Motion to Strike in Texas

What Is a Motion to Strike?

Background

A motion to strike the whole pleadings can have the same effect as a general demurrer. (Gallien v. Was. Mut. H (2006) 209 S.W.3d 856, 862 n.7 citing Susanoil, Inc. v. Continental Oil Co. (1973) 516 S.W.2d 260, 264.) To the extent that [a] motion to strike accomplishes the same purpose as that of a general demurrer, the courts note that the Texas Rules of Civil Procedure expressly prohibit the use of such a vehicle. (See Tex. R. Civ. P. 90; Fort Bend County v. Wilson (1992) 825 S.W.2d 251, 253.)

How to Structure the Motion

Generally, in the context of challenging amended pleadings, a motion to strike serves to voice the movant's objection to the filing of the amended pleading on the basis of surprise or prejudice. (Gallien v. Was. Mut. H (2006) 209 S.W.3d 856, 861 citing Greenhalgh v. Serv. Lloyds Ins. Co. (1990) 787 S.W.2d 938, 940; Estate of Menifee v. Barrett (1990) 795 S.W.2d 810, 812.)

To the extent that a motion to strike, in and of itself, serves as a substantive attack on the amended pleadings, it is an improper procedural mechanism. (Gallien v. Was. Mut. H (2006) 209 S.W.3d 856, 861-62 citing Rodriguez v. United States Sec. Assocs. (2005) 162 S.W.3d 868; Centennial Ins. Co. v. Commercial Union Ins. Cos. (1991) 803 S.W.2d 479, 482-83.) For this purpose, the rules provide an established mechanism in the form of special exceptions. (See Tex. R. Civ. P. 90, 91.)

Motion to Strike and Tex. Civ. Prac. & Rem. Code §§ 33.001-.017

As applied to negligence claims, Chapter 33 allows a defendant to “designate persons or entities as responsible third parties.” (Id. § 33.004(a).) After adequate time for discovery, a claimant may move to strike the designation of a responsible third party. (Id. § 33.004(l); See also, In re Transit Mix Concrete & Materials Co. (2014) No. 12-13-00364-CV, at *4.)

“In a motion to strike the designation of a responsible third party, a claimant must allege that there is no evidence that the designated person is responsible for any portion of the claimant's alleged injury or damage.” (Tex. Civ. Prac. & Rem. Code Ann. § 33.004(l); In re Transit Mix Concrete & Materials Co. (2014) No. 12-13-00364-CV, at *4 n.3.)

When confronted with a motion to strike, [in this context] a defendant must produce “sufficient evidence to raise a genuine issue of fact regarding the designated person's responsibility for the claimant's injury or damage.” (Id.) Responsibility can be “by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these[.]” (Id. § 33.003(a).) A trial court may not submit a question to the jury regarding the conduct of “any person” without sufficient evidence to support the submission. (Id. § 33.003(b).)

Motion to Strike and Intervenor Under Rule 60

Rule 60 of the Texas Rules of Civil Procedure provides that “[a]ny party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party.” (Tex. R. Civ. P. 60.) By virtue of this rule, a party with a justiciable interest in a pending suit may intervene in the suit as a matter of right. (In re Rogers Wealth Grp., Inc. (2018) No. 02-18-00010-CV, at *6 citing In re Union Carbide Corp. (2008) 273 S.W.3d 152, 154.)

The parties to a pending proceeding can protect themselves from an intervention by filing a motion to strike. (See Tex. R. Civ. P. 60; Union Carbide, supra, 273 S.W.3d at 155.) If any party to the pending suit moves to strike the intervention, the intervenor then has the burden to show he has a justiciable interest in the pending suit. (See Union Carbide, 273 S.W.3d at 155.)

To constitute a justiciable interest, the intervenor's interest must be such that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought in the original suit. In other words, a party may intervene if the intervenor could have brought the pending action, or any part thereof, in his own name. (Id.)

If the intervenor fails to show a justiciable interest in the pending suit, then the trial court has no discretion to deny the party's motion to strike the intervention. (See Union Carbide, 273 S.W.3d at 156; In re Empire Scaffold, LLC (2016) No. 09-16-00052-CV, 2016 WL 1469185, at *2 [holding that trial court abused its discretion by failing to grant motion to strike intervention when intervenor was unable to show justiciable interest in underlying suit]; In re Rogers Wealth Grp., Inc. (2018) No. 02-18-00010-CV, at *6-7.)

The Court’s Decision

The “justiciable interest” requirement protects pending cases from having interlopers disrupt the proceedings. The parties to the pending case may protect themselves from the intervention by filing a motion to strike. (Union Carbide, supra, at 155.)

The Court of Appeals reviews the ruling on a motion to strike a plea in intervention for an abuse of discretion. (Brauss v. Triple M Holding GmbH (2013) 411 S.W.3d 614, 630 citing Guar. Fed. Sav. Bank v. Horseshoe Operating Co. (1990) 793 S.W.2d 652, 657.) A trial court abuses its discretion if it acts without reference to any guiding rules and principles, or acts in an arbitrary and unreasonable fashion. (Downer v. Aquamarine Operators, Inc.(1985) 701 S.W.2d 238, 241–42.)

Documents for Motion to Strike in Texas

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ASHTON MANLEY, et al vs. DANNY MELENDES, et al document preview

AMENDED NOTICE OF HEARING ON MOTION TO STRIKE - NOTICE OF HEARING / FIAT

5 pages

FILED 5/10/2024 4:12 PM FELICIA PITRE DISTRICT CLERK …