In re Odebrecht Constr., Inc.

• Decision Date: 11 April 2018
• Docket Number: NUMBER 13-17-00289-CV
• Citation: 548 S.W.3d 739
• Parties: IN RE ODEBRECHT CONSTRUCTION, INC.
• Court: Texas Court of Appeals

548 S.W.3d 739

IN RE ODEBRECHT CONSTRUCTION, INC.

NUMBER 13-17-00289-CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed April 11, 2018

Robert L. Galligan, Jones, Galligan, Key & Lozano, 2300 West Pike Blvd., Suite 300, P.O. Drawer 1247, Weslaco, TX 78599-1247, for Relator.

Francisco J. Enriquez, Law Office of Francisco J. Enriquez, 4200–B N. Bicentennial, McAllen, TX 78504, William J. Tinning, Attorney at Law, 1013, Bluff Drive, Portland, TX 78374, for Real Party in Interest.

Before Justices Rodriguez, Contreras, and Benavides

MEMORANDUM OPINION ON REHEARING

Memorandum Opinion by Justice Rodriguez¹

On August 15, 2017, we issued a memorandum opinion conditionally granting the petition for writ of mandamus filed by relator Odebrecht Construction, Inc. (Odebrecht) in this original proceeding. See In re Odebrecht Constr., Inc. , No. 13-17-00289-CV, 2017 WL 3484526, at *1 (Tex. App.—Corpus Christi Aug. 15, 2017, orig. proceeding) (mem. op.). Thereafter, real party in interest Rodolfo Mora filed a motion for rehearing or en banc reconsideration, and Odebrecht filed a response to that motion. See generally TEX. R. APP. P. 49. After due consideration of Mora’s motion for rehearing, Odebrecht’s response, and recent cases decided by the Texas Supreme Court, we grant rehearing in this case. Accordingly, we withdraw our August 15, 2017 memorandum opinion and the dissenting memorandum opinion, and we substitute this memorandum opinion denying Odebrecht’s petition for writ of mandamus in their stead. We dismiss Mora’s motion for en banc reconsideration as moot.

Through this original proceeding, Odebrecht seeks to compel the trial court to grant its motion to dismiss the underlying case against it as a legally "baseless" cause of action under Texas Rule of Civil Procedure 91a.² See generally TEX. R. CIV. P. 91a. Mora brought suit against Odebrecht for wrongful termination, alleging that Odebrecht terminated Mora’s employment because Mora’s son, a co-worker, suffered an injury at work and filed a claim for workers' compensation. Odebrecht contends that Mora’s claim is a baseless cause of action under Texas Labor Code Chapter 451 because Mora failed to allege any facts to show that he "testified" or was "about to testify" in a workers' compensation proceeding. See TEX. LAB. CODE ANN. § 451.001(4) (West, Westlaw through 2017 1st C.S.). Odebrecht seeks to compel the trial court to: (1) vacate its order denying Odebrecht’s motion to dismiss under Texas Rule of Civil Procedure 91a ; (2) grant its motion to dismiss; and (3) award Odebrecht its costs and attorney’s fees. See TEX. R. CIV. P. 91a. Considering solely the pleading of Mora’s cause of action, as we are required to do by the rules of civil procedure, we conclude that Mora’s allegations, taken as true, have a basis in law. Accordingly, we deny the petition for writ of mandamus.

I. BACKGROUND

According to Mora’s original petition, Mora was wrongfully terminated from his employment with Odebrecht when Mora’s son filed a workers' compensation claim after being injured during the course and scope of his employment with Odebrecht. Mora alleged discrimination "pursuant to Chapter 451 of the Texas Labor Code." Odebrecht filed a motion to dismiss Mora’s case under Texas Rule of Civil Procedure 91a on grounds that the facts alleged by Mora did not "state a cognizable legal claim under any of the narrow exceptions to Texas’s at-will employment doctrine." Odebrecht asserted that Chapter 451 of the Texas Labor Code, which prohibits discrimination against employees involved in certain aspects of the workers' compensation process, is an exception to the doctrine, but that Mora’s claims failed to fall within this statutory exception. In its motion to dismiss, Odebrecht specifically discussed section 451.001 of the Texas Labor Code and argued that Mora’s petition failed to plead a cognizable claim under that section because, inter alia, that section did not extend protection from retaliatory discharge to "employee-relatives" of a workers' compensation claimant and Mora "does not (and based on the facts, could not) allege that he had testified or was about to testify in a contested workers' compensation hearing prior to his dismissal." See id. § 451.001(1) – (4). Odebrecht thus alleged that it had the right to terminate Mora based on his status as an "at-will" employee.

Mora subsequently filed a first amended petition which stated the following under a heading entitled "Facts, Causes of Action, and Damages":

On or about January 22, 2016, Plaintiff was wrongfully terminated from his employment with Defendant ODEBRECHT. Plaintiff [was] discriminated against pursuant to Chapter 451 of the Texas Labor Code, when he was [terminated] just a few weeks after his son was injured while in the course and scope of his employment with Defendant ODEBRECHT.

Plaintiff RODOLFO MORA is the father of the injured employee JUAN MORA [who is the Plaintiff in a separate lawsuit, and a copy of the petition in that lawsuit is attached hereto as Exhibit "A"] and Foreman of the crew which employed the injured employee, his son JUAN MORA. He, his son and the crew were called in after the accident and told they were going to be terminated. The people who were terminated were witnesses to the accident and/or of the defective condition of the machinery which caused the employee, JUAN MORA to be entangled, almost killed, and severely injured.

One of the crew members who was not a family member was then pulled aside and then told he was—"wink, wink" going to be retained but was told this to make it appear it was a lay off even though there was additional work which needed be done, and there was not a reduction in force, that was being actually imposed.

As a proximate result of the aforementioned negligence, Plaintiff suffered damages. All of the above was caused by the negligence complained of herein.

As referenced in this pleading, Mora attached Exhibit "A," his son’s original petition in Juan Mora v. Odebrecht Construction, Inc., Zachry Construction Corp., Zachry Industrial, Inc., David Defriese, individually and as agent for Zachry Construction Corp. and Zachry Industrial Inc., and Zachry-Odebrecht Parkway Builders , filed in trial court cause number C-3329-16-I in the 398th District Court of Hidalgo County, to his first amended petition.

After receiving additional briefing from the parties, the trial court denied Odebrecht’s motion to dismiss. This original proceeding ensued. Odebrecht raises one issue through which it contends that Mora’s claim that he was wrongfully terminated is a baseless cause of action under Texas Labor Code Chapter 451 because Mora failed to allege any facts to show that he "testified" or was "about to testify" in a workers' compensation proceeding. This Court requested and received a response to the petition from Mora and further received a reply to Mora’s response from Odebrecht.

II. MANDAMUS

"Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal." In re Frank Motor Co. , 361 S.W.3d 628, 630 (Tex. 2012) (orig. proceeding); see In re Olshan Found. Repair Co. , 328 S.W.3d 883, 887 (Tex. 2010) (orig. proceeding); In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair Co. , 328 S.W.3d at 888 ; Walker , 827 S.W.2d at 840. Mandamus will not issue "when the law provides another plain, adequate, and complete remedy." In re Tex. Dep't of Family & Protective Servs. , 210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding ) (quoting In re Prudential , 148 S.W.3d at 135–36 ).

Mandamus is available to review a trial court’s denial of a motion to dismiss under Texas Rule of Civil Procedure 91a. In re Essex Ins. Co. , 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per curiam); In re Butt , 495 S.W.3d 455, 460 (Tex. App.—Corpus Christi 2016, orig. proceeding). In laying the groundwork for a rule mandating the early dismissal of baseless causes of action, the Legislature has effectively already balanced most of the relevant costs and benefits of an appellate remedy, and mandamus review of orders denying Rule 91a motions comports with the Legislature’s requirement for an early and speedy resolution of baseless claims. In re Butt , 495 S.W.3d at 460.

III. BASELESS CAUSES OF ACTION

In 2013, the Texas Supreme Court adopted Texas Rule of Civil Procedure 91a,³ which governs the dismissal of baseless causes of action and which provides in pertinent part:

[A] party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in the law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.

TEX. R. CIV. P. 91a.1; see City of Dallas v. Sanchez , 494 S.W.3d 722, 724–25 (Tex. 2016) (per curiam). "A motion to dismiss must state that it is made pursuant to this rule, must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both." TEX. R. CIV. P. 91a.2. The rule allows the responding party to either nonsuit or amend the challenged cause of action at least three days before the date of the hearing on the motion to dismiss. See id. R. 91a.5(a), (b).⁴ "The trial court may, but is not required to, conduct an oral hearing on the motion." Id. R. 91a.6. Further, "the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of...