Gotch v. Scooby's Asap Towing, LLC

Decision Date06 December 2018
Docket Number18-355
Citation259 So.3d 1107
Parties Terry GOTCH v. SCOOBY'S ASAP TOWING, LLC, et al
CourtCourt of Appeal of Louisiana — District of US

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

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.

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 ....

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
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1 cases
  • Gotch v. Scooby's Asap Towing, LLC
    • United States
    • Louisiana Supreme Court
    • June 26, 2019
    ...of appeal reversed, finding the district court erred in denying plaintiff's motion for mistrial. Gotch v. Scooby's ASAP Towing, LLC , 18-355 (La. App. 3 Cir. 12/6/18), 259 So.3d 1107.Upon defendants' application, we granted certiorari to review the correctness of the judgments below. Gotch ......

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