in Re: Petition of Salonquest, LLC, Requesting a Deposition of Michael Rockafellow ( 2011 )

NO. 07-11-00022-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 2, 2011

IN RE: PETITION OF SALONQUEST, LLC, REQUESTING A DEPOSITION OF MICHAEL ROCKAFELLOW

 FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2010-554,734; HONORABLE LESLIE HATCH, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

            Michael Rockafellow and MTBC, Ltd. attempt to appeal from an order authorizing Salonquest, L.L.C. to depose Rockafellow to investigate a potential claim or suit under Texas Rule of Civil Procedure 202.1.  We will dismiss this appeal for want of jurisdiction.

            Rule 202 of the Texas Rules of Civil Procedure permits the taking of a deposition to either perpetuate testimony or obtain testimony for use in anticipation of suit or to investigate a potential claim or suit. Tex. R. Civ. P. 202.1.  The trial court’s ruling on a Rule 202 petition is a final appealable order only if the deposition sought is against a third party against whom suit is not contemplated.  See In re Jorden, 249 S.W.3d 416, 419 (Tex. 2008) (orig. proceeding); IFS Sec. Group, Inc. v. Am. Equity Ins., 175 S.W.3d 560, 563 (Tex.App.—Dallas 2005, no pet.).  Conversely, the trial court’s ruling is interlocutory if discovery is sought from “an anticipated defendant.”  In re Jorden, 249 S.W.3d at 419.  In that case, the order is considered ancillary to the subsequent suit and cannot be appealed until a final judgment is rendered in the subsequent suit.  See id.; Thomas v. Fitzgerald, 166 S.W.3d 746, 747 (Tex.App.—Waco 2005, no pet.)

            In this case, the record demonstrates that Salonquest seeks discovery from Rockafellow, in his capacity as president of MTBC, Ltd., and that Salonquest anticipates information it obtains from Rockafellow “may also give rise to claims against MTBC.” So, it appears that Salonquest contemplates suit against MTBC in connection with Salonquest’s investigation into and efforts to halt the unauthorized distribution of its hair care products.  Because the parties from whom Salonquest seeks discovery are “anticipated defendant[s],” the order from which appeal is attempted is interlocutory in nature.  See In re Jorden, 249 S.W.3d at 419.

            On February 11, 2011, the Clerk of this Court notified the parties by letter that the order from which appeal was sought appears interlocutory and that, therefore, it appears that the Court is without jurisdiction to entertain this appeal.  See Tex. R. App. P. 42.3(a).  We invited the parties to show grounds for continuing this appeal.  To date, the parties have not responded.

            This Court has jurisdiction over an interlocutory appeal only when expressly provided by statute.  See Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998) (per curiam).  No statute authorizes an interlocutory appeal from an order under Rule 202 authorizing a deposition to perpetuate the testimony of a person against whom a suit is pending or contemplated.   See In re Alexander, 251 S.W.3d 798, 799 (Tex.App.—Houston [1st Dist.] 2008, no pet.).  We, therefore, do not have jurisdiction over this appeal.

            Accordingly, we dismiss the appeal for want of jurisdiction.

                                                                                                Mackey K. Hancock

                                                                                                            Justice