No.
05-02-01683-CV
In the Court of Appeals
Fifth District of
UDO BIRNBAUM
Defendant, Counter-claimant,
Third Party Plaintiff - Appellant
vs.
THE LAW OFFICES OF G. DAVID
WESTFALL, P.C.
Plaintiff, Counter Defendant
- Appellee
G. DAVID WESTFALL
Third Party Defendant,
Sanction Movant - Appellee
CHRISTINA WESTFALL
Third Party Defendant,
Sanction Movant - Appellee
STEFANI PODVIN
Third Party Defendant,
Sanction Movant - Appellee
Appeal from the 294th
Judicial
The Honorable Paul Banner,
by assignment
Trial cause No. 00-00619
------------------------------
Petition for
Rehearing En Banc
The Panel's Opinion is
devoid of Constitutional considerations
The Panel micro-procedurally
upholds a patently unlawful $62,000 punitive sanction for having
made a civil RICO (civil racketeering) pleading
------------------------------
"clearly established that filing a
lawsuit was constitutionally protected conduct " Rutan
, 497
"criminal penalties may
not be imposed on someone who has not been afforded the protections that the
Constitution requires of criminal proceedings, including the
requirement that the offense be proved beyond a reasonable doubt.” Hicks v.
UDO BIRNBAUM, Pro
Se
540 VZ CR 2916
NOTE: Appendix bound separately
(903) 479-3929
IDENTITY OF
PARTIES AND COUNSEL
The
Law Offices of G. David Westfall, P.C.[1] Frank C. Fleming[2]
Plaintiff, Counter-defendant PMB 305,
(214)
373-1234
(214)
373-3232 (fax)
Udo
Birnbaum[3] Udo
Birnbaum, pro se
Defendant, Counter-claimant, 540 VZ 2916
Third party plaintiff
(903) 479-3929
(903) 479-3929 fax
G.
David Westfall[4] Frank
C. Fleming
Third party defendant
Stefani
Podvin[5] Frank
C. Fleming
Third party defendant
Christina
Westfall[6] Frank
C. Fleming
Third party defendant
Hon.
Paul Banner[7],
trial judge
TABLE OF
CONTENTS
(a)
Identity of Parties and Counsel
……………………………………………… 2
(b)
Table of Contents
…………………………………….……………………… 3
(c)
Index of Authorities
…………………………….…………………………… 4
(d)
Statement of the Case
…………………………………….…………………. 5
(e)
Issues Presented ……………………………………………………………. 7
Whether the Panel's Opinion is devoid of
Constitutional considerations ………………
Whether the Panel micro-procedurally upholds a
patently
Unlawful $62,000 punitive
sanction for having made a
civil RICO (civil racketeering) pleading ………………
Whether the Panel micro-procedurally upholds a
$59,000 judgment
that does not conform to the pleadings and the
verdict …………..
(f)
Statement of Facts
…………………………………………………….….. 8
(g)
Summary of the Argument
………………………………………………... 9
(h)
Argument
………………………………………………………………….. 14
Background 15
Judgment 17
Appointment of Auditor 19
Summary Judgment 19
Sanctions Order 23
Recusal of Trial Judge 25
Fraud 26
Due Process 27
(i)
Prayer
…………………………,,,,,,,,,,,,,,,,,,,……………………………….. 29
(j)
Petition Appendix (separately bound document)
INDEX OF
AUTHORITIES
Estee Laudere, Inc. v. Harco
Graphics, Inc.,
C.C.N.Y.1983,
558 F.Supp. 83 ………………………………… 16
Hicks v. Feiock, 485
Rawles v. Builders Structural
Services,
Rotella v. Wood et al., 528
Rutan v. Republican Party of
497
United Mine Workers v.
Bagwell,
512
Westfall Family Farms, Inc.
v. King Ranch, Inc.,
852 S.W.2d 587 (1993) (footnote) ………………………..……….. 7
RCP
Rule 172. Audit
…………………………………………………….. 15 fn
RCP
Rule 215-2b(7)
……………………………………………………... 17 fn
RCP
Rule 301……………………………………………………………... 28 fn
18
U.S.C. § 1964(c) ("civil
RICO") …………………………..…...……. 5 fn
Petition for
Rehearing En Banc
Panel finds "[$62,000]
sanction does not meet requirements of rule 13".
Then rules that I
"waived" such "error" by supposedly untimely objection
Upholding a sanction for having made a civil
RICO claim offends the Constitution
( "clearly
established that filing a lawsuit was constitutionally protected
conduct " Rutan , 497
STATEMENT OF THE CASE
Introduction
to this Petition for Rehearing En Banc
Honorable Judges:
I, UDO
BIRNBAUM, Appellant, seek en banc review of the opinion and
judgment by a panel of this court's judges upholding a $59,000 judgment and a
SECOND $62,000 sanction judgment against me, in the same case. Also for
upholding the trial court in all matters, including granting summary judgment
on my "civil RICO" claim. (that is what I was sanctioned for,
namely my "civil racketeering" pleading when I was sued)
As shown below, the panel's Opinion
(A.2)[8] is a micro-procedural analysis,
devoid of Constitutional and statutory
[9]
considerations. Nowhere does the panel address my key point that unconditionally
assessing a $62,000 sanction for having made a civil RICO pleading
actually violates the Law.[10] Also the sanction is punitive in
nature, not "coercive", requiring full criminal process,
including a finding of "beyond a reasonable doubt."
Furthermore, the sheer number of erroneous
"facts" expressed indicates that the "Opinion" is not
the product of three (3) independent judicial considerations, but of a single
whitewash.
Also, at this very time as this case is on
appeal, the trial judge, Paul Banner, is still busy in the trial court to paint
me as some sort of monster to the judicial system. His latest (Sept. 30, 2003) Finding
(A.121) has NO support in the trial court record and in the Law[11],
and is in direct conflict with his finding of "well-intentioned" as caught by the court reporter
at the very end of the proceedings at the sanctions hearing.
Because the issues in this Petition
for Rehearing En Banc stem almost exclusively from the Panel's Opinion,
I will focus on the Opinion directly.
Re the underlying case brought against me
Suit against me was initially brought by
attorney G. David Westfall in behalf of the "Law Office", 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".
It all started with a suit brought against
me in 1995 in the 294th District Court over a BEAVER DAM[12]. The $20,000 attorney retainer was for suing
then 294th district judge Tommy Wallace and other state judges in
the Dallas Federal Court[13]
under the anti-racketeering statute ("civil RICO"). Long after I
fired him, Westfall fabricated an $18,000 "bill", and brought this
"open account" case.
I asked for appointment of an auditor under
RCP Rule 172. Then several months later
I made civil RICO claims against "The [three] Westfalls" that were
bringing this suit against me in the name of their Law Office[14].
Details can be found in my Appeals
Briefs and among the comments and footnotes in this Petition.
ISSUES PRESENTED
Issues Presented in this Petition for Rehearing En Banc
1. Whether the Panel's Opinion is devoid of
Constitutional considerations
·
It is "clearly established that filing a lawsuit was constitutionally
protected conduct " Rutan , 497
2. Whether the Panel micro-procedurally upholds
a patently unlawful $62,000 punitive sanction for having made a
civil RICO (civil racketeering) pleading
·
"criminal penalties may not be imposed on someone who has not
been afforded the protections that the Constitution requires of criminal
proceedings, including the requirement that the offense be proved beyond
a reasonable doubt.” Hicks v.
3. Whether the Panel micro-procedurally upholds
a $59,000 judgment that does not conform to the pleadings and the verdict.
·
It does not conform to the pleadings and the verdict
(RCP Rule 301. Judgments)
Issues Presented in my Appeals Briefs
I will,
however, repeat my [initial appeal] Issues Presented to permit an intelligent
overview of this whole matter:
1. WHETHER THE $59,280.66 JUDGMENT IS UNLAWFUL. It does not conform to the pleadings and the verdict
2. WHETHER DEFENDANT
BIRNBAUM HAD A RIGHT TO
3. WHETHER THE "RICO RELIEF" SUMMARY JUDGMENT IS ALSO UNLAWFUL. I have the Right to show my best defense, claim, and evidence. The Rules of Procedure and the law do not allow a judge to weigh the evidence to grant summary judgment on civil RICO claims.
4. WHETHER THE $62,255.00 "SANCTION" JUDGMENT IS ALSO UNLAWFUL. It is a criminal punishment without due process for having made a civil RICO claim
5. WHETHER THE TRIAL JUDGE SHOULD HAVE BEEN RECUSED FROM THE CASE. For not abiding by statutory law, the Rules of Procedure, and the mandates of the Supreme Court
6. WHETHER THERE WAS FRAUD, FRAUD, AND MORE FRAUD. FRAUD from start to finish, intrinsic and extrinsic, turning into retaliation by official oppression
7. WHETHER DUE PROCESS DEMANDS A NEW TRIAL. I am entitled to appointment of an auditor, enforcement of the rules of discovery, and my best defense, claim, and evidence under civil RICO.
STATEMENT OF FACTS
Re the proceedings in this
The Appeals Court Panel in their Opinion
(A.2) and Judgment (A.1) upheld the trial court in all matters. There was, however, an abundance of blatantly
erroneous findings by the appeals panel, with their opinion of course based
on these erroneous assumptions.
The
panel did not address Constitutional considerations, i.e. that assessing
the $62,000 sanction against me actually violates the Law because it is
punishment for having sought access to the courts (with my "civil
RICO" cross and third party claims).
Neither did the panel address that the
sanction was unconditional, i.e. punitive, requiring full criminal
process, including a finding of "beyond a reasonable doubt".
Also that $59,000 judgment does not
"conform to the pleadings and the verdict." The finding in the Opinion (A.2) that I had
somehow "waived" my right to review of this and other matters was
also based on erroneous findings and conclusions that I had not objected
to the trial judge and allowed him to "correct" his
"errors", as the panel portrays them.
There is also before this
I also show that $62,000 attorney fees for
the entire proceeding is not available under the statutes Judge Banner
quotes (Civ. Prac. Rem. Code Sections 9.000, 10.000, Rule 13, nor the common
law) See my Rule 298 Response (A.128)
for details.
SUMMARY OF THE ARGUMENT
Overview of this Petition
for Rehearing En Banc
The Panel's Opinion is devoid of
Constitutional considerations. It is
"clearly established that filing a lawsuit was constitutionally
protected conduct " Rutan , 497
The Panel
micro-procedurally upholds a patently unlawful $62,000 punitive
sanction for having made a civil RICO (civil racketeering) pleading. Criminal
penalties may not be imposed on someone who has not been afforded the
protections that the Constitution requires of criminal proceedings,
including the requirement that the offense be proved beyond a reasonable
doubt.” Hicks v.
The Panel micro-procedurally upholds a
$59,000 judgment that does not conform to the pleadings and the verdict.
The Panel's Opinion is so full of erroneous
"facts" as to raise the issue as to whether this Opinion was indeed
the product of three independent judicial determinations, or the result
of a single whitewash.
With such said, I present a summary
overview of this Petition by touching on just a few of the most relevant of the
panel's erroneous and constitutionally devoid findings. Details can be found in my Appeals
Briefs and among the comments and footnotes in this Petition:
$62,000 Sanction (A.18)
"Birnbaum's
only complaint about the specificity of the order was made in an untimely
request for findings of fact and conclusions of law filed more than
twenty days after the date of the sanctions order. … Therefore, the trial judge did not have
the opportunity to correct the erroneous order, and error was not preserved.
ERRONEOUS: My Request for Findings (A.27) was
filed Sept. 3, 2002, and WAS within 20 days of the time the Sanction Judgment
was "signed with the clerk"[15]
on Aug. 21, 2002. I also provided the Clerk with my Notice of Past Due Findings
(A.32), to be immediately sent to Judge Banner.
Also Motion to Reconsider the $62,000 Sanction. Also again my Motion
to Produce Findings (A.34) in this
"did not have "opportunity to
correct"? ERRONEOUS
The Panel did find that the $62,000
sanction against me does not meet the requirements[16]
of Rule 13[17].
Then, noting that "Birnbaum has
appeared pro se throughout all proceedings", the Panel rules that I
supposedly "waived"[18]
this point because "Birnbaum's only
complaint about the specificity of the order was made in an untimely request for findings of
fact and conclusions of law filed more than twenty days after the date of the
sanction order".
But my appeals issue on this sanction,
however, reached far beyond Rule 13. This $62,000 sanction is not coercive, but unconditional,
for a completed act (making a "civil RICO" claim TWO years
back), imposed after Final Judgment (A.11), making it purely
punitive.
"The distinction between civil and criminal
contempt has been explained as follows: The purpose of civil contempt is
remedial and coercive
in nature. A judgment of civil contempt exerts the judicial authority of
the court to persuade the contemnor to obey some order of the
court where such obedience will benefit an opposing litigant. Imprisonment is conditional upon obedience
and therefore the civil contemnor carries the keys of (his) prison in
(his) own pocket. In other words, it is civil contempt when one may procure
his release by compliance with the provisions of the order of the court.
Criminal contempt on the other hand
is punitive in nature. The sentence is not conditioned upon some promise
of future performance because the contemnor is being punished for some completed
act which affronted
the dignity and authority of the court." The
Punishment, no matter how
designated, of course requires full criminal process, including a
finding of "beyond a reasonable doubt". This $62,000 sanction is null
and void. Period. It also does not matter how the trial judge got there,
this sanction is unlawful.
"These distinctions lead to the fundamental
proposition that criminal penalties may not be imposed on someone who
has not been afforded the protections that the Constitution requires of criminal proceedings, including the
requirement that the offense be proved beyond
a reasonable doubt.” Pp. 631-635. Hicks v. Feiock, U.S. Supreme Court, 485
U.S. 624 (1988) (emphasis added)
The sanction is also objectively
unreasonable in light of a finding, as caught by the court reporter at the
very end of the sanctions hearing (A.20), that I was "well-intentioned" in making
my civil RICO claim.
Also objectively unreasonable is the trial
judge himself weighing the evidence, that it did not show a RICO
violation. And of course all
civil RICO defendants scream "frivolous". That is why I had asked for
determination by jury.
$59,000 Judgment (A.11)
"nothing preserved for
review on issue whether judgment conformed to pleadings, because
complaint could not be raised for first time on appeal, and without
[complete] reporter's record, no showing was made that appellant received
trial court determination on issue. We
overrule appellant's first issue."
ERRONEOUS. Raised for the first time
on appeal? Over my Objections (A.38), and
then again [hand-written] Objections (A.40) just before submission to the
jury, the trial judge would not submit the proper "due process"
jury questions!
I raised the issue again in my Motion to Reconsider the $59,000
Judgment, that the judgment does not and cannot
"conform to the pleadings and the verdict"
Then I raise the issue again in my Notice
of Past Due Findings (A.32):
"Judge, how did you do this, without a determination of all of
the elements by a jury?"
This judgment (A.11) has no support in the verdict
(A.41). It does not "conform to the
pleadings and the verdict" (RCP Rule 301). Period. It is unlawful.
My appeals issue on this judgment is upon
"due process", i.e. that the wrong questions were put to the jury,
despite my objection. Yes, the judge had a jury sitting there, but he did
not use it.
And this Panel, instead of addressing my
appeals issue (wrong jury questions),
makes a finding on instructions:
"Because Birnbaum filed only
a partial reporter's record … … we are unable to review these
complaints. … … (with only partial reporter's record, court could not determine
whether giving improper jury instructions
was harmful error)"
Appointment of Auditor
"he
[Birnbaum] did not receive a ruling on the motion [to appoint an auditor].
Therefore he did not preserve his
complaint for appeal."
ERRONEOUS. "IT IS FURTHER ORDERED, ADJUDGED and DECREED
that Udo Birnbaum's Motion for Appointment of Auditor is in all things
denied". Pretrial Order (A.95).
ERRONEOUS.
Summary Judgment
"this evidence was not submitted to the trial court."
ERRONEOUS. Judge Banner ruled against ALL of my summary
judgment evidence. Pretrial Order (A.95)
[19].
"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 constitutes a "pattern of racketeering
activity"? Jury issue, of course.
How furthers a scheme "with specific intent to defraud"? Can there be fraud, without
specific intent to defraud?
Fraud
"Therefore, we presume the omitted portions of the record
support the trial court's judgment. … Birnbaum's sixth issue is
overruled."
ERRONEOUS. "Omitted
portions of the record support the judgment"? The judgment is supposed to be
supported by the PLEADINGS and the VERDICT. (the jury made no finding on all the
elements of the pleaded "open account" for "legal
fees", nor of a breach of contract either)
Due Process
"[Birnbaum]
complains of the same rulings addressed in other parts of his brief. The issue
presents nothing for our review."
ERRONEOUS. How about the trial Judge going in and out of
the jury room, even during deliberations? How about surprise [wrong] jury
issues "popped" just before submission to the jury? How about the issue of absurdly excessive
legal fee "damages"? How about
my issue that the sanctions judgment is actually unlawful?
With such said, I will go
directly to the Panel's Opinion (A.2), to highlight the issues that detail the
above, and bear on this Petition for Rehearing En Banc. Complete details are in my Appeals
Briefs, Clerk's Record, and Civil Appendix. Note: All references in this Petition such as "(A.15)" refer to the
Appendix to this Petition.
The pattern below shows:
·
The Appeals Court Panel makes up
some "facts"
·
finds something in a law book
that sounds good
·
but it does not fit.
ARGUMENT
Detail
of Issues raised by the Panel's Opinion
Copied below is each and every
word of the Panel's Opinion (A.2), followed by such issues as bear on this
petition. ("All answers shall be preceded by the question"). My Conclusion
and Prayer is at the end of this Petition.
§
OPINION
Before Justices Whittington,
Wright, and Bridges
Opinion By Justice
Whittington
"Appellant
Udo Birnbaum appeals a jury verdict
and judgment in favor of appellee The Law Offices of G. David Westfall,
P.C ("Law Office"). Birnbaum
also appeals orders on motions for summary judgment, for sanctions, and to recuse the
trial judge, and complains of the trial judge's failure to appoint an
auditor. We affirm."
·
"Birnbaum
appeals a jury verdict and judgment"? I am not appealing on the answers by the
jury[20],
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"? As shown above, this is not an "order"
(to "coerce") at all, but unlawful punishment[21]
for having made a "civil RICO" pleading.
Background
"Law
Office filed a suit on a sworn
account against Birnbaum for legal fees allegedly owed. Birnbaum filed an answer and affidavit denying the
claim. Birnbaum also filed a counterclaim against Law Office and added G. David
Westfall, Christina Westfall, and Stefani Podvin as parties to the lawsuit
("Third Party Defendants"). He alleged violations of the federal
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. (2000 and Supp. 2003) ("RICO") against Third
Party Defendants. Law Office and Third Party Defendants moved for summary
judgment on the claims against them. Third Party Defendants' motions were
granted. Birnbaum filed motions to appoint an auditor and to recuse the trial judge. There
is no order on Birnbaum's motion to appoint an auditor in the clerk's record."
· &nb