Francisco R. Canseco v. Aunt Bertha, a Public Benefit Corporation d/b/a Findhelp

Summary

The Fourth Court of Appeals of San Antonio considered whether a Rule 202 pre-suit discovery petition was properly granted and whether the Texas Citizens Participation Act applied. The court held that the trial court was required to demonstrate personal jurisdiction over a potential defendant and that Canseco was not a potential defendant because Findhelp repeatedly disclaimed any intent to sue him. The court reversed the trial court’s orders, rendered judgment dismissing the Rule 202 petition and granting Canseco’s TCPA motion to dismiss, and remanded for further proceedings.

Holdings

1. A Rule 202 order is final and appealable when the petition seeks to investigate a potential claim by deposing a third party against whom suit is not contemplated; it is interlocutory when suit against the deponent is anticipated.
2. A Rule 202 petitioner must demonstrate that the trial court would have personal jurisdiction over a potential defendant.
3. Canseco did not waive the Rule 202 proper-court and personal-jurisdiction argument by failing to file a special appearance or object in the trial court.
4. Findhelp could not satisfy Rule 202's personal-jurisdiction requirement by relying on personal jurisdiction over Canseco after repeatedly representing that it did not anticipate suing him.
5. A Rule 202 petition is a legal action under the TCPA because it is a petition or judicial filing requesting equitable relief in the form of pre-suit discovery.
6. Canseco's article involved the exercise of free speech on a matter of public concern, and Findhelp failed to establish a prima facie case under Rule 202 sufficient to defeat the TCPA motion.

Questions Presented

1. Whether the court of appeals had jurisdiction to review the order granting Findhelp's Rule 202 petition.
2. Whether a Rule 202 petitioner must demonstrate that the trial court has personal jurisdiction over a potential defendant.
3. Whether Canseco waived the Rule 202 proper-court and personal-jurisdiction argument.
4. Whether Findhelp could rely on personal jurisdiction over Canseco when it repeatedly disclaimed any intention to sue him.
5. Whether a Texas Rule 202 petition is a legal action subject to the Texas Citizens Participation Act.
6. Whether Canseco's article concerned the exercise of free speech on a matter of public concern and whether Findhelp established a prima facie case sufficient to defeat the TCPA motion.

Disposition

reversed_and_remanded