ACCEPTED
01-14-00379-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/17/2015 8:21:15 PM
CHRISTOPHER PRINE
CLERK
CAUSE NO. 01-14-00379-CV
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE FIRST COURT OF APPEALS
9/17/2015 8:21:15 PM
AT HOUSTON, TEXAS
CHRISTOPHER A. PRINE
Clerk
MOSE A. GUILLORY and MARY GUILLORY,
Appellants,
v.
SEATON, L.L.C., d/b/a STAFF MANAGEMENT,
Appellees.
On Appeal from the 113th Judicial District Court of Harris County, Texas
Cause No. 2012-61407A
APPELLANTS’ MOTION FOR REHEARING
Bradford J. Gilde, Lead Counsel
Tex. Bar No. 24045941
GILDE LAW FIRM
55 Waugh Dr., Suite 800
Houston, Texas 77007
(281) 973-2772
bjg@gildelawfirm.com
WHY REHEARING IS WARRANTED
The claims in this case were dismissed pursuant to newly-adopted TEX. R.
CIV. P. 91a. Rule 91a did not become effective until March 1, 2013. As would be
expected from such a new rule, controlling case law is quite limited, and the
issues raised in this appeal are issues of first impression.
ISSUE FOR REHEARING
Whether the panel erred in finding Rule 91a constitutional even though it
authorizes dismissal and the imposition of fees for asserting an argument grounded
on a good faith extension of existing law, in violation of the Texas Constitution’s
Open Courts guarantee?
ARGUMENT
The panel should grant this motion and hold that Rule 91a does not authorize
dismissal when a claim is made that is “warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law. However, if the panel does not conclude that the rule should
be read in this manner, then it should conclude that Rule 91a violates TEX. CONST.,
Art. I, § 13, the Open Courts guarantee.
Article I, Section 13 of the Texas Constitution commands: “All courts shall
be open, and every person for an injury done him, in his lands, goods, person or
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reputation, shall have remedy by due course of law.” The Open Courts provision
has been interpreted to include three related, but separate guarantees:
1) courts must actually be operating and available; 2) the Legislature
cannot impede access to the courts through unreasonable financial
barriers; and 3) meaningful remedies must be afforded, ‘so that the
legislature may not abrogate the right to assert a well-established
common law cause of action unless the reason for its action outweighs
the litigants’ constitutional right of redress.’
Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995)
(quoting Trinity River Authority v. URS Consultants, Inc., 889 S.W.2d 259, 261
(Tex. 1994)).
The Open Courts provision has a long history in Texas, and has been
understood to provide considerable protection to its citizens. Sax v. Vottler, 648
S.W.2d 661, 664 (Tex. 1983) (noting that “[a]s early as 1932, this Court
recognized that article I, section 13, of the Texas Constitution ensures that Texas
citizens bringing common law causes of action will not unreasonably be denied
access to the courts”). The Texas legislature cannot arbitrarily or unreasonably
interfere with a litigant’s right of access to the courts. Neagle v. Nelson, 685
S.W.2d 11, 12 (Tex. 1985); Sax, 648 S.W.2d at 665. To determine if an
unreasonable financial barrier to access to the courts is posed, the issue is whether
the requirement is unreasonable in light of the state interest involved. Texas Ass’n
of Business v. Texas Air Control Bd., 852 S.W.2d 440, 449 (Tex 1993).
While it is true that courts are to assume statutes enacted by the legislature
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were meant to be constitutional, this does not mean that courts should assume that
the government had a valid reason in enacting all laws. The burden is on the
supporter of the law’s constitutionality to show that the relevant legislative purpose
justifies the interference with the right to access the courts. Sax, 648 S.W.2d at
666. Rule 91a fails this critical test, however.
Rule 91a(7) requires that, upon dismissal of a cause of action under that rule,
“the court must award the prevailing party on the motion all costs and reasonable
and necessary attorney fees incurred with respect to the challenged cause of action
in the trial court.” Critically, a case can be dismissed and fees awarded under Rule
91a even if the plaintiff has a valid argument for the good faith extension,
modification, reversal of the law or to make new law. By contrast, Chapter 10 of
the Texas Civil Practice and Remedies Code permits a party to assert a claim that
its argument, claim or defense “is warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of existing law or
establishment of new law.” TEX. CIV. PRAC. & REM. C. §10.001(2). Accordingly,
sanctions are improper under Chapter 10 if the plaintiff could show a “non-
frivolous argument for the extension, modification, or reversal of existing law or
the establishment of new law.” Similarly, Section 9 of the Texas Civil Practices
and Remedies Code only authorizes sanctions when a claim is “not warranted by
existing law or a good-‐faith argument for the extension, modification or reversal of
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existing law.” TEX. CIV. PRAC. & REM. C. §9.001. Tex. R. Civ. P. 13 similarly
provides:
The signatures of attorneys or parties constitute a certificate by them
that they have read the pleading, motion or other paper; that to the
best of their knowledge, information and belief formed after
reasonable inquiry the instrument is not groundless and brought in bad
faith, or groundless and brought for the purpose of harassment. . . .
“Groundless” for purposes of this rule means no basis in law or fact
and not warranted by good faith argument for the extension,
modification or reversal of existing law.
TEX. R. CIV. P. 13. Finally, the same exception exists in the Federal Rules of Civil
Procedure. See FED. R. CIV. P. 11(b)(3) (providing that certification requirement in
federal court permits claims to be made that are “warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law”).
In contrast with Chapters 9 and 10, Rule 13, and federal Rule 11, the
standard set forth in Rule 91a by the trial court requires an award of fees and
dismissal where existing law has not permitted relief even if such a non-frivolous
argument for extensions, modifications, reversal of existing law or establishment
of new law would be permissible and not remotely sanctionable under any of these
other rules or statutes. A party can file a pleading that fully complies with the other
sanctions laws and rules, yet still be hit with fees and costs under Rule 91a under
the definition of “no basis in law,” which was the basis for dismissal in this case.
As a result, every pleading and cause of action, no matter how thoroughly
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considered or in how much good faith it is filed, will be subject to potentially
catastrophic financial penalties. The threat of such sanctions cannot help but have a
chilling effect on whether and what claims are brought. As a result, Rule 91a, on
its face, and/or as applied here, will inevitably impede access to the courts through
unreasonable financial barriers, in violation of Article I, Section 13 of the Texas
Constitution.
As a policy matter, this is terrible. A claim challenging an existing law must
be dismissed under the rule even if the claim in good faith makes a reasonable
argument for why the law is illegal, unconstitutional or should be modified or
reversed for any other reason. Imagine what would have happened in the 1940s if
civil rights lawyers had been faced with Rule 91a sanctions. It seems very likely
that some or all of them would have been deterred from filing cases challenging
the then-existing “Separate But Equal” laws. Although Rule 91a(1) provides that
the court can indulge reasonable inferences, it is not clear what that means; and it
certainly does not solve the barrier to access problem that the rule fundamentally
creates by not carving out an exception when parties for arguing for a good faith
extension change or modification of existing law.
In sum, the panel should grant this motion for rehearing and hold that Rule
91a does not authorize dismissal when a claim is made that is “warranted by
existing law or by a nonfrivolous argument for extending, modifying, or reversing
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existing law or for establishing new law. However, if the panel does not conclude
that the rule should be read in this manner, then it should conclude that Rule 91a
violates TEX. CONST., Art. I, § 13, the Open Courts guarantee.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellants respectfully
request that this Court grant Appellants’ motion for rehearing. Appellants pray for
such other relief to which they have shown themselves justly entitled.
Respectfully Submitted,
___________________________
Bradford J. Gilde
Tex. Bar No. 24045941
GILDE LAW FIRM
55 Waugh Dr., Suite 800
Houston, Texas 77007
(281) 973-2772
bjg@gildelawfirm.com
ATTORNEY FOR APPELLANTS
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CERTIFICATE OF CONFERENCE
No certificate of conference was necessary pursuant to Tex. R. App. P. 10.1(a)(5).
CERTIFICATE OF SERVICE
The undersigned certifies that on the 17th day of September, 2015, a true and
correct copy of the foregoing was forwarded in accordance with the Texas Rules of
Appellate Procedure to all counsel of record.
VIA Electronic Service
Bradford J. Gilde
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