Pojar v. Cifre, No. 13-03-234-CV.

CourtCourt of Appeals of Texas
Writing for the CourtGarza
Citation199 S.W.3d 317
PartiesScott Michael POJAR, Appellant, v. Wendell and Neida CIFRE, as Next Friends of Beatrice Cifre, formerly a Minor Child, Appellees.
Decision Date23 February 2006
Docket NumberNo. 13-03-234-CV.
199 S.W.3d 317
Scott Michael POJAR, Appellant,
v.
Wendell and Neida CIFRE, as Next Friends of Beatrice Cifre, formerly a Minor Child, Appellees.
No. 13-03-234-CV.
Court of Appeals of Texas, Corpus Christi-Edinburg.
February 23, 2006.

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Christopher Dove, Locke, Liddell & Sapp, S. Shawn Stephens, Baker & Hostetler, Houston, for appellant.

Maria Teresa Arguindegui, Law Office of Maria Teresa Arguindegui, Alice Oliver-Parrott, Burrow & Parrott, LLP, Jimmy Williamson, Williamson & Sears, Houston, for Appellees.

Before Justices HINOJOSA, YAÑEZ, and GARZA.

OPINION

Opinion by Justice GARZA.


In this personal-injury case arising from a two-vehicle collision, the Court addresses five main issues: (1) Did the trial court abuse its discretion by giving six peremptory challenges to the plaintiff and only three to each of two antagonistic co-defendants? (2) Is any issue regarding the admission of evidence of marijuana use properly before this Court? (3) Does sufficient evidence support an award for loss of past services if there is no evidence of lost services? (4) Must a trial court disregard a jury's finding of malice as immaterial if the jury does not award exemplary damages? (5) Is evidence that a person used marijuana prior to operating a motor vehicle on a public road and entering an intersection despite a red light, thereby causing a collision with another vehicle, legally or factually insufficient to prove malice if the same person admits that driving under the influence of marijuana is wrong because it is dangerous?

We answer all these questions in the negative. Accordingly, the judgment of the trial court is reversed and rendered in part and affirmed in part. See TEX.R.APP. P. 43.2(a), (c). Specifically, the portion of the judgment awarding $200,000 for loss of past services is reversed and a judgment is rendered awarding zero damages for loss of past services. The judgment is otherwise affirmed.

I. Background

The following facts are undisputed. This case arises from a two-car collision that occurred at the intersection of two farm-to-market roads in Galveston County. The accident occurred just before 2:00 a.m. on the morning of Sunday, December 12, 1999. The occupants of the vehicles were all teenagers.

Scott Michael Pojar was driving one of the cars, which had a total of four occupants. Two of the occupants, Amanda Schaub and Jamie McCaughey, were relatively unharmed by the accident. The other two occupants were seriously hurt.

Scott Pojar was trapped in his vehicle and had to be rescued by the "Jaws of Life." He suffered a lacerated liver and a broken jaw and shoulder. He was taken to the hospital via "Life Flight" helicopter. The damage to Scott Pojar's jaw changed his appearance and prevents him from opening his mouth widely, but he has otherwise recovered.

Beatrice Cifre, the fourth occupant of Scott Pojar's vehicle, was instantly paralyzed during the collision. She was also taken to the hospital via Life Flight helicopter. At trial, there was extensive, undisputed evidence of the serious physical, emotional, and financial difficulties that now face Beatrice Cifre and her family. She is permanently paralyzed from the

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waist down and requires a great deal of care.

Laura Kathleen McCormick was the driver of the second car. She had no passengers in her vehicle, and she escaped the collision with only minor injuries.

Other than the teenagers involved in the accident, the only eyewitness was Charles McCullough. He was traveling in the same direction on the same road as McCormick. McCullough testified that McCormick passed his vehicle and subsequently collided with the vehicle driven by Scott Pojar.

As next friend of Beatrice Cifre, a minor, Wendell Cifre and Neida Cifre sued Scott Pojar, Brenda Pojar (Scott's mother), and Laura McCormick for damages sustained as a result of the accident. The defendants filed cross-claims against each other, alleging that the other driver was the sole cause of the accident. The case was tried to a jury, and the parties presented conflicting evidence about who had the green light at the intersection. Each driver claimed that the other had caused the accident by running a red light. The jury also heard testimony that Scott Pojar and several of his friends had been smoking marijuana before the accident. There was evidence that some of the teenagers, though not Scott Pojar, had also been drinking alcohol. On direct examination by her attorney, Brenda Pojar admitted that she knew Scott Pojar had used marijuana in the past and had broken his promise to stop using it. For his part, Scott Pojar testified that he did not use any marijuana on the night of the accident, though he admitted using marijuana in the past, admitted that he had driven his car after using marijuana in the past, and also admitted that he had a marijuana-related sticker on his car. Testimony from other witnesses was also presented to corroborate Scott Pojar's version of events.

An instructed verdict was granted in favor of Brenda Pojar on the sole claim against her, which was for negligent entrustment. The jury found that Scott Pojar's negligence caused the accident and awarded compensatory damages to Wendell and Neida Cifre and separate compensatory damages to Beatrice Cifre. The jury further found that the harm to Beatrice Cifre resulted from malice, but it did not assess any exemplary damages against Scott Pojar. The trial court entered a judgment on the verdict, and this appeal by Scott Pojar ensued.

II. Allocation of Peremptory Challenges

Scott Pojar's first issue challenges the trial court's allocation of peremptory challenges: six were given to Wendell, Neida, and Beatrice Cifre; three were given to Scott and Brenda Pojar; and three were given to Laura McCormick. The trial court instructed the parties that only counsel for the defendants could work together in exercising the challenges. On appeal, no suggestion has been made that this instruction was violated. As discussed below, we find no abuse of discretion in the trial court's allocation of challenges.

We believe it is important, at the outset, to acknowledge the serious consequences of error related to the allocation of peremptory challenges. Under current case law, such error will usually lead to reversal of the judgment and remand for new trial. See, e.g., Garcia v. Cent. Power & Light Co., 704 S.W.2d 734, 737 (Tex. 1986) ("When the trial is hotly contested and the evidence sharply conflicting, the error results in a materially unfair trial without showing more."). But this was not always so. At one point in time, such errors were very rarely grounds for reversal. See Tamburello v. Welch, 392 S.W.2d

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114, 116 (Tex.1965) ("Even before the adoption of the Rules of Civil Procedure, a refusal to allow the proper number of peremptory challenges was [often] regarded as immaterial. . . ."). Later, errors in the allocation of peremptory challenges became more common, though still somewhat difficult, bases for new trial. See Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 920-21 (Tex.1979) (noting that the traditional harmless-error rule had been relaxed as to error regarding peremptory challenges). Presently, a finding of such error spells certain doom for the judgment on appeal.1

Although the law thus appears to have changed over the years, at least one thing has remained constant: the elimination of any unfair advantage is one of the most fundamental tenets guiding the trial courts in allocating peremptory challenges. See TEX.R. CIV. P. 233. What has changed, and what we must continually grapple with as an appellate court, is what actually amounts to an unfair advantage in the allocation of peremptory challenges and what degree of harm must be shown to justify a new trial. See id.; TEX.R.APP. P. 44.1(a). In explaining today's decision, we emphasize that, regardless of what degree of harm must be shown to justify a new trial, the complaining party must always bear the initial burden of showing actual error. Considerations of fairness remain an integral part of today's jurisprudence, and we decide today's case by considering whether the trial court's allocation of peremptory challenges produced an unfair advantage, an approach which is consistent with supreme court precedent. Because we find no abuse of discretion, we do not reach any issues of harm.

A. Controlling Authority

We begin with an overview of controlling authority. The starting point of our analysis is rule 233: "Each party to a civil action is entitled to six peremptory challenges in a civil case tried in district court. . . ." TEX.R. CIV. P. 233. The number of challenges may be different if a lawsuit involves multiple litigants on the same side of the docket. Garcia, 704 S.W.2d at 736. In such cases, the trial court must determine whether any of the litigants on the same side of the docket are antagonistic with respect to an issue of fact that the jury will decide. TEX.R. CIV. P. 233; Garcia, 704 S.W.2d at 736. If no antagonism exists, each side must receive the same number of challenges. Garcia, 704 S.W.2d at 736. This means, for instance, that if the total number of challenges were 12, six would go to the plaintiffs' side and six would go to the defendants' side. See id. In contrast, if the trial court determines that antagonism exists, it has discretion, "upon motion of any litigant made prior to the exercise of peremptory challenges," to "equalize" the number challenges "so that no litigant or side is given an unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges to each litigant or side." TEX.R. CIV. P. 233.

On appeal, the reviewing court must first conduct a de novo review to determine whether any antagonism existed between any litigants on the same...

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17 practice notes
  • Intercontinental Group v. Kb Home Lone Star, No. 13-06-617-CV.
    • United States
    • Court of Appeals of Texas
    • August 23, 2007
    ...past by explaining that "where the jury finds no damages, findings on issues of liability are immaterial and harmless." Pojar v. Cifre, 199 S.W.3d 317, 348 (Tex.App.-Corpus Christi 2006, pet. denied) (upholding a jury finding of malice even though the jury, by refusing to award exemplary da......
  • Sanchez v. Balderrama, No. 08–15–00088–CV
    • United States
    • Court of Appeals of Texas
    • February 8, 2017
    ...character." Varel Mfg. Co. v. Acetylene Oxygen Co. , 990 S.W.2d 486, 499 (Tex.App.–Corpus Christi 1999, no pet.) ; Pojar v. Cifre , 199 S.W.3d 317, 336–37 (Tex.App.–Corpus Christi 2006, pet. denied) ("A party on appeal may not object to the admission of incompetent evidence that he offered ......
  • Moore v. Altra Energy Technologies Inc., No. 14-08-00362-CV.
    • United States
    • Court of Appeals of Texas
    • August 10, 2010
    ...‘sharply conflicting,’ rather than on the extent to which an unfair advantage was actually created by the allocation of challenges.” 199 S.W.3d 317, 332 (Tex.App.-Corpus Christi 2006, pet. denied). In Pojar, the court noted it is hard to imagine a jury trial that is not “ ‘hotly contested’ ......
  • Skyline Commercial, Inc. v. Isc Acquisition Corp., No. 05-17-00028-CV
    • United States
    • Court of Appeals of Texas
    • June 22, 2018
    ...each instead. That two co-defendants are antagonistic does not require that each receive six peremptory challenges. Pojar v. Cifre, 199 S.W.3d 317, 330 (Tex. App.—Corpus Christi 2006, pet. denied). The trial court has discretion to assign the number of challenges to promote the ends of just......
  • Request a trial to view additional results
17 cases
  • Intercontinental Group v. Kb Home Lone Star, No. 13-06-617-CV.
    • United States
    • Court of Appeals of Texas
    • August 23, 2007
    ...past by explaining that "where the jury finds no damages, findings on issues of liability are immaterial and harmless." Pojar v. Cifre, 199 S.W.3d 317, 348 (Tex.App.-Corpus Christi 2006, pet. denied) (upholding a jury finding of malice even though the jury, by refusing to award exemplary da......
  • Sanchez v. Balderrama, No. 08–15–00088–CV
    • United States
    • Court of Appeals of Texas
    • February 8, 2017
    ...character." Varel Mfg. Co. v. Acetylene Oxygen Co. , 990 S.W.2d 486, 499 (Tex.App.–Corpus Christi 1999, no pet.) ; Pojar v. Cifre , 199 S.W.3d 317, 336–37 (Tex.App.–Corpus Christi 2006, pet. denied) ("A party on appeal may not object to the admission of incompetent evidence that he offered ......
  • Moore v. Altra Energy Technologies Inc., No. 14-08-00362-CV.
    • United States
    • Court of Appeals of Texas
    • August 10, 2010
    ...‘sharply conflicting,’ rather than on the extent to which an unfair advantage was actually created by the allocation of challenges.” 199 S.W.3d 317, 332 (Tex.App.-Corpus Christi 2006, pet. denied). In Pojar, the court noted it is hard to imagine a jury trial that is not “ ‘hotly contested’ ......
  • Skyline Commercial, Inc. v. Isc Acquisition Corp., No. 05-17-00028-CV
    • United States
    • Court of Appeals of Texas
    • June 22, 2018
    ...each instead. That two co-defendants are antagonistic does not require that each receive six peremptory challenges. Pojar v. Cifre, 199 S.W.3d 317, 330 (Tex. App.—Corpus Christi 2006, pet. denied). The trial court has discretion to assign the number of challenges to promote the ends of just......
  • Request a trial to view additional results

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