Opinion issued April 25, 2013




                                  In The

                            Court of Appeals
                                 For The

                        First District of Texas
                        ————————————
                            NO. 01-12-00368-CV
                         ———————————
              JONATHON C. MCINTOSH, D.D.S., Appellant
                                    V.
  DAVID PARTRIDGE, M.D., INDIVIDUALLY AND IN HIS OFFICIAL
  CAPACITY, AND ADALBERTO BARRERA, INDIVIDUALLY AND IN
              HIS OFFICIAL CAPACITY, Appellees



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

      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.

                                    Background

      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)

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Texas common law defamation. 1 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. 2

      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. 3 The Fifth Circuit affirmed the remainder of the district

court’s take-nothing judgment against McIntosh.4

      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.




1
      See McIntosh v. Partridge, 540 F.3d 315, 318 (5th Cir. 2008).
2
      See id. at 319.
3
      See id. at 321.
4
      See id. at 327.
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        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

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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 administrative action, which he claimed was outcome determinative of the

instant suit.

       The defendants responded to the motion to reinstate. They asserted, inter

alia, that it was proper to dismiss the case with prejudice because McIntosh’s

claims were barred by limitations.

       The docket sheet reflects that a hearing was held on the motion to reinstate

with each side in attendance. Because the trial court did not sign a written order

within 75 days of the dismissal order, the motion to reinstate was overruled by

operation of law. This appeal followed.

                                Dismissal with Prejudice

       In one issue, McIntosh asserts, “The trial court reversibly erred when it

dismissed [his] cause of action with prejudice.” McIntosh contends that the trial

court’s dismissal for want of prosecution cannot be with prejudice because it was

not a decision on the merits.

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      A trial court’s authority to dismiss for want of prosecution stems from two

sources: (1) Rule 165a of the Rules of Civil Procedure and (2) the court’s inherent

power. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.

1999); Veterans’ Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976). These

were the two bases for dismissal relied on by Partridge and Barrera (collectively,

Appellees) in their motion to dismiss.

      A trial court may dismiss pursuant to Rule 165a when a case is not disposed

of within time standards established by the Supreme Court of Texas. See TEX. R.

CIV. P. 165a(2). Separate from the rules of procedure, the common law also vests

the trial court with the inherent power to dismiss when a plaintiff fails to prosecute

his case with due diligence. Villarreal, 994 S.W.2d at 631; State v. Rotello, 671

S.W.2d 507, 508–09 (Tex. 1984).

      An action that has been dismissed without prejudice can be re-filed by the

litigant because the merits of the action remain undecided. See Rizk v. Mayad, 603

S.W.2d 773, 775 (Tex. 1980); Christensen v. Chase Bank USA, N.A., 304 S.W.3d

548, 553 (Tex. App.—Dallas 2009, pet. denied). In contrast, dismissal of an action

with prejudice constitutes a final determination or an adjudication on the merits,

Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991), and it operates as if the case

has been fully tried and decided. See Ritchey v. Vasquez, 986 S.W.2d 611, 612

(Tex. 1999). An order dismissing a case with prejudice has full res judicata and

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collateral estoppel effect, barring subsequent re-litigation of the same causes of

action or issues between the same parties. See Barr v. Resolution Trust Corp., 837

S.W.2d 627, 630–31 (Tex. 1992).

      Generally, an order dismissing an action with prejudice is improper when

there has not been an adjudication of the merits of the claims. See ETC Katy

Pipeline Ltd. v. FLR Pipeline Corridor No. 1, LLC, 276 S.W.3d 577, 578 (Tex.

App.—Waco 2008, no pet.). Because it is not a decision on the merits, it is

improper to dismiss a case for want of prosecution with prejudice. See Rizk, 603

S.W.2d at 775; Midland Funding NCC-2 Corp. v. Azubogu, No. 01-06-00801-CV,

2007 WL 4387285, at *2 (Tex. App.—Houston [1st Dist.] Dec. 13, 2007, no pet.)

(mem. op.); Labrie v. Kenney, 95 S.W.3d 722, 728 (Tex. App.—Amarillo 2003, no

pet.). Thus, we agree with McIntosh that the trial court should not have dismissed

his case “with prejudice.” See Midland Funding, 2007 WL 4387285, at *2.

      Appellees counter that dismissal of McIntosh’s suit with prejudice was

appropriate. They assert that limitations bar McIntosh from re-filing his claims.

      The running of the limitations period operates to prohibit the assertion of a

cause of action and involves the final disposition of a case. Tex. Underground,

Inc. v. Tex. Workforce Comm’n, 335 S.W.3d 670, 675 (Tex. App.—Dallas 2011,

no pet.). Typically, a case is not disposed of based on limitations in a preliminary

hearing, such as a motion to dismiss. Id. Rather, a limitations defense should be

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raised through a motion for summary judgment or proven at trial. See In re

D.K.M., 242 S.W.3d 863, 865 (Tex. App.—Austin 2007, no pet.) (holding that

proper avenue for raising limitations defense is motion for summary judgment);

Dall. Cnty. v. Hughes, 189 S.W.3d 886, 888 (Tex. App.—Dallas 2006, pet. denied)

(same); see also Montgomery Cnty. v. Fuqua, 22 S.W.3d 662, 669 (Tex. App.—

Beaumont 2000, pet. denied) (“Affirmative defenses are ‘pleas in bar,’ and do not

provide a justification for summary dismissal on the pleadings.”).

      Courts have held that “a speedy and final judgment may be obtained on the

basis of matters in bar and without formality of trial on [the] merits, if the parties

so agree or if summary judgment procedure is utilized.” Tex. Underground, 335

S.W.3d at 676; see Briggs v. Toyota Mfg. of Tex., 337 S.W.3d 275, 281 (Tex.

App.—San Antonio 2010, no pet.). Here, there is no indication that the parties

agreed to dispose of the case without trial, nor does the record show that summary

judgment procedure was utilized. Appellees did not raise their limitations defense

before the trial court signed the dismissal order but, instead, raised the defense for

the first time in their response to McIntosh’s motion to reinstate the case.

      Even if we were to treat their motion to dismiss as a motion for summary

judgment, Appellees did not show entitlement to judgment based on the defense of

limitations. See Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 354–55 (Tex. App.—San

Antonio 1999, pet. denied) (treating dismissal as a summary judgment and

                                          8
evaluating the record as if summary judgment was granted to determine whether

the movant satisfied its summary-judgment burden). A summary judgment cannot

be affirmed on grounds not expressly set out in the motion for summary judgment.

See TEX. R. CIV. P. 166a(c) (“The motion for summary judgment shall state the

specific grounds therefor.”); Davis v. City of Grapevine, 188 S.W.3d 748, 765

(Tex. App.—Fort Worth 2006, pet. denied) (concluding that affirmative defense

not raised in summary judgment motion cannot be considered on appeal). As

stated, Appellees did not raise the limitations defense before judgment was

rendered. Thus, it cannot support a determination that the instant dismissal should

be with prejudice.5

      We conclude that it was improper for the trial court to dismiss McIntosh’s

suit for want of jurisdiction with prejudice; that is, it was improper for the trial

court to include the words “with prejudice” in the dismissal order when no

adjudication on the merits had been made. 6 See Midland Funding, 2007 WL


5
      We make no determination whether Appellees will be entitled to judgment on their
      limitations defense should McIntosh choose to re-file his claims.
6
      In his reply brief, McIntosh asserted that the trial court abused its discretion when
      it did not grant his motion to reinstate the case. McIntosh did not raise this
      argument in his opening brief. In his opening brief, McIntosh complained only
      that the trial court erred when it dismissed his case “with prejudice.” An issue
      raised for the first time in a reply brief is ordinarily waived and need not be
      considered by this Court. McAlester Fuel Co. v. Smith Int’l., Inc., 257 S.W.3d
      732, 737 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing N.P. v.
      Methodist Hosp., 190 S.W.3d 217, 225 (Tex. App.—Houston [1st Dist.] 2006, pet.
                                            9
4387285, at *2. McIntosh asserts that the trial court’s error of including the phrase

“with prejudice” is error for which we should reverse the entirety of the judgment

and remand for a new trial. However, in Luna v. United Parcel Service, Inc., we

explained that, if a case has been dismissed with prejudice for want of prosecution,

the judgment of the trial court dismissing the suit must be reformed to eliminate

the words “with prejudice.” No. 01-02-00144-CV, 2003 WL 139592, at *4 (Tex.

App.—Houston [1st Dist.] Jan. 9, 2003, pet. denied); see also TEX. R. APP. P.

43.2(b) (providing that appellate court may modify the trial court’s judgment and

affirm it as modified); Midland Funding, 2007 WL 4387285, at *3 (modifying

judgment to delete “with prejudice” and affirming judgment as modified).

      McIntosh cites Attorney General of Texas v. Rideaux in which, after

determining that it was error for the trial court to dismiss the case for want of

prosecution with prejudice, we reversed the judgment and remanded the case for a

new trial. 838 S.W.2d 340, 341–42(Tex. App.—Houston [1st Dist.] 1992, no

writ). Since Rideaux, we have, on at least two occasions, when determining the

issue presented here, modified the judgment to delete the phrase “with prejudice,”

as the Rules of Appellate Procedure permit us to do. See, e.g., Luna, 2003 WL

139592, at *4; Midland Funding, 2007 WL 4387285, at *2–3; see TEX. R. APP. P.

43.2(b).

      denied)). Thus, the argument that the trial court abused its discretion when it did
      not grant his motion to reinstate is waived, and we do not consider it. See id.
                                          10
      Moreover, in his principal brief, McIntosh offered no argument to show that

it was improper for the trial court to dismiss his case for want of prosecution under

either Rule 165a or under its inherent power to do so. His sole argument was that

it was improper for the trial court to dismiss his case “with prejudice.” It would be

inappropriate for this Court to reverse the portion of the trial court’s judgment

dismissing the case for want of prosecution when no showing has been made that

there was error in that part of the judgment. See Tierra Sol Joint Venture v. City of

El Paso, 311 S.W.3d 492, 497 (Tex. App.—El Paso 2009, no pet.) (holding

entirety of judgment should not be reversed when only a portion of judgment is

erroneous; rather, in that case, appropriate remedy was to modify trial court’s

judgment to delete the erroneous portion and affirm the judgment as modified); see

also Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (holding that

appellate court cannot reverse a trial court judgment absent properly assigned

error). We have the authority to modify incorrect judgments when the necessary

information is available for us to do so. In re Estate of Tyner, 292 S.W.3d 179,

183 (Tex. App.—Tyler 2009, no pet.) (citing TEX. R. APP. P. 43.2(b); Mullins v.

Mullins, 202 S.W.3d 869, 878 (Tex. App.—Dallas 2006, pet. denied)).              We

conclude that the proper disposition of this appeal is to modify the judgment and

affirm it as modified. See Luna, 2003 WL 139592, at *4; Midland Funding, 2007

WL 4387285, at * 2–3; see also TEX. R. APP. P. 43.2(b).

                                         11
      We sustain McIntosh’s sole issue, as discussed herein.

                                       Conclusion

      We modify the trial court’s judgment to delete the phrase “with prejudice”

and affirm the judgment as modified.




                                             Laura Carter Higley
                                             Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.




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