Motion to Strike in Texas

What Is a Motion to Strike?

Background

A motion to strike is commonly used within the discovry process as a means of excluding evidence such as affidavits, deposition testimony, and purportedly relevant documents, and may also be used as a sanction tool for failure to abide by discovery deadlines. (See, e.g., Dallas v. Continental Airlines (1987) 735 S.W.2d 496, 500 [“[T]he City of Dallas claim[ed] that the trial court erred when it denied the City of Dallas' motion to strike the reply brief of Continental and the summary judgment evidence contained therein, because the brief was not timely filed in accordance with Tex. R. Civ. P. 166-A.”)

A motion to strike is commonly employed with regard to testimony during a trial and is necessary for preservation of errors on appeal. (Kerr-McGee Corp. v. Helton (2004) 133 S.W.3d 245, 251-52 [“In Maritime Overseas Corp. v. Ellis (1998) 971 S.W.2d 402, 409, [the Supreme Court] held that ‘[t]o preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered.’ [The Court] did not consider whether a motion to strike after cross-examination would be sufficient to preserve error; [the Court] held only that an objection made after the jury verdict comes too late. In Guadalupe-Blanco River Authority v. Kraft (2002) 77 S.W.3d 805, 807, [the Court] revisited the preservation issue and concluded that an objection made when the witness began his testimony was timely.”)

How to Structure the Motion

Motion to Strike Intervention

Texas Rule of Civil Procedure 60 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." The rule authorizes a party with a justiciable interest in a pending suit to intervene in the suit as a matter of right. (Guar. Fed. Sav. Bank v. Horseshoe Operating Co. (1990) 793 S.W.2d 652, 657.) Because intervention is allowed as a matter of right, the “justiciable interest” requirement is of paramount importance: it defines the category of non-parties who may, without consultation with or permission from the original parties or the court, interject their interests into a pending suit to which the intervenors have not been invited. Thus, 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. (Id.) If any party to the pending suit moves to strike the intervention, the intervenors have the burden to show a justiciable interest in the pending suit. (In re Union Carbide (2008) 273 S.W.3d 152, 154-55 citing Mendez v. Brewer (1982) 626 S.W.2d 498, 499 (Tex. 1982).

“If any party to the pending suit moves to strike the intervention, the intervenor[ ] ha[s] the burden to show a justiciable interest in the pending suit.” (Nghiem v. Sajib (2019) 567 S.W.3d 718, 721.) “Because intervention is a matter of right subject to a motion to strike, it follows that the intervenor need only respond to the grounds stated in the motion.”

Motion to Strike Responsible Third Party

“After adequate time for discovery, a party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant's alleged injury or damage. The court shall grant the motion to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person's responsibility for the claimant's injury or damage.” (Am. K-9 Detection Servs., LLC v. Freeman, No. 15-0932, at *7-8 citing Tex. Civ. Prac. & Rem. Code § 33.004(l).)

Motion to Strike Proffered Evidence

Under Rule 103 of the Texas Rules of Evidence, a party preserves error in the admission of evidence if “a timely objection or motion to strike appears of record, stating the specific ground of objection.” (Kia Motors Corp. v. Ruiz (2014) 432 S.W.3d 865, 880 citing Tex.R. Evid. 103(a)(1).) The rule clarifies that “[w]hen the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.” (Id.)

The Court’s Decision

“A motion to strike the expert's testimony, made after the testimony concludes, is not a timely challenge to the reliability of the expert's underlying methodology.” (In re Commitment of Ayala 2015 No. 09-13-00577-CV, at *4 citing In re Commitment of Dodson (2014) 434 S.W.3d 742, 749-50.)

“[W]hen a party waits until the witness completes her testimony, without objection, and then asks the court on the next day to strike the testimony... [t]he claim of error has not been preserved for appellate review. (Aluminum Chem. v. Bechtel (2000) 28 S.W.3d 64, 69 citing Tex. R. App. P. 33.1.)