Opinion issued July 30, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00242-CV
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IN RE TOMBALL TEXAS HOSPITAL COMPANY, LLC D/B/A TOMBALL
REGIONAL MEDICAL CENTER, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relator, Tomball Texas Hospital Company, LLC d/b/a Tomball Regional
Medical Center (“TTHC”), filed a petition for a writ of mandamus seeking to compel
the respondent district judge to rule on TTHC’s pending “Amended Objections to
Plaintiffs’ Chapter 74 Expert Report and Motion to Dismiss,” real party in interest
Dr. Adrian Santamaria’s “Motion for Interlocutory Summary Judgment,” which
TTHC joined, and TTHC’s “Amended Traditional Motion for Summary Judgment”
in the underlying proceeding.1 This Court requested a response, and the real parties
in interest filed an untimely one consenting to the relief sought by TTHC for the
respondent to rule on the motions, but not to direct respondent how to rule on them.
Because the respondent has not ruled on the motions within a reasonable time,
under the circumstances, we conditionally grant the petition.
Background
A. Procedural History in the Trial Court
On December 15, 2016, real parties in interest (“RPIs”) George Pickering II
(“Father”) and George Pickering III (“Son”) filed their original petition in Harris
County alleging negligent representation and fraud claims against RPI Dr.
Santamaria and a respondeat superior claim against relator TTHC, contending that
it was vicariously liable for Dr. Santamaria’s misrepresentations and negligence
because he was employed by TTHC. RPIs Father and Son then filed their amended
petition on January 16, 2017, raising the same negligent representation and fraud
claims against RPI Dr. Santamaria, but elaborating on the negligent representation
claim, and alleging the same respondeat superior claim against relator TTHC. The
Amended Petition conceded that these claims are all health care liability claims by
1
The underlying case is George Pickering II and George Pickering III v. Adrian
Santamaria, M.D. and Tomball Regional Medical Center, Cause No. 2016-86070,
pending in the 165th District Court of Harris County, Texas, the Honorable Ursula
A. Hall presiding.
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stating that notices of health care liability claims were served on RPI Dr. Santamaria
and relator TTHC on June 30, 2016.
Father contends that RPI Dr. Santamaria incorrectly diagnosed his Son, who
was admitted to TTHC for a stroke on January 8, 2015, as not yet brain dead, but
with a poor prognosis regarding neurological deficit, and that there was a small
window for Son to pass away peacefully by removing life support, rather than remain
in a vegetative state. Father claims that, when Son’s brother told him that he needed
to come to see Son because the hospital was going to remove Son’s life support,
Father showed up at TTHC with a gun to try to prevent the removal of Son’s life
support. Father surrendered to police and was arrested, and he was later prosecuted
and incarcerated for several months, which he contends was all proximately caused
by Dr. Santamaria’s misdiagnosis because Son was not brain dead at that time.
RPIs Father and Son served an expert report from Dr. George A. Lopez on
RPI Dr. Santamaria and relator TTHC, as required by Texas Civil Practice and
Remedies Code § 74.351, on June 7, 2017. That was timely served within 120 days
of the filing of RPI Dr. Santamaria’s answer on February 7, 2017, and relator
TTHC’s answer on February 10, 2017.
On June 13, 2017, RPI Dr. Santamaria timely filed his “Objection to
Plaintiffs’ Expert Report and Motion to Dismiss,” and relator TTHC timely filed its
similar “Objections to Plaintiffs’ Chapter 74 Expert Report and Motion to Dismiss,”
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on June 28, 2017, within 21 days of service of the expert report. Both motions to
dismiss attacked Dr. Lopez’s report as inadequate because it failed to set out the
statutorily-required applicable standard of care, any breach of a standard of care, and
the causal relationship between any acts or omissions and the injury, harm, or
damages claimed by RPIs Father and Son. On August 9, 2017, TTHC filed its
“Amended “Objections to Plaintiffs’ Chapter 74 Expert Report and Motion to
Dismiss.” Both TTHC’s amended motion and RPI Dr. Santamaria’s motion to
dismiss were set for a hearing on August 14, 2017, along with RPI Dr. Santamaria’s
“Motion for Interlocutory Summary Judgment,” which he had filed on June 13,
2017. On July 7, 2017, relator TTHC joined in RPI Dr. Santamaria’s interlocutory
summary judgment motion, which contended that RPIs Father and Son could not
prove that RPI Dr. Santamaria’s prognosis was the proximate cause of Father’s
criminal episode or, by extension, that TTHC was vicariously liable for RPI Dr.
Santamaria.
On July 24, 2017, after filing responses to the motions to dismiss and for
interlocutory summary judgment, RPIs Father and Son filed a Second Amended
Petition keeping the same three claims, but adding a retaining-control claim against
relator TTHC. On August 14, 2017, the respondent conducted an oral hearing on
relator TTHC’s amended motion to dismiss and RPI Dr. Santamaria’s motions to
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dismiss and for interlocutory summary judgment, but no ruling was made on any of
the motions.
On November 16, 2017, relator TTHC filed its “Amended Traditional Motion
for Summary Judgment” contending that all claims should be dismissed against
TTHC because it was not vicariously liable for RPI Dr. Santamaria, who was not
TTHC’s agent or otherwise under TTHC’s control at the time of the incident. After
RPIs Father and Son responded, the respondent conducted an oral hearing on relator
TTHC’s “Amended Traditional Motion for Summary Judgment” on January 25,
2018, but no ruling was made by respondent.
Since the August 14, 2017 and January 25, 2018 motion hearings, relator
TTHC has emailed or filed requests for rulings from the respondent on its motions
to dismiss and for summary judgment eleven different times from February 2018-
December 2018, but the respondent has yet to rule. These requests included emails
or calls by TTHC on February 21 and 27, March 20, April 17, May 9, and July 3,
2018, to the trial court coordinator, through filing an “Agreed First Motion for
Continuance” on March 19, 2018, and another “Motion for Continuance and Request
for Ruling” on September 24, 2018, explaining that it was impossible to prepare for
trial due to the stay of discovery imposed by the motions to dismiss, which were
pending the respondent’s rulings. The respondent did not rule on the underlying
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motions, but granted the continuances and reset the trial date two times until January
7, 2019.
After relator TTHC filed a “Second Motion for Continuance and Request for
Ruling” on December 14, 2018, the trial court coordinator emailed the parties
cancelling the pretrial conferences and requesting a “Certificate of Not Ready for
Trial.” TTHC filed its “Certificate of Not Ready for Trial” on December 17, 2018,
explaining that the parties had not exchanged pretrial items because discovery was
stayed due to their Chapter 74 motions to dismiss, which was still pending the
respondent’s rulings, and RPIs Father and Son filed a similar “Certificate of Not
Ready for Trial.” On December 18, 2018, TTHC filed a letter with the respondent
and trial court coordinator requesting an oral hearing on its “Second Motion for
Continuance and Request for Ruling” to discuss the pending dispositive motions, but
this motion has not been set for a hearing.
B. Procedural History in this Court
On April 3, 2019, relator TTHC filed this mandamus petition seeking to
compel the respondent to rule on the three pending motions. TTHC claims that the
respondent has a legal duty to rule on these motions and that it has notified
respondent that it requested rulings on its “Amended Objections to Plaintiffs’
Chapter 74 Expert Report and Motion to Dismiss” and RPI Dr. Santamaria’s
“Motion for Interlocutory Summary Judgment,” which TTHC joined and which have
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been pending for more than nineteen months, and TTHC’s “Amended Traditional
Motion for Summary Judgment,” which has been pending for more than fourteen
months, and that the respondent had abused her discretion by failing to rule on them
after a reasonable time period. TTHC claims that it has been harmed by incurring
unnecessary litigation expenses due to respondent’s failure to rule, and that it lacks
an adequate remedy because no interlocutory appeal may be filed until an order is
signed. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9)–(10).
This Court’s April 9, 2019 Order requested and received one response to the
petition. On June 12, 2019, the RPIs Father and Son untimely filed a response
consenting to the relief sought by TTHC for the respondent to rule on the motions,
but not to direct respondent how to rule on them.
Standard of Review
Mandamus is an extraordinary remedy, available only when the relator can
show both that: (1) the trial court clearly abused its discretion or violated a duty
imposed by law; and (2) there is no adequate remedy by way of appeal. In re Ford
Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding); Walker v. Packer,
827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).
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Analysis
A. Clear Abuse of Discretion
When a motion is properly filed and pending before a trial court, the act of
giving consideration to and ruling on that motion is a ministerial act. See Barnes v.
State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992) (orig.
proceeding) (denying mandamus petitions to compel trial court to conduct hearings).
A trial court has a ministerial duty to consider and rule on motions properly filed and
pending before it, and mandamus may issue to compel the trial court to act. In re
Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). A
trial court is required to rule on a motion within a reasonable time after the motion
has been submitted to the court for a ruling or a ruling on the motion has been
requested. In re Foster, 503 S.W.3d 606, 607 (Tex. App.—Houston [14th Dist.]
2016, orig. proceeding) (per curiam).
To establish that the trial court abused its discretion by failing to rule on a
properly pending motion, the relator must establish that the trial court: (1) had a
legal duty to perform a nondiscretionary act; (2) was asked to perform the act; and
(3) failed or refused to do so within a reasonable time. See O’Connor v. First Court
of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding); see also In re Mesa
Petroleum Partners, L.P., 538 S.W.3d 153, 156 (Tex. App.—El Paso 2017, orig.
proceeding); In re Pollet, 281 S.W.3d 532, 534 (Tex. App.—El Paso 2008, orig.
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proceeding). Whether a reasonable time for the trial court to act has lapsed depends
on the circumstances of the case. Blakeney, 254 S.W.3d at 662. “The test for
determining what time period is reasonable is not subject to exact formulation, and
no ‘bright line’ separates a reasonable time from an unreasonable one.” In re
Greater McAllen Star Props., Inc., 444 S.W.3d 743, 748 (Tex. App.—Corpus
Christi–Edinburg 2014, orig. proceeding) (citations omitted).
The Texas Medical Liability Act defines a health care liability claim as any
cause of action against a health care provider or physician for treatment or lack of
treatment, which results in injury to the claimant, whether the claim sounds in tort
or contract. See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13); Scott v. Weems, 575
S.W.3d 357, 363 (Tex. 2019). Here, RPIs Father and Son’s Second Amended
Petition conceded that their respondeat superior and retaining-control claims against
relator TTHC, and negligent representation and fraud claims against RPI Dr.
Santamaria, were health care liability claims. See also In re McAllen Med. Ctr., Inc.,
275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding) (holding fraud and
misrepresentation claims against physician and, through vicarious liability, his
hospital, were health care liability claims); see also Scott, 575 S.W.3d at 364
(holding record-falsification claim against nurse was health care liability claim
because it arose from care victim received from that nurse, and plaintiff alleged that
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nurse had proximately caused his injuries—being indicted and incarcerated for
shooting victim).
Because RPIs Father and Son alleged health care liability claims, these
required service of an adequate expert report, which they timely served with Dr.
Lopez’s report on June 7, 2017. See TEX. CIV. PRAC. & REM. CODE § 74.351(a);
Scott, 575 S.W.3d at 360–61 (Texas Medical Liability Act requires claimant
pursuing health care liability claim to timely serve “adequate expert report within
120 days after the answer is filed, absent an extension, and “[f]ailure to do so requires
dismissal with prejudice.”). However, Dr. Lopez’s expert report only listed the
standards of care for RPI Dr. Santamaria, such as “No documentation of an
independent review of the radiological films,” and did not list any for relator TTHC.
See McAllen Med. Ctr., 275 S.W.3d at 463 (“The standard of care for a hospital is
what an ordinarily prudent hospital would do under the same or similar
circumstances.”) (citation omitted). Also, Dr. Lopez’s expert report merely repeated
the same facts from the original petition and nothing in it suggested that relator
TTHC “controlled the details of [RPI Dr. Santamaria’s] medical tasks (a requirement
for hospital liability). . . .” McAllen Med. Ctr., 275 S.W.3d at 464. Thus, because
Dr. Lopez’s expert report was inadequate, the respondent had a legal duty to perform
a nondiscretionary act to rule on the motions to dismiss. See id. at 464; Pollet, 281
S.W.3d at 534.
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Moreover, the record shows that relator TTHC’s “Amended Objections to
Plaintiffs’ Chapter 74 Expert Report and Motion to Dismiss,” filed on August 9,
2017, and RPI Dr. Santamaria’s “Motion for Interlocutory Summary Judgment,”
filed on June 13, 2017, which TTHC joined, has been pending for more than nineteen
months, and TTHC’s “Amended Traditional Motion for Summary Judgment,” filed
on November 16, 2017, has been pending for more than fourteen months, at the time
of filing this mandamus petition. Despite several requests for a ruling, the
respondent has yet to rule on any of the three motions, and the record shows no
reason for respondent’s delay. Relator TTHC claims that the respondent’s delay in
ruling is causing them substantial harm because they had to incur unnecessary
litigation expenses.
We take judicial notice that our Court is granting mandamus relief in four
different petitions against the same respondent, the Honorable Ursula Hall, for
failing to rule on pending Chapter 74 motions to dismiss or pleas to the jurisdiction
within a reasonable time after they were submitted. See In Baylor College of
Medicine, No. 01-19-00105-CV (Tex. App.—Houston [1st Dist.] July 30, 2019,
orig. proceeding) (granting mandamus relief to direct Judge Ursula Hall to rule on
relator’s Chapter 74 motion to dismiss pending over ten months); In Texas
Children’s Hosp., No. 01-19-00142-CV (Tex. App.—Houston [1st Dist.] July 30,
2019, orig. proceeding) (granting mandamus relief to direct Judge Ursula Hall to
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rule on relator’s Chapter 74 motion to dismiss pending over eleven months); In re
The Univ. of Tex. MD Anderson Cancer Ctr., No. 01-19-00201-CV (Tex. App.—
Houston [1st Dist.] July 30, 2019, orig. proceeding) (granting mandamus relief to
direct Judge Ursula Hall to rule on relator’s plea to jurisdiction pending over one
year); In re The Univ. of Tex. MD Anderson Cancer Ctr., No. 01-19-00202-CV (Tex.
App.—Houston [1st Dist.] July 30, 2019, orig. proceeding) (granting mandamus
relief to direct Judge Ursula Hall to rule on relator’s Chapter 74 motion to dismiss
pending over one year).
We also take judicial notice that our sister court has granted mandamus relief
in four separate petitions against the same respondent for failing to rule on pending
pleas/motions within a reasonable time after they were submitted for shorter periods
of time than alleged in these petitions. See In re ABC Assembly LLC, No. 14-19-
00419-CV, 2019 WL 2517865, at *2 (Tex. App.—Houston [14th Dist.] June 18,
2019, orig. proceeding) (per curiam) (mem. op.) (granting mandamus relief to direct
Judge Ursula Hall to rule on relator’s motion for entry of judgment pending about
eight months); In re Harris Cty. Appraisal Dist., No. 14-19-00078-CV, 2019 WL
1716274, at *3–4 (Tex. App.—Houston [14th Dist.] Apr. 18, 2019, orig. proceeding)
(granting mandamus relief to direct Judge Ursula Hall to rule on relator’s plea to
jurisdiction pending over six months); In re Coffey, No. 14-18-00124-CV, 2018 WL
1627592, at *2 (Tex. App.—Houston [14th Dist.] Apr. 5, 2018, orig. proceeding)
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(granting mandamus relief to direct Judge Ursula Hall to rule on relator’s motion to
confirm arbitration award pending over four months); In re PDVSA Servs., Inc., No.
14-17-00824-CV, 2017 WL 6459227, at *4 (Tex. App.—Houston [14th Dist.] Dec.
19, 2017, orig. proceeding) (granting mandamus relief, in part, to direct Judge Ursula
Hall to rule on relator’s motion to submit appeal, of order of appraisal review board
to nonbinding arbitration, pending over eight months).
Accordingly, we conclude, under these circumstances where the motions are
opposed, but have been pending over fourteen and nineteen months, respectively,
and it appears that the delay in ruling is prejudicing relator, that the respondent has
abused her discretion. For these reasons, we hold that the respondent failed to
perform her ministerial duty to rule on the Chapter 74 motions to dismiss and
summary judgment motions within a reasonable time after they were submitted. See
Foster, 503 S.W.3d at 607.
B. Adequacy of Appellate Remedy
Relief by writ of mandamus is warranted in cases in which the very act of
proceeding to trial—regardless of the outcome—would defeat the substantive right
involved. McAllen Med. Ctr., 275 S.W.3d at 465. “The Texas Medical Liability Act
(Act) requires a claimant pursuing a ‘health care liability claim’ to timely serve an
adequate expert report” within 120 days after the answer is filed, absent an extension,
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and “[f]ailure to do so requires dismissal with prejudice.” Scott, 575 S.W.3d at 360–
61.
Until the expert report is served, all discovery is stayed in a health care
liability claim. See TEX. CIV. PRAC. & REM. CODE § 74.351(s). The Legislature
intended this procedure to preclude extensive discovery and prolonged litigation in
frivolous cases. In re Roberts, 255 S.W.3d 640, 641 (Tex. 2008) (per curiam)
(discussing legislative intent behind enactment of former Article 4590i, predecessor
to Chapter 74 of Texas Civil Practice and Remedies Code); see also Pollet, 281
S.W.3d at 535. An appeal is not an adequate remedy when a trial court’s refusal to
rule on a motion, and therefore enforce a statutory provision, would frustrate the
Legislature’s intent. Roberts, 255 S.W.3d at 641; see also Pollet, 281 S.W.3d at
535. Thus, TTHC lacks an adequate appellate remedy for the respondent’s failure
to rule on its Chapter 74 motion to dismiss, and the related summary judgment
motions, within a reasonable time. See Pollet, 281 S.W.3d at 535 (granting
mandamus relief after holding that relator had no adequate remedy for trial court’s
failure to rule on Chapter 74 motion to dismiss within reasonable time period).
CONCLUSION
Accordingly, we conditionally grant relator TTHC’s mandamus petition and
direct the respondent trial court to rule on TTHC’s pending “Amended Objections
to Plaintiffs’ Chapter 74 Expert Report and Motion to Dismiss,” RPI Dr.
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Santamaria’s “Motion for Interlocutory Summary Judgment,” which TTHC joined,
and TTHC’s “Amended Traditional Motion for Summary Judgment,” before ruling
on other motions. We express no opinion as to the merits of any of the issues raised
in the motions. See Harris Cty. Appraisal Dist., 2019 WL 1716274, at *4 (citing In
re ReadyOne Indus., Inc., 463 S.W.3d 623, 624 (Tex. App.—El Paso 2015, orig.
proceeding) (stating that while appellate court has jurisdiction to direct trial court to
exercise its discretion, it is not permitted to tell trial court how to rule on pending
motion)). We are confident that the trial court will comply, and our writ will issue
only if it does not comply within 30 days of the date of this opinion.
PER CURIAM
Panel consists of Justices Keyes, Kelly, and Goodman.
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in Re Tomball Texas Hospital Company, LLC D/B/A Tomball Regional Medical Center
Combined Opinion