The Fort Worth Court of Appeals recently held that an order directing that sanctions be paid prior to final judgment is an abuse of discretion unless the court makes express findings as to why the sanctions do not preclude the sanctioned party from continuing the lawsuit. In this case, the trial court awarded over $19,000 in sanctions against the plaintiff for discovery abuse payable within thirty days. The plaintiff filed a writ of mandamus arguing that the sanctions were unwarranted and, even if proper, the sanction should not have been payable within thirty days. The court of appeals deferred ruling on the discovery issues and amount of the sanctions but held that the order to pay within thirty days was an abuse of discretion because the sanction threatened the plaintiff’s ability to continue the lawsuit. The Court stated:
If a litigant contends that a monetary sanction 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) make express written findings, after a prompt hearing, as to why the award does not have such a preclusive effect.
The Court denied the plaintiff’s request for mandamus as to the propriety of the sanctions, but granted the petition and ordered the trial court to modify the sanctions order to provide that the sanctions be payable upon termination of the litigation. The Court’s opinion in In re Spence can be found at this link.