In re Odebrecht Constr., Inc.
548 S.W.3d 739
Tex. App.2018Background
- Mora sued Odebrecht for wrongful termination after Mora's son was injured at work and filed a workers' compensation claim; Mora alleged discrimination under Texas Labor Code Chapter 451.
- Odebrecht moved to dismiss under Texas Rule of Civil Procedure 91a, arguing Mora's petition failed to plead a statutory exception to at-will employment (specifically §451.001(4) — testimony or about-to-testify) and that Mora was not protected as a relative.
- Mora filed a first amended petition alleging he and other crew witnesses (including his son) were told they would be terminated shortly after the accident; he attached his son’s suit as an exhibit.
- The trial court denied the Rule 91a motion; Odebrecht sought mandamus relief to compel dismissal and attorney’s fees.
- The appellate court reviewed de novo whether Mora’s pleading, taken as true and construed for fair notice, presented a cause of action that had a basis in law.
- The court concluded Rule 91a review is limited to the pleading (no evidence), and that Mora’s amended petition gave fair notice and did not present a clear legal bar to his claim; mandamus was denied and Odebrecht was not entitled to fees (Mora is prevailing party for fee award purposes).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mora's retaliatory-discharge claim is baseless under Tex. R. Civ. P. 91a | Mora: amended petition gives fair notice of wrongful termination tied to his son’s workers’ compensation claim and shows facts/inferences supporting Chapter 451 protection | Odebrecht: pleading fails to allege that Mora "testified" or was "about to testify" under §451.001(4); at-will rule bars claim and Chapter 451 doesn’t protect relatives | Denied mandamus — pleading, construed liberally, could support a Chapter 451-based wrongful-termination claim; Rule 91a review limited to the pleading, so dismissal inappropriate |
| Whether Rule 91a permits resolving affirmative-defense factual disputes based on extraneous evidence | Mora: Rule 91a is limited to pleadings and not a vehicle for factual contests; movant must use other procedures | Odebrecht: argued facts (e.g., lack of testimony) defeat the claim and justify dismissal | Court: Rule 91a cannot consider evidence; motions that require factual resolution or look beyond pleadings are improper under Rule 91a |
| Whether Odebrecht is entitled to attorney’s fees as prevailing party under Rule 91a | N/A (Mora seeks to preserve claim) | Odebrecht: requests fees after seeking dismissal | Court: Mora prevailed on the motion; Odebrecht not entitled to fees; trial court to hold hearing to determine fees payable to Mora |
| Whether mandamus is appropriate remedy to reverse denial of Rule 91a motion | Odebrecht: mandamus proper because trial court abused discretion by refusing to dismiss baseless claim | Mora: at-issue pleadings suffice; mandamus not warranted | Court: mandamus denied — no clear abuse of discretion because pleadings suffice and Rule 91a review is limited to pleadings |
Key Cases Cited
- In re Frank Motor Co., 361 S.W.3d 628 (Tex. 2012) (mandamus proper to correct clear abuse of discretion)
- In re Olshan Found. Repair Co., 328 S.W.3d 883 (Tex. 2010) (standard for abuse of discretion in mandamus)
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (mandamus availability and standards)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (mandamus review principles)
- City of Dallas v. Sanchez, 494 S.W.3d 722 (Tex. 2016) (Rule 91a confines inquiry to pleadings; de novo review)
- ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858 (Tex. 2018) (Rule 91a decisions are based on pleadings; post-91a summary judgment success does not change Rule 91a outcome)
- AC Interests, L.P. v. Tex. Comm’n on Envtl. Quality, 543 S.W.3d 703 (Tex. 2018) (Rule 91a is not proper vehicle for defects outside pleading scope)
- Montgomery Cty. Hosp. Dist. v. Brown, 965 S.W.2d 501 (Tex. 1998) (general at-will employment rule)
- Trico Tech. Corp. v. Montiel, 949 S.W.2d 308 (Tex. 1997) (statutory protection from retaliation for workers’ compensation claims)
- Kingsaire, Inc. v. Melendez, 477 S.W.3d 309 (Tex. 2015) (elements and circumstantial evidence for retaliation under Chapter 451)