Preview
FILED
8/21/2023 3:14 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Brandon Keys DEPUTY
CAUSE NO. DC-23-06718
JAMES WEBSTER, § IN THE DISTRICT COURT 0F
Plaintiff, §
§
Vs. § 44TH JUDICIAL DISTRICT
§
AMANDA CARRIZALES, §
Defendant. § DALLAS COUNTY, TEXAS
Plaintiff’s Motion t0 Dismiss for Failure to State a Claim
COMES NOW JAMES WEBSTER, Plaintiff and attorney for Plaintiff, and files this, his
Plaintiff’s Motion to Dismiss for Failure to State a Claim pursuant to Section 91a of the Texas
Rules of Civil Procedure regarding the claims asserted by Defendant in “DEFENDANTS
COUNTERPETITION AND COUNTER CLAIM” (sic) and Plaintiff’s Motion for Sanctions. In
support of this Motion, Plaintiff states as follows:
I. FACTUAL SUMMARY
Plaintiff initially filed this action on May 23, 2023. Defendant filed an Original Answer
on June l6, 2023. However, on August 18, 2023, Defendant filed an Amended Answer and
Affirmative Defenses, as well as Defendants Counterpetition and Counter Claim (sic).
II. ARGUMENTS & AUTHORITIES
It is difficult to understand what Defendant is suggesting Plaintiff did or did not do that
would be legally compensable as Defendant’s pleading is largely a nonsensical rant about:
1. Her requested revisions to the contract;
2. Conclusionary statements that amount to “Petitioner breached the contract because he
breached the contract” without any explanation for how the contract was breached; and,
3. General complaints regarding Plaintiff, even though no evidence of such was provided, or
exists; and,
4. The requested relief listed by the Defendant is not even available to this Court.
Tex. R. Civ P. 91a states, in part:
[A] party may move to dismiss a cause of action on the grounds
that it has no basis in law or fact. A cause of action has no basis in
law if the allegations, taken as true, together with inferences
reasonably drawn from them do not entitle the claimant to the
relief sought. A cause of action has no basis in fact if no reasonable
person could believe the facts pleaded.
There is not a single citation of law anywhere in Defendant’s pleading. Rather, it appears that
her requests are not based on law, in any way; rather, she has simply arbitrarily asked this Court
for some way to cancel her debt.
III. Motion for Sanctions
In order to violate Rule 13, a party must sign an instrument that is either (a) groundless
and brought in bad faith or (b) groundless and brought for the purpose of harassment. See Tex. R.
Civ. P I3. Under Section 10.001 et. seq. of the Texas Civil Practice and Remedies Code, the
court may impose an appropriate sanction when a party signs a pleading or motion that is being
presented for any improper purpose, including t0 harass or to cause unnecessafl delay or
needless increase in the cost 0f litigation; has a claim, defense or other legal contention in
thg pleading or motion that is not warranted by existing law or has a frivolous argument
for the extension. modification. or reversal of existing law 0r the establishment of new law;
hn hll tinr hrf lnntininth l in rmtin n h
evidential suDDort or. for a specifically identified allegation or factual contention. is likely
to have evidentiarv sunnort after a reasonable onnortunitv for further investigation or
discoverv: 0r when each denial in the pleading or motion of a factual contention is
warranted on the evidence or, for a specifically identified denial, is reasonably based upon
a lack of information or belief. Sanctions can be imposed upon the person who signed it. a
represented party, er hath. (emphasis added) See Tex. R. Civ. P. 10.001.
Since the filing of this case by Plaintiff on May 23, 2023, Defendant has filed:
1. Two Motions to Dismiss;
2. After filing an Answer, a Motion to Change Venue;
3. Multiple Unofficial Letters to the Court; and,
4. Counterclaims with absolutely no legal basis.
None of these pleadings contain legally recognizable claims; however, their filing still
requires a response from Plaintiff. As such, Plaintiff is forced to encure attorney fees and other
costs purely for the sake of responding to pleadings and motions that can only be for an
“improper purpose, including to harass or to cause unnecessary delay or needless increase in the
cost of litigation; has a claim, defense or other legal contention in the pleading or motion that is
not warranted by existing law or has a frivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law”. Tex. R. Civ. P. 10.
IV. REQUESTED RELIEF
Pursuant to TRCP l3:
If a pleading, motion or other paper is signed in Violation of this
rule, the court, upon motion or upon its own initiative, after notice
and hearing, shall impose an appropriate sanction available under
Rule 215-2b, upon the person who signed it, a represented party, or
both.
Pursuant to TRCP 215, the Court may
(1) an order disallowing any further discovery of any kind or of a
particular kind by the disobedient party;
(2) an order charging all or any portion of the expenses of
discovery or taxable court costs or both against the disobedient
party or the attorney advising him;
(3) an order that the matters regarding which the order was made
or any other designated facts shall be taken to be established for
the purposes of the action in accordance with the claim of the party
obtaining the order;
(4) an order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting him from
introducing designated matters in evidence;
(5) an order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing with or
without prejudice the action or proceedings or any part thereof, or
rendering a judgment by default against the disobedient party;
(6) in lieu of any of the foregoing orders or in addition thereto, an
order treating as a contempt of court the failure to obey any orders
except an order to submit to a physical or mental examination;
(7) when a party has failed to comply with an order under Rule 204
requiring him to appear or produce another for examination, such
orders as are listed in paragraphs (l), (2), (3), (4) or (5) of this
subdivision, unless the person failing to comply shows that he is
unable to appear or to produce such person for examination.
(8) In lieu of any of the foregoing orders or in addition thereto, the
court shall require the party failing to obey the order or the
attorney advising him, or both, to pay, at such time as ordered by
the court, the reasonable expenses, including attorney fees, caused
by the failure, unless the court finds that the failure was
substantially justified or that other circumstances make an award
of expenses unjust. Such an order shall be subject to review on
appeal from the final judgment.
Accordingly, Respondent humbly asks the Court for an Order that includes, but not
necessarily limited to:
a. Attorney fees in the amount of $2,000.00 for the need to draft this motion, additional
pleadings and appearance at hearings;
b. Dismissing Defendant’s Counterclaims;
c. Holding Defendant in contempt of Court; and,
d. Rendering default judgment in favor of Plaintiff.
V. PRAYER
WHEREFORE, Plaintiff, for the aforementioned reasons, asks this Court to dismiss
Defendant’s Counterclaims and GRANT Plaintiff’s Motion for Sanctions and issue Orders for all
requested relief and all other relief to which Plaintiff is entitled by law or equity.
Respectfully submitted,
Webster Law, PLLC
By: /S/James Webster
James M. Webster
State Bar No. 24095870
jim@websterlaw.net
9752 Old Field Dr.
McKinney, Texas 75072
(972)284-9889
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I do hereby certify that on August 21. 2023 a true and correct copy of the above and
foregoing document has been forwarded Via eservice and email:
/s/James Webster
James M. Webster
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
James Webster on behalf of James Webster
Bar No. 24095870
jim@websterlaw.net
Envelope ID: 78749003
Filing Code Description: Motion - Dismiss
Filing Description:
Status as of 8/21/2023 4:19 PM CST
Associated Case Party: JAMES WEBSTER
Name BarNumber Email TimestampSubmitted Status
James Webster jim@websterlaw.net 8/21/2023 3:14:10 PM SENT
Associated Case Party: AMANDA CARRIZALES
Name BarNumber Email TimestampSubmitted Status
Amanda Carrizales akcarrizale382@yahoo.com 8/21/2023 3:14:10 PM SENT
Preview
FILED 8/21/2023 3:14 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Brandon Keys DEPUTY CAUSE NO. DC-23-06718 JAMES WEBSTER, § IN THE DISTRICT COURT 0F Plaintiff, § § Vs. § 44TH JUDICIAL DISTRICT § AMANDA CARRIZALES, § Defendant. § DALLAS COUNTY, TEXAS Plaintiff’s Motion t0 Dismiss for Failure to State a Claim COMES NOW JAMES WEBSTER, Plaintiff and attorney for Plaintiff, and files this, his Plaintiff’s Motion to Dismiss for Failure to State a Claim pursuant to Section 91a of the Texas Rules of Civil Procedure regarding the claims asserted by Defendant in “DEFENDANTS COUNTERPETITION AND COUNTER CLAIM” (sic) and Plaintiff’s Motion for Sanctions. In support of this Motion, Plaintiff states as follows: I. FACTUAL SUMMARY Plaintiff initially filed this action on May 23, 2023. Defendant filed an Original Answer on June l6, 2023. However, on August 18, 2023, Defendant filed an Amended Answer and Affirmative Defenses, as well as Defendants Counterpetition and Counter Claim (sic). II. ARGUMENTS & AUTHORITIES It is difficult to understand what Defendant is suggesting Plaintiff did or did not do that would be legally compensable as Defendant’s pleading is largely a nonsensical rant about: 1. Her requested revisions to the contract; 2. Conclusionary statements that amount to “Petitioner breached the contract because he breached the contract” without any explanation for how the contract was breached; and, 3. General complaints regarding Plaintiff, even though no evidence of such was provided, or exists; and, 4. The requested relief listed by the Defendant is not even available to this Court. Tex. R. Civ P. 91a states, in part: [A] party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded. There is not a single citation of law anywhere in Defendant’s pleading. Rather, it appears that her requests are not based on law, in any way; rather, she has simply arbitrarily asked this Court for some way to cancel her debt. III. Motion for Sanctions In order to violate Rule 13, a party must sign an instrument that is either (a) groundless and brought in bad faith or (b) groundless and brought for the purpose of harassment. See Tex. R. Civ. P I3. Under Section 10.001 et. seq. of the Texas Civil Practice and Remedies Code, the court may impose an appropriate sanction when a party signs a pleading or motion that is being presented for any improper purpose, including t0 harass or to cause unnecessafl delay or needless increase in the cost 0f litigation; has a claim, defense or other legal contention in thg pleading or motion that is not warranted by existing law or has a frivolous argument for the extension. modification. or reversal of existing law 0r the establishment of new law; hn hll tinr hrf lnntininth l in rmtin n h evidential suDDort or. for a specifically identified allegation or factual contention. is likely to have evidentiarv sunnort after a reasonable onnortunitv for further investigation or discoverv: 0r when each denial in the pleading or motion of a factual contention is warranted on the evidence or, for a specifically identified denial, is reasonably based upon a lack of information or belief. Sanctions can be imposed upon the person who signed it. a represented party, er hath. (emphasis added) See Tex. R. Civ. P. 10.001. Since the filing of this case by Plaintiff on May 23, 2023, Defendant has filed: 1. Two Motions to Dismiss; 2. After filing an Answer, a Motion to Change Venue; 3. Multiple Unofficial Letters to the Court; and, 4. Counterclaims with absolutely no legal basis. None of these pleadings contain legally recognizable claims; however, their filing still requires a response from Plaintiff. As such, Plaintiff is forced to encure attorney fees and other costs purely for the sake of responding to pleadings and motions that can only be for an “improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation; has a claim, defense or other legal contention in the pleading or motion that is not warranted by existing law or has a frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law”. Tex. R. Civ. P. 10. IV. REQUESTED RELIEF Pursuant to TRCP l3: If a pleading, motion or other paper is signed in Violation of this rule, the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate sanction available under Rule 215-2b, upon the person who signed it, a represented party, or both. Pursuant to TRCP 215, the Court may (1) an order disallowing any further discovery of any kind or of a particular kind by the disobedient party; (2) an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising him; (3) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (4) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; (5) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party; (6) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; (7) when a party has failed to comply with an order under Rule 204 requiring him to appear or produce another for examination, such orders as are listed in paragraphs (l), (2), (3), (4) or (5) of this subdivision, unless the person failing to comply shows that he is unable to appear or to produce such person for examination. (8) In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him, or both, to pay, at such time as ordered by the court, the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment. Accordingly, Respondent humbly asks the Court for an Order that includes, but not necessarily limited to: a. Attorney fees in the amount of $2,000.00 for the need to draft this motion, additional pleadings and appearance at hearings; b. Dismissing Defendant’s Counterclaims; c. Holding Defendant in contempt of Court; and, d. Rendering default judgment in favor of Plaintiff. V. PRAYER WHEREFORE, Plaintiff, for the aforementioned reasons, asks this Court to dismiss Defendant’s Counterclaims and GRANT Plaintiff’s Motion for Sanctions and issue Orders for all requested relief and all other relief to which Plaintiff is entitled by law or equity. Respectfully submitted, Webster Law, PLLC By: /S/James Webster James M. Webster State Bar No. 24095870 jim@websterlaw.net 9752 Old Field Dr. McKinney, Texas 75072 (972)284-9889 ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I do hereby certify that on August 21. 2023 a true and correct copy of the above and foregoing document has been forwarded Via eservice and email: /s/James Webster James M. Webster Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. James Webster on behalf of James Webster Bar No. 24095870 jim@websterlaw.net Envelope ID: 78749003 Filing Code Description: Motion - Dismiss Filing Description: Status as of 8/21/2023 4:19 PM CST Associated Case Party: JAMES WEBSTER Name BarNumber Email TimestampSubmitted Status James Webster jim@websterlaw.net 8/21/2023 3:14:10 PM SENT Associated Case Party: AMANDA CARRIZALES Name BarNumber Email TimestampSubmitted Status Amanda Carrizales akcarrizale382@yahoo.com 8/21/2023 3:14:10 PM SENT