dissenting.
Focusing on appellant’s failure to respond to Interrogatory No. 21, I would hold that the discovery order dated August 18, 1994, was sufficient to satisfy the TransAmerican requirements for the imposition of death penalty sanctions. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991). The majority concludes that the imposition of death penalty sanctions in this case was excessive, and recites the following elements that must be considered in making this determination:
(1) whether the court considered and/or tested lesser sanctions to see if lesser sanctions would promote compliance and deterrence and discourage further abuse, (2) whether the sanctions are no more severe than necessary to satisfy the legitimate purposes of a sanction (i.e., to secure compliance, to deter others and to punish), and (3) whether Butan Valley’s hindrance of the discovery process justifies a presumption that its claims or defenses lack merit.
However, the majority only considers the second and third elements. I would review all three to determine whether the death penalty sanctions were excessive. Specifically, with regard to the first element, based upon the particular record before us I would follow the First Court of Appeals and hold that “an order to compel joined with a statement that noneompliance would result in dismissal constitute^] a lesser sanction.” See Andras v. Memorial Hosp. System, 888 S.W.2d 567, 572 (Tex.App.—Houston [1st Dist.] 1994, writ denied); Jaques v. Texas Employers’ Ins. Ass’n, 816 S.W.2d 129, 131 (Tex.App.—Houston [1st Dist.] 1991, no writ) (holding that if party failed to comply with discovery order with full knowledge of the death penalty consequences, such sanctions would be appropriate); GTE Mobilnet of *834South Texas Limited Partnership v. Telecell Cellular, Inc., No. 01-94-00760-CV, — S.W.2d -[1995 WL 500408] (Tex.App.—Houston [1st Dist.] August 24, 1995, no writ).
This case is analogous to the situation presented in Jaques, 816 S.W.2d 129. There the court granted Texas Employers’ Insurance Association’s motion to compel and ordered Jacques to answer three interrogatories within thirty days. Jacques did not re-answer the interrogatories, and a motion for sanctions was filed. In his written response to the motion for sanctions, Jacques stated, “plaintiff herein stands by his previous responses,” and made the same arguments that had been rejected by the trial court when it ordered Jacques to re-answer. The trial court ordered Jacques’ pleadings stricken and the case dismissed. On appeal Jacques argued that he should not have been required to answer the interrogatories because he had good reasons for not answering them. Although the court of appeals reversed the trial court for failing to consider lesser sanctions, it stated: “[i]f Jaques failed to comply with that order, with full notice of the ‘death penalty’ consequences, we believe such sanctions would be appropriate.”
In the present case, Smith’s Interrogatory No. 21 requested the manner in which Butan calculated its alleged damages. Butan responded with a reference to its answers to Interrogatories 5, 8 and 13. None of these responses indicated the manner in which Bu-tan calculated its damages.1 The August 18, 1994, discovery order specifically ordered Butan to “state the manner of calculation of damages Butan Valley, N.V., claims ‘in an amount not less than $9,000’ (Int. No. 21).” The court further stated that if Butan did not timely comply, the court would strike “[Bu-tan’s] answer and counterclaim, and enter judgment for [Smith].” The court gave Bu-tan until September 15, 1994, to comply with the order. However, Butan failed to supplement its answer to the interrogatory until the day of the hearing on Smith’s motion to strike pleadings, October 13, 1994. Even then, Butan filed the exact same response to the interrogatory. In filing the exact same response I believe Butan, like Jacques, elected to stand on its previous responses. Because he was clearly warned of the death penalty consequences that would result if he failed to amend, I believe, like the First Court of Appeals, that the order to compel was a lesser sanction.
Regarding the second element of the TransAmerican analysis, I believe that the take nothing judgment on Butan’s counterclaim was no more severe than necessary to satisfy the legitimate purpose of the sanction. The August 18th discovery order stated that if Butan did not timely comply, the court would strike “its answer and counterclaim, and enter judgment for [Smith] without farther notice.” (emphasis added). Because Smith was not told how Butan would calculate its damages, the court found that Smith would be prejudiced by proceeding to trial on the counterclaim. The court therefore struck just Butan’s claim for affirmative relief, not its answer to Smith’s suit. Because Butan was the counter-plaintiff with unique knowledge of how it would calculate its damages, yet refused to do so, I do not believe that the sanction was more severe than necessary to satisfy the legitimate purpose of the sanction.
Finally, as to the third element, Butan Valley elected to stand on its original response even though warned of the death penalty consequences. The request for Bu-tan’s damages calculation contained in Interrogatory No. 21 was (1) proper, (2) central to Smith’s defense of the counterclaim, (3) clear and unambiguous, (4) unobjected to, and (5) easily answerable, as admitted by Butan. Under these circumstances, where the order *835to compel contained a clear statement that noncompliance would result in death penalty sanctions, and where Butan nonetheless elected to stand on its previous responses to the interrogatories, I believe that the court was justified in presuming that Butan’s counterclaim had no merit.
For the foregoing reasons I would affirm the judgment of the trial court.
. Although the majority finds that, based on Bu-tan’s answers to the prior interrogatories. Smith “could tell" the range of Butan’s damages, I do not believe that this statement is relevant or true. Although one can examine Butan’s responses, make several assumptions and speculate on the range of Butan's alleged damages, I do not believe that Smith should be required to do so. It was not Smith’s duty to discern from the prior answers what Butan's calculation of damages might be. The Texas Rules of Civil Procedure entitle her to a sworn answer to her interrogatory, even if that answer contained only a range of Butan's alleged damages. The trial court apparently agreed, stating: "You can’t tell her how she owes this money?” and “you didn't tell them what they’re asking about with respect to where this $11,000.00 came from.”