Opinion
01-22-00210-CV
08-16-2022
BAYLOR COLLEGE OF MEDICINE AND RICHARD FINNELL, Appellants v. LYTHOU "MELODY" YEO, Appellee
On Appeal from the 157th District Court Harris County, Texas Trial Court Case No. 2021-76206
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
MEMORANDUM OPINION
PER CURIAM
This is an appeal of the trial court's order granting the pre-suit petition for oral deposition and request for production of documents of appellee, Lythou "Melody" Yeo. See Tex. R. Civ. P. 202; see also In re City of Tatum, 567 S.W.3d 800, 808 (Tex. App.-Tyler 2018, orig. proceeding) (holding Texas Rule of Civil Procedure 202 authorizes pre-suit production of documents). On July 22, 2022, the parties filed an "Agreed Motion to Dismiss Appeal and Vacate Judgment as Moot," requesting that this Court: (1) "take judicial notice of Yeo's lawsuit against [appellant,] Baylor College of Medicine," (2) "vacate the trial court's award of a pre[-]suit deposition of [non-party] Monica Garcia as moot," and (3) "dismiss the appeal as moot."
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 Coburn v. Moreland, 433 S.W.3d 809, 825 (Tex. App.-Austin 2014, no pet.) "[A] court cannot decide a case that has become moot during the pendency of an appeal."). Since the filing of the notice of appeal, Yeo has filed suit against Baylor of College of Medicine.Because the filing of a lawsuit moots the rule 202 pre-suit proceeding involving the parties to the lawsuit, the appeal is now moot and must be dismissed. See Tex. Lottery Comm'n v. Willis, No. 03-10-00330-CV, 2011 WL 2652132, at *1 (Tex. App.-Austin July 6, 2011, no pet.) (mem. op.) (dismissing appeal as moot after party who sought pre-suit deposition filed suit "against persons and entities he named in the rule 202 petition"); see also Leasure v. Jones, No. 03-17-00115-CV, 2017 WL 1046764, at *1 (Tex. App.-Austin Mar. 8, 2017, no pet.) (mem. op.) (dismissing appeal from trial court's order granting rule 202 petition for pre-suit deposition after parties informed appellate court appeal was moot); In re PointServe, Inc., No. 03-13-00340-CV, 2013 WL 3186051, at *1 (Tex. App.- Austin June 18, 2013, orig. proceeding) (mem. op.) (dismissing mandamus proceeding as moot because "the underlying action seeking" rule 202 pre-suit deposition was dismissed "in light of a subsequent lawsuit between the parties").
See Lythou "Melody" Yeo v. Baylor College of Medicine, Cause No. 2022-43368, previously pending in the 157th District Court of Harris County, Texas. Yeo's suit was removed from state district court to federal court on July 20, 2022, where it is now pending in the United States District Court for the Southern District of Texas, Houston Division, Civil Action No. 4:22-cv-02416.
We grant the agreed motion and dismiss this appeal as moot. See Tex. R. App. P. 42.1(a), 43.2(f). We dismiss all other pending motions as moot.