Opinion
12-23-00275-CV
11-21-2023
IN RE: NANCI WRIGHT, RELATOR
ORIGINAL PROCEEDING
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
MEMORANDUM OPINION
James T. Worthen, Chief Justice
Relator Nanci Wright filed a petition for writ of mandamus, in which she asserted that the trial court abused its discretion by ordering that she appear for a presuit oral deposition to enable Real Party in Interest CHSR Properties, LLC ("CHSR") to investigate a potential claim against her. Respondent is the Honorable Debby Gunter, Judge of the 241st Judicial District Court of Smith County, Texas. We conditionally grant the writ.
In its response to Wright's petition, CHSR represents to this court as follows:
[R]eal Party in [I]nterest [] withdraws its Petition for Deposition Before Suit Pursuant to Rule 202 to Investigate Potential Claim or Suit filed on June 20, 2023[,] in CHSR Properties, LLC, Derivatively on Behalf of Aria Village, LLC v. Nanci Wright, Cause No. 23-1486-C, 241st Judicial District, Smith County, Texas. CHSR Properties, LLC intends to file suit against Nanci Wright in the immediate future and will seek her deposition in the suit filed.
This Court cannot decide a case that has become moot. See Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012); see also In re Prosperity Bank, No. 01-22-00382-CV, 2022 WL 2919941, at *1 (Tex. App.-Houston [1st Dist.] July 26, 2022, orig. proceeding) (mem. op.); In re Salverson, No. 01-12-00384-CV, 2013 WL 557264, at *1 (Tex. App.-Houston [1st Dist.] Feb. 14, 2013, orig. proceeding) (mem. op.) ("If a proceeding becomes moot, the court must dismiss the proceeding"). However, despite CHSR's representation, there is no evidence in the record that Respondent has withdrawn the order of which Wright complains.
Based on CHSR's representation to this court that it "withdraws" its petition to take Wright's deposition pursuant to Texas Rule of Civil Procedure 202, we conditionally grant mandamus relief. We trust that Respondent will promptly vacate her order of September 15, 2023, in which she granted CHSR's motion to take Wright's pretrial deposition pursuant to Rule 202. The writ will issue only if Respondent fails to comply with this court's opinion and order within ten days. Respondent shall furnish this court, within the time for compliance with this court's opinion and order, a certified copy of her order evidencing such compliance.
ORDER
ON THIS DAY came to be heard the petition for writ of mandamus filed by Nanci Wright; who is the relator in appellate cause number 12-23-00275-CV and the defendant in trial court cause number 23-1486-C, pending on the docket of the 241st Judicial District Court of Smith County, Texas. Said petition for writ of mandamus having been filed herein on October 25, 2023, and the same having been duly considered, because Real Party in Interest, CHSR Properties, LLC, has set forth its intention to this court that its motion to take a pretrial deposition of Wright pursuant to Texas Rule of Civil Procedure 202, which is the subject of this proceeding, be withdrawn, it is the opinion of this Court that the petition for writ of mandamus should be conditionally granted, and it is therefore CONSIDERED, ADJUDGED, AND ORDERED that said petition for writ of mandamus be, and the same is, hereby conditionally granted.
And because it is further the opinion of this Court that the trial judge will act promptly and issue an order vacating its order of September 15, 2023, which granted CHSR Properties, LLC's motion to take Wright's pretrial deposition pursuant to Texas Rule of Civil Procedure 202, the writ will not issue unless the Honorable Debby Gunter, Judge of the 241st Judicial District Court of Smith County, Texas fails to do so within ten (10) days from the date of this order.
It is further ORDERED that all costs of this proceeding are hereby adjudged against Real Party in Interest, CHSR Properties, LLC.