IN RE THE UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER, Relator
Original Proceeding on Petition for Writ of Mandamus
consists of Chief Justice Radack and Justices Higley and
the University of Texas MD Anderson Cancer Center (MDA) seeks
a writ of mandamus to compel the trial court to rule on
MDA's motion to dismiss with prejudice for failure to
serve an adequate expert report. Although a response to the
petition was requested, none was filed. We conditionally
grant the petition.
underlying case is a health care liability claim brought by
real party in interest, James Stewart. Stewart filed his
original petition and furnished MDA with a copy of
Stewart's expert report. MDA filed an objection under
Section 74.351 to the expert report, claiming the expert
report was deficient. MDA also filed a motion to dismiss with
prejudice Stewart's claims based on a deficient expert
report, under Section 74.351, and a claim of sovereign
immunity, under Section 101.106. See Tex. Civ. Prac.
& Rem. Code Ann. §§ 74.351(b), 101.106(e). The
trial court signed an order, stating that it had considered
MDA's objection and motions to dismiss and concluded that
the report was statutorily deficient, and it granted Stewart
a 30-day extension under Section 74.351(c) to cure the
report. The trial court denied MDA's motion to dismiss
under Section 101.106.
appealed the interlocutory order denying its motion to
dismiss based on sovereign immunity and, while that appeal
was pending, Stewart filed an amended expert report in
November 2016. In December 2016, MDA moved to dismiss based
on a claim that the amended expert report was deficient. MDA
later filed an unopposed motion for a ruling on its motion to
September 28, 2018, the trial court signed an order asserting
that all motions filed during the Section 51.014(b) stay were
either void or voidable, and directed the parties to file
additional briefing concerning this issue. The parties
submitted their briefs, but the trial court has never ruled
on MDA's motion to dismiss.
Duty to Rule
contends that the trial court abused its discretion by not
ruling on the motion to dismiss. To be entitled to mandamus
relief, a petitioner must show both that the trial court
abused its discretion and that there is no adequate remedy by
appeal. In re Prudential Ins. Co., 148 S.W.3d 124,
135 (Tex. 2004).
trial judge has a legal, nondiscretionary duty to consider
and rule on properly filed motions within a reasonable
time." In re Ramirez, 994 S.W.2d 682, 683 (Tex.
App.-San Antonio 1998, orig. proceeding) (citing In re
Henry, No. 04-05-00588-CV, 2005 WL 2085242, at *1 (Tex.
App.-San Antonio Aug. 31, 2005, orig. proceeding) (per
curiam) (mem. op.)). To show an abuse of discretion in
refusing to rule, the relator must show that (1) the trial
court had a "legal duty to perform a nondiscretionary
act;" (2) the relator made a demand for performance; and
(3) the trial court refused the request. Barnes v.
State, 832 S.W.2d 424, 426 (Tex. App.-Houston [1st
Dist.] 1992, orig. proceeding). If the record shows that the
motion was properly filed and brought to the trial
court's attention, and a reasonable time has elapsed, an
appellate court may grant mandamus relief to compel the trial
judge to act. See In re Foster, 503 S.W.3d 606, 607
(Tex. App.-Houston [14th Dist.] 2016, orig. proceeding);
Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.
App.-San Antonio 1997, orig. proceeding).
a reasonable time for ruling has elapsed is dependent upon
the circumstances in the particular case. See In re
Salazar, 134 S.W.3d 357, 358 (Tex. App.-Waco 2003, orig.
proceeding); Barnes, 832 S.W.2d at 426. We may
consider the trial court's actual knowledge of the
motion, the trial court's docket and the court's
inherent power to control its docket, an overt refusal to
rule, and any other judicial or administrative matters.
See In re Chavez, 62 S.W.3d 225, 228-29 (Tex.
App.-Amarillo 2001, orig. proceeding).
After Disposition of the Interlocutory Appeal, the Trial