                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 2-09-161-CV

BETTEANNE COMERFORD, TANIA                         APPELLANTS
ANN-MARIE CHAVANNE AND
DAVID TRUMAN MICHENER

                                      V.

BRYAN DAVIS AND CARLA DAVIS,                        APPELLEES
AS NEXT FRIENDS OF TYLER DAVIS

                                  ------------

         FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                  ------------

                                      AND

                             NO. 2-09-168-CV

IN RE THOMAS GERALD COMERFORD

                                  ------------

                          ORIGINAL PROCEEDING

                                  ------------
                       MEMORANDUM OPINION 1

                                  ------------




    1
        … See Tex. R. App. P. 47.4.
                                 I. Introduction

      Relator   Thomas    Gerard   Comerford     seeks   a   writ   of   mandamus

commanding the trial court to vacate its April 28, 2009 order requiring him to

appear for a rule 202 deposition, and Appellants Betteanne Comerford, Tania

Ann-Marie Chavanne, and David Truman Michener appeal the trial court’s April

28, 2009 order compelling them to appear for a rule 202 deposition.2 In one

issue, Relator and Appellants contend the trial court abused its discretion by

ordering Relator and Appellants to appear for pre-suit depositions. We deny the

petition for writ of mandamus and affirm the trial court’s order.

                    II. Factual and Procedural Background

      On January 6, 2009, Bryan and Carla Davis, as Next Friends of Tyler

Davis, filed their “Verified Petition to Take Deposition in Anticipation of Suit.”

In the petition, the Davises allege that their son, Tyler, was seriously injured on

or about August 31, 2008, while he “was a passenger of an inflatable device

being towed by a boat driven by his father, Bryan Davis, when his inflatable

device was struck by another boat, owned and driven by [Relator].”             The

Davises’ petition seeks an order authorizing the depositions of Relator and

Appellants in order to “perpetuate the testimony of these witnesses to obtain



      2
      … This court previously granted Appellants’ motion to consolidate their
appeal with Relator’s mandamus action.

                                        2
information regarding the accident in question to determine the facts

surrounding the accident.”      The Davises’ petition further states, “At the

hearing, the [Davises] will show that by permitting the deposition before suit,

they may prevent a failure or delay of justice in the anticipated suit.”       The

Davises’ petition does not state that the requested depositions are necessary

to investigate a potential claim. On March 11, 2009, Relator and Appellants

filed a response to the Davises’ petition in which they specifically stated they

would not address a request for pre-suit depositions to investigate a potential

claim because the Davises sought pre-suit depositions only for use in an

anticipated suit.

      The trial court conducted a hearing on the petition on March 13, 2009.

The Davises’ attorney argued at the hearing that the depositions were

necessary to investigate the claim and that the likely benefit of allowing the

depositions outweighed the burden and expense. Relator’s and Appellants’

counsel countered by arguing, among other things, that the burden on Relator

and Appellants did not justify an order authorizing pre-suit depositions. The trial

court thereafter stated, “I will find in this instance that the likely benefit of

allowing [the Davises] to take the requested depositions to investigate a

potential claim outweighs the burden or expense of the procedure.” The trial

court signed an order memorializing its ruling on April 28, 2009.          Relator

                                        3
thereafter filed a petition for writ of mandamus and Appellants filed a notice of

appeal.3

                                 III. Discussion

      Rule 202.1 permits a party to petition the trial court for an order allowing

a pre-suit deposition “(a) to perpetuate or obtain the person's own testimony

or that of any other person for use in an anticipated suit; or (b) to investigate

a potential claim or suit.” Tex. R. Civ. P. 202.1. Rule 202.4(a) states:

      (a) Required Findings. The court must order a deposition to be
      taken if, but only if, it finds that:

            (1) allowing the petitioner to take the requested 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
            requested deposition to investigate a potential claim
            outweighs the burden or expense of the procedure.

Tex. R. Civ. P. 202.4(a).

      In their sole issue, Relator and Appellants contend that once a party

anticipates a lawsuit, the party must proceed only under rule 202.4(a)(1) and

that the party is precluded from proceeding under rule 202.4(a)(2).



      3
       … Orders compelling pre-suit depositions from persons against whom suit
is not anticipated are appealable, but orders compelling pre-suit depositions
from persons against whom suit is anticipated are not. In re Jorden, 249
S.W.3d 416, 419 (Tex. 2008) (orig. proceeding). Thus, Appellants filed an
appeal and Relator filed a petition for writ of mandamus.

                                        4
      If a party does not present an argument to the trial court through a timely

request, objection, or motion, the argument is not preserved and cannot be

made on appeal.      Tex. R. App. P. 33.1(a)(1); see also Bates v. City of

Beaumont, 241 S.W.3d 924, 929 (Tex. App.—Beaumont 2007, no pet.)

(same). This principle applies equally to parties seeking a writ of mandamus.

See In re E. Tex. Med. Ctr. Athens, 154 S.W.3d 933, 936, 937–38 (Tex.

App.—Tyler 2005, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex.

App.—Amarillo 2001, orig. proceeding) (stating trial court cannot abuse its

discretion unless it had a legal duty to act, was asked to act, and failed or

refused to act). Relator and Appellants did not present their argument that a

party is precluded from proceeding under rule 202.4(a)(2) once it anticipates a

lawsuit to the trial court. Thus, the argument is not preserved for our review.

Tex. R. App. P. 33.1(a)(1).      Furthermore, Relator and Appellants do not

challenge the evidence or arguments underlying the trial court’s finding that the

likely benefit of allowing Relator’s and Appellants’ pre-suit depositions

outweighs the burden or expense. As a result, we are required to deny the writ

of mandamus and affirm the trial court’s order. See Britton v. Tex. Dep’t of

Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no

pet.) (stating the reviewing court must affirm the trial court’s judgment or ruling




                                        5
when the appellant does not “attack all independent bases or grounds that fully

support a complained-of ruling or judgment”).

                               IV. Conclusion

      Having overruled Relator’s and Appellants’ sole issue, we deny the

petition for writ of mandamus and affirm the trial court’s order.




                                           ANNE GARDNER
                                           JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

WALKER, J. concurs without opinion.

DELIVERED: December 31, 2009




                                       6
