Haley Brown v. RK Hall Construction, LTD., RKH Capital, LLC, and Stacy Lyon D/B/A Lyon Barricade & Construction

• Court: Court of Appeals of Texas
• Decided: September 25, 2015
• Docket: 06-15-00072-CV
• Status: Published

Opinion

ACCEPTED 06-15-00072-CV SIXTH COURT OF APPEALS Appellate Docket Number: TEXARKANA, TEXAS 9/25/2015 8:26:48 PM DEBBIE AUTREY Appellate Case Style: Haley Brown CLERK

Vs. RK Hall.Construction, Ltd., RKEl Capital, LLC, andStac y Lyon. d/b/a Lyon Barrit~de &Construction Companion Case No.: nla FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 9/25/2015 8:26:48 PM Amended/corrected statement: DOCK ETING STATEMENT (Civil) DEBBIE AUTREY Clerk Appellate Court: 6th Court bf Appeals (to be filed in the court of appeals upon perfection of appeal under TRAP 32)

I. Appellant II. App~llant ·Attorney(s) . I2SJ Person D Organization (choose one) I2SJ Lead Attorney First Name: Dale First Name: Haley Middle Name: H. Middle Name: Last Name: Henley Last Name: Brown Suffix: Suffix: Law Firm Name: Mayo Mendol ia&Vic e, LLP ProSe: 0 Address I: 5368 State Highway 276 Address 2:

City: Royse City State: Texas Zip+4: 75189 Telephone: 469'402-0450 ext. Fax: 469-402,0461 Email: dhenley@mmvllp.coin SBN: 24048148 I. Appellant II. Appellant Attorney(s) I2SJ Person D Organization (choose one) D Lead Attorney First Name: Kevin First Name: Haley Middle Name: W. Middle Name: Last Name: Vice Last Name: Brown Suffix: Suffix: Law Fim1 Name: Mayo Mendol ia& Yice,LL P ProSe: 0 Address 1: 5368 State High'NaY 276 Address 2:

Page 1 of 10 City: Royse City State: Texas Zip+4: 75189 Telephone: ext. Fax: 469,402-.0450 Email: kyice@mmvllp.com SBN: 00785150 I. Appellant II. AppellanfAttorney(s) (g) Person 0 Organization (choose one) 0 Lead Attorney First Name: Brian First Name: Haley Middle Name: L. Middle Name: Last Name: Benitez Last Name: Brown Suffix: Suffix: Law Firm Name: Mayo Mendol ia & Vice, LLP ProSe: 0 Address 1: 5368 State Highway 276 · Address 2: City: Royse City State: Texas Zip+4: 75189 Telephone: 469'402 -0450 ext. Fax: 469,402,0461 Email: bbenitez@mmvllp.com SBN: 24082679 Ill. Appellee IV. Appellee Attorney(s) 0 Person (g) Organization (choose one) (g) Lead Attorney Organization Name: RK HALL CONSTRUCTION, LTD.; RKH q First Name: Blair First Name: Middle Name: Middle Name: Last Name: Partlow Last Name: Suffix: ProSe: 0 Address 2: 5420 LBJ Freeway, Suite 1200 City: State: Texas Zip+4: Telephone: 972-991-0889 ext. Fax: 972-404-0516 Email: bpartlow@foxrothschild.com SBN: 24013299 . III. Appellee IV. Appellee Attorney(s) 0 Person (g) Organization (choose one) (g) Lead Attorney Organization Name: STACY LYON d/b/a LYON BARRIC ADE;j First Name: Ed First Name: Middle Name: Page 2 of 10 Middle Name: Last Name: Carlton Last Name: Suffix: Suffix: Law Finn Name: Quilling, Selander, LOyvnds, Winslett & M:os~f; .. ProSe: 0 p r.. . . =· ·--_'..:-'······, ·.. =.>. . '-' . • Address 1: 2001 Bryan St., SuiteJ 800 · Address 2: City: Dallas State: Texas Zip+4: 7~201 Telephone: (214) 871-2100 ext. Fax: (2.14) 871-2111 Email: ecarlton@qslwm.com SBN: 03820050

Page 3 of 10 V. Perfection Of Appeal And Jurisdiction

Nature of Case (Subject matter or type of case): Person.allnjury

Date order or judgment signed: Atigusi:27, 2015 Type of judgment: Interlocutory Order Date notice of appeal filed in trial court: September 24,2015 If mailed to the trial court clerk, also give the date mailed:

Interlocutory appeal of appealable order: [gJ Yes D No If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28): Order does not comply with Rule 168, and d~es not list reason for grant. Thereis a substantial groundfor difference regarding the effect of such noncomoliance Petitioner's appellate rights; and regarding what grounds )he Court granted its Order. f\(.;.l;t:H:nttt:: U Jppt::iiJ ~;)t:;:t:;: l!V\.1 LO). L..:J ~ ""'"" ~ ' • ..., · · If yes, please specify statutory or other basis on which appeal is accelerated:

Parental Termination or Child Protection? (See TRAP 28.4): DYes ~No

Permissive? (See TRAP 28.3): [gJYes DNo If yes, please specify statutory or other basis for such status: Interlocutory Order appealed from granted right to seek Interlocutory appeal pursuant to CPRC 51.01 4( d). Agreed? (See TRAP 28.2): D Yes [gj No If yes, please specify statutory or other basis for such status:

Appeal should receive precedence, preference, or priority under statute or rule: DYes [gJ No If yes, pi ease specify statutory or other basis for such status:

Does this case involve an amount under$100 ,000? D Yes [giNo Judgment or order disposes of all parties and issues: D Yes [giNo Appeal from final judgment: DYes [gJ No Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? D Yes [giNo

VI. Actions Extending Time To Perfect Appeal

Motion for New Trial: DYes [gJ No If yes, date filed: Motion to Modify Judgment: [gjYes DNo If yes, date filed: September 23, 2015 Request for Findings of Fact DYes [gJ No If yes, date filed: and Conclusions of Law: Motion to Reinstate: DYes [gJ No If yes, date filed: [gJ Yes DNo If yes, date filed: September 23,2015 Motion under TRCP 306a: Other: DYes [gJ No If other, please specify:

VII. Indigency Of Party: (Attach file-stamped copy of affidavit, an~ extension

Affidavit filed in trial court: DYes D No If yes, date filed:

Contest filed in trial court: DYes [gJ No If yes, date filed:

Date ruling on contest due:

Ruling on contest: D Sustained D Overruled Date of ruling:

Page 4 of 10 VIII. Bankru ptcy

Has any party to the court's judgmen t filed for protection in bankruptcy which might affect this appeal? DYes 1:><:1 No If yes, please attach a copy of the petition.

Date bankruptcy filed: Bankruptcy Case Number:

IX. Trial Court And Record

Court: 62nd Judicial District Court Clerk's Record: County: LamarC ounty Trial Court Clerk: 1:><:1 District D County Trial Court Docket Number (Cause No.): 82395 Was clerk's record requested? D Yes i:><:J No If yes, date requested: Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: Will Were payment arrangements made with clerk? Middle Name: DYes DNo Dindige nt Last Name: Biard (Note: No request required under TRAP 34.5(a),(b)) Suffix:

Address I: 119 North Main Address 2: City: Paris State: Texas Zip+ 4: 75460 Telephone: 903-737-2434 ext. Fax: 903-737-2483 Email:

Reporter's or Recorder's Record:

Is there a reporter's record? I:><:JYes D No Was reporter's record requested? DYes i:><:JNo

Was there a reporter's record electronically recorded? i:><:J Yes D No

If yes, date requested:

If no, date it will be requested: Were paymen t arrangements made with the court reporter/court recorder? DYes D No Dindige nt

Page 5 of 10 0 Court Reporter 0 Court Recorder 0 Official 0 Substitute

First Name: Middle Name: Last Name: Suffix: Address 1: Address 2: City: State: Texas Zip +4: Telephone: ext. Fax: Email:

X. Supersedeas Bolld Supersedeas bond filed:OYe s [8] No lfyes, date filed:

Will file: 0 Yes [8] No

XI. Extraordi nary Relief

Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? 0 Yes [8] No If yes, briefly state the basis for your request:

XII. Alternative Dispute Resolution/Mediation .(Complete.sectign if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, .9th, lOth, 11th, 12th, 13th, or 14th Court of Appeal) · · Should this appeal be referred to mediation? 0 Yes [8] No

If no, please specify (t\eMu J's . \euv fP.. W-~ .~ Qtqr4\es rP M{. a_<;:/{J e_ Has the case been through an ADR. proced·u.re? ~.·es, . D No. If yes, who was the mediator? 1"\Gr{e., &,I'Wt . What type of ADR procedure? tt\eJ,tt..,~f) At what stage did the case go through ADR? ~re-Trial 0 Post-Trial 0 Other If other, please specify: ~j?)- Type of case? Personal Injury Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without prejudice to the right to raise additional issues or request additional relief): Appeal oflnterlocutory Order granting MSJto 2 of three tri~l defendants. Petitioner .seeks appeal and remand, alternatively conformance with the Order to Rule 168 and add! time to perfect appeal. · · How was the case disposed of? Other Summary of relief granted, including amount of money judgment, and if any, damages awarded. Interlocuto ry Order appealed from If money judgment, what was the amount? Actual damages: signed 08.27.2015

Punitive (or similar) damages:

Page 6 of 10 Attorney's fees (trial): Attorney's fees (appellate): Other: If other, please specify:

Will you challenge this Court's jurisdiction? 0 Yes t:2J No Does judgment have language that one or more parties "take nothing"? 0 Yes I:2J No Does judgment have a Mother Hubbard clause? DYes I:2J No Other basis for finality? Rate the complexity of the case (use I for least and 5 for most complex): 0 I 0 2 Please make my answer to the preceding questions known to other parties in this case. Can the parties agree on an appellate mediator? 0 Yes I:2J No If yes, please give name, address, telephone, fax and email address: Name Address Telephone Fax Email

Languages other than English in which the mediator should be proficient: Name of person filing out mediation section of docketing statement:

XIII. Related Matters List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.

Docket Number: Trial Com1:

Style:

Vs.

Page 7 of 10 XIV.. Pro Bono Program: (Complete seCtion if filing in the 1st, 3rd, 5th, or 14th Courts of Appeals) ·. .· . ··· . The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar Association s, are conducting a program to place a limited number of civil appeals with appellate counsel who will represent the appellant in the appeal before this Court

The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of discretiona ry criteria, including the financial means of the appellant or appellee. !fa case is selected by the Committee , and can be matched with appellate counsel, that counsel will take over representat ion of the appellant or appellee without charging legal fees. More information regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at www.tex-a pp.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within thirty (30) to forty-five (45) days after submitting this Docketing Statement. Note: there is no guarantee that if you submit your case for possible inclusion in the Pro Bono Program, the Pro Bono Committee will select your case and that pro bono counsel can be found to represent you. Accordingl y, you should not forego seeking other counsel to represent you in this proceeding . By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and information about your case, including parties and backgronnd , through selected Internet sites and Listserv to its pool of volunteer appellate attorneys. Do you want this case to be considered for inclusion in the Pro Bono Program? D Yes IZJ No Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have regarding the appeal? D Yes IZJ No

Please note that any such conversatio ns would be maintained as confidentia l by the Pro Bono Committee and the infonmtion used solely for the purposes of considering the case for inclusion in the Pro Bono Program.

If you have not previously filed an affidavit of Indigency and attached a file-stampe d copy ofthat affidavit, does your income exceed 200% of the U.S. Departmen t of Health and Human Services Federal Poverty Guidelines ? DYes D No

These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at h!!n;([a>.)l~_. lJl!S,"QYL!'

Are you willing to disclose your financial circumstan ces to the Pro Bono Committee ? DYes D No If yes, please attach an Affidavit of lndigency completed and executed by the appellant or appellee. Sample fonns may be found in the Clerk's Office or on the internet at hitp_;j/~Y-\!"l·YAQk_~.P.P~.Qrg. Your participation in the Pro Bono Program may be conditioned upon your execution of an affidavit under oath as to your financial circumstan ces.

Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary).

XV. Signature . . . . )

Signattre of~sel (or prose party) Date:

State Bar No.:

Electronic Signature: (Optional)

Page 8 of 10 XVI. Certificate of Service

The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial court's order or· t as follows on Sepiember25; 2015 .

Signature Electronic Signature: (Optional)

State Bar No.: 24082679

Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must state: (1) the date and manner of service; (2) the name and address of each person served, and (3) if the person served is a party's attorney, the name of the party represented by that attorney

Please enter the following for each person served:

Date Served: September 25, 2015 Manner Served: eServed

First Name: Blair Middle Name:

Last Name: Partlow Suffix: Law Firm Name: Fox Rothschild LLP

Address 1: 5420 LBJFwy . Ste 1200 Address 2:

City: Dallas State Texas Zip+4: 75240 Telephone: 972C99!-0889 ext. Fax: 972-991-0889 Email: bpartlow@foxrothschild.com If Attorney, Representing Party's Name: RK HallCons tr. Ltd., and RKH Capital, LLC

Page 9 of 10 Date Served: September 25, 2015 Manner Served: eServed

First Name: Greg Middle Name: K. Last Name: Winslett Suffix: Law Firm Name: Quilling, Selander,L ownds,Win slett & Mose~

Address I: 200 I Bryan St, Ste. 1800 Address 2:

City: Dallas State Texas Zip+4: 75201 Telephone: 214-871-21200 ext. Fax: 214-871-2111 Email: ecarlton@qsiW!ll.com If Attorney, Representing Party's Name: Stacy Lyon d/b/a Lyon Barricade & Constrnc;i

First Name: Garland

Middle Name:

Last Name: Williams Suffix: Law Firm Name: Trans. Div. Ofc. of the Atty. Gen'l

Address I: P.O. Box 12548 Address 2: Capitol Station

City: Austion State Texas Zip+4: 78711 02548 Telephone: 512C463-2100 ext. Fax: 512-472-3855 Email: garland.williams@texasattomeygeneral.gov If Attorney, Representing Party's Name: Texas Departmen t of Transportation

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