Open Courts challenge under the Texas Constitution - Abrogation of Common-Law rights by the Lege

LEGISLATIVE INFRINGEMENT ON RIGHT/REMEDIES AVAILABLE UNDER THE COMMON LAW 

The open-courts provision prohibits arbitrary or unreasonable legislative action that abrogates well-established, common-law remedies. Lebohm v. City of Galveston, 154 Tex. 192, 199 275 S.W.2d 951, 955 (1955) (op. on reh'g). It ensures that Texas citizens bringing common-law causes of action will not unreasonably be denied the right to redress in the courts. Rose v. Doctor's Hosp., 801 S.W.2d 841, 843 (Tex. 1990).

We review the constitutionality of a statute de novo, see Stockton v. Offenbach, 336 S.W.3d 610, 614-15 (Tex. 2011), beginning with the presumption that the statute is constitutional. TEX. GOV'T CODE ANN. § 311.021(1) (West 2013); Sax v. Votteler, 648 S.W.2d 661 664 (Tex. 1983); see also Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin, 307 S.W.3d 283, 285 (Tex. 2010).

To establish an open-courts violation, Cohen must demonstrate that (1) the statute restricts a well-recognized, common-law cause of action (the well-recognized prong) and (2) the restriction is unreasonable or arbitrary when balanced against the Act's purpose (the balance prong). Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex. 1995); Sax, 648 S.W.2d at 666.

A statute does not violate the open courts provision of the Texas Constitution if there are adequate substitute methods for obtaining redress. Liggett v. Blocher, 849 S.W.2d 846, 851 (Tex. App.-Houston [1st Dist.] 1993, no writ) ("In determining the restrictive effect of the statutory provision at issue, the court must also consider whether the legislature has avoided an unconstitutional result by providing a substitute remedy or by leaving a reasonable alternative at common law."). A statute may, however, violate the open-courts provision "when it makes a remedy by due course of law contingent on an impossible condition." In re D.M., 191 S.W.3d 381, 391 (Tex. App.-Austin 2006, pet. denied).

SOURCE: HOUSTON COURT OF APPEALS - Nos. 01-13-00267-CV, 01-13-00233-CV - 2/26/2015 

We reject Cohen's open-courts challenge because he has not been deprived of a common law right. Cohen has not been prevented from suing for damages under the theories of breach of fiduciary duty, fraud, constructive fraud, and breach of contract. Cohen's challenge is directed only at the statutory provision allowing for expungement of a lis pendens if the requisite evidentiary showing is not met. TEX. PROP. CODE §12.0071(c)(2). A lis pendens is not a cause of action or a lien; it is a means of providing constructive notice of an alleged real property claim. TEX. PROP. CODE §13.004(a). Cohen was allowed, by statute, to file a notice of lis pendens to serve as constructive notice of his claims. He was given the opportunity to maintain that notice of lis pendens by demonstrating the probable validity of his real property claim. He had the opportunity to challenge, in an original proceeding in this Court, the trial court's determination that he had not demonstrated the probable validity of his real property claim. He has not established an open courts violation. Cf. Francis v. Coastal Oil & Gas, Inc., 130 S.W.3d 76, 92 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (holding that statute eliminating liability of property owner for independent contractor's injuries unless the property owner exercises sufficient control over the work and has knowledge of the danger does not violate the open courts provision because it only "delineates the evidentiary showing a plaintiff must meet to prevail on a claim of negligence against a property owner"); Freedman v. Univ. of Houston, 110 S.W.3d 504, 508 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (holding that statute requiring legislative consent to sue university for breach of contract did not violate open courts because it does not eliminate right to sue).