Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 444th District Court of Cameron County,
Justices Benavides, Longoria, and Perkes
L. LONGORIA JUSTICE
Isaac Montes filed suit against appellees Overhead Door
Corporation, Randall Furbay, and Jane Doe (collectively,
Overhead), alleging defamation. Overhead filed a Rule 91a
motion to dismiss. By five issues, which we condense into
three, Montes argues that the trial court erred by: (1)
granting Overhead's motion to dismiss even though it did
not address the causes of actions raised in his live
petition, Overhead did not refute Montes's "with
malice" allegation, and Overhead did not address the
constitutionality of Texas Labor Code § 301.074; (2)
improperly denying his "right to freedom of association
in legal proceedings"; and (3) partaking in ex parte
communications with Overhead. We affirm.
March 2018, Montes worked for Overhead for about three days.
According to Overhead, Montes was terminated for failing to
perform his job duties; Montes asserts that Overhead falsely
accused him of "not being qualified for [the] job as a
way to cover-up discrimination based on National Original
[sic]." Montes filed suit against Overhead on August 17,
2018, alleging defamation per se-based on a statement
Overhead allegedly made to the Texas Workforce Committee
(TWC) during Montes's unemployment compensation
proceeding-and fraudulent inducement into an arbitration
September 14, 2018, Overhead filed a Rule 91a motion to
dismiss on the grounds that Texas Labor Code § 301.074
provides absolute immunity for statements made during a TWC
hearing. See Tex. Labor Code Ann. § 301.074
("An oral or written statement made to the commission or
to an employee of the commission in connection with the
discharge of the commission's or the employee's
duties under Subtitle A may not be the basis for an action
for defamation of character."). The motion was set to be
heard on October 10, 2018.
September 21, 2018, Montes filed an amended petition,
alleging that Overhead acted "with malice" in
regard to the allegedly defamatory statements made to the
commission. On September 28, 2018, Montes filed a
"motion to allow for unpaid advocate non-lawyer" to
appear for him at the hearing. The motion requested that
Robert Wightman-Cervantes, an individual not currently
licensed to practice law, be permitted to speak for Montes in
court. On October 1, 2018, Montes filed another amended
petition, adding an allegation that Overhead acted "with
malice" in making statements before the TWC. The motion
to dismiss hearing on October 10, 2018 was reset for October
17, 2018. Montes subsequently filed a motion for continuance
on the basis that Wightman-Cervantes was going to be
unavailable. Montes filed a third petition, which alleged
that § 301.074 was unconstitutional. See Tex.
Labor Code Ann. § 301.074.
October 17, 2018, the trial court heard all motions before it
and: (1) denied Montes's motion to allow representation
by an unpaid advocate non-lawyer; (2) denied Montes's
motion for continuance; and (3) granted Overhead's motion
to dismiss. This appeal ensued.
Rule 91a Motion to Dismiss
Standard of Review and Applicable Law
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."
91a allows a party to move for dismissal on the grounds that
a cause of action has no basis in law or fact. See City
of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016).
"A cause of action has no basis in 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. A petition is sufficient as long as it
gives "fair and adequate notice of the facts upon which
the pleader bases his claim." In re Butt, 495
S.W.3d at 461; 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.
Reaves, 518 S.W.3d at 604.