Preview
FILED
8/4/2022 4:13 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY
CAUSE NO. DC-18-07613
DEBORAH THE DISTRICT COURT
§§§§§§§§§§
LOWE; IN
Plaintiff,
VS. DALLAS COUNTY, TEXAS
BRYCE MARSELLA; GIA BRUNO
AIKIA GIA TAPP; AND LUIS JUAREZ;
Defendants. 162”” JUDICIAL DISTRICT
PLAINTIFF’S MOTION TO EQUALIZE PREEMPTORY CHALLENGES
COMES NOW Plaintiff Deborah Lowe (hereinafter referred to as Plaintiff)
and files this her Motion to Equalize the Preemptory Challenges of Defendants
and move for an order equalizing the number of preemptory challenges so that
no litigant or side is given an unfair advantage as a result of the alignment of the
litigants. Plaintiff, in support thereof and pursuant to Rule 233, Texas Rules of
Civil Procedure, would show as follows:
I.
This case is currently set for trial on August 9, 2022 against all parties.
There are three (3) defendants who are aligned on the same side of the
docket: (1) Defendant Bryce Marsella, (2) Defendant Gia Bruno a/k/a Gia Tapp,
and (3) Defendant Luis Juarez.
A. Defendants Bryce Marsella, Gia Bruno alkla Gia Tapp and
Defendant Luis Juarez have Common Interests on the Matters
with which the Jury is Concerned
In this case, Defendants Bryce Marsella, Gia Bruno a/k/a Gia Tapp and
Luis Juarez are aligned on the same side of the docket.
PLAINTIFF’S MOTION TO EQUALIZE PREEMPTORY CHALLENGES — Page 1
Plaintiff would show that there is no antagonism between Defendants
Bryce Marsella, Gia Bruno a/k/a Gia Tapp and Luis Juarez in that they do not
have true conflicting positions on any issue of fact to be decided by the jury.
Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 918 (Tex. 1979). Likewise,
Defendants Bryce Marsella, Gia Bruno a/k/a Gia Tapp and Luis Juarez also have
the same defenses. There is no dispute that these three parties are fully aligned
and should receive a number of challenges to be split between themselves.
Accordingly, Defendants have “common interests on the matters with
which the jury is concerned." Tex. R. Civ. P. 233. Therefore, equalization is
necessary in order to remove any unfair advantage as a result of the number of
Defendants.
Defendants Bryce Marsella, Gia Bruno a/k/a Gia Tapp and Luis Juarez
have not filed any cross actions or other claims against any other Defendant.
Accordingly, Defendants have “common interests on the matters with which the
jury is concerned.” Tex. R. Civ. P. 233. Therefore, equalization is necessary in
order to remove any unfair advantage as a result of the number of Defendants.
ll.
This is a multi-party case in which parties on one side of the case are
antagonistic to each other on an issue that will be submitted to the jury. The
purpose of allocating strikes based on antagonism is to ensure that, in a multi-
party case, no party or “side” has an unfair advantage because of its preemptory
challenges. Tex. R. Civ. P. 233; Patterson Dental Co. v. Dunn, 592 S.W.2d 914,
PLAINTIFF’S MOTION T0 EQUALIZE PREEMPTORY CHALLENGES — Page 2
919 (Tex. 1979). Each party in this case denies liability and asserts that the
alleged damages were the result of the acts and/or omissions of other entities. It
is anticipated that each party wi|| be antagonistic to the other parties' interests by
asserting that the other parties are responsible, in part, for Plaintiff’s alleged
damages.
Texas Rule of Civil Procedure 233 governs peremptory challenges. See
TEX. R. CIV. P. 233. As a general rule, each party to a civil case in district court
is entitled to 6 peremptory strikes. Id. However, in a multi-party case, the trial
court must first decide whether any of the litigants aligned on the same side of
the docket are antagonistic with respect to any issue to be submitted to the jury;
and then, upon timely motion, “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.” ld. “Y"
Propane Serv., Inc. v. Garcia, 61 S.W.3d 559, 569 (Tex. App.—San Antonio
1999, no pet.); see also Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 920
(Tex. 1979) (holding “in most cases a two-to-one ratio between sides would
approach the maximum disparity allowable...On the other hand, a disparity of
four-to-one between sides has been held erroneous”).
If the court decides the parties on the same side are antagonistic, it has
the discretion to determine the number of strikes to give each side so neither side
has an unfair advantage. Patterson Dental, 592 S.W.2d at 919. The court may
proportion the strikes by increasing the strikes on one side or decreasing the
PLAINTIFF’S MOTION T0 EQUALIZE PREEMPTORY CHALLENGES — Page 3
strikes on the other, or both. Id. at 920. Ifthe parties on one side are antagonistic
to each other, they each get their own strikes. See Frank B. Hall & Co. v. Beach,
lnc., 733 S.W.2d 251, 256-257 (Tex. App.—Corpus Christi 1987, writ ref'd n.r.e.)
(Court gave intervenor 3 strikes and equalized strikes of other parties).
Ill.
For the reasons above stated, Plaintiff moves that the Court align
Defendants Bryce Marsella, Gia Bruno a/k/a Gia Tapp and Luis Juarez on the
same side of the docket.
Further, Plaintiff requests that the Court determine that there is no true
antagonism between said Defendants; therefore, Plaintiff moves that the Court
compel said Defendants to share the same six (6) preemptory challenges
pursuant to the requirements of Garcia v. Central Power & Light Co., 704 S.W.2d
734 (Tex. 1986).
Alternatively, should the Court grant Defendants an additional number of
preemptory challenges (to which action the Plaintiff objects), that Plaintiff also be
granted the same number of additional preemptory challenges.
In the alternative, should the Court deny Plaintiff’s Motion, or should the
Court grant Defendants an additional number of preemptory challenges, Plaintiff
would respectfully move that the Court preclude Defendants Bryce Marsella, Gia
Bruno a/k/a Gia Tapp and Luis Juarez, and the counsel of record for said
Defendants from collaborating in the selecting of jurors including precluding the
PLAINTIFF’S MOTION T0 EQUALIZE PREEMPTORY CHALLENGES — Page 4
sharing of information about whom they may strike or in any manner
communicating their intended exercise of preemptory challenges.
CONCLUSION
This is a multi-defendant case in which each of the defendants are
sufficiently aligned against the Plaintiff to necessitate the Court to equalize the
challenges. Realigning of the parties and equalizing of the parties' preemptory
challenges is necessary to ensure that one party does not have an unequal
advantage over the other parties in the case.
For these reasons, Plaintiff asks the Court to equalize the preemptory
challenges by apportioning both the Plaintiff and Defendants an equal number of
six challenges between all the parties.
Respectfully submitted,
WITHERITE LAW GROUP, PLLC
BY: /s/Adewa/e Odetunde
ADEWALE ODETUNDE
State Bar No. 24088146
adewale.odetunde@witheritelaw.com
SHELLY GRECO
State Bar No. 24008168
shellv.qreco@witheritelaw.corn
10440 N. Central Expressway
Suite 400
Dallas, TX 75231-2228
214/378-6665
214/378-6670 (fax)
ATTORNEYS FOR PLAINTIFF
PLAINTIFF’S MOTION T0 EQUALIZE PREEMPTORY CHALLENGES — Page 5
C_ERTIFICAT§ OF SERVICE
|
hereby certify that a true and correct copy of the foregoing has been
forwarded to all counsel of record on this 4t“ day of August, 2022, pursuant to the
Texas Rules of Civil Procedure.
/s/ Adewale Odetunde
Adewale Odetunde
David L. Pacione
Law Office of James A. Lawrence
105 Decker Court, Suite 150
Irving, TX 75062
William Toles
Munsch Hardt Kopf & Harr, P.C.
500 N. Akard, Suite 3800
Dallas, TX 75201
John W. Greenslade
Biggs & Greenslade, P.C.
1042 Asher Way, Suite 100
Tyler, TX 75703
Christopher T. Colby
Johnson Stephens & Leal, PLLC
4809 Cole Avenue
Suite 260
Dallas, TX 75205
PLAINTIFF’S MOTION T0 EQUALIZE PREEMPTORY CHALLENGES — Page 6
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Amy Peacock on behalf of Adewale Odetunde
Bar No. 24088146
amy.peacock@witheritelaw.com
Envelope ID: 66984164
Status as of 8/4/2022 4:28 PM CST
Associated Case Party: BRYCE MARSELLA
Name BarNumber Email TimestampSubmitted Status
John Wolffarth wolffj4@nationwide.com 8/4/2022 4:13:23 PM SENT
John WGreenslade john@bglawtexas.com 8/4/2022 4:13:23 PM SENT
Sara Pegg sara@bglawtexas.com 8/4/2022 4:13:23 PM SENT
David Pacione paciod1@nationwide.com 8/4/2022 4:13:23 PM SENT
Joan Parma parmaj2@nationwide.com 8/4/2022 4:13:23 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Amy Peacock on behalf of Adewale Odetunde
Bar No. 24088146
amy.peacock@witheritelaw.com
Envelope ID: 66984164
Status as of 8/4/2022 4:28 PM CST
Associated Case Party: LUIS JUAREZ
Name BarNumber Email TimestampSubmitted Status
Robbin Williams n~illiams@munsch.com 8/4/2022 4:13:23 PM SENT
Kelly Wise kwise@munsch.com 8/4/2022 4:13:23 PM SENT
William MToles wtoles@munsch.com 8/4/2022 4:13:23 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Amy Peacock on behalf of Adewale Odetunde
Bar No. 24088146
amy.peacock@witheritelaw.com
Envelope ID: 66984164
Status as of 8/4/2022 4:28 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Christopher Taylor Colby 24031962 ccolby@jsllawfirm.com 8/4/2022 4:13:23 PM SENT
william toles wtoles@feesmith.com 8/4/2022 4:13:23 PM SENT
Laura Spangler lspangler@jsllawfirm.com 8/4/2022 4:13:23 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Amy Peacock on behalf of Adewale Odetunde
Bar No. 24088146
amy.peacock@witheritelaw.com
Envelope ID: 66984164
Status as of 8/4/2022 4:28 PM CST
Associated Case Party: DEBORAH LOWE
Name BarNumber Email TimestampSubmitted Status
Adewale WaleOdetunde Adewale.Odetunde@witheritelaw.com 8/4/2022 4:13:23 PM SENT
Preview
FILED 8/4/2022 4:13 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Margaret Thomas DEPUTY CAUSE NO. DC-18-07613 DEBORAH THE DISTRICT COURT §§§§§§§§§§ LOWE; IN Plaintiff, VS. DALLAS COUNTY, TEXAS BRYCE MARSELLA; GIA BRUNO AIKIA GIA TAPP; AND LUIS JUAREZ; Defendants. 162”” JUDICIAL DISTRICT PLAINTIFF’S MOTION TO EQUALIZE PREEMPTORY CHALLENGES COMES NOW Plaintiff Deborah Lowe (hereinafter referred to as Plaintiff) and files this her Motion to Equalize the Preemptory Challenges of Defendants and move for an order equalizing the number of preemptory challenges so that no litigant or side is given an unfair advantage as a result of the alignment of the litigants. Plaintiff, in support thereof and pursuant to Rule 233, Texas Rules of Civil Procedure, would show as follows: I. This case is currently set for trial on August 9, 2022 against all parties. There are three (3) defendants who are aligned on the same side of the docket: (1) Defendant Bryce Marsella, (2) Defendant Gia Bruno a/k/a Gia Tapp, and (3) Defendant Luis Juarez. A. Defendants Bryce Marsella, Gia Bruno alkla Gia Tapp and Defendant Luis Juarez have Common Interests on the Matters with which the Jury is Concerned In this case, Defendants Bryce Marsella, Gia Bruno a/k/a Gia Tapp and Luis Juarez are aligned on the same side of the docket. PLAINTIFF’S MOTION TO EQUALIZE PREEMPTORY CHALLENGES — Page 1 Plaintiff would show that there is no antagonism between Defendants Bryce Marsella, Gia Bruno a/k/a Gia Tapp and Luis Juarez in that they do not have true conflicting positions on any issue of fact to be decided by the jury. Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 918 (Tex. 1979). Likewise, Defendants Bryce Marsella, Gia Bruno a/k/a Gia Tapp and Luis Juarez also have the same defenses. There is no dispute that these three parties are fully aligned and should receive a number of challenges to be split between themselves. Accordingly, Defendants have “common interests on the matters with which the jury is concerned." Tex. R. Civ. P. 233. Therefore, equalization is necessary in order to remove any unfair advantage as a result of the number of Defendants. Defendants Bryce Marsella, Gia Bruno a/k/a Gia Tapp and Luis Juarez have not filed any cross actions or other claims against any other Defendant. Accordingly, Defendants have “common interests on the matters with which the jury is concerned.” Tex. R. Civ. P. 233. Therefore, equalization is necessary in order to remove any unfair advantage as a result of the number of Defendants. ll. This is a multi-party case in which parties on one side of the case are antagonistic to each other on an issue that will be submitted to the jury. The purpose of allocating strikes based on antagonism is to ensure that, in a multi- party case, no party or “side” has an unfair advantage because of its preemptory challenges. Tex. R. Civ. P. 233; Patterson Dental Co. v. Dunn, 592 S.W.2d 914, PLAINTIFF’S MOTION T0 EQUALIZE PREEMPTORY CHALLENGES — Page 2 919 (Tex. 1979). Each party in this case denies liability and asserts that the alleged damages were the result of the acts and/or omissions of other entities. It is anticipated that each party wi|| be antagonistic to the other parties' interests by asserting that the other parties are responsible, in part, for Plaintiff’s alleged damages. Texas Rule of Civil Procedure 233 governs peremptory challenges. See TEX. R. CIV. P. 233. As a general rule, each party to a civil case in district court is entitled to 6 peremptory strikes. Id. However, in a multi-party case, the trial court must first decide whether any of the litigants aligned on the same side of the docket are antagonistic with respect to any issue to be submitted to the jury; and then, upon timely motion, “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.” ld. “Y" Propane Serv., Inc. v. Garcia, 61 S.W.3d 559, 569 (Tex. App.—San Antonio 1999, no pet.); see also Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 920 (Tex. 1979) (holding “in most cases a two-to-one ratio between sides would approach the maximum disparity allowable...On the other hand, a disparity of four-to-one between sides has been held erroneous”). If the court decides the parties on the same side are antagonistic, it has the discretion to determine the number of strikes to give each side so neither side has an unfair advantage. Patterson Dental, 592 S.W.2d at 919. The court may proportion the strikes by increasing the strikes on one side or decreasing the PLAINTIFF’S MOTION T0 EQUALIZE PREEMPTORY CHALLENGES — Page 3 strikes on the other, or both. Id. at 920. Ifthe parties on one side are antagonistic to each other, they each get their own strikes. See Frank B. Hall & Co. v. Beach, lnc., 733 S.W.2d 251, 256-257 (Tex. App.—Corpus Christi 1987, writ ref'd n.r.e.) (Court gave intervenor 3 strikes and equalized strikes of other parties). Ill. For the reasons above stated, Plaintiff moves that the Court align Defendants Bryce Marsella, Gia Bruno a/k/a Gia Tapp and Luis Juarez on the same side of the docket. Further, Plaintiff requests that the Court determine that there is no true antagonism between said Defendants; therefore, Plaintiff moves that the Court compel said Defendants to share the same six (6) preemptory challenges pursuant to the requirements of Garcia v. Central Power & Light Co., 704 S.W.2d 734 (Tex. 1986). Alternatively, should the Court grant Defendants an additional number of preemptory challenges (to which action the Plaintiff objects), that Plaintiff also be granted the same number of additional preemptory challenges. In the alternative, should the Court deny Plaintiff’s Motion, or should the Court grant Defendants an additional number of preemptory challenges, Plaintiff would respectfully move that the Court preclude Defendants Bryce Marsella, Gia Bruno a/k/a Gia Tapp and Luis Juarez, and the counsel of record for said Defendants from collaborating in the selecting of jurors including precluding the PLAINTIFF’S MOTION T0 EQUALIZE PREEMPTORY CHALLENGES — Page 4 sharing of information about whom they may strike or in any manner communicating their intended exercise of preemptory challenges. CONCLUSION This is a multi-defendant case in which each of the defendants are sufficiently aligned against the Plaintiff to necessitate the Court to equalize the challenges. Realigning of the parties and equalizing of the parties' preemptory challenges is necessary to ensure that one party does not have an unequal advantage over the other parties in the case. For these reasons, Plaintiff asks the Court to equalize the preemptory challenges by apportioning both the Plaintiff and Defendants an equal number of six challenges between all the parties. Respectfully submitted, WITHERITE LAW GROUP, PLLC BY: /s/Adewa/e Odetunde ADEWALE ODETUNDE State Bar No. 24088146 adewale.odetunde@witheritelaw.com SHELLY GRECO State Bar No. 24008168 shellv.qreco@witheritelaw.corn 10440 N. Central Expressway Suite 400 Dallas, TX 75231-2228 214/378-6665 214/378-6670 (fax) ATTORNEYS FOR PLAINTIFF PLAINTIFF’S MOTION T0 EQUALIZE PREEMPTORY CHALLENGES — Page 5 C_ERTIFICAT§ OF SERVICE | hereby certify that a true and correct copy of the foregoing has been forwarded to all counsel of record on this 4t“ day of August, 2022, pursuant to the Texas Rules of Civil Procedure. /s/ Adewale Odetunde Adewale Odetunde David L. Pacione Law Office of James A. Lawrence 105 Decker Court, Suite 150 Irving, TX 75062 William Toles Munsch Hardt Kopf & Harr, P.C. 500 N. Akard, Suite 3800 Dallas, TX 75201 John W. Greenslade Biggs & Greenslade, P.C. 1042 Asher Way, Suite 100 Tyler, TX 75703 Christopher T. Colby Johnson Stephens & Leal, PLLC 4809 Cole Avenue Suite 260 Dallas, TX 75205 PLAINTIFF’S MOTION T0 EQUALIZE PREEMPTORY CHALLENGES — Page 6 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Amy Peacock on behalf of Adewale Odetunde Bar No. 24088146 amy.peacock@witheritelaw.com Envelope ID: 66984164 Status as of 8/4/2022 4:28 PM CST Associated Case Party: BRYCE MARSELLA Name BarNumber Email TimestampSubmitted Status John Wolffarth wolffj4@nationwide.com 8/4/2022 4:13:23 PM SENT John WGreenslade john@bglawtexas.com 8/4/2022 4:13:23 PM SENT Sara Pegg sara@bglawtexas.com 8/4/2022 4:13:23 PM SENT David Pacione paciod1@nationwide.com 8/4/2022 4:13:23 PM SENT Joan Parma parmaj2@nationwide.com 8/4/2022 4:13:23 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Amy Peacock on behalf of Adewale Odetunde Bar No. 24088146 amy.peacock@witheritelaw.com Envelope ID: 66984164 Status as of 8/4/2022 4:28 PM CST Associated Case Party: LUIS JUAREZ Name BarNumber Email TimestampSubmitted Status Robbin Williams n~illiams@munsch.com 8/4/2022 4:13:23 PM SENT Kelly Wise kwise@munsch.com 8/4/2022 4:13:23 PM SENT William MToles wtoles@munsch.com 8/4/2022 4:13:23 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Amy Peacock on behalf of Adewale Odetunde Bar No. 24088146 amy.peacock@witheritelaw.com Envelope ID: 66984164 Status as of 8/4/2022 4:28 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Christopher Taylor Colby 24031962 ccolby@jsllawfirm.com 8/4/2022 4:13:23 PM SENT william toles wtoles@feesmith.com 8/4/2022 4:13:23 PM SENT Laura Spangler lspangler@jsllawfirm.com 8/4/2022 4:13:23 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Amy Peacock on behalf of Adewale Odetunde Bar No. 24088146 amy.peacock@witheritelaw.com Envelope ID: 66984164 Status as of 8/4/2022 4:28 PM CST Associated Case Party: DEBORAH LOWE Name BarNumber Email TimestampSubmitted Status Adewale WaleOdetunde Adewale.Odetunde@witheritelaw.com 8/4/2022 4:13:23 PM SENT