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Jonathon C. Mcintosh, D.D.S., Appellant v. David Partridge

April 25, 2013


On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 08-DCV-168700

The opinion of the court was delivered by: Laura Carter Higley Justice


Jonathon C. McIntosh, D.D.S. appeals the trial court's judgment dismissing his case for want of prosecution. McIntosh presents one issue, asserting that the trial court "reversibly erred when it dismissed [his] cause of action with prejudice."

We affirm the judgment as modified.


McIntosh was the Director of Dentistry for the residents of the Richmond State School (RSS), a Texas facility providing a home for people with mental and physical disabilities. In 2004, McIntosh, a member of the United States Navy Reserves, was recalled to active duty in Iraq for one year. When he returned from service, McIntosh notified RSS that he wanted to return to work. According to McIntosh, appellee David Partridge, M.D., medical director of RSS, and appellee Adalberto Barrera, superintendent of RSS, instructed appellant not to return to RSS because appellant's "clinical privileges had been suspended due to professional incompetence and violations of the applicable standard of care."

On December 23, 2005, McIntosh filed suit in federal district court against Partridge, both individually and in his official capacity as medical director of RSS, asserting claims under (1) the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311(a); (2) the Equal Protection and the Due Process Clauses of the Fourteenth Amendment; and (3) Texas common law defamation.*fn1 The federal court granted Partridge's motion for summary judgment and rendered a judgment that McIntosh take nothing from Partridge in either his individual or official capacity.*fn2

On August 8, 2008, the United States Court of Appeals for the Fifth Circuit held that there was no federal jurisdiction over McIntosh's USERRA claim and dismissed the claim.*fn3 The Fifth Circuit affirmed the remainder of the district court's take-nothing judgment against McIntosh.*fn4

On February 16, 2009, McIntosh filed suit in state district court against Partridge and Barrera in their individual and official capacities, asserting that their allegations of professional incompetence against McIntosh were pretext and that their failure to re-employ him violated USERRA and Texas Government Code sections 431.005(c), 613.002, and 613.021. McIntosh also alleged that their actions constituted defamation because the matter had been reported to the National Practitioner Database and the United States Navy, placing McIntosh's military healthcare provider credentials in danger of revocation.

On February 16, 2009, Partridge and Barrera answered the suit, asserting a general denial and affirmative defenses. McIntosh's deposition was scheduled on September 15, 2010; however, the parties agreed at the deposition to continue it pending the defendants' receipt of McIntosh's discovery responses.

The record reflects that the defendants' counsel sent two letters to McIntosh's counsel: one on November 16, 2010, and another on December 15, 2010. Each letter reflects that the defendants were still awaiting McIntosh's discovery responses. The letters asked McIntosh's counsel to provide information regarding the status of McIntosh's discovery responses.

On December 22, 2011, the defendants filed a motion to dismiss McIntosh's suit for want of prosecution pursuant to Rule of Civil Procedure 165a(2) and pursuant to its inherent power. They appended the portion of McIntosh's deposition in which the parties had agreed to continue the deposition until The defendants received McIntosh's discovery responses. The defendants also appended the two letters sent to McIntosh's counsel inquiring about the status of the discovery. In their verified motion to dimsiss, the defendants represented that McIntosh had not responded to the letters, and there had been no activity in the case during the year since the last letter was sent to McIntosh's counsel.

A hearing was held on the motion to dismiss on January 23, 2012. The docket sheet reflects that defense counsel appeared at the hearing but McIntosh did not appear. On the same day, the trial court signed an order granting the motion and dismissing the case "with prejudice."

McIntosh filed a verified motion to reinstate the case on February 21, 2012. He asserted that it was error to dismiss his case with prejudice because no determination on the merits had been made. McIntosh further explained that there had been no activity in the case because he was awaiting a determination in a related ...

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