in Re: Texas State Silica Products Liability Litigation ( 2015 )

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
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In Re Texas State Silica Products Liability
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Appeal from the 333rd District Court of Harris County, Texas
Trial Court Cause No.: 2004-7000
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APPELLANTS’ RESPONSE TO APPELLEES’
MOTION FOR EXTENSION OF TIME TO FILE APPELLEES’ BRIEF
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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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