Terrance Dillard v. State

Opinion issued November 18, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00316-CV

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Approximately $8,500.00, Appellant

V.

The State of Texas, Appellee

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Case No. 2008-30053

MEMORANDUM OPINION

          Appellee, the State of Texas, brought a civil forfeiture action against approximately $8,500 that the State seized from Terrence Dillard when he was arrested.  See Tex. Code Crim. Proc. Ann. art 59.02 (Vernon Supp. 2010).   After the trial court sanctioned Dillard for discovery abuse, it issued a post-answer default and nihil dicit judgment against Dillard and ordered the money forfeited.  In his appeal, Dillard raises multiple complaints challenging the trial court’s judgment.  We construe Dillard’s complaints as a general issue alleging the trial court abused its discretion in sanctioning him.

          We affirm.

BACKGROUND

          In April 2008, Officer Purcell of the Humble Police Department stopped Dillard’s vehicle for a traffic violation.  The officer made contact with Dillard and identified him.  The officer asked Dillard to step outside the vehicle so that Dillard could answer some questions and provide information.  Dillard refused to get out of the vehicle.  Officer Purcell then asked another officer to search Dillard’s name and records.  The search revealed that Dillard had several warrants for his arrest.  Officer Purcell notified Dillard of the warrants, told him that he was under arrest, and again asked that he get out of the vehicle.  Dillard refused to leave the vehicle so the officers forcefully removed him and placed him into custody.  At the jail, he was searched.  The police found $8,500 cash in his sock and seized the currency.  The police used a narcotics police dog to conduct a “sniff test” on the currency.  The test returned a positive alert for narcotics odor.  

          Dillard represented himself at the trial level. He filed a motion entitled, “Motion for Return of Seized Property to the Honorable Judge of This Court: Judge Jeff Shawick [sic] Court 55.”  Dillard later filed a document entitled, “Respondent Notice of Pleading for Dismissal of Forfeiture & Seizure to the Honorable Judge of Said Court: Judge Jeff Shawick [sic] Court 55.”   In this document, Dillard made statements and assertions that the seized currency was not contraband and asked that the court return the seized currency.

Dillard also sent two letters.  Dillard sent a letter to the Texas Attorney General’s Office requesting an advisory opinion concerning the seizure of his money.  Dillard also sent a personal letter to the Harris County Civil Courthouse and finished the letter by stating, “Where do I pick up my money! {$8,500.00}.”  Attached to the letter was a document entitled “Answer is Appearance.”  In the attached document, Dillard requested that the prosecutor non-suit Dillard on the grounds that it would be frivolous for the prosecutor to pursue the case because the seized currency was erroneously classified as contraband.  Dillard also accused the prosecutor of pursuing “this cause with out [sic] any merit but for her own agenda” because she told Dillard that this case is “nothing like criminal court.”  Finally, Dillard stated that this document served as his appearance at the pre-trial conference.

The State served Dillard with requests for discovery that included a request for admissions, interrogatories, a request for disclosure, and a request for production.  In response to the State’s request for admissions, Dillard invoked his Fifth Amendment right against self-incrimination and did not answer any of the requests.  In response to the State’s interrogatories, Dillard objected to every question asked by the State except one, which asked if Dillard contended that the seized money was not subject to forfeiture, and asked Dillard to use facts to support his answer. Dillard answered, “Contend not, [s]ubsequently assent that the money made the subject of this suit is not subject to [f]orfeiture, seizure, etc.”

To the State’s request for disclosure, Dillard responded, “Pursuant to Rule 194.2 {a}, {c}, and {f} of the Texas Rules of Civil Procedures [sic], the respondent will disclose the following: a} Terrence L. Dillard c} Terrence L. Dillard will prove the money came from a reputable source, with supporting documents, statements, etc., the respondent need no[t] marshal all evidence that may be offered at trial and f} Name: Cornell University Law School . . . Subject Matter: Critical Legal Theory.”  Attached to Dillard’s response is a one-page article entitled “Critical Legal Theory.” 

In the State’s request for production, the State asked Dillard to provide any and all documents that identify Dillard as an employee of a business, support Dillard’s ownership interest in the seized currency, and other similar questions.  Dillard responded, “Pursuant to Rule 196.2 of the Texas Rules of Civil Procedures, the Respondent [o]bjects on the grounds {b} Content of Response {4} no item have [sic] been identified – after a diligent search – that are responsive to the request.”

          After receiving Dillard’s responses, the State filed a motion to compel Dillard to answer discovery.  The court granted the motion and ordered Dillard to properly answer the State’s discovery requests and hand-deliver the responses to the Asset Forfeiture division of the Harris County Attorney’s Office.  The trial court also warned appellant that he would be subject to sanctions pursuant to Texas Rule of Civil Procedure 215 if all discovery requests were not fully, completely, and properly answered.

          Appellant failed to comply with the court’s order. The State filed a second motion to compel, requesting that the trial court sanction appellant for discovery abuse. The trial court granted the State’s second motion to compel and sanctioned Dillard.  In the trial court’s order, the trial court struck Dillard’s pleadings and stated that a default judgment was to be entered against Dillard and his interest in the approximately $8,500. 

On January 22, 2009, the court issued a final judgment against Dillard.  In its final judgment, the court entered a post-answer default and nihil dicit judgment against Dillard and ordered that the $8,500 in currency seized from Dillard be forfeited because it was found by the court to be contraband. 

On February 18, Dillard filed a post-judgment motion entitled “Motion for Appeal to the Honorable Judge of Said Court: Jeff Shawick [sic], Court 55.”  On April 20, Dillard filed a document with the trial court entitled “Submission of Filing,” but addressed the document to this Court.

COMPLIANCE WITH APPELLATE PROCEDURAL RULES

          We first address the State’s contention that we lack jurisdiction because Dillard did not sufficiently perfect his appeal.

          A.      Applicable Law

Texas Rule of Appellate Procedure 26.1 provides that in civil cases an appeal is perfected when a notice of appeal is filed within thirty days after the trial court enters an appealable order, unless some document is filed that extends that time period to 90 days.  Tex. R. App. P. 26.1.  A notice of appeal must (1) identify the trial court and state the case’s trial court number and style; (2) state the date of the judgment or order appealed from; (3) state that the party desires to appeal, (4) state the court to which the appeal is taken unless the appeal is to either the First or Fourteenth Court of Appeals, in which case the notice must state that the appeal is to either of those courts; and (5) state the name of each party filing the notice.  Tex. R. App. P. 25.1(d).

Although Texas Rule of Appellate Procedure 42.3(c) permits dismissal of an appeal where the appellant has failed to comply with a requirement of the rules, a court order, or a notice from the clerk requiring a response or other action within a specified time, the rules do not require dismissal when an appellant fails to comply with Rule 25.1(d).  See Tex. R. App. P. 42.3(c).  Dismissal pursuant to Rule 42.3(c) is discretionary with the appellate court.  See id.

The Texas Supreme Court has held that the Rules of Appellate Procedure should be interpreted liberally to give appellate courts the opportunity to reach the merits of an appeal whenever possible.  Maxfield v. Terry, 888 S.W.2d 809, 811 (Tex. 1994); Foster v. Williams, 74 S.W.3d 200, 203 (Tex. App.—Texarkana 2002, pet. denied). The factor that determines whether jurisdiction has been conferred on the appellate court is not the form or substance of the perfecting instrument, but whether the instrument was filed in a bona fide attempt to invoke appellate court jurisdiction.  Warwick Towers Council of Co-Owners ex. rel. St. Paul Fire & Marine Ins. Co., 244 S.W.3d 838, 839 (Tex. 2008) (citing Walker v. Blue Water Garden Apartments, 776 S.W.2d 578, 581 (Tex. 1989)).  A court of appeals has jurisdiction over any appeal in which the appellant files an instrument that was filed in a bona fide attempt to invoke appellate jurisdiction.  Grand Prairie Indep. Sch. Dist. v. S. Parts Imps., Inc., 813 S.W.2d 499, 500 (Tex. 1991). 

We construe pro se pleadings and briefs liberally; however, parties who represent themselves must comply with all applicable laws and rules of procedure and are held to the same standards as licensed attorneys.  See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.] 1985, no writ).  To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel.  Shull v. United Parcel Serv., 4 S.W.3d 46, 53 (Tex. App.—San Antonio 1999, pet. denied). 

          B.      Notice of Appeal

          On January 22, 2009, the trial court entered an appealable judgment against Dillard.  The only document that Dillard filed prior to the 30-day deadline was a post-judgment motion on February 18 entitled, “Motion for Appeal to the Honorable Judge of Said Court: Jeff Shawick [sic], Court 55.”  The document fails to meet the requirements of rule 26.1.  It does not state the date of the judgment, but instead refers to a judgment dated June 16, 2008 from a “related case” before another court.  See Tex. R. App. P. 26.1(d)(2).  The document does not state that Dillard desires to appeal.  See id. 26.1(d)(3).  Instead, Dillard asks the court to reconsider and correct the judgment.  Next, the document does not state the court to which the appeal is taken.  See id. 26.1(d)(4).  Instead, the document is directed to the trial court, specifically “[t]o the Honorable Judge of Said Court: Jeff Shawick [sic], Court 55,” referring to the Honorable Jeff Shadwick who was defeated in the November 2008 election for that bench. Although the document includes the word “appeal” in its title, we look beyond the title of the motion to its substance to determine its nature.  See Sandles v. Howerton, 163 S.W.3d 829, 836 (Tex. App.—Dallas 2005, no pet.) (indicating that “a motion should be governed by its substance and not merely by its title”).  Dillard’s motion fails to substantially meet the requirements necessary to perfect an appeal, and even construed liberally, we cannot conclude that the document qualifies as a bona fide attempt to invoke appellate jurisdiction.

Although Dillard’s post-judgment motion was not identified as a motion to modify the judgment, any timely filed post-judgment motion that seeks a substantive change in an existing judgment qualifies as a motion to modify under rule 329b(g) of the Texas Rules of Civil Procedure, thus extending the trial court’s plenary jurisdiction and the appellate timetable.  Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 314 (Tex. 2000); see also Tex. R. Civ. P. 329b(g); Tex. R. App. P. 26.1.  In his motion, Dillard requested that the trial court reconsider the judgment, and, although he listed a judgment from 2008, he mentioned the $8,500.  In reviewing the document liberally, we conclude that the document qualifies as a motion to modify.  See Ashley v. Harris County Risk Mgmt., 104 S.W.3d 905, 906 n.2 (Tex. App.—Corpus Christi 2003, no pet.) (noting that post-judgment motion qualified as motion to modify because it sought substantive change in existing judgment, even though post-judgment motion was not denominated as motion for new trial).

Dillard’s motion to modify the judgment was timely filed and, therefore, extended the deadline for the notice of appeal to 90 days from the date of the trial court judgment.  See Tex. R. Civ. P. 329b(g); Tex. R. App. P. 26.1.  The only other document filed by Dillard within the 90-day time period is a document entitled, “Submission of Filing Etc.,” filed April 20, 2009. 

The April 20, 2009 “Submission” failed to identify the trial court but did state the case’s trial court number and style of the case.  See Tex. R. App. P. 25.1(d)(1).  The document failed to state the date of the judgment appealed and did not directly state that Dillard wished to appeal.  See id. 25.1(d)(2) & (3).  The document did, however, identify our court in the heading and identified Dillard as the party submitting the document in the signature line.  See id. 25.1(d)(4) & (5). Additionally, it noted that this is a “New Motion of Return of Seized Property to the Appeal Court.”  Keeping in mind the Supreme Court’s direction to interpret the Rules of Appellate Procedure liberally, we conclude that this statement indicates Dillard intended to appeal and that the document as a whole qualifies as a bona fide attempt to invoke appellate jurisdiction.  See Foster, 74 S.W.3d 200, 203 (Tex. App.—Texarkana 2002, pet. denied) (holding that docketing statement constituted a bona fide attempt to perfect an appeal even though docketing statement presupposes that valid notice of appeal has been filed); see also In re Smith, 270 S.W.3d 783, 786–87 (Tex. App.—Waco 2008, no pet.) (noting that letter constituted bona fide attempt to invoke appellate court jurisdiction because it contained language indicating appellant’s desire to invoke appellate jurisdiction).  Because Dillard filed the document in a bona fide attempt to invoke this Court’s jurisdiction, we will address the merits of his appeal.

We overrule the State’s argument on this point.

DISCOVERY ABUSE SANCTIONS

Dillard raises numerous assertions in his brief that fail to comply with appellate procedural rules and any recognized standard of review.  However, both the rules of appellate procedure and applicable case law require us to construe briefing rules liberally.  See Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004); see also Tex. R. App. P. 38.9.  Thus, we interpret Dillard’s complaints as alleging that the trial court abused its discretion in awarding discovery abuse sanctions against Dillard.

A.      Standard of Review

We review a trial court’s ruling on a motion for sanctions under an abuse of discretion standard.  Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 812 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004)).  A trial court abuses its discretion when its ruling is arbitrary and unreasonable without reference to any guiding rules and principles.  Id.  In conducting our review, we are not limited to a review of the “sufficiency of the evidence” to support the trial court’s findings; rather, we make an independent inquiry of the entire record to determine whether the trial court abused its discretion by imposing the sanction.  Id.

B.      Applicable Law

Under rule 215, the trial court has discretion to dismiss a case with prejudice when a party fails to obey a court order to comply with proper discovery requests. See Tex. R. Civ. P. 215.2(b)(5).  A death penalty sanction “is of particular concern” because the trial court renders judgment without addressing the merits of the case.  Finley Oilwell Serv., Inc. v. Retamco Operating, Inc., 248 S.W.3d 314, 319 (Tex. App.—San Antonio 2007, pet. denied) (citing Hamill v. Level, 917 S.W.2d 15, 16 (Tex. 1996)). Accordingly, such sanctions must be reserved for circumstances in which a party has so abused the rules of procedure, despite imposition of lesser sanctions, that the party’s position can be presumed to lack merit and it would be unjust to permit the party to present the substance of that position before the court.  Id. (citing TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991)).

In evaluating whether sanctions are “just,” we consider (1) whether a direct relationship exists between the offensive conduct, the offender, and the sanction imposed, and (2) whether the sanctions ordered are excessive to punish the improper conduct.  Scott Bader, Inc., 248 S.W.3d at 812 (citing TransAmerican, 811 S.W.2d at 917).  A sanction imposed for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes, which includes securing compliance with discovery rules, deterring other litigants from similar misconduct, and punishing any violators.  Id.  For this reason, courts must consider less stringent sanctions and whether such lesser sanctions would fully promote compliance.  Id. (citing TransAmerican, 811 S.W.2d at 917; Cire, 134 S.W.3d at 839). “Under this standard, the trial court need not test the effectiveness of each available lesser sanction by actually imposing the lesser sanction on the party before issuing the death penalty; rather, the trial court must analyze the available sanctions and offer a reasoned explanation as to the appropriateness of the sanction imposed.” Cire, 134 S.W.3d at 840 (citing GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993) (“[T]he record must reflect the trial court considered the availability of lesser sanctions.”); Spohn Hosp. v. Mayer, 104 S.W.3d 878, 883 (Tex. 2003) (noting that the record should “contain some explanation of the appropriateness of the sanctions imposed.”)).

C.      Analysis

We must first determine whether there was a direct nexus among the offensive conduct, the offender, and the sanction imposed.  Our Court has recognized that the determination of whether a direct relationship exists between offensive conduct and the sanctions imposed necessarily requires determining whether the underlying conduct actually constitutes an abuse of the discovery process.  Scott Bader, Inc., 248 S.W.3d at 812; see also In re Supportkids, Inc., 124 S.W.3d 804, 807 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding).   Here, Dillard did not answer any of the State’s requests for admissions and instead invoked a Fifth Amendment right against self-incrimination.  The law is clear that in civil cases a party may not make a blanket objection to all discovery, but must state an objection to each individual discovery request.  See Burton v. West, 749 S.W.2d 505, 507–08 (Tex. App.—Houston [1st Dist.] 1988, orig. proceeding) (holding in civil forfeiture case that relator may not make blanket Fifth Amendment objection to all interrogatories propounded, but must instead state objections to each individual interrogatory); see also, e.g., In re Edge Capital Group, Inc., 161 S.W.3d 764, 768 (Tex. App.—Beaumont 2005, orig. proceeding) (blanket assertions of Fifth Amendment privilege generally are not permitted in civil cases); In re R.R., 26 S.W.3d 569, 574 (Tex. App.—Dallas 2000, orig. proceeding) (trial court could refuse to allow blanket denial of all discovery in civil case based upon pending criminal case).

In answering the State’s interrogatories, Dillard objected to 17 of the 18 requests without identifying his actual objection, or the legal or factual basis for each objection, as required by Texas Rule of Civil Procedure 193.2(a).  See Thomas v. Select Portfolio Servicing, Inc., 293 S.W.3d 316, 320 (Tex. App.—Beaumont 2009, no pet.) (holding answers to requests for admissions, to which appellant merely wrote “objection” for each request, improper responses because objections failed to state legal or factual basis for each objection); see also Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 798 (Tex. 2008) (noting that to constitute valid objection, “party must state specifically the legal or factual basis for the objection and the extent to which the party is refusing to comply with the request”) (quoting Tex R. Civ. P. 193.2(a)). 

In answering the State’s request for disclosure, Dillard made one nonsensical statement and attached a one-page description of the Critical Legal Theory. In answering the State’s request for production, Dillard simply responded that he objected to the request because he could not find any “items” that were responsive to the request, even though the State asked only for some documentation to show he had a legitimate relationship to the seized currency. 

After receiving these responses, the State moved to compel Dillard to properly answer the discovery requests.  In its order granting the State’s first motion to compel, the trial court ordered Dillard to properly answer discovery, and warned Dillard that if he failed to “fully, completely and properly” answer the State’s requests, Dillard would be “subject to all sanctions as provided by Rule 215 T.R.C.P.”  Dillard did not comply with the court’s order.  Based upon the totality of the record, we conclude Dillard’s actions constitute an abuse of the discovery process.  See Scott Bader, Inc., 248 S.W.3d at 812.

We must next decide whether the sanctions ordered were excessive, in light of the fact that the sanctions resulted in a post-answer default judgment.  See Scott Bader, Inc., 248 S.W.3d at 812; Finley Oilwell Serv., Inc., 248 S.W.3d at 319.  In assessing sanctions, the trial court is entitled to consider the entire course of the litigation and need not test the effectiveness of each available lesser sanction before issuing the death penalty.  Cire, 134 S.W.3d at 840; Broesche v. Jacobson, 218 S.W.3d 267, 277 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).  The record must, nevertheless, reflect that the trial court analyzed the available sanctions and offered a reasoned explanation as to the appropriateness of the sanction imposed.  Cire, 134 S.W.3d at 840.

The record shows that during this litigation, appellant abused the discovery process and failed to produce any evidence or response that advanced his position that the $8,500 in seized currency was derived from legitimate means. Dillard also ignored a court order and the court’s warning regarding sanctions if Dillard did not comply with the court’s order. 

The record shows that in response to Dillard’s actions, the court first analyzed the available sanctions.  When the trial court warned Dillard in its first order, it stated that it would consider “all sanctions as provided by Rule 215” if Dillard did not comply with the order.  Additionally, in its second order, the court struck the State’s attempt to levy monetary fines against Dillard.  See Cire, 134 S.W.3d at 840. 

Next, the record shows that the court offered a reasoned explanation for appropriateness of the sanction imposed when it noted that it granted sanctions based upon its consideration of the State’s second motion, all submitted responses, and arguments of counsel.  See Cire, 134 S.W.3d at 840.  Explanations for the sanctions included in the motion were Dillard’s failure to comply in any way with the court’s first order, his failure to provide any evidence or response that advanced his defense that the $8,500 in seized currency was derived from legitimate means, and his denial to the State of any opportunity to investigate the legitimacy of his claims.

Finally, the record shows that the trial court also struck the State’s request to compel discovery for the third time, indicating the court believed that another order to compel and lesser stringent sanctions would not result in Dillard’s compliance.  See Finley Oilwell Serv., Inc., 248 S.W.3d at 319. Based upon the entire record, we conclude the sanctions were not excessive.  See id. (noting “death penalty sanctions” must be reserved for circumstances in which a party has so abused rules of procedure that party’s position can be presumed to lack merit); see also Cire, 134 S.W.3d at 840 (noting that case-determinative sanctions may be imposed without imposing lesser sanctions in “exceptional cases” when sanctions are clearly justified and it is fully apparent that lesser sanctions would not promote compliance with rules). Accordingly, we hold that the trial court did not abuse its discretion by finding Dillard had engaged in sanctionable conduct during the discovery process and rendering a post-answer default judgment against Dillard. 

          We overrule Dillard’s sole issue.

CONCLUSION

We affirm the trial court’s judgment.        

Sherry Radack

                                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale.