                                                                                                       ACCEPTED
                                                                                                   05-19-01455-CV
                                                                                         FIFTH COURT OF APPEALS
                                                                                                   DALLAS, TEXAS
                                                                                                 2/14/2020 4:21 PM
                                                                                                        LISA MATZ
                                                                                                            CLERK


                                 NO. 05-19-01455-CV
                                                                             FILED IN
                                                                      5th COURT OF APPEALS
    IN THE COURT OF APPEALS FOR THE FIFTH                        DISTRICT    OF TEXAS
                                                                          DALLAS,  TEXAS
                          IN DALLAS                                   2/14/2020 4:21:37 PM
                                                                            LISA MATZ
                                                                              Clerk

                       VENATOR MATERIALS PLC, ET AL.,

                                         Appellants,
                                              v.

    MACOMB COUNTY EMPLOYEES’ RETIREMENT SYSTEM, ET AL.,

                                         Appellees.



     UNOPPOSED MOTION TO ABATE PENDING ISSUANCE OF THE
      MANDATE IN A RELATED APPEAL AND SUSPEND BRIEFING
                         DEADLINES


TO THE HONORABLE COURT OF APPEALS:

       Under Texas Rules of Appellate Procedure 10.1 and 29.3, Appellants1 file this

Unopposed Motion to Abate Pending Issuance of the Mandate in a Related Appeal

and Suspend Briefing Deadlines (“Motion”) and respectfully request that the Court

abate this appeal pending the issuance of the mandate in Venator Materials PLC et




1
 Appellants are Venator Materials PLC, Simon Turner, Stephen Ibbotson, Kurt D. Ogden, Russ
R. Stolle (collectively, the “Venator Appellants”), Huntsman Corporation, Huntsman International
LLC, and Huntsman (Holdings) Netherlands B.V. (collectively, the “Huntsman Appellants”).


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al. v. Macomb County Employees’ Retirement System et al., No. 05-19-01177-CV

(the “Related Appeal”) and suspend all briefing deadlines.

I.     Background.
       On January 21, 2020, this Court issued its opinion in the Related Appeal,

dismissing the Venator Appellants and Underwriter Defendants 2 for lack of

jurisdiction and remanding the case to the trial court to enter an order transferring

the remaining claims against the Huntsman Appellants to Montgomery County.

II.    Request for Abatement.
       In light of the Court’s rulings that there is no personal jurisdiction over most

of the parties to this appeal and that the remainder of the case belongs in a different

venue, the Court should abate this appeal pending issuance of the mandate in the

Related Appeal. Upon issuance of the mandate, the claims against the Venator

Appellants will be dismissed, rendering this appeal moot as to them, and the trial

court will transfer the remaining claims against the Huntsman Appellants to

Montgomery County. See TEX. R. APP. P. 18.6 (“The appellate court’s judgment on

an appeal from an interlocutory order takes effect when the mandate is issued.”).

       It is Appellants’ understanding that once the claims against the Huntsman

Appellants are transferred to Montgomery County, the trial court will lose


2
 The Underwriter Defendants are Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner &
Smith, Inc., Goldman Sachs & Co. LLC, and J.P. Morgan Securities LLC. The Underwriter
Defendants are not parties to this appeal.


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jurisdiction over the case, and as a result, this Court will no longer have jurisdiction

over this appeal. See TEX. GOV’T CODE § 22.220 (“Each court of appeals has

appellate jurisdiction of all civil cases within its district of which the district courts

or county courts have jurisdiction[.]”); George v. Phillips Petroleum Co., 976

S.W.2d 363, 364–65 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“Appellate

court jurisdiction over the merits of a case extends no further than that of the court

from which the appeal is taken. . . . [O]nce a case is transferred . . . the transferee

court assumes jurisdiction of the cause to the exclusion of the transferor court.”).

      Absent abatement, Appellants would be required to file a brief in this Court

to preserve their rights in this appeal despite the Court’s rulings that jurisdiction and

venue are not proper. Appellants’ opening brief in this appeal is currently due

February 21, 2020; by contrast, the mandate in the Related Appeal is currently

scheduled to issue on April 2, 2020. See TEX. R. APP. P. 18.1. Abatement thus

preserves Appellants’ rights without burdening this Court with repeated requests for

extension of the briefing deadlines while the parties wait for the mandate.

      On or about the date when the mandate issues, the Huntsman Appellants

intend to file a motion requesting that the Texas Supreme Court transfer their appeal

to the Beaumont Court of Appeals, which has jurisdiction over Montgomery County.

See TEX. GOV’T CODE § 73.001 (“The supreme court may order cases transferred

from one court of appeals to another at any time that, in the opinion of the supreme


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court, there is good cause for the transfer.”); see also Miles v. Ford Motor Co., 914

S.W.2d 135, 137 (Tex. 1995) (explaining the procedure for appellate venue transfer).

Appellees have not yet taken a position on the Huntsman Appellants’ intended

motion to transfer the appeal and reserve all rights, including the right to oppose

such motion.

                                         PRAYER
       For these reasons, Appellants request that the Court grant the Motion, which

is unopposed, and abate all proceedings in this appeal pending issuance of the

mandate in the Related Appeal and suspend all briefing deadlines pending

establishment of new briefing deadlines by the appropriate Court following the

issuance of the mandate. 3




3
   Appellees agree that the current deadline for Appellants to file an opening brief should be
suspended and that Appellants do not need to file an opening brief by the current deadline or
pending resolution of the Motion.


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Respectfully submitted,

/s/ David S. Coale                      /s/ R. Thaddeus Behrens
David S. Coale, SBN 00787255            R. Thaddeus Behrens, SBN 24029440
Michael K. Hurst, SBN 10316310          Anne M. Johnson, SBN 00794271
Andrés Correa, SBN 24076330             Daniel H. Gold, SBN 24053230
John R. Christian, SBN 24109727         Matthew A. McGee, SBN 24062527
LYNN PINKER COX & HURST, LLP            William D. Marsh, SBN 24092762
2100 Ross Avenue, Suite 2700            HAYNES AND BOONE, LLP
Dallas, Texas 75201                     2323 Victory Avenue, Suite 700
214-981-3800 (phone)                    Dallas, Texas 75219
214-981-3839 (fax)                      (214) 651-5000 (phone)
mhurst@lynnllp.com                      (214) 200-0886 (fax)
acorrea@lynnllp.com                     thad.behrens@haynesboone.com
dcoale@lynnllp.com                      anne.johnson@haynesboone.com
jchristian@lynnllp.com                  daniel.gold@haynesboone.com
                                        matt.mcgee@haynesboone.com
Craig Smyser, SBN 18777575              william.marsh@haynesboone.com
Razvan Ungureanu, SBN 24085630
Eugene Zilberman, SBN 24110577          Richard A. Sayles, SBN 17697500
SMYSER KAPLAN & VESELKA, LLP            BRADLEY ARANT BOULT CUMMINGS,
717 Texas Ave., Suite 2800              LLP
Houston, Texas 77002-2761               4400 Renaissance Tower
713-221-2300 (phone)                    1201 Elm St.
713-221-2320 (fax)                      Dallas, Texas 75270
csmyser@skv.com                         (216) 939-8701 (phone)
razvan@skv.com                          (214) 939-8787 (fax)
ezilberman@skv.com                      dsayles@bradley.com

Counsel for Appellants Venator          Counsel for Appellants Huntsman
Materials PLC, Stephen Ibbotson, Kurt   Corporation, Huntsman International
D. Ogden, Russ R. Stolle, and Simon     LLC, and Huntsman (Holdings)
Turner                                  Netherlands B.V.




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                      CERTIFICATE OF CONFERENCE
      I hereby certify that on February 13, 2020, counsel for Appellees conferred

with counsel for Appellees, who stated that Appellees do not oppose the relief sought

herein.



                                   /s/ R. Thaddeus Behrens
                                   R. Thaddeus Behrens




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                        CERTIFICATE OF SERVICE
      Undersigned counsel certifies that on February 14, 2020, a true and correct

copy of this motion was served on the following counsel of record via electronic

service:

      Joe Kendall
      KENDALL LAW GROUP, PLLC
      3811 Turtle Creek Blvd., Suite 1450
      Dallas, Texas 75219
      jkendall@kendalllawgroup.com

      Steven F. Hubachek (pro hac vice)
      ROBBINS GELLER RUDMAN & DOWD LLP
      655 West Broadway, Suite 1900
      San Diego, California 92101
      shubachek@rgrdlaw.com

      David J. Goldsmith (pro hac vice)
      LABATON SUCHAROW LLP
      140 Broadway, 34th Floor
      New York, New York 10005
      dgoldsmith@labaton.com

      Counsel for Appellees Macomb County Employees’ Retirement System
      and Firemen’s Retirement System of St. Louis


                                          /s/ R. Thaddeus Behrens
                                          R. Thaddeus Behrens




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