In Re Ford Motor Company, Relator

Justice Enoch, joined by Justice Spector, concurring in part and dissenting in part.

The teachings of Walker v. Packer are now in doubt. Walker was our laudable effort to set mandamus proceedings in Texas on a predictable course. Braden provided a narrow, but needed, exception to the appellate remedy for sanctions announced in our rules of procedure. In issuing mandamus, the Court veers off course. While I join much of the Court's opinion, I must dissent from part IIIB.

There are two fundamental issues when a party seeks mandamus: (1) whether the trial court abused its discretion; and (2) whether the relator has an adequate remedy by appeal. I agree with the Court that the trial court abused its discretion in making the appellate attorney's fees sanction unconditional.

I disagree, however, that Ford lacks an adequate remedy on appeal. The Court reaches this conclusion because of the sanction's supposed "chilling effect." First, even if a "chilling effect" was all one needed to avoid the appellate process, mandamus still would not be supported by the facts in this case. Ford was not "chilled" by the $25,000 sanction. A Ford representative testified that Ford could pay the $10 million sanction imposed by the trial court and still continue the litigation. And, Ford pursued mandamus relief.

This brings me to Braden . Rule 215(3) of the Texas Rules of Civil Procedure states that an attorney's fees sanction "shall be subject to review on appeal from the final judgment." In Braden , we wrote that this language means just what it says -- a party has an adequate remedy on appeal from an attorney's fees award. But we carved out a limited exception in the mandamus context; if the attorney's fees sanction was made payable before final judgment and the award threatened to prevent a party from continuing the litigation , then an appeal was not adequate.

The Court discounts Braden with the claimed distinction that its only concern here is with "penalt[ies] imposed on a party's prospective exercise of legal rights." The Court's reasoning obfuscates Braden . The trial court imposed the sanction at issue here -- unconditional appellate attorney's fees -- because of Ford's past conduct. The Court recognizes in this case that an appellate attorney's fees sanction, which of course is prospective, can be imposed for past discovery abuse; we just hold that the award cannot be unconditional.

More significantly, Braden was not about whether the sanction order was prospective. Rather, Braden was about whether the attorney's fees sanction had an effect on the party's ability to continue the litigation. The Braden exception is prospective. It simply does not matter whether an already-imposed sanction threatens a party's next step ( Braden ) or the party foregoes the next step because the sanction is threatened (this case). In either event, the question is whether the sanction threatens the sanctioned party's ability to proceed with the case. The Court's dichotomy -- "past vs. prospective" -- is false.

A final note. While we concluded in Braden that the required immediate payment of the sanction would have jeopardized Braden's ability to continue the litigation, we did not issue a writ of mandamus. Rather, we ordered the trial court to modify its order "to allow Braden an opportunity to appeal before such sanctions must be paid." In this case, the order is silent about when the sanction must be paid. Moreover, the only evidence about whether the sanction threatened to prevent Ford from continuing the litigation is unequivocally that it did not. Yet Ford gets more relief than Braden did. So much for Walker 's promise of predictability.

Ford has an adequate remedy on appeal from the appellate attorney's fees sanction. Because Walker and Braden compel a different result than that reached by the Court, I respectfully dissent from part IIIB of the Court's opinion.

Craig T. Enoch

Justice

Opinion delivered: July 14, 1998

827 S.W.2d 833 (Tex. 1992).

811 S.W.2d 922 (Tex. 1991).

See also In re Smith Barney, Inc. , ___ S.W.2d ___, ___ (Tex. 1998) (Hankinson, J., dissenting) (stating that the Court's new "approach [to mandamus] unwisely undermines the requirements of Walker "); In re D.A.S. , ___ S.W.2d ___, ___ (Tex. 1998) (Baker, J., dissenting) (noting that the Court is only "paying lip service to the lack of an adequate appellate remedy").

See Walker , 827 S.W.2d at 839.

___ S.W.2d at ___.

Tex. R. Civ. P. 215(3).

See Braden , 811 S.W.2d at 928.

See id. at 929.

___ S.W.2d at ___ (emphasis added).

See id. at ___ (holding that "although a trial court may grant appellate attorneys' fees as part of a sanctions order under Rule 215, the court must condition the award on the outcome of the appeal").

Id. at 929.