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CAUSE NO. C-1-CV-16-9999
Sam Jenkins and Rhonda Jenkins,
Plaintiffs,
vs.
Teresa Everlee and Everlee Law Firm, P.C., a
Texas corporation,
Defendants.
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IN THE DISTRICT COURT OF
TRAVIS COUNTY, TEXAS
500TH JUDICIAL DISTRICT
Defendants’ Tex. R. Civ. Proc. 91 Special Exceptions, Tex. R. Civ. P. 91a
Motion to Dismiss, Answer, and Requests for Disclosure
Summary
Plaintiffs are not entitled to mental anguish because their claims are a result of economic
loss due to Defendants’ alleged negligence. Texas Law states the importance of awarding
sufficient damages to make a plaintiff whole. Plaintiffs mental anguish claims fail to
establish egregious error by the Defendant that would deem recovery for mental anguish
damages. In addition, Plaintiffs are not entitled to loss of consortium because there is
lack of physical harm to Plaintiffs caused by Defendants’ alleged negligence. Texas Law
states that whether there is loss of parental consortium or loss of spousal consortium,
damages are not recoverable absent proof of physical harm.

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A. Special Exceptions
1. Under Tex. R. Civ. Proc. 91, the Defendants specially except to the Plaintiffs
Original Petition and Request for Disclosure to amend their claim of emotional harm.
Plaintiffs claim of emotional harm, causing “worry, anger, loss of sleep, frustration, and
distress” is not the result of Defendants negligence but the direct result of the Plaintiffs
economic loss.
2. Like the Plaintiffs in Douglas v. Delp 987 S.W.2d 879 (Tex. 1999), who filed for
legal malpractice due to the claim of improper settlement negotiations and witness
preparation, Plaintiffs are suing Defendants for legal malpractice because Defendants
did not file the suit before the allotted statute of limitations. In Douglas, the Plaintiffs’
original suit resulted in a loss of assets, which led to their claim of compensation for
mental anguish. Id. at 884. Similarly, Plaintiffs are suing on the same premise that
economic losses in an original suit, alleged to have been handled with malpractice,
warrants a claim of compensable emotional harm. The Supreme Court of Texas held in
favor of the Defendant in Douglas because the Plaintiff’s claim of mental anguish was a
result of the economic loss, not the alleged legal malpractice claim, and thus should not
be compensated. Id. at 885. Similarly, Defendants in our case should not be held liable
for Plaintiff’s claim because the emotional damages are a direct result of the economic
losses from the events of the original suit, not the alleged malpractice claim. In addition,
Douglas held that mental anguish damages are recoverable in instances with egregious
and severe error. Id. at 884. The Defendants alleged malpractice does not substantially

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qualify under the requirements stated. Although there is a loss claimed to be by
malpractice, the nature of conduct behind the malpractice is not egregious. Defendants
are claimed to have made a clerical error by missing a deadline; these circumstances are
not extraordinary in nature. Defendants specially except to amend the Plaintiffs claim of
mental anguish.
B. Motion to Dismiss
3. Under Tex. R. Civ. Proc. 91a, Defendants move to dismiss Second Cause of
Action in the Plaintiffs Original Petition and Request for Disclosure in its entirety.
Plaintiffs’ claim of loss of consortium, which states that “Everlee’s incompetence …
damaged the love, support, affection, companionship and physical intimacy” of their
marriage, is dismissible because the claim does not stem from Defendants alleged
negligence. Under Texas Law, the requirement of physical injury should be present;
Plaintiffs should not be compensated because physical injury occurred in the underlying
suit, not the Defendants alleged negligence.
4. Like the Plaintiffs in Browning-Ferris Industries, Inc. v. Lieck, 881 S.W.2d 288
(Tex. 1994) who filed for loss of consortium because of malicious prosecution, Plaintiffs
are filing for loss of consortium on the basis of the Defendant’s attorney negligence. The
court in Browning-Ferris held in favor of the Defendant, stating that the Plaintiff was not
able to recover damages because there was no proof of physical injury. Id. at 290. In all
cases of loss of consortium, whether parental or spousal, recovery of damages was only

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granted to suits with serious, permanent, or disabling physical injury. Id. Similarly, the
claim of loss of consortium in this matter should follow the premise that loss of
consortium is dependent upon physical injury. Neither Plaintiff suffered physical injury
due to the alleged malpractice by Defendant, and therefore their claim is not
compensable.
C. General Denial
5. Under Tex. R. Civ. P. 92, Defendants assert a general denial and request that the
Plaintiffs be required to prove the charges and allegations against them by a
preponderance of the evidence.
D. Requests for Disclosure
6. Pursuant to Tex. R. Civ. Proc. 194.1, within 30 days of service of this request,
you are requested to disclose material described in Tex. R. Civ. P. 194.2(c)-(f), (j), and
(k).
E. Prayer
Defendants pray that the Court grants a special exception to amend the First Cause of
Action claim of mental anguish. As well, Defendants pray that the court completely
dismiss the Second Cause of Action and Plaintiffs take nothing by their claims.
Defendants also seek all further relief to which they are justly entitled.

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Respectfully submitted,
Jill Quan
TX Bar 24011069
Christopher Frasquieri
TX Bar 24681357
Hart, Quan, & Klein, P.C. | Attorneys
at Law
3002 S. Congress Avenue, 12th Floor
Austin, Texas 78704
(512) 555-1234
(512) 555-1235 (FAX)
christopher.frasquieri@hqklaw.com
Christopher A. Frasquieri
By: Christopher Frasquieri
Attorneys for Defendants
CERTIFICATE OF SERVICE
This certifies that on this 1st day of March, 2016, a true and correct copy of the
foregoing document was served by certified, first-class mail, return receipt requested,
upon:
Sam Jenkins and Rhonda Jenkins
1989 Adams Street
Austin, TX 78738
Christopher Frasquieri