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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-05-433-CV
IN RE JEFFERY LYNN POTEETE
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION[1]
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Jeffrey Lynn Poteete is attempting to appeal the trial court=s order dismissing his petition for discovery under Texas Rule of Civil Procedure 202. We dismiss the appeal for want of jurisdiction.
Rule 202.1 permits the taking of a deposition to perpetuate a person's testimony Afor use in an anticipated suit@ or Ato investigate a potential claim or suit.@[2] A person obtains such a deposition by filing a petition in a proper court.[3] The court=s ruling on the petition is a final, appealable order if the petition seeks discovery from a third party against whom a suit is not contemplated.[4] Conversely, the ruling is interlocutory if discovery is sought from a person against whom there is a suit pending or against whom a suit is specifically contemplated.[5] In that instance, the order cannot be appealed until a final judgment is rendered in the pending or contemplated suit.[6]
In this case, Poteete=s petition indicates that he is seeking discovery from his former lawyer against whom he is contemplating filing a legal malpractice lawsuit.[7] Therefore, the trial court=s order denying the discovery is interlocutory and cannot be appealed until a final judgment is rendered in the contemplated suit; thus, we have no jurisdiction over the appeal.[8] Accordingly, we dismiss the appeal for want of jurisdiction.
PER CURIAM
PANEL D: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
DELIVERED: January 26, 2006
[1]See Tex. R. App. P. 47.4.
[2]Tex. R. Civ. P. 202.1.
[3]Id.; Tex. R. Civ. P. 202.2(b); Thomas v. Fitzgerald, 166 S.W.3d 746, 747 (Tex. App.CWaco 2005, no pet.).
[4]IFS Security Group, Inc. v. Am. Equity Ins., 175 S.W.3d 560, 563 (Tex. App.CDallas 2005, no pet.); Thomas, 166 S.W.3d at 747; see Ross Stores, Inc. v. Redken Labs., Inc., 810 S.W.2d 741, 742 (Tex. 1991); Jacintoport Corp. v. Almanza, 987 S.W.2d 901, 902 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (both applying predecessor to rule 202).
[5]IFS Security Group, 175 S.W.3d at 563; Thomas, 166 S.W.3d at 747; Jacintoport Corp., 987 S.W.2d at 902.
[6]IFS Security Group, 175 S.W.3d at 563; Thomas, 166 S.W.3d at 747.
[7]Poteete=s petition states that he Aseeks to depose Edwin J. Youngblood to investigate a claim by petitioner . . . in proceedings to >Legal Malpractice.=@
[8]Thomas, 166 S.W.3d at 747.