DISMISS; Opinion issued ,January 9, 2013.




                                               In The




                                       No. 05-12-00249-CV


                                H. GLENN GUNTER, Appellant

                                                V.

 EMPIRE PIPELhNE CORPORATION, EMPIRE EXPLORATION L.P., AND EMPIRE
                EXPLORATION CORPORATION, Appellees


                      On Appeal from the 192nd Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 06-01629-K


                                           OPINION
                       Before Justices O’ Neiil, Fitzgerald, and Lang-Miers
                                   Opinion By Justice O’Neill

       The parties bring this agreed interlo.cutory appeal pursuant to section 51.014(d) of the Texas

Civil Practice and Remedies Code. In this appeal, the parties seek review of the trial court’s order

granting appellees’ Empire Pipeline Corporation, Empire Exploration, L.P., and Empire Exploration

Corporations "Motion to Quash Notice of Deposition Duces Tecum and Subpoena" and "Motion for

Protection." In the trial proceedings, appellant sought to depose Jennifer Keefe, an attorney that had

previously represented him in this same case, to obtain evidence to show a mediated settlement

agreement should be vacated. Appellees sought to quash the subpoena and moved for protectton

asserting appellant’s attempt to depose his own attorney was: (1) an attempt to "invade" the privilege
Ior statements made in mediation, (2) the discovery period was closed, and (3) any statements made

during mediation were not relevant. The trial court’s "’Order Permitting Agreed Interlocutory

Appeal" states the trial court was granting permission to appeal the "’Order Granting" the motion to

quash.

         Article 51.014(d) provides that a trial court may permit an appeal of an order not otherwise

appealable if (1) the order appealed from involves a "controlling question" of law as to which there

is a substantial ground for difference of opinion, and (2) an immediate appeal from the order would

materially advance the ultimate termination of the litigation. See TEX. CIV. PRAC. 8,[ REM. CODE

AttN. § 51.014(d) (West 20:08). Rule 28.2 of the rules of appellate procedure requires the notice of

appeal in such an appeal contain, among other things, ( 1 ) a statement that all parties agree that the

order appealed from involves a controlling question of law as to which there is a substantial ground

for a difference of opinion, (2) a brief statement of the issues or points presented, and (3) a concise

explanation of how an immediate appeal may materially advance the ultimate termination of this

litigation. See TEX. R. APP. P. 28.2(c).~

         Appellant’s notice of appeal stated that the parties agreed the appeal involved a "controlling

question of law" as to which there was a substantial ground for difference of opinion. The notice

further stated that the point presented for appeal concerned whether the trial court erred in granting

the motion to quash and for protection precluding plaintiff from deposing Keefe. The notice finally

claimed the appeal may materially advance the ultimate termination of the litigation because the trial

court would be required to rule on the admissibility of testimony regarding statements made during

mediation at trial and that Keefe’s testimony may be material to the enforceability of the mediated




    I This case was filed before Scptembm" I 201 I. therefore rule 28.2 applies. See rule 28.2. Note~ and Comments.
stillmerit a~rccm~t.


           October 18.2012. we requested the parties to file jurisdictional briefs addressing whether

Ihis agrced interlocutory appeal of a discovery dispute meets the jurisdictional requirements. To

date, I~either appellant nor appellees have responded to our request. After reviewing the record, we

conclude this appeal does not meet the requirements of an agreed interlocutory appeal.

        In its motion to quash, Etnpire asserted Gunter could not depose his own attorney because

it would allow Gunter to obtain facts obtained during mediation in violation of article 154.073(a)

of the civil practice and remedies code. The trial court granted the motion. To invoke this court’s

jurisdiction, the notice of appeal states an immediate appeal from the discovery ruling may materially

advance the ultimate termination of the litigation because the testimony of Keefe "may be material"

to the question of enforceability of a ~nediated settlement agreement and the trial court will be

required to "rule on admissibility" of her testimony at trial.

        A trial court’s determination on a motion to quash is not a determination as to admissibility,

but concerns a parties ability to acquire information that might lead to admissible information.

Gunter has not asserted he needed to depose of his own attorney to obtain the information he seeks.

Nor is there anything in the record to suggest Keefe has failed to disclose information to her former

client she obtained while representing him at mediation. Thus, unlike the mandamus brought in in

re Empire Pipeline, 323 S.W.3d 308, 311 (Tex. App.JDallas 2010, orig. proceeding), the issue is

not one of disclosure of confidential information, but rather whether testimony about the mediation

would ultimately be admissible at trial. It thus appears the parties are attempting to use an order on

 a motion to quash as a vehicle for obtaining a pretrial evidentiary ruling as to the ultimate




                                                  -3-
admissibility of evidence. However. whcthcr the tcstimony about the mediation in general, and

Kcefe’s tcstimony in particular, would be admissible at trial was not the issue before the trial court,

:rod is not the issue before us. indeed, any determination as to admissibility at this time is premature.

See. e.g., h~ re Chrisms Spohn Hosp. Kleberg, 222 S.W.3d 434, 445 (Tex. 2007). We conclude the

trial court’s determination of the motion to quash is neither a controlling question of law nor would

it materially advance the ultimate termination of the litigation. Consequently, we dismiss this

appeal.




                                                        JUSTICE


120249 F. P05
                                        JUDGMENT

H. GLENN GUNTER, Appellant                     Appeal from the 192nd Judicial District
                                               Court of Dallas County, Texas. (Tr.Ct.No.
No. 05- ! 2-00249-CV                           06-01629- K).
                                               Opinion delivered by Justice O’ Neill,
EMPIRE PIPELINE CORPORATION,                   Justices FitzGerald and O’Neill
EMPIRE PIPELINE EXPLORATION, L.P.,             participating.
AND EMPIRE EXPLORATION
CORPORATION, Appellees

       Based on the Court’s opinion of this date, we DISMISS this appeal. We ORDER each

party bear their own costs of this appeal.



Judgment entered January 9, 2013.




                                                JUSTICE
