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. 
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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 dueprocess 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 
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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 
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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 opencourts 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 
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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).
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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 
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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 informedconsent 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 dueprocess 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 commonlaw 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).
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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.
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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).