No. 00‑00619
THE LAW OFFICES OF § IN THE DISTRICT COURT
G. DAVID WESTFALL P.C. §
Plaintiff §
§
v. § 294 JUDICIAL DISTRICT
UDO BIRNBAUM §
Defendant/Counter‑Plaintiff §
v. §
G. DAVID WESTFALL, CHRISTINA §
WESTFALL, and STEFANI PODVIN §
Counter‑Defendants § VAN
ORDER ON MOTIONS FOR SANCTIONS
On
Based upon
the pleadings of the parties, the evidence presented at the motion hearing, and
the arguments of counsel and the arguments of the pro se defendant, the Court
is of the opinion that Birnbaum's Motion to Recuse Judge Paul Banner should be
in all things be denied.
Based upon
the pleadings of the parties, the evidence presented at the motion hearing, and
the arguments of counsel and the arguments of the pro se defendant, the Court
is of the opinion that the Sanctions Movants are entitled to prevail on their
claim for sanctions against the Defendant, Udo Birnbaum.
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It is
therefore, ORDERED, ADJUDGED, and DECREED that the motion by the
defendant, Udo Birnbaum, that Judge Paul Banner be recused from further matters
effecting this cause of action is denied.
It is
therefore, FURTHER ORDERED, ADJUDGED, and DECREED that the Plaintiff, G. David
Westfall, P.C., and Counter‑Defendants, Christina Westfall and Stefani
Podvin, are awarded damages as a sanction against and to be paid by defendant,
Udo Birnbaum, to G. David Westfall, P.C., Christina Westfall, and Stefani
Podvin as follows:
A.
A monetary sanction in the amount of $1,000.00 as
actual damages, representing the reasonable value of the legal services
rendered to the Sanctions Movants by their attorney for the defense of
Birnbaum's Motion to Recuse and the prosecution of the Sanctions Movants' Motion
for Sanctions.
B.
A monetary sanction in the amount of $124,770.00 as
exemplary and/or punitive damages to serve as a deterrent to prevent Birnbaum
from committing further similar acts again in the future.
IT IS
FURTHER ORDERED THAT the judgment here rendered shall bear interest at the rate
of five percent (5%) from the date of the signing of this order, until paid.
All other
relief regarding any motions for relief on file in this cause of action not
expressly granted in this order is hereby denied.
With regard
to the award of sanctions, the Court makes the following findings and
conclusions in support of the Court's award of sanctions and in support of the
type and dollar
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Findings of Fact
1. Birnbaum's claims regarding the
attempt to have Judge Paul Banner recused were groundless, vacuous,
manufactured, and totally unsupported by any credible evidence whatsoever.
2. Birnbaum's claims
regarding the attempt to have Judge Paul Banner recused were without
3. The testimony of Birnbaum
regarding the attempt to have Judge Paul Banner recused was
4. The sole purpose of
Birnbaum filing the motion regarding the attempt to have Judge Paul
5. Birnbaum has a track record
and history of filing lawsuits, motions, and writs of mandamus
6. Birnbaum filed a
pleading containing a completely false and outrageous allegation that
Judge Paul
Banner had conducted himself in a manner that showed bias and a lack of
impartiality.
7. Birnbaum's difficulties with
judges and the repeated allegations of a lack of impartiality have had nothing
at all to do with the conduct of the judges that Birnbaum has appeared before,
but instead,
is a delusional belief held only inside the mind of Birnbaum.
8. Birnbaum will seemingly go to any
length, even filing new lawsuits in State and Federal courts in an attempt to
re‑litigate issues which a court has already ruled upon and which all
appropriate courts of appeal have affirmed.
9. Birnbaum's filing
of this Motion to recuse Judge Banner was consistent with a proven
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12. Birnbaum has a track record and history of bickering and quarreling with judges that have ruled against him in litigation.
11. Birnbaum has a track
record and history of filing lawsuits without merit against judges,
12. Prior to
this hearing, Birnbaum filed in March 2004, new legal action in Federal
District Court against Judge Paul Banner, G. David Westfall, Christina
Westfall, and Stefani Podvin. This new Federal lawsuit attempts to re‑litigate
the same issues Birnbaum unsuccessfully raised in this lawsuit,
13. Prior to
this hearing, Birnbaum has initiated a lawsuit against the attorney for the
Sanctions Movants, Frank C. Fleming. Birnbaum admitted in open court that he
has never had any dealings with Frank C. Fleming other than in connection with
Mr. Fleming's representation of the Plaintiff and the counter‑defendants
in this cause of action. Birnbaum admitted in open court that the legal basis
of his lawsuit against Mr. Fleming, civil RICO, is the same basis Birnbaum was
previously sanctioned in this lawsuit for attempting to bring against Christina
Westfall and Stefani Podvin.
14. The
behavior
of Birnbaum himself in prosecuting the Motion to recuse Judge Banner has been
vindictive, unwarranted, mean‑spirited, frivolous, and totally without
substantiation on any legally viable theory for the recusal of Judge Banner.
15. The Motion itself to Recuse
Judge Banner without any ounce of evidence to support it, was
frivolous,
vindictive, and brought for the purpose of harassment.
16. The
conduct of Birnbaum giving rise to the award of
exemplary and/or punitive damages was engaged in by Birnbaum willfully and
maliciously with the intent to harm the Sanctions Movants, Judge Paul Banner,
and the attorney for the Sanctions Movants, Mr. Fleming.
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17. Prior to the hearing on the
Motion to Recuse, the Court admonished Birnbaum that if his
Motion to Recuse Judge Banner was not withdrawn, that if it became appropriate,
the Court would hear the Motion for Sanctions. In response to this admonition,
Birnbaum unequivocally elected to move forward with a hearing on his Motion in
an attempt to have Judge Banner recused.
18. The type and dollar amount of
the sanctions award is directly related to the harm done. The Court has not
been presented with any evidence to believe that the amount of the sanctions
award is excessive in relation to the net worth of Birnbaum.
19. The type and dollar amount of
the sanctions award is appropriate in order to gain the relief which the Court
seeks, which is to stop this litigant and others similarly situated from filing
frivolous motions, frivolous lawsuits, frivolous defenses, frivolous counter‑claims,
and new lawsuits which attempt to re‑litigate matters already litigated
to a conclusion.
20. The amount of the exemplary
and/or punitive damage award is an amount narrowly tailored
21. The Sanctions Movants have
suffered damages as a result of Birnbaum's frivolous counterclaims and
Birnbaum's motion to recuse. These damages include expenses (in addition to
taxable court costs), attorney's fees, harassment, inconvenience,
intimidation,
and threats.
Conclusions of Law
1. On the issue of the
recusal of Judge Paul Banner, Birnbaum wholly failed to provide any
2. All of Birnbaum's claims
were as a matter of law unproved and untenable on the evidence
presented at the
hearing.
3. The court concludes as a
matter of law that Birnbaum's claim that Judge Paul Banner acted
biased and with a lack of impartiality, was
brought for the purpose of harassment. The Court makes
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this conclusion
based upon the fact that Birnbaum was not a credible witness, that other
credible witnesses totally contradicted Birnbaum's version of the facts, and
that evidence was presented establishing that Birnbaum has had a track record
and history of harassment towards other opposing litigants, opposing counsels,
and other judges before whom Birnbaum has appeared.
4. The Plaintiffs behavior in
bringing and prosecuting this frivolous motion to recuse Judge Banner was a
violation of one or more of the following: §§10.001, et seq., Tex.. Civ. Prac. & Rem. Code, Rule 13, T.R.C.P., and/or the common law of
5. The Court has the power to award both actual and exemplary (and/or punitive) damages against
Birnbaum for the filing and prosecution of a frivolous motion. This authority
stems from one or more of the following: §§10.001, et seq., Tex. Civ. Prac. & Rem. Code, Rule 13, T.R.C.P., and/or the common law of
6. The
behavior and attitude of
Birnbaum in filing and prosecuting this Motion to Recuse claim against Judge
Paul Banner calls out for the award of both actual and
exemplary (and/or punitive) damages to be assessed against Birnbaum.
7. The appropriate award for actual
damages as a result of the filing and prosecution of the frivolous Motion to Recuse, is an award of $1,000.00 in attorney's fees. The
Court makes this award under power granted to the Court by § § 10. 00 1, et seq.,
8. The appropriate exemplary and/or
punitive sanction for the filing and full prosecution of the frivolous Motion
to Recuse is an award of $124,770.00 to be paid by Birnbaum to the Sanctions Movants.
9. The award of exemplary
and/or punitive damages is directly related to the harm done.
10. The
award of exemplary and/or punitive damages is not excessive.
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11. The award of
exemplary and/or punitive damages is an appropriate amount to seek to
gain the relief sought by the Court which is to stop Birnbaum and others
like him from filing similar frivolous motions and other frivolous lawsuits.
12. The amount of the
exemplary and/or punitive damage award is narrowly tailored to the
13. The amount of the exemplary
and/or punitive damages is narrowly tailored to exactly coincide with the
amount (in total) assessed against Birnbaum to date in this litigation. This
amount was selected by the Court deliberately and on purpose to send a clear
message to Birnbaum. The message this award of damages is intended to relay to
Mr. Birnbaum is that this litigation is over, final, and ended. The message is
that further attempts to re‑open, re‑visit, and re‑litigate
matters which have already been decided in court, reduced to judgment, and
affirmed on appeal will not be tolerated; and that further attempts by this
litigant to engage in such activity will not be conducted without the
imposition of very serious and substantial monetary sanctions imposed upon Mr.
Birnbaum.
14. Authority for an
exemplary and/or punitive damage award is derived from §§10.001, et
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.
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THIS JUDGMENT RENDERED ON APRIL 1, 2004, AND SIGNED THIS
24 day of Oct., 2006
Ron Chapman
JUDGE PRESIDING
Order on Sanctions
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