Appeals Issues

www.OpenJustice.US

Note: Click on any of the (145) [superscript] footnotes. Then click on the [footnote] number to go back. PICTURE of file near end of Brief, just before the footnotes.

No. 05-02-01683-CV

In the Court of Appeals

Fifth District of Texas at Dallas

UDO BIRNBAUM

Defendant, Counter-claimant, Third Party Plaintiff - Appellant

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 294^th Judicial

District Court of Van Zandt County, Texas

The Honorable Paul Banner, by assignment

Trial cause no. 00-00619

------------------------------

BRIEF FOR APPELLANT

(Civil Appendix is bound separately)

------------------------------

OTHER SEPARATE DOCUMENTS

· CLOSING ARGUMENTS from the jury trial of April 11, 2002

D. Keith Johnson, RDR, CRR (provided directly to this Appeals Court)

· EXCERPT FROM [SANCTION] HEARING held 7-30-02

Barbara J. Roberson (provided directly to this Appeals Court)

· CLERK'S RECORD (Volume 1 and Volume 2)

INDEX OF AUTHORITIES

Estee Lauder, Inc. v. Harco Graphics, Inc.,

D.C.N.Y.1983, 558 F.Supp.83 …………………………………………….. 3

Lode v. Leonardo, D.C.Ill.1982, 557 F.Supp. 675 ………………………..… 30

Milligan v. R&S Mechanical, NO. 05-87-01341-CV,

Court of Appeals, Fifth District of Texas, Aug. 11, 1998 ……………….. 26

Rotella v. Wood et al., 528 U.S. 549 (2000) ……………………………… 7, 25

Team Central, Inc. v. Teamco, Inc., 271 N.W.2d 914,

920 (Iowa 1978) ……………………………………………..…………… 27

United Mine Workers v. Bagwell, 512 U.S. 821 (1994) ……………….…….. 31

Westfall Family Farms, Inc. v. King Ranch, Inc.,

852 S.W.2d 587 (1993) ………………………………..………….. 17, 23, 24

Wilcox Development Co. v. First Interstate Bank of Oregon,

N.A., D.C.Or.1983, 97 F.R.D. 440 …………………………….………….. 30

Texas Court of Criminal Appeals, No. 73,986 (June 5, 2002) ………...……… 32

RCP Rule 13. Sanctions ………………………………………...………… 33

RCP Rule 172. Audit (appointment of auditor) …………….…………. 28, 38

RCP Rule 185. Suit on Account ………………………..………………….. 37

RCP Rule 276 Refusal or Modification (of requested jury issues) …… 22, 39

RCP Rule 301. Judgment ……………………………………….……... 21, 27

18 U.S.C. § 1964(c) ("civil RICO") ………………………….…………. 6, 30

STATEMENT OF THE CASE

The nature of the Case

A pattern of flagrant abuse of the judicial system

Introductory Note: This is really a very simple case once one recognizes the pattern of FRAUD from start to finish, intrinsic and extrinsic, turning into retaliation by official oppression and unlawful judgments against pro se Birnbaum for having made a civil racketeering ("civil RICO") defense against a fraudulent suit by lawyers.

PLAINTIFF The Law Offices of G. David Westfall, P.C. ("Law Office") claimed an UNPAID OPEN ACCOUNT[7] for "legal services" in the amount of $18,121.10 and pleaded no other cause of action[8].

DEFENDANT Udo Birnbaum ("Birnbaum") answered [9] by denying such alleged "open account" under oath, asserted defenses of FRAUD, counter-claimed under the Texas Deceptive Trade Practices Act (DTPA), and made cross and third party claims[10] 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. Birnbaum also moved for APPOINTMENT OF AN AUDITOR per RCP Rule 172 to investigate and report on the alleged OPEN ACCOUNT [11] to show that there existed no open account at all, nor systematic records, etc. as claimed, but only a $20,000 prepaid non-refundable retainer paid to lawyer G. David Westfall.[12]

THE U.S. SUPREME COURT established a "Congressional objective [in enacting civil RICO with treble damages] of encouraging civil litigation not merely to compensate victims but also to turn them into private attorneys general, supplementing Government efforts by undertaking litigation in the public good". Rotella v. Wood et al., 528 U.S. 549 (2000)

THE TRIAL COURT, Hon. Paul Banner, stated at his appearance on June 20, 2001, that he had "never seen one [civil RICO case] that had any merit"[13].

At the July 30, 2002 sanctions hearing[14] (after the Apr. 8-11 trial), Judge Banner weighs the evidence (see quote next paragraph), and somehow "finds" that I had no basis in law or in fact to make a civil RICO claim, and unconditionally punishes me $62,255 for having made such civil RICO claim 14 months earlier on Apr. 30, 2001 [15]. In pronouncing sanctions ($62,255.00 [16]) on July 30, 2002, Judge Banner states:

"[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." [17]

DEFENDANT Birnbaum claims that Judge Banner hid the law and the facts [18] from the jury by not abiding by statutory law ("civil RICO"), the rules of procedure (summary judgment rules), and the mandates of the Supreme Court of the United States ("private attorneys general"), and that the $62,255 sanction [19] Judge Banner imposed was not coercive (civil) at all but punitive (criminal sanction), for it was for a completed act (had, was, had, above), and was imposed on him without due (full criminal) process including a finding beyond a reasonable doubt (by a jury)[20].

DEFENDANT Birnbaum claims that he is the victim of retaliation and official oppression[21] for having spoken out via his civil RICO claim on corruption and racketeering, and that Judge Banner should have been recused long ago for not abiding by the law of the land [22]. (Also Issue 5 of this Appeal).

Course of proceedings

The Law Office and each of the Westfalls moved to quash depositions and objected to numerous interrogatory and production requests[23], but never moved to dismiss any of Birnbaum's claims against them[24].

On June 20, 2001, nine (9) months since the suit upon Birnbaum started, visiting judge Paul Banner appeared as the first judge ever in the case, having been assigned on January 26, 2001 by Judge John Ovard of the First Administrative Judicial Region, without any motion for recusal, or order of recusal or referral from 294^th District Judge Tommy Wallace. Hearings had been set for May 9, June 6, and then June 20, 2001, but June 20, 2001 was the first actual hearing in the case[25]. Judge Banner asked the parties if there were any pending motions to dismiss or for summary judgment. There were none, and Judge Banner issued a handwritten scheduling order[26] that ordered depositions of all parties, and set certain deadlines, but made no ruling and issued no order regarding Birnbaum's complaint of obstruction of discovery[27] and Birnbaum's motion for appointment of an auditor per RCP Rule 172 to investigate and report on the state of the claimed account. (Judge Banner NEVER ruled on Birnbaum's motion for appointment of an auditor, he just NEVER appointed one)

On August 17, 2001 all the Westfalls[28] moved for summary judgment[29]. Birnbaum filed separate responses[30] to the four (4) parties, i.e. 1) The Law Office, 2) G. David Westfall, 3) Stefani Podvin, and 4) Christina Westfall, such responses accompanied by the filing of an Appendix consisting of VOLUMES of additional exhibits[31]. Each of Birnbaum's responses designated specific evidence to each and every "issue of fact" in his civil RICO claims (civil RICO has no "elements" of law in the tort sense. Birnbaum used the U.S. Fifth Circuit civil RICO Pattern Jury Instructions as a template, and designated evidence to each jury issue of fact.)[32].

At a hearing on September 7, 2001 Judge Banner granted[33] summary judgment against Birnbaum's civil RICO claims, but still did not rule on Birnbaum's long-standing motion to appoint an auditor[34] per RCP Rule 172 to investigate the state of the account. (Judge Banner NEVER ruled on Birnbaum's motion for an auditor)

On September 10, 2001 Birnbaum moved for recusal[35] of Judge Banner, such hearing being held before Judge Chapman on November 1, 2001, who denied such motion.[36] (See docket sheet)

On November 7, 2001 Birnbaum submitted a petition for writ of mandamus[37] to make Judge Banner appoint an auditor, and to let Birnbaum show his civil RICO defense and claims. Such petition was denied on November 9, 2001.

No notice of any kind regarding the long ago set trial[38] for Monday, Nov. 12, 2001 was received, and no request issued for the parties' jury issues and instructions[39]. Indeed the Courthouse was closed[40].

So on Tuesday, Nov. 13, 2001, I went to the courthouse and asked Betty Davis, then Court Administrator, if anything was to be heard that day for my case. Betty said that she was "out" of my case, but that nothing civil was scheduled for the day[41], so I started going home. It was then that I saw Judge Paul Banner coming up the stairs and I followed him into the courtroom.