in Re: Robert P. Baxter, Jr. and Marsha Ellison D/B/A Ellison Lease Operating
05-16-01174-CV
| Tex. App. | Oct 19, 2016Background
- Real parties filed a Rule 202 petition seeking a pre‑suit deposition of Robert P. Baxter, Jr. to investigate a potential malicious‑prosecution claim related to an Irion County oil & gas lease dispute.
- The trial court granted the Rule 202 petition on May 10, 2016, authorizing Baxter’s pre‑suit deposition to occur after the Irion County court lost plenary power.
- The deposition was never scheduled or taken. On August 30, 2016, real parties filed a nonsuit of the Rule 202 proceeding without prejudice.
- Relators (Baxter and Ellison) sought mandamus relief asking this Court to vacate the May 10 order, dismiss the Rule 202 petition with prejudice, award fees and sanctions, and direct dismissal of the underlying suit.
- The court considered whether the nonsuit was effective despite the trial court’s earlier Rule 202 order and whether mandamus relief was available.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the nonsuit effective after the trial court ruled on the Rule 202 petition? | Relators: Nonsuit was ineffective because real parties had already introduced all evidence when the court ruled; Alvarado bars a post‑ruling nonsuit. | Real parties: Rule 202 is ancillary, not an adjudication on the merits; nonsuit is timely and effective. | The nonsuit was timely and effective; Rule 202 order did not adjudicate claims, so nonsuit mooted the proceeding. |
| Is mandamus available to vacate the Rule 202 order? | Relators: Mandamus should issue because the court abused discretion in granting Rule 202 deposition. | Real parties: Mootness following nonsuit removes need for mandamus. | Mandamus was denied as moot because the Rule 202 proceeding was nonsuited and the order is no longer in effect. |
| Does Alvarado control to prevent nonsuit after a trial court decision? | Relators: Alvarado prevents nonsuit where a judge has adjudicated a claim. | Real parties: Alvarado concerns adjudications on the merits (e.g., summary judgment); Rule 202 is not a merits adjudication. | Alvarado is distinguishable; Rule 202 order is not a decision on the merits and does not bar nonsuit. |
| Should court impose sanctions or award fees/costs to relators? | Relators: Requested sanctions and fees for alleged trial‑court misconduct. | Real parties: No basis once proceeding nonsuited. | Requests for sanctions and fees were denied; relators ordered to bear appeal costs. |
Key Cases Cited
- In re Prudential Ins. Co., 148 S.W.3d 124 (Tex. 2004) (mandamus standard: clear abuse of discretion and no adequate appellate remedy)
- Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853 (Tex. 1995) (nonsuit does not vitiate decisions on the merits such as a judgment)
- Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) (nonsuit effective upon filing and renders the merits moot)
- BHP Petroleum Co. v. Millard, 800 S.W.2d 838 (Tex. 1990) (plaintiff’s right to nonsuit is generally unqualified absent defendant’s affirmative relief)
- Combs v. Texas Civil Rights Project, 410 S.W.3d 529 (Tex. App.—Austin 2013) (Rule 202 petitions do not adjudicate claims and only grant the right to obtain discovery)