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FILED
8/8/2022 1:48 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker-Ayodele DEPUTY
CAUSE NO. DC-19-08604
MICHAEL A. MITCHELL IN THE DISTRICT COURT
§§§§§§§§§
Plaintiffi
VS. OF DALLAS COUNTY, TEXAS
ALEXIS RUCHELLE SOLCHENBERGER
Defendant, 192ml JUDICIAL DISTRICT
MICHAEL A. MITCHELL’S RESPONSE T0 DEFENDANT’S MOTION FOR
RECONSIDERATION OF TRAIL COURT’S ORDER GRANTING PLAINTIFF’S
MOTION FOR NEW TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Michael Mitchell, Plaintiff, and files this his Response to Defendant’s
Motion for Reconsideration of Trial Court’s Order Granting Plaintiffs Motion for New Trial
(“Defendant’s Motion”), and in support Plaintiff respectfully would show this Court the
following:
SUMMARY OF MOTION
On August 2, 2022, Defendant filed a Motion for Reconsideration of the Trial Court’s
Order dated July 21, 2022, granting a new trial. Defendant’s Motion claims that clear Texas
caselaw holds that Plaintiff’s failure to object to a peremptorily struck juror waives the Plaintiff’s
right to a new trial on the basis of waiver alone. Defendant’s motion does not address the issue
of “harm.” Defendant essentially claims that the trial court abused its discretion in ordering a
new trial because, (a) Plaintiff did not immediately object to the court’s error and because, (b)
the Order Granting New Trial was not specific in its grounds and is therefore facially invalid.
In Re Toyota Motor Sales, U.S.A. has held that unless a trial court’s rationale in setting
aside a jury verdict and granting a new trial is unsupported by the trial court record, then an
Page 1
appellate coult may not grant mandamus relief. 407 S.W.3d 746 (Tex. 2013). Although the
reasons articulated in a new trial order are subject to conditional merits-based mandamus review,
as applied by Texas caselaw, the issue of “waiver” in preservation of error is distinct from the
issue of “harm,” and both rationales in this case at bar are supported by the trial court record and
by Texas caselaw in granting a new trial. United Scaffolding Inc. v. Levine, 520 S.W.3d 631
(Tex. 2015).
APPLICABLE LAW
In Texas Employers ’Ins. Ass ’n v. McCaslin, I59 Tex. 273, 317 S.W.2d 916, the Supreme
Court pointed out that the burden of the complaining party is met by showing that the trial which
resulted in a judgment against him was materially unfair. See Tamburello v. Welch, 392 S.W.2d
114 (Tex. 1965) (holding trial court erred in denying each defendant six peremptory challenges).
In Patterson Dental Co. v. Dunn, 592 S.W.2d 914 (Tex. 1980), the Texas Supreme Court also
adopted a rule which requires the complaining party to show that the trial which resulted against
him was materially unfair without having to show more.” Patterson at 921 (Tex. 1980).
Whether an error in awarding strikes resulted in a materially unfair trial must be decided from an
examination of the entire trial record. Lopez v. Foremost Paving, 709 S.W.2d 643 (Tex. 1986).
If the trial is hotly contested and the evidence sharply conflicting, the error [in awarding strikes]
results in a materially unfair trial without showing more. Garcia v. Central Power & Light Co.,
704 S.W.2d 734, 737 (Tex. 1986).
ARGUMENT & AUTHORITIES
A. Waiver and Harm Analysis
Defendant’s Motion cites several criminal cases in which criminal Defendants waived
peremptory challenges under various circumstances, however, criminal jury trials have a
Page 2
different set of procedural rules and norms, including the attachment of “jeopardy” once a jury is
sworn that does not apply to civil cases. Rule 233, Texas Rules of Civil Procedure provides that
each party to a civil lawsuit tried in district court shall be entitled to six peremptory challenges.
See Tex. R. CiV. P. 233.
As stated previously, the jury was not properly selected pursuant to Tex. R. Civ. P. 232
and 233 and 234. The trial Court erred in seating venire panel member #17 (juror #7), Alexis
Del Gadillo, who was one of the 10 jurors who signed the 10-2 verdict in favor of Defendant.
This error resulted in a materially unfair trial for the Plaintiff. Lopez v. Foremost Paving, Ina,
7809 S.W.2d 643 (Tex. 1986); Garcia v. Central Power & Light Co., 704 S.W.2d 734 (Tex.
1986). The seating of juror #7, whose vote in favor of Defendant was clearly not “harmless,”
and in fact had a detrimental effect on the jury’s verdict and violated Plaintiff’s constitutional
rights to select a jury and a fair trial. Id.
The trial court should deny Defendant’s Motion based on Patterson Dental C0. v. Dunn,
where timely and repeated objections to error were not dispositive when harm resulted from the
error. 592 S.W.2d 914 (Tex. 1979). In Patterson Dental Co. v. Dunn, the Texas Supreme Court
disagreed with the petitioner’s contention that Dunn did not “properly preserve any error”
because he only objected to the court’s action in refusing to limit the defendants collectively to
six strikes. In Dunn, the Texas Supreme Court held that Dunn’s repeated objections in his
“motion for new trial and his amended motion for new trial” was “sufficient to direct the court’s
attention to the unequal distribution of the peremptory challenges allows the sides and the
statutory duty to equalize.” Patterson at 921.
Defendant’s Motion claims that Plaintiff’s failure to object immediately after the jury was
seated waived any objection to the composition of the jury on appeal or otherwise, however,
Page 3
Defendant provides not a single Texas civil case where the Rules of Civil Procedure were
applied in the manner that Defendant advocates is appropriate here. Here, the trial court should
deny Defendant’s Motion based on Patterson Dental Co. v. Dunn, where timely objections to
error were not dispositive when harm resulted form the error.
In this case, the parties’ strike sheets were provided to the bailiff, who in turn provided
the strike sheets to the judge, who in turn was supposed to select the jurors from those remaining
venire members after removing venire members challenged peremptorily or for cause.
Unfortunately, that did not happen.
During the original trial, Plaintiff did not object to the improperly selected juror prior the
verdict, however, Plaintiff did object to the juror prior to the signing of any judgment, and in
Plaintiff’s Motion for New Trial, Plaintiff objected to the jury’s verdict on other grounds
including the court’s instructions, the jury charge and other aspects of the deliberations as
detailed in Plaintiff’s Motion for New Trial. Plaintiff also timely objected on these other
grounds during trial and did not waiver error on the other grounds cited in Plaintiff’s Motion.
B. Invalidity of Order Granting New Trial
Defendant’s Motion also claims that the court’s Order Granting New Trial is facially
invalid. Plaintiff would point out that grounds for granting the new trial were not arbitrary, as
court’s clarified it’s the grounds during the oral hearing on Plaintiff’s Motion and if any further
reason needs to be established, the order can correct or modify its order to reflect its findings.
CONCLUSION AND PRAYER
Wherefore premises considered, Plaintiff Michael Mitchell respectfully prays that
Defendant’s Motion for Reconsideration be denied, and that the Court’s Order Granting a New
Page 4
Trial stand in its original or modified form, and that Plaintiff’ s causes of action against Alexis
Solchenberger proceed to trial.
Respectfully submitted,
The LIDJI Firm
/s/ Carlos Galliani
I. SCOTT LIDJ I
Texas Bar No. 24000336
scott@thelidjifirm.com
MARY JO R. BETZEN
SBN: 24089054
marvio@thelidiifirm.com
CARLOS G. GALLIANI
Texas Bar No. 24069752
carlos@thelidjifirm.com
Meadow Park Tower
10440 N. Central Expressway, Suite 1240
Dallas, Texas 75231
legal@thelidjifirrn.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
In accordance with Rule 21a of the Texas Rules of Civil Procedure, on this 8th day of
August, 2022, I hereby certify that a true and correct copy of the above and foregoing document has
been forwarded to all counsel of record by e-filing for Texas.
/s/ Carlos Galliam'
CARLOS G. GALLLANI
Page 5
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.
Carlos Galliani
Bar No. 24069752
carlos@thelidjifirm.com
Envelope ID: 67060145
Status as of 8/8/2022 2:33 PM CST
Associated Case Party: MICHAELAMITCHELL
Name BarNumber Email TimestampSubmitted Status
Legal Lidji legal@thelidjifirm.com 8/8/2022 1:48:31 PM SENT
Carlos Galliani carlos@thelidjifirm.com 8/8/2022 1:48:31 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.
Carlos Galliani
Bar No. 24069752
carlos@thelidjifirm.com
Envelope ID: 67060145
Status as of 8/8/2022 2:33 PM CST
Associated Case Party: ALEXISRUCHELLESOLCHENBERGER
Name BarNumber Email TimestampSubmitted Status
sophia kim kim@chavezlegalgroup.com 8/8/2022 1:48:31 PM SENT
James Eckels eckels@chavezlegalgroup.com 8/8/2022 1:48:31 PM SENT
Conrad W.John conrad.john@fredloya.com 8/8/2022 1:48:31 PM ERROR
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.
Carlos Galliani
Bar No. 24069752
carlos@thelidjifirm.com
Envelope ID: 67060145
Status as of 8/8/2022 2:33 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
ISCOTTLIDJI scott@thelidjifirm.com 8/8/2022 1:48:31 PM SENT
Kila L.Bobier bobier@chavezlegalgroup.com 8/8/2022 1:48:31 PM SENT
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FILED 8/8/2022 1:48 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Treva Parker-Ayodele DEPUTY CAUSE NO. DC-19-08604 MICHAEL A. MITCHELL IN THE DISTRICT COURT §§§§§§§§§ Plaintiffi VS. OF DALLAS COUNTY, TEXAS ALEXIS RUCHELLE SOLCHENBERGER Defendant, 192ml JUDICIAL DISTRICT MICHAEL A. MITCHELL’S RESPONSE T0 DEFENDANT’S MOTION FOR RECONSIDERATION OF TRAIL COURT’S ORDER GRANTING PLAINTIFF’S MOTION FOR NEW TRIAL TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Michael Mitchell, Plaintiff, and files this his Response to Defendant’s Motion for Reconsideration of Trial Court’s Order Granting Plaintiffs Motion for New Trial (“Defendant’s Motion”), and in support Plaintiff respectfully would show this Court the following: SUMMARY OF MOTION On August 2, 2022, Defendant filed a Motion for Reconsideration of the Trial Court’s Order dated July 21, 2022, granting a new trial. Defendant’s Motion claims that clear Texas caselaw holds that Plaintiff’s failure to object to a peremptorily struck juror waives the Plaintiff’s right to a new trial on the basis of waiver alone. Defendant’s motion does not address the issue of “harm.” Defendant essentially claims that the trial court abused its discretion in ordering a new trial because, (a) Plaintiff did not immediately object to the court’s error and because, (b) the Order Granting New Trial was not specific in its grounds and is therefore facially invalid. In Re Toyota Motor Sales, U.S.A. has held that unless a trial court’s rationale in setting aside a jury verdict and granting a new trial is unsupported by the trial court record, then an Page 1 appellate coult may not grant mandamus relief. 407 S.W.3d 746 (Tex. 2013). Although the reasons articulated in a new trial order are subject to conditional merits-based mandamus review, as applied by Texas caselaw, the issue of “waiver” in preservation of error is distinct from the issue of “harm,” and both rationales in this case at bar are supported by the trial court record and by Texas caselaw in granting a new trial. United Scaffolding Inc. v. Levine, 520 S.W.3d 631 (Tex. 2015). APPLICABLE LAW In Texas Employers ’Ins. Ass ’n v. McCaslin, I59 Tex. 273, 317 S.W.2d 916, the Supreme Court pointed out that the burden of the complaining party is met by showing that the trial which resulted in a judgment against him was materially unfair. See Tamburello v. Welch, 392 S.W.2d 114 (Tex. 1965) (holding trial court erred in denying each defendant six peremptory challenges). In Patterson Dental Co. v. Dunn, 592 S.W.2d 914 (Tex. 1980), the Texas Supreme Court also adopted a rule which requires the complaining party to show that the trial which resulted against him was materially unfair without having to show more.” Patterson at 921 (Tex. 1980). Whether an error in awarding strikes resulted in a materially unfair trial must be decided from an examination of the entire trial record. Lopez v. Foremost Paving, 709 S.W.2d 643 (Tex. 1986). If the trial is hotly contested and the evidence sharply conflicting, the error [in awarding strikes] results in a materially unfair trial without showing more. Garcia v. Central Power & Light Co., 704 S.W.2d 734, 737 (Tex. 1986). ARGUMENT & AUTHORITIES A. Waiver and Harm Analysis Defendant’s Motion cites several criminal cases in which criminal Defendants waived peremptory challenges under various circumstances, however, criminal jury trials have a Page 2 different set of procedural rules and norms, including the attachment of “jeopardy” once a jury is sworn that does not apply to civil cases. Rule 233, Texas Rules of Civil Procedure provides that each party to a civil lawsuit tried in district court shall be entitled to six peremptory challenges. See Tex. R. CiV. P. 233. As stated previously, the jury was not properly selected pursuant to Tex. R. Civ. P. 232 and 233 and 234. The trial Court erred in seating venire panel member #17 (juror #7), Alexis Del Gadillo, who was one of the 10 jurors who signed the 10-2 verdict in favor of Defendant. This error resulted in a materially unfair trial for the Plaintiff. Lopez v. Foremost Paving, Ina, 7809 S.W.2d 643 (Tex. 1986); Garcia v. Central Power & Light Co., 704 S.W.2d 734 (Tex. 1986). The seating of juror #7, whose vote in favor of Defendant was clearly not “harmless,” and in fact had a detrimental effect on the jury’s verdict and violated Plaintiff’s constitutional rights to select a jury and a fair trial. Id. The trial court should deny Defendant’s Motion based on Patterson Dental C0. v. Dunn, where timely and repeated objections to error were not dispositive when harm resulted from the error. 592 S.W.2d 914 (Tex. 1979). In Patterson Dental Co. v. Dunn, the Texas Supreme Court disagreed with the petitioner’s contention that Dunn did not “properly preserve any error” because he only objected to the court’s action in refusing to limit the defendants collectively to six strikes. In Dunn, the Texas Supreme Court held that Dunn’s repeated objections in his “motion for new trial and his amended motion for new trial” was “sufficient to direct the court’s attention to the unequal distribution of the peremptory challenges allows the sides and the statutory duty to equalize.” Patterson at 921. Defendant’s Motion claims that Plaintiff’s failure to object immediately after the jury was seated waived any objection to the composition of the jury on appeal or otherwise, however, Page 3 Defendant provides not a single Texas civil case where the Rules of Civil Procedure were applied in the manner that Defendant advocates is appropriate here. Here, the trial court should deny Defendant’s Motion based on Patterson Dental Co. v. Dunn, where timely objections to error were not dispositive when harm resulted form the error. In this case, the parties’ strike sheets were provided to the bailiff, who in turn provided the strike sheets to the judge, who in turn was supposed to select the jurors from those remaining venire members after removing venire members challenged peremptorily or for cause. Unfortunately, that did not happen. During the original trial, Plaintiff did not object to the improperly selected juror prior the verdict, however, Plaintiff did object to the juror prior to the signing of any judgment, and in Plaintiff’s Motion for New Trial, Plaintiff objected to the jury’s verdict on other grounds including the court’s instructions, the jury charge and other aspects of the deliberations as detailed in Plaintiff’s Motion for New Trial. Plaintiff also timely objected on these other grounds during trial and did not waiver error on the other grounds cited in Plaintiff’s Motion. B. Invalidity of Order Granting New Trial Defendant’s Motion also claims that the court’s Order Granting New Trial is facially invalid. Plaintiff would point out that grounds for granting the new trial were not arbitrary, as court’s clarified it’s the grounds during the oral hearing on Plaintiff’s Motion and if any further reason needs to be established, the order can correct or modify its order to reflect its findings. CONCLUSION AND PRAYER Wherefore premises considered, Plaintiff Michael Mitchell respectfully prays that Defendant’s Motion for Reconsideration be denied, and that the Court’s Order Granting a New Page 4 Trial stand in its original or modified form, and that Plaintiff’ s causes of action against Alexis Solchenberger proceed to trial. Respectfully submitted, The LIDJI Firm /s/ Carlos Galliani I. SCOTT LIDJ I Texas Bar No. 24000336 scott@thelidjifirm.com MARY JO R. BETZEN SBN: 24089054 marvio@thelidiifirm.com CARLOS G. GALLIANI Texas Bar No. 24069752 carlos@thelidjifirm.com Meadow Park Tower 10440 N. Central Expressway, Suite 1240 Dallas, Texas 75231 legal@thelidjifirrn.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE In accordance with Rule 21a of the Texas Rules of Civil Procedure, on this 8th day of August, 2022, I hereby certify that a true and correct copy of the above and foregoing document has been forwarded to all counsel of record by e-filing for Texas. /s/ Carlos Galliam' CARLOS G. GALLLANI Page 5 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. Carlos Galliani Bar No. 24069752 carlos@thelidjifirm.com Envelope ID: 67060145 Status as of 8/8/2022 2:33 PM CST Associated Case Party: MICHAELAMITCHELL Name BarNumber Email TimestampSubmitted Status Legal Lidji legal@thelidjifirm.com 8/8/2022 1:48:31 PM SENT Carlos Galliani carlos@thelidjifirm.com 8/8/2022 1:48:31 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. Carlos Galliani Bar No. 24069752 carlos@thelidjifirm.com Envelope ID: 67060145 Status as of 8/8/2022 2:33 PM CST Associated Case Party: ALEXISRUCHELLESOLCHENBERGER Name BarNumber Email TimestampSubmitted Status sophia kim kim@chavezlegalgroup.com 8/8/2022 1:48:31 PM SENT James Eckels eckels@chavezlegalgroup.com 8/8/2022 1:48:31 PM SENT Conrad W.John conrad.john@fredloya.com 8/8/2022 1:48:31 PM ERROR 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. Carlos Galliani Bar No. 24069752 carlos@thelidjifirm.com Envelope ID: 67060145 Status as of 8/8/2022 2:33 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status ISCOTTLIDJI scott@thelidjifirm.com 8/8/2022 1:48:31 PM SENT Kila L.Bobier bobier@chavezlegalgroup.com 8/8/2022 1:48:31 PM SENT