City of Dallas v. Cox

• Decision Date: 13 June 1990
• Docket Number: No. 05-89-00216-CV,05-89-00216-CV
• Citation: 793 S.W.2d 701
• Parties: The CITY OF DALLAS, Texas, Appellant, v. Suzanne COX, Individually and as Next Friend of Carrie Cox and Courtney Cox, Minors, as well as Suzanne Cox, Executrix of the Estate of Ronnie Cox, Deceased; R.D. Cox; and the Town of Addison, Appellees.
• Court: Texas Court of Appeals

Page 701

793 S.W.2d 701

The CITY OF DALLAS, Texas, Appellant, v. Suzanne COX, Individually and as Next Friend of Carrie Cox and Courtney Cox, Minors, as well as Suzanne Cox, Executrix of the Estate of Ronnie Cox, Deceased; R.D. Cox; and the Town of Addison, Appellees.

No. 05-89-00216-CV.

Court of Appeals of Texas Dallas.

June 13, 1990.

Rehearing Denied Aug. 20, 1990.

Jim Cowles, John M. Weaver, Sam A. Lindsay, R. Brent Cooper, Dallas, for appellant.

Edwin E. Wright, III, R. Jack Ayres, Diane F. Walker, Thomas V. Murto, III, Julie Kay Baker, Dallas, for appellees.

Before WHITHAM, ROWE and BAKER, JJ.

OPINION

ROWE, Justice.

The City of Dallas appeals from the trial court's judgment in a suit in which Suzanne Cox, individually and as next friend of Carrie and Courtney Cox, was a plaintiff, R.D. Cox and the Town of Addison were plaintiff-intervenors (hereinafter collectively referred to as the Coxes), and Dallas was a defendant. The lawsuit involved the shooting death of Addison Police Officer Ron Cox by Dallas Police Officer Darren Coleman during a drug raid conducted in Dallas by officers of both police departments. In thirteen points of error, Dallas complains of the trial court's imposition of discovery sanctions and other alleged errors. We affirm the trial court's judgment.

The Coxes filed numerous motions for sanctions for alleged discovery abuses on Dallas's part. The trial court granted the first motion and ordered Dallas to pay $93,250 to the Coxes. The trial court later granted the second through ninth motions for sanctions and struck Dallas's answer. The trial court then rendered a judgment against Dallas on the issue of liability and conducted a jury trial on damages. After the jury made its findings, the trial court rendered a judgment awarding the Coxes $2,350,723.92 plus postjudgment interest. The trial court awarded Addison $52,133.16 plus postjudgment interest.

We deal with Dallas's second point of error first, where it contends that the trial court abused its discretion in granting the first motion for sanctions and ordering Dallas to pay $93,250 as a discovery sanction. The trial court had issued an order specifying deadlines of November 2 and November 5, 1987, for producing documents and answering interrogatories. On November 13, 1987, the Coxes moved for sanctions, alleging a pattern of obstructive and dilatory discovery tactics by Dallas. Specifically, the motion alleged, among other things, that requested documents were not furnished and that other documents were furnished only during depositions in a piecemeal fashion. Dallas responded and acknowledged that some documents were not provided as requested and ordered. Dallas maintained that these failures were due to oversights, mistakes, and inadvertence, and that such failures were to be expected because the materials requested were voluminous.

The Texas Rules of Civil Procedure authorize courts to require parties to pay reasonable expenses, including attorney fees, for failure to comply with proper discovery requests or court orders on discovery, or for abuse of the discovery process. TEX.R.CIV.P. 215(2)(b)(8), 215(3). Discovery sanctions imposed by a trial court will be set aside only if the court clearly abused its discretion. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1986) (per curiam). The test for abuse of discretion is not whether the reviewing court thinks that the facts presented an appropriate case for the trial court's action. Rather, the question on appeal is whether the trial court acted without reference to any guiding rules and principles. The mere fact that a trial judge decided a matter within his discretionary authority in a different way from the manner in which an appellate judge might have decided the matter under the same circumstances does not establish that an abuse of discretion has occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Discovery sanctions may properly be imposed to secure compliance with discovery rules, to deter other litigants from violating discovery rules, and to punish parties for violation of the rules. Bodnow, 721 S.W.2d at 840. Rule 215 contemplates adherence to, and enforcement of, court orders concerning discovery. TEX.R.CIV.P. 215(1), 215(2). Discovery sanctions that do not serve the purposes that sanctions were intended to further constitute an abuse of discretion. Bodnow, 721 S.W.2d at 840.

Before we review the propriety of the granting of the motions for sanctions, we will first discuss the nature of the lawsuit. The Coxes alleged several causes of action against Dallas. One cause of action was based on federal civil rights law. See 42 U.S.C.A. § 1983 (West 1981). A cause of action under section 1983 is stated when a plaintiff alleges that personal injury or death was caused by the use of excessive force by police officers, thereby effecting an unreasonable seizure of a person under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 1867, 1871, 104 L.Ed.2d 443 (1989); Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 1380, 1382, 103 L.Ed.2d 628 (1989); Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Under section 1983, a municipality may be held liable when execution of its policies or customs inflicts injury that amounts to a constitutional deprivation. City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989); Monell v. Department of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978). A municipality's failure to train its employees in a relevant respect reflecting a deliberate indifference to the rights of its inhabitants may properly be considered a custom or policy that is actionable under section 1983. City of Canton, 109 S.Ct. at 1205 & n. 10.

The Coxes alleged that Ron Cox's death was caused by the use of excessive force inflicted in accordance with policies or customs of the Dallas Police Department. They alleged that the execution of, and compliance with, Dallas Police Department policies, including training policies, caused Ron Cox's death, depriving him of his constitutional right to be free from unreasonable seizure. They alleged that the policies were such that officials of Dallas knew or should have known that Dallas police officers were likely to kill without proper justification and restraint. The Coxes further alleged that the Dallas Police Department armed its officers with machine guns on fully automatic mode in reckless disregard of, or deliberate indifference to, the fact that use of such weapons would cause constitutional deprivations. ¹ The Coxes contended that the alleged acts and omissions constituted violations of section 1983. They also contended that the alleged conduct was actionable under the Texas Tort Claims Act ² and Texas common law. These allegations should be considered in reviewing the trial court's discovery sanctions.

With the foregoing in mind, we consider the record with respect to the first motion for sanctions. The Plaintiffs' First Request for Production, filed June 1, 1987, asked for all written documents setting out the deadly force policy of the Dallas Police Department between 1982 and 1987, including all manuals, memos, and bulletins. All written documents evidencing formulation of the deadly force policy in effect at the time of the drug raid were also requested. The Coxes' counsel produced, at the sanctions hearing, a Dallas Police Chief memorandum with attached Special Orders on the department's deadly force policy. ³ Dallas had failed to produce these documents in response to the discovery requests. These documents were admitted as evidence at the hearing.

The trial court's production deadline order required responses to the Plaintiffs' Third and Fourth Requests for Production. The third request asked Dallas for all written documents stating, describing, or setting forth rules, orders, policies, procedures, or standard operating procedures for the Tactical Section or Unit or the Special Operations Division of the Dallas Police Department. ⁴ The fourth request asked for all memos, bulletins, letters, communications, or other written documents that pertained to the Tactical Section for the years 1985, 1986, and 1987.

At the hearing, it was shown that a Tactical Officers' Manual was produced during the deposition of Officer Darren Coleman, a member of the Tactical Section, a participant in the drug raid, and the officer who shot Cox. Coleman testified in his deposition that it was the manual in force when the raid occurred. Lieutenant Scoggins, who was responsible for seeing that the requested Tactical Section documents were provided, testified at the hearing that the manual produced at Coleman's deposition was not the manual that was in force at the time of the drug raid and that it was erroneously produced. He stated that a subsequently provided manual was the controlling manual at the time of the raid. ⁵ The Coxes' counsel produced at the hearing yet another version of a Tactical Officers' Manual that had not been furnished by Dallas, and this manual was admitted into evidence. Scoggins was asked if there were any other materials or manuals concerning the Tactical Section that he had not produced, and he replied that the only thing he could not find was an old SOP (Standard Operating Procedures). An Internal Affairs Division file with an excerpt from another (fourth) version of a Tactical Section manual was admitted into evidence, and Scoggins admitted that he had not produced that manual. ⁶ It was established at the hearing that none of the manuals were dated in a manner that would allow determination of their effective dates.

The Coxes' counsel argued at the hearing that a number of witnesses would have to be redeposed because Dallas was now maintaining that the previously produced...