Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
DR. TIBOR TOTH, DMD, D/B/A TOTH PEDIATRIC DENTISTRY, Appellants,
YERIDIA MARTINEZ, Appellee.
appeal from the 444th District Court of Cameron County,
Chief Justice Contreras and Justices Longoria and Perkes.
L. LONGORIA, JUSTICE.
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.
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.
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.
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.
Rule 91a Motion to Dismiss
sole issue, Toth argues that the trial court erred by denying
his Rule 91a motion to dismiss.
Standard of Review and Applicable Law
"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.
conclude the trial court did not err in denying Toth's
motion to dismiss. In her petition, Martinez asserted that
she worked for Toth as a dental ...