                                                                                                        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
             _________________________________________________

        In re Texas State Silica Products Liability Litigation
             __________________________________________________

                    Appeal from the 333rd Judicial District Court
                      of Harris County, Texas No. 2004-70000
             __________________________________________________


                          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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