Hartford Acc. & Indem. Co. v. Abascal, 04-91-00511-CV

CourtCourt of Appeals of Texas
Writing for the CourtCHAPA; BIERY; BUTTS; In his concurring opinion in TransAmerican; Mauzy; Abascal; REEVES, C.J., and PEEPLES
Citation831 S.W.2d 559
PartiesHARTFORD ACCIDENT & INDEMNITY COMPANY, Relator, v. The Honorable Amado ABASCAL, III, Respondent.
Docket NumberNo. 04-91-00511-CV,04-91-00511-CV
Decision Date03 June 1992

Page 559

831 S.W.2d 559
The Honorable Amado ABASCAL, III, Respondent.
No. 04-91-00511-CV.
Court of Appeals of Texas,
San Antonio.
June 3, 1992.

Page 560

Kenneth L. Clark, Norma Gonzales, Clark & Gamble, San Antonio, for relator.

Rene R. Barrientos, Law Offices of Rene R. Barrientos, Timothy Patton, Pozza & Patton, San Antonio, for respondent.

Before the court en banc.


CHAPA, Justice.

This case is being considered en banc on the court's own motion.

This is an original mandamus proceeding in which the relator, Hartford Accident and Indemnity Company, asks this court to order the respondent, Honorable Amado Abascal, to set aside his orders striking Hartford's First Amended Answer and disbursing $10,000.00 into the registry of the court.

The case arose from a workers' compensation action brought by real party in interest, Raul Flores, Jr., wherein Flores alleges he slipped and fell at work in the Zavala County Jail in May of 1989. Hartford filed a general denial. Because of what the trial court considered to be a pattern of abuses of the discovery process during pretrial activities, the trial court struck Hartford's First Amended Answer which was filed just nineteen days before the case was set for jury trial and in which Hartford alleged several affirmative defenses for the first time. The trial court also ordered the disbursement of $10,000.00 to Flores' counsel which had been placed into the registry of the court as sanctions. These two orders are the subject of this mandamus proceeding.

Hartford presents ten points of error in its original petition and five points of error in its supplemental petition and brief, filed after the trial court made its findings of fact and conclusions of law at the request of this court. The essence of Hartford's complaints is that the sanctions were unjust under TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991),

Page 561

and Braden v. Downey, 811 S.W.2d 922 (Tex.1991). 1

Generally, "[m]andamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law" and "[t]he court of appeals, therefore, acts in excess of its writ power when it grants mandamus relief absent these circumstances." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985).

"It is well established Texas law that an appellate court may not deal with disputed areas of fact in an original mandamus proceeding." Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex.1990), citing West v. Solito, 563 S.W.2d 240, 245 (Tex.1978); Dikeman v. Snell, 490 S.W.2d 183, 186-87 (Tex.1973). A "hearing on the motion for sanctions [is] akin to a nonjury trial," in which "the trial court is the judge of the credibility of the witnesses and of the weight to be given their testimony, since the judge has the opportunity to observe the demeanor of the witnesses on the stand and may believe all, none, or part of the witnesses' testimony"; thus, "[t]he trial court's findings of fact will not be disturbed on appeal if supported by any evidence of probative force." Tate v. Commodore County Mut. Ins. Co., 767 S.W.2d 219, 224 (Tex.App.--Dallas 1989, writ denied). "In determining whether a trial court has abused its discretion [in a sanctions appeal], we are required to view the evidence in the light most favorable to the trial court's action, and to indulge every legal presumption in favor of the judgment." Vaughn v. Texas Employment Comm'n, 792 S.W.2d 139, 143 (Tex.App.--Houston [1st Dist.] 1990, no writ), citing Parks v. U.S. Home Corp., 652 S.W.2d 479, 485 (Tex.App.--Houston [1st Dist.] 1983, writ dism'd). Further, reasonable "[i]nferences may be drawn from actual facts proved" by the trier of the facts. Beazley v. McEver, 238 S.W. 949, 952 (Tex.Civ.App.--Dallas 1922, no writ).

The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-43 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984). Rather, a trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Downer, 701 S.W.2d at 241-43; Cessna Aircraft, 665 S.W.2d at 443; Bush v. Vela, 535 S.W.2d 803, 805 (Tex.Civ.App.--Corpus Christi 1976, no writ); King v. Guerra, 1 S.W.2d 373, 376 (Tex.Civ.App.--San Antonio 1927, writ ref'd). The trial court is free, however, to consider the entire record of the case up to and including the motion to be considered. Downer, 701 S.W.2d at 241. Thus, the trial court is not limited to considering only the specific violation committed but is entitled to consider other matters which have occurred during the litigation. Id.

In ascertaining whether the trial court abused its discretion, the reviewing court must determine if the trial court acted without reference to any guiding rules and principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986). In a mandamus action, "[t]he relator who attacks the ruling of the trial court as an abuse of discretion labors under a heavy burden to establish under the circumstances of the case, that the fact and law permit the trial court to make but one decision." 2 Blasingame v. Krueger, 800 S.W.2d 391, 393 (Tex.App.--Houston [14th Dist.] 1990, no writ), citing Johnson, 700 S.W.2d at 917.

Page 562

On October 16, 1991, the Texas Supreme Court published TransAmerican, 811 S.W.2d 913, and Braden, 811 S.W.2d 922, establishing rules and principles which must guide the trial court in the exercise of sound discretion when imposing "death penalty" sanctions for discovery abuse.

In TransAmerican, the supreme court granted mandamus relief to a party whose pleadings were struck, whose cause of action was dismissed, and against whom a default judgment was granted based on a counterclaim, reserving only the issue of damages. Id. The sanctions had been imposed by the trial court upon the relator as a result of discovery abuse. The supreme court held that mandamus lies:

when a trial court imposes discovery sanctions which have the effect of precluding a decision on the merits of a party's claims--such as by striking pleadings, dismissing an action, or rendering default judgment--a party's remedy by eventual appeal is inadequate, unless the sanctions are imposed simultaneously with the rendition of a final, appealable judgment.

Id. at 920.

The court established standards which "set the bounds of permissible sanctions under Rule 215 within which the trial court is to exercise sound discretion ..." in granting a just sanction order. Id. at 917 (footnote omitted). The court held that in order for a sanction to be just, 1) it "must be directed against the abuse and toward remedying the prejudice caused the innocent party," which means that "the sanction should be visited upon the offender" requiring "the trial court [to] at least attempt to determine whether the offensive conduct is attributable to counsel only, or to the party only, or to both"; 2) and, it "must not be excessive," which means that "[t]he punishment should fit the crime" requiring that "courts must consider the availability of less stringent sanctions and whether such lesser sanctions would fully promote compliance." Id. Pertaining to "death penalty" sanctions, the court stated:

[w]hen a trial court strikes a party's pleadings and dismisses its action or renders a default judgment against it for abuse of the discovery process, the court adjudicates the party's claims without regard to their merits but based instead upon the parties' conduct of discovery. '[T]here are constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause.'

Id. at 918 (citations omitted).

The court refused to require the trial judge to justify its ruling, but did make the following recommendation in order to aid the appellate courts in their efforts to determine the propriety of the sanctions imposed:

The district court made no findings to support the sanctions imposed. Rule 215 does not require a trial court to make findings before imposing discovery sanctions, and we do not add such a requirement here. We note only that we do not have the benefit of any explanation by the district court for the severity of its ruling. It would obviously be helpful for appellate review of sanctions, especially when severe, to have the benefit of the trial court's findings concerning the conduct which it considered to merit sanctions, and we commend this practice to our trial courts....

Id. at 919 n. 9 (citations omitted).

Thus, in TransAmerican, although the supreme court set out guiding principles for the trial court to consider when exercising its discretion in imposing "death penalty" sanctions, it nevertheless left the matter to the sound discretion of the trial court. 3 Id. at 917.

If any doubt was created by TransAmerican as to what standard of review is proper in a mandamus proceeding, the Texas Supreme Court, in an opinion dated February

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19, 1992, reiterated that abuse of discretion is still the standard of review in all mandamus proceedings, and clarified the standard further:

Traditionally, the writ of mandamus issued only to compel the performance of a ministerial act or duty....

Since the 1950's, however this Court has used the writ to correct a 'clear abuse of discretion' committed by the trial court....

A trial court clearly abuses its discretion if 'it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.' Johnson v. Fourth...

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