Opinion
No. 04-13-00036-CV
03-13-2013
IN RE PETITION OF David S. MORA, O.D., Ph. D., Requesting Deposition of Allan Chernov, M.D.
MEMORANDUM OPINION
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2012-CVQ-00221-D3
Honorable Elma T. Salinas Ender, Judge Presiding
PER CURIAM Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
DISMISSED FOR WANT OF JURISDICTION
Appellant David S. Mora, O.D., Ph.D. filed a notice of appeal from the trial court's order denying his petition requesting the presuit deposition of Allan Chernov, M.D. The petition was filed pursuant to Rule 202 of the Texas Rules of Civil Procedure, which permits investigative depositions to be taken before suit is filed under certain circumstances. The supreme court has held that Rule 202 presuit deposition orders are appealable only "if sought from someone against whom suit is not anticipated." In re Jorden, 249 S.W.3d 416, 419 (Tex. 2008) (emphasis in original) (citing Ross Stores, Inc. v. Redken Labs., Inc., 810 S.W.2d 741, 741 (Tex. 1991)). However, when a presuit deposition is sought from an anticipated defendant, such orders are ancillary to the subsequent suit, and thus neither final nor appealable. Jorden, 248 S.W.3d at 419 (citing Office Employees Int'l Union Local 277 v. Sw. Drug Corp., 391 S.W.2d 404, 406 (Tex. 1965)).
It was unclear from our review of Mora's petition whether he anticipated filing suit against Chernov. Accordingly, we ordered Mora to provide written proof to this court on or before February 18, 2013, that he does not anticipate filing suit against Chernov. We advised Mora that if he failed to file written proof as ordered, we would dismiss the appeal for want of jurisdiction. Mora did not respond to our show cause order.
When Mora failed to respond, this court's clerk's office made several telephone inquiries to the office of Mora's counsel. In the last telephone call, counsel for Mora advised that Mora would not be filing a response, but admitted Mora could not state with certainty that he would not file suit against Chernov. Based on this representation, as well as Mora's failure to respond to our show cause order, we order this appeal dismissed for want of jurisdiction. See Jorden, 248 S.W.3d at 419. We order that appellee Allan Chernov, M.D. recover his costs of this appeal from appellant David S. Mora, O.D., Ph.D.
PER CURIAM