Renee Jackson v. Dr. Billy Puckett, Billy Puckett, D.D.D.d/b/a Pearland Family Dentistry Griselda Aviles, Syeda Shaw, D.D.S. ( 2023 )

Opinion issued February 7, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00369-CV
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RENEE JACKSON, Appellant
V.
DR. BILLY PUCKETT, BILLY PUCKETT, D.D.S. D/B/A PEARLAND
FAMILY DENTISTRY, GRISELDA AVILES, AND SYEDA SHAW, D.D.S.,
Appellees
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Case No. 2021-74149
MEMORANDUM OPINION
Pro se appellant Renee Jackson appeals the dismissal of her dental malpractice
action against appellees Dr. Billy Puckett, Billy Puckett, D.D.S. d/b/a Pearland
Family Dentistry, Griselda Aviles, and Syeda Shaw, D.D.S. On appeal, Jackson
contends the trial court committed procedural errors that require rendition of
judgment in her favor or, at minimum, reinstatement of her claims. We affirm.
Background
On November 11, 2021, Jackson filed her original petition alleging that she
received negligent dental treatment when Dr. Billy Puckett administered an injection
that caused a “blunt trauma/hematoma” on her lip and then failed to “stitch [her]
gums to prevent infection and dry socket.” Appellees answered Jackson’s lawsuit
on December 13, 2021, generally denying the allegations against them.
Two days after appellees answered, Jackson moved for a default judgment on
the ground that appellees’ answer was not timely filed. Appellees responded that
the trial court had no authority to enter a default judgment once an answer was on
file. The trial court denied Jackson’s motion.
Not long after the trial court refused to enter a default judgment, Jackson
moved to recuse the presiding judge. Jackson asserted that she could not receive a
“fair and impartial” adjudication of her claims because the presiding judge “ha[d]
deliberately violated other litigant’s personal liberties and/or . . . refused to provide
due process and equal protection to . . . litigants in the past.” Jackson also asserted
in an unsworn “testimonial” that the trial proceedings were unfair because she did
not have equal access to the case information and form documents available online.
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The presiding judge declined to recuse herself and referred the motion to the regional
presiding judge, who denied it.
Appellees ultimately moved to dismiss Jackson’s lawsuit under Chapter 74 of
the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE
§§ 74.001–.507. Appellees argued that Jackson’s dental malpractice action was ripe
for dismissal because it alleged health care liability claims subject to Chapter 74’s
procedural requirements and Jackson had failed to file the statutorily required expert
reports. See id. §§ 74.351(a) (“In a health care liability claim, a claimant shall, not
later than the 120th day after the date each defendant’s original answer is filed or a
later date required under Section 74.353, serve on that party or the party’s attorney
one or more expert reports[.]”), 74.351(b) (allowing health care liability defendant
to move for dismissal if expert report has not been served within statutory period).
In response, Jackson pointed to photographs of her injury as evidence of appellees’
negligence, but she did not provide any expert reports. The trial court granted
appellee’s motion and dismissed Jackson’s lawsuit with prejudice.
Jackson moved unsuccessfully to reinstate her claims before filing this appeal
of the trial court’s final order.
Issues on Appeal
Jackson’s briefing on appeal fails to “state concisely all issues or points
presented for review.” TEX. R. APP. P. 38.1(f). In addition, Jackson’s briefs do not
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contain any “clear and concise argument” to support her contentions or “appropriate
citations to authorities and to the record,” as required by the Texas Rules of
Appellate Procedure. See TEX. R. APP. P. 38.1(i). However, as our supreme court
has instructed, “[w]e ‘generally hesitate to turn away claims based on waiver or
failure to preserve the issue[, and] we . . . construe briefing “reasonably, yet liberally,
so that the right to appellate review is not lost by waiver.”’ ‘Simply stated, appellate
courts should reach the merits of an appeal whenever reasonably possible.’” Weekley
Homes, LLC, v. Paniagua, 646 S.W.3d 821, 826–27 (Tex. 2022) (internal citations
omitted).
Construing Jackson’s briefing liberally, we understand her to be challenging
the following rulings by the trial court:
1. The denial of her motion for default judgment;
2. The denial of her motion to recuse; and
3. The dismissal of her lawsuit under Chapter 74.
We address these issues in turn as necessary to the disposition of this appeal.
Default Judgment
Jackson claims, without authority, that the trial court erred by failing to grant
her a default judgment once appellees failed to answer “on or before 10:00 a.m. on
the Monday next after the expiration of twenty days after the date of service [of her
original petition].” See TEX. R. CIV. P. 99(b). We review the trial court’s denial of a
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motion for default judgment for an abuse of discretion.1 See Davis v. West, 433
S.W.3d 101, 108 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). We conclude
there is no abuse of discretion.
At any time after a defendant is required to answer, the plaintiff may take a
default judgment if the defendant has not previously filed an answer, and the citation
with the officer’s return has been on file with the clerk for ten days. TEX. R. CIV. P.
107(h), 239. Here, the relief Jackson requested could not be granted because she did
not move for a default judgment until two days after appellees filed their answer.
Once an answer is on file, even if it is filed after the due date, the trial court may not
render a no-answer default judgment. See TEX. R. CIV. P. 239; see also Davis v.
Jefferies, 764 S.W.2d 559, 560 (Tex. 1989); Davis, 433 S.W.3d at 109; Aguilar v.
Alvarado, 39 S.W.3d 244, 247–48 (Tex. App.—Waco 1999, pet. denied). By
following the Texas Rules of Civil Procedure and well-settled case law, the trial
court did not abuse its discretion. Aguilar, 39 S.W.3d at 248.
We overrule Jackson’s first issue.
1
Ordinarily, the denial of a default judgment is an interlocutory order not subject to
appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014; see also Aguilar v. Livingston,
154 S.W.3d 832, 833 (Tex. App.—Houston [14th Dist.] 2005, no pet.). However,
appellate courts have considered the denial of a default judgment when, as here, the
denial is challenged in an appeal from a final judgment or order. See, e.g., Davis v.
West, 433 S.W.3d 101, 108 (Tex. App.—Houston [1st Dist.] 2014, pet. denied);
Aguilar, 154 S.W.3d at 833; Aguilar v. Alvarado, 39 S.W.3d 244, 247–48 (Tex.
App.—Waco 1999, pet. denied).
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Recusal
Jackson next asserts error in the denial of her motion to recuse the presiding
judge. We review the denial of Jackson’s recusal motion for an abuse of discretion.
See TEX. R. CIV. P. 18a(j)(1)(A) (“An order denying a motion to recuse may be
reviewed only for abuse of discretion on appeal from the final judgment.”). We
conclude there was no abuse of discretion here.
“To recuse a judge, a party must comply with the procedural requirements
prescribed by Texas Rule of Civil Procedure 18a.” Rammah v. Abdeljaber, 235
S.W.3d 269, 274 (Tex. App.—Dallas 2007, no pet.). One such requirement is that
the recusal motion be verified. TEX. R. CIV. P. 18a(a)(1). Jackson’s motion was not
verified. Although she attached a statement labeled as a “testimonial” to her recusal
motion, which set out her complaints about the presiding judge, the statement was
not sworn. See Verify, BLACK’S LAW DICTIONARY (11th ed. 2019) (“1. To prove to
be true; to confirm or establish the truth or truthfulness of; to authenticate. 2. To
confirm or substantiate by oath or affidavit; to swear the truth of.”). Because an
unsworn motion to recuse does not comply with the procedural requirements of Rule
18a and is defective on its face, it was not an abuse of discretion to deny the motion.
See, e.g., Sheldon v. Unknown Nurse/Staff of Trinity Mother Frances Hosp., No.
06-10-00097-CV, 2011 WL 1990645, at *2 n.3 (Tex. App.—Texarkana May 18,
2011, pet. denied) (mem. op.) (trial court did not abuse its discretion by denying
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unsworn recusal motion); Wirtz v. Mass. Mut. Life Ins. Co., 898 S.W.2d 414, 422–
23 (Tex. App.—Amarillo 1995, no writ) (same); see also Gill v. Tex. Dep’t of Crim.
Just., 3 S.W.3d 576, 579 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (movant
waived right to complain of denial of recusal motion because he did not file verified
motion).
We overrule Jackson’s second issue.
Chapter 74
Finally, Jackson complains about the dismissal of her claims under Chapter
74 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.
CODE §§ 74.001–.507.
Chapter 74 provides a comprehensive statutory framework governing health
care liability claims. Randol Mill Pharmacy v. Miller, 465 S.W.3d 612, 615 (Tex.
2015). It is intended to strike “a careful balance between eradicating frivolous
[health care liability] claims and preserving meritorious ones.” Leland v. Brandal,
257 S.W.3d 204, 208 (Tex. 2008). A key component of the statute’s framework is
its requirement that the plaintiff serve expert reports early in the litigation process
for each “health care provider against whom a [health care] liability claim is
asserted.” TEX. CIV. PRAC. & REM. CODE § 74.351(a). Specifically, the statute
requires service of expert reports “not later than the 120th day after the date each
defendant’s original answer is filed.” Id. Failure to comply with this requirement
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results in dismissal of the claim with prejudice upon the health care provider’s
motion. Id. § 74.351(b).
It is undisputed that Jackson’s dental malpractice action asserts health care
liability claims against appellees that are subject to Chapter 74’s requirements.
Jackson’s claim that she suffered physical injuries during dental treatment when
appellees negligently administered an injection and failed to “stitch [her] gums to
prevent infection and dry socket” satisfies the statutory definition of a “health care
liability claim” as “a cause of action against a health care provider . . . for treatment,
lack of treatment, or other claimed departure from accepted standards of medical
care, or health care, . . . which proximately result[ed] in injury[.]”2 Id.
§ 74.001(a)(13).
It is also undisputed that Jackson did not file any expert report within 120 days
of appellees’ answer, as required by Chapter 74. See id. § 74.351(a). Although she
argues that her claims should not have been dismissed because she submitted
photographs proving her injuries, such photographs are not a substitute for an expert
report under Chapter 74. See id. §§ 74.351(r)(5) (defining “expert” to mean person
2
Relevant here, a “health care provider” is “any person, partnership, professional
association, corporation, facility, or institution duly licensed, certified, registered,
or chartered by the State of Texas to provide health care, including . . . a dentist.”
TEX. CIV. PRAC. & REM. CODE § 74.001(a)(12)(A)(ii). Employees, independent
contractors, and agents of health care providers who are acting within the scope of
their employment or contractual relationship also qualify as health care providers.
Id. § 74.001(a)(12)(B)(ii).
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qualified to testify under certain statute- and rules-based requirements), 74.351(r)(6)
(defining “expert report” to mean “a written report by an expert that provides a fair
summary of the expert’s opinions . . . regarding applicable standards of care, the
manner in which the care rendered by the . . . health care provider failed to meet the
standards, and the causal relationship between that failure and the injury, harm, or
damages claimed”). Accordingly, the trial court did not err when it dismissed
Jackson’s claims for failure to file an expert report.
We therefore also overrule Jackson’s third issue.
Conclusion
We affirm the trial court’s judgment.
Terry Adams
Chief Justice
Panel consists of Chief Justice Terry Adams and Justices Kelly and Farris.
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