The opinion
ANTHONY GOBUZZI AND * NO. 2024-CA-0101
DAWN MALASOVICH
*
VERSUS COURT OF APPEAL
*
EARNEST BROWN, HUTTIG FOURTH CIRCUIT
BUILDING PRODUCTS, *
MICHAEL BEALS, ACE STATE OF LOUISIANA
AMERICAN INSURANCE *******
COMPANY, AND GEICO
INSURANCE COMPANY
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-02529, DIVISION “E”
Honorable Omar Mason, Judge
******
Chief Judge Roland L. Belsome
******
(Court composed of Chief Judge Roland L. Belsome, Judge Daniel L. Dysart,
Judge Dale N. Atkins)
ATKINS, J., CONCURS IN THE RESULT.
Scott R. Samuel
SAMUEL & COLEMAN, LLC
3421 N. Causeway Blvd., Suite 201
Metairie, LA 70002
COUNSEL FOR PLAINTIFF/APPELLANT
Lauren B. Dietzen
Eric Winder Sella
Jennifer C. Voss
PLAUCHE MASELLI PARKERSON, LLP
701 Poydras Street, Suite 3800
New Orleans, LA 70139
COUNSEL FOR DEFENDANTS/APPELLEES
AFFIRMED.
JANUARY 15, 2025
RLB Plaintiff/appellant appeals a judgment confirming a jury verdict that found
DLD the defendant not liable for the alleged injuries and damage arising from a motor
vehicle accident. For reasons that follow, we affirm the judgment and the trial
court’s decision disallowing a mistrial.
Plaintiffs, Anthony Gobuzzi (“Gobuzzi”) and Dawn Malasovich
(“Malasovich”) were passengers in a pickup truck when it collided with an 18-
wheel tractor-trailer in March 2019. Gobuzzi and Malasovich sued Michael Beals
(“Beals”), the driver of the pickup truck, and his insurer. The plaintiffs also sued
the tractor-trailer’s driver, Earnest Brown (“Brown”); its owner, Hutting Building
Products (“Huttig”); and their insurer, Ace American Insurance Company (“Ace”).
Gobuzzi and Malasovich settled their claims against Beals and his insurer prior to
trial. The remaining defendants (collectively, “Appellees”) tried their case to the
jury.
Appellant challenges the correctness of the jury’s verdict based on the facts
and the trial court’s failure or refusal to declare a mistrial before the case was
submitted to the jury.
Factual background and procedure below
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There are two distinctly different accounts of this motor vehicle accident.
The parties agree that the collision occurred on Chef Menteur Highway, eastbound,
near Mile Post 90 about 3 p.m. on March 13, 2019. Traffic was highly congested
at the location because of another accident farther east on the highway. Brown was
driving in the far left lane and Beals’ pickup truck was in the next lane to the right.
After the contact, Beals and Brown, both turned left onto the I-510 entrance ramp,
where Beals followed Brown and flagged him down. Beyond these basic facts,
there is a stark contrast in the telling of this tale.
According to Appellant, Beals’ truck was at a complete stop when, suddenly
and without warning, Brown made a wide, left turn toward the I-510 on-ramp
causing his trailer to make contact with Beals’ driver-side door, tool box and
quarter panel, pushing Beals’ vehicle to the right. The force of the impact was
sufficient to cause injuries that might require three-level cervical fusion surgery
and two-level lumbar fusion surgery.
In Appellees’ version of the facts, Brown remained entirely within his lane.
In his side-view mirror, he saw Beals’ vehicle veering left into his lane. As Beals
continued to creep over into Brown’s lane, Brown moved left as far as he could
until he could not get over anymore. As he continued moving straight in the far left
lane towards his anticipated turn onto I-510, Brown heard a screech. The contact
between the two vehicles was a minor sideswipe that only damaged Beals’ driver-
side external mirror and scratched the toolbox that was mounted in Beals’ truck
bed.
The jury apparently believed Appellee’s version of events and rendered a
verdict that found Brown had no fault in causing the collision. The trial court
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entered judgment accordingly. From that judgment, Gobuzzi1 has brought this
appeal.
Discussion
Gobuzzi’s assignments of error can be summarized as (1) the verdict and the
judgment are contrary to the evidence adduced at trial, and (2) the trial court erred
in failing to grant a mistrial when Appellees alluded to the existence of a police
report that had been excluded by a ruling on a motion in limine.
Verdict contrary to evidence
A jury’s determination of fact is accorded the highest level of deference on
appeal. Only a finding of manifest error justifies the reversal of the jury’s verdict.
In Bonin v. Ferrellgas, Inc., 2003-3024, p.6 (La. 7/2/04), 877 So.2d 89, 94, the
court provided the following guidance on manifest error:
Under the manifest error standard, in order to reverse a trial court's
determination of a fact, an appellate court must review the record in
its entirety and (1) find that a reasonable factual basis does not exist
for the finding, and (2) further determine that the record establishes
that the fact finder is clearly wrong or manifestly erroneous.
(citing Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880,
882.)
Appellees presented photographs of the affected vehicles immediately after
the accident. Brown’s testimony (as described above) was simple and
straightforward in explaining how the vehicles collided. When viewed together, a
reasonable juror could find that, more likely than not, the collision happened
exactly as Brown described it.
1 Malasovich did not appeal the judgment.
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Based on the record before us, we find no reason to question the rationality
of the jury’s fact-finding function. We reject Appellant’s argument that the jury
verdict is inconsistent with the evidence presented at trial.
Mistrial
Prior to trial, Gobuzzi filed a motion in limine seeking to exclude evidence
of a police report. During the course of the trial, Appellees’ counsel and two of
Appellees’ experts mentioned the police report. None of the contents of the report
were disclosed. On each occasion, the trial court admonished counsel against any
reference to the existence of the report. After one such incident, the record appears
to indicate that Gobuzzi made a motion for mistrial. Whether the motion was
made or not is unclear because the transcript does not contain such a motion.
However, the trial judge understood that a motion was made because the transcript
reflects his denial of the motion. For the purposes of our analysis, we accept that
Gobuzzi made a motion for mistrial or that the court considered making it sua
sponte under the authority granted by La. C.C.P. art. 1631. We hold that the trial
court did not abuse its discretion in denying the motion for mistrial, and we affirm
the trial court’s decision.
Mistrial is a drastic remedy that should not be granted unless an error would
deprive a party of any reasonable expectation of a fair trial. Kullman Firm, APLC.
v. Integrated Elec. Techs., Inc., 2024-0138, p. 12 (La. App. 4 Cir. 9/27/24), __So.
3d__ WL 4314971 (quoting from Gotch v. Scooby's ASAP Towing, LLC, 2019-
0030, p. 5 (La. 6/26/19), 285 So.3d 459, 463) the court added
Pursuant to La. Code Civ. Proc. art. 1631, district courts on their own
motion, or on the motion of any party, following a hearing, have vast
discretion in determining whether to grant a mistrial, since mistrials
are not a matter of right. Therefore, appellate courts may not disturb a
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district court's denial of a motion for mistrial absent a showing of an
abuse of that discretion.
Kullman, 2024-0138, at p. 12.
In the case before us, the utterance of the words “police report” may have
been prejudicial. However, the trial court is in a superior position to determine
whether the prejudice, if any, was sufficient to deprive Gobuzzi of any “reasonable
expectation of a fair trial.” There is no evidence in the record that convinces this
court that the trial court abused its discretion.
Conclusion
The evidence at trial supports the jury’s verdict sufficiently to persuade a
rational fact finder that Brown did not cause the collision at issue. The record does
not reveal evidence that the impermissible utterance of the words, “police report,”
should have resulted in a mistrial. Therefore, we affirm the judgment of the trial
court.
AFFIRMED.
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