Opinion issued July 30, 2019




                                     In The

                               Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                               NO. 01-19-00242-CV
                           ———————————
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




                                         5
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

                                          6
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.


                                           8
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




                                          9
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

                                         11
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)

                                         12
(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,




                                          13
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.


                                         14
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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