Motion to Dismiss in TIMOTHY G. PLETTA vs. HERITAGE HOUSE CLOCKS, INC., et al| Trellis.Law

On May 28, 2020 a Motion-Secondary was filed involving a dispute between Pletta, Ann Hennum, Pletta, Mariella L., Pletta, Timothy G., and Allstate Insurance Company, B&R Wiley Family, Gp., L.L.C. D B A Serv Pro Of Mesquite & Kaufman County, B&R Wiley Family, L.P. D B A Serv Pro Of Mesquite & Kaufman County, B&R Wiley Family, L.P. D B A Serv Pro Of Mesquite & Kaufman Countyand Cedar Creek, Evartt, Edward, Evartt, Jennifer, Heritage House Clocks, Inc., Marchesoni, Alention S., Marchesoni, Glenda, Marchesoni, Nicholas, Marchesoni, Valentino S., Wiley, Brandon J, Wiley, Regina L, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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FILED
9/3/2020 12:59PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO.,TEXAS
Rhonda Burks DEPUTY

CAUSE NO. DC-20-07433

TIMOTHY G. PLETTA, IndV. and IN THE DISTRICT COURT
d/b/a Law Ofﬁce 0f Timothy G.
Pletta and as Trustee for the
ANN HENNUM & TIMOTHY GERARD
PLETTA REVOCABLE TRUST, ANN H.
PLETTA, Indv. and MARIELLA L.
PLETTA,

Plaintiffs

vs.

HERITAGE HOUSE CLOCKS, INC.
d/b/a Heritage House Clocks,
a Franchise Tax Ended Texas
Corporation, VALENTINO S. 134th JUDICLAL DISTRICT
MARCHESONI, Indv. and d/b/a
Heritage House Clocks
NICHOLAS MARCHESONI, Indv. and 00000300?00000300?000mm000003000WWDWOOOOMWWWDWOOOWDWOOOWDWOOOWDWWWDWOOOWDW

d/b/a Heritage House Clocks
GLENDA MARCHESONI, Indv. and
d/b/a Heritage House Clocks,
B&R WILEY FAMILY, GP., L.L.C.,
B&R WILEY FAMILY, L.P. d/b/a
Servpro of Mesquite, Kaufman
County and Cedar Creek, BRANDON
J. WILEY a/k/a BRANDON JOE WILEY,

REGINA L. WILEY a/k/a REGINA LYNN
WILEY, JENNIFER EVARTT, EDWARD
EVARTT, a/k/a EDWARD EVART III
a/k/a EDWARD DEAN EVARTT a/k/a
EDDIE EVARTT and ALLSTATE
INSURANCE COMPANY,

Defendants DALLAS COUNTY, TEXAS

PLAINTIFFS’ SUPPLEMENTAL RESPONSE TO DEFENDANTS’ HERITAGE
SUPPLEMENTAL CASE LAW IN SUPPORT OF DEFENDANTS HERITAGE’S
MOTION TO DISMISS PURSUANT TO RULE 91a

PLAINTIFFS’ SUPPLEMENTAL RESPONSE TO DEFENDANTS’ HERITAGE
SUPPLEMENTAL CASE LAW IN SUPPORT OF DEFENDANTS HERITAGE’S
MOTION TO DISMISS PURSUANT TO RULE 9la Page 1
TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, TIMOTHY G. PLETTA, IndV. and d/b/a Law Ofﬁce 0f Timothy G.

Pletta and as Trustee for the ANN HENNUM & TIMOTHY GERARD PLETTA
REVOCABLE TRUST, ANN H. PLETTA, IndV. and MARIELLA L. PLETTA
(“Plaintiffs” or collectively as “PLETTA”) in the above-referenced and cause numbered action,

and ﬁles their Supplemental Response to Defendants’, HERITAGE, Supplemental Case Law in

Support of Defendants, Heritage’s, Motion t0 Dismiss Under Rule 91a and would respectfully

show the Court as follows:

SUMMARY

1.01 During the August 27, 2020 hearing on Defendants, Heritage’s, Motion to Dismiss under

Rule 91a, the Court invited the counsel for the Heritage Defendants t0 provide case law 0n the

narrow issue 0f Whether 0r not an afﬁrmative pleading could be dismissed under Rule 91a if

there was an ambiguity between two sections of the pleadings.

1.02 Defendants, Heritage, has not provided the Court with any such guidance. Instead,

Defendants, Heritage, rehash the points covered in its original motion arguing that a written work

order is the only basis of a contract between the parties.

Defendants, Heritage, continually chooses t0 ignore paragraph 6.04 0f Plaintiffs’ live

pleadings:

6.04 Also, at PLETTA’S request, SERVPRO referred HERITAGE t0 assist With the
restoration of the PLETTA'S Howard Miller Grandfather Clock, the very ﬁrst item
removed by Timothy Pletta, Maxwell Pletta and two (2) ﬁreﬁghters from the City of
Coppell Fire Department, Which sustained only minor water damage at its wooden base
having sat in approximately 8 inches of water for about an hour. HERITAGE agreed t0
assist and removed the PLETTA’s Howard Miller Grandfather Clock t0 its van
parked 0n the street Where discussions took place by and between the PLETTA’s
and Heritage House Clocks. Thereafter, Heritage House Clocks said it could and

PLAINTIFFS’ SUPPLEMENTAL RESPONSE TO DEFENDANTS’ HERITAGE
SUPPLEMENTAL CASE LAW IN SUPPORT OF DEFENDANTS HERITAGE’S
MOTION TO DISMISS PURSUANT TO RULE 91a Page 2
would “make like new” the wooden base 0f the PLETTA's Howard Miller
Grandfather Clock for “around a thousand dollars” adding, “you saved your clock”
(...bV getting the clock out 0f the standing water immediately after the ﬁre).
PLETTA agreed and released his Howard Miller Grandfather Clock t0 Heritage
House Clocks for the agreed repairs.

1.03 As cited herein, “we look t0 the pleader’s intent and uphold the pleading “even if

some element of a cause 0f action has not been speciﬁcally alleged” because “[e]very fact

Will be supplied that can be reasonably inferred from What is speciﬁcally stated.”” See In

Re Odebrecht Construction, Ina, 548 S.W.3d 739, 746 (TexApp. — Corpus Christi, 2018)

1.04 Defendants, Heritage, does not cite the Court t0 any authority allowing a Texas Trial

Court t0 rule in favor of a Motion t0 Dismiss When there is,at best, an ambiguity in the pleadings

if the facts pleaded give fair notice.

1.05 Defendants, Heritage, should have availed themselves to Rule 90 and Rule 91 of the

Texas Rules of Civil Procedure as well as the various forms of pre-trial discovery. The ﬁling of

a Rule 91a Motion t0 Dismiss, in this case, was not supported by any Texas case law 0r by Rule

91a.

II.

SUPPLEMENTAL RESPONSE

2.01 “Texas is a notice pleading jurisdiction, and a petition issufﬁcient if it gives fair and

adequate notice of the facts upon Which the pleader bases his claim.” In re Butt, 495 S.W.3d

455, 461-462 (TeX.App. — Corpus Christi 2016, orig. proceeding).

2.02 The mere fact that Heritage is arguing the facts contained in Plaintiffs’ pleadings satisﬁes

the fair notice standard under the Texas Rules of Civil Procedure.

2.03 Heritage relies heavily on In Re Odebrecht Construction, Ina, 548 S.W.3d 739 (TexApp.

— Corpus Christi, 2018) in their Supplemental Brief. Plaintiffs did not cite Odebrecht Within the

PLAINTIFFS’ SUPPLEMENTAL RESPONSE TO DEFENDANTS’ HERITAGE
SUPPLEMENTAL CASE LAW IN SUPPORT OF DEFENDANTS HERITAGE’S
MOTION TO DISMISS PURSUANT TO RULE 91a Page 3
body of their Response, but did reference it in their bench book as further support ofBedford

Internet v. Texas Insurance, 537 S.W.3d 717 (TeX. App. - Fort Worth -
2017) Which Plaintiffs d0

rely. However, in further response t0 Heritage’s Motion t0 Dismiss, it isimportant t0 note that

Odebrecht was a wrongful termination case wherein the trial court denied the

employer/defendant’s motion t0 dismiss. The plaintiff claimed that she was wrongfully

terminated because her son and co-worker suffered an injury at work and ﬁled for workers”

compensation. After having itsmotion t0 dismiss under 9 1 a denied by the trial court, the

employer sought mandamus claiming the case was a “baseless cause 0f action” under Texas

Labor Code Chapter 45 1. The employer argued “Mora failed t0 allege any facts t0 show that he

“testiﬁed” 0r was “about t0 testify” in a workers’ compensation proceeding”. The employer

claimed that the “At Will” doctrine controlled and the “discrimination” exception t0 the doctrine

set forth in Chapter 451 0f the TeX.Lab.Code did not apply. After the employer’s motion t0

dismiss was ﬁled, the employee ﬁled an amended pleading which alleged additional facts

outlining the basis for the wrongful termination cause 0f action. The employee, Mora, attached

his son’s original petition in the worker’s compensation case as “Exhibit ‘A’” t0 the amended

pleading. The trial court requested additional brieﬁng and then denied the motion to dismiss.

The employer then sought mandamus.

2.04 Odebrecht goes 0n to discuss how a court should View an afﬁrmative pleading. “[U]nder

this standard, we look t0 the pleader’s intent and uphold the pleading “even if some element

0f a cause 0f action has not been speciﬁcally alleged” because “[e]very fact will be supplied

that can be reasonably inferred from what is speciﬁcally stated.”” See Odebrecht at page

746. Citing Roark, 633 S.W.3d at 809 (quoting Gulf Colorado & Santa Fe Ry. C0. v. Bliss, 368

S.W. 2d 594, 599 (TeX. 1963); see In re Lipsky, 460 S.W.3d 579, 590 (TeX. 2015) (orig.

PLAINTIFFS’ SUPPLEMENTAL RESPONSE TO DEFENDANTS’ HERITAGE
SUPPLEMENTAL CASE LAW IN SUPPORT OF DEFENDANTS HERITAGE’S
MOTION TO DISMISS PURSUANT TO RULE 91a Page 4
proceeding); Boyles v. Kerr, 855 S. W.2d 593, 601 (Tex. 1993) (0p. 0n reh ’g);see also Aldous V.

Bruss, 405 S.W.3d 847, 857 (TexApp. — Houston [14th Dist] 2013, no pet). Plettas’ pleadings

in this case far surpass the standard set forth in Odebrechz‘ as evidenced by Defendants,

Heritage’s, argument regarding the details 0f Plaintiffs’ pleadings.

2.05 Ultimately, the employer in Odebrecht lost his argument With the appellate court stating,

“a motion to dismiss under Rule 91a was not the proper motion t0 address Odebrecht’s

arguments rearding Mora’s alleged cause 0f action”. See Odebrecht page 466.

2.06 Should the Court deny Defendants, Heritage’s, Motion to Dismiss, Plaintiffs re-urge their

request for attorney’s fees as provided under Rule 91a.

WHEREFORE PREMISES CONSIDERED, Plaintiffs pray that the Court deny

Defendants, Heritage’s, Motion to Dismiss under Rule 91a and award Plaintiffs, PLETTA, their

attorney’s fees and costs for having t0 respond t0 the Motion t0 Dismiss.

Respectfully submitted,

LAW OFFICES OF JOHN C. SHERWOOD

By: /s/ John C. Sherwood
John C. Sherwood
State Bar N0. 18254700
The MAS Law Firm Building
212 W. Spring Valley Road
Dallas, Texas 75081
jsherwood@sherwoodlaw0fﬁce.com
eﬁle@sherwoodlawofﬁce.c0m
214- 696-1 100
888-599-3005 facsimile

ATTORNEY FOR PLAINTIFFS

PLAINTIFFS’ SUPPLEMENTAL RESPONSE TO DEFENDANTS’ HERITAGE
SUPPLEMENTAL CASE LAW IN SUPPORT OF DEFENDANTS HERITAGE’S
MOTION TO DISMISS PURSUANT TO RULE 91a Page 5
CERTIFICATE OF SERVICE

I certify that a true and correct copy 0f the foregoing document has been served on the
Defendants, by and through their attorney 0f record, Via eservice 0n September 2, 2020.

/s/J0hn C. Sherwood
JOHN C. SHERWOOD

Attornev for Defendants - Heritage

Mr. Timothy R. Strann
STRANN LAW FIRM
18601 LBJ Freeway, Suite 400
Mesquite, Texas 75 150
(972) 226-5838
(972) 226-0809 Fax
strannlaw@aol.com

Attorney for Defendants - Servpro

Mr. Keith W. Marshall
101 N. Central Expressway, Suite 901
Richardson, Texas 75080
(972) 234-8816
(972) 234-8869 Fax
attymarsha11@sbcglobal.com

Attorney for Defendant - Allstate

Mr. Brandt Johnson
Mr. Roger Higgins
Thompson Coe Cousins & Irons
700 N. Pearl Street, Twenty-Fifth Floor
Dallas, Texas 7520 1 -2832
214-871-8200
214-87 1 -8209 Fax

PLAINTIFFS’ SUPPLEMENTAL RESPONSE TO DEFENDANTS’ HERITAGE
SUPPLEMENTAL CASE LAW IN SUPPORT 0F DEFENDANTS HERITAGE’S
MOTION TO DISMISS PURSUANT TO RULE 91a Page 6
COURT COURTESY COPY
CASE LAW

In Re Odebrecht 549 S.W.3d 739 - Highlighted
In reOdebrecht Constr., 548 S.W.3d 739 (Tex. App. 2018)
Inc.,

548 S.W.3d 739 Court, we grant rehearing in this case.
Accordingly, we withdraw our August 15, 2017
IN RE ODEBRECHT CONSTRUCTION, memorandum opinion and the dissenting
INC. memorandum opinion, and we substitute this
memorandum opinion denying Odebrecht’s
NUMBER 13-17-00289—CV petition for writ of mandamus in their stead.
We dismiss Mora’s motion for en banc
Court oprpeals of Texas, Corpus reconsideration as moot.
Christi-Edinburg.
Through this original proceeding, Odebrecht
Delivered and ﬁled April 11, 2018 seeks to compel the trial court to grant its

motion to dismiss the underlying case against
Robert L. Galligan, Jones, Galligan, Key & it as a legally "baseless" cause of action under
Lozano, 2300 West Pike B1Vd., Suite 300, Texas Rule of Civil Procedure See
91a.f
P.O. Drawer 1247, Weslaco, TX 78599—1247, generally TEX. R. CIV. P. 91a. Mora brought
for Relator.
suit against Odebrecht for wrongful
termination, alleging that Odebrecht
Francisco J.Enriquez, Law Ofﬁce of Francisco Mora’s
terminated employment because
J. Enriquez, 4200—B N. Bicentennial,
Mora’s son, a co-worker, suffered an injury at
McAllen, TX 78504, William J. Tinning,
work and filed a claim for workers'
Attorney at Law, 1013, Bluff Drive, Portland,
compensation. Odebrecht contends that
TX 78374, for Real Party in Interest. Mora’s claim is a baseless cause of action
under Texas Labor Code Chapter 451 because
Before Justices Rodriguez, Contreras, and
Mora failed t0 allege any facts to show that he
Benavides
"testified" 0r was "about to testify" in a
workers' compensation proceeding. See TEX.
MEMORANDUM OPINION ON
REHEARING LAB. CODE ANN. § 451.001(4) (West,
Westlaw through 2017 lst C.S.). Odebrecht
seeks to compel the trialcourt t0: (1) vacate
Memorandum Opinion by Justice Rodriguez:
its order denying Odebrecht’s motion to

On August 2017, we issued a dismiss under Texas Rule of Civil Procedure
15,
memorandum opinion conditionally granting 91a ; (2) grant its motion to dismiss; and (3)

the petition for writ 0f mandamus ﬁled by award Odebrecht its costs and attorney’s fees.
relator Odebrecht Construction, Inc. See TEX. R. CIV. P. 91a. Considering solely

(Odebrecht) in this original proceeding. See the pleading of Mora’s cause of action, aswe
In re Odebrecht Constr., Inc. No. 13—17— are required t0 d0 by the rules of civil
,

00289-CV, 2017 WL 3484526, at *1 (Tex. procedure, we conclude that Mora’s
App.—Corpus Christi Aug. allegations, taken as true, have a basis in law.
15, 2017, orig.

proceeding) (mem. 0p.). Thereafter, real party Accordingly, we deny the petition for writ of

in interest Rodolfo Mora ﬁled a motion for mandamus.
rehearing or en banc reconsideration, and
Odebrecht ﬁled a response to
I.BACKGROUND
According to Mora’s original petition, Mora
[548 S.W.3d 743]
was wrongfully terminated from his

that motion. See generally TEX. R. APP. P. employment with Odebrecht when Mora’s son
ﬁled a workers' compensation claim after
49. After due consideration 0f Mora’s motion
for rehearing, Odebrecht’s response, and being injured during the course and scope of
recent cases decided by the Texas Supreme his employment with Odebrecht. Mora
In reOdebrecht Constr., 548 S.W.3d 739 (Tex. App. 2018)
Inc.,

alleged discrimination "pursuant t0 Chapter WWWODBREHH‘.
451 of the Texas Labor Code." Odebrecht filed
a motion to dismiss Mora’s case under Texas Plaintiff RODOLFO MORA is

Rule 0f Civil Procedure 91a on grounds that the father 0f the injured
the facts alleged by Mora did not "state a employee JUAN MORA [who is

cognizable legal claim under any of the the Plaintiff in a separate
narrow exceptions to Texas’s at-Will lawsuit, and a copy of the
employment doctrine." Odebrecht asserted petition in that lawsuit is

that Chapter 451 of the Texas Labor Code, attached hereto as Exhibit "A"]

which prohibits discrimination against and Foreman of the crew which
employees involved in certain aspects of the employed the injured employee,
workers' compensation process, is an his son JUAN MORA. He, his
exception t0 the doctrine, but that Mora’s son and the crew were called in
claims failed to fall within this statutory after the accident and told they
exception. In itsmotion t0 dismiss, Odebrecht were going to be terminated.
specifically discussed section 451.001 0f the The people who were
Texas Labor Code and argued that Mora’s terminated were witnesses to
petition failed to plead a cognizable claim the accident and/or 0f the
under that section because, inter alia, that defective condition 0f the
section did not extend protection from machinery which caused the
retaliatory discharge to "employee—relatives" employee, JUAN MORA to be
0f a workers' compensation claimant and entangled, almost killed, and
Mora "does not (and based on the facts, could severely injured.
not) allege that he had testiﬁed or was about
t0 testify in a contested workers' One of the crew members who
compensation hearing prior to his dismissal." was not a family member was
See id. § 451.001(1) — (4). Odebrecht thus then pulled aside and then told
alleged that ithad the right t0 terminate Mora he was—"wink, wink" going t0
based on his status as an "at—will" employee. be retained but was told this to
make it appear it was a lay off
Mora subsequently ﬁled a first amended even though there was
petition which stated the following under a additional work which needed
be done, and there was not a
[548 S.W.3d 744] reduction in force, that was
being actually imposed.
heading entitled "Facts, Causes of Action, and
Damages": As a proximate result 0f the
aforementioned negligence,
On or about January 22, 2016,
Plaintiff suffered damages. All
Plaintiff was wrongfully 0f the above was caused by the
terminated from his negligence complained of
employment with Defendant herein.
ODEBRECHT. Plaintiff [was]
discriminated against pursuant As referenced in this pleading, Mora attached
to Chapter 451 of the Texas Exhibit "A," his son’s original petition in Juan
Labor Code, when he was Mora v. Odebrecht Construction, Inc., Zachry
[terminated] just a few weeks Construction Corp., Zachry Industrial, Inc.,
after his son was injured while David Defriese, individually and as agentfor
in the course and scope of his Zachry Construction Corp. and Zachry
In reOdebrecht Constr., 548 S.W.3d 739 (Tex. App. 2018)
Inc.,

Industrial Inc., and Zachry-Odebrecht Mandamus is available to review a trial

Parkway Builders ,
filed in trial court cause court’s denial of a motion to dismiss under
number C—3329—16—I in the 398th District Texas Rule of Civil Procedure 91a. In re Essex
Court 0f Hidalgo County, to his ﬁrst amended Ins. Co. , 450 S.W.3d 524, 528 (Tex. 2014)
petition. (orig. proceeding) (per curiam); In re Butt ,

495 S.W.3d 455, 46o (Tex. App.—Corpus
After receiving additional brieﬁng from the Christi 2016, orig. proceeding). In laying the
parties, the trial court denied Odebrecht’s groundwork for a rule mandating the early
motion to dismiss. This original proceeding dismissal of baseless causes of action, the
ensued. Odebrecht raises one issue through Legislature has effectively already balanced
which itcontends that Mora’s claim that he most of the relevant costs and beneﬁts of an
was wrongfully terminated is a baseless cause appellate remedy, and mandamus review of
0f action under Texas Labor Code Chapter 451 orders denying Rule 91a motions comports
because Mora failed to allege any facts to with the Legislature’s requirement for an
show that he "testiﬁed" or was "about to early and speedy resolution of baseless
testify" in a workers' compensation claims. In re Butt , 495 S.W.3d at 460.
proceeding. This Court requested and
received a response to the petition from Mora III.BASELESS CAUSES OF ACTION
and further received a reply to Mora’s
response from Odebrecht. In 2013, the Texas Supreme Court adopted
Texas Rule of Civil Procedure 91a,§ which
II.MANDAMUS governs the dismissal of baseless causes of
action and Which provides in pertinent part:
"Mandamus relief isproper t0 correct a clear
abuse of discretion when there is n0 adequate [A] party may move t0 dismiss a
remedy by appeal." In re Frank Motor Co. ,
cause of action on the grounds
361 S.W.3d 628, 630 (Tex. 2012) (orig. that it has no basis in law or
proceeding); see In re Olshan Found. Repair fact. A cause of action has no
Co. , 328 S.W.3d 883, 887 (Tex. 2010) (orig. basis in the law if the
proceeding); In re Prudential Ins. Co. ofAm. ,
allegations, taken as true,
148 S.W.3d 124, 135—36 (Tex. 2004) (orig. together with inferences
proceeding); Walker v. Packer ,827 S.W.2d reasonably drawn from them,
833, 839 (Tex. 1992) (orig. proceeding). A do not entitle the claimant to
trialcourt abuses itsdiscretion if it reaches a the relief sought. A cause of
decision so arbitrary and unreasonable that it action has no basis in fact ifno
amounts to a clearand prejudicial error of law reasonable person could believe
0r if it clearly fails t0 correctly analyze or the facts pleaded.
apply the law. In re Olshan Found. Repair Co.
,328 S.W.3d at 888 ;
Walker ,827 S.W.2d at TEX. R. CIV. P. 91a.1; see City of Dallas v.

840. Mandamus willnot issue "when the law Sanchez , 494 S.W.3d 722, 724—25 (Tex.
provides another plain, adequate, and 2016) (per curiam). "A motion to dismiss
complete remedy." In re Tex. Dep't ofFamily must state that itis made pursuant to this

& Protective Servs. ,
210 S.W.3d 609, 613 rule, must identify each cause of action t0

(Tex. 2006) (orig. proceeding which it is addressed, and must state
speciﬁcally the reasons the cause 0f action has
[548 S.W.3d 745] n0 basis in law, no basis in fact, or both."
TEX. R. CIV. P. 91a.2. The rule allows the
) (quoting In re Prudential , 148 S.W.3d at responding party to either nonsuit or amend
135—36 )- the challenged cause 0f action at least three
In reOdebrecht Constr., 548 S.W.3d 739 (Tex. App. 2018)
Inc.,

days before the date of the hearing on the Jan. 18, 2017, pet. denied) ;
Koenig , 497
motion to dismiss. See id. R. 91a.5(a), (b).f S.W.3d at 599 ;
In re Butt ,495 S.W.3d at 462
"The trial court may, but is not required to, ; Wooley ,447 S.W.3d at 76. The fair notice
conduct an oral hearing on the motion." Id. R. criterion isa "relatively liberal standard." Low
91a.6. Further, "the court may not consider v.Henry ,
221 S.W.3d 609, 612 (Tex. 2007) ;

evidence in ruling on the motion and must see TEX. R. CIV. P. 45 ("All pleadings shall be
decide the motion based solely on the construed so as to do substantial justice.");

pleading of the cause 0f action, together with TEX. R. CIV. P. 47 (requiring pleadings to
any pleading exhibits permitted by" the rules contain "a short statement of the cause of
0f civil procedure. Id. ;
see City ofDallas ,494 action sufﬁcient t0 give fair notice 0f the claim
S.W.3d at 725 Reaves v. City of Corpus involved"). Under this standard, "a petition is
;

Christi , 518 S.W.3d 594, 599 (Tex. sufficient gives fair and adequate notice of
if it

App.—Corpus Christi 2017, no pet.) ;
Koenig the facts upon which the pleader bases his
v. Blaylock , 497 S.W.3d 595, 599 (Tex. claim." Kopplow Dev., Inc. v. City of San
App.—Austin 2016, pet. denied) ;
In re Butt ,
Antonio , 399 S.W.3d 532, 536 (Tex. 2013) ;

495 S.W.3d 455, 461 (Tex. App.—Corpus see Roark v. Allen , 633 S.W.2d 804, 810
Christi 2016, orig. proceeding) ;
see also TEX. (TeX. 1982). The test for determining whether
R. CIV. P. 59 (governing the incorporation of a petition provides fair notice iswhether the
exhibits into pleadings). opposing party can ascertain from the
pleading the nature and basic issues
We perform a de novo review of the trial presented by the controversy and what
court’s ruling on a Rule 91a motion evidence might be relevant. First United
Pentecostal Church 0f Beaumont v. Parker ,

[548 S.W.3d 746] 514 S.W.3d 214, 224—25 (Tex. 2017) ;
Low ,

221 S.W.3d at 612 ;
Horizon/CMS Healthcare
to dismiss. See City ofDallas ,494 S.W.3d at Corp. v. Auld , 34 S.W.3d 887, 896 (Tex.
725 ;
Parkhurst v. Oﬁ‘ice ofAtt'y Gen. ofTex. ,
2000). The fair—notice standard measures
481 S.W.3d 400, 402 (Tex. App.—Amarillo "whether the pleadings have provided the
2015, no pet.) ; Wooley v. Schaﬁer , 447 opposing party sufficient information to
S.W.3d 71, 76 (Tex. App.—Houst0n [14th enable that party t0 prepare a defense or a
Dist] 2014, pet. denied) ; Dailey v. Thorpe , response." First United Pentecostal Church of
445 S.W.3d 785, 788 (Tex. App.—Houston Beaumont 514 S.W.3d at 224 see Kopplow
, ;

[lst Dist] 2014, no pet.) City of Austin v.
Dev., Inc. S.W.3d at 536 Roark 633
;
,399 ; ,

Liberty Mut. Ins. ,431 S.W.3d 817, 822 (Tex. S.W.2d at 810.
App.—Austin 2014, no pet.) ;GoDaddy.com,
L.L.C. v. Toups ,429 S.W.3d 752, 754 (Tex. Under this standard, we look to the pleader’s
App.—Beaum0nt 2014, pet. denied). We apply intent and uphold the pleading "even if some
a de novo standard because the availability of element of a cause of action has not been
a remedy under the facts alleged is a question speciﬁcally alleged" because "[e]very fact will
0f law and the rule’s factual—plausibility be supplied that can be reasonably inferred
standard is akin to a legal-sufﬁciency review. from what is speciﬁcally stated." Roark , 633
See City of Dallas , 494 S.W.3d at 725 ; S.W.3d at 809 (quoting Gulf, Colorado &
Wooley ,447 S.W.3d at 75—76. Santa Fe Ry. Co. v. Bliss ,368 S.W.2d 594,
599 (Tex. 1963) ); see In re Lipsky , 460
Texas is a fair notice pleading jurisdiction,
S.W.3d 579, 590 (Tex. 2015) (orig.
and we apply this doctrine t0 Rule 91a proceeding); Boyles v. Kerr , 855 S.W.2d 593,
motions to dismiss. Aguilar v. Morales ,
No. 601 (Tex. 1993) (op. on reh'g); see also Aldous
08—15—00098—CV, 545 S.W.3d 670, 676—77, Bruss S.W.3d
v. , 405 847, 857 (Tex.
2017 WL 192910, at *3 (Tex. App.—El Paso App.—H0uston [14th Dist] 2013, n0 pet.) ("It
In reOdebrecht Constr., 548 S.W.3d 739 (Tex. App. 2018)
Inc.,

isnot a valid objection t0 generally complain further argues that Odebrecht has not
that the pleading does not set out enough similarly ﬁled a motion to dismiss in his son’s
factual details if fair notice of the claim is separate lawsuit as referenced above. See
given"). Under fair notice pleading, a plaintiff generally TEX. LAB. CODE ANN. §§ 417.001
isnot required to "set out in his pleadings the —.004 (West, Westlaw through 2017 1st C.S.)
evidence upon which he relies to establish his (governing third—party liability in workers'
asserted cause of action." In re Lipsky ,460 compensation cases). Mora asserts that if

S.W.3d at 590 (quoting Paramount Pipe & Odebrecht believed that his claims were
Supply Co. v. Muhr , 749 S.W.2d 491, 494—95 frivolous, it would have ﬁled a motion to
(Tex. 1988) ). However, we may not "use a dismiss in that case, but it has not done so.
liberal construction of the petition as a license
to read into the petition a claim that itdoes The general rule in Texas is that "absent a
not contain." In Estate of Sheshtawy , 478 specific agreement t0 the contrary,
S.W.3d 82, 87 (Tex. App.—Houston [14th employment may be terminated by either the
Dist] 2015, orig. proceeding). When applying employer or the employee at—will, for good
the fairnotice standard to our review 0f the cause, bad cause, or n0 cause at all."

pleadings Montgomery Cty. Hosp. Dist. v. Brown , 965
S.W.2d 501, 502 (Tex. 1998) ;
see Cmty.
[548 S.W.3d 747] Health Sys. Profl Servs. Corp., v.Hansen ,

525 S.W.3d 671, 681 (Tex. 2017) ;Matagorda
on a Rule 91a motion to dismiss, we must Cty. Hosp. Dist. v. Burwell , 189 S.W.3d 738,
construe the pleadings liberally in favor of the 739 (Tex. 2006). The legislature has created
plaintiff, look to the pleader’s intent, and several statutory exceptions to the
accept as true the factual allegations in the employment—at—will doctrine. Sawyer v. E.I.
pleadings to determine ifthe cause 0f action Du Pont De Nemours & C0. , 430 S.W.3d 396,
has a basis in law or fact. Aguilar , 545 399 (Tex. 2014) ;
Martin v. Clinical
S.W.3d at 676—77, 2017 WL 192910, at *3 ; Pathology Labs., Inc. , 343 S.W.3d 885, 891
Stallworth v. Ayers ,
510 S.W.3d 187, 190 (Tex. App.—Dallas 2011, pet. denied). For
(Tex. App.—Houston [lst Dist] 2016, no pet.) example, statutory causes of action exist in

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TILLERY, DALE Track Judge’s New Case

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September 03, 2020

Case Filing Date

May 28, 2020

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Parties

ALLSTATE INSURANCE COMPANY Defendant
ALLSTATE INSURANCE COMPANY Defendant
AU, TIFFANY A Attorney for the Defendant
BLUE, ALEXANDER G Attorney for the Defendant
B&R WILEY FAMILY, GP., L.L.C. D/B/A SERV PRO OF MESQUITE & KAUFMAN COUNTY Defendant
B&R WILEY FAMILY, GP., L.L.C. D/B/A SERV PRO OF MESQUITE & KAUFMAN COUNTY Defendant
B&R WILEY FAMILY, L.P. D/B/A SERV PRO OF MESQUITE & KAUFMAN COUNTY Defendant
B&R WILEY FAMILY, L.P. D/B/A SERV PRO OF MESQUITE & KAUFMAN COUNTYAND CEDAR CREEK Defendant
B&R WILEY FAMILY, L.P. D/B/A SERV PRO OF MESQUITE & KAUFMAN COUNTYAND CEDAR CREEK Defendant
JOHNSON, BRANDT R Attorney for the Defendant
KERR, JASON Attorney for the Defendant
RUOTOLO, ROBERT Attorney for the Defendant
SHERWOOD, JOHN CHARLES Attorney for the Plaintiff
STRANN, TIMOTHY R. Attorney for the Defendant
MARSHALL, KEITH W Attorney for the Defendant
PLETTA, TIMOTHY GERARD Attorney for the Plaintiff
RUOTOLO, ROBERT Attorney for the Defendant
SIMPSON, NOAH H, III Attorney for the Defendant
EVARTT, EDWARD Defendant
EVARTT, EDWARD Defendant
EVARTT, JENNIFER Defendant
EVARTT, JENNIFER Defendant
HERITAGE HOUSE CLOCKS, INC. Defendant
HERITAGE HOUSE CLOCKS, INC. Defendant
JOHNSON, BRANDT R Attorney for the Defendant
KERR, JASON Attorney for the Defendant
LAUTIN, JONATHAN ANDREW Attorney for the Defendant
MARCHESONI, ALENTION S. Defendant
MARCHESONI, ALENTION S. Defendant
MARCHESONI, GLENDA Defendant
MARCHESONI, GLENDA Defendant
MARCHESONI, NICHOLAS Defendant
MARCHESONI, NICHOLAS Defendant
MARCHESONI, VALENTINO S. Defendant
MARCHESONI, VALENTINO S. Defendant
MARSHALL, KEITH W Attorney for the Defendant
MODJARRAD, SEAN S. Attorney for the Plaintiff
PLETTA, ANN HENNUM Plaintiff
PLETTA, ANN HENNUM Plaintiff
PLETTA, MARIELLA L. Plaintiff
PLETTA, MARIELLA L. Plaintiff
PLETTA, TIMOTHY G. Plaintiff
PLETTA, TIMOTHY G. Plaintiff
PLETTA, TIMOTHY GERARD Attorney for the Plaintiff
RUOTOLO, ROBERT Attorney for the Defendant
SHELTON, JEFFREY D Attorney for the Plaintiff
SHERWOOD, JOHN CHARLES Attorney for the Plaintiff
SIMPSON, NOAH H, III Attorney for the Defendant
STORK, BRIAN M Attorney for the Defendant
STRANN, TIMOTHY R. Attorney for the Defendant
WILEY, BRANDON J Defendant
WILEY, BRANDON J Defendant
WILEY, REGINA L Defendant
WILEY, REGINA L Defendant
Joy Winkler
Roger Higgins Attorneys for Defendants
Hunter Davidson Attorneys for Defendants
Lloyd Ward Attorneys for Defendants
Mohammad Said Attorney
Glenn Snyder Attorney
Timothy Greene Attorney
Francine Lyles Attorney
Robert Jenevein Attorney
Terry Salazar Attorneys for Defendants

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Motion-Secondary: TIMOTHY G. PLETTA vs. HERITAGE HOUSE CLOCKS, INC., et al

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