in Re Jeffery Lynn Poteete ( 2006 )

IN RE JEFFERY LYNN POTEETE

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-05-433-CV

IN RE JEFFERY LYNN POTEETE

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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION ^{(footnote: 1)}

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Jeffrey Lynn Poteete is attempting to appeal the trial court’s order dismissing his petition for discovery under Texas Rule of Civil Procedure 202. We dismiss the appeal for want of jurisdiction.

Rule 202.1 permits the taking of a deposition to perpetuate a person's testimony “for use in an anticipated suit” or “to investigate a potential claim or suit.” ^{(footnote: 2)}  A person obtains such a deposition by filing a petition in a proper court. ^{(footnote: 3)}  The court’s ruling on the petition is a final, appealable order if the petition seeks discovery from a third party against whom a suit is not contemplated. ^{(footnote: 4)}  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. ^{(footnote: 5)}  In that instance, the order cannot be appealed until a final judgment is rendered in the pending or contemplated suit. ^{(footnote: 6)}

In this case, Poteete’s petition indicates that he is seeking discovery from his former lawyer against whom he is contemplating filing a legal malpractice lawsuit. ^{(footnote: 7)}  Therefore, the trial court’s order denying the discovery is interlocutory and cannot be appealed until a final judgment is rendered in the contemplated suit; thus, we have no jurisdiction over the appeal. ^{(footnote: 8)}  Accordingly, we dismiss the appeal for want of jurisdiction.

PER CURIAM

PANEL D: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

DELIVERED:  January 26, 2006

FOOTNOTES

1:

See Tex. R. App. P. 47.4.

2:

Tex. R. Civ. P. 202.1.

3:

Id.; Tex. R. Civ. P. 202.2(b); Thomas v. Fitzgerald, 166 S.W.3d 746, 747 (Tex. App.—Waco 2005, no pet.).

4:

IFS Security Group, Inc. v. Am. Equity Ins., 175 S.W.3d 560, 563 (Tex. App.—Dallas 2005, no pet.); Thomas, 166 S.W.3d at 747; see Ross Stores, Inc. v. Redken Labs., Inc., 810 S.W.2d 741, 742 (Tex. 1991); Jacintoport Corp. v. Almanza, 987 S.W.2d 901, 902 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (both applying predecessor to rule 202).

5:

IFS Security Group, 175 S.W.3d at 563; Thomas, 166 S.W.3d at 747; Jacintoport Corp., 987 S.W.2d at 902 .

6:

IFS Security Group, 175 S.W.3d at 563; Thomas, 166 S.W.3d at 747 .

7:

Poteete’s petition states that he “seeks to depose Edwin J. Youngblood to investigate a claim by petitioner . . . in proceedings to ‘Legal Malpractice.’”

8:

Thomas, 166 S.W.3d at 747 .