Scott Pojar v. Wendell and Neida Cifre, as next friend of Beatrice Cifre, A Minor--Appeal from 56th District Court of Galveston County

 NUMBER 13-03-00234-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

SCOTT MICHAEL POJAR, Appellant,

v.

WENDELL AND NEIDA CIFRE, AS

NEXT FRIENDS OF BEATRICE CIFRE,

FORMERLY A MINOR CHILD, Appellees.

 On appeal from the 56th District Court of Galveston County, Texas.

 DISSENTING OPINION

 Before Justices Hinojosa, Ya ez, and Garza

Dissenting Opinion by Justice Hinojosa

I respectfully dissent. I disagree with the majority=s holding that appellant, Scott Michael Pojar, failed to preserve any issue regarding the equalization of peremptory challenges and, if the issue was preserved, the trial court did not abuse its discretion in the allocation of peremptory challenges.

A. Issue Preservation

The majority does not dispute the timeliness of Pojar=s objection to the allocation of peremptory challenges. Rather the majority relies on the requirement set forth in rule 33.1 of the Texas Rules of Appellate Procedure that the grounds be made with Asufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context@ in determining that Pojar failed to preserve any issue regarding equalization of peremptory challenges. See Tex. R. App. P. 33.1. Although Pojar filed a AMotion for Equalization of Peremptory Strikes,@ the majority concludes that because Pojar requested an equal number of strikes as the plaintiff and co-defendant combined, he actually requested a realignment of sides rather than equalization of peremptory challenges, thereby raising a different issue on appeal than what was argued to the trial court. I disagree.

The paragraph entitled AMotion to Equalize@ of rule 233 of the Texas Rules of Civil Procedure provides:

In multiple party cases, upon motion of any litigant made prior to the exercise of peremptory challenges, it shall be the duty of the trial judge to equalize the number of peremptory challenges so that no litigant or side is given unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges to each litigant or side. In determining how the challenges should be allocated the court shall consider any matter brought to the attention of the trial judge concerning the ends of justice and the elimination of an unfair advantage.

Tex. R. Civ. P. 233.

Pojar=s AMotion for Equalization of Peremptory Strikes@ specifically states as follows:

I.

Defendants move for equalization of peremptory strikes in accordance with Texas Rule of Civil Procedure 233. Equalization is appropriate in this case to prevent the Plaintiff from obtaining an unfair advantage in jury selection. It is clear from the conduct of the parties that no antagonism exists between the Plaintiffs and the Defendant LAURA McCORMICK. Accordingly, equalization is appropriate to prevent the Plaintiffs and McCORMICK, antagonistic only on matters of damages, but united in opposition to the POJAR Defendants, from having the ability to select the jury.

II.

It is clear from the conduct of the parties that the Plaintiffs and McCORMICK are united in their goal of establishing liability solely upon the POJAR=s [sic]. Plaintiffs= counsel opposed the admissibility of evidence that LAURA McCORMICK smelled of alcohol following the accident. Plaintiffs= expert has concluded that SCOTT POJAR was solely responsible for the accident. Not surprisingly, McCORMICK=s expert holds similar opinions. It is obvious that there is a common interest between the Plaintiffs and Defendant McCORMICK. The reason for the alignment of these parties is obvious: McCORMICK has minimal insurance coverage. Thus, this alignment is not based on what the facts have revealed, but who has the deeper pockets.

III.

The equalization of peremptory challenges is to be done to meet the ends of justice and to eliminate an unfair advantage. Tex.R.Civ.P. 233. The basis for equalization can be made from a determination of the interests of the parties disclosed through pretrial proceedings or other information specifically called to the attention of the court. Perkins v. Freeman, 518 S.W.2d 532, 534 (Tex. 1974). As mentioned above, the common themes and goals between the Plaintiffs and McCORMICK have been demonstrated by their counsel throughout discovery and during pretrial matters.

IV.

The Court recently ruled that the Plaintiffs would receive six peremptory challenges; and that each Defendant would receive three peremptory challenges. The realistic result will be that the Plaintiffs and McCORMICK will have access to nine peremptory strikes as opposed to three for the POJAR=s [sic]. Many cases have held such a situation to constitute reversible error. Tamburello v. Welch, 392 S.W.2d 114 (Tex. 1965); Council v. Bankers Commercial Life Ins. Co., 558 S.W.2d 487, 489 (Tex.App.BBeaumont 1977, writ ref=d n.r.e.); and Diamond Shamrock Corp. v. Wendt, 718 S.W.2d 766, 770 (Tex.App.BCorpus Christi 1986, writ ref=d n.r.e.). Those cases demonstrate the need for equalization of peremptory strikes in situations such as the one present in this case.

V.

The POJAR=s [sic] request that the Court grant them an equal amount of peremptory strikes as those to be exercised by the Plaintiffs and McCORMICK, combined. For illustration, the court in Williams v. Texas City Refining, Inc., 617 S.W.2d 823 (Tex.App.BHouston [14th Dist.]1981, writ ref=d n.r.e.), granted a plaintiff six strikes, the target defendant seven strikes, and a third-party defendant closely aligned with the plaintiff one strike. Accordingly, the POJAR=s [sic] request a similar allotment in this case to meet the ends of justice.

WHEREFORE, PREMISES CONSIDERED, the POJAR=s [sic] pray that their Motion for Equalization of Peremptory Strikes be GRANTED; that the POJAR=s [sic] receive an allotment of peremptory strikes equal to those of the Plaintiffs and McCORMICK, combined; and for such other relief to which the POJAR=s [sic] may show themselves to be justly entitled.

Pojar specifically asked the trial court to Aequalize@ the peremptory challenges, explaining that, if there was not an equalization, he would be at an unfair disadvantage. Furthermore, he specifically tracked the language of the pertinent paragraph of rule 233 pertaining to equalization, and he cited several cases that considered the issue of equalization. Also, during arguments to the trial court on the motion both before and after voir dire examination, Pojar and the trial court made references to the equalization of peremptory challenges, both specifically and generally.

Because I conclude that Pojar presented his objection to the allocation of peremptory strikes with sufficient specificity to make the trial court aware of his complaint, I would hold that Pojar=s issue regarding the equalization of peremptory challenges was properly before this Court. See Tex. R. App. P. 33.1.

B. Equalization of Peremptory Challenges

The threshold question to be answered in allocating strikes when multiple litigants are involved on one side of a lawsuit is whether any of those litigants on the same side are antagonistic with respect to a question that the jury will decide. Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 918 (Tex. 1979). If, after aligning the parties, the court determines that antagonism exists between parties on the same side, the court must adjust the number of peremptory challenges awarded to each litigant or side so that no litigant or side is given unfair advantage. See Tex. R. Civ. P. 233; King v. Maldonado, 552 S.W.2d 940, 943-45 (Tex. App.BCorpus Christi 1977, writ ref=d n.r.e). When antagonistic parties on the same side are required to share six strikes, it is error amounting to a violation of the basic right to trial by jury. Dunn, 592 S.W.2d at 918.

The majority concludes that by acknowledging that the attorneys for Cifre and McCormick were Aacting chummy,@ the trial court found that Pojar and McCormick were antagonistic toward one another, and, in an effort to remedy this antagonism, the trial court properly allocated peremptory challenges by giving six challenges to Cifre, three to Pojar, and three to McCormick. However, the record shows that the trial court refused to find antagonism, and because there was no finding of antagonism, the trial court did not appropriately adjust the peremptory challenges.

Prior to voir dire examination, counsel for Pojar informed the trial court that the issue of antagonism between the defendants and allocation of peremptory challenges needed to be addressed prior to the exercise of peremptory challenges. Counsel stated that he had good case law to support his position that equalization was required. The trial court responded, A. . . it is clear they [Cifre and McCormick] are not mad at each other, but what do we have that=s objective. . . . If your client [Pojar] is a target only because there might be more money available, I don=t think that=s a way to allocate, you know B if there is no deal that=s been made between them then I think my hands are tied.@

Following voir dire examination and prior to the exercise of peremptory challenges, the issue of antagonism and equalization was addressed. The trial court asked counsel for Pojar if, in the absence of any kind of deal between Cifre and McCormick, she was supposed to decide they were Achummy.@ When asked by the trial court if there was case law that ever placed a defendant with the plaintiffs in the absence of a signed agreement, counsel for Pojar referred to several cases including Diamond Shamrock Corp. v. Wendt, 718 S.W.2d 766 (Tex. App.BCorpus Christi 1986, writ ref=d n.r.e). The trial court then stated, AI will take judicial notice they are acting chummy, but I don=t think that gets us there. I don=t think that=s the law.@

I conclude the trial court erroneously believed that absent a signed agreement or settlement between Cifre and McCormick, she could not find antagonism and equalize peremptory challenges. In Wendt, we found antagonism existed between the defendants, although there was no settlement or signed agreement, and held that the trial court erred in failing to properly allocate the peremptory challenges. Id. at 769-70. Because the trial court concluded her Ahands were tied,@ she declined to find antagonism between Pojar and McCormick and denied Pojar=s motion for equalization. By denying Pojar=s motion, the trial court required Pojar and McCormick, antagonistic defendants on the same side of the docket, to share six challenges, which constitutes error amounting to a violation of the basic right to trial by jury. See Dunn, 592 S.W.2d at 918.

Once it is determined that the trial court committed error in allocating peremptory challenges, the next step is to determine if the error resulted in a trial that was materially unfair, thus requiring reversal. Lopez v. Foremost Paving, Inc., 709 S.W.2d 643, 644 (Tex. 1986); Garcia v. Central Power & Light Co., 704 S.W.2d 734, 737 (Tex. 1986); Dunn, 592 S.W.2d at 920. Whether any such error resulted in a materially unfair trial must be decided from an examination of the entire record. Lopez, 709 S.W.2d at 644;Garcia, 704 S.W.2d at 737; Dunn, 592 S.W.2d at 920. When the trial is hotly contested and the evidence sharply conflicting, the error results in a materially unfair trial without showing more. Lopez, 709 S.W.2d at 644; Garcia, 704 S.W.2d at 737; Dunn, 592 S.W.2d at 920.

Cifre has not denied that the trial in this matter was hotly contested. In fact, during his opening statement at trial, Cifre=s attorney explained that Aa lot of evidence . . . is hotly contested.@ The parties disagreed over almost every piece of evidence relevant to liability, including which defendant had the green light when entering the intersection; a disinterested witness=s testimony regarding where McCormick passed him the night of the accident and whether he was a reliable judge of distance; and evidence of drug and alcohol usage, which the trial court itself described as Ahotly contested.@ The final jury verdict of ten-to-two is further evidence of a hotly contested trial. See Garcia, 704 S.W.2d at 737; Dunn, 592 S.W.2d at 921; Van Allen v. Blackledge, 35 S.W.3d 61, 66 (Tex. App.BHouston [14th Dist.] 2000, pet. denied).

After reviewing the record in its entirety, I conclude that this was a hotly contested trial with sharply conflicting evidence, and the trial court=s error in denying Pojar=s motion to equalize peremptory challenges resulted in a materially unfair trial. I would (1) sustain Pojar=s first issue, (2) reverse the judgment of the trial court, and (3) remand the case to the trial court for a new trial. Therefore, I respectfully dissent.

FEDERICO G. HINOJOSA

Justice

Dissenting Opinion delivered

and filed this the 23rd day of February, 2006.