Conditionally GRANT; and Opinion Filed March 28, 2014.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-00307-CV

                              IN RE JOSE P. NORIEGA, Relator

                      On Appeal from the 162nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-13-14164

                              MEMORANDUM OPINION
                          Before Justices FitzGerald, Francis, and Lewis
                                    Opinion by Justice Lewis
       Relators filed this mandamus proceeding after the trial court ordered relator to submit to a

pre-suit deposition pursuant to Rule 202 of the Texas Rules of Civil Procedure. We conclude the

trial court abused its discretion and relator has no adequate remedy by appeal. We therefore

conditionally grant the writ of mandamus.

                            I. FACTUAL AND PROCEDURAL CONTEXT

       On November 27, 2013, real party in interest filed a petition under Rule 202 of the Texas

Rules of Civil Procedure, supported by an affidavit of his counsel, seeking the pre-suit deposition

of relator to investigate a potential claim against relator arising from an alleged assault in August

2010. Real party also sought the production of documents from relator in conjunction with the

deposition. Relator responded to the Rule 202 petition, moved to strike the affidavit supporting

the petition, and, alternatively, moved to limit the deposition. The trial court conducted a

hearing on the petition for pre-suit deposition. The reporter’s record of the hearing does not
reflect that the parties called any witnesses or offered any evidence. Real party also did not

introduce his verified petition as evidence. Upon conclusion of the argument of counsel, the trial

court concluded that real party had not met its burden under Rule 202, but nonetheless stated in

its written order that the likely benefit of allowing real party to take the requested deposition to

investigate a potential claim outweighed the burden or expense of the procedure and granted real

party a two–hour deposition. The trial court did not rule on the motion to strike the affidavit

supporting the petition.

                                 II. STANDARD FOR MANDAMUS RELIEF

       To obtain mandamus relief, relator must show both that the trial court has abused its

discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148

S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40

(Tex. 1992) (orig. proceeding). A trial court has “no ‘discretion’ in determining what the law is

or applying the law to facts.” In re Prudential, 148 S.W.3d at 135 (quoting Walker, 827 S.W.2d

at 840). In cases in which the trial court abuses its discretion in improperly granting a pre-suit

deposition, the order is reviewable by mandamus because the relator has no adequate remedy by

appeal. Patton Boggs LLP v. Moseley, 394 S.W.3d 565, 571 (Tex. App.—Dallas, 2011, no pet.).

                                III. REQUIREMENTS OF RULE 202

       A trial court’s order permitting discovery under Rule 202 is reviewed under an abuse of

discretion standard.   Patton Boggs, 394 S.W.3d at 568–69.          Rule 202 depositions are not

intended for routine use. In re Jorden, 249 S.W.3d 416, 423 (Tex. 2008) (orig. proceeding).

“Courts must strictly limit and carefully supervise pre-suit discovery to prevent abuse of the

rule.” In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding).

        Rule 202.1 provides two possible bases for authorizing pre-suit discovery. Rule 202.1(a)

provides for depositions to perpetuate testimony for use in an anticipated suit, while Rule

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202.1(b) provides for depositions to investigate a potential claim or suit. TEX. R. CIV. P. 202.1.

Rule 202.4 addresses the findings a trial court must make in allowing pre-suit depositions. Rule

202.4 provides:

       (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).

       Ultimately, the decision a petitioner makes as to which reason he requests a Rule 202

deposition affects the finding the trial court is required to make to support an order allowing a

Rule 202 deposition. If the petitioner requests a deposition to obtain testimony for use in an

anticipated suit, the trial court must find that allowing the petitioner to take the requested

deposition may prevent a failure or delay of justice. In re Denton, No. 10-08-00255-CV, 2009

WL 471524, at *2 (Tex. App.—Waco Feb. 25, 2009, orig. proceeding) (mem. op.). If the

petitioner requests a deposition to investigate a potential claim, however, the trial court must find

that 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. Id.; Patton Boggs, 394

S.W.3d at 570.    The trial court must expressly make the findings required under Rule 202.4;

Rule 202.4 does not permit the required findings to be implied from the record. See In re Does 1

and 2, 337 S.W.3d 862, 865 (Tex. 2011). A trial court abuses its discretion in ordering a pre-suit

deposition under Rule 202 if it fails to make the required findings. Patton Boggs, 394 S.W.3d at

571.

       Here, real party sought the deposition of relator under Rule 202.1(b) to investigate a

potential claim or suit. Without hearing evidence or admitting the verified Rule 202 petition as

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evidence, the trial court in this case found that the likely benefit of allowing petitioner to take the

requested deposition to investigate a potential claim outweighed the burden or expense of the

procedure. The record before the trial court at the hearing consisted only of the pleadings of the

parties and the argument of counsel.        Even sworn or verified pleadings are not generally

considered competent evidence to prove the facts alleged in the pleadings. Laidlaw Waste Sys.

(Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). Thus, even if real party had

been able to overcome relator’s objection to the verification on the petition that it was not based

on personal knowledge of real party’s counsel, the verified petition would not have been

admissible evidence in support of the Rule 202 petition. Similarly, argument of counsel is not

evidence and cannot supply the factual basis for granting a Rule 202 petition. In re Rockafellow,

No. 07-11-00066-CV, 2011 WL 2848638, at *4 (Tex. App.—Amarillo July 19, 2011, orig.

proceeding) (mem. op.); Love v. Moreland, 280 S.W.3d 334, 336 n. 3 (Tex. App.—Amarillo

2008, no pet.).

       It is an abuse of discretion for a trial court to find that the likely benefit of a Rule 202

deposition outweighs the burden of the deposition when the party seeking the deposition fails to

provide any evidence on which the court could have based such a finding. In re Campo, No. 05-

13-00477-CV, 2013 WL 3929251, at *1 (Tex. App.—Dallas July 26, 2013, orig. proceeding)

(mem. op.) (mandamus conditionally granted where no evidence was presented to the trial court

at the hearing on the motion and party seeking Rule 202 deposition did not formally offer or

admit its verified pleading at the hearing). The trial court did just this and in so doing abused its

discretion.




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                                        IV. CONCLUSION

       For the reasons set forth above, we CONDITIONALLY GRANT the relator’s petition

for writ of mandamus. A writ will issue only in the event the trial court fails to vacate its

February 7, 2014 Order on Petition to Investigate Potential Claim or Suit.




                                                     /David Lewis/
                                                     DAVID LEWIS
                                                     JUSTICE

140307F.P05




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