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IFS Security Group10/31/2005
Before Justices Whittington, Francis, and Lang
IFS Security Group, Inc. d/b/a Ameritex Guard Services appeals the trial court's order denying its petition to take the deposition of an American Equity Insurance Company employee to investigate potential claims for breach of contract, negligence, lack of good faith and fair dealing, and violations of the Texas Insurance Code. See Tex. R. Civ. P. 202.
Ameritex raises generally two issues on appeal: (1) the trial court erred when it applied a summary judgment standard to Ameritex's rule 202 petition; and (2) the trial court erred when it required the parties to litigate substantive matters of law during the hearing on Ameritex's rule 202 petition.
In this case, as a threshold question, we must determine whether an order pursuant to Texas Rule of Civil Procedure 202 denying a party's request to take the deposition of an employee of the corporation, against whom a lawsuit is contemplated, is a final, appealable order. We conclude the trial court's order rejecting Ameritex's rule 202 petition is not a final, appealable order. We dismiss this appeal for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ameritex is a private security service insured by American Equity, which contracted to provide security guards for a retail business. An employee of the retailer was murdered while working, and Ameritex was sued by the employee's survivors for wrongful death. A settlement was reached in that lawsuit.
Ameritex filed a petition to take the deposition of an American Equity employee to investigate potential claims for breach of contract, negligence, lack of good faith and fair dealing, and violations of the Texas Insurance Code in an anticipated lawsuit against American Equity. Ameritex alleged these potential claims arise from American Equity's handling of Ameritex's claim for coverage on its insurance policy in connection with the wrongful death claims. After a hearing, the trial court denied Ameritex's petition to depose the American Equity employee. The trial court issued findings of fact and conclusions of law stating Ameritex failed to show that allowing Ameritex to take the requested deposition may prevent a failure or delay of justice in the anticipated lawsuit, or that the benefit of taking the requested deposition to investigate the potential claims outweighed the burden or expense of the procedure. See Tex. R. Civ. P. 202.4.
II. APPELLATE JURISDICTION
Ameritex argues that because the deponent is not an anticipated party to any future lawsuit, the trial court's order denying its petition to take the deposition of an American Equity employee pursuant to Texas Rule of Civil Procedure 202 is a final, appealable order. American Equity responds that we have no jurisdiction to review this appeal because Ameritex's rule 202 petition was denied and there is no case that holds the denial of a petition to take a presuit deposition is a final, appealable order. Rather, American Equity posits the case law addresses only the granting of such orders. Although we agree with American Equity that the order of the trial court is not a final, appealable order, and we conclude we have no jurisdiction to hear this appeal, we do not agree with American Equity's reasoning leading to that result.
A. Standard of Review
An appellate court reviews whether it has jurisdiction over an appeal de novo because jurisdiction is a legal question. See Parks v. DeWitt County Elec. Coop., Inc., 112 S.W.3d 157, 160 (Tex. App.-Corpus Christi 2003, no pet.) (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)). If the record does not affirmat
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