TO THIS HONORABLE COURT:

COMES NOW Udo Birnbaum, moving for a new trial upon the following points:

1. For not appointing an auditor as required by RCP Rule 172
2. For not making Plaintiff abide by the rules of discovery
3. For granting summary judgment on my civil RICO claims and cross-claims
4. For allowing Plaintiff to submit "surprise" jury issues not supported by its pleadings
5. For not allowing submission to the jury of my "excused" issue
6. For not allowing submission to the jury of my "no worth" issue
7. For jury misconduct by the judge himself

                            Point 1. For not appointing an auditor as required by RCP Rule 172

        Plaintiff, claiming "systematic records" and an unpaid account of $18,121.10, brought suit falling under RCP Rule 185, "Suit on [sworn] Account", and no other cause of action. Birnbaum timely complied with the mandatory counterclaim, and denied the "account" under oath, claiming fraud, and moved for the mandatory appointment of an Auditor per RCP Rule 172. Such motion was, however, denied and no auditor's report of the "state of the accounts between the parties" was ever made to the Court or the jury.

        Your Honor was required to appoint an auditor because of the clashing sworn affidavits by the two parties. Rule 172 is a wise rule, for it cuts through fraud in accounting, and saves precious judicial resources. And particularly so when there are complaints of "cooking the books", obstruction of discovery, and racketeering, as in this case. I had alleged that the Westfalls had honed fraud and racketeering to a fine skill, and justice required that you appoint an auditor under the circumstances of this case, to testify before the jury, so that I could cut through their lying and obstruction of discovery.

        In essence, what I am complaining of, is that not appointing an auditor as required by RCP Rule 172 deprived me of due process and a fair trial.

        The file is full of my complaints to you about all the Westfalls not complying with the rules of discovery. About me serving them with subpoena duces tecum, and them not bringing anything other than the clothes they were wearing. About them not answering questions even as to who owns the "law office", the records there, copies of computer records, etc. You never made them comply with discovery, and they were the ones that brought this suit!

        In essence, what I am complaining of, is that not making the plaintiff abide by the rules of discovery deprived me of due process and a fair trial.

        Your Honor granting summary judgment on my civil RICO ("racketeering") claims and cross-claims kept me from showing the jury a viable alternative to the Westfalls' version of the facts. You never allowed me to tell the jury that what the Westfalls were doing was outlawed by RICO. How can the jury believe me, if you will not let me tell them about RICO, and let me show them all this other stuff I had about what the Westfalls were doing that was violating RICO. That all that stuff showed a "pattern of racketeering activity", and that this very suit they were bringing upon me was another "predicate act" in their "pattern of racketeering activity".

        If you would have dismissed my civil RICO case for "failure to state a claim", i.e. that my claim was not pleaded correctly, that would be one thing. But finding that there was no evidence of a RICO violation, is another. My claim was that the stuff the Westfalls themselves were bringing was evidence of a "pattern of racketeering activity" of which I was the victim.

        Your Honor, knowingly or unknowingly, violated the law in weighing the evidence, which no less than the Supreme Court of the United States says you cannot do. (Details in my responses to the various motions for summary judgment)

        In essence, what I am complaining of, is that granting summary judgment on my civil RICO claims deprived me of due process and a fair trial.

        Plaintiff, claiming "systematic records" and an unpaid account of $18,121.10, brought suit falling under RCP Rule 185, "Suit on [sworn] Account", and no other cause of action. Birnbaum timely complied with the mandatory counterclaim, and denied the "account" under oath, claiming fraud, and moved for the mandatory appointment of an Auditor per RCP Rule 172. Such motion was, however, denied and no auditor's report of the "state of the accounts between the parties" was ever made to the Court or the jury.

        At issue was the state of the accounts. Plaintiff pleaded no other cause of action. And this issue, the state of the accounts, was not what you submitted to the jury. (See my Aug. 19, 2002 Motion to Reconsider the $59,280.66 Judgment for details)

        Your Honor allowed the Westfalls to pop me with surprise jury questions (which they did not submit until the third day of trial), just before submission to the jury. The issues you submitted to the jury were in the nature of a breach of contract, which Plaintiff had not pleaded, and to which questions I had objected (Exhibit C, Exhibit D):

• What sum of money, if paid now in cash, would fairly and reasonably compensate The Law Offices of G. David Westfall, P.C. for its damages, if any, that resulted from the Defendant, Udo Birnbaum's, failure to comply with the agreement between the Plaintiff and the Defendant?
• What is a reasonable fee for the necessary services of the Plaintiff's attorneys in this case, stated in dollars and cents?

        These issues are not relevant to Plaintiff's cause of action, i.e. the state of the accounts.

        In essence, what I am complaining of, is that allowing submission of these unpleaded jury issues deprived me of due process and a fair trial.

        This matter is more fully developed in Defendant Birnbaum's Objections to Plaintiff's Requested Jury Instructions (Exhibit C). My requested issue, directly from Texas Pattern Jury Charges, Business, Consumer, Insurance, Employment, was as follows:

        This issue is again shown in Birnbaum's Objections to today's Plaintiff's Court charge, handwritten, filed, and served, just after plaintiff submitted its surprise jury issues on the third day of trial, just before submission to the jury. (Exhibit D)

        In essence, what I am complaining of, is that not allowing submission of this "excused" issue deprived me of due process and a fair trial.

        My counterclaim was that the Westfalls were violating the Texas Deceptive Trade Practices Act (DTPA), i.e. that they were engaging in "false, misleading, or deceptive practices" that I relied on to my detriment. Texas Pattern Jury Charges, Business, Consumer, Insurance, Employment specifies jury instructions as follows:

        I claimed that the services did not have the characteristic of worth, and substituted that word into my requested instruction exactly as follows, even citing the authority for my jury issue exactly as follows (see the record for detail):

                a) Failing to disclose, etc; or
                b) Representing that services had or would have worth that they did not have.
                    PJC 102.2 Description of Goods or Services or Affiliation of Persons (DTPA $ 1746(b)(5))

        At one point in the trial Fleming,the Westfalls' attorney, was lighting into me, something about me supposedly "harassing" either the Westfalls or you by having asked for your recusal, and the jury not even knowing what a "recusal" was. You correctly lectured that asking for recusal of judge was one of those rights every American has because judges are absolutely immune from suit for everything they do in their "judicial capacity", i.e. sitting as a judge. This however made me a new target of Fleming, namely that I was some sort of vicious monster suing honest friendly judges as they were seeing in you, who were absolutely immune from suit.

        However if Westfall was charging me for "legal services" for suing judges who are absolutely immune, then even if he did a whole lot of "stuff", his "services" would still have the characteristic of no worth, and submitting this question to the jury would have certainly informed the jury that there was something wrong with all that "legal fee" stuff Westfall was doing.

        I was entitled to submission of the "no worth" instruction, unless Your Honor had already found that, as a matter of law, Westfall's services had no worth, because of what he was doing, namely suing judges, and under the racketeering statutes at that!

        In essence, what I am complaining of, is that not allowing my "no worth" jury issue deprived of due process and a fair trial.

        Your Honor was over-reaching with the jury, such as giving them "grandfatherly" type advice, telling them about "great historical" matters, and mingling with them as described in the two attached affidavits. There is no doubt in my mind that you made the jury like you, and not see what I was trying to show about Westfall abusing the judicial system, and not see that this very suit they brought was a fraud.

        Your Honor should have been at the bench as the jurors left and came back into the courtroom, instead of welcoming them into and out of the jury room by yourself as if you were their personal servant. Your Honor should have used a bailiff or some other designated officer. I have never seen nor heard of a judge mingling with jurors as you did at this trial. (Affidavit Exhibit A) And on numerous occasions you actually entered the jury room and did not come back out until 5 or 10 minutes later. (Affidavit Exhibit B)

        And I clearly remember Your Honor's lengthy lecture to the jury about judges being, for all practical purposes, absolutely immune from suit. Remember, this issue came up in the context of the Westfalls trying to show that I had somehow "harassed" them, or Your Honor, by asking for your recusal. You did bring out that asking for recusal of the judge is a fundamental American right, because that is effectively the only recourse one has because judges are absolutely immune for what they do in a judicial capacity.

        However this lecture not only elevated you and all other judges in the eyes of this jury, but also allowed the Westfalls to harp, to this jury, that I had to be some sort of viscous person that has to be "stopped" because he was suing honest "grandfatherly" judges such as they have just seen in you.

        In essence, what I am complaining of, is that Your Honor Yourself, knowingly or unknowingly, turned this jury against me.

WHEREFORE, upon the points designated above, Birnbaum moves for a new trial.

Respectfully Submitted,

____________________
UDO BIRNBAUM
540 VZ 2916
Eustace, Texas 75124
(903) 479-3929

STATE OF TEXAS

COUNTY OF VAN ZANDT

        Before me, a notary public, on this day personally appeared Udo Birnbaum, known to me to be the person whose name is subscribed to the foregoing document, and being by me duly sworn, declared that the statements therein contained are true and correct.

        Given under my hand and seal of office this __28__day of August 2002.

                                ___________________
                                Notary Public

This is to certify that a true and correct copy of this document has been served via Regular Mail and FAX on this the _____ day of August, 2002, on Frank C. Fleming, Law Office of Frank C. Fleming, 6611 Hillcrest, Suite 305, Dallas, Texas 75205-1301.

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