TO THIS HONORABLE COURT:

        COMES NOW Udo Birnbaum, having moved 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

        supplementing with these additional points:

8. For not allowing evidence of DTPA "false, misleading, or deceptive act or practice"
9. For absurdly excessive "legal fee" damages
10. For incurable jury argument

      Your Honor ruled against all of my concrete evidence of Plaintiff's violation of the Texas Deceptive Trade Practices Act (DTPA), i.e. his pattern of "false, misleading, or deceptive acts or practices". (This point is in addition to point above, of not allowing my jury issue of all of Westfall's stuff having "no worth" as stated in point 6 above.

      In essence, what I am complaining of, is that not allowing me to show such evidence to the jury deprived me of due process and a fair trial.

        Attorney fees of $41,306.91 for "collecting" on a supposed $18,121.10 unpaid "bill", that the jury found really was not that at all $15,817.60, is absurd. A jury "adjusting" a sworn account is absurd. Who knows how they came up with $15,817.60, but what it really means is that Plaintiff really did not have "systematic records" or honest open accounting.

        This jury's number for "legal fee" damages is absurdly excessive. In essence, what I am complaining of, is that this jury was not adequately instructed in the Texas Deceptive Trade Practices Act. (Also see point 6 above, as to my "no worth" issue, which was the proper instruction as to what constitutes a violation of the DTPA.

        Plaintiff's attorney just made things up as he went along, and especially during closing argument, telling the jury that I had filed numerous suits against judges, when he knew that there had only been one suit against judges, and that was the one Westfall had been prosecuting, and that all of Westfall's "legal fee" stuff had no worth, as indicated in point 6 above.

        In essence, what I am complaining of, is that incurable jury argument deprived me of a fair trial.

WHEREFORE, upon all these points, Birnbaum moves for a new trial.

Respectfully Submitted,

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

This is to certify that a true and correct copy of this document has been served via Regular Mail and FAX on this the _29_ 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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UDO BIRNBAUM