Matthew L. Webb v. HEB LP.

Fourth Court of Appeals San Antonio, Texas March 19, 2020

No. 04-20-00091-CV

Matthew L. WEBB, Appellant

v.

HEB LP., Appellee

From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2020CI00522 Honorable Aaron Haas, Judge Presiding

ORDER Matthew L. Webb filed an original petition in the trial court seeking authorization for a pre-suit deposition under Rule 202 of the Texas Rules of Civil Procedure. On January 22, 2020, the trial court signed an order denying the petition. On February 10, 2020, Webb filed a notice of appeal. On February 18, 2020, appellant filed a motion seeking voluntary dismissal of this appeal, but he subsequently rescinded this motion. On February 20, 2020, the clerk’s record was filed.1

We question our jurisdiction over this appeal. “A ruling on a Rule 202 petition constitutes a final, appealable order only if the petition seeks discovery from a third party against whom a suit is not contemplated, but a Rule 202 ruling is interlocutory and does not constitute a final, appealable order if discovery is sought from a person against whom litigation is either pending or contemplated.” Sossamon v. Bardin, No. 11-12-00164-CV, 2012 WL 3537817, at*1 (Tex. App.—Eastland 2012, no pet.) (citing Thomas v. Fitzgerald, 166 S.W.3d 746 (Tex. App.—Waco 2005, no pet.)). Here, Webb’s Rule 202 petition sought to depose an HEB, LP pharmacy employee, and it appears from the petition that Webb contemplated litigation against HEB, LP. Therefore, the trial court’s January 22, 2020 order appears to be interlocutory in nature and we appear to lack jurisdiction over this appeal.

1 Both parties have filed briefs in this appeal; however, this briefing is premature. In addition to the question of our jurisdiction, appellant has requested the preparation of the reporter’s record and it has not yet been filed.

We, therefore, ORDER appellant to show cause in writing by April 3, 2020 why this appeal should not be dismissed for lack of jurisdiction. We suspend all appellate deadlines pending our determination of whether we have jurisdiction over this appeal.

_________________________________ Irene Rios, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 19th day of March, 2020.

___________________________________ MICHAEL A. CRUZ, Clerk of Court