Gary Lynn Fomby v. Manorcare-Sharpview of Houston Texas, LLC and Sharpview SNF Management, LLC, 01-19-00618-CV

Fomby (pro se) sued ManorCare for health‑care‑liability claims; ManorCare moved to dismiss under Chapter 74 (§74.351) for failure to file a compliant expert report.
In his response Fomby argued he had complied and alternatively raised facial and as‑applied constitutional challenges to Chapter 74’s expert‑report requirement under the Texas Constitution’s open‑courts and due‑process provisions.
Fomby later asked the trial court to defer ruling on the constitutionality of Chapter 74 until he could be discharged from the hospital and file additional responsive pleadings; the continuance request was never granted.
The trial court denied ManorCare’s motion to dismiss (without reasons); ManorCare filed an interlocutory appeal and an appellate panel later held Fomby’s expert report inadequate as to ManorCare and reversed.
Justice Farris (concurring) disagrees with the majority that Fomby waived preservation, finds his constitutional challenges were preserved, but concludes those challenges fail on the merits and concurs in affirming dismissal.
Other constitutional theories raised on appeal (freedom of speech, separation of powers) were not presented to the trial court and thus were waived.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation: Did Fomby preserve his open‑courts and due‑process challenges despite later requesting a continuance?	Fomby argued the constitutional claims in his response and asked only for a continuance to supplement, not to abandon the claims.	ManorCare contended Fomby waived the issues by requesting deferral and not litigating them before the interlocutory appeal.	Preserved: Fomby’s constitutional challenges were raised in the trial court and a continuance request (never granted) did not nullify preservation.
Facial open‑courts challenge to Chapter 74 expert‑report requirement	Chapter 74’s expert‑report requirement is an undue burden and always operates to deny access to courts.	Chapter 74 is presumptively constitutional and rationally related to legitimate legislative purposes (deterring frivolous suits).	Rejected: Court presumes statute constitutional; Fomby failed to show the statute always operates unconstitutionally.
As‑applied open‑courts / due‑process challenge	The expert‑report requirement imposed a substantial obstacle that actually prevented Fomby from pursuing his claims.	Fomby could comply (and previously did as to another defendant); the requirement is linked to legitimate legislative aims and was not impossible or arbitrary here.	Rejected: Fomby did not show the requirement actually prevented his suit; prior appellate treatment shows compliance was possible.

Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003) (presumption of constitutionality and burden on challenger).
Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504 (Tex. 1995) (legislature’s policy choices reserved to it).
Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211 (Tex. 2002) (open‑courts challenges must be raised in trial court).
Stockton v. Offenbach, 336 S.W.3d 610 (Tex. 2011) (open‑courts requires showing lack of reasonable opportunity to be heard).
Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698 (Tex. 2014) (procedural requirement to raise fact issue on open‑courts claim).
Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012) (standards for what constitutes an adequate expert report).
Houston Methodist Hosp. v. Nguyen, 470 S.W.3d 127 (Tex. App.—Houston [14th Dist.] 2015) (expert‑report compliance principles).
Thoyakulathu v. Brennan, 192 S.W.3d 849 (Tex. App.—Texarkana 2006) (state has legitimate interest in restricting filing of health‑care liability claims).
Bankhead v. Spence, 314 S.W.3d 464 (Tex. App.—Waco 2010) (expert‑report requirement rationally related to legislative purpose).
Herrera v. Seton Nw. Hosp., 212 S.W.3d 452 (Tex. App.—Austin 2006) (facial challenge standard).
Pro Plus, Inc. v. Crosstex Energy Servs., L.P., 388 S.W.3d 689 (Tex. App.—Houston [1st Dist.] 2012), aff'd, 430 S.W.3d 384 (Tex. 2014) (issues not raised in trial court are waived).