law-open-courts-provision | constitutional challenges


Open courts challenge

The open courts provision of the Texas Constitution ensures that all litigants receive the opportunity to redress
their grievances and receive their day in court.  Tex. Const.  Ann. art. 1, § 13; Odak v. Arlington Mem’l Hosp.
Found., 934 S.W.2d 868, 871 (Tex. App.—Fort Worth 1996, writ denied).  The “provision is premised upon the
rationale that the legislature has no power to make a remedy by due course of law contingent upon an
‘impossible condition.’”  Ledesma, 2007 WL 2214650 at *9 (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d
348, 355 (Tex.1990)).  To prevail on a challenge under the Texas Constitution’s open courts provision,
Solomon-Williams must demonstrate that she has a well-recognized common-law cause of action that is being
restricted in an unreasonable or arbitrary manner when balanced against the purpose and basis of the statute.
See Odak, 934 S.W.2d at 871.  Thus, here, she must show that an unconstitutional application of the expert
report requirement actually prevented her from pursuing her claim. See id. at 872; Herrera, 212 S.W.3d at
461.  

Several Texas appellate courts, including this court, have held that the statute’s requirement is rationally
related to its purpose of discouraging frivolous malpractice suits and does not violate the Texas Constitution.
Powell v. Clements, 220 S.W.3d 138, 140 (Tex. App.—Waco 2007, pet. denied); see McGahey v. Daughters of
Charity Health Servs., No. 10-02-00288-CV, 2004 WL 1903300, *8–9 (Tex. App.—Waco Aug. 25, 2004, no
pet.) (mem. op.); Perry v. Stanley, 83 S.W.3d 819, 825 (Tex. App.—Texarkana 2002, no pet.); Gill v. Russo, 39
S.W.3d 717, 718–19 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).  Solomon-Williams has not shown that
the statutory 120-day limit, as opposed to her own failure to timely provide an expert report, prevented her
from pursuing her claim.  See Herrera, 212 S.W.3d at 461–62.  We therefore hold that her state constitutional
claims lack merit.
Solomon-Williams v. Desai (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland)  
(
med mal suit, failure to timely file expert report, constitution challenges, due process, open courts)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice
Jane N. Bland     
Panel members: Justices Keyes, Hanks and Bland   
01-08-00733-CV Donna Solomon-Williams v. Shetal Nicholas Desai, Individually, and d/b/a Foot Centers of
America, Foot Centers of Texas, PLLC, and The Methodist Hospital   
Appeal from 268th District Court of Fort Bend County



Fogal v. Stature Construction, Inc. (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Subst Op. by Alcala)
(improper modification of arbitration award, adding of post-judgment interest, interest deleted, otherwise
confirmation of arb award was proper)
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by
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
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, motion to modify arbitration award
under FAA)
AFFIRM TC JUDGMENT: Opinion by 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  



Gomez v. Pasadena Health Care Management Inc. (Tex.App. - Houston [14th Dist.] Jan. 17, 2008)(Fowler)
(
HCLC, minor's suit, statute of limitations, open courts challenge)
AFFIRMED: Opinion by Justice Fowler
Before Justices Brock Yates, Fowler and Guzman
14-06-00605-CV Juan Gomez, as Parent and Next Friend of Michael Gomez, a Minor v. Pasadena Health Care
Management, Inc., and Southmore Medical Center, LTD.
Appeal from 11th District Court of Harris County  (Judge not identified on appellate docket sheet)