                          NUMBER 13-19-00018-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

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.



                      MEMORANDUM OPINION
            Before Justices Benavides, Longoria, and Perkes
               Memorandum Opinion by Justice Longoria

      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.

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      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.

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       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. Analysis

       In his first issue, Montes argues that the trial court erred in granting Overhead’s

motion to dismiss. More specifically, Montes asserts that the trial court should not have

granted the motion to dismiss because: (1) Overheard never filed amended motions to

dismiss after Montes filed amended petitions and never addressed Montes’s causes of

actions for fraudulent inducement and detrimental reliance; (2) Overhead did not

specifically attack the allegation that the alleged defamatory statements were made “with

malice”; and (3) Overheard never addressed the constitutionality of § 301.074. See TEX.

LABOR CODE ANN. § 301.074.

       1. Additional Claims

       First, Montes argues that “the trial court never dismissed the live pleading known

as the third amended petition . . . thereby committing error by dismissing a non-existed

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[sic] lawsuit.” Overhead filed its motion to dismiss after Montes’s first petition. After

Overhead filed its motion to dismiss, Montes filed an amended petition, and subsequently

filed a final amended petition; however, Overhead never filed an amended motion to

dismiss. Thus, Montes argues that there is no motion to dismiss his live pleading.

Additionally, Montes asserts that Overhead’s motion to dismiss “does not address the

fraudulent inducement, the detrimental reliance[,] nor the constitutional challenge on the

immunity issue. It also did not address the defamation was done with malice [sic].”

Therefore, because Overhead did not file any amended motions to dismiss or address all

the causes of actions, Montes asserts that the trial court erred by granting the motion to

dismiss.

       However, Montes has not provided, and we have not found, any authority stating

that the movant must file an amended motion to dismiss if the non-movant files an

amended petition. To the contrary, at least one court has upheld the trial court’s granting

of a Rule 91a motion to dismiss despite the movant failing to file an amended motion to

dismiss. See Gonzales v. Dall. County Appraisal Dist., No. 05-13-01658-CV, 2015 WL

3866530, at *4 (Tex. App.—Dallas June 23, 2015, no pet.) (mem. op.). Ultimately,

whether dismissal was proper “depends solely on the pleading of the cause of

action.” Sanchez, 494 S.W.3d at 724 (quoting TEX. R. CIV. P. 91a).

       Concerning the detrimental reliance cause of action, Montes never asserted this

cause of action in any of his petitions. Montes asserted detrimental reliance for the first

time in his motion for new trial. Therefore, this cause of action was not properly presented

or preserved. See TEX. R. APP. P. 33.1.




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        Concerning Montes’s fraudulent inducement cause of action, Overhead argues

that it, along with Montes’s defamation claim, is preempted by the Texas Labor Code. 1

See TEX. LABOR CODE ANN. § 21.051. According to Overhead, Chapter 21 of the Texas

Labor Code forecloses Montes’s claims for fraudulent inducement and defamation

because they are predicated on the underlying facts surrounding the discrimination

allegation. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 802 (Tex. 2010) (“Where

the gravamen of a plaintiff’s case is [Texas Labor Code Chapter 21]–covered harassment,

the Act forecloses common-law theories predicated on the same underlying sexual-

harassment facts.”); City of Waco v. Lopez, 259 S.W.3d 147, 156 (Tex. 2008) (concluding

that even though plaintiff did not invoke Chapter 21 in his pleadings, the plaintiff’s suit for

retaliation involving racial discrimination should be dismissed because “his claim falls

squarely within “[Chapter 21’s] ambit”); Pruitt v. Int’l Ass’n of Fire Fighters, 366 S.W.3d

740, 750 (Tex. App.—Texarkana 2012, no pet.) (concluding that the plaintiff’s claims were

preempted by Chapter 21 because the gravamen for his intentional infliction of emotional

distress, breach of fiduciary duty, and tortious interference with employment relationship

claims was racial discrimination). We agree with Overhead.

        Similar to Pruitt, “we must decide whether the gravamen of his complaint is racial

discrimination.” 366 S.W.3d at 750. Montes’s petition states the following regarding his

fraudulent inducement claim:

        Fraudulent inducement into Arbitration Agreement. First and foremost the
        Arbitration agreement does not apply to individual employees of the
        company. Second in exchange for agreeing to the Arbitration Overhead

        1  Overhead argues that based on Montes’s communications with Overhead’s counsel, Montes’s
“sole claim is for defamation.” For example, Montes’s live petition is titled “Third Amended Plaintiff’s Original
Petition for Defamation Per Se and Defamation.” Additionally, in his response to Overhead’s motion to
dismiss, Montes does not assert that he was claiming fraudulent inducement. Out of an abundance of
caution, we will address it.
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       promised protections against discrimination and arbitrary and capricious
       actions by management. Overhead knew its promise was false and held
       out same out for the sole purpose of inducing new hires to agree to
       arbitration.

       Montes’s defamation claim and his fraudulent inducement claim both revolve

around the same underlying allegation: Overhead purportedly terminating Montes for

failing to perform work duties, when in reality, it was an act of racial discrimination. We

conclude that the facts giving rise to Montes’s common-law causes of action are

“inextricably intertwined with the facts giving rise to complaints that could have been

resolved through Chapter 21’s administrative procedures.” Id.

       2. Actual Malice

       Second, Montes argues the trial court erred by granting the motion to dismiss

because Overhead has not refuted the allegation of malice. However, it is irrelevant

whether or not Overhead’s alleged defamatory statements were made with malice.

Statements made pursuant to § 301.074 are absolutely privileged and cannot support a

defamation claim. See TEX. LABOR CODE ANN. § 301.074; see also Linan v. Strafco, Inc.,

No. 13-05-027-CV, 2006 WL 1766204, at *3 (Tex. App.—Corpus Christi–Edinburg June

29, 2006, no pet.) (mem. op.). Thus, Overhead’s alleged statements to the committee

cannot support Montes’s defamation claim, regardless of the presence of actual malice.

Therefore, Overhead was not required to address Montes’s malice allegation.

       3. Constitutionality of § 301.074

       Third, Montes claims that Overhead failed to address Montes’s cause of action

challenging the constitutionality of § 301.074 and that, accordingly, “the trial court erred

by presumptively finding Texas Labor Code 301.074 constitutional when in fact no motion

on same was ever filed.” First, as we also discussed above, Rule 91a is a vehicle by
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which a party may seek to dismiss causes of action with no basis in law or fact. See TEX.

R. CIV. P. 91a; Sanchez, 494 S.W.3d at 724. Challenging § 301.074 was not a new cause

of action that Montes needed to dismiss; rather, it was a response to Overhead’s reliance

on § 301.074 for absolute immunity for its statements allegedly made during an

unemployment compensation hearing. See TEX. R. CIV. P. 91a; Sanchez, 494 S.W.3d at

724.

        Additionally, as we discussed above, it is true that Overhead did not file an

amended motion to dismiss after Montes challenged the constitutionality of § 301.074 in

his amended petition. See TEX. LABOR CODE ANN. § 301.074. However, “[t]he burden

rests upon the individual who challenges the statute to establish its unconstitutionality.”

Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). Moreover, presuming the

constitutionality of § 301.074 is exactly what the trial court was supposed to do. See id.

(“Whenever we are confronted with an attack upon the constitutionality of a statute,

we presume that the statute is valid and that the Legislature has not acted unreasonably

or arbitrarily.”).   Montes presents no arguments on appeal as to why § 301.074 is

unconstitutional.

        The trial court did not err in granting Overhead’s motion to dismiss. We overrule

Montes’s first issue.

                               III. FREEDOM OF ASSOCIATION

        In his second issue, Montes argues that the trial court violated his freedom of

association in legal proceedings. Montes sought to have Wightman-Cervantes, a non-

lawyer, represent him at court proceedings. Montes has cited multiple cases arguing that

an individual is entitled to representation by an attorney. However, Montes cites no

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authority, and we find none, for the proposition that a layperson is entitled to

representation from another layperson. Cf. Paselk v. Reynolds, 293 S.W.3d 600, 605

(Tex. App.—Texarkana 2009) (“[A]lthough a layperson has the right to represent

themselves, a layperson does not have the right to represent others.”). We overrule his

second issue.

                                IV. EX PARTE COMMUNICATION

         In his third issue, Montes argues that the record clearly reflects that Overhead

conducted ex parte hearings with the trial court to reschedule the hearing date. However,

Montes cites no case law or any other authority concerning ex parte hearings, nor does

Montes discuss how the alleged ex parte hearings caused him any harm. We find this

issue to be inadequately briefed. See TEX. R. APP. P. 38.1(i). We overrule Montes’s third

issue.

                                        V. CONCLUSION

         We affirm the judgment of the trial court.

                                                              NORA L. LONGORIA
                                                              Justice

Delivered and filed the
14th day of November, 2019.




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