ACCEPTED
01-15-00251-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/3/2015 3:29:06 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00251-CV FILED IN
_________________________________________________
1st COURT OF APPEALS
HOUSTON, TEXAS
8/3/2015 3:29:06 PM
IN THE COURT OF APPEALS FOR THE CHRISTOPHER A. PRINE
Clerk
FIRST DISTRICT OF TEXAS AT HOUSTON
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In re Texas State Silica Products Liability Litigation
__________________________________________________
Appeal from the 333rd Judicial District Court
of Harris County, Texas No. 2004-70000
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APPELLEES’ MOTION TO
STRIKE APPELLANT’S BRIEF
_______________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Appellees 1 ask that the brief filed by Appellants be stricken pursuant to Tex.
R. App. P. 38.9. Appellants have appealed from an order of the Texas Silica
MDL Court dated August 19, 2014 that (1) dismissed Appellants’ constitutional
challenge to certain sections of Chapter 90 of the Texas Civil Practice and
Remedies Code because the challenge was not ripe and Appellants lacked
1
The list of Appellees joining in this Motion is contained in the Motion to Dismiss Appeal or,
Alternatively, Motion to Strike Appellants’ Brief filed on July 16, 2015.
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standing to assert the challenge and (2) denied permanent injunctive relief because
of the dismissal of the challenge. CR 1639.
Because Appellants have attempted to take an interlocutory appeal not
allowed by law, Appellees filed a Motion to Dismiss Appeal on July 16, 2015.
Appellees included in that Motion a request to strike Appellees’ Brief if the Court
does not dismiss the appeal. Based upon the Court’s electronic records, it appeals
that the request for striking Appellants’ Brief was not docketed. Therefore,
Appellees are filing this request as a separate motion to make sure it is presented
to the Court for consideration.
APPELLANTS’ BRIEF DOES NOT ADDRESS ANY APPEALABLE ISSUE
Even if the Court otherwise had jurisdiction over an appeal of the Dismissal
Order, the appeal would still have to be dismissed because none of the issues set
forth in Appellants’ Brief present an issue within the Court’s jurisdiction. Almost
all of Appellants’ Brief addresses the merits of Appellants’ Constitutional
Challenge to selected provisions of Chapter 90. The MDL Court did not consider
the merits of that challenge. In fact, the MDL Court could not have ruled on the
merits of the Constitutional Challenge because, once the MDL Court concluded
that Appellants lack standing and the Constitutional Challenge is not ripe, the
MDL Court lacked subject matter jurisdiction to consider the merits of the claim.
See DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 303–04 (Tex. 2008); Austin
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Nursing Center, Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005); Texas Ass’n of
Business v. Texas Air Control Board, 8562 S.W.3d 440, 443–44 (Tex. 1993).2
That means that if Appellants could find some way to overcome the
jurisdictional impediment to this appeal, the only issue that could be before the
Court is the propriety of the MDL Court’s decision to dismiss the Constitutional
Challenge because of the absence of standing and ripeness. While Appellants’
Brief does not contain a Prayer setting forth the nature of the relief sought by
Appellants (which violates TEX. R. APP. P. 38.1(j)), the list of Issues Presented on
p. xlvii of Appellants’ Brief does not include any issue relating to the dismissal of
the Constitutional Challenge on standing and ripeness grounds. Therefore, the
only ruling made by the MDL Court is not being challenged by Appellants. On the
other hand, the only issues urged by Appellants are issues that were not ruled upon
by the MDL Court and therefore cannot be the subject of any appeal, interlocutory
or otherwise. See TEX. R. APP. P. 33.1(a) (providing that, to preserve complaint for
appellate review, record must show issue was timely presented to trial court and
trial court either ruled on issue expressly or implicitly or refused to rule on issue);
Waite v. Waite, 64 S.W.3d 217, 224 (Tex. App.—Houston [14th Dist.] 2001, pet.
2
Because the MDL Court lacked subject matter jurisdiction over the Constitutional Challenge
made by Appellants, the court should have dismissed the Constitutional Challenge and taken no
further action. Inman, 252 S.W.3d at 304 (“Without jurisdiction, the trial court should not render
judgment . . .; it should simply dismiss the case”); Martinez v. Second Injury Fund of Tex., 789
S.W.2d 267, 277 (Tex.1990) (Hecht, J., dissenting) (“Rendition of judgment on the merits is
inappropriate in an action over which the trial court lacks jurisdiction”).
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denied) (“[A]n appeal of a temporary injunction is not a vehicle which imbues the
court with jurisdiction to address interlocutory matters outside the scope of section
51.014 of the Texas Civil Practice and Remedies Code.”).
The record in this case establishes beyond doubt that the MDL Court did not
rule on the issues set forth in Appellants’ Brief and could not have ruled on the
merits of those issues because the MDL Court concluded that it lacked subject
matter jurisdiction over the issues.
Because Appellants’ Brief does not raise any issues that were ruled upon by
the MDL Court, the appeal should be dismissed.
APPELLANTS’ BRIEF SHOULD BE STRICKEN
Even if subject matter jurisdiction exists in this Court, Appellants’ Brief
shows such a blatant disregard for the rules that the Brief should be stricken.
Appellants’ Brief is deficient in numerous respects:
1. It contains no discussion of how the Court could have jurisdiction over
this interlocutory appeal;
2. The only issues contained in the Brief are issues that were not considered
or ruled upon by the trial court;
3. The Brief does not seek relief from the Dismissal Order or explain why
the entry of the Dismissal Order constitutes reversible error; and
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4. The Brief fails to comply with TEX. R. APP. P. 38.1(g) (the statement of
facts is argumentative and has many assertions unsupported by citation), 38.1(h)
(no summary of the argument in the Brief), 38.1(j) (no prayer for relief in the
Brief), and 38.1(k) (no appendix filed with the Brief).
TEX. R. CIV. P. 38.9 allows the Court to take corrective measures for both
formal defects and substantive defects in a brief. Even if Appellants could
overcome the lack of jurisdiction in this Court, there is still a gross disparity
between what might have been presented in this appeal and what has been
presented in Appellants’ Brief. Rule 38.9(b) allows the Court to require additional
briefing and to “make any other order necessary for a satisfactory submission of
the case.” Appellees should not be required to respond to a brief that violates so
many of the procedural and substantive rules governing appeals – especially when
the only issues raised by Appellants on appeal are constitutional arguments that
were never addressed by the MDL Court and are not properly before this Court.
If this appeal is not dismissed for lack of jurisdiction, Appellees ask that
Appellants’ Brief be stricken and that Appellants be required to redraw their Brief
in accordance with TEX. R. APP. P. 38 in a manner that does not present issues
relating to the merits of the Constitutional Challenge. Appellees also ask that the
time for the filing of Appellees’ Brief be set for thirty days after the Appellants file
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a redrawn brief or thirty days after the Court denies Appellants’ request to strike
Appellants’ Brief.
RELIEF REQUESTED
Appellees request that Appellants’ Brief be stricken.
Respectfully submitted,
/s/ Kevin F. Risley______________________
Kevin F. Risley
State Bar No. 16941200
THOMPSON, COE, COUSINS & IRONS, L.L.P.
One Riverway, Suite 1400
Houston, Texas 77056
Telephone: 713.403.8295
Facsimile: 713.403.8299
Email: krisley@thompsoncoe.com
COUNSEL FOR APPELLEE
3M COMPANY
ON BEHALF OF ALL
APPELLEES
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CERTIFICATE OF SERVICE
I hereby certify that on August 3, 2015, a true and correct copy of the
foregoing document was served pursuant to electronic service
Mike Martin
Maloney Martin, L.L.P.
3401 Allen Parkway, Suite 100
Houston, Texas 77019
Attorneys for Appellants
/s/ Kevin F. Risley___________
Kevin F. Risley
CERTIFICATE OF CONFERENCE
In accordance with TEX. R. APP. P. 10.1(a)(5), I hereby certify that I
conferred with Mr. Mike Martin, counsel for certain Appellants, about the merits
of the requested relief in this motion. Appellants oppose the request That
Appellants’ Brief be stricken.
/s/ Kevin Risley
Kevin Risley.
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