in Re: Brookdale Senior Living, Inc. and LTC-K2 Limited Partnership

NO. 12-22-00220-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN RE: §
BROOKDALE SENIOR
LIVING, INC. AND LTC-K2 § ORIGINAL PROCEEDING
LIMITED PARTNERSHIP,
RELATOR §

MEMORANDUM OPINION
Relators, Brookdale Senior Living, Inc. and LTC-K2 Limited Partnership, filed this
original proceeding to compel Respondent to rule on their motion for summary judgment. 1 We
deny the writ.

BACKGROUND
Real Party in Interest, CHM II, LLC, filed suit against Relators alleging causes of action
for negligence, diversion of surface waters, trespass, fraudulent concealment, gross negligence,
and injunctive relief. On February 18, 2020, Relators filed a no-evidence motion for summary
judgment arguing that CHM lacked standing and that Relators neither installed nor owned the
drainage pipe at issue. Respondent held a hearing on the motion on June 24, 2020. At the
conclusion of the hearing, Respondent advised the parties that he would read the motion further
and provide a ruling at a later date. After Respondent failed to rule, Relators filed a letter
requesting a ruling on the motion for summary judgment on August 27, 2021. Respondent has
neither responded to the letter or ruled on the motion. This mandamus proceeding followed.

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Respondent is the Honorable Jack Skeen, Jr., Judge of the 241st Judicial District Court in Smith County,
Texas.
PREREQUISITES TO MANDAMUS
Generally, mandamus relief is appropriate only to correct a clear abuse of discretion or to
compel the performance of a ministerial duty, and where the relator has no adequate remedy by
appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding); In re Prudential Ins.
Co. of America, 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). The relator bears the
burden of demonstrating that it is entitled to mandamus relief. See In re Ford Motor Co., 165
S.W.3d 315, 317 (Tex. 2005) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 837 (Tex.
1992) (orig. proceeding).

ANALYSIS
When a motion is properly filed and pending, the trial court’s act of considering the
motion and ruling on it is ministerial and mandamus may issue to compel the trial court to act.
See Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) (orig. proceeding) (per
curiam). To establish an abuse of discretion by the trial court, 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). Determining whether a reasonable
time has elapsed depends upon the circumstances in the case. See In re Blakeney, 254 S.W.3d
659, 662 (Tex. App.—Texarkana 2008, orig. proceeding).
Relators have shown that that they filed a motion for summary judgment and that
Respondent held a hearing in which he took the matter under advisement. They have further
shown that they filed a reminder request with Respondent; however, they have not shown that
they demanded performance. See In re Dong Sheng Huang, 491 S.W.3d 383, 385 (Tex. App.—
Houston [1st Dist.] 2016, orig. proceeding). Although a trial court has a duty to rule within a
reasonable time, Relators must establish that they took action to alert the trial court that it has not
yet ruled on their motion. Filing a request for a ruling is insufficient to call the matter to the
judge’s attention because a judge may be unaware of the request. Id. Instead, the party
demanding a ruling must set its request either for submission or a hearing. Id.; see also In re
UpCurve Energy Partners, LLC, 632 S.W.3d 254, 256 (Tex. App.—El Paso 2021, orig.
proceeding) (mandamus available where trial court failed to rule on motion for thirteen months
after hearing where parties repeatedly requested ruling and trial court’s administrator confirmed

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that the matter had been brought to the trial court’s attention). Because the record does not
demonstrate that Relators took the necessary steps to sufficiently call the matter to Respondent’s
attention, Relators are not entitled to mandamus relief regarding the lack of a ruling on their
motion for summary judgment.

DISPOSITION
We deny the petition for writ of mandamus.

JAMES T. WORTHEN
Chief Justice

Opinion delivered August 17, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT

AUGUST 17, 2022

NO. 12-22-00220-CV

BROOKDALE SENIOR LIVING, INC.
AND LTC-K2 LIMITED PARTNERSHIP,
Relators
V.

HON. JACK SKEEN, JR.,
Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by
Brookdale Senior Living, Inc. and LTC-K2 Limited Partnership; who are the relators in appellate
cause number 12-22-00220-CV and the defendants in trial court cause number 14-2715-C,
pending on the docket of the 241st Judicial District Court of Smith County, Texas. Said petition
for writ of mandamus having been filed herein on August 8, 2022, and the same having been
duly considered, because it is the opinion of this Court that a writ of mandamus should not
issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ
of mandamus be, and the same is, hereby denied.
It is further ORDERED that Relators, BROOKDALE SENIOR LIVING, INC.
AND LTC-K2 LIMITED PARTNERSHIP, pay all costs incurred by reason of this
proceeding.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.

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