Opinion issued June 15, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00618-CV ——————————— GARY LYNN FOMBY, Appellant V. MANORCARE – SHARPVIEW OF HOUSTON, TEXAS, LLC, Appellee
On Appeal from the 133rd District Court Harris County, Texas Trial Court Case No. 2016-19064
CONCURRING OPINION
The majority holds that pro se appellant Gary Lynn Fomby failed to preserve
error in the trial court when he defeated ManorCare’s Chapter 74 motion to dismiss
his lawsuit. I respectfully disagree. Fomby raised his open-courts and due-process
challenges in the trial court, before the court denied ManorCare’s motion to dismiss. Fomby’s request for a continuance—which was never granted—did not nullify his
constitutional arguments.
As such, I proceed to consider the merits of Fomby’s open-courts and due-
process challenges to Chapter 74’s expert-report requirement. Because these
challenges fail on the merits, I concur in the judgment.
I. Preservation of Open-Courts and Due-Process Challenges
Fomby preserved his open-courts and due-process challenges by raising them
in his response to ManorCare’s motion to dismiss.
On November 21, 2016, ManorCare filed its motion to dismiss Fomby’s
claims based on Fomby’s alleged failure to file an expert report that comported with
Texas Civil Practice and Remedies Code Section 74.351. In December, Fomby filed
a response arguing that he had satisfied Chapter 74’s expert-report requirement. In
the alternative, he argued that the expert-report requirement is unconstitutional
facially and as applied because the requirement “represent[s] an undue burden and
substantial obstacle” to a litigant’s access to the courts. The trial court denied
ManorCare’s motion to dismiss on February 6, 2017, without giving reasons. No
party requested findings of fact or conclusions of law. ManorCare filed its notice of
interlocutory appeal from the denial just ten days later, on February 16, 2017.
Ultimately, a panel of this Court agreed with ManorCare that Fomby’s expert
report did not constitute a good faith effort to comply with the expert-report
2 requirement in Chapter 74. Accordingly, we reversed the trial court’s order denying
ManorCare’s motion to dismiss and remanded the case for further proceedings. See
Clavijo v. Fomby, No. 01-17-00120-CV, 2018 WL 2976116, at *12–16 (Tex.
App.—Houston [1st Dist.] June 14, 2018, pet. denied) (mem. op.).
Here, the majority finds that Fomby failed to “preserve error before the
previous appeal” because Fomby did not take the “opportunity to litigate” his
constitutional open-courts challenges to Chapter 74 before ManorCare took its
interlocutory appeal. I disagree. Fomby raised his open-courts and due-process
constitutional challenges in his response to ManorCare’s Chapter 74 motion to
dismiss. As such, he fulfilled his obligation to “raise an open-courts challenge in the
trial court.” See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002).
The majority does not dispute that Fomby raised these constitutional issues in
his response. Instead, the majority concludes that Fomby waived his constitutional
challenges by later requesting that the trial court defer “any ruling” on “the
constitutionality of Chapter 74” until Fomby could be discharged from the hospital.
At such time, Fomby proposed to submit additional “responsive pleadings.”
We liberally construe pro se pleadings and briefs. J.R. Richard Enters., Inc.
v. Niz, No. 01-20-00124-CV, 2020 WL 7391710, at *3 n.2 (Tex. App.—Houston
[1st Dist.] Dec. 17, 2020, no pet.) (mem. op.). Even without liberal construction,
Fomby’s request appears to be a request for a continuance on the consideration of
3 his constitutional challenges, not a request to strike his constitutional arguments
from his prior filings. See Continuance, BLACK’S LAW DICTIONARY (11th ed. 2019)
(defining “continuance” as an “adjournment or postponement of a trial or other
proceeding to a future date”). The trial court never granted Fomby’s request for a
continuance. Consequently, Fomby’s open-courts and due-process challenges were
properly before the trial court when the court denied ManorCare’s Chapter 74
motion to dismiss.
II. Merits Analysis
Finding that Fomby preserved error in the trial court with respect to his open-
courts and due-process challenges, I turn to the merits and concur in the judgment.
Fomby has not demonstrated that Chapter 74’s expert-report requirement is
unconstitutional, either on its face or as applied.
When reviewing the constitutionality of a statute, we begin with a
presumption that it is constitutional. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.
2003); see also TEX. GOV’T CODE § 311.021(1) (“In enacting a statute, it is presumed
that . . . compliance with the constitutions of this state and the United States is
intended.”). The wisdom or expediency of the law is the Legislature’s prerogative,
not our own prerogative. Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504,
520 (Tex. 1995) (quoting Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968)). Fomby
4 bears the burden of proving that the statute fails to meet constitutional requirements.
See Walker, 111 S.W.3d at 66.
Fomby has not demonstrated that the law’s expert-report requirement violates
the Texas Constitution’s open courts provision, either facially or as applied. The
Texas Constitution states: “All courts shall be open, and every person for an injury
done him, in his lands, goods, person or reputation, shall have remedy by due course
of law.” TEX. CONST. art. I, § 13. This provision “prohibits the Legislature from
making a remedy by due course of law contingent upon an impossible condition.”
Stockton v. Offenbach, 336 S.W.3d 610, 617–18 (Tex. 2011) (internal quotations
omitted). The party alleging an open courts violation must raise a fact issue
establishing that he did not have a “reasonable opportunity to be heard.” Id. at 618;
Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 703 (Tex. 2014) (“Procedurally, the
party raising the open courts challenge must raise a fact issue establishing that he
did not have a reasonable opportunity to be heard.”) (internal quotations omitted).
A claimant bringing an as-applied open-courts challenge to Chapter 74 must
show that the expert-report requirement actually prevented him from bringing his
claims. See Stockton, 336 S.W.3d at 618–19. To prevail on a facial challenge, a party
must show that the statute, by its terms, always operates unconstitutionally. Herrera
v. Seton Nw. Hosp., 212 S.W.3d 452, 461 (Tex. App.—Austin 2006, no pet.) (citing
Garcia, 893 S.W.2d at 518).
5 Here, Fomby argues that Chapter 74 is unconstitutional, facially and as
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Opinion issued June 15, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00618-CV ——————————— GARY LYNN FOMBY, Appellant V. MANORCARE – SHARPVIEW OF HOUSTON, TEXAS, LLC, Appellee
On Appeal from the 133rd District Court Harris County, Texas Trial Court Case No. 2016-19064
CONCURRING OPINION
The majority holds that pro se appellant Gary Lynn Fomby failed to preserve
error in the trial court when he defeated ManorCare’s Chapter 74 motion to dismiss
his lawsuit. I respectfully disagree. Fomby raised his open-courts and due-process
challenges in the trial court, before the court denied ManorCare’s motion to dismiss. Fomby’s request for a continuance—which was never granted—did not nullify his
constitutional arguments.
As such, I proceed to consider the merits of Fomby’s open-courts and due-
process challenges to Chapter 74’s expert-report requirement. Because these
challenges fail on the merits, I concur in the judgment.
I. Preservation of Open-Courts and Due-Process Challenges
Fomby preserved his open-courts and due-process challenges by raising them
in his response to ManorCare’s motion to dismiss.
On November 21, 2016, ManorCare filed its motion to dismiss Fomby’s
claims based on Fomby’s alleged failure to file an expert report that comported with
Texas Civil Practice and Remedies Code Section 74.351. In December, Fomby filed
a response arguing that he had satisfied Chapter 74’s expert-report requirement. In
the alternative, he argued that the expert-report requirement is unconstitutional
facially and as applied because the requirement “represent[s] an undue burden and
substantial obstacle” to a litigant’s access to the courts. The trial court denied
ManorCare’s motion to dismiss on February 6, 2017, without giving reasons. No
party requested findings of fact or conclusions of law. ManorCare filed its notice of
interlocutory appeal from the denial just ten days later, on February 16, 2017.
Ultimately, a panel of this Court agreed with ManorCare that Fomby’s expert
report did not constitute a good faith effort to comply with the expert-report
2 requirement in Chapter 74. Accordingly, we reversed the trial court’s order denying
ManorCare’s motion to dismiss and remanded the case for further proceedings. See
Clavijo v. Fomby, No. 01-17-00120-CV, 2018 WL 2976116, at *12–16 (Tex.
App.—Houston [1st Dist.] June 14, 2018, pet. denied) (mem. op.).
Here, the majority finds that Fomby failed to “preserve error before the
previous appeal” because Fomby did not take the “opportunity to litigate” his
constitutional open-courts challenges to Chapter 74 before ManorCare took its
interlocutory appeal. I disagree. Fomby raised his open-courts and due-process
constitutional challenges in his response to ManorCare’s Chapter 74 motion to
dismiss. As such, he fulfilled his obligation to “raise an open-courts challenge in the
trial court.” See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002).
The majority does not dispute that Fomby raised these constitutional issues in
his response. Instead, the majority concludes that Fomby waived his constitutional
challenges by later requesting that the trial court defer “any ruling” on “the
constitutionality of Chapter 74” until Fomby could be discharged from the hospital.
At such time, Fomby proposed to submit additional “responsive pleadings.”
We liberally construe pro se pleadings and briefs. J.R. Richard Enters., Inc.
v. Niz, No. 01-20-00124-CV, 2020 WL 7391710, at *3 n.2 (Tex. App.—Houston
[1st Dist.] Dec. 17, 2020, no pet.) (mem. op.). Even without liberal construction,
Fomby’s request appears to be a request for a continuance on the consideration of
3 his constitutional challenges, not a request to strike his constitutional arguments
from his prior filings. See Continuance, BLACK’S LAW DICTIONARY (11th ed. 2019)
(defining “continuance” as an “adjournment or postponement of a trial or other
proceeding to a future date”). The trial court never granted Fomby’s request for a
continuance. Consequently, Fomby’s open-courts and due-process challenges were
properly before the trial court when the court denied ManorCare’s Chapter 74
motion to dismiss.
II. Merits Analysis
Finding that Fomby preserved error in the trial court with respect to his open-
courts and due-process challenges, I turn to the merits and concur in the judgment.
Fomby has not demonstrated that Chapter 74’s expert-report requirement is
unconstitutional, either on its face or as applied.
When reviewing the constitutionality of a statute, we begin with a
presumption that it is constitutional. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.
2003); see also TEX. GOV’T CODE § 311.021(1) (“In enacting a statute, it is presumed
that . . . compliance with the constitutions of this state and the United States is
intended.”). The wisdom or expediency of the law is the Legislature’s prerogative,
not our own prerogative. Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504,
520 (Tex. 1995) (quoting Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968)). Fomby
4 bears the burden of proving that the statute fails to meet constitutional requirements.
See Walker, 111 S.W.3d at 66.
Fomby has not demonstrated that the law’s expert-report requirement violates
the Texas Constitution’s open courts provision, either facially or as applied. The
Texas Constitution states: “All courts shall be open, and every person for an injury
done him, in his lands, goods, person or reputation, shall have remedy by due course
of law.” TEX. CONST. art. I, § 13. This provision “prohibits the Legislature from
making a remedy by due course of law contingent upon an impossible condition.”
Stockton v. Offenbach, 336 S.W.3d 610, 617–18 (Tex. 2011) (internal quotations
omitted). The party alleging an open courts violation must raise a fact issue
establishing that he did not have a “reasonable opportunity to be heard.” Id. at 618;
Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 703 (Tex. 2014) (“Procedurally, the
party raising the open courts challenge must raise a fact issue establishing that he
did not have a reasonable opportunity to be heard.”) (internal quotations omitted).
A claimant bringing an as-applied open-courts challenge to Chapter 74 must
show that the expert-report requirement actually prevented him from bringing his
claims. See Stockton, 336 S.W.3d at 618–19. To prevail on a facial challenge, a party
must show that the statute, by its terms, always operates unconstitutionally. Herrera
v. Seton Nw. Hosp., 212 S.W.3d 452, 461 (Tex. App.—Austin 2006, no pet.) (citing
Garcia, 893 S.W.2d at 518).
5 Here, Fomby argues that Chapter 74 is unconstitutional, facially and as
applied, because the expert-report requirement “represent[s] a substantial obstacle
and undue burden” on a litigant’s access to the courts. Texas courts have consistently
rejected similar challenges. See, e.g., Stockton, 336 S.W.3d at 618–19 (rejecting
open-courts challenge); Matthews v. Lenoir, 439 S.W.3d 489, 498–99 (Tex. App.—
Houston [1st Dist.] 2014, pet. denied) (rejecting due-process and open-courts
challenges); Chalfant v. Brookdale Senior Living Communities, Inc., No. 01-12-
00140-CV, 2013 WL 1790226, at *4–5 (Tex. App.—Houston [1st Dist.] Apr. 25,
2013, no pet.) (mem. op.) (rejecting open-courts and due-process challenges);
Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d 512, 521–23 (Tex. App.—Dallas
2011, pet. denied) (rejecting open-courts and separation-of-powers challenges);
Wilson-Everett v. Christus St. Joseph, 242 S.W.3d 799, 802–04 (Tex. App.—
Houston [14th Dist.] 2007, pet. denied) (rejecting separation-of-powers challenge);
Ledesma v. Shashoua, No. 03-05-00454-CV, 2007 WL 2214650, at *9 (Tex. App.—
Austin Aug. 3, 2007, pet. denied) (mem. op.) (rejecting due-process and open-courts
challenges); Herrera, 212 S.W.3d at 461–62 (rejecting due-process and open-courts
challenges).
The same result should follow here. Fomby has not proven that it was
impossible to comply with Chapter 74’s expert-report requirement. Far from it, our
prior opinion confirms compliance was possible. We allowed Fomby’s claims
6 against Dr. Clavijo to go forward, holding that Fomby’s expert report “presents an
objective, good faith effort to comply” with Chapter 74’s requirements. Clavijo,
2018 WL 2976116, at *11 (citations omitted). By contrast, we held that Fomby had
not satisfied this standard with respect to ManorCare because Fomby’s expert had
not “considered any of ManorCare’s records pertaining to Fomby’s informed-
consent claim.” Id. at *14 (citing Loaisiga v. Cerda, 379 S.W.3d 248, 261 (Tex.
2012), Houston Methodist Hosp. v. Nguyen, 470 S.W.3d 127, 131 (Tex. App.—
Houston [14th Dist.] 2015, pet. denied), and TEX. CIV. PRAC. & REM. CODE
§ 74.351).
Furthermore, Fomby’s due-process and open-courts challenges are foreclosed
by our decision in Chalfant v. Brookdale Senior Living Communities, Inc., which
Fomby does not address. See 2013 WL 1790226, at *4. Under Chalfant, the due-
process inquiry determines whether the challenged law has a reasonable relation to
a proper legislative purpose or is arbitrary or discriminatory. Id. If the law is related
to a proper legislative purpose and is not arbitrary or discriminatory, it passes muster
under the Due Process Clause. Id. In order to assert a violation of the Open Courts
Provision, a litigant must meet two criteria: (1) he must have a cognizable common-
law cause of action that is being restricted; and (2) the restriction must be
unreasonable or arbitrary when balanced against the purpose and basis of the statute.
Id. (citation omitted).
7 In Chalfant, we held that the expert-report requirement is rationally related to
the purpose of the statute–discouraging frivolous malpractice suits. Id. (citations
omitted). “Thus, we cannot conclude that the requirement is arbitrary or
discriminatory.” Id.; Bankhead v. Spence, 314 S.W.3d 464, 468–69 (Tex. App.—
Waco 2010, pet. denied); Solomon-Williams v. Desai, No. 01–08–00733–CV, 2009
WL 1813135, at *3–4 (Tex. App.—Houston [1st Dist.] June 25, 2009, pet. denied)
(mem. op.) (stating that Texas Legislature’s finding that number of medical liability
lawsuits contributed to malpractice insurance crisis constituted reasonable basis for
expert-report requirement); Thoyakulathu v. Brennan, 192 S.W.3d 849, 854–56
(Tex. App.—Texarkana 2006, no pet.) (stating that state has “legitimate interest in
placing restrictions on the filing of health care liability claims”). This case presents
no basis for distinguishing Chalfant.
8 Because Fomby has not demonstrated that Chapter 74’s expert-report
requirement is unconstitutional,1 either facially or as applied, I concur in the
judgment affirming dismissal.
April L. Farris Justice
Panel consists of Chief Justice Radack and Justices Goodman and Farris.
Justice Farris, concurring.
1 Fomby’s brief purports to bring constitutional challenges based on other doctrines, including “freedom of speech” and the “separation of powers.” Fomby did not make these arguments in his response to ManorCare’s motion to dismiss, so they are waived. See Pro Plus, Inc. v. Crosstex Energy Servs., L.P., 388 S.W.3d 689, 707 n.6 (Tex. App.—Houston [1st Dist.] 2012), aff’d, 430 S.W.3d 384 (Tex. 2014). Furthermore, Fomby’s brief does not contain “appropriate citations to authorities and to the record” on these issues. See TEX. R. APP. P. 38.1(i). 9