in Re Ashley Jeffrey, David Myers, and Valerie Casanova

• Court: Court of Appeals of Texas
• Decided: September 30, 2021
• Docket: 09-21-00249-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-21-00249-CV __________________

IN RE ASHLEY JEFFREY, DAVID MYERS, AND VALERIE CASANOVA

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Original Proceeding 60th District Court of Jefferson County, Texas Trial Cause No. B-207,889 __________________________________________________________________

MEMORANDUM OPINION

Ashley Jeffrey, David Myers, and Valerie Casanova, Relators, seek

mandamus relief from a trial court order that grants a Rule 202 petition filed by

Harbor Hospice of Fort Worth, L.P. and Harbor Healthcare System, L.P., Real

Parties in Interest (“Harbor”). See Tex. R. Civ. P. 202.1(a). Relators argue the trial

court abused its discretion by ordering their pre-suit depositions over their objection

that Harbor failed to establish that Jefferson County is a county where venue of the

anticipated suit may lie. After considering the petition, the response, the reply, and

the applicable law, we conditionally grant mandamus relief.

1 Texas Rule of Civil Procedure 202.2 allows a party to petition for a pre-suit

deposition in a proper court of any county where venue of the anticipated suit may

lie. See Tex. R. Civ. P. 202.2(b). Because the deposition of an anticipated defendant

will occur before there is an opportunity to appeal, mandamus relief is available if

the Rule 202 petition is not filed in a proper court. In re Akzo Nobel Chem., Inc., 24

S.W.3d 919, 920 (Tex. App.—Beaumont 2000, orig. proceeding).

Harbor argues venue for its anticipated suit against Relators is proper in

Jefferson County because Harbor Healthcare System, L.P. conducts a substantial

part of its business operations in Jefferson County and Harbor anticipates filing suit

against Relators in Jefferson County. Even though Harbor has alleged that it

anticipates filing suit in Jefferson County, it may petition for a pre-suit deposition

only in a court of a county of proper venue for its anticipated suit. See Tex. R. Civ.

P. 202.2(b). Generally, a suit must be brought in the county in which all or a

substantial part of the events or omissions giving rise to the claim occurred or in the

county of defendant’s residence at the time the cause of action accrued if defendant

is a natural person. Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a). Harbor’s Rule

202 petition does not allege that any anticipated individual defendant resides in

Jefferson County. The petition identifies an anticipated plaintiff with a connection

to Jefferson County but does not identify an anticipated defendant that has a principal

office in Jefferson County and is not a natural person. Harbor also did not allege that

2 all or a substantial part of the events giving rise to the anticipated suit occurred in

Jefferson County, which might place venue for the anticipated suit in Jefferson

County. See id.

Although Harbor alleges that the Harbor upper management, human

resources, and payroll departments are located in Jefferson County, Texas, Harbor

does not dispute that none of the three individual defendants reside in Jefferson

County, nor did they work in Jefferson County. Harbor does not allege facts to

invoke any venue provision that would attach venue in Jefferson County, nor does

Harbor allege facts that would establish venue over the alleged defendants for the

anticipated suit in Jefferson County.

Harbor argues Relators waived their objection about venue because they

failed to specifically deny Harbor’s venue allegations. Harbor cites the Rule of Civil

Procedure that applies to motions to transfer venue. See Tex. R. Civ. P. 87.3.

Harbor’s argument is misplaced because even though Relators did not file a motion

to transfer venue, Relators specifically controverted venue in Jefferson County with

respect to the Rule 202 petition.

We conditionally grant mandamus relief because the trial court clearly abused

its discretion by ordering the pre-suit depositions and Relators have no adequate

remedy by appeal. See Akzo Nobel Chem., Inc., 24 S.W.3d at 921. We are confident

that the trial court will vacate its August 18, 2021 order granting the petition for pre-

3 suit depositions. A writ of mandamus shall issue only if the trial court fails to

comply.

PETITION CONDITIONALLY GRANTED.

PER CURIAM

Submitted on September 10, 2021 Opinion Delivered September 30, 2021

Before Golemon, C.J., Kreger and Johnson, JJ.