In Re: Patrick Roughneen, M.D., Cherie Roughneen, and Patrick T. Roughneen, M.D., P.A. v. the State of Texas

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.
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”).
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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.

/Ken Molberg/
KEN MOLBERG
240191F.P05 JUSTICE

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