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Montes v. Overhead Door Corp.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 14, 2019

ISAAC MONTES, Appellant,
v.
OVERHEAD DOOR CORPORATION, RANDALL FURBAY, INDIVIDUALLY AND AS OVERHEAD MANAGEMENT AND JANE DOE, INDIVIDUALLY AND AS OVERHEAD MANAGEMENT, Appellees.

          On appeal from the 444th District Court of Cameron County, Texas.

          Before Justices Benavides, Longoria, and Perkes

          MEMORANDUM OPINION

          NORA L. LONGORIA JUSTICE

         Appellant 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.

         I. Background

         In 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 agreement.

         On 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.

         On 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.

         On 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.

         II. Rule 91a Motion to Dismiss

         A. Standard of Review and Applicable Law

         We 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." Id.

         Rule 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.

         B. ...


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