concurring.
I write for the purpose of noting that the trial judge did impose a lesser sanction in that only the first amended answer was struck. This pleading, filed nineteen days before trial, raised affirmative defenses for the first time. My understanding of the record and our ruling is that Hartford’s original answer is now the live defensive pleading; therefore, the plaintiff still must meet its burden of proof on the merits. Thus, this case is not a “death penalty default judgment” sanction as in Trans-American and Downer. Further, and aside from the discovery sanction issues, the assertion of affirmative defenses for the first time nineteen days before trial raises at least a question of fairness and surprise under Rule 63 of the Rules of Civil Procedure. If the affirmative defenses were truly important to reaching a just verdict, it would appear logical the defense would assert them early in the pleading process rather than slip them in at a time when the worthy opposition would have a less adequate opportunity to prepare.
Cases which ultimately must be litigated should be tried on the merits by vigorous and fair advocacy, not through discovery gamesmanship. TransAmerican at 920, 922 (concurring opinions of Gonzalez, J. and Mauzy, J.). Review of discovery sanctions must necessarily be based on the particular facts and circumstances of each case. See TransAmerican at 919 (majority opinion of Hecht, J. limiting Downer to its particular facts). While it is an unusual case which justifies the imposition of severe discovery sanctions before utilizing lesser sanctions, there is nothing in Trans-American which prohibits such action if the record supports it.
For these additional reasons and because I agree with the majority’s analysis of the standard of review and the sufficiency of the record to support the trial court’s limited action, I concur in the denial of mandamus relief.