in Re: Texas State Silica Products Liability Litigation

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

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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

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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

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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.

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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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