law-open-courts-challenge | constitutional challenges |

C. Violation of Open Courts

Also within their third issue, the Fogals assert that they are "entitled to have the award partially or totally
vacated on public policy grounds" because "this State has a long history of avoiding the obligations of
contracts found to be fraudulent or illegal." The Fogals contend that because the arbitrator found the entire
agreement was tainted by fraud, compelling them to arbitrate violates procedural due process of the United
States Constitution and the open courts provision of the Texas Constitution. See U.S. Const. amends. V, XIV
;Tex. Const. art. I, §§ 13, 19. The Fogals cite Earle v. Ratliff in support of their claim, but the issue in Ratliff
was whether a statute's limitations period, not contractual arbitration proceedings, violated the open courts
provision. See 998 S.W.2d 882, 889 (Tex. 1999) ("The Open Courts provision of the Texas Constitution does
not permit a well-established common-law cause of action to be restricted by statute in a way that is
unreasonable or arbitrary in view of the statute's purpose.").

Although the arbitrator determined that the entire agreement was obtained by fraud, the arbitration clause is
severed from the agreement. See Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 56 (Tex. 2008) ("While an
arbitration agreement procured by fraud is unenforceable, the party opposing arbitration must show that the
fraud relates to the arbitration provision specifically, not to the broader contract in which it appears."). The
Fogals present no evidence that the arbitration clause was fraudulently obtained. Because there is no
evidence of fraud as to the arbitration clause, there is no evidence that enforcement of the arbitration clause
would violate the public policy of Texas.
Fogal v. Stature Construction (Tex.App.- Houston [1st Dist.] Jan. 29, 2009)(Alcala)
confirmation of arbitration award, no waiver, challenges to arb award overruled, award confirmed, open courts)
Justice Alcala
Before Justices Taft, Keyes and Alcala
01-07-00456-CV Mary Fogal and Robert Fogal v. Stature Construction, Inc., Jorge Casimiro, Tom Thibodeau
and Bernie Kane
Appeal from 80th District Court of Harris County
Trial Court
Judge: Hon. Lynn Bradshaw-Hull