Petition for Writ of Mandamus Conditionally Granted and Memorandum 

Opinion filed October 6, 2020.

In The

Fourteenth Court of Appeals 

NO. 14-20-00087-CV

IN RE UBS FINANCIAL SERVICES INC., DEBRA PELHAM, AND KREG 

PEARLESS, Relators

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

333rd District Court

Harris County, Texas

Trial Court Cause No. 2019-82010

MEMORANDUM OPINION

Relators UBS Financial Services Inc., Debra Pelham, and Kreg Pearless

(collectively, “UBS”) filed a petition for writ of mandamus in this court. See Tex. 

Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, UBS asks

this court to compel the Honorable Daryl Moore, presiding judge of the 333rd 
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District Court of Harris County, to set aside his January 8, 2020 order granting the 

verified petition requesting deposition duces tecum before suit pursuant to Texas 

Rule of Civil Procedure 202. See Tex. R. Civ. P. 202. We conditionally grant the 

petition.

BACKGROUND

In September 2009 and November 2016, Fleur Holdings LLC opened two

accounts in UBS’s Yield Enhancement Strategy (“YES”), which is an options 

overlay trading strategy that aims to generate investment income through the sale of 

S&P 500 Index options. The agreements between Fleur Holdings and UBS include 

arbitration agreements. Deneige Dooley is Fleur Holdings’ managing member. 

Dooley signed the documents setting up Fleur Holdings’ accounts as managing 

member. 

On September 25, 2019, Dooley’s attorney wrote UBS, advising that he was 

investigating whether UBS’s actions regarding the investment of his “Client’s”

assets in YES are actionable. Dooley is referred to as the “Client” in the letter. 

Dooley’s attorney requested information regarding YES in the form of 12 questions 

directed to UBS and 12 categories of documents and also demanded that UBS 

preserve evidence. Dooley’s attorney also requested tape-recorded interviews of 

UBS employees, Debra Pelham and Kreg Pearless.

In response, UBS’s attorney advised that UBS had no obligation to produce 

discovery at that time and declined to do so. UBS further stated that, in the event 

arbitration were commenced, both parties would be subject to the discovery rules 

and procedures of the arbitral forum and enclosed copies of the documents signed 

by Dooley on behalf of Fleur Holdings. 
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On November 11, 2019, Dooley filed a verified petition requesting 

depositions duces tecum before suit, seeking to investigate facts regarding the 

investment of some of Dooley’s funds in YES by deposing Pelham and Pearless. 

UBS objected on the grounds that (1) Dooley lacked standing because she does not 

own the potential claims; and (2) Fleur Holdings, through its managing member, 

Dooley, agreed to binding private arbitration of the potential claims, precluding the 

use of Rule 202 

On January 3, 2020, UBS filed an emergency motion for protection and 

motion to quash Dooley’s subpoenas commanding Pelham and Pearless to appear 

for deposition. The trial court held a hearing on January 6, 2020, and signed an order 

granting the petition on January 8, 2020, allowing the depositions of Pelham and 

Pearless, limited to three hours each, to be taken within 30 days of the order. 

STANDARD OF REVIEW

Ordinarily, to be entitled to a writ of mandamus, a relator must show that the 

trial court clearly abused its discretion, and that relator lacks an adequate remedy by 

appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (original proceeding) (per 

curiam). A trial court clearly abuses its discretion if it reaches a decision so arbitrary 

and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly 

fails to analyze the law correctly, or apply the law correctly to the facts. In re H.E.B. 

Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding) (per 

curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. 

proceeding) (per curiam). Mandamus review is available for orders granting 

petitions for presuit depositions because appeal is not an adequate remedy. In re 
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Akzo Nobel Chem., Inc., 24 S.W.3d 919, 920 (Tex. App.—Beaumont 2000, orig. 

proceeding). 

ANALYSIS

In its petition, UBS raises the following two issues: (1) Dooley lacks standing 

to request such discovery because Fleur is the owner of the accounts; and (2) the 

claims for which discovery is sought are subject to compulsory arbitration. We 

address the first issue because it is dispositive. We do not reach the second issue.

Rule 202.1 provides for the taking of an oral deposition or deposition on 

written questions in one of two following circumstances: (1) to perpetuate or obtain 

a person’s own testimony or that of any other person for use in the anticipated suit; 

or (2) to investigate a potential claim or suit. Tex. R. Civ. P. 202.1. Presuit 

depositions are available only if the trial court 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. 202.4(a). 

A Rule 202 petition must “state the subject matter of the anticipated action, if 

any, and the petitioner’s interest therein.” In re DePinho, 505 S.W.3d 621, 623 (Tex. 

2016) (orig. proceeding) (per curiam) (quoting Tex. R. Civ. P. 202.2(e)). Presuit 

discovery “is not an end within itself; rather, it is in aid of a suit which is anticipated 

and ancillary to the anticipated suit.” In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) 

(orig. proceeding) (per curiam) (internal quotations marks omitted). To prevent an 

end-run around discovery limitations that would govern the anticipated suit, Rule 

202 restricts discovery in depositions to “the same as if the anticipated suit or 
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potential claim had been filed.” Id. (quoting Tex. R. Civ. P. 202.5). Rule 202 

depositions are not now and have never been intended for routine use. In re Jorden, 

249 S.W.3d 416, 423 (Tex. 2008) (orig. proceeding).

It is well-settled that the trial court must have subject-matter jurisdiction over 

the anticipated action to properly order a presuit deposition. DePinho, 505 S.W.3d 

at 623; In re City of Dallas, 501 S.W.3d 71, 73 (Tex. 2016) (orig. proceeding) (per 

curiam). This limitation on presuit discovery is due to a court’s inherent 

jurisdictional limitations: “a court cannot grant relief when it lacks jurisdiction of 

the subject matter,” so “[i]t would make no sense to insist that a court ordering 

discovery to perpetuate testimony for a later-filed suit to be one . . . [without] subjectmatter jurisdiction.” DePinho, 505 S.W.3d at 623 (quoting In re Doe (Trooper), 444 

S.W.3d 603, 607–08 (Tex. 2014)). “Indeed, allowing courts to authorize Rule 202 

depositions for potential suits over which they lack jurisdiction would untether 

presuit discovery from the suit it purports to be in aid of.” Id. 

“Standing is implicit in the concept of subject-matter jurisdiction, and subjectmatter jurisdiction is essential to the authority of a court to decide a case.” In re 

Abbott, 601 S.W.3d 802, 807 (Tex. 2020) (orig. proceeding) (per curiam); see also 

Farmers Tex. Cty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 240 (Tex. 2020) (stating 

that standing is component of subject matter jurisdiction). Standing is specific to 

each individual plaintiff and to each of the plaintiff’s individual claims. Abbott, 601 

S.W.3d at 807. Standing requires a concrete injury to the plaintiff and a real 

controversy between the parties that will be resolved by the court. Meyers v. 

JDC/Firethorne, Ltd., 548 S.W.3d 477, 484 (Tex. 2018). Questions of standing are 

reviewed de novo. Farmers Tex. Cty. Mut. Ins. Co., 598 S.W.3d at 240. 
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UBS maintains that the trial court did not have jurisdiction to grant Dooley’s 

Rule 202 petition because Dooley does not have standing to bring the Rule 202 

proceeding or, if suit is ultimately brought, to pursue the claims for which discovery 

is sought. Specifically, UBS contends that the undisputed evidence shows that Fleur 

Holdings owns the YES accounts and Dooley is merely the managing member of 

Fleur Holdings, with no ownership interest in the accounts. 

A limited liability company is a separate entity from a member or manager of 

the company. Sherman v. Boston, 486 S.W.3d 88, 94 (Tex. App.―Houston [14th 

Dist.] 2016, pet. denied); Spates v. Office of Att’y Gen., Child Support Div., 485 

S.W.3d 546, 550–51 (Tex. App.―Houston [14th Dist.] 2016, no pet.); Geis v. 

Colina Del Rio, LP, 362 S.W.3d 100, 109 (Tex. App.―San Antonio 2011, pet. 

denied). A member of a limited liability company does not have an interest in any 

specific property the company owns. Tex. Bus. Orgs. Ann. § 101.106. 

A member of a limited liability company may be a party in an action brought 

by or against the company action if the action is brought to enforce the member’s 

right against or liability to the company. Tex. Bus. Orgs. Ann. § 101.113. Therefore, 

a member of a limited liability company lacks standing to assert claims individually 

when the cause of action belongs to the company. Siddiqui v. Fancy Bites, LLC, 504 

S.W.3d 349, 360 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); Sherman, 

486 S.W.3d at 94. 

In the September 25, 2019 letter, Dooley’s counsel advised UBS that he had 

been hired to represent Dooley in investigating UBS’s actions in managing Dooley’s 

YES account and requested documents related to Dooley’s YES account. Dooley is 
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named as the petitioner, and the petition repeatedly refers to Dooley’s YES 

investment, even though Fleur Holdings owns the YES accounts. 

In her response to UBS’s petition for writ of mandamus, Dooley asserts that 

the doctrine of misnomer is applicable here where Dooley was named as petitioner 

instead of Fleur Holdings. “[A] ‘misnomer occurs when a party misnames itself or 

another party, but the correct parties are involved.’” Exxon Mobil Corp. v. Rincones, 

520 S.W.3d 572, 594 (Tex. 2017) (quoting In re Greater Houston Orthopaedic 

Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (orig. proceeding) (per curiam)); 

see also Cybiz, Inc. v. Gaskill, No. 14-16-00405-CV, 2017 WL 1015560, at *2 (Tex. 

App.―Houston [14th Dist.] Mar. 14, 2017, no pet.) (mem. op.) (“A plaintiff 

misnaming itself generally is a misnomer.”). Generally, courts allow parties to 

correct a misnomer if it is not misleading. Exxon Mobil Corp., 520 S.W.3d at 594. 

This case does not involve a misnomer. A similar situation was addressed by 

the San Antonio Court of Appeals. See Barrera v. Cherer, No. 04-13-00612-CV, 

2014 WL 1713522 (Tex. App.―San Antonio Apr. 30, 2014, no pet.). (mem. op.). 

In Barrera, the member of a limited liability company brought a forcible detainer 

action in his own name even though the company owned the property. Id. at *1. 

The trial court awarded the member possession of the property. Id. On appeal, the 

defendants contended that the member lacked standing in the forcible detainer action 

because the cause of action belonged to the company. Id. The member responded 

that this was an issue of misnomer. Id. The court rejected the member’s misnomer 

argument because the member did not have standing to assert claims individually 

where the cause of action belonged solely to the company. Id. at *2. 
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Here, Dooley, as managing member, does not have individual standing to 

maintain claims against UBS for actions it may or may not have taken with regard 

to its management of the YES accounts owned by Fleur Holdings. Therefore there 

has been no misnomer because Dooley has never been the correct party to request 

the Rule 202 depositions. 

The trial court abused its discretion by granting Dooley’s petition for the Rule 

202 depositions. UBS also does not have an adequate remedy by appeal. See Akzo 

Nobel Chem., Inc., 24 S.W.3d at 920 (stating that mandamus review is available for 

orders granting petition for presuit depositions because appeal is not adequate 

remedy). 

CONCLUSION

Having held that UBS has shown that the trial court abused its discretion and 

UBS does not have an adequate remedy by appeal, we conditionally grant UBS’s 

petition for writ of mandamus and direct the trial court to vacate its January 8, 2020 

order granting Dooley’s request to take the presuit depositions of UBS’s employees. 

The writ will issue only if the trial court fails to act in accordance with this opinion. 

We also lift our stay entered on January 31, 2020.

/s/ Ken Wise

Justice

Panel consists of Justices Wise, Jewell, and Poissant.