CASUE No.

_______________________

AARON GOMEZ § IN THE ________ JUDICIAL DISTRICT

Plaintiff, §
§
v. §
§
GGG VENTURES, LLC D/B/A LA § COURT OF
BARBECUE; John Doe as Personal §
Representative of the Estate of LEANN §
MUELLER; ALISON CLEM and §
PAYCHEX BUSINESS SOLUTIONS, §
LLC §
Defendants, § TRAVIS COUNTY, TEXAS

PLAINTIFF’S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Plaintiff Aaron Gomez, and files this original petition complaining of

Defendants GGG Ventures, LLC, doing business as La Barbecue; Alison Clem; John Doe as

Personal Representative of the Estate of LeAnn Mueller; and Paychex Business Solutions, LLC

and for such causes of action would respectfully shows the Court the follows:

I. DISCOVERY CONTROL PLAN

1.01 Pursuant to Rule 190.1 of the Texas Rules of Civil Procedure, Plaintiffs intends to

conduct discovery in this case under Level 3 (Rule 190.4 Texas Rules of Civil Procedure).

II. RULE 47 CLAIM FOR RELIEF

2.01 Plaintiff pleads for the purposes of complying with Rule 47 only, that he seeks

monetary relief of more than $1,000,000, including damages of any kind, penalties, costs,

expenses, pre-judgement interests, and attorneys’ fees. The amount of the Plaintiff’s damages are

substantial and are well in excess of the jurisdictional minimums of this Court. Many elements of

damage cannot be determined with mathematical precision. Furthermore, the determination of

many of these elements of damages is peculiarly within the province of the jury. Plaintiff does

not at this time seek any certain amount of damages for any particular element of damages but

would instead rely upon the collective wisdom of the jury to determine an amount that would

fairly and reasonably compensate Plaintiff for his injuries. Plaintiff reserves the right to amend

this petition to state an amount higher, an amount lower, or to ask the jury for a different amount

that is supported by the evidence presented at trial. Plaintiff also seeks judgement for all other

relief to which Plaintiff is justly entitled.

III. PARTIES

3.01 Plaintiff Aaron Gomez is an individual who resides in Hays County, Texas. The

last three numbers of Plaintiff's driver's license number are 821 and the last three numbers of

plaintiff's Social Security number are 775.

3.02 Defendant Alison Clem, an individual who is a resident of Texas may be served

with process at 1621 E. 6th Street, Apartment 1429, Austin, Travis County, Texas 78702, or at

her place of business, La Barbecue, 2401 E Cesar Chavez St, Austin, TX 78702, or wherever

Defendant may be found. Citation for service of process is requested at this time.

3.03 John Doe, as Personal Representative of the Estate of LeAnn Mueller, is the

representative of the Estate of LeAnn Mueller. LeAnn Mueller is an individual who passed away

prior to the filing of this lawsuit. While she was alive, Mueller was a resident of Travis County,

Texas. Plaintiff believes that a Personal Representative has been appointed for the Estate of

LeAnn Mueller. However, with due diligence and upon information and belief, Plaintiff has not

located any filed probate actions or pending administration pertaining to LeAnn Mueller.

Therefore, Plaintiff request that process should not be served on the Personal

PLAINTIFF’S ORIGINAL PETITION PAGE 2

Representative of the Estate of LeAnn Mueller until the executor/administrator of the

estate of LeAnn Mueller has been identified.

3.04 Defendant GGG Ventures, LLC (referred to herein as “GGG”) d/b/a La Barbecue

is a domestic limited liability corporation, with headquarters in Austin, Travis County, Texas.

GGG is duly formed under the laws of the State of Texas and operating under the laws of the

State of Texas. GGG currently identifies LeAnn Mueller as the registered agent for service of

process. As noted in Paragraph 3.03, unfortunately Leann Mueller has passed away. GGG has

not, as of the filing of this petition, designated a new registered agent. As a result, as set out in §

5.251(1)(B) of the Texas Business & Organizations Code, “the registered agent of the entity

cannot with reasonable diligence be found at the registered office of the entity.” Therefore,

service can be made on the Texas Secretary of State by delivering to the Secretary duplicate

copies of the process and petition with any required fees. Citation for service of process is

requested at this time.

3.05 Defendant Paychex Business Solutions, LLC (“Paychex”) is a corporation

organized and existing under the laws of New York, whose principal office is located at 911

Panorama Trail South, Rochester, New York 14625, and is duly licensed to transact business in

Texas. Defendant Paychex’s liability herein arises from its business activities within the State of

Texas. Defendant Paychex can be served with process by serving its registered agent for service

of process, C T Corporation System, located at 1999 Bryan Street, Suite 900, Dallas, TX 75201

or wherever Paychex may be served. Citation for service of process is requested at this time.

PLAINTIFF’S ORIGINAL PETITION PAGE 3

 IV. JURISDICTION AND VENUE

4.01 Jurisdiction is proper in this Court because the amount in controversy exceeds the

jurisdictional minimal limits of the Court pursuant to Article V, Section 8 of the Texas

Constitution and Section 24.007 of the Texas Government Code.

4.02 This Court has personal jurisdiction over the parties. All parties are either

individual residents of the State of Texas, have a principal place of business in Texas, have

sufficient minimum contacts with the State of Texas, and/or have purposefully availed

themselves of the laws and markets of the State of Texas so as to not offend traditional notions of

fair play and substantial justice.

4.03 Venue is proper in Travis County, Texas pursuant to Section 15.002 of the Texas

Civil Practice & Remedies Code, as it is a county in which a substantial part of the events or

omissions giving rise to this claim occurred. Additionally, all parties are individual residents of

Texas, business entities with a principal office in Texas, or corporations in which the corporation

has a representative in Texas and transacts business within the State of Texas.

4.04 Furthermore, venue is proper as to Defendant Paychex, pursuant to Section

17.56(2) of the Texas Business & Commerce Code because this suit is filed in the county where

Defendant Paychex solicited the underlying transaction in this suit. Defendant Paychex engages

in and transacts business in the State of Texas and maintains sufficient minimum contacts with

the State of Texas. It was in the course of its business that Defendant Paychex was in the State of

Texas and participated in the underlying transaction, namely soliciting and procuring insurance

policies for business entities such as La Barbecue, which is at suit here. As such, Plaintiff’s

causes of action connect to and lie in the wake of Defendant Paychex’s business activities in

Texas. Thus, Defendant Paychex and its employees, acting in the course and scope of their

PLAINTIFF’S ORIGINAL PETITION PAGE 4

employment, committed torts subject to this jurisdiction under the Texas Long-arm Statute by

engaging in deceptive trade practices in Texas, which were a cause of the Plaintiff’s injuries, as

further set forth herein.

V. FACTUAL BACKGROUND

5.01 In 2012, Leann Mueller and Alison Clem found their barbecue business— GGG

Ventures, LLC, doing business under the name “la Barbecue.” They co-own la Barbecue’s

restaurant and food truck and jointly operate it. The business runs successfully in several

locations around East Austin. Like any other successful small business, the owners choose to

purchase insurance to protect themselves and their business. Among the insurance products they

purchase is a workers compensation policy. The business grows in popularity, requiring the

hiring of additional employees, and eventually leads to opening a “brick and mortar” location.

Along the way, in November of 2014, Defendants Mueller and Clem choose to drop their

workers compensation policy.

5.02 In or around June of 2016, Defendants la Barbecue, Mueller, and Clem hire Aaron

Gomez to work in their restaurant’s brick and mortar location at 1906 E. Cesar Chavez Street,

Austin, Texas 78702. As a newly hired employee, with little knowledge of the barbecue industry,

Aaron requires training. Part of La Barbecue’s business method requires cooks to rotate handling

overnight food preparation for the next day. Overnight food preparation occurs outside, behind

La Barbecue’s restaurant, where the restaurant keeps a food preparation trailer and three whole-

log pit smokers.

5.03 On or about the evening of July 22, 2016, the overnight food preparation crew

consists of three employees: Aaron, a La Barbecue manager, and a manager-in-training for La

Barbecue’s newly planned location in California. Aaron’s tasks as a crewmember of the

PLAINTIFF’S ORIGINAL PETITION PAGE 5

overnight food preparation crew are to smoke 30 whole briskets and prepare the sausages for the

next day. Although Aaron did not have experience in making sausages, he is instructed to go to

the food trailer to use the meat grinder to make them. The meat grinder is an electric powered

grinder that la Barbecue uses without the manufacturer’s standard safety pan or its meat

press/tamper, which is also called a “push stick.” Additionally, the grinder cannot be turned on

and off as the manufacturer had designed. The operator is instructed to plug and unplug the

grinder to get it to start and stop because the power switch is faulty.

5.04 Aaron goes to the food preparation trailer to begin sausage making. As instructed,

Aaron plugs the grinder in with his right hand. As Aaron plugs the grinder into the trailer’s

electrical plug, the grinder’s teeth immediately and without warning start rapidly circulating. His

left glove catches in the clutches of the grinder’s teeth and pulls his left-hand in. Within seconds

the grinder’s teeth eat through Aaron’s left glove. He feels intense pressure on his left hand and

reflexively pulls his hand away from the grinder. His hand feels wet as it comes into full view, as

shock and terror grip Aaron at the state of his hand. Blood pours from his hand, as he realizes

that all the fingers on his left hand, except his thumb, were eaten by the meat grinder.

5.05 Aaron is awash with pain and screams in agony. The manager requests emergency

medical services and the manager-trainee attempts to save Aaron’s fingers but without success.

The meat grinder had shredded Aaron’s fingers, including the muscles, tendons, and bones. An

EMT arrives at La Barbecue, bandages Aaron’s wounds, and takes him to Brackenridge

Hospital. At Brackenridge, the doctors perform surgery on Aaron. Because his fingers were

destroyed, the surgeon removes the remaining bits of finger tissue and bones left and seals the

wound.

PLAINTIFF’S ORIGINAL PETITION PAGE 6

 5.06 On or about July 23, 2016, while recovering from the surgery in his hospital bed

at Brackenridge, a woman Aaron does not know visits him. The woman, who introduces herself

as a close friend to LeAnn Mueller, presents Aaron with various papers that she asks him to sign

on behalf of La Barbecue. Among the papers are documents, written in English, which Aaron

does not fully understand, stating that Aaron admits fault for the work-related injury. The

statements in the documents are untrue, and Aaron chooses not to sign the papers. Eventually,

the doctors release Aaron from the hospital with instructions to continue with outpatient care and

at-home wound care.

5.07 On or about July 26, 2016, LeAnn Mueller visits Aaron at his home. Defendant

Mueller presents Aaron with a gift basket and papers for him to sign. Again, the documents state,

among other things, that Aaron is at fault for the work-related injury. Aaron still refuses to sign

the documents, and he tells Mueller that he is not at fault for the work-related injury. Concerned

about the visits from the woman and LeAnn, Aaron retains legal counsel.

5.08 The attorney begins contacting la Barbecue and LeAnn Mueller to advise of the

representation and seek preservation of evidence. Neither la Barbecue, Mueller, nor anyone

acting on their behalf responds to the calls or emails. On or about July 28, 2016, in continuing

effort to communicate with GGG and Mueller, Aaron’s attorney sends LeAnn Mueller and GGG

letters to confirm the representation. The letter requests a copy of “any employee benefit plan or

insurance coverage in effect on July 22, 2016.” On or about August 3, 2016, Aaron’s attorney

receives confirmation that a representative of LeAnn Mueller or GGG Ventures accepted

correspondence sent by certified mail.

5.09 On or about the period from July 26, 2016, to August 4, 2016, Defendants la

Barbecue, Leann Mueller, and Alison Clem contact Paychex Business Solutions, LLC, to discuss

PLAINTIFF’S ORIGINAL PETITION PAGE 7

the situation with Aaron’s injury. Despite Paychex’s agent’s knowledge of Aaron’s injury at the

time, the agent procures the Travelers’ insurance policy for la Barbecue and agrees to backdate it

to July 1, 2016. In doing so, the agent and/or the other Defendants sign an application for

coverage, in which they report that they are unaware of any claims pending in the back dating

time period. As a result, Traveler’s issues a policy of workers compensation coverage backdated

to July 1, 2016.

5.10 On or about August 4, 2016, Aaron’s attorney receives a call from a

representative of LeAnn Mueller stating that la Barbecue had a workers’ compensation insurance

policy on July 22, 2016. On or about August 16, 2016, Aaron receives a “Notification of First

Temporary Income Benefit Payment” from Travelers Casualty Insurance Company of America’s

(“Travelers”) claims adjuster, Jill Simmons.

5.11 In Texas, a rule known as the “exclusive remedy rule,” states that if an employer

is a “subscriber” to workers’ compensation at the time of his injury, the injured employee is

barred from pursuing recovery through a civil lawsuit. In a civil lawsuit, Aaron would be

allowed to seek recovery of a more complete range of damages—pain and suffering, mental

anguish, physical impairment, disfigurement, medical bills, and loss of earning capacity. In a

workers compensation claim, Aaron’s recovery is limited generally to medical bills and 70% of

lost wages. Up to this point, Aaron believed that GGG did not have workers’ compensation.

However, with the contact from Traveler’s, Aaron is told that his employer did have worker’s

compensation insurance at the time of his injury; therefore, he could no longer seek recovery

from his employer for his injury in a civil suit.

5.12 About six years later, on or about August 23, 2022, the Texas Department of

Insurance (TDI”) announces criminal fraud charges against GGG, LeAnn Mueller, and Alison

PLAINTIFF’S ORIGINAL PETITION PAGE 8

Clem for fraudulently procuring this workers’ compensation policy after Aaron’s injury. Prior to

this announcement, and for some time after, Aaron remained unaware that GGG Ventures and

LeAnn Mueller did not have a workers’ compensation policy at the time of his injury but

acquired one after the fact. Furthermore, GGG, LeAnn Mueller, and Alison Clem’s release a

statement after the announcement of charges in which their representative states, “La Barbecue

obtained an insurance policy which was backdated in order to have the employee’s injury

covered by insurance... La Barbecue then filed the claim for the injury.”

5.13 Based on the allegations in the criminal indictment and the admissions of the

Defendants themselves, la Barbecue was not a subscriber to a Texas workers compensation

policy at the time of Aaron’s injury. Instead, Defendants conspired to obtain the policy after the

injury with the intent of, among other things, preventing Aaron from exercising his constitutional

right to a trial before a jury of his peers for his full range of damages under Texas law.

VI. THE DISCOVERY RULE

6.01 The commencement of the statute of limitations period for all of Plaintiff’s claims

in the suit is governed by the discovery rule.

6.02 Ordinarily, as a cause of action for negligence and gross negligence will accrue

when the injury occurred, Plaintiff’s claims for negligence and gross negligence would have

accrued on July 22, 2016. However, the Continuing-tort doctrine applies when a repeated injury

is proximately caused by repetitive wrongful acts, thereby an action will not accrue until the

wrongful acts ceased. Further, these acts were deliberately used to deceive, conceal, and/or

defraud the Plaintiff by concealing his right to pursue civil remedies outside of the worker’s

compensation system. Therefore, his right to pursue his injury claims outside the worker’s

compensation system was unknown and unknowable to him until after the fraud scheme was

PLAINTIFF’S ORIGINAL PETITION PAGE 9

made public. Defendants’ scheme to continuously use deceit, fraud, and concealment

proximately and directly caused the prevention of Plaintiff exercising his right to seek a full

recovery of his injuries. Since these repetitive wrongful acts proximately caused Plaintiff further

injury, Plaintiff’s claims for negligence and gross negligence did not accrue until the wrongful

acts stopped, August 23, 2022; as described in Paragraphs 6.03 and 6.04 below. Further, the

discovery rule tolls the running of the statute of limitations until Plaintiff knew, or should have

known by the exercise of due diligence, of his right to pursue a civil case for his injuries.

6.03 Plaintiff’s claims for Texas Common Law Fraud and Fraud by Non-disclosure

are governed by a four-year statute of limitations and are subject to Section 16.004 of the Texas

Civil Practice & Remedies Code. Plaintiff’s injuries accrued when Plaintiff acted in reliance on

Defendants’ misrepresentations, omissions, and deceptive trade practices. However, the

discovery rule tolls the running of the statute of limitations until Plaintiff knew, or should have

known by the exercise of due diligence, of Defendants’ fraudulent conduct. Though Plaintiff was

not aware for much longer, at the earliest, with the exercise of due diligence the fraud could have

been discovered on August 23, 2022.

6.04 Claims for Deceptive Trade Practices are governed by a two-year statute of

limitations and are subject to Section 17.565 of the Texas Business & Commerce Code.

Plaintiff’s injuries were inherently undiscoverable, and evidence of the injury is objectively

verifiable. Paychex’s participation in the scheme to guide Plaintiff away from seeking civil suit

against the other Defendants named in this suit rendered the scheme believable and impossible to

be discovered without disclosure from at least one Defendant. Thus, Plaintiff’s injuries did not

accrue until Plaintiff discovered or in the exercise of reasonable diligence should have

discovered the occurrence of the Defendants’ false, misleading, or deceptive act or practice.

PLAINTIFF’S ORIGINAL PETITION PAGE 10

Plaintiff discovered the scheme after a Texas Department of Insurance press release, which was

issued on or about August 22, 2022.

VII. CAUSES OF ACTION

7.01 Plaintiff brings the claims below against Defendants as non-subscribers to

workers’ compensation insurance, pursuant to the Workers’ Compensation Laws of the State of

Texas. At the time and on the occasion of Plaintiff’s work-related injury, and at all times material

hereto, Defendants Mueller, Clem and GGG were eligible to become subscribers to workers’

compensation insurance, but Defendants were not subscribers to workers’ compensation

insurance at the time Plaintiff was injured or at any time material hereto.

7.02 Therefore, pursuant to the Workers’ Compensation Laws of the State of Texas,

Defendants are denied the defenses of contributory negligence, assumption of risk, and injury by

fellow employee doctrine.

COUNT 1 – NEGLIGENCE of DEFENDANTS MUELLER, CLEM and GGG

8.01 At the time and on the occasion in question, Defendants Mueller, and Clem

jointly owned and managed Defendant GGG Ventures, LLC d/b/a La Barbecue for a period of

not less than 5 years. They personally established policies and procedures for and oversaw the

business.

8.02 Defendants owed Plaintiff Aaron a legal duty of care, as managers of La

Barbecue, to provide a safe workplace and safe tools for Aaron’s work. Defendants Mueller and

Clem employed Plaintiff Aaron Gomez knowing that he possessed little to no knowledge of food

preparation, cooking and general food service.

PLAINTIFF’S ORIGINAL PETITION PAGE 11

 8.03 Defendants Mueller and Clem breached that duty when they failed to use ordinary

care by various acts and omissions, including the following, each of which singularly or in

combination with others, was a proximate cause of the occurrence in question:

(a) In failing to provide a reasonably safe workplace, including the food

preparation areas of La Barbecue;

(b) By failing to reasonably warn Plaintiff of hazardous, dangerous, or

modified hazards in and around the food preparation areas;

(c) By failing to furnish Aaron with reasonably safe machinery and tools,
including but not limited to a modified meat grinder, without its safety pan
or meat tamper/press, and with a faulty power switch;

(d) By failing to establish rules and regulations for Plaintiff’s safety during
the business of preparing, cooking, and serving food of La Barbecue;

(e) By failing to train Aaron as a new employee with little or no experience in

La Barbecue’s business practices;

(f) By failing to supervise Aaron while engaged in the business of preparing,

cooking, and serving food, namely the preparation of BBQ sausage; and

(g) By failing to provide Aaron with reasonable assistance in handling the

meat grinder.

8.04 In fact, as a result of the failures and acts described above, Defendants were

negligent and such negligence was a proximate and producing cause of Plaintiff’s damages cited

herein.

COUNT 2 - DEFENDANT GGG VENTURES, LLC’S EMPLOYER LIABLITY for

the GROSS NEGLIGENCE of DEFENDANTS MULLER AND CLEM

9.01 Plaintiff incorporates by reference all of the allegations contained above.

9.02 Additionally, Plaintiff seeks exemplary damages from Defendant GGG because

the acts of Defendants Clem and Mueller were grossly negligent, preformed while in the

employment of, and acting within the scope of their employment of GGG, namely as managers

PLAINTIFF’S ORIGINAL PETITION PAGE 12

and vice-principals of GGG. Therefore, Defendant GGG is further liable for the negligent and

grossly negligent acts and omissions of its employees under the doctrine of Respondeat Superior.

9.03 Defendants GGG’s, Clem’s, and Mueller’s negligent conduct was more than

momentary thoughtlessness and inadvertence. Rather, Defendants GGG, Clem, and Mueller

conduct also involved an extreme degree of risk, considering the probability and magnitude of

the harm to the life and limb of Plaintiff. Furthermore, Defendants GGG, Clem, and Mueller had

actual, subjective awareness of the risk involved but, nevertheless, proceeded in conscious

indifference to the rights, safety, or welfare of the Plaintiff.

9.04 Specifically, Defendant GGG employed Defendants Mueller and Clem as the

principals/vice-principals of GGG and who were acting in the scope of their employment, in that

Defendants Mueller and Clem:

(a) Were co-owners and/or directors of GGG Ventures, LLC d/b/a La

Barbecue;

(b) Had the authority to employ, direct, and discharge employees of GGG
Ventures, LLC; and

(c) Engaged in the negligent performance of the non-delegable duties to warn

and make safe the workplace for Plaintiff’s safety.

9.05 Furthermore, Defendant GGG employed Defendants Mueller and Clem in

managerial capacities of La Barbecue, and each was acting in the scope of their employment, in

that each:

(a) Had the authority to employ, direct, and discharge employees of La

Barbecue; and

(b) Defendant GGG Ventures, LLC, confided to Defendants Clem and/or

Mueller the management of the whole La Barbecue restaurant business.

9.06 As a result, Defendants GGG’s, Clem’s, and Mueller’s gross negligence was a

proximate and producing cause of Plaintiff’s injury cited herein.

PLAINTIFF’S ORIGINAL PETITION PAGE 13

 PLAINTIFF AARON GOMEZ’S DAMAGES for the NEGLIGENCE and GROSS
NEGLIGENCE OF DEFENDANTS MUELLER, CLEM and GGG (COUNTS 1 and 2)

10.01 As a result, Defendants Mueller, Clem, and GGG’s gross negligence was a

proximate and producing cause of Plaintiff’s injury.

10.02 Plaintiff Aaron Gomez suffered the loss of four fingers on his dominant hand, his

left hand, when the meat grinder shredded his fingers. Plaintiff’s hand is permanently disfigured,

and Plaintiff suffered an enormous amount of shock, pain, and mental anguish. Plaintiff’s

fingers, including muscles, tendons, and bones, were completely pulverized to the point that

none of them could be recovered or reattached. As a consequence of the injuries sustained by

Plaintiff, he has lost all dexterity in his left hand. Furthermore, these injuries have had a serious

effect on Plaintiff’s health and wellbeing. Plaintiff has suffered severe physical and mental pain

and anguish. These injuries are permanent in nature, and in reasonable probability, Plaintiff will

suffer for a long time into the future if not for the balance of his natural life.

10.03 Thus, Plaintiff seeks and is entitled to an award of monetary relief in the

maximum amount allowed by the court excluding costs, prejudgment interest and attorneys’ fees

of the following damages from Defendants Mueller, Clem and GGG.:

(a) Physical pain in the past and future;

(b) Mental anguish in the past and future;

(c) Disfigurement in the past and future;

(d) Physical impairment in the past and future;

(e) Medical expenses in the past and future; and

(f) Loss of earning capacity in the past and future.

PLAINTIFF’S ORIGINAL PETITION PAGE 14

 10.04 Additionally, Plaintiff affirmatively pleads to further seeks exemplary damages

for Defendants’ grossly negligent conduct. The nature of Defendants’ negligent acts and

omissions were of such character as to make Defendants liable for gross negligence.

10.05 Defendants’ actions, when viewed objectively from the standpoint of Defendants,

involved an extreme degree of risk, considering the magnitude and probability of harm to life

and/or limb of Plaintiff as well as others similarly situated. Moreover, Defendants had actual,

subjective awareness of this risk, but nevertheless proceeded with conscious indifference to the

rights, safety, and welfare of Plaintiff. Thus, Defendants’ gross negligence was a proximate and

producing cause of Plaintiff’s injuries and the damages he suffered.

10.06 Thus, Plaintiff also seeks and is entitled to an award of exemplary damages under

Section 41.003(a)(3) of the Texas Civil Practice & Remedies Code.

10.07 Accordingly, Plaintiff seeks the aforementioned damages within the jurisdictional

limits of this Court.

COUNT 3 – FRAUD OF DEFENDANTS CLEM, MUELLER and GGG

11.01 Plaintiff incorporates by reference all of the allegations hereinabove stated.

Additionally, Defendants Mueller, Clem, and GGG committed fraudulent misrepresentation.

11.02 On or about August 4, 2016, in Travis County, Texas, Defendants Mueller and

Clem represented to Plaintiff Aaron, including through his attorney, that GGG d/b/a La Barbecue

was a workers’ compensation subscriber and that there was an active insurance policy in place at

the time and on the occasion of Plaintiff’s work-related injury.

11.03 This representation was material in that, according to Section 408.001 of the

Texas Labor Code, commonly referred to as the “exclusive remedy provision,” the workers’

compensation insurance policy would be Plaintiff’s exclusive remedy for his work-related injury.

PLAINTIFF’S ORIGINAL PETITION PAGE 15

Thereby, Plaintiff would be prohibited from bringing a civil suit for his personal work-related

injury against Defendants.

11.04 Defendants made this representation specifically to Plaintiff and Plaintiff’s

attorney so that Plaintiff would rely on the information. Alternatively, Defendants knew that

awareness of the workers’ compensation insurance policy would reach employees who were

injured after July 1, 2016, of which Plaintiff was a member.

11.05 The representation made by Defendants Clem and Mueller, and or their agents, as

described above, was a false statement of fact. In fact, Defendants GGG, Mueller and Clem had

been nonsubscribers starting in at least 2014 and did not seek to become workers’ compensation

subscribers until after Plaintiff’s injuries. Furthermore, on or after July 23, 2016, Defendants

Mueller and Clem requested Travelers to backdate the insurance policy’s commencement to July

1, 2016, with the intent of covering Plaintiff’s injury and preventing him from bringing a civil

suit to recover the full damages that he was allowed.

11.06 At the time Defendants Mueller and Clem made the representation to Plaintiff,

Defendants knew that their representation was false. Defendants knew that at the time and on the

occasion of Plaintiff’s work-related injury, Defendant GGG d/b/a La Barbecue was a

nonsubscriber of workers compensation.

11.07 Defendants Mueller and Clem expected and intended for Plaintiff Aaron to rely

on the representation that La Barbecue had subscribed to workers compensation.

11.08 Indeed, reasonably, Plaintiff believed and relied on this representation because he

did not have the superior knowledge of La Barbecue’s corporate operations as Defendants

Mueller and Clem did. As a result, Plaintiff believed he was limited to workers’ compensation

PLAINTIFF’S ORIGINAL PETITION PAGE 16

benefits instead of enforcing his rights to seek his full damages as he was constitutionally

allowed against a non-subscribing employer.

11.09 Defendants’ false representation was a proximate and producing cause of

Plaintiff’s injury in that it immediately prevented Plaintiff Aaron from exercising his Texas

constitutional rights to a trial by jury.

11.10 The representation by Defendants Mueller and Clem, as described above,

constitutes an actual fraud, in that the Defendants made a false, material misrepresentation, that

the Defendants directly knew to be false and intended for Plaintiff to rely on them. Plaintiff,

indeed, reasonably acted in reliance on Defendants’ misrepresentation. These representations

were made by Defendants Mueller and Clem, in their capacity with Defendant GGG Ventures;

therefore, making GGG Ventures liable for these acts.

11.11 Accordingly, along with damages set forth herein, Plaintiffs seek exemplary

damages under Section 41 of Texas Civil Practice & Remedy Code.

COUNT 4 – NEGLIENT MISREPRESENTATION of DEFENDANTS CLEM,

MULLER, and GGG

12.01 Plaintiff incorporates by reference all of the allegations hereinabove stated except

Count 3. In the alternative of Count 3, Defendants Clem, Meuller, and GGG committed negligent

misrepresentation.

12.02 On or about August 4, 2016 in Travis County, Texas, Defendants Mueller and

Clem represented to Plaintiff Aaron Gomez that Defendant GGG d/b/a La Barbecue was a

workers compensation subscriber and that there was an active insurance policy in effect at the

time and on the occasion of Plaintiff Aaron’s work-related injury.

12.03 Defendants Mueller and Clem made the above-mentioned representation in the

course of Defendant GGG’s business, namely as employers of Plaintiff. Furthermore, Defendants

PLAINTIFF’S ORIGINAL PETITION PAGE 17

made this representation in the course of a transaction in which Defendants had a pecuniary

interest, namely Plaintiff was in a position to seek relief from Defendant GGG’s liability as an

employer for his injuries. In fact, Plaintiff alerted Defendants, through his attorney, that he

intended to do so.

12.04 Defendants’ representation was a misstatement of a fact and was false

information. In fact, Defendants were non-subscribers since at least 2014 and they did not

become subscribers until after Plaintiff’s injuries on July 22, 2016. Although Plaintiff’s attorney

requested a copy of any employee benefit plan or insurance coverage in effect on July 22, 2016,

Defendants provide false information; a Travelers insurance workers compensation policy,

unbeknownst to Plaintiff and his attorney, that was backdated to appear like it was in existence at

the time of Plaintiff’s work-related injury.

12.05 Defendants provided this false representation to guide Plaintiff away from seeking

recovery from them as his employers. Defendants wanted to limit Plaintiff’s remedies to the

Workers’ Compensation Act’s exclusive remedy provision, which would leave Plaintiff with

only one recovery method, the Travelers workers compensation policy.

12.06 Defendants did not use reasonable care in communicating that Defendants were

non-subscribers. According to Section 406.005 of the Texas Labor Code, Defendants were

required to disclose their workers’ compensation status to Plaintiff when he was hired and upon

any change in status. Yet, Defendants failed to do so. In the same vein, Defendants continuously

failed to disclose their non-subscriber status to Plaintiff even after his attorney’s correspondence

requesting them to do so. In fact, Defendants only relented to disclose their workers’

compensation status after they had secured the backdated Travelers insurance policy; omitting

that it was backdated.

PLAINTIFF’S ORIGINAL PETITION PAGE 18

 12.07 Reasonably, Plaintiff believed and relied on this representation because he did not

have the superior knowledge of La Barbecue’s corporate operations that Defendants Mueller and

Clem did. As a result, Plaintiff believed he was limited to the workers’ compensation benefits

provided by the Travelers insurance policy instead of enforcing his right of remedy against a

non-subscribing employer.

12.08 Defendants’ misrepresentation directly and proximately caused injury to the

Plaintiff in that it immediately prevented Plaintiff from exercising his Texas constitutional rights

of recovery.

12.09 Accordingly, along with the damages set forth herein, Plaintiffs seek exemplary

damages under Section 41 of Texas Civil Practice & Remedy Code.

COUNT 5 – CIVIL CONSPIRACY of DEFENDANTS MUELLER, CLEM, GGG and

PAYCHEX

13.01 Plaintiff incorporates by reference all of the allegations hereinabove stated.

13.02 Additionally, Defendant Paychex, in combination with Defendants Clem, Mueller

and GGG, agreed to engage in common law fraudulent misrepresentation when the Defendants

collectively worked to procure a backdated workers' compensation policy to prevent Plaintiff

from enforcing his common law and constitutional right to a remedy for his injury.

13.03 Defendant Paychex, acting through its employees and/or agents, with Defendants

Clem, Mueller and GGG acted with the intent to harm Plaintiff Aaron Gomez because

Defendants were aware that Plaintiff had begun efforts to bring suit against Defendants GGG and

Mueller.

13.04 To accomplish the object of their agreement, Defendants engaged in overt acts.

First, Defendants intentionally deceived and misled Travelers so that Travelers would issue a

workers’ compensation policy the provided coverage on the date of the Aaron’s injury. In

PLAINTIFF’S ORIGINAL PETITION PAGE 19

furtherance of this effort, Defendants intentionally deceived and misled Plaintiff into believing

that the workers’ compensation policy was in effect on July 22, 2016, when it was not.

13.05 The agreement and the overt acts, as described above, among the Defendants was

a proximate and producing cause of Plaintiffs injuries.

13.06 Accordingly, Plaintiff seeks recovery of all the damages set forth herein that are

within the jurisdictional limits of this Court.

COUNT 6 – DECEPTIVE TRADE PRACTICE of DEFENDANT PAYCHEX

14.01 Plaintiff incorporates by reference all of the allegations hereinabove stated.

14.02 Additionally, Defendant Paychex committed deceptive trade practices that caused

or contributed to Plaintiff’s injury.

14.03 Plaintiff is a consumer under the Deceptive Trade Practices Act (“DTPA”).

Plaintiff is an individual who acquired the workers’ compensation policy because he was

Defendant’s intended beneficiary of the policy.

14.04 Defendant is a corporation that can be sued under the DTPA because Defendant is

duly licensed in the State of Texas to engage in the insurance business including but not limited

to procuring workers’ compensation policies for citizens and businesses of Texas such as

Mueller and La Barbecue.

14.05 Defendant Paychex violated the DTPA when Defendant engaged in false,

misleading, or deceptive acts or practices that Plaintiff relied on to Plaintiff’s detriment.

Defendants false, misleading, or deceptive acts pr practices include but are not limited to:

(a) Failing to disclose information about the goods or services that was
known at the time of the transaction if the failure to disclose was intended
to induce the consumer to enter into a traction that the consumer would
not have entered into if the information had been disclosed;

PLAINTIFF’S ORIGINAL PETITION PAGE 20

 (b) Representing, that its insurance policy conferred or involved rights
remedies available to Plaintiff when it was factually clear to Defendant
and its co-conspirators that the policy did not do so;

(c) Representing to Travelers that Plaintiff did not have an injured employee
with a claim laying in wait for it to issue its insurance policy’s when it
was factually clear that Defendant with its co-conspirators intended to do;
and

(d) Causing confusion or misunderstanding about the Travelers insurance

policy issuance and use by Plaintiff.

14.06 Furthermore, Defendant engaged in an unconscionable action, which to Plaintiff’s

detriment, took advantage of Plaintiff’s lack of knowledge and experience to a grossly unfair

degree. Defendant intentionally concealed the existence of Plaintiff’s injury to procure the

workers’ compensation policy for La Barbecue knowing that Plaintiff would be unaware of the

falsity.

14.07 It was impracticable for Plaintiff to give Defendant a written notice of this DTPA

claim at least 60 days prior to this filing, as stated under Section 17.505(a) of the Texas Business

& Commerce Code because Plaintiff needed to file this suit immediately. Therefore, written

notice was not required.

14.08 Defendant’s wrongful conduct was a direct and producing cause of Plaintiff’s

injury, which resulted in the following damages:

(a) Out-of-pocket damages;

(b) Settlement costs;

(c) attorney's fees;

(d) Medical expenses in the past and future; and

(e) Loss of earning capacity in the past and future.

PLAINTIFF’S ORIGINAL PETITION PAGE 21

 14.09 Defendant acted knowingly and intentionally; which entitles Plaintiff to recover

mental-anguish damages under Section 17.50(a)(1) and (3) of the Texas Business & Commerce

Code. seeks unliquidated damages within the jurisdictional limits of the Court.

14.10 Additionally, because Defendant acted intentionally, Plaintiff is entitled to

recover treble economic and mental-anguish damages under Section 17.50(b)(1) of the Texas

Business & Commerce Code.

14.11 Plaintiff is entitled to an extension of the limitations period of up to 180 days

under Section 17.565 of the Texas Business & Commerce Code because Plaintiff’s failure to

timely commence his action was caused by Defendant knowingly engaging in conduct that was

solely calculated to induce Plaintiff to refrain from filing suit.

XV. REQUIRED DISCLOSURES

15.01 Pursuant to Rule 194, you must make initial disclosures of the information or

material described in Rule 194.2 of the Texas Rules of Civil Procedure, within thirty (30) days

after filing of the first answer or general appearance, unless different time is set by the parties’

agreement or court order.

XVI. NOTICE UNDER RULE 193.7 OF TRCP

16.01 Plaintiff hereby gives all parties notice that any and all documents and things

produced by any Defendant may be used at any pre-trial and/or trial without the necessity of

authenticating the same.

XVII. PRIVILEGE LOG REQUEST

17.01 If Defendants seek to exclude from discovery any information, documents or

tangible things sought by claiming that material or information otherwise responsive to this

written discovery is privileged, accept this as Intervenors request for a privilege log that

PLAINTIFF’S ORIGINAL PETITION PAGE 22

generally identifies and/or describes the withheld information, documents, or tangible things

pursuant to the Texas Rules of Civil Procedure.

XVIII. JURY DEMAND

18.01 Plaintiff demands a jury trial and tenders the appropriate fee with this petition.

XIX. PRAYER

19.01 By reason of the above and foregoing, Plaintiff has been damaged in a sum within

the jurisdictional limits of this Court.

19.02 WHEREFORE, Plaintiff prays that Defendants be duly cited to appear and answer

herein; and that upon final trial of this cause, Plaintiff recovers:

(a) Judgment against Defendants for Plaintiff’s damages as set forth above;

(b) Post-judgment interest on said judgment at the legal rate from the date of
the judgment;

(c) pre-judgment interest on Plaintiff’s damages as allowed by law;

(d) costs of court; and

(e) such other and further relief to which Plaintiff may be entitled.

Respectfully submitted,

_______________________________
Jonathon (Jon) C. Clark
Texas State Bar No. 24068683

Glasheen, Valles & Inderman

1703 West Ave.
Austin, Texas 78701
[email protected]
Direct: (737) 202-3433
Fax: (512) 298-1009

ATTORNEY FOR PLAINTIFF

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