STATEMENT OF THE FACTS
Suit (A.35) was brought against me in the
294th district court of Van Zandt County by attorney G. David Westfall
("Westfall") in behalf of a "The
Law Offices of G. David Westfall, P.C.", claiming an unpaid OPEN
ACCOUNT for LEGAL FEES . There of course never was an open account, not
with a $20,000 NON-REFUNDABLE prepayment "for the purpose of insuring
our [lawyer's] availability", and the lawyer reserving the "right
to terminate" for
"your [Birnbaum] non-payment
of fees or costs". (See attorney "retainer agreement", at end of
this Petition)
What had first brought me into the 294th
District Court was when I was sued in 1995 over a BEAVER DAM[1]. The $20,000 prepayment had been for suing
then 294th district judge Tommy Wallace and other state
judges in the Dallas Federal Court[2]
for racketeering (18 U.S.C. $ 1964(c) "civil RICO") regarding
their beaver dam scheme. Then long after
I terminated him, Westfall brought this supposed "open account" case, claiming I owed
him an additional $18,121.00.
I, Udo
Birnbaum, asserted defenses of FRAUD, and counter-claimed under the Texas
Deceptive Trade Practices Act (DTPA), and made cross and third party claims
under 18 U.S.C. § 1964(c)
("civil RICO") against three (3) persons associated with the
"Law Office" (G. David Westfall, Christina Westfall, and Stefani
[Westfall] Podvin, "The Westfalls"), and asked for trial by jury
(CR.18, CR.77, CR.92, CR.100). Birnbaum
also moved for appointment of an auditor per RCP Rule 172 to investigate and
report on the alleged OPEN ACCOUNT.
(CR.65, CR.67)
The trial
judge DENIED (A.96) my motion for an auditor, ruled summary judgment
(A.97) on my civil RICO claim, DENIED my DTPA jury question of no-worth (judges are immune from
suit!), DENIED my jury question of excused
(A.38, A.40) because the lawyer had not done what he had promised[3].
Then, THREE
months AFTER the trial, Judge Banner comes back again to weigh my civil
RICO evidence (I of course had asked for weighing by JURY), and FINES me
$62,000 (A.18) for having made such claim TWO years earlier (having long ago
granted summary judgment on it), stating (A.20) that I may have been
"well-intentioned", just that he
did not see a civil RICO case:
"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 [civil RICO] suits against the
individuals[4]".
(all completed
acts, making the sanction purely punitive, not "coercive") Sanctions hearing
Misstatements
by the Court of Appeals
The Opinion
INCORRECTLY stated virtually ALL procedural facts, and especially as
they relate to my PRESERVING my points of error for appellate
review. As examples of the erroneous
nature of the Opinion (A.2), I present the following, taken directly out of
my Petition
for Rehearing En Banc (DENIED):
·
"Birnbaum appeals a jury
verdict and judgment"? I am not
appealing on the answers by the jury[5],
but on a judgment that does not conform to the pleadings and the verdict (and
due process).
·
"Birnbaum also appeals orders
on motions for [ ] sanctions"? This is not
an "order" (to "coerce") at all, but unlawful
punishment[6]
("THIS JUDGMENT RENDERED", A.18) for having made a "civil
RICO" pleading! (A.20)
Background
·
"There is no order
on Birnbaum's motion to appoint an auditor in the clerk's record". ERRONEOUS. See Pretrial Order (A.96)
·
"a jury made
affirmative findings … … for breach of contract"? The jury did NOT
find on all the elements of a breach of contract. (
·
"Third Party defendants
filed a motion for sanctions under Rule 13"? $62,000 sanctions for legal fees of
the entire proceeding is of course not
permitted under RCP Rule 13, only fees relating to abuse of
discovery, of which there was none
on my part. (only RCP Rule 215-2b sanctions available under Rule 13)[8]
. Judge Banner even found that I was "well-intentioned" (A.20), only
that he did not see the evidence as showing my civil RICO case. I of course had
asked for determination by JURY.
Judgment
·
"Because Birnbaum filed
only a partial reporter's record … … we are unable to review
these complaints [if the judgment conforms to the
pleadings and the verdict]?
ERRONEOUS. All that is needed is the pleadings (A.35), the verdict
(A.41), and the judgment (A.11), and they were all in the Clerk's Record and the Civil Appendix! That is all that counts in a jury trial!
·
"court could not
determine whether giving improper jury instructions was harmful
error"? ERRONEOUS. My appeals issue is improper jury questions! (A.38, A.40)
·
"nothing preserved for
review on issue whether judgment conformed to pleadings, because complaint
could not be raised for first time on
appeal"? ERRONEOUS. My Brief is full of evidence of my
OBJECTING in the trial court, a detailed chronology of Law Office proposed jury
issues and my objections, even copying them into my Appeal Brief, even
providing a copy of my Objections (A.38) and again LAST
MINUTE handwritten OBJECTIONS (A.40) and including them in the Clerk's
Record and the Civil Appendix!
·
"complaint could not be
raised for the first time on appeal"? ERRONEOUS.
Was raised in my Rule 276 Request For Endorsement By The
Court of "Refusals" and "Modifications" (A.46). Raised in my Motion to reconsider the $59,000
judgment. Raised in my Request for Findings (A.27). Raised
in my Notice of Overdue Findings (A.32). NO RESPONSE. Again raised in my Motion (A.34) in the
Appointment of
Auditor
·
"While Birnbaum did
file a motion to appoint an auditor with the trial court, he did not receive
a ruling on the motion. Therefore, he did not preserve his complaint
for appeal"? ERRONEOUS.
See Pretrial Order (A.96). I
moved to appoint an Auditor. I put in a supplement thereto. I requested hearings thereon. At every
hearing, I presented the trial judge with a three-ring notebook with all the
un-addressed motions, with a summary list on the cover. I moved for recusal for
not appointing auditor. I sought mandamus
(A.100) to make trial judge appoint auditor (denied). But it was not till his PRETRIAL
Order (A.96) that Judge Banner formally denied my motion[9].
·
Despite my claim of fraud, racketeering, obstruction
of discovery, affidavits by numerous persons regarding the fraud,
and my right to a court-appointed auditor under RCP Rule 172, this trial judge
would not do so. If there ever was a case that required an auditor, this case
was it! Also see my Summary Judgment Appendix (A.72)
Summary
Judgment
·
"We review a no-evidence
summary judgment … [for] more than a scintilla"? I provided the trial judge with hours of
depositions, and documents showing that Law Office did not even have an
accounting system, VOLUMES and VOLUMES of court transcripts, court findings
of "bad faith" on G. David Westfall, numerous person's
affidavits regarding Westfall's fraud, etc.[10]
See my Summary Judgment Appendix (A.72)
·
"Birnbaum filed
affidavits of several unhappy clients of Law Office"? This evidence, looked at "in light most
favorable", of course showed G. David Westfall's "pattern of
racketeering activity", as did the transcript of G. David Westfall's
involuntary bankruptcy proceeding, as did various courts' and the State Bar's
finding of "bad faith".
·
"Although Birnbaum also
referred to deposition testimony … …
this evidence was not submitted to
the trial court"? ERRONEOUS. At
summary judgment, Judge Banner ruled that each and every document I had
did not show a civil RICO case, and denied each and every bit of my civil
RICO evidence, and my civil RICO claim.
See Pretrial Order (A.95) and Order Sustaining Motions for Summary
Judgment (A.97).
·
"He [Birnbaum] does
not, however, offer summary judgment evidence regarding how mailing this fraudulent
bill constitutes a pattern of racketeering activity, or furthers a
recognizable scheme formed with specific intent to defraud"? How can there be fraud, without
intent to defraud?
·
I had asked for trial by jury on my civil RICO cause and
evidence, in a trial court, of course, not before the appeals panel.
Sanctions
Order
·
"We agree with Birnbaum
that the trial court's order awards sanctions without stating the basis
for the award, and therefore does not meet the requirements of rule 13. THAT MAKES IT UNLAWFUL. PERIOD.
·
"This error, however,
may be waived". "Waived" means knowingly
giving up a right. Why would I knowingly
give up a right about an unlawful sanction against me. NONSENSE.
·
And what about my point that it is UNLAWFUL, because it is unconditional punishment, for a completed act[11],
(i.e. not "coercive"), imposed without full due criminal process? SILENCE!
·
"Birnbaum did not bring
either of his complaints about the sanctions order to the attention of the
trial judge"? ERRONEOUS. See my Request
for Findings (A.27), Notice of Past Due Findings (A.32),
etc.
·
"he [Birnbaum] did not
object to the specificity of the order or to the criminal nature
of the sanctions"? ERRONEOUS. See my Request
for Findings (A.27), Notice of Past Due Findings A.32),
etc.
·
"Birnbaum's only
complaint about the specificity of the order was made in an untimely
request for findings of fact"?
ERRONEOUS. The trial judge put "Aug. 9" on his Order
on Motions for Sanctions (A.18), but did not "sign with the clerk", or let anybody know that
he had "signed" it, till Aug. 21, and I first got notice of it on
Aug. 22, 2002. My Request for Findings
(A.27) filed
· "Therefore, the trial judge did not have the opportunity to correct the erroneous order"? What about my