Court of Appeals of Texas, 2012

In re Chernov

Court of Appeals of Texas · Decided August 31, 2012 · Barnard, Hilbig, Simmons

399 S.W.3d 234; 2012 WL 3776500; 2012 Tex. App. LEXIS 7380 (South Western Reporter, Third Series)

Cases that cite this one

7 later published cases cite this decision. The 6 that cite it most often are listed here.

in Re PrairieSmarts LLC and Casey Rockwell (Tex. App. 2014)
City of Dallas v. in Re: Heather Russell (Tex. App. 2018)
in Re Integ Corporation Godfrey Garza, Jr. Valley Data Collection Specialists, Inc. And Annie Q. Garza (Tex. App. 2016)
in Re Valerus Compression Services, LP, Valerus Compression Services Management LLC, YPG Capital LLC, TPG v. VE, LP and TPG VI VE, LP (Tex. App. 2015)
in Re Mike East, Alice East, Lisa East and Alejandro Urias (Tex. App. 2014)
in Re Reassure America Life Insurance Company (Tex. App. 2013)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION

Opinion by:

MARIALYN BARNARD, Justice.

On July 17, 2012, relator Allan J. Cher-nov, M.D. filed a petition for writ of mandamus, complaining of the trial court’s June 28, 2012 order granting the petition of David S. Mora, O.D., Ph.D. to take the deposition of Chernov pursuant to Texas Rules of Civil Procedure Rule 202. See Tex.R. Civ. P. 202.1, et seq. Chernov contends the trial court erred in ordering the *235presuit deposition under Rule 202 because: (1) the deposition relates to confidential peer review communication that is privileged; and (2) the order fails to make the required findings under Rule 202.4. See Tex.R. Civ. P. 202.4(a).

Rule 202.4(a) provides that “[t]he 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.” Id. Both parties acknowledge the order presented to and signed by the trial court failed to include the necessary findings. However, Mora contends the findings may be implied. We disagree. The Texas Supreme Court in In re Does expressly found that Rule 202.4 does not allow the findings to be implied from support in the record. In re Does, 337 S.W.3d 862, 865 (Tex. 2011) (orig. proceeding). We conclude the trial court clearly abused its discretion in failing to make the required findings under Rule 202.4.2

Furthermore, we conclude Chernov lacks an adequate remedy by appeal and is entitled to mandamus relief. See id. (relying on In re Jorden, 249 S.W.3d 416, 420 (Tex. 2008) (orig. proceeding) (holding a party to a Rule 202 proceeding has no adequate remedy by appeal if the trial court abused its discretion in ordering discovery that would compromise procedural or substantive rights)).

CONCLUSION

Accordingly, we conditionally grant the petition for writ of mandamus in part. The trial court is ordered to withdraw the June 28, 2012 order granting the petition of David S. Mora, O.D., Ph.D. to take the deposition of Chernov pursuant to Texas Rules of Civil Procedure Rule 202. The writ will issue only if the trial court fails to comply within fourteen days.

. Because we have found the order granting the deposition invalid, we do not reach the merits of Chernov’s argument that the deposition relates to confidential peer review communication that is privileged.

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