Ali R. Ondemir v. Paul A. Boskind, et al.--Appeal from 37th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00592-CV
Ali R. ONDEMIR,
Appellant
v.
Paul A. BOSKIND,
Appellee
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CI-02102
Honorable David A. Berchelmann, Jr., Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: March 19, 2003

AFFIRMED

In nineteen points of error, appellant Ali R. Ondemir appeals the jury's verdict resulting in a take-nothing judgment on his claims against appellee, Paul A. Boskind. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion. See Tex. R. App. P. 47.4.

1. Ondemir's issues A1 through A7 and B1 through B6 are statements of facts that he believes were proved at the trial. (1) We interpret these statements as issues challenging the factual sufficiency of the evidence to support the jury's verdict. The jury found that Boskind did not violate the provisions of the Texas Deceptive Trade Practices-Consumer Protection Act in his sale of a 1986 Cadillac to Ondemir. Where, as here, the jury is given conflicting evidence, it may choose to believe one witness and disbelieve others. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); Peterson v. Reyna, 908 S.W.2d 472, 476 (Tex. App.-San Antonio 1995, writ granted), aff'd as modified by 920 S.W.2d 288 (Tex. 1996). Having examined all the evidence, we hold the evidence is not so weak nor the jury's finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Southwest Tex. Coors, Inc. v. Morales, 948 S.W.2d 948, 950 (Tex. App.-San Antonio 1997, no writ). We overrule issues A1 through A7 and B1 through B6.

2. In issues A8 and C1, Ondemir complains of the trial court's limitation on pretrial discovery. The clerk's record contains three orders to compel discovery granted by the trial court. Ondemir does not explain what other discovery he believes should have been allowed nor does he cite to the record identifying any order denying a request for discovery. Accordingly, Ondemir has waived issues A8 and C1. See Tex. R. App. P. 33.1(a), 38.1.

3. In issue C2, Ondemir complains the trial court did not allow questioning on voir dire. No reporter's record was made of the voir dire. Ondemir made no objection to the procedure on the record. Issue C2 is waived. See Tex. R. App. P. 33.1(a); Lauderdale v. Ins. Co. of N. Am., 527 S.W.2d 841, 843-44 (Tex. Civ. App.-Fort Worth 1975, writ ref'd n.r.e.) (reporter's record is necessary to preserve errors in jury selection).

4. Issue C3 complains the trial court improperly limited Ondemir's direct examination of Boskind as to the value of the vehicle involved. Ondemir was allowed to ask numerous questions on this issue. Boskind ultimately answered that he did not remember the amount but would agree to the amount that was listed on the inventory sheet. The trial court did not abuse its discretion in limiting further repetitive questioning on the subject. See Sims v. Brackett, 885 S.W.2d 450, 452-53 (Tex. App.-Corpus Christi 1994, writ denied) (court may limit cumulative testimony). We overrule issue C3.

5. Issue C4 complains of the trial court's denial of Ondemir's motion for new trial on the basis of newly discovered evidence of the value of the car. Ondemir failed to show why he could not have obtained this information prior to trial, even without actually selling the vehicle. The trial court did not abuse its discretion by denying the motion for new trial without a hearing. See Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983) (new trial not warranted where no diligence in procuring new evidence was shown); Medlock v. Comm'n for Lawyer Discipline, 24 S.W.3d 865, 871 (Tex. App.-Texarkana 2000, no pet.) (movant must prove new evidence could not have been obtained before trial). We overrule issue C4.

Having overruled all Ondemir's issues, we affirm the judgment of the trial court.

Paul W. Green, Justice

Publish

1. Ondemir's issues are grouped in three categories, A, B, and C, and numbered within those categories.