476 S.W.3d 61
Tex. App.2014Background
- Real party Laura Salinas filed a verified Rule 202 petition in her county to take presuit depositions of Mike East, Alice East, Lisa East, and Alejandro Urias regarding an anticipated tortious-interference suit about a fence on La Mula Pasture.
- Salinas sought testimony to identify land ownership, party status (individual, partnership, corporation, lessee, etc.), and requested documents (deeds, probate orders, leases, 2012 fence contracts).
- Relators answered, denying allegations and asserting statutory immunity under Tex. Parks & Wildlife Code §1.013 (owner may erect fences and not be liable for restricting wild-animal movement).
- The trial court granted the Rule 202 petition after a largely non-evidentiary hearing and ordered depositions and production of non-confidential documents.
- Relators sought mandamus relief in the court of appeals, arguing the petition lacked evidentiary support required by Rule 202; Salinas argued her verified petition sufficed and that relators failed to preserve other objections.
- The court of appeals held Salinas failed to meet Rule 202’s evidentiary burden because her petition was conclusory and not supported by sufficient admissible evidence; it conditionally granted mandamus and directed the trial court to vacate its order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a verified Rule 202 petition alone (not offered into evidence) can satisfy the evidentiary burden to authorize presuit depositions | Salinas: her verified petition and lack of objection at hearing supplied sufficient evidence for Rule 202 findings | Relators: petitioner must present admissible evidence at the hearing; a verified pleading and counsel argument are insufficient | Held: Petitioner must present competent evidence beyond conclusory verified pleadings; Salinas’s petition was too vague and conclusory, so Rule 202 findings unsupported |
| Whether the trial court abused discretion by finding depositions necessary to prevent failure or delay of justice | Salinas: verification and asserted necessity (perpetuate testimony; identify parties) justified the finding | Relators: no evidence was presented showing imminent unavailability or other bases to prevent delay/failure of justice | Held: Abuse of discretion; petitioner failed to produce facts showing likely failure/delay of justice |
| Whether the likely benefit of depositions outweighed burden or expense | Salinas: investigatory purpose and identification of parties justified benefit | Relators: petitioner offered no facts demonstrating benefit outweighs burden or expense | Held: Abuse of discretion; petitioner did not prove benefit outweighed burden |
| Whether mandamus is appropriate remedy | Salinas: some arguments not preserved so mandamus improper on those bases | Relators: mandamus proper because order is not appealable as to anticipated defendants and discovery cannot be "untaken" | Held: Mandamus appropriate; relators lack adequate remedy by appeal and depositions cause irreversible harm |
Key Cases Cited
- In re Frank Motor Co., 361 S.W.3d 628 (Tex. 2012) (mandamus proper to correct clear abuse of discretion)
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (standards for mandamus review of discovery orders)
- In re Jorden, 249 S.W.3d 416 (Tex. 2008) (Rule 202 presuit deposition limits; orders ancillary to anticipated suits often not appealable)
- In re Wolfe, 341 S.W.3d 932 (Tex. 2011) (Rule 202 orders subject to mandamus when improper; depositions cannot be "untaken")
- In re Does, 337 S.W.3d 862 (Tex. 2011) (required Rule 202 findings may not be implied; petitioner must present a basis for findings)
- In re Reassure Am. Life Ins. Co., 421 S.W.3d 165 (Tex. App.—Corpus Christi 2013) (petition must include explanatory facts beyond statutory language to satisfy Rule 202)