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Toth v. Martinez

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

October 3, 2019

DR. TIBOR TOTH, DMD, D/B/A TOTH PEDIATRIC DENTISTRY, Appellants,
v.
YERIDIA MARTINEZ, Appellee.

          On appeal from the 444th District Court of Cameron County, Texas.

          Before Chief Justice Contreras and Justices Longoria and Perkes.

          MEMORANDUM OPINION

          NORA L. LONGORIA, JUSTICE.

         Appellee Yeridia Martinez filed suit against appellant Tibor Toth, DMD D/B/A/ Toth Pediatric Dentistry (Toth), alleging assault and battery, intentional inflection of emotional distress, hostile work environment, and sexual harassment. Toth filed a Rule 91a motion to dismiss, which the trial court denied. By one issue on appeal, Toth argues that the trial court erred by denying his motion to dismiss. We affirm.

         I. Background

         According to Martinez, she began working for Toth as a dental assistant in June 2017. On April 20, 2018, Martinez filed suit against Toth based on "lewd and unwarranted verbal and physical assaults" that occurred between January and March 2018. Martinez asserted four causes of actions against Toth: (1) assault and battery, see Tex. Penal Code Ann. § 22.01(a); (2) intentional infliction of emotional distress, see Twyman v. Twyman, 855 S.W.2d 619, 622 (Tex. 1993) (recognizing the tort of intentional infliction of emotional distress in Texas); (3) hostile work environment, see Tex. Lab. Code Ann. § 21.051; and (4) sexual harassment, see id.

         On May 4, 2018, Toth simultaneously filed an answer and a Rule 91a motion to dismiss. See Tex. R. Civ. P. 91a (providing for the expedited dismissal of baseless causes of action). In January of 2019, the trial court held a docket control conference with both parties and set a bench trial for April 23, 2019. On March 25, 2019, the trial court set a hearing on Toth's motion to dismiss for April 3, 2019. On April 2, 2019, Toth requested that the hearing be rescheduled based on a scheduling conflict. On April 12, 2019, without a hearing, the trial court denied Toth's motion to dismiss.

         On April 19, 2019, Toth filed "Defendant's Good Cause or Reason to Move for Continuance on Bench Hearing." On the same day, Toth filed a notice of appeal regarding the trial court's denial of his Rule 91a motion to dismiss. On April 23, 2019, Martinez appeared ready for trial, but Toth failed to appear. The trial court denied Toth's motion for continuance and entered judgment in favor of Martinez, awarding her $75, 000. Toth did not appeal the trial court's final judgment.

         II. Rule 91a Motion to Dismiss

         In his sole issue, Toth argues that the trial court erred by denying his Rule 91a motion to dismiss.

         A. Standard of Review and Applicable Law

         A party "may move to dismiss a cause of action on the grounds that it has no basis in law or fact." Tex.R.Civ.P. 91a.1. We perform a de novo review of the trial court's ruling on a Rule 91a motion to dismiss. In re Butt, 495 S.W.3d 455, 461 (Tex. App.- Corpus Christi-Edinburg 2016, no pet.). "Though Rule 91a is not identical to Federal Rule of Civil Procedure 12(b)(6), several Texas Courts of Appeals have interpreted Rule 91a as essentially calling for a Rule 12(b)(6)-type analysis and have relied on case law interpreting Rule 12(b)(6) in applying Rule 91a." Id. A petition is sufficient as long as it gives "fair and adequate notice of the facts upon which the pleader bases his claim." Id.; see Reaves v. City of Corpus Christi, 518 S.W.3d 594, 602 (Tex. App.-Corpus Christi- Edinburg 2017, no pet.). In conducting our review, we liberally construe the pleadings in the plaintiff's favor and we accept the factual allegations in the pleadings as true. Id.

         B. Analysis

         We conclude the trial court did not err in denying Toth's motion to dismiss.[1] In her petition, Martinez asserted that she worked for Toth as a dental ...


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