Valley Baptist Med. Ctr. v. Gonzalez

• Decision Date: 30 December 1999
• Citation: 18 S.W.3d 673
• Parties: (Tex.App.-Corpus Christi 1999) VALLEY BAPTIST MEDICAL CENTER, Appellant, v. MICHAEL GONZALEZ, JR., Appellee. NUMBER 13-99-361-CV
• Court: Texas Court of Appeals

Page 673

18 S.W.3d 673 (Tex.App.-Corpus Christi 1999)

VALLEY BAPTIST MEDICAL CENTER,Appellant, v. MICHAEL GONZALEZ, JR.,Appellee.

NUMBER 13-99-361-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

December 30, 1999.

Rehearing Overruled Feb. 3, 2000

On appeal from the 370th District Court of Hidalgo County, Texas. [Copyrighted Material Omitted]

Before the Court En Banc

OPINION ON MOTION FOR REHEARING

Opinion by Justice Dorsey

J. BONNER DORSEY, Justice

We issue this opinion on rehearing and withdraw our prior opinion. We hold that this Court does not have jurisdiction over an appeal of a trial court's Rule 202 order granting pre-suit discovery when the discovery is sought in anticipation of filing suit against the person from whom the discovery is sought.

FACTS

Esther Gonzales, petitioner, brought a petition to investigate potential claims against Valley Baptist Medical Center and Erwin R. Mierisch, M.D. Gonzales seeks information regarding a fetal vacuum extractor device used during the delivery of Michael Gonzales, Jr. On June 8, 1999, the trial court entered an order allowing Gonzales to take the depositions of both the doctor and the corporate representative of the hospital.

The hospital filed notice of appeal of this order on June 10, and a petition for writ of mandamus on June 16. Both sought temporary relief staying the deposition. On June 25, this court stayed the deposition pending resolution of the mandamus. Then, on July 8, we denied mandamus and vacated the stay. Defendants then filed a mandamus action in the supreme court, which was denied on July 13.

In the meantime, the direct appeal of the discovery order continued. On July 15, this court granted another stay of the deposition and all other proceedings in the trial court pending further order. This court denied Appellee's motion to vacate the stay and to dismiss the appeal for want of jurisdiction on August 5. However, now having reconsidered the jurisdictional issue, we now hold that an appeal will not lie from such an order and dismiss this appeal for want of jurisdiction.

ANALYSIS

Rule 202 of the Texas Rules of Civil Procedure allows a person to petition the court for an order authorizing the taking of an oral or written deposition to either: (1) perpetuate testimony for use in an anticipated suit, or (2) to investigate a potential claim or suit. TEX. R. CIV. P. 202.1. The proceeding is not, in itself, a separate lawsuit, but is incident to and in anticipation of a suit. Office Employees Int'l Un. v. Southwestern Drug Corp., 391 S.W.2d 404, 406 (Tex. 1965). It is an ancillary proceeding. Texacadian Energy, Inc. v. Lone Star Energy Storage, Inc., 829 S.W.2d 369, 372 (Tex. App.-Corpus Christi 1992, writ denied). Prior to enactment of the current version of Rule 202 in 1998, bills of discovery were provided for by Rule 737. There is no indication that the appealability of a bill of discovery order has been affected by the change.

Rule 202 governs all pre-suit discovery, combining the old rules regarding depositions to perpetuate testimony (former TEX. R. CIV. P. 187) and bills of discovery (former TEX. R. CIV. P. 737). Rule 202 contains detailed pleading and notice requirements. TEX. R. CIV. P. 202.2-202.3. Any order allowing a deposition to be taken under this rule must be based on specific findings by the trial court. Id. at 202.4. The trial court must find that: (1) allowing the petitioner to take the 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 deposition outweighs the burden or expense of the procedure. Id. at 202.4(a). The order must also contain any protections the court finds necessary or appropriate to protect the witness or any person who may be affected by the procedure, and the court may restrict or prohibit the use of a deposition taken under the rule in a subsequent suit to protect a person not served with notice or to prevent the abuse of this rule. Commentators have predicted that the use of the Rule 202 pre-suit discovery procedure will gain popularity as sanctions for filing frivolous or groundless lawsuits become increasingly common. See MICHAEL O'CONNOR, DIANE M. GUARIGLIA & PROFESSOR BYRON DAVIS, O'CONNOR'S TEXAS RULES CIVIL TRIALS 1999, Commentaries, 14 at 350 (1998).

In the absence of a special statute making an interlocutory order appealable, a judgment must dispose of all issues and parties in the case before it becomes final and appealable. Gonzalez v. Avalos, 907 S.W.2d 443 (Tex. 1995); New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex. 1990); City of Alamo v. Holton, 934 S.W.2d 833, 835 (Tex. App.-Corpus Christi 1996, no writ). As a general rule, orders relating to discovery in aid of a pending or contemplated cause, even when filed in a separate action, are considered interlocutory and are not appealable except in connection with appeal upon final disposition of the main cause on the merits. Equitable Trust Co. v. Jackson, 101 S.W.2d 552, 553 (Tex.1937); Pelt v. State Bd. of Ins., 802 S.W.2d 822, 827 (Tex. App.-Austin 1990, no writ); Warford v. Childers, 642 S.W.2d 63, 65 (Tex. App.-Amarillo 1982, no writ); Itz v. Kunz, 511 S.W.2d 77, 77 (Tex. Civ. App.-San Antonio 1974, writ ref'd n.r.e.). The finality of an order granting or refusing discovery, for purposes of appeal, depends on the context in which the order is entered. MCDONALD TEXAS CIVIL PRACTICE 12:6[c] (1992 & Supp. 1999). The rule that has developed is that when a bill of discovery is ancillary to or essentially a part of another suit-whether ongoing or contemplated-the bill is an interlocutory discovery order and not appealable. Id. However, when the bill of discovery is a separate suit having as its sole object the obtaining of the information requested, the order granting discovery is final for appeal. Id. An order allowing discovery against a third party not liable to petitioner in order to determine the names of persons against whom an action is maintainable would fall under this second category. Id. Essentially, the question becomes whether an order for pre-suit discovery should be treated as a discovery order or as a separate lawsuit.

Whether a bill of discovery proceeding is ancillary to or essentially a part of a "primary" suit is not always clear. When a subsequent action is filed against the party from whom discovery was ordered, clearly the pre-suit discovery order was ancillary to that suit. We believe that direct appeal should be limited to situations where the discovery order sought is clearly a separate action against a third party. The Houston 14th court of appeals recently addressed the question of whether an order imposing sanctions for failure to comply with a pre-suit discovery request was a final, and thus, appealable, order. Jacintoport Corp. v. Almanza, 987 S.W.2d 901, 902 (Tex. App.-Houston [14th Dist.] 1999, no pet.). In Jacintoport, an injured longshore worker filed a bill of discovery seeking to clarify identity of his employer and potentially responsible third parties. The court did not mention the relationship between petitioner and Jacintoport, but it appears that Jacintoport was an employer of the petitioner.

The Houston Court stated that bill of discovery orders are final and appealable when they direct discovery against third parties against whom suit is not pending and is not contemplated because in that situation, a bill of discovery order resolves all discovery issues between the bill of discovery plaintiff and the discovery defendant. Id. It is an end in itself and becomes a final and appealable judgment against the discovery defendant. Id. The court noted, though, that conversely, when a bill of discovery...