From Casetext: Smarter Legal Research

Thomas v. Fitzgerald

Court of Appeals of Texas, Tenth District, Waco
Apr 6, 2005
166 S.W.3d 746 (Tex. App. 2005)

Summary

recognizing that a ruling on a Rule 202 petition is interlocutory and not immediately appealable when it seeks to depose a person against whom suit is contemplated

Summary of this case from Webb v. HEB LP

Opinion

No. 10-03-00195-CV.

April 6, 2005.

Appeal from the 52nd District Court, Coryell County, Phillip H. Ziegler, J.

Dan Thomas, Rosharon, pro se.

Walter Fitzgerald, Gatesville, pro se.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.


OPINION


Dan Thomas appeals the trial court's dismissal of his petition for deposition to perpetuate testimony. Because the underlying order is interlocutory and because this appeal is not authorized by statute, we will dismiss the appeal.

Rule of Civil Procedure 202.1 permits the taking of depositions to perpetuate a person's testimony "for use in an anticipated suit" or "to investigate a potential claim or suit." A person obtains such a deposition by filing a petition with a proper court. See Tex.R. Civ. P. 202.1, 202.2. The court's ruling on the petition constitutes a final, appealable order if the petition seeks discovery from a third party against whom a suit is not contemplated. Ross Stores, Inc. v. Redken Laboratories, Inc., 810 S.W.2d 741, 742 (Tex. 1991) (per curiam) (citing Dallas Jt. Stock Land Bank v. Rawlins, 129 S.W.2d 485 (Tex.Civ.App.-Dallas 1939, orig. proceeding)); Valley Baptist Med. Ctr. v. Gonzalez, 18 S.W.3d 673, 676-77 (Tex.App.-Corpus Christi 1999), pet. granted, judgm't vacated w.r.m., 33 S.W.3d 821 (Tex. 2000) (per curiam); Jacintoport Corp. v. Almanza, 987 S.W.2d 901, 902 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

Conversely, the ruling is interlocutory if discovery is sought from a person "against whom there is a suit pending or against whom a suit is specifically contemplated." Jacintoport Corp., 987 S.W.2d at 902; accord Valley Baptist Med. Ctr., 18 S.W.3d at 676-77. In that instance, the order cannot be appealed until a final judgment is rendered in the pending or contemplated suit. Jacintoport Corp., 987 S.W.2d at 902 (citing Dallas Jt. Stock Land Bank, 129 S.W.2d at 487); accord Valley Baptist Med. Ctr., 18 S.W.3d at 677.

Here, Thomas states in his petition that he "anticipates a lawsuit in which he is the plaintiff against correctional officer — Walter Fitzgerald." He seeks Fitzgerald's deposition to determine "the merit of the anticipated lawsuit."

Thomas's deposition petition plainly seeks discovery from Fitzgerald in contemplation of a suit against Fitzgerald. Thus, the trial court's order dismissing the petition is not a final, appealable judgment.

The Clerk of this Court notified Thomas by letter that his appeal appears subject to dismissal for want of jurisdiction because it is brought from an interlocutory order. See Tex.R.App. P. 42.3(a). Thomas requested and received an extension of time to respond to this notice. However, he has failed to file a response.

This Court has jurisdiction over an interlocutory appeal only when expressly provided by statute. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998) (per curiam); Chase Manhattan Bank v. Bowles, 52 S.W.3d 871, 878 (Tex.App.-Waco 2001, no pet.). Because no statute authorizes an interlocutory appeal from an order denying a deposition to perpetuate the testimony of a person against whom a suit is pending or contemplated, we do not have jurisdiction over this appeal.

Accordingly, we dismiss the appeal.


Summaries of

Thomas v. Fitzgerald

Court of Appeals of Texas, Tenth District, Waco
Apr 6, 2005
166 S.W.3d 746 (Tex. App. 2005)

recognizing that a ruling on a Rule 202 petition is interlocutory and not immediately appealable when it seeks to depose a person against whom suit is contemplated

Summary of this case from Webb v. HEB LP

dismissing for lack of jurisdiction an appeal from an order denying a deposition to perpetuate the testimony of an anticipated defendant

Summary of this case from Webb v. HEB LP

dismissing appeal

Summary of this case from DOE(S) v. Haddock

stating that when a petition is brought and discovery is sought from a person against whom there is a suit pending or specifically contemplated, the order authorizing presuit depositions is interlocutory and cannot be appealed until a final judgment is rendered

Summary of this case from Patterson Med. Diagn., 02-06-119-CV
Case details for

Thomas v. Fitzgerald

Case Details

Full title:Dan THOMAS, Appellant, v. Walter FITZGERALD, Appellee

Court:Court of Appeals of Texas, Tenth District, Waco

Date published: Apr 6, 2005

Citations

166 S.W.3d 746 (Tex. App. 2005)

Citing Cases

In re Poteete

P. 202.2(b); Thomas v. Fitzgerald, 166 S.W.3d 746, 747 (Tex.App.-Waco 2005, no pet.).IFS Security Group, Inc.…

Webb v. HEB LP

proceeding) ("[W]hen sought from an anticipated defendant" a pre-suit deposition order is "considered…