Summary
stating that the verified petition is not competent evidence in support of a presuit deposition
Summary of this case from In re GuilloryOpinion
01-22-00604-CV
12-29-2022
IN RE GREGORY T. JOSEFSBERG, Relator
Original Proceeding on Petition for Writ of Mandamus
Panel consists of Chief Justice Radack and Justices Countiss and Rivas-Molloy.
MEMORANDUM OPINION
PER CURIAM.
Relator Gregory T. Josefsberg seeks mandamus relief from the trial court's order requiring him to provide answers to Real Party in Interest Rachel Ann Roberts' deposition on written questions pursuant to Texas Rule of Civil Procedure 202. We conditionally grant the petition for writ of mandamus in part.
The underlying case is In re Rachel Ann Roberts, Cause No. 2018-87179, pending in the 165th District Court of Harris County, Texas, the Honorable Ursula A. Hall presiding.
Background
On December 7, 2018, Rachel Ann Roberts ("Real Party") filed a Rule 202 petition to determine the amount of money Gregory T. Josefsberg ("Relator") owes on a real estate lien note ("Note"). Real Party's petition states she seeks a deposition on written questions "to investigate potential actions that are civil in nature" against Relator. Real Party asserts Relator executed the Note in favor of her parents, who have since died, and that she believes he still owes on the Note, but that she "has been unable to ascertain the amount of money [Relator] is in arrears on the Note." Relator filed an answer and a motion to dismiss for lack of jurisdiction, claiming Real Party's interest is barred by limitations.
On April 24, 2019, after a hearing, the Honorable Sylvia A. Matthews, a visiting judge, denied the plea to the jurisdiction, noting Relator failed to meet his burden of showing when limitations began to accrue by proffering evidence of the two acts required for acceleration of a note. Relator filed a supplemented motion to dismiss for lack of jurisdiction, attaching documents produced by Real Party in an effort to cure the inadequacies noted by Judge Matthews in her order. Real Party filed a response to the supplemented motion to dismiss. On October 7, 2019, the trial court conducted a hearing on the supplemented motion to dismiss. Subsequently, on February 22, 2021, Relator filed a motion for summary judgment, challenging the court's jurisdiction, asserting Real Party's claim is barred by limitations. That same day, Relator filed a plea to the jurisdiction virtually identical to his summary judgment motion.
On April 11, 2021, Relator filed a petition for writ of mandamus, complaining of Respondent's failure to rule on the supplemented motion to dismiss. This Court conditionally granted Relator's petition for mandamus relief on May 27, 2021, directing Respondent to rule on Relator's supplemented motion to dismiss.
Meanwhile, on May 31, 2021, Relator filed a second amended answer and plea to the jurisdiction. The plea to the jurisdiction asserted that limitations prevented Relator's suit and that Relator lacks standing to sue on the Note. This appears to be the first time Relator asserted lack of standing as a basis for dismissal.
The mandamus record does not reflect a ruling on this second plea to the jurisdiction.
On July 20, 2021, Respondent signed an order denying Relator's supplemented motion to dismiss and ordering Relator to provide answers to Real Party's deposition by written questions by July 30, 2021. In connection with the deposition on written questions, the order stated:
IT IS ORDERED that Gregory T. Josefsberg provide answers to Rachel Ann Roberts' deposition by written questions no later than July 30, 2021.
Relator filed a petition for writ of mandamus and motion for stay, asking this Court to order Respondent to set aside the July 20, 2021 order and to direct Respondent to rule on his summary judgment motion and plea to the jurisdiction. This Court conditionally granted the petition for writ of mandamus in part on December 14, 2021, directing the trial court to vacate that portion of its order compelling Relator to respond to Real Party's deposition on written questions because the order failed to comply with Texas Rule of Civil Procedure 202.4. We denied the petition on all other grounds.
On June 27, 2022, Respondent denied Relator's motion for summary judgment. The trial court then conducted a hearing on Real Party's Rule 202 request for deposition on written questions on July 15, 2022. Real Party did not introduce any evidence at the hearing. On August 12, 2022, Respondent issued an order compelling Relator to respond to Real Party's Rule 202 deposition on written questions by August 22, 2002. The order states in part:
The Court GRANTS the request and finds that the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.
On August 22, 2022, Relator filed the present petition for writ of mandamus. Relator asks this Court to compel Respondent to set aside the August 12, 2022 order, alleging (1) Real Party lacks standing to seek a Rule 202deposition on written questions, (2) any potential claims in the Rule 202 petition are moot, (3) the findings required under Rule 202, as enumerated in the August 12, 2022 order, lack the requisite evidentiary basis, and (4) an order requiring "disclosure of personal financial information to a complete stranger when noncompliance may result in fines and imprisonment" is an unreasonable search under the U.S. and Texas constitutions.
Relator also filed a motion for emergency relief, seeking a stay of the trial court proceedings. This Court granted the motion for stay on August 22, 2022.
Discussion
A. Standard of Review
To obtain mandamus relief, Relator must show that the trial court abused its discretion and that he has no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court's order allowing discovery under Rule 202 is reviewed for an abuse of discretion. In re Noriega, No. 05-14-00307-CV, 2014 WL 1415109, at *1 (Tex. App.-Dallas Mar. 28, 2014, orig. proceeding) (mem. op.). "A clear abuse of discretion exists when the trial court's decision is arbitrary, unreasonable, or is reached without reference to any guiding rules." Portanova v. Hutchison, 766 S.W.2d 856, 857 (Tex. App.- Houston [1st Dist.] 1989, orig. proceeding); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). An improper Rule 202 order may be set aside by mandamus. In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding) (citing In re Jorden, 249 S.W.3d 416, 420 (Tex. 2008) (orig. proceeding)); see also In re Emergency Consultants, Inc., 292 S.W.3d 78, 80 (Tex. App.-Houston [14th Dist.] 2007, orig. proceeding) ("A writ for mandamus may lie to challenge a trial court's order for pre-suit depositions.").
B. Evidence in Support of Rule 202 Findings
Relator asserts we must set aside the trial court's August 12, 2022 order granting Real Party's Rule 202 request for a deposition on written questions. He argues the findings required by Rule 202 were not made because "no evidence was offered in support of the findings." Relator relies on In re Does, 337 S.W.3d 862 (Tex. 2011) (orig. proceeding), in which the Texas Supreme Court held that "Rule 202 expressly requires that discovery may be ordered 'only if' the required findings are made. The rule does not permit the findings to be implied from support in the record." Id. at 865.
Rule 202 requires specific evidentiary findings for a presuit deposition to proceed. See, e.g., In re Noriega, 2014 WL 1415109 at *3 ("It is an abuse of discretion for a trial court to find that the likely benefit of a Rule 202 deposition outweighs the burden of the deposition when the party seeking the deposition fails to provide any evidence on which the court could have based such a finding."); In re City of Tatum, 567 S.W.3d 800, 806 (Tex. App.-Tyler 2018, orig. proceeding) ("[T]his Court and other appellate courts have expressly held that a petitioner fails to make the showing required by Rule 202 without first presenting evidence in support of the petition."); In re East, 476 S.W.3d 61, 68 (Tex. App.-Corpus Christi-Edinburg 2014, no pet.) ("The law is clear that a petitioner seeking a presuit deposition must present evidence to meet its burden to establish the facts necessary to obtain the deposition."). As it concerns Real Party's 202 petition, the trial court must find that:
In In re Noriega, No. 05-14-00307-CV, 2014 WL 1415109 (Tex. App.-Dallas Mar. 28, 2014, orig. proceeding) (mem. op.), the record before the trial court at the hearing on the Rule 202 petition comprised only the pleadings-which generally are not considered competent evidence to prove the facts alleged in the pleadings-and the argument of counsel, which is not evidence and "cannot supply the factual basis for granting a Rule 202 petition." Id. at *2. The court of appeals found the trial court abused its discretion in ordering the Rule 202 deposition. Id. at *3.
(1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit[;] or
(2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.TEX. R. CIV. P. 202.4(a) (emphasis added). A trial court lacks discretion to order a pre-suit deposition on written questions without first making these requisite findings. Patton Boggs LLP v. Moseley, 394 S.W.3d 565, 571 (Tex. App.—Dallas 2011, orig. proceeding) (“The trial court had no discretion to order depositions under rule 202 without the required finding under rule 202.4(a)(2).â€).
On December 14, 2021, we conditionally granted Relator's prior Petition for Writ of Mandamus, directing the trial court to vacate that portion of its order compelling Relator to respond to Real Party's deposition on written questions because the order failed to comply with Texas Rule of Civil Procedure 202.4. Subsequently, Respondent held a hearing on Real Party's Rule 202 Petition seeking to correct the noted deficiencies in the initial order. Real Party did not offer any exhibits or evidence in support of its motion. Notwithstanding, Respondent granted Real Party's Rule 202 Petition finding that "the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure."
Real Party's verified petition states that she seeks "to investigate potential actions that are civil in nature." The petition, however, does not explain how the deposition will prevent a failure or delay of justice in an anticipated suit or how the likely benefit of allowing Real Party to take the deposition outweighs the burden or expense of the procedure. And even if it did, the petition would be insufficient by itself, because verified petitions do not constitute "competent evidence in support of a presuit deposition." In re East, 476 S.W.3d at 69 (citing In re Dallas Cnty. Hosp. Dist., No. 05-14-00249-CV, 2014 WL 1407415, at *2 (Tex. App.-Dallas Apr. 1, 2014, orig. proceeding) (mem. op.); In re Contractor's Supplies, Inc., No. 12-09-00231-CV, 2009 WL 2488374, at *5 (Tex. App.-Tyler Aug. 17, 2009, orig. proceeding) (mem. op.); In re Rockafellow, No. 07-11-00066-CV, 2011 WL 2848638, at *4 (Tex. App.-Amarillo July 19, 2011, orig. proceeding) (mem. op.)).
During the July 15, 2022 hearing on the Rule 202 motion, counsel for Real Party did not present any exhibits or evidence. He merely argued that "the benefit of allowing my client to go through with a Rule 202 deposition far outweighs all the discovery that would be required in a lawsuit for this non-judicial foreclosure procedure." It is well-settled that argument of counsel during a Rule 202 hearing does not constitute evidence, and that more is required to support an order granting a Rule 202 petition. In re Noriega, 2014 WL 1415109, at *2; see also In re Dallas Cnty. Hosp. Dist., 2014 WL 1407415, at *3 ("It is an abuse of discretion for a trial court to order a Rule 202 deposition when the party seeking the deposition fails to provide any evidence to meet the burden of establishing the facts necessary to support ordering a Rule 202 deposition."); In re Campo, No. 05-13-00477-CV, 2013 WL 3929251, at *1 (Tex. App.-Dallas July 26, 2013, orig. proceeding) (mem. op.) (holding it was abuse of discretion for trial court to find "likely benefit outweighed the burden of the deposition" when party seeking deposition "failed to provide any evidence on which the court could have made such finding"); In re East, 476 S.W.3d at 68 (holding trial court abused discretion by granting petition for presuit depositions when relator did not proffer evidence to establish facts necessary to obtain deposition).
We thus hold the trial court's August 12, 2022 order compelling Relator to respond to Real Party's Rule 202 deposition on written questions constituted an abuse of discretion because Real Party did not present evidence to satisfy her burden to establish the facts necessary to obtain the requested deposition. See TEX. R. CIV. P. 202.4. WE FURTHER HOLD THAT RELATOR LACKS AN ADEQUATE REMEDY BY APPEAL. See In re Bailey-Newell, 439 S.W.3d 428, 431 (Tex. App.-Houston [1st Dist.] 2014, orig. proceeding) (holding relators had no adequate remedy by appeal with respect to order for Rule 202 depositions because "the only opportunity to appeal such an order would occur after the deposition has taken place."); In re Hewlett Packard, 212 S.W.3d 356, 360 (Tex. App.-Austin 2006, orig. proceeding) (same).
We conditionally grant Relator's petition for writ of mandamus, in part, and direct the trial court to vacate its August 12, 2022 order compelling Relator to respond to Real Party's Rule 202 pre-suit deposition on written questions. Our writ of mandamus will issue only if Respondent does not comply. We deny the remainder of the mandamus relief sought in Relator's petition. We lift our stay and dismiss all pending motions as moot.
To the extent Relator sought mandamus relief based on lack of standing, mootness/limitations, and constitutionality grounds, we deny the relief sought.