                                                                                             ACCEPTED
                                                                                            01-15-00251
                                                                              FIRST COURT OF APPEALS
                                                                                      HOUSTON, TEXAS
                                                                                     8/3/2015 5:27:19 PM
                                                                                   CHRISTOPHER PRINE
                                                                                                  CLERK

                         NO. 01-15-00251-CV
     __________________________________________________________
                                                         FILED IN
                                                   1st COURT OF APPEALS
                     IN THE COURT OF APPEALS           HOUSTON, TEXAS
                 FOR THE FIRST DISTRICT OF TEXAS 8/3/2015 5:27:19 PM
                         HOUSTON, TEXAS            CHRISTOPHER A. PRINE
                                                          Clerk
     __________________________________________________________

                 In Re Texas State Silica Products Liability
    ____________________________________________________________

             Appeal from the 333rd District Court of Harris County, Texas
                         Trial Court Cause No.: 2004-7000

    ____________________________________________________________

                 APPELLANTS’ RESPONSE TO APPELLEES’
  MOTION FOR EXTENSION OF TIME TO FILE APPELLEES’ BRIEF
__________________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS;

      1.      The Appellees’ representations in their Motion are unfortunate and in

bad faith.

      2.      At the Trial Court, the parties stipulated that, while Appellants’

original motion was entitled a request for permanent injunction, the only matter

before the Trial Court at the injunctive hearing was a temporary injunction. See,

Exhibit 1. (“At the present time, the only issue being presented to the Court is the

request for a temporary injunction.”). This stipulation was then filed with the Trial




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Court and had the effect of a Rule 11 agreement. The Appellees do not dispute

their stipulation.1

        3.     The Appellees now argue against their own stipulation and Rule 11

agreement. This stipulation was approved by the Trial Court. As the Trial Court

held:

               On May 19, 2014 the Court entered a Scheduling order
               relating to briefing, evidentiary and hearing deadlines on
               the Plaintiffs’ constitutional challenges. On that same
               date the parties entered into a stipulation that the Court
               has approved.

(CR 1640). Despite this stipulation approved by the Trial Court, the Appellees

declare in their Motion that this is a “seriously flawed appeal,” arguing that

Appellants “have attempted to take an interlocutory appeal from an order denying

permanent injunctive relief.”2          Yet, the Trial Court specifically approved a

stipulation, attached here, which provided that this was an appeal from a temporary

injunction. Id.

        4.     Appellants did not anticipate that the Appellees would later contradict

their own Rule 11 agreement, specifically approved by the Trial Court. (CR 1640)

Appellants did not expect to be challenged on an appeal that this was anything but

an interlocutory appeal from a temporary injunction pursuant to Section 51.041 (a)

1
   See Appellees’ Motion to Dismiss or Alternatively Motion to Strike Appellants’ Brief, filed
7/16/15, at p. 8, n. 9. (“Appellees acknowledge that, in a written stipulation, the parties agreed
that Appellants were requesting a temporary injunction.”)
2
  See, Motion for Extension of Time to File Appellee’s Brief ¶4.


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(4). Appellants did not anticipate that Appellees would break their word. The

Appellees unequivocally stipulated that the only issue that was presented to the

Court at the injunctive hearing was a request for temporary injunction. (CR 1640);

see also, Exhibit 1. The Appellees’ Motion is chicanery.

       5.     Because the Appellees are in bad faith, they should be instructed to

file their brief forthwith.

                                       Respectfully submitted,

                                       MALONEY  MARTIN, L.L.P.

                                       /s/Michael B. Martin
                                       Michael B. Martin (TBN: 13094400)
                                       mmartin@maloneymartinllp.com
                                       3401 Allen Parkway, Suite 100
                                       Houston, Texas 77019
                                       (713) 759-1600
                                       (713) 759-6930 (Facsimile)
                                       ATTORNEYS FOR APPELLANTS

                              CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing document has
been provided to all counsel of record and/or attorneys-in-charge via efiling on this
3rd day of August, 2015.


                                       /s/Michael B. Martin
                                       Michael B. Martin




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