Preview
Filed
11 May 23 P2:55
Amalia Rodriguez-Mendoza
District Clerk
Travis District
No, D-tN-11-001827 D-1-GN-11-001527
250TH
IN THE JUDICIAL
JONATHON C. McINTOSH, D.D.S. §
§
§
VS. § DISTRICT COURT OF
§
TEXAS STATE BOARD OF DENTAL §
EXAMINERS § TRAVIS COUNTY, TEXAS
PLAINTIFF’S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW JONATHON C. McINTOSH, D.D.S., Plaintiff, complains of the
TEXAS STATE BOARD OF DENTAL EXAMINERS, referred to in this petition as
Agency, Defendant, and by petition seeks review of a decision of Agency, pursuant to
Tex. Gov’T CopE 2001.174, and as grounds for review would respectfully show the
Court the following:
I.
Plaintiff is an individual and is a licensed to practice dentistry in the State of
Texas by and through the Texas State Board of Dental Examiners. Agency is the state
dental examining board having statewide jurisdiction, and service of process may be had
by serving Sherri Sanders Meek, its Executive Director, at 333 Guadalupe, Tower 3,
Suite 800, Austin, Travis County, Texas 78701Il.
The Plaintiff is aggrieved by the order of the Agency rendered on April 15, 2011,
and mailed to him on April 19, 2011. The Plaintiff filed his Motion for Rehearing with
the Agency on May 3, 2011. The Agency denied the Motion for Rehearing on May 4,
2011. The Plaintiff has exhausted all of his administrative remedies. Demand is hereby
made that Agency transmit the original or a certified copy of the entire record of such
proceedings below to the Court within the time permitted by law for filing of an answer
in this cause.
Ill.
On February 7, 2011, the Honorable Roy Scudday, Administrative Law Judge, entered an
order denying the Respondent’s Motion to Recuse the Honorable Anne K. Perez,
Administrative Law Judge, from continuing to preside over the Respondent’s contested
case hearing. The Respondent contends that Judge Scudday’s order is void as an abuse of
discretion and a violation of Equal Protection and Due Process as follows:
The Respondent was never notified by the Chief Administrative Judge of the State
Office of Administrative Hearings that Judge Scudday would be assigned to preside over
the recusal motion hearing. Such notice is mandatory in order for the Respondent to
evaluate whether he should object to Judge Scudday hearing the motion. Cf. Jn re Perritt,
992 S.W.2d 444, 445 (Tex. 1999).
Secondly, on a hearing concerning the recusal of a judge, TEX. R. Civ. P. 18a(d)
along with 1 TEX. ADMIN. CODE § 155.151(b) mandates that an evidentiary hearing be
held to allow the movant (Respondent) an opportunity to develop the record. A judgemay not decline to hear evidence concerning a recusal motion. Moreover, notice of the
hearing to the movant is required. No notice of the hearing was given to the Respondent.
See In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 179 (Tex. App.--Corpus Christi
1999, orig. proceeding); Winfield v. Dagget, 846 S.W.2d 920, 922 (Tex. App.--Houston
[1* Dist.] 1993, orig. proceeding); Pinchback v. Pinchback, 341 S.W.2d 549, 553-554
(Tex. Civ. App.--Fort Worth 1960, writ ref'd n.r.e.).
An order that constitutes an abuse of discretion is void. Watson v. Hart, 871
S.W.2d 914, 919-920 (Tex. App.--Austin 1994, orig. proceeding). The actions of Judge
Scudday are a total abuse of discretion, are in direct conflict with the applicable case law,
statutes and rules of procedure and are in violation of the Equal Protection and Due
Process Rights of the Respondent guaranteed by the Fourteenth Amendment to the
United States Constitution and Article I, §§ 3 and 19 of the Texas Constitution. Judge
Scudday’s order should be vacated and an evidentiary hearing scheduled on
Respondent’s Motion to Recuse Administrative Judge.
Iv.
The Honorable Anne K. Perez should have been recused from further proceedings
because her impartiality might reasonably be questioned in that the judge has a personal
bias or prejudice in favor of the Petitioner in this case, the Texas State Board of Dental
Examiners. In this connection, Judge Perez convened a Prehearing Conference January
13, 2011, concerning the Respondent’s Motion for Summary Adjudication that was filed
against the Petitioner, the Texas State Board of Dental Examiners. On the record at that
conference, Judge Perez stated that the Respondent was not entitled to file such a motionagainst the Petitioner. Judge Perez further stated that she would not entertain the merits of
the motion and that the Petitioner would not be required to bring forward a genuine issue
of material fact to defeat the motion. Judge Perez stated on the record that she was going
to deny the motion at a future time. When counsel for the Respondent informed Judge
Perez that he would be filing a No-Evidence Motion for Summary Adjudication, Judge
Perez stated that SOAH’s rules did not allow for such a motion. On January 26, 2011,
Judge Perez entered an order denying the Motion for Summary Adjudication and an order
denying the No-Evidence Motion for Summary Adjudication without requiring a
response from the Petitioner and without addressing the merits of the no-evidence
motion.
The actions of Judge Perez have succinctly, unambiguously and intentionally
violated the Equal Protection and Due Process Rights of Dr. McIntosh guaranteed by the
Fourteenth Amendment to the United States Constitution and Article I, §§ 3 and 19 of the
Texas Constitution.
Judge Perez is bound by the provisions of 1 TEx. ADMIN. CODE § 155.3(a), (b)
and 1 TEx. ADMIN. CODE § 155.505. Section 155.3 requires Judge Perez to be bound by
the statutes and rules of procedure as promulgated by the Texas Legislature and the
applicable case law precedent of the Supreme Court of Texas. By definition, this includes
harmonizing Section 155.505 with Rule 166a of the Texas Rules of Civil Procedure.
Additionally, Section 155.505 does not contain any provision prohibiting the filing and
adjudication of a No-Evidence Motion for Summary Adjudication, as described in TEx.
R. Civ. P. 166a(i). Lastly, 1 Tex. ADMIN. CODE §155.429(a)(1) requires that theproceedings and the admission of evidence in a contested case be conducted like a non-
jury civil case in district court. This statute most certainly was not followed.
Judge Perez’ statements on the record show a bias in favor of the Petitioner’s case
in that since the Respondent has brought forward competent, admissible evidence to
negate at least one element of the Petitioner’s case (the standard of care), Judge Perez has
stated that the Petitioner will not be required to offer controverting summary adjudication
evidence to defeat the Respondent’s motion. A party (the Petitioner) cannot rely on
factual statements contained in its own pleadings as summary judgment proof. Hidalgo v.
Surety S&L Assn., 462 S.W.2d 540, 545 (Tex. 1971). Moreover a defendant (Respondent)
is entitled to file a motion for summary judgment that disproves the facts of at least one
element of the non-movant’s (Petitioner’s) claims and allegations. See, e.g., Park Place
Hospital v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Lear Sieglar, Inc. v. Perez,
819 S.W.2d 470, 471-472 (Tex. 1991). See also O’Connor’s Texas Rules * Civil Trials
(2010), § 2.5(1), p. 554. To repeat, Judge Perez has shown a bias and prejudice in favor
of the Petitioner and in so doing has intentionally violated the Equal Protection and Due
Process Rights of the Respondent to receive a full and fair hearing.
Vv.
The Respondent requested an expert report from the Petitioner pursuant to Tex. R.
Civ. P. 194.2(f)(A)(4). The Petitioner then had two choices: either produce the expert
report or, if it did not want to incur the expense in creating the expert report, it should
have tendered its expert(s) for disposition. In this case, the Petitioner has done neither.
See Tex. R. Civ. P. 195, cmt. 3. As a result, no expert report, affidavit and/or testimonyshould have been entertained and/or admitted by the Administrative Law Judge on behalf
of the Petitioner in the summary adjudication proceeding and in the hearing on the merits.
Cf Fort Brown Villas Condo. Assn. v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009).
VI.
The contested case hearing was heard on February 28, 2011. The Respondent and
his counsel of record did not attend. However, the official First Amended Notice of
Hearing, which was admitted as Staffs Exhibit 3, states that the contested case hearing
was to begin on March 1, 2010, at 9:00 o’clock a.m. Such notice is fatally defective and
any Proposal for Decision rendered on such defective notice is void. See 1 TEx. ADMIN.
Cope 155.401(a).
Vil
The Agency totally ignored the violations of the Plaintiffs Equal Protection and
Due Process Rights guaranteed by the United States Constitution committed by the
Administrative Judges employed by the State Office of Administrative Hearings.
Accordingly, the Agency’s decision is arbitrary, capricious and characterized by abuse or
clearly unwarranted exercise of discretion.
VIII.
As a result of the unlawful and improper action of Agency as described above,
Plaintiff has suffered harm and prejudice to substantial rights. In this connection, Plaintiff
will show that the Agency seeks to place the Plaintiff on probation, assess a substantialfine and to mandate additional continuing education hours over and above those required
by dentists licensed in the State of Texas.
WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that the Agency
be cited to appear and answer, and that on final trial, Plaintiff have judgment of the
Court:
1. Reversing the decision of the Agency, or remanding the case to the Agency and
the State Office of Administrative hearings for further proceedings
2. Award Plaintiff costs incurred, together with all other relief, both general and
special, at law or in equity, to which Plaintiff may show himself justly entitled.
Respectfully submitted,
WILLIE & ASSOCIATES, P.C.
By:/s/ Joseph R. Willie, II
Joseph R. Willie, Il, D.D.S., J.D.
4151 Southwest Freeway, Suite 490
Houston, Texas 77027
(713) 659-7330
(713) 599-1659 (FAX)
SBOT# 21633500
ATTORNEY FOR PLAINTIFF
Preview
Filed 11 May 23 P2:55 Amalia Rodriguez-Mendoza District Clerk Travis District No, D-tN-11-001827 D-1-GN-11-001527 250TH IN THE JUDICIAL JONATHON C. McINTOSH, D.D.S. § § § VS. § DISTRICT COURT OF § TEXAS STATE BOARD OF DENTAL § EXAMINERS § TRAVIS COUNTY, TEXAS PLAINTIFF’S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW JONATHON C. McINTOSH, D.D.S., Plaintiff, complains of the TEXAS STATE BOARD OF DENTAL EXAMINERS, referred to in this petition as Agency, Defendant, and by petition seeks review of a decision of Agency, pursuant to Tex. Gov’T CopE 2001.174, and as grounds for review would respectfully show the Court the following: I. Plaintiff is an individual and is a licensed to practice dentistry in the State of Texas by and through the Texas State Board of Dental Examiners. Agency is the state dental examining board having statewide jurisdiction, and service of process may be had by serving Sherri Sanders Meek, its Executive Director, at 333 Guadalupe, Tower 3, Suite 800, Austin, Travis County, Texas 78701Il. The Plaintiff is aggrieved by the order of the Agency rendered on April 15, 2011, and mailed to him on April 19, 2011. The Plaintiff filed his Motion for Rehearing with the Agency on May 3, 2011. The Agency denied the Motion for Rehearing on May 4, 2011. The Plaintiff has exhausted all of his administrative remedies. Demand is hereby made that Agency transmit the original or a certified copy of the entire record of such proceedings below to the Court within the time permitted by law for filing of an answer in this cause. Ill. On February 7, 2011, the Honorable Roy Scudday, Administrative Law Judge, entered an order denying the Respondent’s Motion to Recuse the Honorable Anne K. Perez, Administrative Law Judge, from continuing to preside over the Respondent’s contested case hearing. The Respondent contends that Judge Scudday’s order is void as an abuse of discretion and a violation of Equal Protection and Due Process as follows: The Respondent was never notified by the Chief Administrative Judge of the State Office of Administrative Hearings that Judge Scudday would be assigned to preside over the recusal motion hearing. Such notice is mandatory in order for the Respondent to evaluate whether he should object to Judge Scudday hearing the motion. Cf. Jn re Perritt, 992 S.W.2d 444, 445 (Tex. 1999). Secondly, on a hearing concerning the recusal of a judge, TEX. R. Civ. P. 18a(d) along with 1 TEX. ADMIN. CODE § 155.151(b) mandates that an evidentiary hearing be held to allow the movant (Respondent) an opportunity to develop the record. A judgemay not decline to hear evidence concerning a recusal motion. Moreover, notice of the hearing to the movant is required. No notice of the hearing was given to the Respondent. See In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 179 (Tex. App.--Corpus Christi 1999, orig. proceeding); Winfield v. Dagget, 846 S.W.2d 920, 922 (Tex. App.--Houston [1* Dist.] 1993, orig. proceeding); Pinchback v. Pinchback, 341 S.W.2d 549, 553-554 (Tex. Civ. App.--Fort Worth 1960, writ ref'd n.r.e.). An order that constitutes an abuse of discretion is void. Watson v. Hart, 871 S.W.2d 914, 919-920 (Tex. App.--Austin 1994, orig. proceeding). The actions of Judge Scudday are a total abuse of discretion, are in direct conflict with the applicable case law, statutes and rules of procedure and are in violation of the Equal Protection and Due Process Rights of the Respondent guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, §§ 3 and 19 of the Texas Constitution. Judge Scudday’s order should be vacated and an evidentiary hearing scheduled on Respondent’s Motion to Recuse Administrative Judge. Iv. The Honorable Anne K. Perez should have been recused from further proceedings because her impartiality might reasonably be questioned in that the judge has a personal bias or prejudice in favor of the Petitioner in this case, the Texas State Board of Dental Examiners. In this connection, Judge Perez convened a Prehearing Conference January 13, 2011, concerning the Respondent’s Motion for Summary Adjudication that was filed against the Petitioner, the Texas State Board of Dental Examiners. On the record at that conference, Judge Perez stated that the Respondent was not entitled to file such a motionagainst the Petitioner. Judge Perez further stated that she would not entertain the merits of the motion and that the Petitioner would not be required to bring forward a genuine issue of material fact to defeat the motion. Judge Perez stated on the record that she was going to deny the motion at a future time. When counsel for the Respondent informed Judge Perez that he would be filing a No-Evidence Motion for Summary Adjudication, Judge Perez stated that SOAH’s rules did not allow for such a motion. On January 26, 2011, Judge Perez entered an order denying the Motion for Summary Adjudication and an order denying the No-Evidence Motion for Summary Adjudication without requiring a response from the Petitioner and without addressing the merits of the no-evidence motion. The actions of Judge Perez have succinctly, unambiguously and intentionally violated the Equal Protection and Due Process Rights of Dr. McIntosh guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, §§ 3 and 19 of the Texas Constitution. Judge Perez is bound by the provisions of 1 TEx. ADMIN. CODE § 155.3(a), (b) and 1 TEx. ADMIN. CODE § 155.505. Section 155.3 requires Judge Perez to be bound by the statutes and rules of procedure as promulgated by the Texas Legislature and the applicable case law precedent of the Supreme Court of Texas. By definition, this includes harmonizing Section 155.505 with Rule 166a of the Texas Rules of Civil Procedure. Additionally, Section 155.505 does not contain any provision prohibiting the filing and adjudication of a No-Evidence Motion for Summary Adjudication, as described in TEx. R. Civ. P. 166a(i). Lastly, 1 Tex. ADMIN. CODE §155.429(a)(1) requires that theproceedings and the admission of evidence in a contested case be conducted like a non- jury civil case in district court. This statute most certainly was not followed. Judge Perez’ statements on the record show a bias in favor of the Petitioner’s case in that since the Respondent has brought forward competent, admissible evidence to negate at least one element of the Petitioner’s case (the standard of care), Judge Perez has stated that the Petitioner will not be required to offer controverting summary adjudication evidence to defeat the Respondent’s motion. A party (the Petitioner) cannot rely on factual statements contained in its own pleadings as summary judgment proof. Hidalgo v. Surety S&L Assn., 462 S.W.2d 540, 545 (Tex. 1971). Moreover a defendant (Respondent) is entitled to file a motion for summary judgment that disproves the facts of at least one element of the non-movant’s (Petitioner’s) claims and allegations. See, e.g., Park Place Hospital v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Lear Sieglar, Inc. v. Perez, 819 S.W.2d 470, 471-472 (Tex. 1991). See also O’Connor’s Texas Rules * Civil Trials (2010), § 2.5(1), p. 554. To repeat, Judge Perez has shown a bias and prejudice in favor of the Petitioner and in so doing has intentionally violated the Equal Protection and Due Process Rights of the Respondent to receive a full and fair hearing. Vv. The Respondent requested an expert report from the Petitioner pursuant to Tex. R. Civ. P. 194.2(f)(A)(4). The Petitioner then had two choices: either produce the expert report or, if it did not want to incur the expense in creating the expert report, it should have tendered its expert(s) for disposition. In this case, the Petitioner has done neither. See Tex. R. Civ. P. 195, cmt. 3. As a result, no expert report, affidavit and/or testimonyshould have been entertained and/or admitted by the Administrative Law Judge on behalf of the Petitioner in the summary adjudication proceeding and in the hearing on the merits. Cf Fort Brown Villas Condo. Assn. v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009). VI. The contested case hearing was heard on February 28, 2011. The Respondent and his counsel of record did not attend. However, the official First Amended Notice of Hearing, which was admitted as Staffs Exhibit 3, states that the contested case hearing was to begin on March 1, 2010, at 9:00 o’clock a.m. Such notice is fatally defective and any Proposal for Decision rendered on such defective notice is void. See 1 TEx. ADMIN. Cope 155.401(a). Vil The Agency totally ignored the violations of the Plaintiffs Equal Protection and Due Process Rights guaranteed by the United States Constitution committed by the Administrative Judges employed by the State Office of Administrative Hearings. Accordingly, the Agency’s decision is arbitrary, capricious and characterized by abuse or clearly unwarranted exercise of discretion. VIII. As a result of the unlawful and improper action of Agency as described above, Plaintiff has suffered harm and prejudice to substantial rights. In this connection, Plaintiff will show that the Agency seeks to place the Plaintiff on probation, assess a substantialfine and to mandate additional continuing education hours over and above those required by dentists licensed in the State of Texas. WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that the Agency be cited to appear and answer, and that on final trial, Plaintiff have judgment of the Court: 1. Reversing the decision of the Agency, or remanding the case to the Agency and the State Office of Administrative hearings for further proceedings 2. Award Plaintiff costs incurred, together with all other relief, both general and special, at law or in equity, to which Plaintiff may show himself justly entitled. Respectfully submitted, WILLIE & ASSOCIATES, P.C. By:/s/ Joseph R. Willie, II Joseph R. Willie, Il, D.D.S., J.D. 4151 Southwest Freeway, Suite 490 Houston, Texas 77027 (713) 659-7330 (713) 599-1659 (FAX) SBOT# 21633500 ATTORNEY FOR PLAINTIFF