Browserweb Media Agency v. Maxus Energy Corporation

Opinion

ACCEPTED 01-14-01028-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 4/14/2015 8:01:00 PM CHRISTOPHER PRINE CLERK

FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/14/2015 8:01:00 PM IN THE COURT OF APPEALS CHRISTOPHER A. PRINE FIRST DISTRICT Clerk 301 Fannin St, Houston, TX, 77002

1st COA Case No. 01-14-01028-CV (Oral Argument Waived)

Originating Court Case No. 2014-63727

BROWSERWEB MEDIA AGENCY Appellant

v.

MAXUS ENERGY CORPORATION Appellee

OBJECTION TO MOTION TO DISMISS Case No. 01-14-01028-CV

OBJECTION TO APPELLEE’s MOTION TO DISMISS

The Appellant objects to the Appellee’s filing dated April 14th, for the following

detailed reasons.

MOTION FOR PRODUCTION OF MISSING DOCUMENTS

Browserweb filed an Informal Brief & Motion to Strike Court Reporter’s Record &

Fees on March 9, 2015. This Court denied that motion and stated that “the

appellant’s brief is due within 30 days of the date of this order.”

What the Appellee has neglected to include in their waiver objection and summation

is that Browserweb filed a Motion for production of missing documents with this

Court on 29th March 2015. The Court’s written Order / response was issued on the

9th of April, 2015, the same day as the original deadline of April 9th for the filing of

the Brief. (see Exhibit 414)

If the Appellants’ Motion had been approved by this Court, there would be new and

important documents for inclusion in the Brief. It is assumed by this pro-se party

that as with the first motion, the Court would allow Appellant a 30 day extension

after its Order so the Appellant could prepare and file Brief. DUE PROCESS

The Fifth and Fourteenth Amendments to the United States Constitution contain a

due process clause. Due process deals with the administration of justice and thus the

due process clause acts as a safeguard from arbitrary denial of life, liberty, or

property by the Government outside the sanction of law. An analysis made by the

late Judge Henry Friendly in his well-regarded article, "Some Kind of Hearing,"

generated a list that remains highly influential, as to both content and relative

priority:

1. An unbiased tribunal.

2. Notice of the proposed action and the grounds asserted for it.

3. Opportunity to present reasons why the proposed action should not be taken.

4. The right to present evidence, including the right to call witnesses.

5. The right to know opposing evidence.

6. The right to cross-examine adverse witnesses.

7. A decision based exclusively on the evidence presented.

8. Opportunity to be represented by counsel.

9. Requirement that the tribunal prepare a record of the evidence presented

10. Requirement that the tribunal prepare written findings of fact and reasons for its

decision. THE REQUIREMENTS OF DUE PROCESS

Due process requires that the procedures by which laws are applied must be even-

handed, so that individuals are not subjected to the arbitrary exercise of government

power.

Although due process tolerates variances in procedure "appropriate to the nature of

the case," it is nonetheless possible to identify its core goals and requirements. First,

"[p]rocedural due process rules are meant to protect persons not from the deprivation,

but from the mistaken or unjustified deprivation of life, liberty, or property."

Thus, the required elements of due process are those that "minimize substantively

unfair or mistaken deprivations" by enabling persons to contest the basis upon which

a State proposes to deprive them of protected interests.

In an adversarial system of justice it is generally considered fair to afford both

parties the opportunity to respond. It should follow, if 30 days was allowed by

this Court after an Order on Appellants last Motion, it would be logical that the

second Motion would receive the same time, especially as the Order was rendered

on the date the “original” brief is due. VOID FOR VAGUENESS

In American constitutional law, a statute is void for vagueness and unenforceable if

it is too vague for the average citizen (or pro-se Appellant) to understand. There

are several reasons a statute (in this case; a rule of an organization or institution)

may be considered vague; in general, a statute might be called void for vagueness

reasons when an average citizen cannot generally determine what persons are

regulated, what conduct is prohibited, or what punishment may be imposed.

The Appellant is in the same situation as this case below, albeit, in a civil case

setting where the void for vagueness applies in this Appeal. The following

pronouncement of the void for vagueness doctrine was made by Justice Sutherland

in Connally v. General Construction Co., 269 U.S. 385, 391 (1926):

[T]he terms of a penal statute [...] must be sufficiently explicit to inform those who

are subject to it what conduct on their part will render them liable to its penalties…

and a statute which either forbids or requires the doing of an act in terms so vague

that men of common intelligence must necessarily guess at its meaning and differ

as to its application violates the first essential of due process of law. PRAYER

For these reasons, Appellant prays that this Court dismisses the Appellee’s Motion

and extends the Brief filing due date by 30 days.

Declaration

My name is Mark Stephen Burke, my date of birth is June 20th, 1967, my address

is 46, Kingwood Greens Dr, Kingwood, TX 77339, USA and I declare under

penalty of perjury that the foregoing is true and correct.1

1 Sec. 132.001. UNSWORN DECLARATION. (a) Except as provided by Subsection (b), an unsworn declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law. CaseNo.01-14-01028-CV

Respectfully Submitted, On this day, 14th April, 2015

Mark Burke Browserweb Media Agency 46 Kingwood Greens Dr Kingwood, Texas 77339 Telephone: (832) 654-3511 Facsimile: (866) 705-0576

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been provided to the following via electronic mail on this 14th day of April, 2015::

GmBS &BRUNS, L.L.P. J. Benjamin Bireley 1100 Louisiana, Suite 5300 Houston, Texas 77002 FILE COPY

EXHIBIT 414

FIRST COURT OF APPEALS 301 Fannin Street Houston, Texas 77002-2066 Thursday, April 09, 2015 RE: Case No. 01-14-01028-CV

Style: Browserweb Media Agency, Mark Burke v. Maxus Energy Corporation

Please be advised the Court today DENIED Appellant’s motion “for production of missing documents” filed March 30, 2015 in the above referenced cause.

T. C. Case # 2014-63727 Christopher A. Prine, Clerk of the Court

John Bireley Gibbs & Bruns LLP 1100 Louisiana St Ste 5300 Houston, TX 77002-5215 DELIVERED VIA E-MAIL