D&L Oil and Gas LLC Darrell Madding And Bayko, Prebeg, Faucett & Abbott PLLC v. TAI Acquisition Corporation ( 2022 )

Appeal Dismissed, Motion Denied as Moot, and Memorandum Opinion filed
March 29, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00662-CV
D&L OIL AND GAS LLC; DARRELL MADDING; AND BAYKO,
PREBEG, FAUCETT & ABBOTT PLLC V. TAI ACQUISITION
CORPORATION, Appellants
V.
TAI ACQUISITION CORPORATION, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2021-56699
MEMORANDUM OPINION
This is an appeal from an order signed October 15, 2021 granting an amended
pre-suit petition for oral deposition and request for production of documents
pursuant to Texas Rule of Civil Procedure 202. The amended petition contemplates
the filing of suit involving the transfer of funds allegedly owned by appellee TAI
Acquisition Corporation (“TAI”) from an account owned by appellant Bayko,
Prebeg, Faucett & Abbott PLLC (“Bayko”), as well as a prior settlement agreement
regarding those funds allegedly entered into by appellee and appellants D&L Oil and
Gas LLC (“D&L”) and Darrell Madding.1 Based on the amended petition’s text,
TAI seeks pre-suit depositions and production of documents in association with its
investigation of potential claims against all three appellants.2
Under Texas Supreme Court authority, pre-suit deposition orders under Rule
202 “are appealable only if sought from someone against whom suit is not
anticipated.” In re Jorden, 249 S.W.3d 416, 419 (Tex. 2008). The reason for this is
because such orders are “ancillary to the subsequent suit, and [are] thus neither final
nor appealable.” Id. As TAI’s amended petition indicates it is contemplating suit
against all three appellants, that situation is present here.
After appellants were requested to demonstrate this court’s jurisdiction,
Bayko and D&L, though not Madding, filed a letter addressing that issue. Their
letter acknowledges they were unclear whether the appropriate way to challenge the
trial court’s order was through an ordinary appeal or through a petition for a writ of
1
Although the amended petition seeks to depose Bayko and D&L, it does expressly seek
to depose Madding, and it is unclear whether any of its requested discovery would require someone
to obtain documents or information from Madding. However, regardless of whether Madding
could properly appeal from the trial court order as a nonparty, as this opinion makes clear, there is
another basis why he cannot do so. Cf. Kenneth D. Eichner, P.C. v. Dominguez, 623 S.W.3d 358,
362 (Tex. 2021) (per curiam) (quoting Sommers for Ala. & Dunlavy, Ltd. v. Sandcastle Homes,
Inc., 521 S.W.3d 749, 752 (Tex. 2017)) (“Generally, only a named party to the suit may bring an
appeal.”).
2
Although the text of the rule speaks only of “the taking of a deposition on oral
examination or written questions” without mentioning production of documents, see Tex. R. Civ.
P. 202.1, documents are still regularly producible in a Rule 202 proceeding. In re Perrilloux, 2020
WL 2092483, at *4 (Tex. App.—Dallas May 1, 2020, orig. proceeding) (citing In re City of Tatum,
567 S.W.3d 800, 808 (Tex. App.—Tyler 2018, orig. proceeding)) (holding Rule 202 authorizes
pre-suit production of documents); see also Hous. Indep. Sch. Dist. v. Durrell, 547 S.W.3d 299,
302–03 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (rejecting a plea to the jurisdiction against
a Rule 202 petition seeking both an oral deposition and the production of documents).
2
mandamus. However, they have not provided any basis for this court to properly
provide relief through a direct appeal.3
The only other matter pending in this case is appellants’ motion for an
extension of time to file their merits brief in this case. Therein, appellants seek to
be given twenty-one days until after this court resolves the question of its appellate
jurisdiction to file their brief. This opinion has resolved the jurisdictional question,
but since the answer means this case should come to an end without any need for
merits briefing, appellants’ extension is no longer required.
Accordingly, due to the lack of any basis for exercising jurisdiction over this
appeal, we dismiss the appeal for want of jurisdiction and deny as moot appellants’
motion for an extension to file a merits brief.
PER CURIAM
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
3
D&L and Bayko have filed a mandamus proceeding in this court, Cause No. 14-21-
00724-CV, similarly challenging the trial court’s order on appellee’s amended petition. That
proceeding remains pending. Whether those two appellants warrant relief in that proceeding is a
matter more properly resolved in that proceeding, rather than this direct appeal.
3