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

LIMITED PARTNERSHIP,

RELATOR

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ORIGINAL PROCEEDING

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.

1 Respondent is the Honorable Jack Skeen, Jr., Judge of the 241st Judicial District Court in Smith County, 

Texas.
2

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 
3

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.