in Re Thomas Gerard Comerford ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-161-CV
BETTEANNE COMERFORD, TANIA APPELLANTS
ANN-MARIE CHAVANNE AND
DAVID TRUMAN MICHENER
V.
BRYAN DAVIS AND CARLA DAVIS, APPELLEES
AS NEXT FRIENDS OF TYLER DAVIS
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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
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AND
NO. 2-09-168-CV
IN RE THOMAS GERALD COMERFORD
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ORIGINAL PROCEEDING
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MEMORANDUM OPINION 1
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… See Tex. R. App. P. 47.4.
I. Introduction
Relator Thomas Gerard Comerford seeks a writ of mandamus
commanding the trial court to vacate its April 28, 2009 order requiring him to
appear for a rule 202 deposition, and Appellants Betteanne Comerford, Tania
Ann-Marie Chavanne, and David Truman Michener appeal the trial court’s April
28, 2009 order compelling them to appear for a rule 202 deposition.2 In one
issue, Relator and Appellants contend the trial court abused its discretion by
ordering Relator and Appellants to appear for pre-suit depositions. We deny the
petition for writ of mandamus and affirm the trial court’s order.
II. Factual and Procedural Background
On January 6, 2009, Bryan and Carla Davis, as Next Friends of Tyler
Davis, filed their “Verified Petition to Take Deposition in Anticipation of Suit.”
In the petition, the Davises allege that their son, Tyler, was seriously injured on
or about August 31, 2008, while he “was a passenger of an inflatable device
being towed by a boat driven by his father, Bryan Davis, when his inflatable
device was struck by another boat, owned and driven by [Relator].” The
Davises’ petition seeks an order authorizing the depositions of Relator and
Appellants in order to “perpetuate the testimony of these witnesses to obtain
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… This court previously granted Appellants’ motion to consolidate their
appeal with Relator’s mandamus action.
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information regarding the accident in question to determine the facts
surrounding the accident.” The Davises’ petition further states, “At the
hearing, the [Davises] will show that by permitting the deposition before suit,
they may prevent a failure or delay of justice in the anticipated suit.” The
Davises’ petition does not state that the requested depositions are necessary
to investigate a potential claim. On March 11, 2009, Relator and Appellants
filed a response to the Davises’ petition in which they specifically stated they
would not address a request for pre-suit depositions to investigate a potential
claim because the Davises sought pre-suit depositions only for use in an
anticipated suit.
The trial court conducted a hearing on the petition on March 13, 2009.
The Davises’ attorney argued at the hearing that the depositions were
necessary to investigate the claim and that the likely benefit of allowing the
depositions outweighed the burden and expense. Relator’s and Appellants’
counsel countered by arguing, among other things, that the burden on Relator
and Appellants did not justify an order authorizing pre-suit depositions. The trial
court thereafter stated, “I will find in this instance that the likely benefit of
allowing [the Davises] to take the requested depositions to investigate a
potential claim outweighs the burden or expense of the procedure.” The trial
court signed an order memorializing its ruling on April 28, 2009. Relator
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thereafter filed a petition for writ of mandamus and Appellants filed a notice of
appeal.3
III. Discussion
Rule 202.1 permits a party to petition the trial court for an order allowing
a pre-suit deposition “(a) to perpetuate or obtain the person's own testimony
or that of any other person for use in an anticipated suit; or (b) to investigate
a potential claim or suit.” Tex. R. Civ. P. 202.1. Rule 202.4(a) states:
(a) Required Findings. The court must order a deposition to be
taken if, but only if, it finds that:
(1) allowing the petitioner to take the requested deposition
may prevent a failure or delay of justice in an anticipated
suit: or
(2) the likely benefit of allowing the petitioner to take the
requested deposition to investigate a potential claim
outweighs the burden or expense of the procedure.
Tex. R. Civ. P. 202.4(a).
In their sole issue, Relator and Appellants contend that once a party
anticipates a lawsuit, the party must proceed only under rule 202.4(a)(1) and
that the party is precluded from proceeding under rule 202.4(a)(2).
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… Orders compelling pre-suit depositions from persons against whom suit
is not anticipated are appealable, but orders compelling pre-suit depositions
from persons against whom suit is anticipated are not. In re Jorden, 249
S.W.3d 416, 419 (Tex. 2008) (orig. proceeding). Thus, Appellants filed an
appeal and Relator filed a petition for writ of mandamus.
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If a party does not present an argument to the trial court through a timely
request, objection, or motion, the argument is not preserved and cannot be
made on appeal. Tex. R. App. P. 33.1(a)(1); see also Bates v. City of
Beaumont, 241 S.W.3d 924, 929 (Tex. App.—Beaumont 2007, no pet.)
(same). This principle applies equally to parties seeking a writ of mandamus.
See In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 936, 937–38 (Tex.
App.—Tyler 2005, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex.
App.—Amarillo 2001, orig. proceeding) (stating trial court cannot abuse its
discretion unless it had a legal duty to act, was asked to act, and failed or
refused to act). Relator and Appellants did not present their argument that a
party is precluded from proceeding under rule 202.4(a)(2) once it anticipates a
lawsuit to the trial court. Thus, the argument is not preserved for our review.
Tex. R. App. P. 33.1(a)(1). Furthermore, Relator and Appellants do not
challenge the evidence or arguments underlying the trial court’s finding that the
likely benefit of allowing Relator’s and Appellants’ pre-suit depositions
outweighs the burden or expense. As a result, we are required to deny the writ
of mandamus and affirm the trial court’s order. See Britton v. Tex. Dep’t of
Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no
pet.) (stating the reviewing court must affirm the trial court’s judgment or ruling
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when the appellant does not “attack all independent bases or grounds that fully
support a complained-of ruling or judgment”).
IV. Conclusion
Having overruled Relator’s and Appellants’ sole issue, we deny the
petition for writ of mandamus and affirm the trial court’s order.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
WALKER, J. concurs without opinion.
DELIVERED: December 31, 2009
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