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IFS Security Group10/31/2005
nt to rule 202 allowing presuit discovery incident and ancillary to a contemplated lawsuit against the party from whom the discovery is sought is not a final, appealable order. See Thomas, 166 S.W.3d at 747-48.
C. Application of the Law to the Facts
Ameritex's rule 202 petition is styled IFS Security Group, Inc. d/b/a Ameritex Guard Services v. American Equity Insurance Company. In the petition, Ameritex requests the oral deposition of an American Equity employee who it alleges has "firsthand knowledge" of American Equity's "handling" of its insurance claim. The petition states Ameritex seeks to investigate potential claims for breach of contract, negligence, lack of good faith and fair dealing, and violations of the Texas Insurance Code, arising from the "handling" of a claim made by Ameritex under a policy issued by American Equity. Also, it states Ameritex anticipates a lawsuit against American Equity. Further, the petition contains a request for the issuance of a subpoena duces tecum that would require the American Equity employee to produce: (1) the complete file concerning claims filed by Ameritex with American Equity or its affiliates concerning the incident on February 7, 2000; (2) all of American Equity's written policies and procedures concerning the handling of claims; and (3) all of American Equity's written policies and procedures concerning reservation of rights.
Ameritex relies on the reported cases of Ross, Rawlins, Jacintoport, and Vega to support its argument that a trial court's order on a rule 202 petition is a final, appealable order. See Vega, 31 S.W.3d 376. These cases are distinguishable from the facts of this appeal.
In Ross, Redken Laboratories filed a bill of discovery pursuant to former Texas Rule of Civil Procedure 737 seeking to take the deposition of Ross with a view toward filing a lawsuit against the suppliers of Redken products to Ross. See Ross, 810 S.W.2d at 741-42. The trial court ordered Ross to give its deposition and to produce documents related to how it obtained Redken products. See id. at 742. The Texas Supreme Court determined that the bill of discovery order was final and appealable because there was no pending lawsuit against Ross and no such lawsuit was contemplated. See id.
In Rawlins, the State of Texas filed a bill of discovery pursuant to former Texas Rule of Civil Procedure 737 seeking the names and addresses of Dallas Joint Stock Land Bank's stockholders in order to demand payment and, if necessary, sue those stockholders for the recovery of taxes. See Rawlins, 129 S.W.2d at 485-86. The trial court ordered Dallas Joint Stock Land Bank to answer the interrogatories. See id. at 486. Dallas Joint Stock Land Bank gave notice of appeal, but the trial judge refused to set the amount of the supersedeas bond because he believed the order was interlocutory and not appealable. See id. As a result, Dallas Joint Stock Land Bank filed a petition for mandamus. See id. The court of appeals concluded the order was final and appealable because no other relief was sought or contemplated against Dallas Joint Stock Land Bank and issued a writ of mandamus ordering the trial judge to set the amount of the supersedeas bond so Dallas Joint Stock Land Bank could appeal the order. See id. at 487.
In Jacintoport, an injured worker filed a bill of discovery pursuant to former Texas Rule of Civil Procedure 737 seeking to clarify the identity of his employer and potentially responsible third parties. Jacintoport, 987 S.W.2d at 902. A representative of the corporation failed to appear for Jacintoport's deposition. Id. The trial court ordered Jacintoport to comply, and the petitioner filed a lawsuit against Jacintoport. I
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