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Drake v. Walker

Court of Appeals of Texas, Fifth District, Dallas

July 6, 2017

ERIC DRAKE, Appellant
v.
STEPHEN WALKER, D.D.S. AND MARSHAL GOLDBERG, D.D.S., Appellees

         On Appeal from the County Court at Law No. 4 Dallas County, Texas Trial Court Cause No. CC-13-06774-D

          Before Justices Lang, Myers, and Stoddart.

          OPINION

          DOUGLAS S. LANG JUSTICE.

         In this 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 does not.

         Second, 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.

         Eric 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 judge.[1]

         We 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.

         We 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.

         I. FACTUAL AND PROCEDURAL CONTEXT

         On 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.

         Drake 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.

         The 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.

         On May 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.

         The 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."

         On July 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.

         Further, 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."

         In an 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.

         On 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 part,

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 Judge Tapscott.

         Drake's November 6, 2015 "second" motion to recuse was assigned to Judge Kelly Moore and was denied by Judge Moore on December 18, 2015.

         Drake 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 4, 2016.

         A 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 $15, 374.50.

         Drake 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 followed.[2]

         II. DRAKE'S PRE-SUBMISSION MOTION TO STRIKE

         As a 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.

         On 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 how ...


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