                                                                                            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

                                          4
	  
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
                                          5
	  
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


                                         6
	  
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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