COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00216-CV 

DOYLE JONES APPELLANT

V.

FRANK KENT MOTOR COMPANY 

D/B/A FRANK KENT CADILLAC

APPELLEE 

----------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 067-247167-10

----------

MEMORANDUM OPINION1

----------

Appellant Doyle Jones appeals the trial court’s take-nothing judgment in 

this discrimination case. We affirm.

Background Facts

In 2010, Jones was working as a car salesman at appellee Frank Kent 

Motor Company d/b/a Frank Kent Cadillac. In May 2010, he left his position with 

 1

See Tex. R. App. P. 47.4.
2

the dealership. He then sued Frank Kent, claiming that Frank Kent had 

discriminated against him based on his age and disability and that he had been 

constructively discharged in retaliation for signing an affidavit stating that he 

believed Frank Kent had discriminated against another employee. Frank Kent 

filed counterclaims against Jones, claiming that he had participated in a 

fraudulent scheme to increase bonuses for himself and the dealership based on 

customer satisfaction surveys. 

Frank Kent then moved for partial summary judgment on all of Jones’s 

claims against it. The trial court granted the motion. Frank Kent then nonsuited 

its counterclaims, but when the trial court reinstated Jones’s retaliation claim, 

Frank Kent reasserted its counterclaims. Jones also added a retaliation claim 

based on Frank Kent’s counterclaims, arguing that they were frivolous. Frank 

Kent specially excepted to Jones’s retaliation claim based on its counterclaims, 

claiming that no such post-termination retaliation cause of action exists under 

Texas law. After a hearing (of which no record was made), the trial court granted 

Frank Kent’s special exception to Jones’s third amended petition, striking Jones’s 

retaliation claim relating to Frank Kent’s counterclaim. Jones subsequently filed 

a fifth amended petition2 that pleaded the same retaliation claim. 

After a bench trial, the trial court rendered judgment in favor of Frank Kent 

on Jones’s claims against it and in favor of Jones on Frank Kent’s claims against 

 2

Jones had filed a fourth amended petition prior to the hearing on the 

special exception to the third amended petition. 
3

him. It ordered that both parties take nothing. Jones filed a motion for new trial 

to apply for an award of attorney’s fees and costs under the Texas Theft Liability 

Act (the Theft Act). The trial court denied the motion, and this appeal followed. 

Discussion

1. Post-termination retaliation

In his first issue, Jones argues that the trial court erred by concluding that 

Texas law does not recognize post-termination retaliation as a cause of action. 

In his third amended petition, Jones alleged that Frank Kent retaliated 

against him by bringing a frivolous counterclaim against him. Frank Kent

specially excepted to that claim, arguing that no such cause of action exists 

under Texas law. The trial court granted the special exception and struck 

Jones’s counterclaim. 

Jones filed a fourth amended petition and a fifth amended petition, both 

including the same allegations regarding the counterclaim and adding, 

The purpose of the filing of the counterclaim against Jones 

was to bully and punish Jones for asserting his rights under the 

statute. This action was materially adverse to Jones because such 

action would dissuade any reasonable employee from making or 

supporting a charge of discrimination. Moreover, the counterclaim 

has had a tangible effect on the terms and conditions of the plaintiff’s 

prospective employment.

Frank Kent specially excepted again to the claim, and again the trial court 

granted the special exception. 

On appeal, Jones argues that the trial court erred by granting the special 

exception to his third amended petition. He does not challenge the grant of 
4

Frank Kent’s special exception to the live pleading at the time of trial, thereby 

waiving this issue. See Ford v. Performance Aircraft Servs., Inc., 178 S.W.3d 

330, 334 (Tex. App.—Fort Worth 2005, pet. denied). Even if Jones had not 

waived this issue, we note that there is no cause of action in Texas for postemployment retaliation by filing of a counterclaim. See Stewart v. Sanmina Tex.

L.P., 156 S.W.3d 198, 209 (Tex. App.—Dallas 2005, no pet.) (“An employer’s 

filing of a counterclaim after the employee has already been discharged cannot 

support a retaliation claim.”) (citing Hernandez v. Crawford Bldg. Material Co.,

321 F.3d 528, 532–33 (5th Cir. 2003) (distinguishing Fifth Circuit’s “more 

skeptical view” of “ultimate employment decision” from other circuits’ 

interpretation), cert. denied, 540 U.S. 817 (2003)).3

 We overrule Jones’s first 

issue. 

2. Frank Kent’s counterclaims

In his second issue, Jones argues that the trial court erred by finding that 

Frank Kent’s counterclaims were not frivolous. A “frivolous” suit is generally 

understood to mean one that does not have a reasonable basis in law or fact. 

See Gen. Elec. Credit Corp. v. Midland Cent. Appraisal Dist., 826 S.W.2d 124, 

125 (Tex. 1991) (stating that suit is not frivolous so long as it has “reasonable 

 3

Jones argues that Hernandez has been abrogated by the Supreme 

Court’s holding in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.

Ct. 2405 (2006). However, the Fifth Circuit continues to cite Hernandez with 

approval. See Ellis v. Principi, 246 Fed. Appx. 867, 872 (5th Cir. 2007); see also

Anderson v. Sikorsky Support Servs., Inc., 66 F. Supp. 3d 863, 869 (S.D. Tex. 

2014); Lopez v. Kempthorne, 684 F. Supp. 2d 827, 885 (S.D. Tex. 2010).
5

basis in law and constituted an informed, good-faith challenge”); see also Tex. 

Civ. Prac. & Rem. Code Ann. § 9.001(3) (West 2002) (defining groundless as 

having no basis in fact or not warranted by existing law or a good faith argument 

for the extension, modification, or reversal of existing law).

Frank Kent sued Jones for civil theft, common law fraud, mail fraud, breach 

of fiduciary duty, and money had and received. All of Frank Kent’s claims stem 

from Jones’s participation in the survey scheme. General Motors had a program 

in which dealerships received bonuses when their customers were highly 

satisfied with their car-buying experience. Customers’ satisfaction was recorded 

by surveys that were mailed to their home after they bought a car. 

Jones testified that salespeople would receive bonuses at the end of every 

month that their customer service index, as determined by the surveys, was 

above a certain number. One of Frank Kent’s owners also testified that the 

salespeople bonuses were paid by the dealership based on the salesperson’s 

customer satisfaction score. Jones said he filled out surveys for customers and

gave them to his supervisors. He also admitted that eight or nine of the surveys 

were routed to his home address. He testified that he knew that his supervisor 

would take the completed surveys and mail them to General Motors. Frank Kent 

introduced evidence showing that it paid Jones $8,800 in bonuses that were 

based on his customer survey scores. There was ample basis for Frank Kent’s 

allegations, and they were therefore not frivolous. We overrule Jones’s second 

issue. 
6

3. Attorney’s fees

In his third issue, Jones argues that the trial court erred by refusing to 

award him attorney’s fees. Jones claims that as the prevailing party on Frank 

Kent’s counterclaim under the Theft Act, he was entitled to recover his attorney’s 

fees. See Tex. Civ. Prac. & Rem. Code Ann. § 134.005(b) (West 2011) (“Each 

person who prevails in a suit under this chapter shall be awarded court costs and 

reasonable and necessary attorney’s fees.”). When a statute provides that a 

party “shall be awarded” attorney’s fees, as it does in the Theft Act, the trial court 

has no measure of discretion in determining whether to award attorney’s fees. 

Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). But even a mandatory fee 

award must be supported by the pleadings and the record. Garcia v. Gomez, 

319 S.W.3d 638, 644 (Tex. 2010).

The trial court issued the following findings of fact relevant to the issue of 

attorney’s fees:

1. The Plaintiff/Counter-Defendant did not plead for attorney 

fees and costs as a prevailing party on Frank Kent’s counterclaim 

under the Texas Theft Liability Act (the “Theft Act”), Tex. Civ. Prac. & 

Rem. Code § 134.005(b), and it was not tried by consent.

2. The Plaintiff’s/Counter-Defendant’s pleadings did not 

provide sufficient notice to Frank Kent that the Plaintiff/CounterDefendant was seeking to recover his attorney fees and costs as a

prevailing party on Frank Kent’s counterclaim under the Theft Act.

3. An attorney of reasonable competence would interpret the 

Plaintiff’s/Counter-Defendant’s Fifth Amended Petition and Answer 

to Counterclaim as seeking attorney fees for the retaliation claims 

under the Texas Labor Code and for defending a frivolous filing only, 

and not for a prevailing party under the Theft Act.
7

4. The Plaintiff/Counter-Defendant was not a prevailing party 

under the Theft Act because he did not assert any counterclaim 

under the Theft Act or recover any damages under the Theft Act.

5. Even if the Plaintiff/Counter-Defendant did plead for 

attorney fees and costs as a prevailing party under the Theft Act 

(which he didn’t) and was in fact a prevailing party under the Theft 

Act (which he wasn’t), the Plaintiff/Counter-Defendant still is not 

entitled to recover any attorney fees and costs because he did not 

segregate his attorney fees and costs in defending the Theft Act 

claim from his attorney fees and costs in pursuing his other claims 

for retaliation and defending the other counterclaims for common law 

fraud, mail fraud, breach of fiduciary duty, and money had and 

received.

6. Even if the Plaintiff/Counter-Defendant did plead for 

attorney fees and costs as a prevailing party under the Theft Act 

(which he didn’t), was in fact a prevailing party under the Theft Act 

(which he wasn’t), and did properly segregate his attorney fees and 

costs (which he didn’t), the Plaintiff’s/Counter-Defendant’s attorney 

fees in the amount of $141,277.50 and costs in the amount of 

$5,564.48 were not necessary or reasonable in defending the Theft 

Act claim. 

Although the trial court found that Jones was not a prevailing party 

because he did not recover damages under the Theft Act, the law is clear that a 

party who successfully defends against an action under the Theft Act is a 

prevailing party under the statute. See, e.g., Arrow Marble, LLC v. Estate of 

Killion, 441 S.W.3d 702, 706 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (“A 

party prevails if he ‘successfully prosecutes the action or successfully defends 

against it.’”) (quoting Johns v. Ram–Forwarding, Inc., 29 S.W.3d 635, 637–38 

(Tex. App.—Houston [1st Dist.] 2000, no pet.); see also In re Corral-Lerma, 

451 S.W.3d 385, 386 (Tex. 2014) (“[T]he Texas Theft Liability Act provides for 
8

attorney’s fees even without an underlying damages recovery . . . .”). Jones 

successfully defended against Frank Kent’s Theft Act claim and was therefore 

the prevailing party. However, a party seeking recovery of attorney’s fees under 

the Theft Act must sufficiently notify the court and opposing party of his intent to 

recover his attorney’s fees under the Act. See Shaw v. Lemon, 427 S.W.3d 536, 

540 (Tex. App.—Dallas 2014 pet. denied), cert. denied, 135 S. Ct. 1563 (2015)

(“[A] pleading that does not ask for an award of attorney’s fees under a 

mandatory statute does not give notice to the opposing party of all the relief 

sought.”); Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 569 

(Tex. App.—San Antonio 2011, no pet.). Jones did not specifically plead for 

attorney’s fees under the Theft Act, but he argues that his pleadings were 

sufficient to notify Frank Kent that he intended to seek attorney’s fees under the 

Act. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.

2000) (“A petition is sufficient if it gives fair and adequate notice of the facts upon 

which the pleader bases his claim. The purpose of this rule is to give the 

opposing party information sufficient to enable him to prepare a defense.”). 

Although Jones’s prayer for relief contains a general request for attorney’s 

fees, in his answer to Frank Kent’s counterclaims in a section labelled 

“Affirmative Defenses,” Jones stated, “This counterclaim is a frivolous claim and 

should be dismissed[,] and Counter-Defendant Doyle Jones should be awarded 

his costs and attorneys’ fees incurred in defending it.” Jones pleaded for 

recovery of attorney’s fees for defending against a frivolous claim, see Tex. Civ. 
9

Prac. & Rem. Code Ann. § 9.012(e)(3) (West 2002) (allowing a sanction for a 

frivolous filing to include reasonable attorney’s fees), and he elsewhere pleaded 

for recovery of attorney’s fees under the Texas Commission on Human Rights 

Act for his retaliation claim, see Tex. Lab. Code Ann. § 21.259(a) (West 2015) 

(allowing a trial court to award a reasonable attorney’s fees to the prevailing party 

under the Act). Nowhere did he plead for the recovery of attorney’s fees under 

the Theft Act. In such instances when a party pleads specific grounds for the 

recovery of attorney’s fees, he cannot recover attorney’s fees on another, 

unpleaded ground.4

 See Smith v. Deneve, 285 S.W.3d 904, 916 (Tex. App.—

Dallas 2009, no pet.); see also Nat’l City Mortg. Co. v. Adams, 310 S.W.3d 139, 

143 n.4 (Tex. App.—Fort Worth 2010, no pet.) (following Smith).

The trial court found that Jones did not sufficiently put Frank Kent on notice 

that he was seeking attorney’s fees under the Theft Act and that this issue was 

 4

That Frank Kent was the party that put into play the Theft Act cause of 

action in the first place does nothing to put it on notice that Jones’s general 

request for attorney’s fees was to now be understood to cover a request under 

the Theft Act that it previously had not included, especially in light of the fact that 

Jones amended his petition in response to Frank Kent’s counterclaim to

specifically request attorney’s fees for defending against a frivolous claim. See 

Heritage Gulf Coast Props., Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 

642, 661–62 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“An opposing party 

would conclude Sandalwood would have expressly mentioned the ‘prevailing 

party’ provision of the contract if it were seeking fees for successful defense 

under that theory. This conclusion is further supported by the fact that (1) 

Sandalwood expressly pleaded one theory for recovering fees for successful 

defense of appellants’ claims; and (2) . . . Woodbridge pleaded a specific 

contractual provision under which it was seeking attorney’s fees concerning the 

Taft Circle Apartments.”).
10

not tried by consent.5

 The trial court therefore did not abuse its discretion by 

denying Jones’s request for attorney’s fees under the Theft Act. See Shaw, 

427 S.W.3d at 540 (“Because Shaw pleaded specifically for an award of 

attorney’s fees for his breach of contract claim, but not for an award of attorney’s 

fees under the Theft Act, we conclude that the trial court did not err by denying 

an award of attorney’s fees under the Theft Act on that basis.”); Cricket 

Commc’ns, Inc. v. Trillium Indus., Inc., 235 S.W.3d 298, 310 (Tex. App.—Dallas 

2007, no pet.) (holding that trial court did not err in denying request for attorney’s 

fees because cross-appellees did not specifically plead for attorney’s fees under 

the Theft Act); see also Kreighbaum v. Lester, No. 05-06-01333-CV, 2007 WL 

1829729, at *3 (Tex. App.—Dallas June 27, 2007, no pet.) (mem. op.) (“Although 

appellants’ prayer for relief contains a nonspecific request for attorney’s fees, 

appellants’ counterclaim specifically sets forth the basis for the request for 

attorney’s fees, section 17.50(c) of the business and commerce code. An 

opposing attorney of reasonable competence reading appellants’ pleading would 

conclude the request for attorney’s fees in the prayer was based on the 

statement in the counterclaim that appellants are entitled to attorney’s fees 

pursuant to section 17.50(c) of the business and commerce code.”). We overrule 

Jones’s third issue. 

 5

Jones makes no argument on appeal that that issue was tried by consent.
11

4. Discrimination claim

In his fourth issue, Jones argues that the trial court erred by granting 

partial summary judgment and dismissing his claim for discrimination. 

After Jones filed his first amended petition, Frank Kent moved for partial 

summary judgment on Jones’s claims of age discrimination, disability 

discrimination, and retaliation. The trial court granted the motion. It later 

reinstated the retaliation claim. After those rulings, Jones amended his petition 

four times. None of the later-amended petitions contained age discrimination or 

disability discrimination causes of action, including the fifth amended petition, 

which was the live pleading at the time of trial. 

Generally, filing an amended petition that does not include a cause of 

action effectively dismisses the omitted claim as of the time the amended 

pleading is filed. FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 

255 S.W.3d 619, 632 (Tex. 2008). This is so even when the trial court has 

denied the claim through partial summary judgment. See Dolenz v. All Saints 

Episcopal Hosp., 638 S.W.2d 141, 142 (Tex. App.—Fort Worth 1982, writ ref’d 

n.r.e.) (holding that plaintiff could not complain on appeal of summary judgment 

denying his request for injunctive relief when his subsequently amended petitions 

did not include injunction claims). Because Jones’s amended petitions did not 

include claims for age discrimination or disability discrimination, he abandoned 

those claims and waived any error by the trial court in rendering summary 

judgment for Frank Kent on those claims. See Akin v. Santa Clara Land Co., 
12

34 S.W.3d 334, 339 (Tex. App.—San Antonio 2000, pet. denied) (“Akin waived 

any error by the trial court when she amended her pleadings after the partial 

summary judgments were granted and abandoned her DTPA and negligence 

claims.”). We overrule Jones’s fourth issue. 

Conclusion

Having overruled Jones’s four issues, we affirm the trial court’s judgment.

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.

DELIVERED: August 20, 2015