¶1dissenting.
¶2I dissent. The primary issue before this Court is whether a trial court may strike a defendant’s pleading without first imposing lesser sanctions. The trial court struck the pleadings of Gary McConnell, the defendant, for failure to respond to a docket control order. I believe we should reverse.
¶3In 1987, Gary McConnell, the defendant, a lawyer, executed a 90-day unsecured note for $9,000, payable to Memorial Construction Company, the plaintiff. In 1988, the plaintiff brought suit against the defendant, alleging that the note was past due and unpaid, and sought recovery of the unpaid principal, interest, attorney’s fees, and costs. The defendant answered by general denial.
¶4By letter, the trial court directed both counsel to furnish a joint docket control order by January 22, 1990 or appear at a “status conference” on January 26. Here are relevant excerpts from that letter;
If a joint docket control order has not been filed by January 22, 1990, a status conference will be held on January 26, 1990 at 1:00 p.m. in the 11th District Court. You may request a telephone *169conference in accordance with the enclosed notice.
If a joint docket control order is not filed by 01-26-90, you must appear at the conference on 01-26-90 either by phone or in person. Failure to file the joint docket control order or appear will result in dismissal for want of prosecution or pleadings being striken.
¶5On January 17, the plaintiff filed a docket control order with the trial court and sent a copy, by certified mail, to the defendant In a cover letter, the plaintiff explained it had not been able to reach the defendant. The defendant did not file anything and did not appear for the status conference as ordered by the court.
¶6On February 27, the trial court signed an order striking the defendant’s pleadings, noting that defendant did not appear at the January 26 hearing. On March 5, the plaintiff filed a motion for entry of judgment and on March 12, the trial court signed a final judgment in favor of the plaintiff.
¶7In point of error one, the defendant alleges that the trial court erred in striking his pleadings and entering a default judgment in favor of the plaintiff. The defendant asserts the failure to comply with the court’s letter was not intentional or the result of conscious indifference. The defendant explained that he relied on the docket control order submitted by the plaintiff and understood it would be entered by the Court.
¶8The majority says that the supreme court’s opinion in Koslow’s v. Mackie, 796 S.W.2d 700 (Tex.1990), ruled directly against defendant’s position. I disagree that we should look to Koslow to resolve the issue in this case. Instead, we should apply the new sanctions procedure announced by the supreme court in Trans-america Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917-918 (Tex.1991), and Braden v. Downey, 811 S.W.2d 922, 929-930 (Tex.1991). From reading these two cases, the new procedure for imposing sanctions seems to involve three steps.
¶9First, if a party fails to obey a court order or disregards some mandatory rule of procedure, before imposing death penalty sanctions of dismissal (against a plaintiff) or default (against a defendant), the trial court should impose some sanction less severe and oppressive. Trans-america, 811 S.W.2d at 917. If the less severe sanction does not secure compliance, the court is then justified in imposing the ultimate sanction. Here, the trial court did not impose a lesser sanction before striking defendant’s pleading.
¶10Second, before imposing the death penalty sanctions, the trial court should decide if the party acted in flagrantly bad faith or if the party’s lawyer callously disregarded the responsibilities of procedure. Trans-america, 811 S.W.2d at 918. Even before Transamerica, this Court and others required the trial court to find “bad faith” before imposing the ultimate sanction. See, e.g., City of Dallas v. Cox, 793 S.W.2d 701, 724 (Tex.App.—Dallas 1990, no writ); McRae v. Guinn Flying Services, 778 S.W.2d 189, 191 (Tex.App.—Houston [1st Dist.] 1989, no writ); Assicurazioni Generali, SPA v. Milsap, 760 S.W.2d 314, 317 (Tex.App.—Texarkana 1988, writ denied) (default as sanction).
¶11Third, the trial court should impose the ultimate sanction only when the party so abuses the rules of procedure, that the trial court can presume the party’s position lacks merit and it would be unjust to permit the party to present the substance of that position to the court. Transamerica, 811 S.W.2d at 918.
¶12Applying Transamerica and Braden, we should reverse, primarily because the trial court did not attempt to impose a less severe sanction before striking the defendant’s answer and rendering default.
¶13A default judgment rendered as a sanction adjudicates the defendant’s defenses, not on the merits, but on the manner in which the defendant conducted itself in pretrial matters. Transamerica, 811 S.W.2d at 918; see also Braden, 811 S.W.2d at 929. The bounds of permissible sanctions are limited by the rules and by constitutional *170due process. Tranaamerica, 811 S.W.2d at 917.