CONDITIONALLY GRANT and Opinion Filed May 10, 2024 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-24-00191-CV 

IN RE PATRICK ROUGHNEEN, M.D., CHERIE ROUGHNEEN, AND 

PATRICK T. ROUGHNEEN, M.D., P.A., Relators 

Original Proceeding from the 298th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-16-14053 

MEMORANDUM OPINION 

Before Chief Justice Burns, Justice Molberg, and Justice Breedlove 

Opinion by Justice Molberg 

The underlying claims in this mandamus proceeding are set for trial May 20, 

2024. Pending before us is the amended petition for writ of mandamus filed in 

February 20241

 by relators Patrick Roughneen, M.D., Cherie Roughneen, and 

Patrick T. Roughneen, M.D., P.A., plaintiffs in the underlying proceeding. In their 

petition, relators sought to compel the respondent trial court judge to rule on four 

motions that had been pending for more than twenty-four months. In April 2024, 

1

 On the same day as their original filing, relators filed an amended mandamus petition concerning the 

same four motions. Unless otherwise noted, our references to relators’ petition throughout our 

memorandum opinion refers to their amended mandamus petition. 
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because it appeared the trial court had ruled on at least some of those motions, we 

issued an order questioning our jurisdiction. Per our order, relators filed a letter brief 

informing us that, because of the trial court’s April 2, 2024 summary judgment order, 

this mandamus proceeding is now moot as to two of the four motions addressed in 

their petition but remains ripe as to the two others. For the reasons below, we 

conditionally grant the petition as to relators’ “Emergency Motion to Compel” and 

“Motion for Preliminary Finding Under Texas Occupations Code § 160.007(b)” and 

deny as moot the amended petition as to the other two motions.2

BACKGROUND

In their underlying lawsuit, relators allege real parties in interest3

 breached a 

settlement agreement from an earlier dispute and engaged in various tortious acts 

against them. Relators assert claims for breach of contract and various torts, 

including tortious interference with an existing contract, tortious interference with 

prospective business relations, restraint of trade, and civil conspiracy. Relators 

collectively describe their tort claims against real parties in interest as 

“anticompetitive claims.” 

2

 Relators indicated the other two motions were resolved by the trial court’s April 2, 2024 summary 

judgment order. 

3

 “Real parties in interest” collectively refers to Baylor Scott & White Health, Baylor Medical Center 

at Grapevine (“Baylor Grapevine”), Health Texas Provider Network, Michael Mack, M.D., Ronald Jensen, 

D.O., William Ryan, M.D., David Brown, M.D., Trent Pettijohn, M.D., Kevin Theleman, M.D., Jose 

Escobar, M.D., and Texas Heart Hospital of the Southwest, L.L.P. d/b/a The Heart Hospital Baylor Plano 

(“Heart Hospital”). 
 –3– 

Relators served certain written discovery requests to real parties in interest in 

connection with their tort claims. Some of the real parties in interest refused to 

answer some or all discovery propounded on the basis of a peer-review privilege. 

Some also refused to answer questions during depositions based on the same 

assertion of privilege. Others refused to even present for deposition on the basis of 

the privilege. 

Relators, in turn, moved to compel and asked the trial court to make a 

preliminary finding under Texas Occupations Code § 160.007(b) that the subjects of 

inquiry were relevant to their anticompetitive claims and, therefore, were not 

confidential or subject to the peer-review privilege.4

 In other words, the motion to 

compel asked the trial court to overrule real parties in interest’s assertion of privilege 

and compel them to respond to the discovery to which they had refused to answer, 

although relators’ motion only referenced depositions. Soon thereafter, relators filed 

a motion for preliminary finding under § 160.007(b), which largely overlapped with 

the motion to compel. 

As originally filed and amended, in their mandamus petition, relators sought 

to compel the trial judge to rule on four motions: (1) “Plaintiffs’ Motion for Partial 

Summary Judgment Against Defendants Mack, Ryan, Brown, Theleman, and 

4 See TEX. OCC.CODE § 160.007(b) (“If a judge makes a preliminary finding that a proceeding or record 

of a medical peer review committee or a communication made to the committee is relevant to an 

anticompetitive action, or to a civil rights proceeding brought under 42 U.S.C. Section 1983, the proceeding, 

record, or communication is not confidential to the extent it is considered relevant.”). 
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Escobar” filed March 1, 2022; (2) “Plaintiff’s Emergency Motion to Compel” filed 

March 17, 2022; (3) “Plaintiff’s Motion for Preliminary Finding Under Texas 

Occupations Code § 160.007(b)” filed April 27, 2022; and (4) Defendants Michael 

Mack, M.D., William Ryan, M.D., David Brown, M.D., Kevin Theleman, M.D. and 

Jose Escobar, M.D.’s No Evidence and Traditional Motion for Summary Judgment 

on Plaintiffs’ Settlement Agreement Breach of Contract Claims” filed April 29, 

2022. 

In their letter brief, relators maintain that, because of the trial court’s April 2, 

2024 summary judgment order, this mandamus proceeding is now moot as to the 

first and fourth of the four above-listed motions but remains ripe as to the second 

and third of the above-listed motions, which remain pending. 

We requested a response to the petition, but neither respondent nor real parties 

filed one. Nor did either respond to relators’ letter brief. 

According to the mandamus record before us, the second and third of the 

above-listed motions were first heard on March 23, 2022, and June 9, 2022, 

respectively. The trial court has not yet ruled, and both motions have now been 

pending more than seven hundred and forty days. 

STANDARD OF REVIEW

“Mandamus is an extraordinary remedy, available only when the relator can 

show the trial judge clearly abused its discretion and there is no adequate remedy by 

way of appeal.” In re Reiss, No. 05-22-00575-CV, 2022 WL 2236089, at *2 (Tex. 
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App.—Dallas June 21, 2022, orig. proceeding) (first citing In re Mo. Pac. R.R. Co., 

998 S.W.2d 212, 215 (Tex. 1999) (orig. proceeding); and then citing In re Tex. Am. 

Express, Inc., 190 S.W.3d 720, 723 (Tex. App.—Dallas 2005, orig. proceeding)). A 

trial judge abuses her discretion if she reaches a decision that is so arbitrary and 

unreasonable that it amounts to a clear and prejudicial error of law or if it clearly 

fails to correctly analyze or apply the law. Id. (citing In re Olshan Found. Repair 

Co., L.L.C., 277 S.W.3d 124, 129 (Tex. App.—Dallas 2009, orig. proceeding)). 

ANALYSIS

The act of giving consideration to and ruling on a motion that is properly filed 

and pending before a trial court is a ministerial act, and mandamus may issue to 

compel the trial judge to act. In re Z Resorts Mgmt., LLC, No. 05-23-00425-CV, 

2023 WL 5843583, at *4 (Tex. App.—Dallas Sept. 11, 2023, orig. proceeding) 

(mem. op.); see In re Greater McAllen Star Props., Inc., 444 S.W.3d 743, 748 (Tex. 

App.—Corpus Christi–Edinburg 2014, orig. proceeding); Barnes v. State, 832 

S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). 

To obtain mandamus relief for a trial judge’s refusal to rule on a motion, the 

relator must establish the motion was properly filed and has been pending for a 

reasonable time; the relator requested a ruling on the motion; and the trial judge 

failed or refused to rule within a reasonable time. In re Z Resorts Mgmt., LLC, 2023 

WL 5843583, at *3; see In re Valle, No. 05-24-00004-CV, 2024 WL 358114, at *1 
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(Tex. App.—Dallas Jan. 31, 2024, orig. proceeding) (mem. op.); see also Greater 

McAllen Star Props., Inc., 444 S.W.3d at 748.5

 

A relator lacks an adequate remedy by appeal from a trial court’s refusal to 

rule on a pending motion. Z Resorts Mgmt., 2023 WL 5843583, at *4. 

“While trial judges have broad discretion to manage their dockets and conduct 

business in their courtrooms, this discretion is not unlimited.” In re Reiss, 2022 WL 

2236089, at *2 (citing Clanton v. Clark, 639 S.W.2d 929, 930–31 (Tex. 1982)). Trial 

courts also have a duty to tend to and schedule cases so as to expeditiously dispose 

of them. King Fisher Marine Serv., L.P. v. Tamez, 443 S.W.3d 838, 843 (Tex. 2014); 

Clanton, 639 S.W.2d at 931. 

In this case, the current trial setting is for May 20, 2024—less than one month 

away. The first and fourth of the motions that are the subject of relators’ petition 

have now been ruled upon, and relators’ petition is now moot as to those two 

motions. In contrast, the second and third motions remain pending, and they have 

both been pending for more than seven hundred and forty days. 

5

 A trial judge must rule “within a reasonable time” on motions that are properly filed, considering all 

surrounding circumstances. In re Foster, 503 S.W.3d 606, 607 (Tex. App.—Houston [14th Dist.] 2016, 

orig. proceeding); In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). 

Whether a reasonable period of time has elapsed depends on the circumstances of the case. Id. 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 period from an unreasonable one.” Greater McAllen Star Props., Inc., 444 

S.W.3d at 748 (quoting Blakeney, 254 S.W.3d at 662). We examine a “myriad” of criteria, including the 

trial court’s actual knowledge of the motion, its overt refusal to act, the state of the court’s docket, and the 

existence of other judicial and administrative matters which must be addressed first. Id. at 748–49. 
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We conclude the second and third of the motions that are the subject of 

relators’ petition were properly filed and have been pending a reasonable time, 

relators requested rulings on the motions, and the trial judge has failed to rule within 

a reasonable time. Having examined and considered relators’ petition for writ of 

mandamus and the applicable law, this Court is of the opinion that relators have met 

their burden to obtain relief. 

Accordingly, without addressing the merits of the two motions that remain 

pending, we conditionally grant the petition for writ of mandamus and direct the trial 

judge to (1) rule on “Plaintiff’s Emergency Motion to Compel” filed March 17, 

2022, and “Plaintiff’s Motion for Preliminary Finding Under Texas Occupations 

Code § 160.007(b)” filed April 27, 2022, within five days of the date of this opinion 

and (2) file with the Clerk of the Court, within six days of the date of this Court’s 

opinion and order, a copy of the trial court’s orders evidencing such compliance. 

The writ will issue only if the trial judge fails to act in accordance with this opinion. 

240191F.P05 

/Ken Molberg/

KEN MOLBERG 

JUSTICE