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IN THE
TENTH COURT OF APPEALS
 

No. 10-92-076-CV

     CITY OF LA PORTE, TEXAS,
                                                                                              Appellant
     v.

     ALLEN RAY PRINCE,
                                                                                              Appellee
 

From the 125th District Court
Harris County, Texas
Trial Court # 83-66592
                                                                                                    

O P I N I O N
                                                                                                    

       The jury found that the City of La Porte fired Allen Prince, one of its employees, because
he filed a claim for workers' compensation.  The City appeals a judgment in Prince's favor for
$100,000 in actual damages and $1,000,000 in exemplary damages.  It argues that the court erred
by not granting it a directed verdict based on the defense of governmental immunity, by awarding
exemplary damages, and by submitting a question to the jury when there was no evidence or
insufficient evidence to support its submission.  The City also contends that the court erroneously
excluded the testimony of two witnesses and wrongfully awarded prejudgment interest.  We
affirm.
      Allen Prince was employed by the City of La Porte as a sewer lift—station operator.  On June
10, 1983, he was injured on the job and reported his injury to his foreman.  He then went to the
doctor who diagnosed the injury as a hernia.  Prince had hernia-repair surgery on June 23.  His
doctor told him that he should expect to be off work for six to eight weeks after surgery.  Prince
told his foreman and the City's personnel coordinator the length of time he expected to be off
work.  He filed a claim for workers' compensation benefits, but it was denied by the insurance
carrier.  He then filed a claim with the Industrial Accident Board.
      On July 27 Prince told his foreman that he should be released to return to work in two or three
weeks.  The foreman told him to go see Luther Maxey, the department superintendent.  Maxey
fired Prince.  Ten days later Prince was released by his physician to return to work.
      The City claims to have a personnel policy that incapacity will result in a nondisciplinary
termination of employment if the employee is incapable of returning to work within thirty days
following the use of sick-leave benefits.  The City argues that Prince's termination is justified
under this policy because he was absent from work for more than thirty days and would not be
able to work for at least another week following his termination.  It introduced into evidence the
termination document relating to Prince that states he was terminated for two reasons: incapacity
and misconduct towards other employees.  Prince argued, however, that he was fired because he
filed a workers' compensation claim against the City, and that City employees were afraid to file
such claims because many who did were fired from their jobs.
      The jury found that Prince was wrongfully discharged.  In addition, it found that the wrongful
conduct in discharging him was imputed directly to the governing body of the City and assessed
$100,000 in actual damages and $1,000,000 in exemplary damages against the City.
GOVERNMENTAL IMMUNITY
      The City, in its first point, argues that the court erred in denying its motion for an instructed
verdict based on governmental immunity.  Prince brought suit for wrongful discharge under article
8307c:
Sec. 1.  No person may discharge or in any other manner discriminate against any
employee because the employee has in good faith filed a claim, hired a lawyer to represent
him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the
Texas [Workers]' Compensation Act, or has testified or is about to testify in any such
proceeding.
            Sec. 2.  A person who violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation, and an
employee discharged in violation of the Act shall be entitled to be reinstated to his former
position.  The burden of proof shall be upon the employee.

See Tex. Rev. Civ. Stat. Ann. art. 8307c (Vernon Pamph. 1993).  This article provides a
terminated employee a cause of action if he was discharged for pursuing a workers' compensation
claim.  See Azar Nut Co. v. Caille, 734 S.W.2d 667, 668 (Tex. 1987).  Such a discharge gives
rise to the recovery of all damages suffered by the employee, plus exemplary damages.  Id.
      The Texas Constitution authorizes the Legislature to make municipalities subject to the
Workers' Compensation Act.  Tex. Const. art. III, § 61.  Article III, section 61, gives the
Legislature the power to enact laws to enable cities to provide workers' compensation insurance
for all employees and to pass laws for the administration of this insurance.  
      The Legislature amended the Workers' Compensation Act to require political subdivisions to
extend workers' compensation benefits to their employees and to make certain provisions of the
Act applicable to political subdivisions.  Tex. Rev. Civ. Stat. Ann. art. 8309h (Vernon Pamph.
1993); Lyons v. Texas A & M University, 545 S.W.2d 56, 58 (Tex. Civ. App.—Houston [14th
Dist.] 1977, writ ref'd n.r.e.).  Article 8309h specifically provides that "political subdivisions"
are subject to the prohibitions of article 8307c.  Tex. Rev. Civ. Stat. Ann. art. 8309h § 3.  A
"political subdivision" includes a "home-rule city, a city, town, or village."  Id. § 1(1).  Thus, the
City of La Porte is an employer that is prohibited from discharging an employee for filing or
pursuing a workers' compensation claim.  
      In addition, the Texas Tort Claims Act provides that a governmental unit that accepts the
workers' compensation laws is entitled to the same privileges and immunities granted by the
workers' compensation laws to private individuals and corporations.  Tex. Civ. Prac. & Rem.
Code Ann. § 101.028 (Vernon 1986) (formerly Tex. Rev. Civ. Stat. Ann. art. 6252-19
(Vernon 1970)).  A private individual or corporation is not immune from the prohibitions in article
8307c.  Therefore, only enjoying the same immunities as private individuals or corporations, a
city is subject to the prohibitions in article 8307c, the same as private individuals and corporations. 
Governmental immunity does not protect a city against a cause of action under article 8307c, and
the court properly denied the City an instructed verdict on that ground.  See Barfield v. City of La
Porte, No. 6-92-069-CV (Tex. App.—Texarkana, February 2, 1993, n.w.h.).  We overrule point
one.  
EXEMPLARY DAMAGES
      The City, in its second through sixth points, complains that the award of exemplary damages
is not supported by legally— or factually—sufficient evidence.  We apply the rules for reviewing
these evidentiary complaints on appeal.  See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.
1983); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
      As a general rule, a municipality may not be held liable for exemplary damages; however, if
the plaintiff can prove that there is intentional, willful, or grossly negligent conduct that shows an
entire want of care for his rights and that such conduct can be imputed to the governing body of
the municipality, exemplary damages may be recovered.  City of Gladewater v. Pike, 727 S.W.2d
514, 522 (Tex. 1987).  By requiring a plaintiff to show both wanton, malicious, or grossly
negligent behavior and imputation of that conduct to the city's leadership, recovery of exemplary
damages is limited to only those exceedingly few situations where the actions of persons in
authority show utter disdain for the protection of citizens' rights.  Id. at 524.  Under these
circumstances, a jury can consider awarding exemplary damages against a municipality.  Id.  
      Essentially, the first requirement in City of Gladewater is to determine whether the municipal
agent acted with a culpable state of mind that resulted in injury.  Id. at 522-23.  Thus, the plaintiff
must first show that the actor engaged in willful, wanton, malicious or grossly negligent conduct. 
Id. at 523.   In other words, a plaintiff must show "that entire want of care which would raise the
belief that the act or omission complained of was the result of conscious indifference to the right
or welfare of the person or persons to be affected."  Id. (quoting Burk Royalty Co. v. Walls, 616
S.W.2d 911, 920 (Tex. 1981)).  
      The jury found that the City of La Porte and Maxey, the department superintendent, acted
with such conduct.  Maxey was aware that Prince would be unable to work for six to eight weeks. 
He also knew at the time he fired him that Prince would be able to return to work within two
weeks.  Furthermore, Maxey fired Prince immediately after asking him if he had filed a workers'
compensation claim against the City, or as Maxey put it, "What's this bullshit I hear about you
filing a lawsuit on the City?"  Maxey admitted that he was referring to Prince's workers'
compensation claim.  Several witnesses also claimed that City employees were afraid to file a
workers' compensation claim because many who did so lost their jobs.  This evidence is both
legally and factually sufficient to support findings that the City had an official, but unwritten,
policy to terminate employees for filing a workers' compensation claim; that Maxey's conduct was
wilful and malicious and in furtherance of that policy; that he fired Prince for having pursued a
worker's compensation claim against the City and not for physical incapacity; and that he acted
with conscious indifference to Prince's rights and welfare.
      The second element in City of Gladewater requires Maxey's wrongful conduct to be imputed
to the leadership of the City.  See id. at 523.  To impute tortious actions to the City, the evidence
must show that the acts were expressly authorized by the City.  See id.  The court in City of
Gladewater remarked that:
Liability must rest on official policy, meaning the city government's policy, and not
on the policy of an individual official.  The policy is that of the city, however, where it
is made by an official under authority . . . .  City policymakers not only govern
conduct[,] they decide the goals for a particular city function and devise the means of
achieving those goals.  Policymakers act in the place of the governing body in the area
of their responsibility; they are not supervised except as to the totality of their
performance.  

Id. at 523 (quoting Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984)).  
      The United States Supreme Court has also addressed this issue.  The government as an entity
is responsible when the execution of its policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy, inflicts injury.  Monell
v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 694-95, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d
611 (1978).  Like other governmental entities, municipalities often spread policymaking authority
among various officers and official bodies.  See Pembaur v. City of Cincinnati, 475 U.S. 469,
479-80, 106 S.Ct. 1292, 1298-99, 89 L.Ed.2d 452 (1986).  As a result, particular officers may
have authority to establish binding policy in certain matters.  Id. 106 S.Ct. at 1300.  When action
is directed by those who establish governmental policy, the municipality is equally responsible
whether that action is to be taken only once or to be taken repeatedly.  Id. at 1299.  In other
words, those municipal officers who have "final policymaking authority" may by their actions
subject the government to liability.  City of St. Louis v. Praprotnik, 485 U.S. 112, 124, 108 S.Ct.
915, 924, 99 L.Ed.2d 107 (1988).  
      "Official policy" often refers to formal rules or understandings—frequently, but not always
committed to writing—that are intended to, and do, establish fixed plans of action to be followed
under similar circumstances consistently and over time.  Pembaur, 475 U.S at 480, 106 S.Ct. at
1299.  If the decision to adopt a particular course of action is properly made by a government's
authorized decision-makers, it represents an act of official government policy.  Id.  Furthermore,
a plaintiff may be able to prove the existence of a wide-spread practice that, although not
authorized by written law or express municipal policy, is "so permanent and well settled as to
constitute a `custom or usage' with the force of law."  St. Louis v. Praprotnik, 485 U.S. at 124,
108 S.Ct. at 926.  
      Moreover, an unconstitutional governmental policy can be inferred even from a single
decision taken by the highest official responsible for setting policy in that area of the government's
business.  Id. 108 S.Ct. at 924.  Thus, when government agents act in accordance with formal
policies, or under informal practices so permanent and well settled as to constitute a "custom or
usage" with the force of law, their acts are imputed to the municipality.  Id. at 932. (Brennan, J.,
concurring). 
      La Porte mayor Norman Malone testified that the city council delegated the responsibility for
personnel policies to the city manager, that the council put the city manager in charge of rule-making and personnel policies, and that the council did not involve itself in hiring and firing city
employees.  Robert Herrera, the city manager at the time of trial, testified that a termination is not
effective until it is approved by the city manager.  Anybody that was fired from the City, he said,
was fired with the approval of the city manager.  
      Jack Owen was the city manager in 1983 when Prince was fired.  He had over 250 employees
working under his supervision.  He testified that the city manager runs the City; he is the chief
executive officer.  He approves the hiring and firing of all city employees, except the city
secretary, city attorney, and city judge.  Owen admitted delegating authority for hiring and firing
employees to the department heads and the superintendents.  Specifically, he admitted delegating
such authority to Luther Maxey as provided in the City Charter.  However, Owen admitted that
as city manager he retained ultimate authority to approve any termination.
      This evidence is legally and factually sufficient to support findings that the city manager was
given final authority over personnel matters for the City by both the City Charter and the city
council and that he had delegated that authority to Maxey.  The city manager's conduct and that
of Maxey was thus imputed to the governing body of the City.  The evidence presented is
therefore legally and factually sufficient to meet the test for awarding exemplary damages against
the City.  See City of Gladewater, 727 S.W.2d at 522-23.  We overrule points two through six.
DUE PROCESS
      In its seventh point, the City of La Porte argues that the court erred in awarding exemplary
damages because the award violates the due-process clauses of the United States and Texas
Constitutions.
FOURTEENTH AMENDMENT
      Texas procedure for awarding exemplary damages tracks the common-law method that has
been approved by the Supreme Court.  Haslip, __ U.S. __, 111 S.Ct. 1032, 1042-43, 113 L.Ed.2d
1 (1991);  General Motors Corp. v. Saenz, 829 S.W.2d 230, 241 (Tex. App.—Corpus Christi
1991, writ granted).  Appellate courts in Texas have repeatedly approved the Texas procedure in
the face of due-process challenges.  Saenz, 829 S.W.2d at 241; Bard v. Charles R. Myers Ins.
Agency, 811 S.W.2d 251, 263 (Tex.App.—San Antonio 1991), rev'd on other grounds, 839
S.W.2d 791 (Tex. 1992); State Farm Mut. Auto Ins. Co v. Zubiate, 808 S.W.2d 590, 602-05
(Tex. App.—El Paso 1991, writ denied); also Glasscock v. Armstrong Cork Co., 946 F.2d 1085,
1097 (5th Cir. 1991).
      Texas procedure for assessing exemplary damages involves properly instructing the jury
regarding the circumstances under which exemplary damages may be awarded.  Saenz, 829
S.W.2d at 241.  If the jury finds under the applicable standards that exemplary damages should
be awarded, it then sets the amount.  Id.  If the defendant believes the amount is excessive, he may
raise that issue in a motion for new trial.  Id.  If the motion is denied, further procedural
protections are provided, including one appeal of right, one discretionary appeal to the Supreme
Court of Texas, and a discretionary appeal to the Supreme Court of the United States.  Id.  
      The Fifth Circuit in Glasscock found that the review of exemplary damage awards conducted
by Texas courts contains several of the same features as the Alabama system reviewed in Haslip. 
Glasscock, 946 F.2d at 1097-98.  In Texas, both the trial and appellate courts review exemplary
damage awards to determine if they are reasonably proportioned to actual damages.  Id. at 1098. 
Furthermore, the Texas Supreme Court has provided factors for the courts to use when conducting
this evaluation.  Alamo Nat. Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981).  These factors are: 
"(1) the nature of the wrong, (2) the character of the conduct involved, (3) the degree of
culpability of the wrongdoer, (4) the situation and sensibilities of the parties concerned, and (5)
the extent to which the defendant's conduct offends the public sense of justice and propriety."  Id. 
Review of the jury's decision by the trial and appellate courts using the Kraus standards assures
that the award is reasonable and not the result of impermissible factors.  See id.  The jury is also
limited in the amount it may properly award to that which will deter future abuses—the primary
Texas policy justifying exemplary damages.  Saenz, 829 S.W. 2d at 241.
      In the present case, the jury was properly instructed that exemplary damages could be awarded
as a penalty or punishment, and as an example to others, if the City of La Porte's conduct was the
result of "intentional, willful, or the result of grossly negligent conduct" that "shows an entire
want of care to the rights of plaintiff."  The instruction and question confined the jury's award to
circumstances involving intentional, willful or grossly negligent conduct.    We hold these
limitations on the jury's discretion to award exemplary damages comply with federal due-process
standards.  See Haslip, __ U.S. __, 111 S.Ct. at 1042.
DUE PROCESS UNDER THE TEXAS CONSTITUTION 
      The cases addressing due process do not seem to distinguish between the federal and state
constitutional provisions.  However, due process under the Texas constitution can be satisfied
through jury instructions alone.  Tex. Const. art. I, § 19; see Commonwealth Lloyd's Ins. Co.
v. Thomas, 825 S.W.2d 135, 149 (Tex. App.—Dallas 1992, n.w.h.);  Transportation Ins. Co. v.
Moriel, 814 S.W.2d 144, 150 (Tex. App.—El Paso 1991, writ granted); Zubiate 808 S.W.2d at
604.  We hold that the procedural safeguards discussed above comply with due-course-of-law
guarantees in the Texas constitution.  We overrule point seven.
REMITTITUR
      The City argues in its eighth point that the court should have granted a remittitur on
exemplary damages.  After considering the evidence, the jury found that the act of discharging
Prince was intentional, willful, or the result of grossly negligent conduct and assessed one-million
dollars in exemplary damages.
      A post-trial hearing in the form of a motion for new trial was held regarding  the sufficiency
of the evidence supporting the award and whether the appropriate legal standards were applied. 
At this hearing, the trial court had the power to order a new trial or a remittitur.  See Saenz, 829
S.W.2d at 241.  After hearing the arguments, the court denied the motion.
      A remittitur is proper only when there is factually insufficient evidence to support the jury's
verdict.  Larson v. Cactus Utility Co., 730 S.W.2d 640, 641 (Tex. 1987).  If the evidence is
factually sufficient to support a jury award of any amount, the court has no authority to suggest
a remittitur, no matter how manifestly unjust or shocking to the conscience of the court the amount
of the award may be.  National Fire Ins. v. Dominguez, 793 S.W.2d 66, 73 (Tex. App.—El Paso
1990, writ denied).
      We have reviewed the legal and factual sufficiency of the evidence supporting exemplary
damages and found it sufficient under the legal standards applying to an award of exemplary
damages.  See Kraus, 616 S.W.2d at 910.  The first of the five factors enumerated in Kraus is the
nature of the wrong.  Id.  Here, the jury found that the City fired Prince because he filed a
workers' compensation claim.  An employee has a protected legal right to file a claim when he is
injured in the work place.  See Tex. Rev. Civ. Stat Ann. art. 8307c.  By firing Prince for
exercising this right, the City likewise tended to "chill" the exercise of the same rights by its other
employees.  
      Next, the court must evaluate the character of the conduct involved and the degree of
culpability of the wrongdoer.  Kraus, 616 S.W.2d at 910.  The jury found that the City's act of
firing Prince was intentional, willful, or the result of grossly negligent conduct that showed an
entire want of care for his rights.  Apparently, this action was taken in furtherance of an unwritten
policy to discharge employees for exercising their rights to seek statutory benefits for on-the-job
injuries.  
      Additionally, the court must examine the situation and sensibilities of the parties concerned. 
Id.  The City's unwritten policy forced Prince to choose between his job and his statutory right
to pursue compensation benefits, a particularly anguished choice for any employee.  An injured
employee is particularly vulnerable to threats of the loss of his job.  On the other hand, the City
faced no such hard choice.  Here, the imbalance between the parties was significantly in favor of
the City and against Prince.
      Finally, the court must also evaluate the extent to which such conduct offends a public sense
of justice and propriety.  Id.  Employees lose their common-law right of action against an
employer for on-the-job injuries in return for the fixed statutory benefits under the workers'
compensation statutes.  For a municipality to act intentionally, maliciously, and wilfully to destroy
or chill the exercise of the only right available to its injured employees deserves severe
condemnation and punishment.  Moreover, leaving such action unpunished by punitive damages
would only encourage other employers to do likewise.  Employees are entitled to the peace of
mind of knowing that if they are injured while at work they can rely on the benefits provided by
the workers' compensation laws without having to risk their job for exercising that right.  Thus,
the factors to determine whether exemplary damages are reasonably proportionate to actual
damages have passed this court's scrutiny, and we overrule point eight.
EXCLUSION OF EVIDENCE
      In its ninth point, the City contends that the court erred in excluding the testimony of Mary
Davis and Linda Wilson.  Prince asked in his interrogatories to the City: "Please state the name,
address, and telephone number of any person or persons who have knowledge of relevant facts
which in any way pertain to the subject matter made the basis of this lawsuit."  The City answered
by stating: "Ms. Mary Davis; Mr. Luther Maxey; Mr. Walter Barnes; Ms. Linda Wilson. 
Inasmuch as each of the above named persons is an employee of the Defendant, Defendant
OBJECTS to furnishing their addresses and telephone numbers; any communication to them
should be made through Defendant's attorney of record."
      Sometime after the interrogatory was answered, Mary Davis and Linda Wilson left the City's
employment, but the City never supplemented its response to the question.  At trial, the City
offered into evidence the deposition testimony of Davis and Wilson.  Prince objected because the
addresses and telephone numbers of these witnesses were never provided.  The trial court
sustained Prince's objections and excluded their deposition testimony.
      A party has an affirmative duty to supplement discovery responses if it knows that the answer
was incomplete when made, is no longer true, or when the failure to amend would be misleading. 
See Tex. R. Civ. P. 215(5); Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex. 1989).  When Davis
and Wilson ceased employment with the City, the interrogatory answer was incomplete and no
longer true.  Thus, the City had a duty to supplement its answer with Davis' and Wilson's
addresses and telephone numbers.  
      Failure to supplement discovery results in the loss of the opportunity to offer the witness'
testimony.  Tex. R. Civ. P. 215(5).  The sanction is automatic.  Gee v. Liberty Mut. Fire Ins. Co.,
765 S.W.2d 394, 395 (Tex. 1989).  By excluding the testimony of those witnesses whose identities
or locations are not revealed in response to discovery requests, Rule 215(5) promotes full
discovery and deters litigants from violating discovery rules.  Clark v. Trailways, Inc., 774
S.W.2d 644, 646 (Tex. 1989).
      The party offering the evidence has the burden of showing good cause for failure to
supplement its discovery responses.  Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986). 
The determination of good cause, which is within the discretion of the court, can only be set aside
if that discretion is abused.  Id.  The trial court's discretion in determining good cause is limited
to situations where one could not, in good faith and due diligence, respond or when difficult or
impossible circumstances prevent one from supplementing discovery.  Foster v. Cunningham, 825
S.W.2d 806, 808 (Tex. App.—Fort Worth 1992, writ granted).  Even though a witness has been
fully deposed, and only his deposition testimony will be offered at trial, that does not show good
cause for admitting the evidence when the witness was not properly identified in response to
discovery.  Sharp v. Broadway Nat. Bank, 784 S.W.2d 669, 671 (Tex. 1990).
      The City offered no reason why it could not have supplemented its response.  Thus, it did not
establish good cause, and the court did not abuse its discretion in sustaining Prince's objection. 
The ninth point is overruled.
PREJUDGMENT INTEREST
      In its tenth point the City argues that the court erred in awarding prejudgment interest. 
Prejudgment interest is additional damages for the loss of use of money due as damages during the
period between the accrual of he claim and the date of judgment.  LaCoure v. LaCoure, 820
S.W.2d 228, 237 (Tex. App.—El Paso 1992, writ denied).  A prevailing plaintiff is entitled to
recover prejudgment interest as a matter of law on damages that have accrued by the time of
judgment.  Id.; Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552-55 (Tex. 1985). 
The City contends, however, that Cavnar does not apply to "non-personal injury, economic
damages" and thus does not apply in this case.  This contention is incorrect.  The rationale in
Cavnar extends to all types of cases.  City of Houston v. Wolfe, 712 S.W.2d 228, 230 (Tex.
App.—Houston [14th Dist.] 1986, writ ref'd).  Thus, prejudgment interest was correctly awarded
in this case.  We overrule point ten and affirm the judgment.
 
                                                                                 BOB L. THOMAS
                                                                                 Chief Justice
Before Chief Justice Thomas,
          Justice Cummings, and
          Justice Vance
Affirmed
(Justice Vance concurring and dissenting)
Opinion delivered and filed February 24, 1993
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