACCOUNT, and the JURY certainly made no finding of an OPEN ACCOUNT,
and how much money was OWED. See my
Appeal Brief.
3. The
Defendant/Counter-Plaintiff was afforded numerous opportunities to marshal his
evidence and present any facts to support his allegations concerning RICO
civil conspiracy claims against the wife and daughter of the
Defendant/Counter-Plaintiff's attorney, David Westfall.
·
NO. Judge Banner did not allow
me to show my VOLUMES of Evidence to the Jury,
particularly the HISTORY OF FRAUD by David Westfall as shown by document in the
INVOLUNTARY BANKRUPTCY proceedings against him, the findings of BAD FAITH by
Federal Judge Jorge Solis, and numerous sanctions for FRAUD and suspensions of
his law license.
The Defendant/Counter-Plaintiff wholly failed
to provide any such credible evidence at either the summary judgment
phase of the lawsuit or at the hearing on the motion for sanctions.
·
I had asked that my evidence to
my civil RICO claim be weighed by a JURY, not by Judge Banner.
4. The
attempt to provide testimony by the Defendant/Counter-Plaintiff concerning RICO
civil conspiracy claims were his own opinions and totally uncorroborated
by any other evidence.
·
What about the findings by Federal Judge Jorge Solis, Federal
Bankruptcy Judge Harold C. Abramson, other findings of fraud, the AFFIDAVITS I
presented? All this, and my civil RICO
claim, Judge Banner would NOT ALLOW ME TO SHOW TO THE JURY!
·
"The attempt … … were his own opinions"???
5. The
Defendant/Counter-Plaintiff never established that he had suffered any
economic damages as a result of an
alleged conspiracy.
·
"economic damages" is of course a matter to be determined by
the JURY. I had claimed the $20,000 non-refundable retainer I had been tricked
into paying, and other moneys.
·
Also I was not alleging damages "as
a result of a conspiracy", but as a result of G. David
Westfall's RICO violative conduct, i. e. "by reason of the RICO
violation", i.e. flowing from the alleged "pattern of racketeering
activity".
The
Defendant/Counter-Plaintiff was sued by his former counsel to collect
money for legal work which had been performed for the
Defendant/Counter-Plaintiff for which the Defendant/Counter-Plaintiff had not
paid his attorney in full.
·
"not paid his
attorney"? I was sued by a "Law Office".
·
I was not sued for "money I
had not paid to my attorney", but for money supposedly OWED on
an OPEN ACCOUNT at a
"Law Office". All FRAUD! ("open account" requires sale and delivery). What had existed was a $20,000 pre-paid, non-refundable
attorney retainer agreement "to ensure our availability", and the
attorney had "reserved the right to terminate for non-payment". That
was his only remedy. No open account, no contract either.
The jury found that the work
had been performed by the attorney, the amount charged to the client was
reasonable, and that there was an amount owed by the Defendant/Counter-Plaintiff to the
Plaintiff.
·
NO. The jury was NOT asked how
much money was OWED. They certainly
received NO INSTRUCTIONS as to what constitutes an OPEN ACCOUNT. (sale and delivery, systematic records, etc. See my Appeal Brief.
The Defendant/Counter-Plaintiff's
claims concerning RICO civil conspiracy claims had no bearing on
whether or not the Defendant/Counter-Plaintiff received the legal services and
owed the balance of the outstanding attorney's fees.
·
My civil RICO claim HAD a bearing.
In a civil RICO suit the JURY can reach back TEN (10) years into Westfall's past CONDUCT, to establish
whether his CONDUCT was VIOLATIVE OF RICO, to reveal the scheme and the pattern
of racketeering activity, to show that my injury flowed from his RICO
violative conduct (i.e. his "pattern of racketeering activity"), and
that this fraudulent "collection suit" was in the "pattern"
of his "pattern of racketeering activity".
6. The
filing of the Defendant/Counter-Plaintiff's claims concerning RICO civil
conspiracy was a blatant and obvious attempt to influence the outcome of
the Plaintiff's legitimate lawsuit against the Defendant/Counter-Plaintiff and
to cause harassment to the Plaintiff and his family members.
·
My civil RICO claim was to show that the lawsuit against me was a
"predicate act" in a "pattern of racketeering activity"
that could only be seen by reaching back into David Westfalls CONDUCT of
a "pattern of racketeering activity", to show the SCHEMES he was
using, and that this suit was part of his pattern.
·
My civil RICO claim was not to "cause harassment", but to
hold "The [three] Westfalls" accountable for what they were doing
through their RACKET of using the LAW OFFICE in perpetrating this fraudulent
suit on me. Their RACKET of course can
only be seen by allowing me to show ALL of my evidence to the JURY, in the form
of my civil RICO claim.
7. The
behavior of the Defendant/Counter-Plaintiff in filing claims concerning RICO
civil conspiracy in this lawsuit have been totally without substantiation
on any cause of action pled.
·
"Behavior … … have been without substantiation ….." What sort of MUMBO-JUMBO did attorney
Fleming put down for Judge Banner to sign?
Besides I asked for "substantiation"
by JURY, not by JUDGE.
·
As if a civil RICO claim has to have "substantiation" on
another cause of action???
8. The
conduct of the Defendant/Counter-defendant giving rise to the award of punitive
damages was engaged in willfully and maliciously by the
Defendant/Counter-Plaintiff with the intent to harm the Plaintiff and
the Counter-Defendants.
·
Emphatic statement, but no SPECIFICITY or PARTICULARITY as required by
Rule 13. Not in this statement, nor in
anything in any of the previous statements. Also Judge Banner, at the close of
the Sanction Hearing, found me to be "well-intentioned".
9. The
amount of actual damages, attorney's fees, suffered by the
Counter-Defendant was proven to be reasonable and necessary by
a preponderance of the evidence and not challenged by the
Defendant/Counter-Plaintiff at the hearing on sanctions. The amount of actual damages awarded
was in an amount that was proven at the hearing.
·
The amount of sanctions are to be reasonable and necessary to be
sufficiently "COERCIVE" to prevent a repetition of conduct,
NOT to punish for any "damages"
or "attorney's fees" that
may have been "suffered" by
The [three] Westfalls".
·
The U.S. Supreme Court has of course ruled that the purpose of civil
sanctions is to COERCE, not to PUNISH. And that any sanction, when unconditionally
imposed to PUNISH, not to COERCE into compliance, is a CRIMINAL sanction,
requiring full due CRIMINAL process, including a finding BEYOND A REASONABLE
DOUBT. See my Brief.
10. The
amount of damages for inconvenience awarded by the court was proven at the
hearing by a preponderance of the evidence and not challenged by the
Defendant/Counter-Plaintiff at the hearing on sanctions. The court awarded
damages for inconvenience in an amount the Court found to be reasonable and
necessary, supported by evidence, and appropriate considering the
circumstances.
·
Not much specificity or particularity as to what is "reasonable and necessary" "considering the circumstances".
Also not much specificity and particularity as to the exact "circumstances", i. e. WHAT
WAS IT I WAS SUPPOSED TO HAVE DONE WRONG, WHICH ORDER, IF ANY, I WAS SUPPOSED
TO HAVE VIOLATED, etc.
·
"Not challenged"? See my Oral Pleading in Writing, and my Closing
Pleading in Writing, in which I pleaded retaliation by official
oppression.
11. The
amount of punitive damages awarded by the Court were found to be supported by
the evidence and necessary under the circumstances to attempt to prevent
similar future action on the part of the Defendant/Counter-Plaintiff.
·
Not much specificity or particularity as to "under the circumstances" or "similar future action"
·
Also, these were not awards based on The Westfalls' pleadings,
but PUNITIVE SANCTIONS
imposed as a result of a MOTION FOR SANCTIONS,
intended to "CHILL" my First
Amendment and statutory right to
access to the courts.
12. The
sanction award is directly related to the harm done.
·
A civil sanction is to COERCE compliance. This is a sanction for supposed "harm done", making it
a CRIMINAL sanction, imposed without full CRIMINAL due process.
13. The
sanctions award is not excessive in relation to the harm done and the net
worth of the Defendant/Counter-Plaintiff.
·
"Net worth" was never raised in any of the pleadings or
proceedings. And again "harm
done".
·
And of course the trial judge is there so that there is no "harm
done" in a civil proceeding. At least not to the tune of $62,000. Without
Judge Banner ever WARNING or REPRIMANDING or ORDERING me to do or not do
anything, and in fact finding me to be "well-intentioned",
while at the same time pronouncing a $62,000 sanction against me for having
made a civil RICO pleading TWO years before!
14. The
sanctions award is an appropriate amount in order to gain the relief which the
Court seeks, which is to stop the Defendant/Counter-Plaintiff and others
similarly situated from filing frivolous lawsuits.
·
A civil sanction is to coerce compliance in the
PROCEEDINGS. A criminal sanction is to
PUNISH and set an EXAMPLE for "others
similarly situated". This is a CRIMINAL sanction!
·
What is the "message" the Court is trying to send? DO NOT
MAKE CIVIL RICO CLAIMS, even if
you have a First Amendment and statutory right to do so!
15. The
amount of the punitive damage award is an amount narrowly tailored to the
amount of harm caused by the offensive conduct to be punished.
·
"conduct to be punished"
?
"tailored to the harm caused" ? "punitive
damage" ?
·
Is not a civil sanction
to be tailored to coerce someone into compliance with a judge's
order, and to be the least amount necessary to accomplish such compliance?
·
And a court cannot impose severe civil sanctions without having
tried (and actually imposed! ) lesser sanctions to see if they will
accomplish such compliance?
·
And an unconditional punishment or for a completed act is
a criminal sanction, requiring full CRIMINAL process, including a
finding of "beyond a reasonable
doubt".
Does
not Judge Banner know anything about Due Process, and the right of access to
the courts, free from fear of unlawful punishment? Or is this whole "Finding" just "stuff" put down by attorney
Frank C. Fleming, on a piece of paper, and Judge Banner just signed it.
16. The
Counter-Defendants suffered both economic and emotional damages as a result of
the Defendant/Counter-Plaintiff's lawsuit and specifically the frivolous
nature of the lawsuit caused damages which included expenses in addition to
taxable court costs, attorney's fees, harassment, inconvenience, intimidation,
and threats.
·
"specifically the
frivolous nature of the lawsuit caused … … intimidation, and threats"?
·
Not much specificity and particularity in this finding,
as required by RCP Rule 13, particularly regarding such "intimidation" and "threats".
17. The
Counter-Defendants established a prima facie case that this lawsuit was filed
by the Defendant/Counter-Plaintiff without merit and for the purpose of
harassment. The prima facie case was made by the testimony and documents
introduced as evidence by the Counter-Defendants at the summary judgment
proceedings as well as at the hearing on sanctions on July 30, 23002.
·
The only "prima-facie" case is the one I am making by this
response.
·
That I was punished for engaging in "protected
activity", i.e. for filing
my civil RICO claim
·
And that such punishment is RETALIATION
as a matter of law.
18. After
the Counter-Defendants established their prima facie case, the
Defendant/Counter-Plaintiff failed wholly to provide any credible evidence
to support the legal theories of the Defendant/Counter-Plaintiff.
·
Credibility determinations are of course the prerogative of the JURY,
whether about witnesses or documents, or whatsoever
·
Also civil RICO is not a "legal
theory", but STATUTORY LAW, clearly established by the U.S. Supreme
Court.
Conclusions of Law
1. The
Defendant/Counter-Plaintiff wholly failed to provide any credible
evidence to substantiate any of his claims concerning a RICO civil
conspiracy claim.
·
Credibility determinations are of course the prerogative of the JURY
·
Whether there was a violation of RICO, and whether I was injured
"by reason of" such violation was of course an issue I asked to be
made by the JURY
2. An essential element of each of
Defendant/Counter-Plaintiff's claim was damages.
3. The
Defendant/Counter-Plaintiff failed to prove any damage as a direct result
of any action or inaction caused by the Plaintiff or the
Counter-Defendants.
·
I did not make a civil RICO claim against the Plaintiff [Law Office]
·
"damage" is of course a JURY issue,
as is "direct result"
(proximate cause)
·
Also, civil RICO does not require "damage
as a direct result of any action or inaction", but "injury
by reason of" the RICO violative conduct, i.e. flowing from the
"pattern of racketeering activity", i.e. more like producing cause.
4. All
of Defendant/Counter-Plaintiff's claims were as a matter of law unproved
and untenable on the evidence presented to the Court
·
"as a matter of law
unproved"?
What sort of MUMBO-JUMBO is this that Fleming put down for Judge Banner to
sign?
·
And had I not asked for determination by JURY?
5. Based
upon the facts presented to support Defendant/Counter-Plaintiff's claim
concerning RICO civil conspiracy charges, the
Defendant/Counter-Plaintiff's claims concerning RICO civil conspiracy
were completely untenable.
·
Is this a conclusion of law (as to my civil RICO claim) made by
Judge Banner, "upon the facts
presented"?
·
But I had asked for a finding of fact (as to my civil RICO
claim) to be made by a JURY, "upon
the facts presented"
6. The
Defendant/Counter-Plaintiffs claims concerning RICO civil conspiracy charges
were not based upon the law, were not a good faith extension of existing
law, and were brought and continued to be urged for the purpose of harassment.
·
Not based on the law??? Civil RICO IS the law! 18 U.S.C. $ 1964(c)
7. The
court concludes as a matter of law that Defendant/Counter-Plaintiff's claims
concerning RICO civil conspiracy were brought for the purpose of
harassment.
·
Since when has the filing of a civil RICO claim become "harassment" "as a matter of law"???
8. The
Defendant/Counter-Plaintiff's behavior in bringing and prosecuting this
frivolous lawsuit was a violation of one or more of the following: $9.000 et
seq. Civ. Prac. & Rem. Code, $10.000 et seq. Civ. Prac. & Rem. Code,
and/or Rule 13, T.R.C.P.
·
$9.000 et seq. does not apply to my civil RICO nor my DTPA cause of
action pleaded (in essence because it is not a tort but a statutory
law claim). Also the court has to first
give me a warning under $9.000, and a 90 day opportunity to withdraw any
pleading.
·
"behavior" does not have much specificity
or particularity.
·
Even if it were a "violation",
Judge Banner cannot unconditionally
punish me for a completed act.
·
Such unconditional punishment, without full criminal process,
is outlawed as a matter of law.]
9. The
Court has the power to award both actual and punitive damages against
the Defendant/Counter-Plaintiff for the filing and prosecution of a frivolous
lawsuit. This authority stems from one or more of the following $9.00 et seq.
Civ. Prac. & Rem. Code, $10.000 et seq. Civ. Prac. & Rem. Code, Rule
13, T.R.C.P., and/or the common law of Texas.
·
YES, but only to COERCE, not
to unconditionally punish or for a completed act, without full
due CRIMINAL process.
·
So says the U.S.
Constitution and U.S. Supreme Court!
10. The
behavior and attitude of the Defendant/Counter-Plaintiff in
filing and prosecuting this claim against the Counter-Defendants calls out for
the award of both actual and punitive damages to be assessed against the
Defendant/Counter-Plaintiff.
·
Judge Banner found me "well-intentioned".
·
Also, I did not get to "prosecute" this claim. Judge Banner
granted summary judgment.
11. The
Counter-Defendants were successful in presenting a prima facie case to the
Court on the issue of sanctions. After the prima facie case was made, the
burden of proof shifted to the Defendant/Counter-Plaintiff and the Defendant/Counter-Plaintiff
failed in its effort to prove good faith in the filing of the RICO civil
conspiracy claims.
·
There is no "burden-shifting" upon a motion for
sanctions!
·
It is not up to me to prove good faith. Good faith is "presumed".
Judge Banner even found "well-intentioned"!
12. The
appropriate award for actual damages as a result of the filing and full
prosecution of this frivolous lawsuit is an award of $50,085.00 in
attorney's fees. The Court makes this award under power granted to the Court by
$9.000 et seq. Civ. Prac. & Rem. Code, $10.000 et seq. civ. Prac. &
Rem. Code, Rule 13, T.R.C.P., and/or the common law of Texas.
·
Damages only come into play under $9.000. This section however does not apply, as there
was no finding of bad faith under the "safe-harbor" provision of this
section. The other sections do not allow for assessing attorney's fees for
"damages", ONLY to "coerce"
·
Under the "common law"?????
13.
The
appropriate sanction for the inconvenience suffered by the Counter-Defendants for
the filing and full prosecution of this frivolous lawsuit is an award of
$1,000.00 to Christina Westfall and $1,800.00 to Stefani Podvin, to be paid by
the Defendant/Counter-Plaintiff to the Counter-Defendants.
·
See above
14.
The
appropriate punitive sanction for the filing and full prosecution of
this frivolous lawsuit is an award of $5,000.00 to Christina Westfall and an
award of $5,000.00 to Stefani Podvin, to be paid by the
Defendant/Counter-Plaintiff to the Counter-Defendants.
·
"Full prosecution"? Judge Banner granted summary judgment.
15.
The
award of punitive damages is directly related to the harm done.
·
The only legal sanctions are of course those to "coerce", and
they do NOT relate to the harm done, but to what is necessary to
"coerce" into compliance. I
never disobeyed NOTHING!
16.
The
award of punitive damages is not excessive.
·
See above
17.
The
award of punitive damages is an appropriate amount to seek to gain the relief
sought which is to stop this Defendant/Counter-Plaintiff, and others like
him, from filing similar frivolous lawsuits.
·
Judge Banner had found me "well-intentioned"
·
Are there special sanctions for filing "similar"
frivolous suits, i.e. civil RICO?
18.
The
amount of the punitive damage award is narrowly tailored to the harm
done.
·
Does not the law say it should be tailored to "coerce", and that a sanction for "harm done",
i.e. a "completed act", is by law a CRIMINAL sanction?
19. Authority
for the punitive damage award is derived from $10.000 et seq. Civ. Prac. &
Rem. Code, Rule 13, T.R.C.P., and/or the common law of Texas.
·
No specificity and particularity as to just exactly what
I was supposed to have done.
·
No "authority" of course over-rides the Constitution
and the Supreme Court, i.e. that a punitive (as opposed to
"coercive") sanction cannot be imposed except by full CRIMINAL
process.
Any finding of fact herein which is later determined to
be a conclusion of law, is to be deemed a conclusion of law regardless of its
designation in this document as a finding of fact. Any conclusion of law herein which is later
determined to be a finding of fact, is to be deemed a finding of fact
regardless of its designation in this document as a conclusion of law.
SIGNED THIS _______ day of September, 2003
___________________
JUDGE
PRESIDING
______________________
UDO BIRNBAUM
540 VZ CR 2916
Eustace, Texas 75124
(903) 479-3929
phone
(903) 479-3929
fax
Certificate of Service
This is
to certify that on this the __13__ day of October, 2003 a copy of this document
was sent by Regular Mail to attorney Frank C. Fleming at PMB 305, 6611
Hillcrest Ave., Dallas Texas 75205-1301.
A copy of this document has also been provided to Judge Paul Banner
through Pam Kelly, Court Coordinator for the 294th District Court in
Canton, Texas.
___________________
Udo Birnbaum