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Milton v. Nguyen

Court of Appeals of Texas, Fourteenth District

September 12, 2017

CAROLYN R. MILTON, Appellant
v.
VINH T. NGUYEN, Appellee

         On Appeal from County Court at Law No. 4 Fort Bend County, Texas Trial Court Cause No. 15-CCV-054707

          Panel consists of Justices Chief Justice Frost and Justices Donovan and Wise.

          MEMORANDUM OPINION

          John Donovan, Justice

         Appellant Carolyn R. Milton filed suit against her dentist, appellee Vinh T. Nguyen, D.D.S., alleging claims of "overbilling and harm done as a result of not performing required procedures." The trial court granted Nguyen's motion to dismiss because Milton failed to file the statutorily required expert report. We affirm.

         I. BACKGROUND

         In August 2010, Nguyen provided dental care to Milton. Since that time, Milton, appearing pro se, has filed several matters in various forums complaining of the care she received. In January 2011, Milton filed suit against Nguyen in the 268th Judicial District Court of Fort Bend County, Texas, alleging negligence in the provisions of dental care. Milton, however, did not timely serve Nguyen with an expert report as required by section 74.351 of the Texas Civil Practice and Remedies Code, and the trial court, on Nguyen's motion, dismissed Milton's case in October 2011. On appeal, the First Court of Appeals affirmed the judgment. Milton v. Nguyen, No. 01-11-00958-CV, 2012 WL 3228835 (Tex. App.-Houston [1st Dist] Aug. 9, 2012, pet. denied) (mem. op.) (affirming trial court dismissal because plaintiff failed to file statutorily required expert report).

         Thereafter, Milton sued the Texas State Dental Board of Examiners in Travis County district court, alleging she suffered "severe financial harm" as a result of the Board's alleged failure to "enforce[e] the laws of Texas." Milton's complaint appeared to stem from her dissatisfaction with the Board's handling of a complaint she filed against Nguyen. The trial court granted the Board's plea to the jurisdiction based on governmental immunity and dismissed her claims. The appeals court in Austin affirmed the trial court's judgment. Milton v. Tex. State Dental Bd. Of Examiners, No. 03-14-00346-CV, 2014 WL 7464137, at *2 (Tex. App.-Austin Dec. 30, 2014, no pet.) (mem. op.) (affirming trial court's dismissal because plaintiffs claims barred by governmental immunity).

         This appeal arises from a case Milton filed against Nguyen in September 2014, in the Justice Court of Fort Bend County, Texas, Precinct 4. In Milton's "statement of claim" she alleges "overbilling and harm done as a result of not performing required procedures."[1] On January 21, 2015, Nguyen filed a motion to dismiss based on Milton's failure to timely file the expert report required by section 74.351(a) of the Texas Civil Practice and Remedies Code. The Justice Court granted the motion and dismissed the case on March 5, 2015. Milton appealed the judgment to County Court at Law. No. 4 of Fort Bend County, Texas. Nguyen again filed a motion to dismiss based on Milton's failure to timely file an expert report. The County Court granted Nguyen's motion and entered judgment against Milton on October 24, 2016. Milton timely filed this appeal.

         II. ISSUES

         In Milton's brief, she provides the following summary of her argument:

Appellant's case is solely about Defendant's gross negligence of not being properly educated; qualified; certified; authorized or permitted by the Texas Dental Board to perform or bill for Dental Code procedure D7210; which require the use of "general anesthesia; as shown in Exhibit G "[2]

         Milton identifies five "Issues" as follows:

• Whether Defendant was permitted by the Dental Board to perform or bill for Dental Code D7210; for ...

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