Terry Gotch v. Scooby's Asap Towing, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-355

TERRY GOTCH

VERSUS

SCOOBY’S ASAP TOWING, LLC, ET AL

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2014-0495
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Billy H. Ezell, and Candyce G. Perret, Judges.

REVERSED AND REMANDED.

Lawrence Blake Jones
Lawrence J. Centola, Jr.
Blake Jones Law Firm, L.L.C.
701 Poydras Street, Suite 4100
New Orleans, LA 70139
(504) 525-4361
COUNSEL FOR PLAINTIFF/APPELLANT:
Terry Gotch

Nicole M. Boyer
Ryan M. Malone
Duplass, Zwain, Bourgeois, Pfister, Weinstock & Bogart
3838 North Causeway Boulevard
Three Lakeway Center, Suite 2900
Metairie, LA 70002
(504) 832-3700
COUNSEL FOR DEFENDANT APPELLEE:
Scooby’s ASAP Towing, L.L.C.

SAUNDERS, Judge.

This is a suit for damages for personal injuries sustained in an automobile

accident. Two different versions of the incident giving rise to this litigation were

presented at trial. While the jury was deliberating, the alternate juror advised the

court and all counsel in the courtroom that the jurors had ignored the court’s Plain

Civil Jury Instructions by discussing the case amongst themselves during the

proceedings rather than waiting to do so when they began deliberations at the end of

trial and had concluded that Defendant was not at fault. After the alternate juror had

been interviewed, and within minutes of retiring to deliberate, the jury advised that

it had reached a verdict. Plaintiff filed for a mistrial, which the court subsequently

denied.

Plaintiff now appeals that judgment. Appellant’s argument is that the

prejudicial misconduct that occurred during the course of the proceedings can only

be cured by mistrial.

FACTUAL AND PROCEDURAL HISTORY:

Plaintiff, Terry Gotch (“Mr. Gotch”), filed suit against Defendants, Scooby’s

ASAP Towing; John Doe; and ABC Insurance (“Scooby’s”), for injuries sustained

as a result of a vehicular accident that occurred in February 2013. Two different

versions of the incident giving rise to this litigation were presented at trial.

Mr. Gotch alleged that Joseph Derousselle (“Mr. Derousselle”), an employee

of Scooby’s, backed out of a private driveway causing Alydia Menard (“Ms.

Menard”), the driver of the vehicle in which he was a passenger, to make an evasive

maneuver to avoid a collision. Ms. Menard’s vehicle subsequently left the roadway

and struck a ditch, causing his injuries.

Mr. Derousselle alleged that after backing out of the private driveway, he

noticed Ms. Menard coming around the curve and he pulled back into the driveway.

He further alleges that the fog, together with the excessive rate of speed at which Ms.

Menard was traveling on the wet highway, likely contributed to her inability to slow

down or stop, and caused her to instead veer off the road.

Following a jury trial, during jury deliberations, the alternate juror advised the

court and all counsel in the courtroom that the jurors had ignored the court’s Plain

Civil Jury Instruction by discussing the case amongst themselves during the

proceedings, rather than waiting to do so when they began deliberations at the end

of trial. Within minutes of retiring to deliberate, the jury returned with a verdict.

After receiving the verdict, having already spoken privately with the discharged

alternate juror, the trial court questioned the foreperson, who admitted that the jurors

had discussed the case amongst themselves during the proceedings. After the jury

was excused, Mr. Gotch moved for a mistrial based on jury misconduct. The motion

for mistrial was denied on October 9, 2017.

On October 30, 2017, Mr. Gotch filed a motion for devolutive appeal, which

was subsequently dismissed without prejudice because the judgment lacked the

proper decretal language. An amended judgment was signed on July 9, 2018.

Mr. Gotch timely filed a second motion for devolutive appeal. Pursuant to

that motion, Mr. Gotch is presently before this court alleging two assignments of

error.

ASSIGNMENTS OF ERROR:

1. The trial court erred by failing to grant plaintiff’s motion for mistrial made
after the jury verdict because the jury by it’s [sic] own admission
disregarded the trial judge’s instructions not to make any determinations
until the end of the trial. The judgment of the jury should be voided and a
mistrial granted.

2. In the alternative, the trial court erred by adopting the verdict of the jury
as judgment and the judgment should be reversed and judgment rendered
in favor of the plaintiff.

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ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, Mr. Gotch contends that the trial court erred

in failing to grant a mistrial after members of the jury admitted that they began

discussing the case amongst themselves during the proceedings, rather than waiting

until they began deliberations at the end of trial, in contravention of the court’s

instruction. We find merit to this assignment of error.

“[T]he conduct of the trial is within the discretion of the trial court, and that

discretion is subject to review only for abuse of that discretion.” Barre v. Bonds,

99-1806, p. 23 (La.App. 4 Cir. 5/10/00), 763 So.2d 60, 73 (citing La.Code Civ.P. art.

1631).

“The Louisiana Code of Civil Procedure does not expressly provide for

mistrials, and the jurisprudence concerning motions for mistrials is limited.

Generally, mistrials are properly granted because of some fundamental failure in the

proceeding.” Lewis v. Time Saver Stores, Inc., 599 So.2d 442, 443 (La.App. 4

Cir.1992) (quoting Searle v. Travelers Ins. Co., 557 So.2d 321,323 (La.App. 4 Cir.

1990)).

In Leblanc v. Mercedes-Benz of North America, Inc., 93-907 (La.App. 3 Cir.

3/2/94), 633 So.2d 399, 402-03, writ denied, 94-1225 (La. 7/1/94), 639 So.2d 1169

(citations omitted) (quoting Barnes v. Thames, 578 So.2d 1155, 1161 (La.App. 1

Cir.), writ denied, 577 So.2d 1009 (La.1991)), (citations omitted), this court noted:

[A] motion for mistrial in a civil case should be granted under the
following circumstances: (1) when, before the trial ends and the
judgment is rendered, the trial judge determines that it is impossible to
reach a proper judgment because of some error or irregularity; and (2)
where no other remedy would provide relief to the moving party.

Motions for mistrial should also be granted upon proof of
prejudicial misconduct occurring during a jury trial, which cannot be
cured by admonition or instruction . . . .

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Our review of the record reveals that at the onset of trial, the court instructed

the jury as follows:

You may only discuss the case with the other members of the jury when
you begin deliberations on your verdict and all other members of the
jury are present. Until you reach a verdict at the end of the trial, don’t
communicate about your discussions with anyone else.

Our further review of the record reveals that the alternate juror advised the

court and all counsel in the courtroom that the jurors had ignored the court’s Plain

Civil Jury Instruction by discussing the case amongst themselves during the

proceedings, rather than waiting until the end of trial during deliberations to do so,

and that within minutes of retiring to deliberate, the jury reached a verdict. Moreover,

after reviewing the verdict, having already spoken privately with the discharged

alternate juror, the trial court questioned the foreperson.

THE COURT: Okay. Mr. McClelland, I’m going to start with
you. By accident, I guess – I’m going to first say that I, obviously,
didn’t do my job well. When we spoke to the alternate, the lawyers
wanted to ask some questions, wanted to know if they were – how they
did and what happened. She responded that, “Pretty much from the
opening statement, we had decided that the defendant wasn’t at fault.”
I then asked her outside by herself “Was there any discussion amongst
you all about the case or about what was going on during breaks and
anything else?” And her response was “Yes.”

I now have to ask, and I’ll start with you, Mr. McClelland, were
there any discussions during breaks, and after we recessed, or whatever
amongst yourselves about the case?

FOREPERESON (MR. McCLELLAND): Yes, sir.

THE COURT: So I’m going to take full blame in that I said in
my opening, but I, obviously didn’t do a very good job of telling you
all, you should have no discussions about the case, and even in my
closing, I said “While I told you in openings, you cannot discuss
amongst yourselves or with anyone else the facts of the case. I lift that
now to tell you that you can now discuss amongst yourselves, and all
that. Okay. So there’s no doubt that there was discussions during the
pendency of the deal amongst yourselves about the case, and the facts,
and the stuff that was going on. Okay.

Could I have done something better or have - -

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FOREPERSON (MR. McCLELLAND): I don’t think any of us
were under the impression that we were not allowed to speak about it
inside the jury deliberation room. So, actually, I felt that that was our
duty, is to speak about it and discuss it amongst each other to, I mean,
come up with a verdict.

THE COURT: Okay. Yes, Ms. - -

JUROR (MS. HENNIGAN): Hennigan.
THE COURT: - - Hennigan. Yes.

JUROR (MS. HENNIGAN): Actually, and I’ve done this before,
I mean, hadn’t gone this far, but our understanding is, as he said, that
we were not to discuss it outside of that room, I mean, or anywhere in
public, or on an elevator - -

THE COURT: Right.

JUROR (MS. HENNIGAN): - - and that’s what was made more
clear under, you know, don’t let anyone you may be passing - - so we
really didn’t understand that.

THE COURT: Okay.

JUROR (MS. HENNIGAN): I will say some, from the beginning,
did feel one way or the other. Nobody made - - I don’t know that
anyone made a hundred percent decision one way or the other until - -
because we all have lots and lots of notes that we took. We took - -
every - - I don’t want that to look like we did not look at all the
information. We looked at all the information, I mean, from
percentages to how they backed out, drove in to - - and I know about -
- I know a lot about spines and - - Anyway, so there was - - it was a
good discussion, it was, and to the point of the benefit of the doubt and
everything. But to be able to say that this was - - that any pain and
suffering could be caused by the gentlemen backing out of his driveway
on a foggy morning, we could not see that. And so - -

THE COURT: I’m not faulting your decision.

JUROR (MS. HENNIGAN): I know, but we tried - -

THE COURT: Right. And I am glad for that to be on the record
because somebody might take an appeal. I don’t know. So I am, at this
time, going to let counsel, if anybody has a question.

MR. MALONE: Your Honor, I just - - No, I don’t.

THE COURT: Did anybody not participate in discussions during
breaks or in the room with fellow jurors about the case?

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FOREPERSON (MR. McCLELLAND): I don’t - - Also, and I
don’t know if this is relevant or not, but we didn’t - - there was - -
throughout our discussions, no one - - I don’t think anybody was
swayed one way or the other by someone else. Everyone just voiced
their own opinion, pretty much all was in agreement.

THE COURT: Right. So the issue will be whether or not the
discussions that you had - - I mean, you came to a verdict, you did it,
obviously, with discussion amongst yourselves. No one swayed one
person from doing it or the other. The issue is just that - - And the
reason that we have that charge is so that starting from opening
statement and then when you just hear the plaintiff’s case, that you all
aren’t affecting other jurors by your thoughts and whatever on - - from
opening through close. Because the defendant - - in this case, the
defendants only had one witness, but in many cases defendants may
have a day and a half of witnesses, and if you all have been discussing
about the case after just hearing what the plaintiff said, you may be
forming an opinion during that time that may not be able to be rebuffed
now because the defendants haven’t put on their case yet. That’s the
purpose behind it. I don’t know, in this case, that it was that effect or
not, but – okay.

Based upon the answers to the court’s questions by the aforementioned jurors,

and its interview with the alternate, it is clear that the fundamental failure that

occurred during the proceedings was significant, ongoing, and widespread. It is

equally clear that the jurors’ prejudicial misconduct cannot be cured by admonition

or instruction. As such, we find that the trial court erred in failing to grant a mistrial.

Accordingly, we reverse the trial court’s ruling on this issue.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Mr. Gotch “maintains that Derousella’s [sic]

trial version of the accident, first offered four years after the incident when he refused

to give his version on the scene, is not to be believed, and that the jury verdict in

favor of defendant should be reversed and judgment rendered in favor of the plaintiff

as they [sic] verdict was not reasonable.” We find no merit to this contention.

Our review of the record reveals that the jury was presented with two viable

versions of the incident giving rise to this litigation. It is the role of the jury to weigh

the evidence, determine the credibility of the witnesses, and reach a verdict based on
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reasonable inferences of fact. Neither our review of the record, nor Appellant’s

argument in support of his contention, convinces us that Appellee did not present a

viable case. Accordingly, we find no merit to this assignment of error.

CONCLUSION:

Terry Gotch asserts two assignments of error as to why the trial court erred in

failing to grant a mistrial and in adopting the verdict of the jury. Finding merit to

Mr. Gotch’s first assignment of error, that the trial court erred in failing to grant a

mistrial due to the fundamental failure that occurred during the proceeding, we

reverse the trial court’s ruling on this issue.

Costs of these proceedings are assessed to Terry Gotch.

REVERSED AND REMANDED.

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