Hartford Accident & Indemnity Co. v. Abascal , 1992 Tex. App. LEXIS 1613 ( 1992 )

RELATOR’S PETITION FOR WRIT OF MANDAMUS IS DENIED

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), 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 “[inferences 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.

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. ‘[TJhere 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 Trans-American as to what standard of review is proper in a mandamus proceeding, the Texas Supreme Court, in an opinion dated February 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 Court of Appeals, 700 S.W.2d at 917. This standard, however, has different applications in different circumstances.

With respect to resolution of factual issues or matters committed to the trial court’s discretion, for example, the reviewing court may not substitute its judgment for that of the trial court.... The relator must establish that the trial court could reasonably have reached only one decision.... Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable....

On the other hand, review of a trial court’s determination of the legal principles controlling its ruling is much less deferential. A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ....

Walker v. Packer, 827 S.W.2d 833, 839-40 (1992) (citations omitted).

Therefore, the dispositive issue as to the trial court’s order striking Hartford’s First Amended Answer is whether the relator has complied with its burden of establishing that the trial court abused its discretion considering the rules and principles announced in TransAmerican. Walker at 839; TransAmerican, 811 S.W.2d at 917; Johnson, 700 S.W.2d at 917. Mandamus must be denied if the relator has failed in that burden even if we should individually or collectively conclude that under the same circumstances, we would have imposed different or lesser sanctions. Walker at 839; Downer, 701 S.W.2d at 241-43; Cessna Aircraft Co., 665 S.W.2d at 443.

In making this determination, great care must be taken not to improperly impose upon the trial court the burden of justifying its ruling, but to remain cognizant that the rules unquestionably place the burden upon the relator to present a record to this court which clearly shows that the trial court abused its discretion. Johnson, 700 S.W.2d at 917; Blasingame, 800 S.W.2d at 393; Tex.R.App.P. 50(d). Thus, because the trial court in mandamus proceedings is not required to justify its ruling, the supreme court specifically refused to require the trial court to submit findings of fact and conclusions of law in these matters, but opted instead to merely “commend this practice to our trial courts.” TransAmerican, 811 S.W.2d at 919 n. 9.

Moreover,

[t]he trial judge, as the trier of the fact, may draw reasonable inferences from the evidence, and his findings of fact may not be disregarded on appeal if the record contains some evidence of probative value from which these inferences may be drawn, or unless the findings are so contrary to the overwhelming weight of the evidence as to be manifestly wrong.

IFG Leasing Co. v. Ellis, 748 S.W.2d 564, 565-66 (Tex.App.—Houston [1st Dist.] 1988, no writ), citing Nicholas v. Crocker, 687 S.W.2d 365, 367 (Tex.App.—Tyler 1984, writ ref’d n.r.e.).

“The trial judge as the trier of fact may take into consideration all the facts and surrounding circumstances in connection with the testimony of each of the witnesses tendered, and to arrive at his conclusions as to the facts controlling this case,” and “may accept or reject all or any part of the testimony of the witness tendered.” Valencia v. Garza, 765 S.W.2d 893, 895 (Tex.App.—San Antonio 1989, no writ), citing Electro-Hydraulics Corp. v. Special Equipment Eng’rs, Inc., 411 S.W.2d 382, 386-87 (Tex.Civ.App.—Waco 1967, writ ref’d n.r.e.). “Thus, unless there is no evidence to support the finding or unless the findings are so contrary to the great weight and preponderance of the evidence as to be clearly wrong, the appellate court may not set it aside.” Valencia, 765 S.W.2d at 896.

The Texas Supreme Court has also held that:

[i]n determining whether the trial court’s findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings and will disregard all evidence to the contrary. The findings of fact and conclusions of law will be construed together; and if the findings of fact are susceptible of different constructions, they will be construed, if possible, to be in harmony with the judgment and to support it.

Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 301 (Tex.1963).

Among other things, the record before us reflects the following evidence and reasonable inferences which the trial court was free to believe:

1) On the 6th of August, 1990, the plaintiff below filed a workers’ compensation appeal against relator, claiming compen-sable injuries sustained on the 29th day of May, 1989, to which relator filed a general denial shortly thereafter.

2) On the 22nd day of October, 1990, the relator responded under oath to the interrogatories of the plaintiff below through their insurance adjuster employee, Girdy S. Jones, described therein as follows: “personally appeared GIRDY S. JONES, duly authorized agent for THE HARTFORD INSURANCE GROUP, Defendant in the above styled and numbered cause, who being by me duly sworn on her oath, deposed and stated that she has read the foregoing document, and stated that the information contained therein is true and correct, and is based upon her personal knowledge.”

a) In their response, relator generally denied, among other things, that the plaintiff below had sustained any disability as a result of the accident on the date in question, and assert that any disability was due to other accidents or conditions, that plaintiff had failed to timely report a compensable injury, and that the plaintiff continued to work on a full-time basis after the alleged incident until October 10, 1989.

b) Relator also responded that although some medical bills had been paid, relator did not agree to pay any others, and that information was being gathered on the matter of wage rates.

c) Although Girdy S. Jones signed as the “duly authorized agent” for relator and responded under oath on behalf of relator “based upon her personal knowledge,” she failed to include herself as a person with relevant facts “to Plaintiff’s claim or Defendant’s defense to the lawsuit.” The record fails to reflect that the relator ever included her as a person with knowledge of relevant facts, but it does reflect that the plaintiff below later included her as a person with knowledge of relevant facts.

3) On December 18, 1990, the trial court entered an order setting the cause for trial before a jury on March 11, 1991.

4) On January 7, 1991, the trial court was required to order relator to produce relator’s claim file on the plaintiff below through July 26, 1990 within ten days because relator had refused to provide it through a request for production. Although the record reflects that a copy of the file was delivered to the plaintiff below on January 14, 1991, it was discovered, when Girdy Jones was finally deposed on March 5, 1991, that several pages from the original file were not included in the copy furnished to the plaintiff.

5) On February 5, 1991, a subpoena was issued for the purpose of taking Girdy Jones’ deposition on the 12th day of February, 1991 in Eagle Pass, which was amended on the 6th to reflect that the deposition was to be taken in Crystal City where the suit had been filed.

6) On February 7, 1991, relator filed a motion to quash the subpoena and protective order, alleging among other things, that Girdy Jones had no personal knowledge of any relevant facts material to the case, and that the deposition was for purposes of harassment.

7) On February 11, 1991, relator advised the plaintiff’s counsel by telecopy that for various reasons Girdy Jones was not going to be present on February 12, 1991 in Crystal City for the deposition.

8) On February 12, 1991, the day of the Jones’ deposition, relator filed an amended motion to quash the subpoena for Jones’ deposition, contending that the deposition should be taken in Houston, the place of Jones’ residence. An affidavit by Jones was also filed which claimed that she had not been designated as a person having knowledge of relevant facts.

9) At a hearing held February 12, 1991 on relator’s motion to quash plaintiff’s subpoena to Jones and for a protective order, relator’s attorney argued at the beginning of the hearing that Jones had no knowledge of relevant facts. The attorney then proceeded to testify wherein he admitted on cross examination that Jones had answered the interrogatories for relator as its agent and as a person having knowledge of the facts recited therein, that Jones had attended a January 7, 1991 hearing in the same case and testified on behalf of relator, and that Jones was the adjuster in the case and had taken statements by the plaintiff and the plaintiff’s supervisor, Adolph Guerrero. At the end of the hearing, relator’s attorney argued that the issue no longer was whether Jones had knowledge of relevant facts, but whether the deposition should be taken in Houston.

10) The motion to quash and for protective orders was denied, and Jones’ deposition was reset for February 21, 1991 in Crystal City since Jones had failed to respond to the subpoena.

11) Mandamus was sought in this court on February 19, 1991, and leave to file was denied on February 20, 1991.

12) On February 20, 1991, nineteen days before the case was set for jury trial, relator filed the first amended answer in question, alleging affirmative defenses for the first time, including notice, other accidents, wage rates, and lump sum. Consequently, because this amended answer was filed so close to the trial date, it made it impossible for the plaintiff to supplement his interrogatory answers to deal with the newly alleged affirmative defenses thirty days before trial as required by TEX.R.CIV.P. 166(b)(6), and affected the trial court’s docket by easting doubt that the trial date would be met.⁴

13) When the deposition of Girdy Jones was finally taken on February 21, 1991, Jones was repeatedly instructed by relator’s attorney not to answer questions generally pertaining to the affirmative defenses, her investigation of the case, and what she meant by her own notes. As a result, a subsequent hearing was required on the questions that were certified to the court. However, Jones nevertheless testified during the deposition that she had taken the statements of the plaintiff and his supervisor, Adolfo Guerrero, on April 11, 1990 and that her notes in relator’s workers’ compensation file reflected the following:

that there was a riot at the jail where the plaintiff was working on Memorial Day 1989; that as a result of the riot, the floor was covered with water; that the plaintiff fell when he returned from investigating what had occurred; that the plaintiff stayed at home for two days thereafter; that “less than a month later, he complained about his back”; and, that the plaintiff never told anyone about any other accident which might possibly have hurt his back. Jones’ notes also contained her notation that “he [the plaintiff] reported the incident,” however this notation was scratched out, and she could not explain why. Jones’ notes further stated that “according to the information to date, it appears that we do owe for this,” which she failed to explain due to relator’s counsel’s instruction.

14) On March 5, 1991, seven days before the trial date, a hearing was held on the certified questions from the deposition of Girdy Jones, and on Plaintiff’s motion for sanctions. Before the hearing, relator agreed to stipulations on wage rates. After the hearing, the court issued the sanction order in question, striking relator”s First Original Answer, ordering that the certified questions be answered by March 8, 1991, and that relator pay $10,000.00 attorneys’ fees into the registry of the court.

15) Mandamus relief was sought and on June 19, 1991; the Texas Supreme Court denied the petition, suggesting instead that the trial court be allowed the opportunity to reconsider the ruling of which relator complained in light of Trans-American and Braden.

16) On July 15, 1991, the trial court held a hearing to reconsider its prior ruling as suggested by the supreme court. Taking the matter under considerable advisement, the trial court denied the motion for reconsideration on August 27, 1991, and ordered disbursement of the $10,-000.00 previously paid into the registry of the court.

17) Thereafter, as a result of a mandamus action filed in this court, the trial court responded to the order of this court, submitting findings of fact and conclusions of law which covered the requirements of TransAmerican.

Considering the entire record, the trial judge submitted the following findings of fact and conclusions of law to this court in compliance with this court’s request:

Findings of fact:

1. Hartford Accident & Indemnity Company [“Hartford”] has been directly responsible for a pattern of abuse of the discovery process.

2. Hartford’s pattern of discovery abuse included, but was not limited to, violations of court orders on discovery.

3. Hartford’s discovery abuse was committed willfully and in bad faith.

4. Hartford has engaged in a pattern of discovery abuse and obstructionist tactics designed to conceal evidence contrary to the insurer’s affirmative defenses in its amended answer.

5. In light of the pattern of discovery abuse and obstructionist tactics, the only sanction which would be effective against Hartford is striking the insurer’s affirmative defenses.

6. Hartford’s counsel was not responsible for the discovery abuse committed by the insurer.

7. Hartford’s discovery abuse has prejudiced Raul Flores, Jr., [“Flores”] and his counsel.

8. As a result of Hartford’s discovery abuse, counsel for Flores was required to expend a substantial amount of time and effort in travel, court appearances and preparation directly related to that abuse.

9. Flores is entitled to recover $10,-000.00 from Hartford as reasonable and necessary attorney’s fees and expenses directly related to Hartford’s discovery abuse.

10.The attorney’s fees and expenses assessed against Hartford will not significantly impair Hartford’s willingness or ability to continue the litigation.

Conclusions of law:

1. Hartford’s amended answer should be and has been stricken as a sanction for the insurer’s discovery abuse.

2. A direct relationship exists between Hartford’s discovery abuse and the sanctions imposed.

3. Since Hartford was directly responsible for the discovery abuse, the sanctions should be imposed against the insurer.

4. The sanction of striking the insurer’s amended answer is not excessive because Hartford acted in flagrant bad faith and lesser sanctions would be ineffective.

5. Based on Hartford’s refusal to produce material evidence, a presumption has been invoked that the insurer’s affirmative defenses lack merit.

6. The sanction imposed against Hartford serves the purposes of discovery sanctions by punishing a party that has violated the rules of discovery.

7. The sanction imposed against Hartford serves the purposes of discovery sanctions by deterring other litigants from violating the discovery rules.

8. Hartford, as a result of its discovery abuse, should be required to pay and has paid $10,000.00 as reasonable and necessary attorney’s fees and expenses to Flores.

9. The $10,000.00 in sanctions assessed against Hartford is directly related to the reasonable and necessary attorney’s fees and expenses of Flores caused by Hartford’s discovery abuse.

10. The attorney’s fees and expenses assessed against Hartford will not significantly impair Hartford’s willingness or ability to continue the litigation.

11. The sanctions imposed against Hartford are authorized by TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991); Braden v. Downey, 811 S.W.2d 922 (Tex.1991); and Bodnow Corp. v. City of Hondo, 721 S.W.2d 839 (Tex.1986); therefore, the sanctions were properly imposed and the motion for reconsideration was properly denied.

Thus, this record, viewed under the applicable standards, reveals that the trial court was made aware of the guiding principles in TransAmerican by the supreme court; that the trial court gave due consideration to the requirements enumerated in Trans-American, as directed by the supreme court, by granting a hearing on a motion to reconsider and taking the matter under advisement for almost a month and a half prior to ruling; that the trial court again gave due consideration to the requirements enumerated in TransAmerican upon this court’s subsequent request for findings of fact and conclusions of law; that the trial court complied with the request of this court, submitting findings of fact and conclusions of law adequately covering all the requirements of TransAmerican; that there is sufficient evidence and reasonable inferences of probative force in this record, which the trial judge was free to believe, to support all the findings of fact and conclusions of law and to sustain the sanctions order; that the “findings are [not] so contrary to the great weight and preponderance of the evidence as to be clearly wrong”; that the appellant has failed to show that no “direct relationship ... exists between the offensive conduct and sanctions imposed” since the pleadings struck contained the late filed affirmative defenses, which were directly connected to the offensive conduct; that the appellant failed to show that the sanctions imposed were excessive considering the totality of the record and the effect upon the trial setting and court’s docket; and, that the relator has failed in its burden of establishing a clear abuse of discretion. Walker at 840; TransAmerican, 811 S.W.2d at 917; Valencia, 765 S.W.2d at 893; IFG Leasing Co., 748 S.W.2d at 565-66. Consequently, this court has no alternative but to deny the mandamus, unless it erroneously substitutes its judgment for that of the trial court.

The dissent oversimplifies upon concluding that the issue here is “whether the sanctions were just,” leaving the improper impression that this court may substitute its judgment for that of the trial court. The prohibition against an appellate court substituting its judgment for the judgment of the trial court is long standing and based on considerable logic. The trial court is better situated to consider the many factors that participate in the making of such a ruling, which completely escape the appellate court since it deals purely with a cold record of words. Thus, these considerations gave rise to the necessity for great deference to the trial court in such matters, bringing about the abuse of discretion standard of review which exists today. Walker at 839-40; Brady, 795 S.W.2d at 714; Downer, 701 S.W.2d at 241-43; Cessna Aircraft Co., 665 S.W.2d at 443.

The dissent appears to find comfort in substituting its judgment for the judgment of the trial court by noting that in Trans-American “the supreme court did not explicitly conclude that the trial court abused its discretion.” However, it must not be ignored that in addition to leaving the matter to the discretion of the trial judge, the supreme court also found that “the record before [them] established] that the severe sanctions the district court imposed against TransAmerican were manifestly unjust in violation of Rule 215,” which is not inconsistent with the abuse of discretion standard of review under the circumstances of the case.⁵ TransAmerican, 811 S.W.2d at 919 (emphasis added). Nevertheless, the dissent goes further, and without regard for the “manifest” aspect, simply concludes that since the dissent does not find the sanctions “just,” the trial court is subject to mandamus.

The dissent expands on the holding of TransAmerican in suggesting that Trans-American authorizes mandamus in all cases where the trial court strikes pleadings without first imposing what the dissent considers to be lesser sanctions.”⁶ TransAmerican merely holds that the trial court should consider lesser sanctions pri- or to striking the pleadings, and this is apparent in the following language: “It follows that courts must consider the availability of less stringent sanctions” and “there is nothing in the record to indicate that the district court considered imposition of lesser sanctions.” TransAmerican, 811 S.W.2d at 917-18 (emphasis added). Here, the court’s Findings of Fact No. 5 clearly reflects that the court considered lesser sanctions and concluded that they would not be appropriate.

Apparently unable to find that there is no support in the record for the trial court’s findings or that the findings are so contrary to the great weight and preponderance of the evidence as to be clearly wrong⁷ and further, recognizing that great deference must be paid to the trial judge’s findings of fact,⁸ the dissent appears content to justify its holding by suggesting that the dispositive issue here is controlled by Walker and involves a defective legal conclusion which should be “reviewed with limited deference to the trial court.” Walker at 840. However, the legal conclusion which the supreme court found “to be reviewable with limited deference to the trial court” in Walker, was “the trial court’s erroneous denial of the requested discovery on the sole basis of Russell,” ⁹ which the supreme court found was clearly “distinguishable” and not applicable in the Walker case. Id. at 839-40.

In the present case, the dissent completely fails to point out which legal conclusion of the trial court is defective and why. Further, it is uncontradicted in this case that the guiding rules and principles announced in TransAmerican are applicable, since the supreme court and this court instructed the trial court to follow them and to provide findings of fact and conclusions of law in accordance with those principles. Moreover, the trial court complied with the supreme court’s instructions. Consequently, there is no basis to justify the dissent’s granting the mandamus based either on the “limited deference” (conclusions of law) or the “great deference” (findings of fact) aspect of the abuse of discretion standard of review. Walker at 840.

Ironically, all the mandamus eases the dissent cites to for authority applied the abuse of discretion standard. Further, the dissent misplaces reliance on Welex v. Broom, 823 S.W.2d 704 (Tex.App.—San Antonio 1992, writ requested), which is clearly distinguishable from the case before us.

In Welex, 1) the appeal before this court was not a mandamus proceeding, but an appeal from the merits; 2) the trial court imposed the sanctions in question prior to TransAmerican, completely unaware of the requirements the supreme court was about to impose upon trial courts; 3) the sanctions affected the trial on the merits, which also took place prior to TransAmeri-can; 4) the record clearly reflected from the trial court’s own remarks that the trial judge had not followed the requirements of TransAmerican; and, 5) since the sanction order had a considerable effect on the trial on the merits, reversal was required.

In this ease, 1) we have a mandamus proceeding rather than an appeal from the merits; 2) although the trial court imposed sanctions prior to TransAmerican, the supreme court directed the trial court to reconsider its sanctions in light of Trans-American prior to the trial on the merits; 3) in compliance with the directive of the supreme court, the trial court held a hearing to reconsider the sanctions in light of TransAmerican, took the matter under advisement for about a month and a half, during which time we must presume it reconsidered the sanctions and then denied the motion for reconsideration; 4) in response to the orders of this court, the trial court again reconsidered its sanctions, submitting findings of fact and conclusions of law to this court supporting all the requirements of TransAmerican; and, 5) the trial on the merits has not taken place.

Further, in Welex, as a direct result of the remarks of the trial court, which were quoted from the record, this court held:

The trial court imposed the most devastating sanctions a trial court could assess against a party without assuring that the sanctions were ‘visited upon the offender,’ and failed to consider ‘less stringent sanctions and whether such lesser sanctions would fully promote compliance.’ TransAmerican, 811 S.W.2d at 917. Further, ‘[i]n the present case, as in TransAmerican, it appears lesser sanctions should have been imposed first.’ Jaques v. Texas Employers Ins. Assn., 816 S.W.2d 129, 131 (Tex.App.—Houston [1st Dist.] 1991, no writ).

Welex, 823 S.W.2d at 710. Clearly, although the opinion recognizes that it appeared that lesser sanctions should have been imposed, the holding is based on the record, which discloses that the trial court failed to visit the sanctions upon the offender, and failed to consider lesser sanction as required by TransAmerican.

However, in an effort to justify its holding, the dissent focuses entirely on the statement that “it appealed] that lesser sanctions should have been imposed first,” ignoring completely the real basis for the holding supported by the record. By relying on this statement out of context, the dissent strains in its attempt to justify what it has done in the reverse, that is, base its holding on what sanctions it perceives the trial judge should have imposed, rather than whether the relator has complied with its burden of clearly showing that the trial court abused its discretion. Consequently, the dissent reiterates what it perceives to be its new found authority and erroneously substitutes its judgment for that of the trial court. Thus, Welex is not controlling, and mandamus is improper here.

The dissent accuses us of encouraging “sanction gamesmanship” and “chillfing] vigorous advocacy” for applying the time honored abuse of discretion standard of review. What the dissent has completely forgotten is what brought about the necessity for discovery abuse sanctions in the first place. The dissent should recall that discovery abuse sanctions became necessary after “vigorous advocacy” led to “discovery gamesmanship” that prolonged the trial process and played havoc with the trial court’s dockets. The trial is a search for the truth, which is not found by hiding it, and discovery gamesmanship has been used far too often to hide the truth. Nevertheless, we are bound to follow the abuse of discretion standard of review, which is what we have done here.

Finally, the dissent invokes due process in a final effort to justify substituting its judgment for that of the trial court. If due process is violated by striking the pleadings of a party, then 1) Tex.R.Civ.P. 215(2)(b) violates due process, 2) this sanction would never be available to the trial court, and 3) the supreme court would have held accordingly; however, no one contends this is the case. Certainly, due process is either violated or it is not. Due process cannot be determined by degrees, nor can it be used to justify hiding the truth, eliminating the abuse of discretion standard of review for mandamus cases, or substituting the judgment of the appellate court for that of the trial court.

The issue of whether mandamus is proper with regard to the court’s order to disburse the $10,000.00, which has been placed into the registry of the court, is controlled by Walker, 827 S.W.2d 833, and Braden, 811 S.W.2d 922.

In Braden, the supreme court granted mandamus relief to a party and its attorney who had been sanctioned by the trial court for discovery abuse. Braden, 811 S.W.2d at 922. The trial court had ordered the relator to pay the amount of $10,000.00 to the party seeking discovery, and the relator’s attorney was ordered to perform ten hours of community service. The deadlines for the sanctions imposed both on the relator and the attorney preceded the conclusion of the litigation.

With regard to the imposition of monetary sanctions, the supreme court stated that “[i]f the imposition of monetary sanctions threatens a party’s continuation of the litigation, appeal affords an adequate remedy only if payment of the sanctions is deferred until final judgment is rendered and the party has the opportunity to supersede the judgment and perfect his appeal.” Id. In this respect, the supreme court adopted the solution enunciated by the Fifth Circuit:

We ... believe that the imposition of sanctions must not result in total, or even significant, preclusion of access to the courts.... However, if a district court imposes monetary sanctions that are made payable prior to the entry of a final appealable order, a litigant may suffer a substantial restriction on his access to the courts. Financially strapped because of the sanctions award, a litigant is unable to proceed with his case on the merits. To avoid this harsh, inequitable scenario, we conclude that if a litigant contends that a monetary sanction award precludes access to the court, the district judge must either (1) provide that the sanction is payable only at a date that coincides with or follows entry of a final order terminating the litigation; or (2) makes express written findings, after a prompt hearing, as to why the award does not have such a preclusive effect. (Emphasis added.)

Id., citing Thomas v. Capital Sec. Serv., Inc., 836 F.2d 866, 882-83 n. 23 (5th Cir.1988) and Schaffer v. Iron Cloud, Inc., 865 F.2d 690, 691 (5th Cir.1989) (per curiam). Finally, the supreme court concluded that the trial court “must modify its order at least to allow” both relator and his attorney “an opportunity to appeal before such sanctions” are executed. Braden, 811 S.W.2d at 930.

In determining whether the order disbursing $10,000.00 to Flores’ counsel was appropriate, the question is whether Hartford has an adequate remedy by appeal. Walker at 840; Braden, 811 S.W.2d at 929. If not, the appropriate remedy is to direct the trial court to modify its order so payment of the money is deferred until final judgment is rendered. Braden, 811 S.W.2d at 930-31.

In the case at hand, Hartford did not maintain in the trial court, and has not argued to this court, that the immediate payment of the monetary sanction would significantly impair its ability to continue with this litigation. Hartford only argues that the evidence does not show that the payment of the monetary sanction would not restrict its access to the court. We note that Hartford had the opportunity to present this contention to the trial court on reconsideration of the sanctions following the issuance of the Braden opinion, and failed to do so. Hartford has failed to show that it has no adequate remedy at law with regard to the monetary sanction, which requires that mandamus relief be denied.

Writ of mandamus is denied.

1 . Hartford does contend in one point of error that the trial court abused its discretion in requiring the completion of a deposition of a non-party witness contrary to the provisions of Rule 201 of the Texas Rules of Civil Procedure, and on matters privileged, irrelevant to, and inadmissible in Flores’ case-in-chief. We decline to address this issue because this mandamus petition was ordered filed only to review the propriety of the sanctions.

2 . Additionally, we emphasize that the burden is on the relator to see that a sufficient record is presented to show error requiring reversal. Tex.R.App.P. 50(d).

3 . We emphasize that the court stated that “[tjhese standards set the bounds of permissible sanctions under Rule 215 within which the trial court is to exercise sound discretion." Id. (footnote omitted: emphasis added).

4 . Since the record clearly reflects appellant was aware of its alleged affirmative defenses prior to the time the trial court set the trial date and chose not to allege its defenses until just nineteen days before the trial date, it was not unreasonable for the trial court to consider the timing of the amended answer as another delaying obstructionist tactic, which would affect its docket. This is reflected in the trial court’s findings of fact numbers four and five which find the appellant guilty of "discovery abuse and obstructionist tactics.”

5 . The requirement that trial judges follow the guiding principles announced by the supreme court in TransAmerican obviously did not exist prior to TransAmerican. Therefore, it is not surprising that in TransAmerican, the trial judge did not follow these guiding principles. Thus, it should not be surprising that the supreme court found that the severe sanctions imposed were "manifestly unjust.” Accordingly, the finding of the supreme court was consistent with the abuse of discretion standard of review announced in Morrow, 714 S.W.2d at 298.

In the case before us, the rules and principles announced in TransAmerican were not only specifically made known to the trial court by the supreme court but also, the trial court was instructed to follow them upon reconsideration. Moreover, the record reflects that the trial court granted a reconsideration hearing, took the matter under advisement for over a month, made its ruling, and supplied findings of fact and conclusions of law supporting the requirements of TransAmerican.

6 . The concurring opinion suggest a reasonable view that the sanctions imposed here were, in fact, "lesser sanctions” and not "death penalty” sanctions, since relator's initial pleading remained intact. However, we conclude that this mandamus should be denied regardless of whether the sanctions are considered “death penalty" sanctions or not.

7 . Electro-Hydraulics Corp., 411 S.W.2d at 386-87.

8 . Walker at 839-40.

9 . Russell v. Young, 452 S.W.2d 434 (Tex.1970).