## NO. 12

- 22

- 00220

- CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

IN RE: BROOKDALE SENIOR LIVIN G

, INC. AND LTC

- K2 LIMITED PARTNERSHIP , RELATOR §
§
§ ORIGINAL PROCEEDING

MEMORANDUM OPINION
Relators , Brookdale Senior Living, I nc. 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.

B ACKGROUND Real Party in Interest, CHM II, LLC , filed suit against Relators alleging causes of acti on f or negligence, diversion of surface waters, trespass, f raudulent 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 ne ithe r installed nor owned the drainage pipe at issue. Resp ondent held a hearing on the motion on June 24, 2020. At the

con clusion of the hearing, Respondent advised the parties that he would read the motion further and provide a ruling at a later date. Afte r Respondent failed to rule, Relators filed a letter

re questing 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.

1 Respondent is the Honorable Jack Skeen, Jr., Judge of the 241st Judicial District Court in Smith County, Texas.2 P REREQUISITES TO M ANDAMUS Generally, mandamus relief is appropriate only to correct a clear abuse of discretion or to compel the performan ce 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) (o rig. proceeding); In re Prudential Ins.
Co. o f America , 148 S.W.3d 124, 135

- 36 (Tex. 2004) (orig. proceeding). The relator be ars 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) (or ig. proceeding); Walker v. Packer , 827 S.W. 2d 833, 837 (Tex. 1992) (orig. proceeding).

A NALYSIS 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 comp el t he 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 pe rfor m a nondiscretionary act; (2) was asked to pe rform 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 h as e lapsed depends upon the circumstances in the ca se. See In re Blakeney , 254 S.W.3d 659, 662 (Tex. App.

— Texarkana 2008, ori g. proceeding). Relators have shown that that they filed a motion for summary judgment and that Respondent held a hearing in whic h he took the matter under advisement. They have further shown that they filed a reminder request with Respondent ; h owever, they have not shown that they demanded performance. See In re Dong Sheng Huang , 491 S.W.3d 383, 385 (Tex. App.

— Houston [1st D ist.] 2016, orig. proceeding). Although a trial court has a duty to rule within a reasonable time, Relators must establis h that they took action to alert the trial court that it ha s not yet ruled on their motion. Filing a request for a ruling is insufficie nt t o call the matter to the judge’s attention because a judge may be unaw are of the request. Id. Instead, the party
dem anding a ruling must set its request either for submission or a h earing. Id. ; see also In re Up C urve Energy Partners, L L C , 632 S.W .3d 254 , 256 (Tex. App.

— El Paso 2021, orig. proceeding) (mandamus available where trial court failed to rule on moti on for thirteen months after hearing where parties repeatedly requested rul ing and trial court ’ s administrator confirmed3 that the matter had been b rought 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 , Relator s are not entitled to mandamus r elief regarding the lack of a r uling o n their motion for summary judgment.

D ISPOSITION
We deny the petition for writ of mandamus.

J AMES T. W ORTHEN Chief Justice

Opinion delivered August 17 , 2022. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.4 

## 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 , Relator s V.

HON. JACK SKEEN, JR. , Respondent

O RIGINA L P ROCEEDING

ON THIS DA Y came t o be hea rd the petition for writ of mandamus filed by Brookdale Senior Living, Inc. and LTC

- K2 Limited Partnership ; who are the relator s in appellate cause number 12

- 22

- 00220

- CV and the defendants in trial court c ause number 14

- 2715

- C , pending on the docket of the 241st Judicial Dis trict Court of Smith County , Tex as. 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 issu e , it is therefore CONSIDE RED, 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 cos ts incurred by reason of this procee di ng. James T. Worthen, Chi ef Justice

. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.