Opinion issued May 9, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00071-CV
                            ———————————
                          BRIAN CARESS, Appellant
                                        V.
                        MICHAEL FORTIER, Appellee


                    On Appeal from the 215th District Court
                             Harris County, Texas
                       Trial Court Case No. 2017-69424



                                  OPINION

      Brian Caress appeals the trial court’s dismissal, pursuant to Michael Fortier’s

motion under the Texas Citizens Participation Act, of his petition seeking to depose

Fortier before filing suit. See TEX. R. CIV. P. 202.1–202.5; TEX. CIV. PRAC. & REM.
CODE §§ 27.001–27.011. On appeal, Caress contends that the trial court erred in

dismissing his Rule 202 petition because Fortier did not show that the

communication underlying Caress’s potential defamation claim was made in

connection with a matter of public concern and thus relates to Fortier’s exercise of

his free speech rights, and alternatively, because Caress made out a prima facie case

on each element of his potential defamation claim. We hold that the TCPA does not

apply to Caress’s Rule 202 proceeding and dismiss his appeal for lack of jurisdiction.

                                  BACKGROUND

      Fortier is a former employee of Redi-Carpet Sales of Houston, Ltd. While at

Redi-Carpet, Fortier worked under Caress’s supervision. The parties hotly dispute

the rest of the circumstances that gave rise to this proceeding, which began when

Fortier petitioned to depose Caress before filing suit to investigate a potential assault

claim against him. The petition contained allegations that Caress had assaulted

Fortier multiple times during his employment with Redi-Carpet.

      Caress opposed Fortier’s Rule 202 petition with a response to Fortier’s motion

and his own motion to dismiss under the TCPA. The trial court ultimately denied

Fortier’s Rule 202 petition. Fortier does not appeal that ruling.

      Caress also counter-petitioned under Rule 202 for Fortier’s deposition,

seeking to investigate the potential claim that Fortier “engaged in defamation per se

by falsely and maliciously making statements that [Caress] has committed serious

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crimes.” Fortier opposed Caress’s pre-suit deposition request by moving to dismiss

it under the TCPA. After hearing the parties’ arguments, the trial court signed an

order dismissing Caress’s petition.

                                      DISCUSSION

      Caress casts his appeal challenging the trial court’s dismissal of his Rule 202

petition as one under the TCPA. Generally, appellate courts have jurisdiction only

over appeals from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195

(Tex. 2001). The legislature has created narrow exceptions to this general rule,

allowing appellate courts to review specific interlocutory orders when explicitly

permitted by statute. Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998) (per

curiam); e.g., TEX. CIV. PRAC. & REM. CODE §§ 15.003(b), 27.008, 51.014(a),

51.016.

      The parties have attempted to agree that section 27.008 of the Civil Practice

and Remedies Code, the TCPA’s interlocutory appeal provision, gives us

jurisdiction to review the trial court’s order. But whether we have jurisdiction is not

a fact subject to stipulation. E.g., Basic Energy Serv. v. D–S–B Props., 367 S.W.3d

254, 269 (Tex. App.—Tyler 2011, no pet.) (consumer status is question of law and

thus not subject to stipulation); Skidmore Energy, Inc. v. Maxus (U.S.) Expl. Co.,

345 S.W.3d 672, 688 (Tex. App.—Dallas 2011, pet. denied) (accrual of cause of

action is question of law and thus not subject to stipulation). Whether we have

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appellate jurisdiction is an issue of law subject to de novo review. Texas A & M

Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Without explicit statutory

permission, we have no jurisdiction to review an interlocutory order. See id.

       This Court has expressed doubt as to whether the TCPA applies to

proceedings other than those for the adjudication of legal claims on their merits. See

Paulsen v. Yarrell, 537 S.W.3d 224, 233 (Tex. App.—Houston [1st Dist.] 2017, pet.

denied) (en banc) (applying the ejusdem generis canon to interpret TCPA’s

definition of “legal action” and observing that the list within the definition “is best

characterized by the observation that each element of th[e] [enumerated] class is a

procedural vehicle for the vindication of a legal claim, in a sense that is not true for

a motion to dismiss”) (citing, inter alia, Ross v. St. Luke’s Episcopal Hosp., 462

S.W.3d 496, 504 (Tex. 2015), and In re Elliott, 504 S.W.3d 455, 475 (Tex. App.—

Austin 2016, orig. proceeding) (Pemberton, J., concurring) (applying ejusdem

generis canon to definition of “legal action” in TEX. CIV. PRAC. & REM. CODE

§ 27.001(6))); see also In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (per curiam)

(observing that “pre-suit discovery ‘is not an end within itself’; rather, it ‘is in aid of

a suit which is anticipated’ and ‘ancillary to the anticipated suit’”) (quoting Office

Emps. Int’l Union Local 277 v. Sw. Drug Corp., 391 S.W.2d 404, 406 (Tex.1965)).

       A Rule 202 petition for pre-suit discovery, like the motion to dismiss in

Paulsen, is not a legal claim on the merits. As a result, we hold that the TCPA does


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not apply to Rule 202 proceedings and thus provides no basis for jurisdiction over

this appeal.

      We remain mindful of the constraints that typically prevent appellate review

of Rule 202 dismissals like the one challenged in this appeal. An order granting a

pre-suit deposition is appealable “if [the deposition is] sought from someone against

whom suit is not anticipated.” In re Jorden, 249 S.W.3d 416, 419 & n.7 (Tex. 2008)

(citing Ross Stores, Inc. v. Redken Labs., Inc., 810 S.W.2d 741, 742 (Tex. 1991) (per

curiam)). On the other hand, an order granting or denying a request for deposition

of a person against whom suit is contemplated is not appealable. Int’l Ass’n of

Drilling Contractors v. Orion Drilling Co., 512 S.W.3d 483, 487 (Tex. App.—

Houston [1st Dist.] 2016, pet. denied); In re Alexander, 251 S.W.3d 798, 799 (Tex.

App.—Houston [1st Dist.] 2008, no pet.). Caress’s petition falls into the latter

category and is not appealable.

      Texas Rule of Civil Procedure 202 provides a tool for preliminary

investigations of “potential” or “anticipated” claims. See In re DePinho, 505 S.W.3d

621, 624 (Tex. 2016) (per curiam) (citing Combs v. Tex. Civil Rights Project, 410

S.W.3d 529, 536 (Tex. App.—Austin 2013, pet. denied)). For this reason, “a Rule

202 petition need not plead a specific cause of action; instead, Rule 202 requires

only that the petitioner ‘state the subject matter of the anticipated action, if any, and

the petitioner’s interest therein.’” Orion Drilling, 512 S.W.3d at 491 (quoting City


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of Houston v. U.S. Filter Wastewater Grp., 190 S.W.3d 242, 245 n.2 (Tex. App.—

Houston [1st Dist.] 2006, no pet.)); see In re DePinho, 505 S.W.3d at 624

(acknowledging that “Rule 202’s pleading requirement is fairly liberal”); see also In

re Emergency Consultants, Inc., 292 S.W.3d 78, 79 (Tex. App.—Houston [14th

Dist.] 2007, orig. proceeding) (per curiam) (“Rule 202 does not require a potential

litigant to expressly state a viable claim before being permitted to take a pre-suit

deposition.”). The trial court “must order a deposition to be taken,” if it finds that

(1) allowing the deposition to go forward may prevent a failure or delay of justice in

an anticipated suit, or (2) the likely benefit of ordering the requested deposition to

investigate a potential claim outweighs the burden or expense of the procedure.1

TEX. R. CIV. P. 202.4(a).

      In the trial court, Caress acknowledged that his Rule 202 petition is “simply a

request for pre-litigation discovery,” and that a decision on the merits of his

defamation claim “will ultimately be up to a jury, if this case is ever filed,” because

“there is no case, there is no claim at this point.” The Supreme Court of Texas’s

recent decision in Glassdoor Inc. v. Andra Group, L.P., confirms that Caress’s

explanation accurately characterizes the posture of his request for pre-suit discovery.

See No. 17-0463, 2019 WL 321934, *3, *6 (Tex. Jan. 25, 2019) (holding that statute


1
      These broad equitable considerations may encompass any potential free speech or
      other constitutional concerns that may arise in connection with a pre-suit deposition
      request.
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of limitations ran on “as-yet unfiled” claims underlying Rule 202 petition, rendering

Rule 202 proceeding moot). As a Rule 202 petition does not place unfiled claims

before the trial court for adjudication on the merits, a trial court’s order denying a

Rule 202 petition cannot dispose of those unfiled claims on the merits, even if the

denial purports to rest on a ruling under the TCPA.

      At oral argument, both parties informed this Court that they had filed original

petitions on their claims. In his supplemental briefing, Caress suggests that mootness

is not an issue here because “there is no evidence in the record to indicate that

Caress’s Rule 202 motion is moot.” Rarely, though, will an appellate court be able

to determine mootness based solely on the record; more often than not, extrinsic

evidence is necessary.2 In any event, we need not address the issue of mootness

because the record on its face demonstrates that we have no jurisdiction. Caress’s

appeal is from neither a final judgment nor an appealable interlocutory order. We

therefore lack jurisdiction over this appeal.




2
      We exercise our authority to take judicial notice of the parties’ lawsuits. See Brian
      Caress v. Michael Fortier, No. 2018-63377, in the 281st District Court of Harris
      County (filed September 13, 2018); Michael Fortier v. Redi-Carpet Sales of
      Houston, Ltd.; Redi-Carpet Sales, Inc.; and Brian Caress, No. 2019-06305, in the
      55th District Court of Harris County (filed Jan. 25, 2019).
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                                 CONCLUSION

      We dismiss the appeal for lack of jurisdiction.




                                             Gordon Goodman
                                             Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.




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