                             NUMBER 13-19-00202-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

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.



                        MEMORANDUM OPINION
   Before Chief Justice Contreras and Justices Longoria and Perkes
              Memorandum Opinion by Justice Longoria

       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




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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 assistant. Martinez

pleaded the following facts:


        1  We note that if a trial court either denies a Rule 91a motion to dismiss or fails to rule on it within
forty-five days, the proper remedy is mandamus, not interlocutory appeal. See In re Butt, 495 S.W.3d 455,
461 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.). In the present case, the trial court denied Toth’s
Rule 91a motion to dismiss on April 12, 2019. Toth filed his notice of appeal on April 22, 2019. Final
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           a) On or about January 4, 2018 at approximately 10:30 p.m., Defendant
              Facetimed Plaintiff. Plaintiff did not answer the call as she did not
              know the number. The next day at work, January 5, 2018, Defendant
              brought up the Facetime call to Plaintiff and said, “I called you last
              night. Did a picture of me pop up?” Plaintiff responded, “Why would
              I have a picture of you?” Defendant then told Plaintiff, “You need to
              have a picture of me on your phone.” This incident was reported to
              Belia Ybarra, office manager, via Sexual Harassment/Inappropriate
              Conduct form on January 9, 2018.

           b) On or about March 14, 2018 at approximately 3:45 p.m., Upon [sic]
              the completion of working on a patient, Plaintiff walked into a hallway
              to stretch her back. Defendant unknowingly walked into the area in
              which Plaintiff was stretching. Defendant abruptly got behind Plaintiff
              and Defendant placed his hands on Plaintiff’s lower back in attempt
              to massage her back asking if she needed help in stretching. This
              was done in front of patients and in front of a student completing
              externship hours.

           c) On or about March 15, 2018 at approximately 4:00 p.m., student
              intern from TSTC, Suhaily Figueroa, filed an incident report wherein
              she witnessed Defendant Toth get behind Plaintiff and place both of
              his hands on Plaintiff’s lower back. Witness Figueroa reported that
              Defendant’s hands were attempting to go to the top of Plaintiff’s
              bottom and Defendant asked Plaintiff, “Do you need help?” Witness
              Figueroa additionally reported that Defendant did not know she was
              present and upon Defendant’s unwanted touching Plaintiff appeared
              to be in complete shock. Ms. Figueroa additionally reported this
              incident to her professor at TSTC and the school has since
              terminated their contract with Toth Pediatric Dentistry.

           d) On or about March 15, 2018, Plaintiff sought medical assistance from
              BHS Physicians Network, INC. located at 707 W. Sesame Dr.,
              Harlingen, Texas 78550. Plaintiff was diagnosed with a mixed
              anxiety and depressive disorder. Pursuant to Plaintiff’s diagnoses,
              Plaintiff was prescribed medication and given a counseling referral
              to CCI Counseling Centers International located at 1001 E. Tyler
              Ave., Harlingen, Texas 78550.

           e) On or about March 15, 2018, Plaintiff gave an official resignation
              letter to Defendant Toth as she could no longer endure his lewd and
              unwarranted sexual harassment.


judgment was then signed on April 24, 2019. Even though Toth’s notice of appeal was filed prematurely,
this appeal is properly before us now that a final and appealable judgment has been entered. See TEX. R.
APP. P. 27.1, 27.2.
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          f) On or about March 19, 2018, Plaintiff filed a complaint with the Texas
             State Board or Dental Examiners (TBSDE) against Defendant Toth.
             Said complaint is currently in the preliminary investigation process.

      On appeal, Toth argues vaguely that Martinez “failed to produce sufficient

evidence to meet the required showing pursuant to FRCP 12(b)(6) (and Rule 91a

motion).” The only specific complaint Toth raises on appeal is that “the trial court failed

recognize [sic] that the only alleged physical contact that is the basis for her claims was

admittedly done without the requisite intent, and in-fact, the physical contact was

unknowingly done.” According to Toth, Martinez admitted that the physical contact on

March 14, 2018 was committed “unknowingly”; thus, Toth claims that Martinez thereby

admitted that Toth acted “without the requisite intent.”       However, assault can be

committed knowingly, recklessly, or intentionally. See TEX. PENAL CODE ANN. § 22.01;

Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 650 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied). Additionally, Toth’s motion fails to even address the conduct

that allegedly occurred on January 4, 2018, which is part of the basis for Martinez’s

claims. We conclude that Martinez’s petition gave Toth fair and adequate notice of the

facts upon which Martinez based her claims such that Toth could prepare a defense. See

Reaves, 518 S.W.3d at 600; In re Butt, 495 S.W.3d at 461. We overrule Toth’s sole issue.

                                     III. CONCLUSION

      We affirm the judgment of the trial court.

                                                              NORA L. LONGORIA
                                                              Justice

Delivered and filed the
3rd day of October, 2019.




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