Tramel v. Bass, 95-1239

• Decision Date: 19 April 1996
• Docket Number: No. 95-1239,95-1239
• Citation: 672 So.2d 78
• Parties: 21 Fla. L. Weekly D935 Thomas S. TRAMEL, III, as Sheriff of Columbia County, Appellant, v. Runette J. BASS, Appellee.
• Court: Florida District Court of Appeals

Page 78

672 So.2d 78

21 Fla. L. Weekly D935

Thomas S. TRAMEL, III, as Sheriff of Columbia County, Appellant, v. Runette J. BASS, Appellee.

No. 95-1239.

District Court of Appeal of Florida,

First District.

April 19, 1996.

An appeal from the Circuit Court for Alachua County; James Tomlinson, Judge.

John W. Jolly, Jr. of Parker, Skelding, Labasky, Corry, Eastman & Hauser, Tallahassee, for Appellant.

Mark A. Avera and Sharon H. Proctor of Avera & Avera, Gainesville, for Appellee.

VAN NORTWICK, Judge.

Thomas S. Tramel, III, as the sheriff of Columbia County, appeals an order which, as a sanction, strikes his answer and affirmative defenses and enters a default judgment against him. The trial court imposed this drastic sanction upon its finding that employees of the sheriff "willfully and intentionally" omitted a crucial portion, damaging to the testimony of a deputy sheriff, of a videotape produced in discovery and introduced as evidence in an "intentional and flagrant attempt to mislead" the appellee, Runette J. Bass, and the trial court, "to prevent highly prejudicial and relevant evidence from falling into the hands of [Bass] ...," and "to perpetrate a fraud upon [the trial court] ... in deliberate and contumacious disregard of [the trial court's] authority." Because we conclude that competent, substantial evidence supports the findings of the lower court and that, based on those findings, the lower court did not abuse its discretion in fashioning its sanction against the sheriff, we affirm.

Factual Background and Procedural History

Bass was seriously injured on November 27, 1992, when the car she was driving was struck by another automobile traveling at a high rate of speed. The other car, a brown Lincoln, was being pursued by a Columbia County Deputy Sheriff, Randy Dowling, whose patrol car was equipped with a video camera which had been activated when his car's flashing lights were activated at the commencement of the pursuit. The driver of the Lincoln and his passenger fled the scene of the accident on foot and had not been identified or apprehended as of the date of the compilation of the instant record. The pursuit began in Columbia County, but the accident occurred shortly after the car entered Alachua County.

After the accident, Dowling submitted a police report in which he stated that the pursuit of the brown Lincoln was undertaken after it nearly collided with Dowling's police car. Dowling reported:

At approximately 5:42 P.M. on 11-27-92, I was traveling south on U.S. 441 in the area of the north entrance of Oleano [sic] State Park. This officer noticed a brown two door vehicle in the south bound lane while passing a north bound vehicle. This brown vehicle was in my lane on a collision course with the front of my patrol vehicle[.] I looked at the radar unit and observed the vehicle traveling at 80 m.p.h. I then drove my patrol vehicle off the right side of the road approximately half way into the ditch to prevent a collision with the brown vehicle. The brown vehicle, after passing the north bound vehicle[,] got back into the north bound lane. I then turned around to stop the vehicle and at the same time I turned on my blue lights to stop the vehicle, due to the vehicle speeding and driving reckless[ly] and I was in fear of other peoples [sic] safety.

Approximately a month after the accident, Bass, through counsel, made a public records request seeking, among other things, a copy of the videotape made from Dowling's patrol car. In response, a full copy of the videotape was made available to Bass.

In September 1993, an amended complaint was filed by Bass against the owners of the Lincoln and Tramel. Count I of the amended complaint pertains to the alleged negligence of the owners of the car. Since the default judgment was not entered against the owners, neither these defendants or any allegations regarding Count I are under consideration in the instant appeal.

In Count II of the amended complaint, Bass sought to recover from Tramel damages caused as a result of the negligent pursuit ¹ of the Lincoln undertaken by Dowling within the scope and course of his employment with the Columbia County Sheriff's Department. In his answer, Tramel denied any negligent conduct and raised several affirmative defenses, including sovereign immunity.

Discovery commenced during which Bass requested production of a copy of the videotape. ² A copy was produced, but the produced copy of the videotape differed from the copy obtained by Bass through the public records request in that it omitted the first six seconds of the video. The videotape produced in discovery begins with a scene of Dowling turning around to proceed in the opposite direction from which he was originally traveling. The public records version of the tape, on the other hand, begins with the image of a lone car, the brown Lincoln, approaching and passing Dowling's police car traveling in the opposite direction. On this tape, the Lincoln is not seen passing another car, a third car is not visible, and the approaching car does not threaten to force Dowling off the road. In the public records copy Dowling is then seen driving the shoulder, turning 180 degrees into the opposite lane and proceeding on a chase of the Lincoln for several miles until coming upon the accident scene. In short, the public records copy of the videotape contradicts Dowling's report that he began a pursuit after observing the reckless driving of the Lincoln, while the version of the videotape produced during discovery excludes the contradictory six seconds.

In his deposition Dowling reiterated the facts included in his police report, stating that he first saw the Lincoln when it pulled out to pass another vehicle and placed Dowling "in a collision course" with the Lincoln causing Dowling's police car to "skid into the side of the road because of the sudden way I had to get off the road to prevent the accident...." Dowling also testified that he wanted to stop the Lincoln because he believed the reckless driving exhibited by the passing of the car suggested that public safety was endangered.

Tramel moved for summary judgment. In his motion, the sheriff repeated Dowling's version of the events. In support of his motion, Tramel submitted to the trial court a copy of the videotape recording of the pursuit of the Lincoln. Like the copy produced to Bass in discovery, the videotape filed in support of the motion for summary judgment omitted the first six seconds of the original video recording. In other words, the lower court was also given a videotape recording which begins with Deputy Dowling turning around his patrol car to pursue the Lincoln. ³

Thereafter, Bass moved for sanctions alleging in part, as follows:

The first six seconds of the complete videotape directly contradicts the incident report and Dowling's deposition testimony.... The inescapable conclusion is that TRAMEL and his representatives willfully, illegally, and with the most contemptuous disregard for the judicial process and the rules of discovery, have hidden and refused to disclose the existence of the additional videotape footage. That additional six seconds of videotape footage, when analyzed in context with Dowling's description of events, directly contradicts and discredits Dowling's version of events and destroys his justification for the pursuit.

* * * * * * TRAMEL now seeks to intentionally and materially misrepresent the material facts of this dispute by representing in his Motion for Summary Judgment that Dowling was run off the road by the Lincoln.... In addition to intentionally and materially misrepresenting the facts in an attempt to fraudulently induce this court to grant his motion, TRAMEL has attached and submitted to this court an edited videotape from which TRAMEL knows material portions have been omitted or destroyed.

(Emphasis in original).

As a sanction, Bass sought to have Tramel's answer stricken and a default judgment entered against him.

The sheriff withdrew his motion for summary judgment and the cause proceeded to a hearing on the sanctions motion. Tramel claimed that the omission of the first six seconds was an inadvertent copying error; that the original videotape still existed; and that, as of the time of the hearing, the original tape had been made available to Bass. The sheriff argued that the requested sanction was too severe because human error, rather than an intentional deception, caused Bass and the court to receive incomplete copies of the videotape.

The lower court viewed the original videotape and the two shorter versions produced to Bass and filed with the court. It then heard from several witnesses, including the evidence custodian of the Columbia County Sheriff's Department, who had custody of the videotape; Dowling, who continued to maintain that he was nearly run off the road by the Lincoln; William Mayo, an investigator with the Sheriff's Department who investigated the accident and reviewed the original videotape with Dowling at Dowling's home the night following the accident and with other police officers in the weeks following the accident; and Officer Roberts, who on two separate occasions made each of the two copies of the videotape which were produced to Bass in discovery and filed with the lower court. In his testimony, Roberts conceded that the original videotape did not indicate that the Lincoln nearly ran Dowling off the road, but explained that the two copies, made at separate times, each omitted the initial six seconds because of coincidental "operator error." Roberts explained:

There's no conspiracy, there's no wrongdoing, there's no anything [sic] secret here. All this is is [sic] I put one tape in before--and hit the record faster than I hit the other one, and my own fault, I didn't back the tape up and review the entire thing to make sure you got it. But there was nothing--no wrongdoing, no perjury, no nothing here. This is--I mean, it's...