In re Odebrecht Constr., Inc.

548 S.W.3d 739
CourtCourt of Appeals of Texas
DecidedApril 11, 2018
DocketNUMBER 13-17-00289-CV
StatusPublished
Cited by19 cases

This text of 548 S.W.3d 739 (In re Odebrecht Constr., Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Odebrecht Constr., Inc., 548 S.W.3d 739 (Tex. Ct. App. 2018).

Opinion

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 *743that 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 *744heading 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.

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Cite This Page — Counsel Stack

Bluebook (online)
548 S.W.3d 739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-odebrecht-constr-inc-texapp-2018.