In a mandamus setting, it can sometimes be a challenge to ensure that you’ve brought forward all the documents and hearing transcripts required to establish an abuse of discretion. The Houston Fourteenth District Court of Appeals has suggested the record in a death penalty sanctions case may need to be fairly comprehensive. In In re Le, Le filed a petition for writ of mandamus asserting that the trial judge abused his discretion by assessing death penalty sanctions against her. In a 2-1 split decision, the majority of the panel concluded that the mandamus record was incomplete such that it could not find any abuse of discretion. Why? Because death penalty sanctions necessarily require the court to look back at the whole history of the litigant’s abuses and Le’s record did not include all of the discovery hearing transcripts leading up to the sanctions hearing. The majority also concluded that Le failed to advise the trial judge that a monetary sanction threatened her ability to continue the litigation. The majority felt that this requirement was a necessary preservation predicate, and such effort would also establish the inadequate-remedy-by-appeal element of mandamus. The majority’s opinion may be found here.
Justice Christopher dissented, arguing that the monetary sanctions were almost three times the amount assessed in Braden v. Downey and included a future payment, and yet the Braden court found an abuse of discretion. Justice Christopher also took issue with the plaintiff’s conclusory affidavit that asserted that the plaintiff was prejudiced by delay in discovery, and she questioned whether that single statement could justify death penalty sanctions. The dissenting opinion may be found here.