No. 05-02-01683-CV
§
In the Court of Appeals
Fifth District of
UDO BIRNBAUM
Defendant, Counter-claimant,
Third Party Plaintiff - Appellant
v.
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
------------------------------
APPELLANT'S REPLY BRIEF
------------------------------
OTHER
SEPARATE DOCUMENTS:
Civil Appendix is bound separately UDO BIRNBAUM
Trial Closing Argument (transcription) PRO SE
"Frivolous Lawsuit" Sanction Hearing 540 VZ CR 2916
(see Index page 4)
(903) 479-3929
Appellant
Birnbaum petitions for ORAL ARGUMENT to detail
the abuse of the
judicial system upon him as shown within
IDENTITY OF
PARTIES AND COUNSEL
The Law Offices of G. David Westfall, P.C. Frank C. Fleming[1]
Plaintiff, Counter-defendant PMB 305,
(214)
373-1234
(214)
373-3232 (fax)
Udo
Birnbaum Udo
Birnbaum, pro se
Defendant, Counter-claimant, 540 VZ 2916
Third party plaintiff
(903) 479-3929
(903) 479-3929 fax
G.
David Westfall[2] Frank
C. Fleming
Third party defendant
Stefani
Podvin[3] Frank
C. Fleming
Third party defendant
Christina
Westfall[4] Frank
C. Fleming
Third party defendant
Hon.
Paul Banner[5]
Trial
Judge
TABLE OF
CONTENTS
(a)
Identity of Parties and Counsel ……………………………………………… 2
(b)
Table of Contents …………………………………….……………………… 3
(c)
Index of Authorities …………………………….…………………………… 5
(d)
Statement of the Case
(in response to Appellees' Brief)
……………………. 6
For reference only. Issues that were in
original Appellant's Brief:
The nature of the case
Course of proceedings
The trial court's
disposition of the Case
(e)
Issues Presented (NOTE: Appellee's released lots of RABBITS [6]
) ….…….
8
1. WHETHER the
$59,280.66 judgment is unlawful
2. WHETHER defendant
Birnbaum had a right to a court-appointed Auditor
3. WHETHER the
"RICO relief" summary judgment is also unlawful
4. WHETHER the
$62,255.00 "sanction" judgment is also unlawful
5. WHETHER the
trial judge should have been recused from the case
6. WHETHER
there was fraud, fraud, and more fraud
7. WHETHER due
process demands a new trial
8. RULE 296 PRECLUDES FINDINGS OF FACT AND CONCLUSIONS OF LAW IN A
JURY TRIAL (NEW APPELLEE'S ISSUE)
(f)
Statement of Facts (in response to Appellees' Brief) ……………………… 9
For reference only. Issues that were in
original Appellant's Brief:
Westfall ("The Law
Office") had no case!
Westfall's "legal
services had NO WORTH because of judicial immunity
Auditor under RCP Rule 172
was never appointed
Obstruction of discovery
Unlawful summary
judgment
Fraud in submission of jury
issues
The trial
Sanction judgment
Post judgments motions in
the trial court
(g)
Summary of the REPLY Argument ……………………………..……….. 13
APPELLEES WANT THIS COURT TO BELIEVE THAT "BIRNBAUM NOW SEEKS REVERSAL BASED UPON
A LACK OF EVIDENCE ARGUMENT", AND THAT BY PROVIDING ONLY A PARTIAL
REPORTER'S RECORD, "BIRNBAUM HAS WAIVED ANY AND ALL ISSUES
PRESENTED ON APPEAL."
APPELLANT
BIRNBAUM IS NOT APPEALING ON A "LACK
OF EVIDENCE ARGUMENT", BUT ON DUE
PROCESS AND LAWLESSNESS
ISSUES.
IF AN
AMERICAN CAN BE DEPRIVED OF HIS RIGHT TO APPEAL UPON THE ISSUE OF
HAVING BEEN ROBBED OF HIS RIGHT TO DUE PROCESS AND TO BE FREE FROM
LAWLESSNESS IN A COURT OF LAW, SIMPLY BECAUSE HE ONLY FILED A "PARTIAL REPORTER'S RECORD",
GOD HELP US ALL.
(h)
Argument (Reply. See footnote 6 on "RABBITS" ) ……………….……..
15
1. The
$59,280.66 judgment is unlawful …………………….……………. 15
2. Defendant
Birnbaum had a statutory Right to a court-appointed Auditor
.. 17
3. The
"RICO Relief" summary judgment is also unlawful ……………….. 19
4. The
$62,255.00 "sanction" judgment is also unlawful ………………….. 20
5. The trial
judge should have been recused from the case ……………...… 23
6. Fraud,
fraud, and more fraud
……………………………………………. 24
7. Due process
demands a new trial ……………………...………………... 25
8. Rule 296 precludes findings of fact and
conclusions of law in a jury trial 28
Conclusions
…………………………………………..…………………. 29
(i)
Prayer ……………………………………………………………………….. 31
The trial judge's last words in the case ………………………………….. 33
(j)
Civil Appendix (separately bound document)
OTHER SEPARATE DOCUMENTS
CLOSING ARGUMENTS from the jury trial of
D. Keith Johnson, RDR, CRR (provided directly to this
EXCERPT
FROM [SANCTION] HEARING held
Barbara J. Roberson (provided directly
to this
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 ………………………………….……….. 20
Milligan v. R&S
Mechanical,
NO.
05-87-01341-CV,
Court of Appeals, Fifth District of Texas,
Rotella v. Wood et al., 528
United Mine Workers v.
Bagwell,
512
..
Villiers v. Republic
Financial Services, Inc., 602
S.W.2d 566, etc. ……….….. 18
Westfall Family Farms, Inc.
v. King Ranch, Inc.,
852 S.W.2d 587 (1993) ………………………………..…………..…….. 21
Wilcox Development Co. v. First Interstate Bank of
N.A., D.C.Or.1983, 97 F.R.D. 440 …………………………….…..……. 20
18
U.S.C. § 1964(c) ("civil
RICO") ………… See Appellant's
Brief
STATEMENT 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.
Birnbaum stands by the
"Statement of the case" in his Appellant's Brief. In reply to Frank C. Fleming's "Statement of Facts",
Birnbaum shows the following:
Frank Fleming claims that "Birnbaum filed a counterclaim against the Law Office and
third-party claims against G. David Westfall ("D. Westfall"),
Christina Westfall ("C. Westfall"), and Stefani Podvin
("Podvin"), for fraud and violation of the federal civil RICO law,
among other allegations. (Appellees'
page 8 line 4)
NOT TRUE. Birnbaum made the following claims: (
·
Law Office:
·
D. Westfall:
·
D. Westfall, C. Westfall,
and Podvin
("The Westfalls"): CROSS and third party claims under civil RICO. (same
"enterprise", "scheme", etc. but different damages. Holding them responsible for
the "Law Office".)
See
Appellant's Brief page 6 for details).
Frank Fleming states "Christina Westfall was David Westfall's wife. Stefani Podvin was
David Westfall's daughter"
MISLEADING AND
NOT THE WHOLE TRUTH:
·
C. Westfall was D. Westfall's longtime
bookkeeper at the "Law Office"
·
Podvin was D. Westfall's attorney
daughter, OWNER of the Law Office, and as such had appointed D. Westfall
TEN YEARS IN A ROW, as the ONLY OFFICER ("director") of the "Law
Office".
My civil RICO claim alleged that C. Westfall and
Podving were FACILITATORS ("principals") to the "pattern of
racketeering activity"
See Appellant's Brief as to how to find my pleadings
and evidence, particularly my summary judgment Appendix (CR 213-228). Also see
Clerk's Record 282-316
and the Affidavits therein. Also D. Westfall having been
sanctioned by federal judge Jorge Solis for abuse of the judicial system. (CR 300-306)
Fleming states "A
jury ruled in favor of the Law Firm and against Birnbaum for unpaid
legal fees" (Appellees' page 8 line 11)
NOT
TRUE. The jury ruled on "damages" for "failure to abide" by
an "agreement". See the issues in these briefs.
Fleming
states "Following the trial, D.
Westfall, C. Westfall, and Podvin filed Motions for Sanctions against Birnbaum
for frivolous lawsuit in Birnbaum's counter-claim. Sanctions were awarded to
both C. Westfall and to Podvin."
MISLEADING
AND INCOMPLETE: D. Westfall, C.
Westfall, and Podvin had long ago
been removed from the case by
summary judgment. See the issues in these briefs. Also, the
"American Rule" does not allow for attorney fees for having been
granted "summary judgment".
Trial Court disposition:
Apparently
Appellees are at this time trying to make Judge Banner make findings of facts and conclusions of law
regarding the $62,255.00 "frivolous lawsuit" sanctions against me. See footnote 4, Appellees' page 25.
However
there is nothing filed in the court that I know of, and I certainly have not
been served with any documents to that effect.
ISSUES
PRESENTED
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