Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 4 Dallas County,
Texas Trial Court Cause No. CC-13-06774-D
Justices Lang, Myers, and Stoddart.
DOUGLAS S. LANG JUSTICE.
opinion, we must decide two issues of first impression.
First, we address whether the filing of a petition pursuant
to Texas Rule of Civil Procedure 202 to
"investigate" a "potential" health care
liability claim triggers the requirement of a plaintiff to
file an expert report pursuant to section 74.351(a) of the
Texas Civil Practice and Remedies Code. See Tex. R.
Civ. P. 202; Tex. Civ. Prac. & Rem. Code Ann. §
74.351(a) (West Supp. 2016). We conclude, on this record, it
we must decide if, after the dismissal with prejudice of a
health care liability claim pursuant to Texas Rule of Civil
Procedure 91a and the reversal on appeal of that dismissal,
the 120-day time period for filing an expert report pursuant
to section 74.351(a) is tolled for the period during which
the case was on appeal. See Tex. R. Civ. P. 91a;
Civ. Prac. & Rem. § 74.351(a). We conclude, on this
record, that the 120-day time period is tolled.
Drake, proceeding pro se, appeals the trial court's order
dismissing this health care liability lawsuit for failure to
provide an expert report and awarding attorney's fees to
appellees pursuant to section 74.351. See Civ. Prac.
& Rem. § 74.351. In eight issues on appeal, Drake
contends the trial court erred by denying Drake's motions
for continuances, to reinstate, and for new trial and
requests to participate in hearings by telephone; awarding
attorney's fees to appellees in the amount of $15,
374.50; awarding attorney's fees against a party
"declared as an indigent"; concluding Drake failed
to comply with section 74.351(a); violating Drake's due
process rights; and not recusing the trial court
decide (1) in favor of Drake on his fourth issue and portions
of his second, seventh, and eighth issues, and (2) against
him on his fifth and sixth issues. We need not address
Drake's first and third issues or the remaining portions
of his second and eighth issues.
reverse the trial court's order granting appellees'
motion to dismiss for failure to provide an expert report and
awarding attorney's fees to appellees pursuant to section
74.351, render judgment denying appellees' motion to
dismiss for failure to provide an expert report, and remand
this case to the trial court for further proceedings
consistent with this opinion.
FACTUAL AND PROCEDURAL CONTEXT
December 19, 2011, Drake received dental treatment from
appellee Stephen Walker, D.D.S., at a dental clinic owned by
appellee Marshal Goldberg, D.D.S. Ten days later, on December
29, 2011, Drake filed a pro se "Petition for Pre-Suit
Investigatory Depositions Under T.R.C.P. 202.1(b), "
see Tex. R. Civ. P. 202.1(b), which proceeding was
assigned trial court cause number CC-11-08852-D (the
"Rule 202 proceeding"). Appellees, who were the
named "Respondents" in that petition, jointly filed
a January 19, 2012 original answer in that proceeding. On
January 22, 2012, Drake nonsuited that proceeding.
filed this case, trial court cause number CC-13-06774-D,
against appellees on December 3, 2013. In his last-filed
petition at the time of the order complained of, Drake
asserted causes of action against appellees for "medical
negligence" and deceptive trade practices pertaining to
the dental care provided by appellees. Goldberg and Walker
filed separate general denial answers dated, respectively,
December 30, 2013, and January 8, 2014. Further, appellees
jointly filed a February 13, 2014 "Motion to Dismiss
Baseless Causes of Action" pursuant to Texas Rule of
Civil Procedure 91a, see Tex. R. Civ. P. 91a, and a
March 11, 2014 "Motion to Dismiss With Prejudice for
Failure to Provide Expert Report" pursuant to section
74.351. In their motion to dismiss for failure to provide an
expert report, appellees stated in part,
In this case, . . . the 120 day deadline [for providing an
expert report] began to run from the date Plaintiff filed his
Petition for Rule 202 Pre-Suit Depositions (here December 29,
2011). The 120 day deadline was then tolled from the time
that Plaintiff non-suited the Rule 202 Petition and the case
was dismissed without prejudice (January 22, 2012) until he
refiled this case on December 3, 2013. . . .
As the original claim was filed on December 29, 2011, tolled
between January 22, 2012 and December 3, 2013, and refiled on
December 3, 2013, Plaintiff was required by statute to
provide expert reports by March 10, 2014.
Plaintiff did not serve on Defendants or Defendants'
counsel an expert report with a curriculum vitae of the
expert listed in the report. Thus, Plaintiff did not comply
with the requirements of Chapter 74.
trial court signed an order dated March 19, 2014, granting
appellees' motion to dismiss baseless causes of action
with prejudice pursuant to rule 91a. Additionally, (1) the
trial court judge, Judge Ken Tapscott, denied a motion by
Drake to recuse him, and (2) Regional Administrative Judge
Mary Murphy denied several motions by Drake to recuse Judge
Tonya Parker, who was assigned to hear Drake's recusal
motion respecting Judge Tapscott. Drake appealed those
rulings in this Court. See Drake v. Walker, No.
05-14-00355-CV, 2015 WL 2160565 (Tex. App.-Dallas May 8,
2015, no pet.) (mem. op.). This Court affirmed the denial of
the recusals requested by Drake and the dismissal of his
claim for deceptive trade practices, but concluded the trial
court erred by granting appellees' rule 91a motion to
dismiss Drake's negligence claim. Accordingly, this Court
reversed, in part, the trial court's March 19, 2014 order
and remanded this case to the trial court.
14, 2015, Drake served an expert report on appellees.
Additionally, Drake filed a May 26, 2015 "emergency
motion" to compel discovery. Appellees filed objections
to the sufficiency of Drake's expert report on June 1,
2015, asserting the report was "not a good faith effort
as to defendants" and should be stricken.
mandate in the appeal described above was issued on July 20,
2015. On July 27, 2015, the trial court granted a motion by
appellees for substitution of counsel. Also, on that same
date, the trial court held a hearing on appellees' March
11, 2014 motion to dismiss. At that hearing, the trial court
denied a request by Drake that his motion to compel discovery
be heard before appellees' motion to dismiss. Further, as
to the motion to dismiss, the trial court stated to Drake,
"This motion to dismiss is based on one issue. Okay? It
is the failure to file an expert report and serve them with
an expert report within 120 days of the filing of a
healthcare liability claim." Appellees contended section
74.351(a)'s 120-day deadline for serving an expert report
was triggered by the filing of Drake's Rule 202
proceeding and therefore Drake's expert report was not
timely served. Drake argued his expert report was timely
served because (1) a Rule 202 petition does not trigger the
120-day statutory deadline and (2) the 120-day time period
was triggered by the filing of appellees' answers in this
case on December 30, 2013, and January 8, 2014, and
"stopped with the dismissal and during the time the
matter was on appeal."
31, 2015, Drake filed a motion to recuse Judges Tapscott and
Murphy. In that motion, Drake stated in part,
Tapscott is trying to dismiss the Plaintiff's case to
assist the "white" doctors and their
"white" attorneys. Tapscott has been abusive,
unfair, and discriminative toward the Plaintiff. The
defendant's attorneys do not argue that the Plaintiff did
not file his expert report before the mandate was
issued-thus, an impartial judge would grant the
Plaintiff's motion to compel [discovery]. But racism will
not allow Tapscott to do so. . . . This type of behavior
demands that Tapscott be recused. . . . .
. . . Plaintiff also believes that Tapscott has conspired
with the white attorneys and their clients against the
Plaintiff. Plaintiff believes that Tapscott and Mary Murphy
is [sic] racially motivated against him.
Drake complained Judge Tapscott (1) "had concluded that
the Plaintiff was incapable of proving his case, " (2)
"allowed the defense-who wasn't properly before the
Court [sic] to continue to argue the case, " and (3)
"is actively preventing the Plaintiff from conducting
discovery, because this is what the defense desires."
order dated August 3, 2015, Judge Tapscott declined to recuse
himself. Subsequently, Drake filed a September 17, 2015
amended motion to recuse Judge Tapscott that was
substantially similar to the July 31, 2015 motion to recuse
described above. Drake's amended motion to recuse was
denied by Judge Murphy on November 4, 2015.
November 6, 2015, Drake filed a "second" motion to
recuse Judges Tapscott and Murphy, which motion was
substantially similar to Drake's motions to recuse
described above. Further, Drake contended that an additional
reason for the recusal of Judge Tapscott is that "the
judge is a defendant in a lawsuit with the Plaintiff."
In an affidavit attached to that motion, Drake stated in
The judge in the above styled cause of action, William
Tapscott Jr., has been bias [sic] toward the Plaintiff. The
Plaintiff filed a lawsuit in Wichita Falls, Texas federal
court, cause number: 7:15-CV_141, requesting an injunction
against Tapscott for his abusive, and prejudice ways. . . .
The Plaintiff in the above styled and numbered cause of
action is the "plaintiff" in the lawsuit against
November 6, 2015 "second" motion to recuse was
assigned to Judge Kelly Moore and was denied by Judge Moore
on December 18, 2015.
filed a substantially similar "amended second
motion" to recuse Judges Tapscott and Murphy on December
22, 2015, and, in addition, continued to assert his same
objections to Judge Tapscott's hearing this case in
motions filed for other purposes. Drake's "amended
second motion" to recuse was denied on January 14, 2016,
and Judge Tapscott signed additional orders declining to
recuse himself on February 8, 2016; March 30, 2016; and April
second hearing on appellees' motion to dismiss for
failure to provide an expert report was held on February 15,
2016. Drake did not appear at that hearing. At the start of
the hearing, the trial court stated in part "[w]e're
not going to go into the merits of the motion now" and
"[t]he purpose of the oral part of this hearing and the
record is that . . . Counsel would like to prove up their
attorney's fees and costs." Then, appellees'
attorney testified as to his attorney's fees. On that
same date, the trial court signed an order in which it
dismissed this lawsuit for "failure to provide expert
report" and awarded attorney's fees to appellees
"as mandated by § 74.351" in the amount of
filed a March 8, 2016 "Verified Motion to Reinstate and
for New Trial and to Amend Pleadings to Add Defendant
Tapscott." Following a March 21, 2016 hearing, that
motion was denied on April 4, 2016. This appeal timely
DRAKE'S PRE-SUBMISSION MOTION TO STRIKE
preliminary matter, before considering Drake's issues, we
address a pending pre-submission motion to strike filed by
Drake in this appeal. Following the complained-of February
15, 2016 order in this case, appellees sent a March 30, 2016
letter to the trial court clerk in which they described
several "relevant" items omitted from Drake's
list of documents to be included in the appellate record and
asked that those items be included in the clerk's record
in this Court. Those omitted items included, in part, the
petition, answer, and motion for nonsuit in trial court cause
number CC-11-08852-D, i.e., the Rule 202 proceeding.
April 22, 2016, Drake filed in this Court a "Motion to
Transfer Older Case Records to the New Appeal Case
Records." In that motion, Drake asked this Court to
"transfer" to this appeal "all of the trial
court records" from the Rule 202 proceeding and the
prior appeal described above. Specifically, Drake stated in
part "[a] substantial part of the argument made by the
Appellees is that the filing of a Rule 202 by Drake on
December 29, 2011 triggered the 120-day deadline to file his
expert report" and "[i]t is imperative that Drake
be able to point to the Rule 202 proceedings, documents
filed, and the dates documents were filed to show the Court