Davidson v. Perron

• Decision Date: 11 October 2001
• Docket Number: No. 43A05-0105-CV-184.,43A05-0105-CV-184.
• Citation: 756 N.E.2d 1007
• Parties: Bruce DAVIDSON, Appellant-Plaintiff, v. James PERRON and the City of Elkhart, Appellees-Defendants.
• Court: Indiana Appellate Court

756 N.E.2d 1007

Bruce DAVIDSON, Appellant-Plaintiff, v. James PERRON and the City of Elkhart, Appellees-Defendants.

No. 43A05-0105-CV-184.

Court of Appeals of Indiana.

October 11, 2001.

Roger A. Bird, Bird Svendsen Brothers, Scheske & Pattison, P.C., Sturgis, MI, Attorney for Appellant.

R. Kent Rowe, Marie Anne Hendrie, South Bend, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge

Bruce Davidson appeals a grant of summary judgment in favor of the City of Elkhart (the City), as well as certain discovery rulings issued by the trial court. Specifically, Davidson presents the following restated issues for review:

1. Did the trial court abuse its discretion in granting the appellees' motion to strike the affidavit of Carol McDowell?

2. Did the trial court err in limiting discovery by Davidson?

3. Did the trial court err in granting summary judgment in favor of the City concerning claims arising under 42 U.S.C. § 1983?

We affirm.¹

This case has come before this court on two prior occasions. We reproduce below the facts as set out in the second of those two opinions:²

Until his termination by the Elkhart Board of Public Works in October of 1995, Davidson was a police officer with the Elkhart Police Department and was also president of the local Fraternal Order of Police. On January 4, 1994, a letter signed and purportedly written by Elkhart reserve police officer Steven Cappelletti appeared in the editorial section of The Elkhart Truth. The letter, written in response to a letter Davidson had written that had been published in the newspaper several days earlier, contained the following two paragraphs that became the subject of this lawsuit:

Davidson's assertion that "Mayor Perron has been too soft on crime and a little too hard on cops" is laughable. In reality, some cops like Davidson have been a little too soft on crime and too hard on Mayor Perron.

Police certainly have privileges but I do not believe that they should be abused in the way that some officers like Davidson have done. The so-called vote of no confidence amounted to only a cheap shot against the chief.

Record at 82 (emphasis added). In January of 1995, Cappelletti admitted to Davidson that the Mayor was the true author of the letter. Thereafter, on February 9, 1995, Davidson sent his written tort claims notice to the Mayor and the City. Although the Mayor publicly denied that he had written the letter and his denial was reported in The Elkhart Truth, the Mayor later admitted during a deposition that he had written the letter.

On June 1, 1995, Davidson filed a one count complaint for defamation against the Mayor and the City in the Elkhart Superior Court. The Mayor and the City filed a motion to dismiss on July 21, 1995, alleging that the statements in the letter were not defamatory, as a matter of law. The Elkhart Superior Court granted the motion to dismiss in part, and denied the motion in part. Davidson then filed a motion to amend his complaint to include constitutional and civil rights claims under 42 U.S.C. § 1983 against the Mayor and the City. Davidson's constitutional and civil rights claims alleged that the Mayor had engaged in a plan to discredit him and damage his reputation. Davidson also alleged that the Mayor engaged in harmful conduct which eventually led to Davidson's termination from the police department and which further damaged his reputation. The parties subsequently moved for a change of venue due to excessive press coverage, and the case was transferred to the Kosciusko Circuit Court.

With leave of court, Davidson then filed a "Restated Complaint" on May 22, 1998. The Mayor and the City filed a motion to dismiss the restated complaint which the court granted on June 30, 1998. In response, Davidson filed a motion to amend the complaint which was granted by a judge pro tempore. Thereafter, in addition to filing his two count "Amended Complaint for Civil Rights Violations, Defamation, and Libel" against the Mayor and the City, Davidson filed a Motion to Correct Error regarding the trial court's June 30, 1998, dismissal of his restated complaint. Following a hearing held on October 7, 1998, the trial court denied Davidson's motion to correct error and granted the Mayor and the City's motion to dismiss Davidson's amended complaint.

Davidson v. Perron, 716 N.E.2d 29, 32-33 (Ind.Ct.App.1999) (Kirsch, J., concurring in part and dissenting in part).

In the second appeal, this court held that the trial court erred when it dismissed Davidson's defamation claim pursuant to Ind. Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted. We also reversed the trial court's dismissal, on grounds that the same action was pending in another state court of this state, of Davidson's constitutional and civil rights claims. See id.

After the case was remanded to the trial court for further proceedings, disputes arose with respect to the boundaries of permissible discovery available to Davidson. Davidson appeals herein several adverse decisions pertaining to discovery. Also after remand, the City filed a motion for summary judgment on both counts of Davidson's complaint, i.e., defamation and constitutional rights violations. The trial court granted the motion and entered summary judgment in favor of the City on both counts of Davidson's complaint. Davidson appeals that ruling only with respect to the claim of constitutional rights violations.

1.

Davidson contends that the trial court erred in striking the affidavit of Carol McDowell. A trial court enjoys broad discretion when ruling upon discovery matters and we will interfere only where an abuse of discretion is apparent. Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d 292 (Ind. Ct.App.2000). An abuse of discretion occurs where the decision is against the logic and natural inferences to be drawn from the facts of the case. Id. Because of the fact-sensitive nature of discovery issues, a trial court's ruling is cloaked with a strong presumption of correctness. Id.

In the instant case, on March 14, 1999, Carol McDowell executed an affidavit that stated as follows:

1. I am an adult resident of the State of Indiana.

2. That from 1992 to 1996 I served on the Elkhart City Council.

3. That I know Bruce Davidson and that Bruce Davidson worked on my mayoral campaign in 1995.

4. After a city council meeting on August 7, 1995, I spoke with then [Elkhart Chief of Police] Dennis Bechtel.

5. Bechtel asked me if we couldn't be friends and I told him not as long as he was "going after" people who were honest and had integrity, which was a reference to Bruce Davidson.

6. Bechtel then told me that "If I don't get him on this, then I'll get him on other stuff."

7. By "this," Bechtel was referencing the current charges that he had brought against Davidson.

8. I made a statement at some point indicating that I thought that Bechtel should not be attempting to get Davidson terminated.

9. Bechtel's response to my statement described in paragraph eight (8) above was that there was "way too much water over the bridge between him and Perron."

10. My understanding of the conversation as described above was that Bechtel had orders from Perron, because of the public differences between Perron and Davidson, for Bechtel to have Davidson terminated.

Appellant's Appendix at 160.

The trial court set November 3, 2000 as the date by which discovery was to be completed. On May 3, 2000, the appellees served upon Davidson a request for production of documents that included a request for "[a]ny statement, whether written or oral, signed or unsigned, in the plaintiff's possession from any individual listed in response to any of the interrogatories served upon the plaintiff" and "[a]ny statement, whether written or oral, signed or unsigned in the plaintiff's possession from any individual who claims to have knowledge of any fact supporting the plaintiff's claim." Appellant's Appendix at 260. On June 5, 2000, Davidson submitted the following in response to the two requests:³

Plaintiff objects to this request to the extent that it calls for information protected by the attorney-client and work product privileges. Subject to and without waiving his objections, Plaintiff states that he has no statements yet, but that he will produce same, subject to his rightful objections, when those statements are complete.

Appellant's Appendix at 262. We reiterate here that the McDowell affidavit had then been in Davidson's possession for more than one year. Also on June 5, 2000, in answer to an unrelated discovery request from the appellees, Davidson identified McDowell as an individual that Davidson planned to call as a witness on his behalf at trial. On September 2, 2000, however, Davidson filed his witness list and McDowell's name was not included.

On September 15, 2000, Perron and the City filed a motion or summary judgment. In response, on November 17, 2000, Davidson filed a motion and brief in opposition to the motion for summary judgment. In support of his motion, Davidson designated the affidavit of McDowell. On December 5, 2000, the appellees moved to strike McDowell's affidavit on the ground that although it was executed more than seventeen months before, its existence was not divulged until after the November 3 discovery cut-off date. The trial court granted the motion to strike.

The court set a November 3 discovery deadline, and Davidson failed to adhere to that deadline with respect to the McDowell affidavit. Davidson's counsel explained at oral argument before this court that Davidson failed to comply with the deadline primarily because, at the time, he was representing himself. According to counsel, Davidson simply forgot that he had the affidavit when he responded to the appellees' discovery requests. Counsel opined that this oversight was understandable in view of the sheer volume of material then contained in the case file. Those reasons are not persuasive.

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