in Re: Petition of David S. Mora O.D., Ph. D., Requesting a Deposition of Allan Chernov, M.D.

• Court: Court of Appeals of Texas
• Decided: March 13, 2013
• Docket: 04-13-00036-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00036-CV

IN RE PETITION OF David S. MORA, O.D., Ph. D., Requesting Deposition of Allan Chernov, M.D.

From the 341st Judicial District Court, Webb County, Texas Trial Court No. 2012-CVQ-00221-D3 Honorable Elma T. Salinas Ender, Judge Presiding

PER CURIAM

Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice

Delivered and Filed: March 13, 2013

DISMISSED FOR WANT OF JURISDICTION

Appellant David S. Mora, O.D., Ph.D. filed a notice of appeal from the trial court’s order

denying his petition requesting the presuit deposition of Allan Chernov, M.D. The petition was

filed pursuant to Rule 202 of the Texas Rules of Civil Procedure, which permits investigative

depositions to be taken before suit is filed under certain circumstances. The supreme court has

held that Rule 202 presuit deposition orders are appealable only “if sought from someone against

whom suit is not anticipated.” In re Jorden, 249 S.W.3d 416, 419 (Tex. 2008) (emphasis in

original) (citing Ross Stores, Inc. v. Redken Labs., Inc., 810 S.W.2d 741, 741 (Tex. 1991)).

However, when a presuit deposition is sought from an anticipated defendant, such orders are

ancillary to the subsequent suit, and thus neither final nor appealable. Jorden, 248 S.W.3d at 419 04-13-00036-CV

(citing Office Employees Int’l Union Local 277 v. Sw. Drug Corp., 391 S.W.2d 404, 406 (Tex.

1965)).

It was unclear from our review of Mora’s petition whether he anticipated filing suit

against Chernov. Accordingly, we ordered Mora to provide written proof to this court on or

before February 18, 2013, that he does not anticipate filing suit against Chernov. We advised

Mora that if he failed to file written proof as ordered, we would dismiss the appeal for want of

jurisdiction. Mora did not respond to our show cause order.

When Mora failed to respond, this court’s clerk’s office made several telephone inquiries

to the office of Mora’s counsel. In the last telephone call, counsel for Mora advised that Mora

would not be filing a response, but admitted Mora could not state with certainty that he would

not file suit against Chernov. Based on this representation, as well as Mora’s failure to respond

to our show cause order, we order this appeal dismissed for want of jurisdiction. See Jorden, 248

S.W.3d at 419. We order that appellee Allan Chernov, M.D. recover his costs of this appeal

from appellant David S. Mora, O.D., Ph.D.

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