IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 07-0119

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In re BP Products = North America, Inc., Relator

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On Petition for Writ of = Mandamus

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Argued October 18,=20 2007

Justice Gaultney delivered the = opinion=20 of the Court.[1]

This mandamus=20 proceeding concerns the enforcement of a discovery agreement governing = what is=20 commonly referred to as an =93apex=94 deposition. The discovery = agreement was signed=20 by the attorneys for the parties, and filed as provided by Rule 191.1 = and Rule=20 11. We conclude the trial court abused its discretion in failing to = enforce the=20 agreement.

The Trial Court = Proceedings

=20 Fifteen people died and hundreds suffered injuries in an = explosion at=20 relator BP Products North America, Inc.=92s = Texas City oil = refinery.=20 The hundreds of resulting lawsuits against BP Products were consolidated = for=20 discovery in the 212th District Court in Galveston County. The parties conducted = extensive=20 discovery.

=20 The plaintiffs served notices to take the depositions of two = executives=20 of relator=92s parent company, BP p.l.c.: John Manzoni, the head of refining and = marketing,=20 and John Browne, the chief executive officer. BP Products moved to quash = the=20 depositions and moved for protective orders. BP Products contended the=20 plaintiffs had not met their burden under the apex doctrine.[2] The plaintiffs responded, = alleging that=20 both Manzoni and Browne had unique or superior knowledge of relevant = facts. The=20 trial court initially struck BP Products=92 supporting affidavits as = insufficient,=20 and denied the motions. BP Products sought mandamus review, and the = court of=20 appeals granted relief requiring consideration of the affidavits. In = re BP=20 Products N. Am., Inc., 2006 Tex. = App. LEXIS=20 6898, at *20 (Tex. App.=96Houston [1st Dist.] Aug. = 4, 2006,=20 orig. proceeding) (mem. op.). The trial = court again=20 denied BP Product=92s motions and allowed the depositions to = proceed.

=20 Instead of attempting further mandamus review, BP Products = concluded a=20 discovery agreement with the plaintiffs regarding the executives=92 = depositions,=20 and the parties filed the agreement with the trial court. See = Tex. R. Civ. P. 11, 191.1. = The=20 agreement provided that the defendants would produce Manzoni for a = four-hour=20 deposition. In return, the plaintiffs promised they would withdraw the = notice of=20 deposition of Browne and would not request the deposition of any other = executive=20 officer or board member of BP p.l.c., with = one=20 exception: paragraph four of the agreement provided that if, during the = Manzoni=20 deposition, the plaintiffs developed new evidence that John Browne had = =93unique=20 and superior personal knowledge=94 of relevant facts, the plaintiffs = would be=20 permitted to issue a new notice of deposition for Browne. The agreement = also=20 provided that BP Products retained its right to file a motion to quash = and=20 motion for protection =93on this new notice,=94 as well as its right to = seek review=20 of the trial court=92s ruling on these motions. In addition, the = agreement=20 provided that =93if, following appeals referenced in paragraph 4, the = deposition=20 of John Browne is not protected, the deposition of John Browne will be = limited=20 to one hour by telephone.=94 [3] = As=20 plaintiffs=92 counsel explained to the trial court, the agreement was a = =93quid pro=20 quo=94 negotiated to avoid delay in obtaining Manzoni=92s testimony:

[The=20 agreement] was based on . . . a quid pro quo . . . . Time was of the = essence. As=20 the court may recall, we were scheduled for trial in September, and = because of=20 BP=92s prior appeals that delayed the taking of him when I went to = London to take = him in=20 August. We were concerned we would not be able to get a ruling from the = Court of=20 Appeals for the next mandamus allowing us to take it promptly then. So = that was=20 our concern and our willingness to restrict Mr. Manzoni for four hours = instead=20 of the six or more we may need to do a thorough job. And also to firmly = restrict=20 the deposition of Lord Browne to one hour which was unprecedented on our = part.

=20 After the agreement was concluded, Browne made numerous public = statements=20 regarding the Texas City explosion, including giving interviews to=20 Fortune and the Financial Times, providing information = packets to=20 investors, and hosting several =93town hall=94 meetings for employees, = at least one=20 of which plaintiffs contend appeared on the internet.

=20 Plaintiffs took Manzoni=92s deposition and then issued a new = notice to take=20 Browne=92s deposition. Despite the provision of the agreement that any = deposition=20 take place =93by telephone,=94 the notice provided that the deposition = would take=20 place in Galveston,=20 Texas. BP Products filed = a motion=20 for protection, complaining that the deposition could not be set in = Galveston,=20 that plaintiffs could still not show that Browne had unique or superior=20 knowledge of relevant facts as required under Crown Central, 904 = S.W.2d=20 at 128, and that Manzoni=92s deposition had not produced =93new = evidence=94 Browne had=20 =93unique and superior personal knowledge=94 of relevant facts as = required under the=20 parties=92 discovery agreement. Plaintiffs responded, asserting they = could satisfy=20 both the apex standard and the standard provided in the agreement.

=20 On October 9th, the day of the hearing on BP Products=92 motion = for=20 protection, plaintiffs filed a supplemental response arguing that, at = the time=20 the parties entered the agreement, =93it was not anticipated=94 new = information=20 demonstrating Browne=92s knowledge would become available from = Browne=92s public=20 statements. Plaintiffs initially stood by the Rule 11 agreement. At the = hearing=20 itself, plaintiffs argued:

[W]e are=20 abiding by the contract. The contract we=92re relying is under paragraph = four of=20 the Rule 11 agreement . . . . In fact, we could probably come to this = court with=20 a straight face and say we think all bets are off because they = misrepresented=20 things. They waited until we entered that agreement and then they put = Lord=20 Browne all over the Internet after the fact and then try to King=92s X = us, and=20 we=92re not even arguing that. So, we will still stick with one hour and = we=92ll=20 still stick with the teleconference . . . .

The trial=20 court ended the first day of the hearing with the statement that it was = not=20 convinced =93based on how Mr. Browne likes to interject himself, that he = doesn=92t=20 want to be deposed.=94 The trial court continued the hearings until = October 11th,=20 to give BP Products an opportunity to examine plaintiffs=92 new = exhibits.

=20 BP Products argued in its written response before the trial court = that=20 Browne=92s public statements did not demonstrate Browne had unique or = superior=20 knowledge, and, in any event, did not justify setting aside the = parties=92=20 discovery agreement. At the October 11th hearing, plaintiffs argued: =

[T]here=20 was fraud inducement in the execution of Rule 11. And we are asking the = court to=20 dissolve the Rule 11 agreement and to allow us to proceed with the = deposition of=20 Lord Browne. Not just for the one-hour telephonic conference, but for = the four=20 to six hours individually we were originally intending to take the=20 deposition.

BP = Products=20 responded that plaintiffs had not alleged fraud, had not made = allegations=20 attacking the Rule 11 agreement, there was no evidence of fraud, and BP = Products=20 was entitled to time =93to develop it, discover it, and they have to = provide some=20 evidence which they have not.=94

=20 The trial court denied BP Products=92 motions, and ordered = Browne=92s=20 deposition to proceed at a place of the parties=92 choosing, =93without = limitations=20 and the Rule 11.=94 In its order of October 11, 2006, the trial court = found that=20 =93new circumstantial evidence developed during Mr. John Manzoni=92s = deposition=20 shows that Mr. Browne has unique or superior knowledge of relevant = facts.=94 In=20 addition, the court explained its refusal to enforce the parties=92 Rule = 11=20 agreement:

The Court=20 further finds that the parties=92 Rule 11 Agreement concerning the = depositions of=20 Mr. Manzoni and Mr. Browne does not prevent the deposition of Mr. Browne = going=20 forward because:

(1) =20 After the effective date, Mr. Browne personally injected himself into = the case=20 with public comments that present new evidence of his unique or superior = knowledge of relevant facts;

(2) =20 The Rule 11 Agreement was based on circumstances that have changed;

(3) =20 BP made misrepresentations that induced Plaintiffs to enter into the = rule 11=20 Agreement;

(4) =20 BP is estopped to rely on the Rule 11 = Agreement;=20 and/or

(5) =20 BP=92s public comments appear to be part of a continuing effort by BP to = taint the=20 jury pool.

The Court=20 orders the deposition of Mr. Browne to proceed, without limitations and = the Rule=20 11, at a time and place within the United States to be determined by = agreement=20 of the parties, or if in London, with costs/expenses to be paid by the=20 defendants.

Relator filed a petition for writ of mandamus with = the court=20 of appeals, and, after the court of appeals denied that petition, relator filed a petition with this Court. We = granted a stay=20 of the trial court=92s order pending our review of the issues.

=20 During the pendency of this mandamus proceeding, Browne resigned = from BP=20 p.l.c., and retired. The plaintiffs then = filed a=20 motion to dismiss BP Products=92 petition as moot, contending that apex=20 protections do not apply to retired officials.

The Mandamus=20 Standard

=20 A writ of mandamus may issue to correct a clear abuse of = discretion by a=20 trial court. Walker v. = Packer, 827=20 S.W.2d 833, 839 (Tex. 1992). A failure by the trial = court to=20 apply the law correctly constitutes an abuse of discretion. Id. at = 840. The=20 relator must show no adequate remedy by = appeal exists.=20 In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). = In=20 determining whether appeal is an adequate remedy, appellate courts = consider=20 whether the benefits outweigh the detriments of mandamus review. = Id.

The = Issues

=20 BP Products contends the trial court abused its discretion by = setting=20 aside the parties=92 discovery agreement and ordering Browne=92s = deposition. BP=20 Products argues the plaintiffs have not satisfied their burden under the = apex=20 doctrine. In BP Products=92 view, because Browne does not have unique or = superior=20 knowledge of relevant facts, his deposition would be outside the scope = of=20 discovery permitted by the rules governing apex depositions. BP Products = also=20 asserts the plaintiffs have not made the showing required under the = parties=92=20 agreement because there is no evidence that Manzoni=92s deposition = produced =93new=20 evidence=94 of Browne=92s =93unique and superior personal = knowledge.=94

The Rule 191.1=20 Agreement

=20 Rule 191.1 provides that =93except where specifically = prohibited=94 the=20 parties may modify the =93rules pertaining to discovery=94 by agreement. = Tex. R. Civ. P. 191.[4] An agreement is enforceable = when it=20 complies with the terms of Rule 11, or as it affects an oral deposition, = if made=20 a part of the record of the deposition. Id. The agreement in this = case complied=20 with the requirements of Rule 11. See Tex. R. Civ. P. 11. The = parties do not=20 argue that the agreement was specifically prohibited[5] or that the agreement was = outside the=20 scope of Rule 191.1. The question here is whether the trial court had = adequate=20 reason to set aside the parties=92 agreement.

=20 This Court has not previously addressed the scope of a trial = court=92s=20 power to set aside an otherwise enforceable Rule 191.1 agreement. = Consistent=20 with its powers over discovery, a trial court may modify discovery = procedures=20 and limitations for =93good cause.=94 Tex.=20 R. Civ. P. 191.1. This power, however, is not =93unbounded.=94 = Id. = cmt. 1. Wherever possible, a trial court should = give effect=20 to agreements between the parties. Johnson v. Swain, 787 S.W.2d = 36, 38=20 (Tex. 1989); see also Fortis = Benefits v.=20 Cantu, 234 S.W.3d 642, 651 (Tex. = 2007)=20 (trial court had duty to enforce valid Rule 11 pretrial agreement); = EZ Pawn=20 Corp. v. Mancias, 934 S.W.2d 87, 91 = (Tex. 1996) = (per curiam) (enforcing a time of filing agreement). = Discovery=20 agreements serve an important role in efficient trial management, = permitting the=20 parties to settle their disputes without resort to judicial supervision. = The=20 Rules of Civil Procedure encourage parties to reach discovery = agreements. See=20 Tex. R. Civ. P. = 191.2. When=20 the parties conclude an agreement, the court should not lightly ignore = their=20 bargain.

=20 A court should be particularly reluctant to set aside a Rule = 191.1=20 agreement after one party has acted in reliance on the agreed procedure = and=20 performed its obligations under the agreement. Cf. McBride v. = McBride,=20 797 S.W.2d 689 (Tex. App.=96Houston 1990, writ. denied); SEC v.=20 TheStreet.Com, 273 F.3d 222, 229-3 (2d Cir. 2001) (where a deponent = has=20 relied upon a protective order sealing the deponent=92s testimony, a = court should=20 not lightly modify the order). An easy disregard for partially performed = agreements would discourage parties from committing to discovery = agreements for=20 fear that the other party would avail itself of the benefit of the = bargain and=20 then attempt to avoid its own obligations.

=20 The trial court apparently set aside the agreement here based on = the=20 court=92s application of equitable and contract principles. See In re = Ford=20 Motor Co., 211 S.W.3d 295 (Tex. 2006); Kennedy v. Hyde, 682 = S.W.2d=20 525, 529 (Tex. 1984) (holding that agreements complying with Rule 11 are = nevertheless subject to attack on the grounds of fraud or mistake, and=20 nonconforming agreements =93may be enforced for similar equitable = reasons=94);=20 Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). The trial court = found=20 that Browne=92s public statements justified setting aside the discovery = agreement=20 on grounds of misrepresentation, estoppel, = and changed=20 circumstances. On this record, none of these grounds provides a valid = basis for=20 ignoring the parties=92 agreement.[6]

=20 The plaintiffs identify no specific misrepresentations on which = they may=20 have relied. Nor does the record contain evidentiary support for the = assertion=20 that BP Products made a material, false representation that could have=20 reasonably induced the plaintiffs to enter the discovery agreement. = See=20 Formosa Plastics Corp. USA=20 v. Presidio Eng=92rs & Contractors, = Inc., 960=20 S.W.2d 41, 46-47 (Tex. 1998); Restatement (Second) of Contracts = =A7=A7=20 159 intro. note, 162 (1979). The trial court=92s explanation, that = Browne=92s public=20 statements established plaintiffs relied on misrepresentations = concerning=20 Browne=92s lack of knowledge, is not supported by the record or the = parties=92=20 agreement. To the contrary, plaintiffs=92 statements to the trial court = reflect=20 that the plaintiffs entered the agreement to avoid the delays associated = with=20 mandamus review and to obtain Manzoni=92s deposition testimony prior to = the=20 September trial setting. Plaintiffs have always maintained Browne has = unique and=20 superior knowledge, the trial court previously ruled plaintiffs could = take=20 Browne=92s deposition, and the agreement itself provides that Browne=92s = deposition=20 may be taken for one hour, by telephone, if Manzoni=92s deposition = demonstrated=20 Browne=92s knowledge.

=20 Similarly, the finding that =93BP is estopped to=20 rely on the Rule 11 Agreement=94 does not support the order. The trial = court=20 invoked estoppel apparently to prevent BP = Products=20 from taking a position in court concerning the extent of Browne=92s = knowledge that=20 the court viewed as inconsistent with Browne=92s public statements.=20 See Restatement = (Second) of=20 Contracts =A7 84 cmt. b (1979) = (defining waiver);=20 Lopez v. Munoz, Hockema & Reed, = L.L.P., 22=20 S.W.3d 857, 864 (Tex. 2000) (defining quasi-estoppel). Even if Browne had unique or superior = knowledge,=20 that fact would not estop BP Products from = insisting=20 upon the time and manner restrictions included in the agreement; the = parties=20 expressly agreed that even if Browne=92s deposition was =93not = protected,=94 Browne=92s=20 deposition would be limited.

=20 The record also fails to show that Browne=92s public statements = are the=20 kind of changed circumstance that might amount to =93good cause=94 for = setting aside=20 the discovery agreement. Browne=92s public statements rendered the = agreement=20 neither impracticable nor impossible. A subsequent development reducing = the=20 usefulness of a discovery agreement to one party, without more, does not = justify=20 a refusal to enforce the agreement.

=20 The trial court found that =93BP=92s public comments appear to be = part of a=20 continuing effort to taint the jury pool,=94 but nothing in the record = suggests=20 sanctions were the subject matter of the hearing before the trial court. = The=20 hearing focused on the extent of Browne=92s knowledge as reflected in = his public=20 statements. In the trial court, plaintiffs neither explicitly requested=20 sanctions nor cited any supporting rule or case law. Plaintiffs make no = argument=20 and cite no authority in their brief to this Court that the order was=20 permissible as a sanction, though in oral argument they referenced other = efforts=20 by BP Products that are not part of this record. In the absence of a = motion for=20 sanctions, proper notice and opportunity to be heard, or the trial = court=92s=20 invocation of the court=92s power to sanction, the order striking the = discovery=20 agreement is not supportable as a sanctions order. See In re = Bennett, 960=20 S.W.2d 35, 40 (Tex. 1997) (per curiam); Tex. R.=20 Civ. P. 215.3; cf. Am. Flood Research, Inc. v. Jones, 192 = S.W.3d=20 581, 583-84 (Tex. 2006) (per curiam).

=20 Rule 191.2 provides that =93[p]arties and their attorneys are = expected to=20 cooperate in discovery and to make any agreements reasonably necessary = for the=20 efficient disposition of the case.=94 Tex.=20 R. Civ. P. 191.2. The Rule also provides that, when requesting a = hearing=20 relating to discovery or when filing a discovery motion, a party must = certify=20 =93that a reasonable effort has been made to resolve the dispute without = the=20 necessity of court intervention and the effort failed.=94 Id. = To=20 achieve =93the efficient disposition of the case . . .without the = necessity of=20 court intervention,=94 parties and their attorneys must be able to rely = on=20 agreements. See id. We hold the trial court abused its discretion = by=20 setting aside the parties=92 Rule 191.1 agreement.

BP Products=92 = Motion to=20 Quash

=20 BP Products asserts that the apex doctrine bars plaintiffs from = taking=20 Browne=92s deposition. Plaintiffs assert the issue is moot because = Browne has=20 retired. The apex doctrine, however, does not control the outcome in = this case.=20 The discovery agreement displaced the common law standard with the = parties=92 own=20 standard. As BP Products explained in its brief: =93If new evidence was = developed=20 during Manzoni=92s deposition showing that Browne had unique and = superior=20 knowledge of relevant facts, then Browne would be presented at a limited = deposition. . . . Both parties retained the right to appeal the trial = court=92s=20 ruling on the new evidence issue.=94

=20 The terms of the parties=92 discovery agreement apply. The trial = court=20 found that =93new circumstantial evidence developed during Mr. John = Manzoni=92s=20 deposition shows that Mr. Browne has unique or superior knowledge of = relevant=20 facts.=94 If some evidence supports the trial court=92s conclusion, the = trial court=20 could order a deposition consistent with the terms of the parties=92 = agreement.=20 See generally Butnaru v. Ford Motor = Co., 84=20 S.W.3d 198, 211 (Tex. 2002) (a trial court does not = abuse its=20 discretion if some evidence supports its decision).

=20 To satisfy the =93new evidence=94 provision, plaintiffs rely, in = part, on=20 Manzoni=92s inability to answer certain questions about a twenty-five = percent=20 budget cut directive issued by BP p.l.c. The = trial=20 court concluded that Manzoni=92s inability to answer these questions = constituted=20 new evidence that Browne would have unique and superior knowledge about = the=20 budget cuts. This inference might not normally support the taking of an = apex=20 deposition. Here, however, the trial court could reasonably construe the = =93new=20 evidence=94 provision of the Rule 191.1 agreement to allow plaintiffs a = limited=20 deposition of Browne to answer questions Manzoni may have been unable to = answer=20 but Browne could. On this record, under that construction of the = parties=92=20 agreement, the deposition of John Browne could be taken for one hour, by = telephone. The court instead ordered the deposition to proceed without = the=20 limitations agreed to by the parties. Though the trial court=92s =93new = evidence=94=20 finding would support authorizing plaintiffs to take Browne=92s = deposition=20 consistent with the agreed limitations, the finding does not justify = setting=20 aside the agreement.

Conclusion

=20 The trial court abused its discretion in setting aside a valid = discovery=20 agreement without good cause. In this case, one party had already acted = in=20 reliance on the agreed procedure, partially performing its obligations. = The=20 parties agreed to define the scope of permissible discovery under Rule = 192.3(a),=20 limiting the expense and burden of litigating a disputed issue. Delaying = review=20 until appeal, under these circumstances, would defeat not only the = purpose of=20 the discovery agreement, but also the strong public policy encouraging = parties=20 to resolve their discovery disputes without court intervention. = See Tex. R. Civ. P. 191.2. This = case=20 presents an issue of first impression, involving an important issue of = public=20 policy. We conclude that the benefits outweigh the detriments of = mandamus=20 review. See In re Prudential, 148 S.W.3d at 136-38.

=20 We conditionally grant the writ of mandamus to compel the trial = court to=20 vacate its order, and direct the trial court to enforce the parties=92 = agreement.=20 We are confident the trial court will comply, and our writ will issue = only if=20 the court does not.

&nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; =20 ____________________________________

&nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; =20 David Gaultney

&nbs= p; = ; = &= nbsp; &n= bsp; &nb= sp; =20 Justice

Opinion Delivered: January 25, 2008

APPENDIX

Text of = the Parties=92=20 Agreement

=20 The parties agree that, in consideration of all the agreements = made=20 herein:

=20 1. The oral ruling of the court on August 28, 2006, regarding the = depositions of John Browne and John Manzoni will be deemed by the = parties to be=20 vacated and of no effect and no order will be tendered by = plaintiffs.

=20 2. BP Products will produce John Manzoni for deposition in = Chicago on = September 8 for=20 four hours of deposition time.

=20 3. Plaintiffs will withdraw the notice of deposition of John = Browne and=20 will not again notice or request the deposition of any other executive = officer=20 or board members of BP p.l.c., with one = exception set=20 out in paragraph 4 below.

=20 4. If, during the deposition of John Manzoni, new evidence is = developed=20 that John Browne has unique and superior personal knowledge of facts = relevant to=20 the trial of this matter, Plaintiffs may issue a new notice for the = deposition=20 of John Browne. BP Products retains its right to file a motion to quash = and=20 motion for protection on this new notice, have that motion heard at the = trial=20 court and both parties retain their right to appeal the trial court=92s=20 ruling.

=20 5. Plaintiffs agree that if, following appeals referenced in = paragraph 4,=20 the deposition of John Browne is not protected, the deposition of John = Browne=20 will be limited to one hour by telephone.

^[1]=20 The Honorable David = Gaultney,=20 Justice, Ninth Court of = Appeals, Beaumont,=20 sitting by commission of the Honorable Rick Perry, Governor of Texas, = pursuant=20 to Tex. Gov=92t Code = =A7=20 22.005. Justice O=92Neill is recused.

^[2]=20 Under the apex doctrine, when a party seeks to take the deposition of a = senior=20 corporate official, the party must show either that the official has = =93unique or=20 superior personal knowledge=94 of relevant facts or that =93after a good = faith=20 effort to obtain the discovery through less intrusive means, (1) that = there is a=20 reasonable indication that the official=92s deposition is calculated to = lead to=20 the discovery of admissible evidence, and (2) that the less intrusive = methods of=20 discovery are unsatisfactory, insufficient or inadequate.=94 In = re=20 Alcatel USA, Inc., 11 S.W.3d 173, 176 (Tex. 2000); see also Crown Cent. = Petroleum=20 Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995).

^[3]=20 For the full text of the parties=92 agreement, see the appendix. =

^[4]=20 Rule 191.1 reads in full: =93Except where specifically prohibited, the = procedures=20 and limitations set forth in the rules pertaining to discovery may be = modified=20 in any suit by the agreement of the parties or by court order for good=20 cause. An agreement of the parties is enforceable if it complies = with Rule=20 11 or, as it affects an oral deposition, if it is made a part of the = record of=20 the deposition.=94

^[5]=20 Paragraph 1 of the agreement provided that the trial court=92s previous = oral=20 ruling regarding the depositions of John Browne and John Manzoni =93will = be deemed=20 by the parties to be vacated and of no effect.=94 The agreement = does not set=20 aside a court order, something specifically prohibited as noted in = comment 1 to=20 Rule 191.1. The court=92s original ruling did not require the = plaintiffs to=20 take Browne=92s deposition, and the parties could agree =93to shorten = the time=20 permitted for a deposition or to change the manner in which a deposition = is=20 conducted.=94 See Tex. R.=20 Civ. P. 191.1 cmt 1.

^[6]=20 See Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 851-52 = (Tex. 1992) = (orig.=20 proceeding) (noting that trial court findings may be helpful in = assessing=20 whether or not the trial court abused its=20 discretion).