      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00614-CV



                                       In re Margaret Knox


                      ORIGINAL PROCEEDING FROM TRAVIS COUNTY



                             MEMORANDUM OPINION


               Relator Margaret Knox has filed a petition for writ of mandamus complaining of the

trial court’s order directing her or her counsel to pay $2,750.00 for attorneys’ fees incurred by Real

Party in Interest Cabot-Chase, Ltd. on or before September 13, 2013.1 Relator asserts that the trial

court abused its discretion by ordering payment to be made before the award could be appealed and

that the sanctions awarded are excessive and not related to the abuse found by the trial court. We

deny the petition.

                                         BACKGROUND

               In the underlying lawsuit, Cabot-Chase served Relator with a set of requests for

production of documents. Relator objected to all but two of the requests and produced no

documents. Cabot-Chase filed a motion to compel Relator to respond to the document requests.



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           The trial court’s order originally ordered payment by August 23, 2013, but because that
date had passed by the time the trial court heard Relator’s motion to vacate or modify the order, the
trial court extended the payment date to September 13, 2013. Relator filed her petition in this Court
on September 11, 2013. We stayed the portion of the trial court’s order directing payment of the
$2,750.00 by September 13.
During the deposition of one of Cabot-Chase’s witnesses, Relator terminated the deposition and

complained in a motion to compel that the witness had refused to provide documents requested in

the notice of deposition and refused to answer a number of questions during the deposition.

Relator’s motion to compel also addressed Cabot-Chase’s objections to Relator’s interrogatories,

requests for admission, and requests for production.

               The trial court held a hearing on the motions to compel. At the conclusion of the

hearing the court overruled all of Relator’s objections and granted Cabot-Chase’s motion to compel

in its entirety. The court sustained all of Cabot-Chase’s objections to Relator’s interrogatories and

requests for production and all but two of Cabot-Chase’s objections to Relator’s requests for

admission. The court also overruled all of Relator’s complaints about the terminated deposition.

               During the hearing on the motions to compel, Cabot-Chase introduced evidence that

it had incurred $4,400.00 in attorneys’ fees in connection with bringing its motion to compel and

responding to Relator’s motion. The court awarded Cabot-Chase attorneys’ fees in the amount of

$2,750.00, which it ordered paid by August 23, 2013. On August 21, 2013, Relator filed a motion

to vacate the order, contending that the order should be vacated in its entirety or modified such that

payment of the attorneys’ fees was not required until the conclusion of the case. In the verified

motion to vacate, Relator stated that “the [$2,750.00] monetary sanction imposed by the court

threatens [Relator’s] continuation of the litigation.” After conducting a hearing on the motion to




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vacate, during which no evidence was presented, the trial court denied Relator’s motion to vacate

and ordered payment by September 13, 2013.2 Relator then filed this petition.


                                           DISCUSSION

               Relator asserts that the trial court abused its discretion by denying her request to make

the $2,750.00 award payable only when there is a final, appealable order in this case and by failing

to make a finding as to why the award would not have a preclusive effect on Relator’s ability to

pursue this litigation. See Braden v. Downey, 811 S.W.2d 922, 929 (Tex. 1991) (adopting procedure

whereby when party contends that monetary sanction award precludes its access to court, trial court

must either provide that sanction is payable at date coinciding with or after entry of final order

terminating litigation or make express written findings after prompt hearing as to why award does

not have such effect). In the present case Relator did contend, in a verified motion to vacate or

modify the order, that payment of the monetary award would preclude her access to the court. Other

than making this conclusory statement, however, Relator failed to present any evidence or further

explanation as to why an order directing her or her counsel to pay $2,750.00 would actually threaten

her ability to continue the litigation. Consequently, Relator has failed to meet her burden to

demonstrate to the court that, under the standard adopted in Braden, the payment of these sanctions

must be deferred until the court has rendered an appealable judgment. Relator also complains that

the trial court did not make an express written finding that the award does not have a preclusive

effect on Relator’s access to the court and that the failure to make such a finding violates the


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         Relator does not contend that she requested or attempted to present evidence at the hearing,
and the record does not reflect that the trial court denied any request to present evidence.

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mandatory Braden procedure. However, because Relator did not present any evidence to the court

that could possibly support such a finding, any error in failing to make that finding was not harmful.

Furthermore, we conclude that the award of $2,750.00 for attorneys’ fees incurred by Cabot-Chase

in connection with litigating the discovery disputes is neither excessive nor unrelated to the

conduct the court found Relator engaged in. See TransAmerican Natural Gas Corp. v. Powell,

811 S.W.2d 913, 917 (Tex. 1991) (for sanction to be just, there must be direct relationship between

offensive conduct and sanction, and sanction must not be excessive). The sanction was, therefore,

a permissible sanction pursuant to rule 215. See Tex. R. Civ. P. 215(3) (court may impose

appropriate authorized sanction on parties who abuse discovery process).

               The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a). The stay

order issued by this Court on September 12, 2013, is lifted.



                                               _____________________________________________

                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Field

Filed: February 7, 2014




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