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

Opinion

ACCEPTED

06-15-00072-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

9/25/2015 8:26:48 PM

DEBBIE AUTREY

CLERK

06-15-00072-CV

FILED IN

6th COURT OF APPEALS

TEXARKANA, TEXAS

9/25/2015 8:26:48 PM

IN THE SIXTH COURT OF APPEALS OF TEXDEBBIE AS AUTREY

Clerk

HAL EY BRO WN

PETITIONERIAPPE LLANT ,

v.

R.K HALL CONS TRUC TION, LTD., RKH CAPIT AL, LLC, and STAC Y LYON

DIBIA LYON BARR ICAD E & CONS TRUC TION RESPO NDENTS/ APPE LLEES

Arising from an interlocutory Order signed on Augu st 27, 2015, in Hall Const. Ltd., et al., Cause No. 82395in the 62"d Judicial DistrBrow n v. R.K.

ict Court of

Lama r County, Texa s

Hon Will Biard, Presi ding

PETI TION ER'S MOTION FOR EXTENSION OF TIME TO FILE PETITION FOR INTERLOCUTORY APPEAL

KEV IN W. VICE

State Bar No. 00785 150

Kvice@,mmvllp.com

DALE H. H ENLEY

State Bar No. 24048 148

Dhenl ey@m m vllp.com

BRIAN L. BENITEZ

State Bar No. 24082679

Bbeni tez@.mm vl lp.com

5368 State Hwy. 276

Royse City, Texas 75 189

(469) 402-04 50

(469) 402-0461 (Facsimile)

ATTORNEYS FOR PETITlONERIAPPELLANT

IDENTITY OF PARTIES AND COUN SEL

Judge Presidin g at time of Hon. Will Biard Interlocutory Order 119 North Main Paris, Texas, 75460

Plaintiff/Peti tionerlAppella nt Kevin W. Vice Haley Brown' s Trial Counsel State Bar No. 007851 50 Mayo, Mendol ia & Vice

5368 State Hwy. 276 West

Royse City, Texas 75189

kvice@ mmvllp .com

Dale H. Henley

State Bar No. 240481 48

Mayo, Mendolia & Vice

5368 State Hwy. 276 West

Royse City, Texas 75189

dhenley @mmvl lp.com

Plaintiff /Petition er/Appella nt's Kevin W. Vice Haley Brown' s Counse l on Dale H. Henley Interloc utory Appeal Brian L. Benitez State Bar No. 240826 79

Mayo, Mendol ia & Vice

5368 State Hwy. 276 West

bbenitez@mmvl lp.com

Defenda nt/Resp ondent/Appelle e Blair Partlow R.K. Hall Constru ction, Ltd's, and Fox Rothschild, LLP RKH Capital, LLC's Counsel at Two Lincoln Tower Trial and on Appeal 5420 LBJ Freeway , Suite 1200 Dallas, TX 75240

bpartlow @foxrot hschild.com

MOTION TO EXTEND TIME TO FILE INTERLOCUTORY APPEAL

Defendant/Respondent/Appellee Greg K. Winslett Stacy Lyon d/b/a Lyon Barricade & Quilling, Selander, Lownds, Winslett Construction's Counsel at Trial & Moser, P.C. and on Appeal 2001 Bryan St. , Suite 1800 Dallas, Texas 75201

gwinslett@gslwm.com

MOTION TO EXTEND TIME TO FILE INTERLOCUTORY APPEAL Ill

TABLE OF CONTENTS

IDENTIT Y OF PARTIES AND COUNSE L ........ . . ... . . .... ... ... ... . ii TABLE OF CONTEN TS ..... . .. . . .. ........ . . ..... . .... . .. .. . ..... iv INDEX OF AUTHOR ITIES ... . ........ ........ ........ .... . . . ...... v ISSUES PRESEN TED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi STATEM ENT OF FACTS ........ ..... . ... . .. ... . . ..... .. ........ . . vii

MOTION TO EXTEND TIME TO FILE PETITIO N FOR INTERLO CUTORY APPEAL ........ ........ ........ . . ........ ........ ........ ...... xii

I. ARGUM ENTS AND AUTHOR ITIES .... . ........ .. ...... ........ 1

A. BACKGR OUND AND EXPLAN ATION . .. .. .. . ...... . ... . . . .. 1 B. REQUES T FOR EXTENS ION OF TIME UNDER TEXAS RULE OF APPELL ATE PROCED URE 26.3 . . ........ ........ .. . . .. .. . . . . 2 C. REQUES T FOR EXTENS ION OF TIME UNDER TEXAS RULE OF CIVIL PROCED URE 306a(5) . . .. ... .... . ....... ....... . ...... 4 D. VIOLAT ION OF PETITIO NER' S CONSTIT UTIONA L DUE PROCES S RIGHTS ... .... . . . .... . ... .. . ..... .. .. ... .... . . .... . ....... 6

II. CONCLU SION AND PRAYER . ...... . .... .. . .. ... . . .. ... . ... ... 8 CERTIFI CATE OF SERVICE ... . ... .. .. ... .. . ...... . .. . .. .. . . ... . .. 10 VERIFIE D MOTION . ...... ... ..... . . . .... ... ... . .... ........ ..... 11 CERTIFI CATES OF COMPLI ANCE AND CONFER ENCE . ...... . .. . .... 12

MOTION TO EXTEND TIME TO FILE INTERLOC UTORY APPEAL lV

INDEX OF AUTHOR ITIES

RULES

Tex. R. App. P. Ann. 1.1 ........ . . ....... . . . . ........ ..... . . .. .. ..... 2 Tex. R. App. P. Ann. 10.1(a)(2) .. ... ... ... ...... .. .. .. ... ........ .... m Tex. R. App. P. Ann. 10.1(a)(3) .... . . .. .. .. .. ... ..... ... .. ........ ... 111

Tex. R. App. P. Ann. 10.5(b)(l) (A) ... .... ....... ... . . ...... . ..... .. .. 111

Tex. R. App. P. Ann. 10.5(b)(1)(B) .. ........ ... .. .... . ... . ...... . . ... 111 Tex. R. App. P. Ann. 10.5(b)(l)(C) . ........ . . . . .... . . .. ... ... .. ... ... 111 Tex. R. App. P. Ann. 10.5(b)(l) (D) .. .. . .. . ....... . .... . ....... ....... m Tex. R. App. P. 26.3 . . . . ..... .... . . . . .. . . .... . .... .. . .. ...... iii; 3; 4; 6;8 Tex. R. Civ. P. 168 (West2015) .. . ... .. .. . .. . . . . . . . . .. .... vii; viii ; ix; 2; 4 Tex. R. Civ. P. 306a(3) (West2015) .. .. . . .... . . . ... . . . .. . ....... .. .. ... 4 Tex. R. Civ. P. 306a(5) (West2015) ........ ........ ........ .... . .. . . 4;5;6 CASES

Creel v. Dist. Atty. for Medina County, 818 S. W.2d 45 (Tex. 1991 )) ...... . . .. 7

Doue v. City a/Texark ana, 786 S.W.2d 474 (Tex. "App.- Texarkanat 1990, writ denied) ........ ........ ........ ........ ........ . . ........ ...... . . . 1

Estate ofMarshall, No. 04-15-005 21-CV, 2015 WL 5245268 (Tex. App.- San Antonio 2015, no writ) . . . ........ ... ..... . ..... . . ..... .. . .. . . .. .. ... 1

Griffin v. Griffin, 327 U.S. 220 (1946) ........ ...... . ... .. ..... .... .. . . . 7

Hernandez v. Ebrom , 289 S.W.3d 316 (Tex. 2008) ...... . ...... . ... ... ... . 1 MOTION TO EXTEND TIME TO FILE INTERLOC UTORY APPEAL v

Hone v. Hanafin , 104 S.W.3d 884 (Tex. 2003) . ....... . .. ... . . . .... . .. . .. 1 Johnson v. Williams, 109 S.W.2d 213 (Tex. Civ. App.- Dallas 1937, no writ . . . 7 McKenna v. Ellis, 263 F.2d 35 (5 1h Cir. 1959) ... . .. .. ... .... ...... . ...... 7 Memphis Light, Gas, & Water Division v. Craft, 436 U.S. 1 (1978) .. . .... . . . . 7 Schroeder v. City ofNew York, 371 U.S. 208 (1962) ....... .... . . . . . ... . .. 6

Stolte v. County of Guadalupe, 139 W.W.3d 406 (Tex. App.- San Antonio 2004, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3;5

Verburgt v. Dorner, 959 S.W.2d 615 (Tex.1997) ...... . ... . .. . .... .. ... 3;5

STATUTES

Tex. Civ. Prac. & Rem. Code §51.014(a) ....... .... ... . . .... .. ....... ... 3

MOTION TO EXTEND TIME TO FILE INTERLO CUTORY APPEAL VI

ISSUES PRESENTED

1. Whether good cause exists for this Court to grant Petitioner additional time in which to perfect her permissive interlocutory appeal given that: (1) the Trial Court clearly intended to grant Petitioner the permissive right to seek interlocutory appeal of its August 27,2015 Order; (2) butthe Clerk of the Trial Court never served its interlocutory order on either Petitioner or her counsel; and (3) Petitioner did not receive actual notice of the Order until more than thirteen days ofher normal 15 day deadline had already passed; and (4) Petitioner timely filed both her Motion to Extend Time to File Interlocutory Appeal and her Petition for Interlocutory Appeal.

MOTION TO EXTEND TIME TO FILE INTERLO CUTORY APPEAL Vll

STATEMENT OF FACTS

This Motion to Extend Time to File Petition for Interlocu tory Appeal arises from an Order entered by the 62nct Judicial District Court in Lamar County, Texas, on August 27,2015, in Cause No. 82395; Haley Brown v. RK Hall Construction, LTD, Stacy Lyon d/b/a Lyon Barricade & Construction, & Texas Department of Transportation, Honorable Judge Will Biard presiding.

Petitione r' s Applicati on for Interlocutory Appeal would have been due on Septembe r 11 , 2015, had the Trial Court's Order contained all the information required by Texas Rule of Civil Procedure 168, as shall be discussed below. Tex. R. App. P. Ann. 10.5(b)(l )(A) (West 2015). Petitioner seeks an additiona l30 days in which to perfect her interlocutory appeal; such date to be measured as 3 0 days from the date Court signs the Order granting the instant Motion. !d. , at (b )(1 )(B); Id., at 10.1(a)(3). The facts upon which Petitioner relies in this Motion, and the particular grounds upon which such Motion are based are set forth througho ut Section (I) herein. !d., at (b)(1)(C); !d., at 10.1(a)(2) No previous extensions oftime have been granted in this matter. !d., at (b)(1 )(D).

The underlyin g lawsuit was filed by Petitioner on March April 18, 2013, in the 62nct District Court. The lawsuit involves personal injuries sustained by Petitioner during an accident that occurred on Highway 82 in Lamar County, Texas, on or about

PETITIONE R'S MOTION TO EXTEND TIME FOR INTERLOC UTORY APPEAL Vlll

March 16, 2012, while Highway 82 was under construct ion. Petitioner drove unimpeded through a construction zone and collided with a shuttle buggy, causing serious bodily injury. In the suit, Petitioner made claims against the Texas Department of Transportation, R.K. Hall Construction, Ltd., and Stacy Lyon d/b/a Lyon Barricade & Construction, alleging various theories ofliabilit y surrounding the failure to design and implement a safe traffic control plan.

On or about August 27, 2015, Judge Biard signed an order granting various motions for summary judgment filed by Respondents, which was nominated "Order Granting Traditional and No Evidence Motions for Summary Judgmen t ofR.K. Hall Construction, Ltd., and Stacy Lyon d/b/a Lyon Barricade & Construction" (hereinafter referred to as the "Order"). A copy of the Order is attached hereto as Exhibit 1. In the Order, the trial court gave Petitioner permissio n to file an interlocutory appeal, via the following language:

"IT IS FURTHE R ORDERED, ADJUDGED AND DECREE D that Plaintiff, Haley Brown, is granted permission to file a Petition for Interlocutory Appeal in the 61h Court of Appeals of this Court's granting of Defendan t's Motions ... "

See Exhibit 1.

Thus, Plaintiff/Appellant' s Application for Interlocutory Appeal would have been due on September 11, 2015 had Judge Biard's Order contained all the information required by Texas Rule of Civil Procedure 168. However, the Order did PETITIONE R'S MOTION TO EXTEND TIME FOR INTERLOC UTORY APPEAL lX not specify the controlling issue of law as to which there is a substanti al difference of opinion, and why an immediate appeal may materially advance the ultimate termination ofthe litigation, as required by Tex.R.Civ.P Ann. 168 (West 2015). With the understanding that the Order did not comply with Tex.R.Ci v.P Ann. 168 (West 2015), on or about September 21,2015, Petitioner filed aMotion to Modify Judgment and Alternative Motion to Extend Time to File Interlocutory Appeal in the trial court, wherein Petitioner requested that the trial court modify the order to comply with Texas Rule of Civil Procedure 168, or alternatively, to extend Petitione r's deadline to file her Petition for Interlocutory Appeal in this Court. As of the date of the filing ofthis Motion, Petitione r's Motion to Modify and Alternative Motion to Extend Time to File Interlocutory Appeal has not been heard by the trial court. A copy of said Motion with all Exhibits is attached hereto as Exhibit 2.

More importantly however, neither Petitioner, nor Petitione r's counsel received proper or timely notice of the Order entered by the trial court. The specific factual and procedural backgrou nd in this regard is as follows:

On August 13, 2015, the trial court heard argument on "Defenda nt RK Hall Construction, Ltd.'s Motion for Traditional Summary Judgment ," "Defenda nt RK Hall Construction, Ltd.'s Amended Motion for No Evidence Summary Judgment" and "Defenda nt Stacy Lyon d/b/aLyo nBarricad e & Construction's Amended Traditional

PETITIONE R'S MOTION TO EXTEND T IM E FOR INTERLOCUTORY APPEAL X and No Evidence Motion for Summary Judgment." Thereafte r, on or about August 20, 2015, the trial court, via email, advised counsel for all parties that it would grant Defendan ts' motions, give Petitioner the right to an interlocutory appeal (although not requested by Petitioner), and requested that Defendants/Respondents' counsel submit a proposed order consistent with the Court's ruling.

Thereafter, on or about August 24, 2015, Defendants/Respon dents' Counsel submitted a proposed order. The trial court evidently signed the order submitted by Defendants/Respondents on August 27, 20 15, yet, as of this date, neither Petitioner nor Petitione r's has received a copy of the Order from the clerk of the trial court as required by the Texas Rules of Civil Procedure. See Tex.R.Civ.P. Ann. 306a (West 2015). In fact, Petitione r's counsel received the Order for the first time via fax from counsel for Respondent Lyon Barricade 's counsel at 3:44p.m. , on September 9, 2015 (13 Yi days after the Order was signed by the Court). See Affidavit of Dale H. Henley and Affidavit of Haley Brown, attached hereto as Exhibits 3 and 4 respectively.

On Monday, September 14, 2015, Defendants/Respondents filed a Joint Motion to Sever in the trial court, noting that Petitioner had not timely filed a petition with the court of appeals requesting an interlocutory appeal. Defendants/Respondents' motion to sever further asked the trial court to sever the claims by and against

PETITIONE R'S MOTION TO EXTEND TIME FOR INTERLOC UTORY APPEAL XI

Defendants/Respondents, so that the summary judgment disposing oftheir claims will become final. See Defendant RK Hall Construction, Ltd. and Defendan t Stacy Lyon d/b/a Lyon Barricade & Construction's Joint Motion for Severanc e, attached hereto as Exhibit 5.

Thereafter, as noted above, m light of comment s made m Defendants/Respon dents' Motion to Sever, and in an overabun dance of caution, Petitioner filed her Motion to Modify and Alternative Motion to Extend Time to File Interlocutory Appeal in the trial court. In that same vein, and in the same overabundance of caution, Petitioner hereby files this Motion to Extend Time to File Petition for Interlocutory Appeal with this Court, and for same, would show this honorable Court as follows.

PETITIONE R'S MOTION TO EXTEND TIME FOR INTERLOC UTORY APPEAL Xll

HALEY BROWN § Petitioner /Appellan t, § §

§

v. § § _ _ _ _ _ _ __

RK HALL CONSTR UCTION , LTD. § RKH CAPITAL , LLC, § STACY LYON d/b/a LYON § BARRIC ADE & CONSTR UCTION § Responde nts/Appellees §

MOTION TO EXTEND TIME TO FILE PETITION FOR INTERLOCUTORY APPEAL

Petitione r/Appelle e, Haley Brown, Plaintiff in the trial court below, submits and files this Motion to Extend Time to File Petition for Interlocu tory Appeal, from an Order entered by the 62nct Judicial District Court in Lamar County, Texas, on August 2 7, 2015. In this Motion, Movant and Petitioner/Appellee Haley Brown will be referred to as "Petitione r," Responde nt/Appellee R .K. Hall Construc tion, Ltd. will be referred to as "Respond ent RK Hall," Responde nt Stacy Lyon d/b/a Lyon Barricade & Construc tion will be referred to as "Respond ent Lyon Barricade ," and Responde nts/Appe llees collectively will be referred as "Respond ents" of "Defenda nts/Respo ndents."

PETITIONE R'S MOTION TO EXTEND TIME FOR INTERLOC UTORY APPEAL Xlll

MOTION TO EXTEND TIME TO FILE PETITIO N FOR INTERL OCUTOR Y APPEAL

Argumen ts and Authority

Backgrou nd and Explanation Before presenting her argument on this motion to extend time, Petitioner wants to make clear on the record that this motion to extend time is being made in an overabundance of caution, and in expectations of, and to avoid, future arguments of opposing counsel on appeal. As noted above, Petitioner never requested, nor desired, a right to an interlocutory appeal. Instead such right was provided in the trial court's Order granting the Defendants/Respondents' motions for summary judgment, which was drafted by Defendants/Respondents' counsel. However, as discussed above, the Order does not meet the requirements of Texas Rule of Civil Procedure 168, and, thus, Petitioner believed that any attempt by her to file an interlocutory appeal based on said Order would have been rejected and denied by this Court. See, Estate of Marshall, No. 04-15-00521-CV, 2015 WL 5245268, at *1 (Tex.App .- San Antonio 2015, no writ).

However, a close reading of the Joint Motion for Severance by Respondents herein at the trial court level reveals that Respondents believe the deadline for Petitioner to file a petition for interlocutory appeal had passed, and that by the trial court granting the severance, Petitioner will have lost her right to appeal the motions PETITIONE R'S MOTION TO EXTEND TIME FOR INTERLOCUTORY APPEAL Page 1 for summary judgment granted in their favor. See, Ex. 5, page 2.

It is Petitioner's position that her right to interlocutory appeal has not been created due to the lack of the prerequisites of Rule 168 being met. However, even if it is determined that the Order is a proper appealable interlocutor y order, Petitioner has not waived her right to file and conduct an ordinary appeal after a final judgment is entered, either by way of severance or by final judgment in this cause. In other words, even if Petitioner decided not to, or failed to, exercise her permissive right to perfect the interlocutory appeal, her ordinary appeal rights still exist after final judgment is entered by the trial court. See, Hernandez v Ebrom, 289 S.W.3d 316, 319-20 (Tex. 2008) (relying on a plain language reading of the statute, and finding that the Legislature 's use of "may" categorizes interlocutory appeals as permissive rights which do not prejudice a petitioner's right to appeal from a final judgment).

However, in light the apparent position ofResponde nts as set for in the motion to sever filed in the trial court, Petitioner files this Motion to Extend Time to File Petition for Interlocutory Appeal as follows:

B. Requestfor Extension of Time under Texas Rule o(Appellate Procedure . 26.3

The Texas Rules of Appellate Procedure "govern procedure in appellate courts ...." and a party' s rights on appeal. Tex.R.App.P. 1.1. The rules and policies regarding perfection of an appeal are well-established in ordinary civil appeals and PETITIONER' S MOTION TO EXTEND TIME FOR INTERLOCUT ORY APPEAL Page 2 interlocutory appeals authorized by section 51.0 14(a). Stolte v County ofGuadalupe, 139 S.W.3d 406, 409 (Tex.App .-San Antonio 2004, no writ) . A party who fails to file a perfecting "instrument" by the deadline may, within fifteen days after the date the instrument was due, move for an extension oftime. See Tex. R. App. P Ann. 26.3 (West 2015). In fact, the Texas Supreme Court has held that "[a] motion for extension of time is necessarily implied when an appellant acting in good faith files [a perfecting instrument] beyond the time allowed by [the rules] , but within the fifteen-day period in which the appellant would be entitled to move to extend the filing deadline .... " !d. , citing Verburgtv. Dorner, 959 S.W.2d 615,61 7 (Tex.l997 ). Both Rule 26.3 and Verburgt apply to appeals of interlocutory orders authorized by section 51.014(a). See, Honev. Hanafin, 104 S.W.3d 884 (Tex.200 3) (applying Rule 26.3 and Verburgt to interlocutory appeal of order sustaining special appearance).

Here, Petitioner is filing this specific motion to extend time within 15 days from the date its petition for interlocutory appeal was purportedly due to be filed. Thus, this motion is timely filed under the guise ofTex.R.App .P. 26.3.

Petitioner did not initially file a Petition for Interlocutory in a timely manner because neither Petitioner nor Petitione r's counsel received proper or timely notice of the Order (as discussed above and below and in the attached affidavits), and once Petitioner ' counsel did receive a faxed copy of the order from opposing counsel with

PETITIONE R'S MOTION TO EXTEND TIME FOR INTERLOC UTORY APPEAL Page 3 just one day left to initiate the Petition, Petitioner did not believe the Order was a proper order from which to initiate an interlocutory appeal due to the lack of specificity required by Tex.R.Civ.P. 168. Thus, good cause exists to grant this motion to extend time under Tex.R.App.P. 26.3.

Accordingly, Petitioner asks the Court to extend the time to perfect its interlocutory appeal under the purview of Rule 26.3 , for an additional 30 days from . the time this Court signs the Order granting Petitioner/Appellant's Motion; and accept and grant Petitioner's Petitiuon for Interlocutory Appeal being filed concurrently herewith.

C. Request (or Extension of Time Under Tex.R.Civ.P. 306a(5)

Additionally, Petitioner asks the Court to extend the deadline to file Petitioner's petition for interlocutory appeal under Rule 306a(5). In this regard, Petitioner respectfully asks the Court to find and determine that Petitioner has not yet received notice of the Order from the clerk of the Court, as required by T.R.C.P. 3 06a(3 ), and that Petitioner received actual knowledge of the Order thirteen days after it was signed, via fax from opposing counsel. See Affidavit of Dale Henley and Affidavit of Haley Brown, attached hereto as Exhibits 3 and 4.

As argued by Defendants/Respondents in their Joint Motion for Severance, in order to be timely, a petition for interlocutory appeal must be filed within 15 days

PETITIONER' S MOTION TO EXTEND TIME FOR INTERLOCUT ORY APPEAL Page 4 from the date the order or judgment from which it is appealin g was signed. Due to the lack of timely notice of the Order, Petitioner was given only one full day to file her petition for interlocutory appeal, after receiving a copy of the Order via fax from opposing counsel.

Although Petition er's untimely notice of the Order, and Petition er's request for to extend the deadline to file for an interlocutory appeal, do not fall squarely in the purview of T.R.C.P 306a(5), it would be unjust and inconsistent with the intent of Rule 306a to preclude Petitioner' s right to file an interlocutory when Petitioner did not get timely and proper notice of the Order.

"The Texas Supreme Court has not yet enacted rules ofprocedu re to implement the permiss ive interlocutory appeal permitted by section 51.014(£)." Stolte, 139 S.W.3d at 408. However, it is well established that "[i]n ordinary civil appeals, the appellate court's jurisdic tion is invoked when an appellant timely files "an instrument in a bona fide attempt to invoke the appellate court's jurisdiction"; thus, "an appellate court may not dismiss an appeal when the appellant filed the wrong instrument required to perfect the appeal without giving the appellant an opportunity to correct the error." Dorner, 959 S.W.2d 615,616 (Tex.1997).

The intent of Rule 306a is clear: it is to give parties who do not get timely and proper notice of a order or judgment adequate time to appeal. However, Rule 306a

PETITION ER'S MOTION TO EXTEND TIME FOR INTERLO CUTORY APPEAL Page 5 contemplates a standard, typical final order or judgment being signed, not an order regarding an interlocutory appeal, and thus, the rule applies if the party receives actual notice of the order or judgment 20 days after the judgmen t was signed. Tex.R.Civ.P. 306a(5). Had Petitioner received actual notice of the Order 20 days after the Order was signed, her deadline to file the petition for interlocutory appeal would have expired five days prior. Given the cases cited above, Tex.R.App.P. 26.3, and Tex.R.Civ.P. 306a, the intent of the rules and appellate courts are clear. A party should not lose its right to appeal because of untimely notice of an order or judgment, or because a procedural error which the party did not have an opportunity to cure. Thus, consistent with the intent of Rule 306a, Petitioner asks this Court to extend the deadline to file her petition for interlocutory appeal.

D. Violation o(Petitio ner's Constitutional Due Process Rights Moreover, depriving Petitioner ofher right to appeal because of untimely and improper notice of the Order, would be a violation ofPetitio ner's constitutional due

process rights. 11 [T]he requirement that parties be notified of proceedings affecting

their legally protected interests is obviously a vital corollary to one of the most fundamental requisites of due process - the right to be heard." Schroeder v. City of New York, 371 U.S. 208, 212, 83 S.Ct. 279, 282, 9 L.Ed.2d 255 (1962). Thus, "[t]here can be no due process without reasonable notice and a fair hearing. 11

PETITIONE R'S MOTION TO EXTEND TIME FOR INTERLOC UTORY APP EAL Page 6

II. Conclusion and Praver As argued herein, the Petitioner's rights in this matter were substantially prejudiced due to the failure of the Clerk of the Trial Court to transmit a copy of the Trial Court's Order. By the time Petitioner's trial counsel received that Order from opposing counsel, 13.5 days of her traditiona l15 day deadline had already passed. Thus, this Court should grant additional time pursuant to Texas Rule of Appellate Procedure 26.3, because Petitioner has timely filed this Motion.

However, in the instant matter, the Trial Court's Order did not comply with Rule 168; therefore , said Order is insufficient to cause Petitione r's appellate deadlines to commence. Nonetheless, in an abundance of caution, and for the reasons set forth above, Petitioner respectfully asks this Court to Grant her Motion to Extent Time, and to provide her 30 days from the time the Order granting this Motion is signed in which to perfect her appeal, and to grant her any other relief to which she has shown herself entitled.

PETITIONE R' S MOTION TO EXTEND TIME FOR INTERLOC UTORY APPEAL Page 8

Respectfully submitted:

MAYO MENDOLIA & VICE, L.L.P.

By: /s/ Kevin W. Vice

K EVIN W. VICE

kvice@mmvllp.com

State Bar No. 00785150

D ALE H. HENLEY

dhen ley@mmv ll p.com

State Bar No. 24048148

BRIAN L. BENITEZ

bbenitez@mmv ll p.co m

State Bar No. 24082679

5368 State Highway 276

Royse City, Texas 75189

(469) 402-0450

(469) 402-0461 (Facsimile)

ATTORNEY FOR PE TITIONER

HALEY BROWN

PETITIONER'S MOTION TO EXTEND TIME FOR INTERLOCUTORY APPEAL Page 9

CERTIF ICATE OF SERVIC E

I hereby certify that a true and correct copy of the foregoin g document has been forwarded to the following counsel of record, on this 25th day of Septemb er, 2015:

Blair Partlow ViaE-Fil e Service Fox Rothschil d, LLP 5420 LBJ Freeway, Suite 1200 Dallas, Texas 75240

Ed Carlton ViaE-File Service Quilling, Selander, Lownds, Winslett & Moser, P.C. 2001 Bryan St., Suite 1800 Dallas, Texas 75201

Garland Williams ViaE-Fil e Service Transport ation Division Office of the Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-25 48

Is/ Kevin W. Vice

KEVIN W. VICE

PETITIONER 'S MOTION TO EXTEND TIME FOR INTERLOCUTORY APPEAL Page 10

VERIFIE D MOTION

STATE OF TEXAS § §

COUNTY OF § ROCKWALL §

BEFORE ME, the undersigned authority, on this day personall y appeared Brian L. Benitez, an attorney known personally to me, licensed to practice law in Texas, holding license number 24082679. And, Brian L. Benitez, who, having been by me first duly sworn, deposed and said that he has read the allegations in the foregoing Petitioner's Motion for Extension of Time to File Petition for Interlocutory Appeal, that each and every fact and matter therein stated, including those averred in any

Attorney at Law

Mayo, Mendolia & Vice, LLP ATTORNEYS FOR PETITIONER

SUBSCR IBED AND SWORN to before me, this, the 25 1h day of September, 2015

•..-~~~t!'•• ALEXANDRA C, HALEY Notary Public in and for !''R:::::A:;*-\

Notary Public, State of Texas s~:,~/"1 My Commission Expires The State of Texas \~1·c,;"<.$~ June 25, 2017 "''""'''

PETITIONE R'S MOTION TO EXTEND TIME FOR INTERLOC UTORY APPEAL Page 11

CERTIFICATE OF COMPL IANCE Petitioner 's Motion for Extension of Time to File Petition for Interlocutory Appeal contains 4145 words, and, as such, complies with Texas Rule of Appellate Procedure 9.4(i)(2)(D) (word count determined by the computer program (WordPerfect x5) used to create said Motion).

CERTIFICATE OF CONFER ENCE Counsel for Petitioner has made a reasonable attempt to confer about the instant Motion with counsel for Respondents. Although no accord has been reached, on information and belief, this Motion is Opposed by Respondents.

PETITIONE R'S MOTION TO EXTEND TIME FOR INTERLOC UTORY APPEAL Page 12

EXHIBIT 1

To: I 4694020461 I From: Shannon Wright 9-09-15 3:41pm p. 3 of 4

Kristen Boehler

CAUSE NO. 82395

HALEY BROWN ~ IN THE DISTRICT COURT §

VS. § § OF LAMAR COUNTY, TEXAS RK HALL CONSTRUCTION, LTD. § RKH CAPITAL, LLC, STACY LYON d/b/a § LYON BARRICADE & CONSTRUCTION § and TEXAS DEPARTMENT OF § TRANSPORTATION § 62nd JUDICIAL DISTRICT

ORDER GRANTING TRADITIONAL ANI) NO EVIDENCE MOTIONS FOR SUMMARY JUDGMENT OF RK HALL CONSTRUCTION, LTD. AND STACY LYON D/B/A LYON BARRICADE & CONSTRUCTION

On the I 3th day of August, 20 !5. came on to be heard Defendant RK Hall Construction.

Ltd.'s Traditional Motion for Summary Judgment, Defendant RK Hall Construction, Ltd.'s, Amended No Evidence Motion for Summary Judgment, and Defendant Stacy Lyon dlb/a Lyon Barricade & Construction's Amended Traditional and No Evidence Motions For Summary Judgment (collectively "Defendants' Motions"); and all parties appeared by and through their respective counsel; and the Court, having reviewed Defendants' Motions, Plaintitrs Responses submitted thereto, the evidence on file, and having heard argument of counsel, is of the opinion that Defendants' Motions should be granted in their entirety, and accordingly;

lt is ORDERED, ADJUDGED, and DECREED that Defendant RK Hall Construction, Ltd.'s Traditional Motion for Summary Judgment, Defendant RK Hall Construction. Ltd.'s, Amended No Evidence Motion for Summary Judgment, and Defendant Stacy Lyon d/b/a Lyon

Barricade & Construction's Amended Traditional and No Evidence Motion~f.Jr Summary <>:>

Judgment be, and the same are, hereby granted; and :-<: '2~ ~,:.

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ORDER GRANTING RK HALL AND LYON'S TRADITIONAL AND NO EVJDENCEf~ MOTIONS FOR SUMMARY JUDGMENT- PAGEl

To: I 4694020461 I From: Shannon Wright 9-09-15 3:41pm p. 4 of 4

It is FURTHER ORDERED, ADJUDGED, and DECREED that Plaintiff, Haley Brown, take nothing by this suit as against RK Hall Construction, Ltd, and Stacy Lyon d/b/a Lyon Barricade & Construction; and It is FURTHER ORDERED, ADJUDGED, and DECREED that Plaintiff, Haley Brown, is granted permission to file a Petition for Interlocutory Appeal in the 61h Court of Appeals of this Court's granting of Defendants' Motions; and IT IS FURTHER ORDERED. ADJUDGED and DECREED that this Order shall have no impact on the claims of Haley Brown, as against Texas Department of'l'ransportation, which claims will remain pending before the Court; and IT IS FURTHER ORDERED, ADJUDGED and DECREED that all costs of court shall be taxed in accordance with the future orders of the Court, it being understood, however, that no costs of court shall be taxed against RK Hall Construction, Ltd. and Stacy Lyon d/b/a Lyon Barricade & Construction.

SIGNED this 2.1_ day of August, 2015.

ORDER GRANTING RK HALL AND LYON'S TRADITIONAL AND NO EVIDENCE MOTIONS FOR SUMMARY JUPCMENT- PACE2

EXHIBIT 2

Filed 9/21/2015 9:13:21 AM Shawntel Golden

District Clerk

Lamar County, Texas

Jennifer Frazier

CAUSE NO: 82395

HALEY BROWN § IN THE DISTRICT COURT §

Plaintiff, § §

V. § § OF LAMAR COUNTY, TEXAS RK HALL CONSTRUCTION, LTD. § RKH CAPITAL, LLC, § STACY LYON d/b/a LYON § BARRICADE & CONSTRUCTION, and § TEXAS DEPARTMENT OF § TRANSPORTATION § Defendants. § 62nd JUDICIAL DISTRICT

MOTION TO MODIFY JUDGMENT, AND, ALTERNATIVELY, MOTION TO EXTEND TIME TO FILE PETITION FOR INTERLOCUTORY APPEAL

TO THE HONORABLE COURT:

COMES NOW, Haley Brown, Plaintiff herein, and files this, her Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal, and in support thereof, would respectfully show unto the Court as follows:

I.

BACKGROUND/INTRODUCTION

1.1 On August 13, 2015, this Court heard argument on Defendant RK Hall Construction, Ltd.’s Motion for Traditional Summary Judgment, Defendant RK Hall Construction, Ltd.’s Amended Motion for No Evidence Summary Judgment, and Defendant Stacy Lyon d/b/a Lyon Barricade & Construction’s Amended Traditional and No Evidence Motion for Summary Judgment (Defendant RK Hall Construction, Ltd. and Defendant Stacy Lyon d/b/a Lyon Barricade & Construction shall be collectively referred to herein as “Defendants”). Thereafter, on or about August 20, 2015 this Court, via email, advised counsel for all parties that it had granted Defendants’

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 1 motions, granted Plaintiff the right to an interlocutory appeal (although not requested by Plaintiff), and requested the Defendants to submit a proposed order consistent with the Court’s ruling.

1.2 Thereafter, on or about August 24, 2015, Defendants submitted a proposed order.

The Court evidently signed the order submitted by Defendants on August 27, 2015 (the “Order”), yet, as of today’s date, the clerk of the Court has never sent Plaintiff’s counsel a copy of the Order. In fact, Plaintiff received the Order for the first time via fax from counsel for Defendant Stacy Lyon d/b/a Lyon Barricade & Construction, at 3:44 p.m., on September 9, 2015 (13 days after the Order was signed by the Court). See Affidavit of Dale H. Henley and Affidavit of Haley Brown, attached hereto as Exhibits 1 and 2 respectively.

1.3 On Monday, September 14, 2015, Defendants R.K. Hall and Lyon Barricade filed a Joint Motion to Sever, noting that Plaintiff has not timely filed a petition with the court of appeals requesting an interlocutory appeal. Defendants’s motion further asks the Court to sever the claims by and against Defendants so that the summary judgment disposing of their claims will become final.

1.4 In an abundance of caution, and in light of the Court’s comments at the hearing on Defendant Texas Department of Transportation’s Motion to Dismiss for Lack of Jurisdiction and Motion for No Evidence Summary Judgment on September 17, 2015, regarding the Court’s desire to wait until after the appeal on Defendants’ summary judgments are heard before proceeding with trial in this matter, Plaintiff hereby files its Motion to Modify Judgment, requesting that the Court modify the Order to comply with section 168 of the Texas Rules of Civil Procedure, and thus making the Order a proper, appealable, interlocutory order. In the alternative, Plaintiff asks for an extension of time to file its petition for interlocutory appeal.

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 2

II.

ARGUMENT

2.1 Rule 168 of the Texas Rules of Civil Procedure states as follows:

On a party’s motion or on its own initiative, a trial court may permit an appeal from an interlocutory order that is not otherwise appealable, as provided by statute. Permission must be stated in the order to be appealed. An order previously issues may be amended to include such permission. The permission must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation.

Tex.R.Civ.P. 168 (emphasis added).

2.2 Courts of appeals do not have jurisdiction over appeals from interlocutory orders, unless a statute provides for an interlocutory appeal from such orders. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007). Under section 51.014(d) of the Texas Civil Practice and Remedies Code, a court of appeals may accept a permissive interlocutory appeal if (1) the order being appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion, and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation. See Tex. Civ. Prac. & Rem.Code § 51.014(d), (f); Hebert v. JJT Const., 438 S.W.3d 139, 140 (Tex.App.–Houston [14th Dist.] 2014, no pet.).

2.3 In its statement of permission granting an interlocutory appeal under section 51.014, a trial court must identify the controlling question of law as to which there is a substantial ground for difference of opinion and must state why an immediate appeal may materially advance the ultimate termination of the litigation. Tex. R. Civ. P. 168; Hebert, 438 S.W.3d at 141; see also Tex. Civ. Prac. & Rem.Code § 51.014(d).

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 3 2.4 While there is little case law as to what exactly constitutes a controlling issue of law, the court in Gulf Coast Asphalt Company, LLC v. Lloyd, 457 SW3d 539, 544, cited from a law review article the following:

A controlling question of law is one that deeply affects the ongoing process of litigation. If resolution of the question will considerably shorten the time, effort, and expense of fully litigating the case, the question is controlling. Generally, if the viability of a claim rests upon the court's determination of a question of law, the question is controlling.... Substantial grounds for disagreement exist when the question presented to the court is novel or difficult, when controlling circuit law is doubtful, when controlling circuit law is in disagreement with other courts of appeals, and when there simply is little authority upon which the district court can rely.... Generally, a district court will make [a finding that the appeal will facilitate final resolution of the case] when resolution of the legal question dramatically affects recovery in a lawsuit.

Gulf Coast Asphalt Company, LLC v. Lloyd, 457 SW3d 539, 544 (Tex.App.– Houston [14th Dist] 2015, no writ).

2.4 Here, the Order states, in pertinent part, “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff, Haley Brown, is granted permission to file a Petition for Interlocutory Appeal in the 6th Court of Appeals of this Court’s granting of Defendant’s Motions...” The Order, however, is silent as to the controlling issue of law as to which there is a substantial difference of opinion, and why an immediate appeal may materially advance the ultimate termination of the litigation, as required by T.R.C.P 168.

2.5 Thus, the Order presented by Defendants and signed by the Court does not comply with Rule 168. If Plaintiff were to file a petition for interlocutory appeal based on this Order, as required by the Texas Rules of Appellate Procedure, the petition would be denied by the court of

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 4 appeals, as the proper requirements of Rule 168 are not contained therein. See, e.g., Estate of Marshall, 2015 WL 5245268, (Tex.App.– San Antonio 2015, no writ).

2.6 Accordingly, Plaintiff respectfully requests that the Court modify the Order to specify the controlling question of law at issue, and state why an immediate appeal will materially advance the ultimate termination of the litigation, so the Order will comply with the requirements of Rule 168, and will be in proper form from which an interlocutory appeal can be filed.

2.7 Additionally, consistent with Rule 168 requirements, Plaintiff respectfully asks the Court to modify the Order to identify the specific grounds upon which summary judgment was granted. Defendant RK Hall moved for summary judgment on the following grounds:

1. Immunity under Section 97.002 of the Texas Civil Practices and Remedies Code:

2. No Actual Knowledge of a Dangerous Condition;

3. The Location and Condition of the Shuttle Buggy was not the Proximate Cause of the Accident;

4. No Evidence Plaintiff was a licensee;

5. No Evidence a Condition on the Premises posed an Unreasonable Risk of Harm; and

6. No Evidence RK Hall had Actual Knowledge of the Danger.

2.8 Defendant Lyon Barricade moved for summary judgment on the following grounds:

1. Immunity under Section 97.002 of the Texas Civil Practices and Remedies Code;

2. No Evidence of Unreasonable Risk of Harm; and 3 No Evidence of Actual Knowledge of Unreasonable Risk of Harm.

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 5 2.9 The Order does not specify the upon which of the above grounds the Court granted summary judgment. In order for this matter to be ripe for interlocutory appeal, the Order must state the specific controlling question of law at issue, and why an immediate appeal will materially advance the ultimate termination of the litigation. By narrowing the basis upon which the Court granted Defendants’ motions for summary judgment, these requirements will be met and achieved.

2.10 Thus, in order to comply with Rule 168, and to expedite the appellate process on the interlocutory, accelerated appeal, Plaintiff would ask the Court to specify the exact grounds upon which the motions for summary judgment were granted so as to narrow the issues for the Court of Appeals.

III.

ALTERNATIVE MOTION TO EXTEND TIME

3.1 Alternatively, should the Court decline to modify the Order as requested above, Plaintiff respectfully requests that the Court extend the time to file Plaintiff’s petition for an interlocutory appeal under Rule 26.3 of the Texas Rules of Appellate Procedure and Rule 306a(5) of the Texas Rules of Civil Procedure. Background and Explanation 3.2 Before delving into the argument on the motion to extend time, Plaintiff wants to make clear on the record that this alternative motion to extend time is being made in an overabundance of caution, and in expectations of, and to avoid, future arguments of opposing counsel on appeal. As noted above, Plaintiff never requested, nor desired, a right to an interlocutory appeal. Instead such right was provided in the Court’s Order granting the Defendants’ motions for summary judgment, which was drafted by Defendants’ counsel. However, as discussed extensively

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 6 above, the Order does not meet the requirements of Tex.R.Civ.P 168, and thus, any attempt by Plaintiff to file an interlocutory appeal based on said Order would have been rejected and denied. See, Estate of Marshall, 2015 WL 5245268, (Tex.App.– San Antonio 2015, no writ).

3.3 Based on comments by the Court at the hearing on TXDOT’s motion for summary judgment, it appears clear that the intent of the Court is the sever the claims and causes of action against Defendants RK Hall and Lyon Barricade, and allow that case, including the granting of Defendant RK Hall’s and Lyon Barricade’s motions for summary judgment, to go on appeal. The Court advised that is would reset the trial against TXDOT after the appeal on the motions for summary judgment were complete. However, a close reading of the Joint Motion for Severance by RK Hall and Lyon Barricade reveals that they believe the deadline for Plaintiff to file a petition for interlocutory appeal has passed, and that by granting the severance, Plaintiff will have lost her right to appeal the motions for summary judgment granted in their favor. See Defendant RK Hall Construction, Ltd. and Defendant Stacy Lyon d/b/a Lyon Barricade & Construction’s Joint Motion for Severance, page 2.

3.4 It is Plaintiff’s position that her right to interlocutory appeal has not been created due to the lack of the prerequisites of Rule 168 being met. However, even if it is determined that the Order is a proper appealable interlocutory order, Plaintiff has not waived her right to file and conduct an ordinary appeal after a final judgment is entered, either by way of severance or by final judgment in this cause. In other words, even if Plaintiff decided not to, or failed to, exercise her right to perfect the interlocutory appeal, her ordinary appeal rights still exist after final judgment is entered by this Court. See, Hernandez v Ebrom, 289 S.W.3d 316 (Tex. 2008).

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 7 3.5 However, in light of previous activity in this case, recent developments on Defendants’ lack of full and complete discovery production, in an overabundance of caution, and in order to provide full and complete protection to Plaintiff, Plaintiff files this alternative request to extend time to file Plaintiff’s petition for interlocutory appeal under Tex.R.App.P 26.3 and Tex.R.Civ.P 306a(5) as follows: Extension of Time under T.R.App.P. 26.3 3.6 The Texas Rules of Appellate Procedure “govern procedure in appellate courts....”

and a party’s rights on appeal. TEX.R.APP.P. 1.1. The rules and policies regarding perfection of an appeal are well-established in ordinary civil appeals and interlocutory appeals authorized by section 51.014(a). Stolte v County of Guadalupe, 139 S.W.3d 406, 409 (Tex.App.–San Antonio 2004, no writ). A party who fails to file a perfecting “instrument” by the deadline may, within fifteen days after the date the instrument was due, move for an extension of time. See TEX.R.APP. P. 26.3. “[A] motion for extension of time is necessarily implied when an appellant acting in good faith files [a perfecting instrument] beyond the time allowed by [the rules], but within the fifteen-day period in which the appellant would be entitled to move to extend the filing deadline....” Id., citing v. Dorner, 959 S.W.2d 615, 617 (Tex.1997). Both Rule 26.3 and Verburgt apply to appeals of interlocutory orders authorized by section 51.014(a). See, Hone v. Hanafin, 104 S.W.3d 884 (Tex.2003) (applying Rule 26.3 and Verburgt to interlocutory appeal of order sustaining special appearance).

3.7 Here, Plaintiff is filing this specific motion to extend time well within 15 days from the date its petition for interlocutory appeal was purportedly due to be filed. Thus, this motion is timely filed under the guise of Tex.R.App.P. 26.3.

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 8 3.8 Accordingly, in the event the Court is disinclined to modify the Order as requested herein, Plaintiff asks the Court to extend the time to perfect its interlocutory appeal under the purview of Rule 26.3. Extension Under Tex.R.Civ.P. 306a(5)

3.9 Additionally, Plaintiff asks the Court to extend the deadline to file Plaintiff’s petition for interlocutory appeal under Rule 306a(5). In this regard, Plaintiff respectfully asks the Court to find and determine that Plaintiff has not yet received notice of the Order from the clerk of the Court, as required by T.R.C.P. 306a(3), and that Plaintiff received actual knowledge of the Order thirteen days after it was signed, via fax from opposing counsel. See Affidavit of Dale Henley and Affidavit of Haley Brown, attached hereto as Exhibits 1 and 2.

3.10 As argued by Defendants RK Hall and Lyon Barricade in their Joint Motion for Severance, in order to be timely, a petition for interlocutory appeal must be filed within 15 days from the date the order or judgment from which it is appealing was signed. Due to the lack of timely notice of the Order, Plaintiff was only given two days to file her petition for interlocutory appeal, after it received a copy of the Order via fax from opposing counsel.

3.11 Although Plaintiff’s untimely notice of the Order, and Plaintiff’s request for to extend the deadline to file for an interlocutory appeal, do not fall squarely in the purview of T.R.C.P 306a(5), it would be unjust and inconsistent with the intent of Rule 306a to preclude Plaintiff’s right to file an interlocutory when Plaintiff did not get timely and proper notice of the Order.

3.12 “The Texas Supreme Court has not yet enacted rules of procedure to implement the permissive interlocutory appeal permitted by section 51.014(f).” Stolte, 139 S.W.3d at 408. However, it is well established that “[i}n ordinary civil appeals, the appellate court's jurisdiction is

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 9 invoked when an appellant timely files “an instrument in a bona fide attempt to invoke the appellate court's jurisdiction”; thus, “an appellate court may not dismiss an appeal when the appellant filed the wrong instrument required to perfect the appeal without giving the appellant an opportunity to correct the error.” Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997)

3.13 The intent of Rule 306a is clear: it is to give parties who do not get timely and proper notice of a order or judgment adequate time to appeal. However, Rule 306a contemplates a standard, typical final order or judgment being signed, not an order regarding an interlocutory appeal, and thus, the rule applies if the party receives actual notice of the order or judgment 20 days after the judgment was signed. Tex.R.Civ.P. 306a(5). Had Plaintiff received actual notice of the Order 20 days after the Order was signed, its deadline to file the petition for interlocutory appeal would have expired. Given the cases cited above, T.R.APP.P 26.3, and 306a, the intent of the rules and appellate courts are clear. A party should not lose its right to appeal because of untimely notice of an order or judgment, or because a procedural error which the party did not have an opportunity to cure. Thus, consistent with the intent of Rule 306a, Plaintiff asks the Court, as an alternative pleading, to extend the deadline to file its petition for interlocutory appeal. Violation of Plaintiff’s Constitutional Due Process Rights 3.14 Moreover, depriving Plaintiff of her right to appeal because of untimely and improper notice of the Order, would be a violation of Plaintiff’s constitutional due process rights. "[T]he requirement that parties be notified of proceedings affecting their legally protected interests is obviously a vital corollary to one of the most fundamental requisites of due process – the right to be heard." Schroeder v. City of New York, 371 U.S. 208, 212, 83 S.Ct. 279, 282, 9 L.Ed.2d 255 (1962). Thus, "[t]here can be no due process without reasonable notice and a fair hearing." MacKenna v.

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 10

Ellis, 263 F.2d 35, 43 (5th Cir. 1959), cert. denied, 360 U.S. 935, 79 S.Ct. 1453, 3 L.Ed.2d 1546 (1960); see also, Griffin v. Griffin, 327 U.S. 220, 231, 66 S.Ct. 556, 562, 90 L.Ed 635 (1946); Johnson v. Williams, 109 S.W.2d 213, 214 (Tex. Civ. App. – Dallas 1937, no writ) ("The right to a day in court and the privilege of being heard before judgment is a constitutional guaranty, the very essence of due process of law."). As the Texarkana Court of Appeals summarized the applicable rules:

At a minimum, constitutional due process requires that no person be deprived of property by any adjudication unless that adjudication is preceded by notice to the owner and a reasonable opportunity for an appropriate hearing. The notice must be reasonably calculated, under all the circumstances, to apprise the owner of the pendency of the action and afford him an opportunity to present his objections. Doue v. City of Texarkana, 786 S.W.2d 474, 477 (Tex App.–Texarkana 1990, writ denied); see also, Memphis, Light, Gas & Water Division v. Craft, 436 U.S. 1, 14, 98 S.Ct.1554, 1563, 56 L.Ed.2d 30 (1978);

Creel v. District Attorney for Medina County, 818 S.W.2d 45, 46 (Tex. 1991).

3.15 Based on the above analysis and authority, depriving Plaintiff of her right to appeal due to untimely notice of the Order would violate Plaintiff’s constitutional due process rights. Thus, in the event the Court declines to modify the Order as requested hereinabove, Plaintiff respectfully requests that the Court extend Plaintiff’s time to file her petition for interlocutory appeal to avoid violating Plaintiff’s constitutional due process rights.

IV.

PRAYER

WHEREFORE, Plaintiff prays that the Court set this matter for hearing, and after considering this Motion, the evidence attached hereto, and any response filed to this Motion, grant Plaintiff’s Motion to Modify Judgment, and modify the Order entered in connection with Defendants

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 11

RK Hall’s and Lyon Barricade’s motions for summary judgment consistent with the relief requested herein. Alternatively Plaintiff respectfully requests that the Court grant her Motion to Extend Time, and provide Plaintiff with ample time to timely file her petition for interlocutory appeal. Plaintiff also prays for such other and further relief to which she has shown herself entitled.

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 12

Respectfully submitted:

MAYO MENDOLIA & VICE, L.L.P.

By: /s/ Dale H. Henley

KEVIN W. VICE

State Bar No. 00785150

kvice@mmvllp.com

DALE H. HENLEY

State Bar No. 24048148

dhenley@mmvllp.com

5368 State Hwy. 276

Royse City, Texas 75189

(214) 402-0450

(214) 402-0461 (Facsimile)

ATTORNEYS FOR PLAINTIFF HALEY BROWN

CERTIFICATE OF CONFERENCE

The undersigned has emailed opposing counsel requesting whether they are opposed on the merits of this Motion, and, to the best of Plaintiff’s knowledge, opposing counsel opposes this Motion. Thus, Plaintiff requests that a hearing be set on this Motion at the earliest date convenient for the Court.

_________________________________

DALE H. HENLEY

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 13

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been forwarded to the following counsel of record, on this 18th day of September 2015:

Blair Partlow Via E-File Service Fox Rothschild, LLP 5420 LBJ Freeway, Suite 1200 Dallas, Texas 75240

Ed Carlton Via E-File Service Quilling, Selander, Lownds, Winslett & Moser, P.C. 2001 Bryan St., Suite 1800 Dallas, Texas 75201

Garland Williams Via E-File Service Transportation Division Office of the Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548

______________________________________

DALE H. HENLEY

Motion to Modify Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal Page 14

VERIFICATION

STATE OF TEXAS § §

COUNTY OF ROCK WAL L §

BEFORE ME, the undersigned Notary Public, on this day person ally appeared Dale H.

Henley, who, being by me duly sworn upon his oath, deposed and said:

1. That he has personal knowledge of the facts contained herein , except as to where they

may be stated upon infonn ation and belief, and where so stated, he believ es them to be true;

2. That he is of the age of 18 years, competent to testify under oath, and has never been

convicted of a felony;

3. That he has read the attached document entitled Motion to Modify Judgm ent, and,

Alternatively, Motion to Extend Time to File Petition For Interlocutory Appea l;

4. That the statements contained in Motio n to Modif y Judgm ent, and, Alternatively,

Motion to Extend Time to File Petition For Interlocutory Appeal are true and correct, except to the extent that they are stated to be upon information and belief, and where so stated, he believes them to be hue and correc t /)~7£7 1}};

DALE H. HEN EY

Subscribed to and sworn to before me on this '<:.t~ ~.~ I/\?

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May 05, 2019

EXHIBIT 1

CAUSE NO: 82395

HALEY BROWN § IN THE DISTRICT COURT §

Plaintiff, § §

v. § § OF LAMAR COUNTY, TEXAS RK HALL CONSTR UCTION , LTD., § STACY LYON d/b/a LYON § BARRICADE & CONSTR UCTION , and § TEXAS DEPART MENT OF § TRANSP ORTATI ON § Defendants. § 62"d JUDICIAL DISTRIC T

AFFIDAVIT OF DALE H. HENLEY

1. "My name is Dale H. Henley. I am over 21 years of age, and am of sound mind and fully competent to testify to the matters set forth herein. The facts contained in this Affidavit are true and correct.

2. I am one ofPlainti ffHaley Brown's ("Plaintiff') attorneys in the above referenced case. As such, I have personal knowledg e of the facts stated herein.

3. On August 13, 2015, this Court heard argument on Defendant RK Hall Construction, Ltd.'s Motion for Traditional Summary Judgment , Defendant RK Hall Construction, Ltd.'s Amended Motion for No Evidence Summary Judgment, and Defendan t Stacy Lyon d/b/a Lyon Banicade & Construction's Amended Tradition al and No Evidence Motion for Summary Judgmen t (Defendant RK Hall Construction, Ltd. and Defendant Stacy Lyon d/b/a Lyon Barricade & Construction shall be collectively refened to herein as "Defendants"). Thereafter, on or about August 20, 20 15 the Court, via email, advised counsel for all parties that it was going to grant Defendants' motions, grant Plaintiff the right to an file an interlocutory appeal (although Plaintiff did not request an interlocutory appeal) and requested that counsel for Defendants to submit a proposed order consistent with that ruling.

4. Thereafter, on or about August 24, 2015, Defendants submitted a proposed order. The Court signed the order on August 27, 2015, yet, as oftoday' s date, neither our office or our client has received a copy of the Order from the clerk of the Court. In fact, I received the Order for the first time via fax from counsel for Defendant Stacy Lyon d/b/a Lyon Barricade & Construction, at 3:44 p.m., on Septembe r 9, 2015, 13 days after the Order was signed by the Court.

Affidavit of Dale H. Henley Page 1 of2

5. That concludes my affidavit testimony."

Dale H. Henley -

Subscribed to and sworn to before me on this ltl\ay of certify which witness my hand and official seal.

¥~ ,2015, to

t ry Public in and for

State of Texas

My Commission Expires:

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Affidav it of Dale H. H enley Page 2 of2

EXHIBIT 2

CAUSE NO: 82395

RALEY BROWN § IN THE DISTRICT COURT §

Plaintiff, § §

v. § § OF LAMAR COUNTY, TEXAS RK HAI.L CONSTRU CTION, LTD., § STACY LYON d/b/a LYON § BARRICA DE & CONSTRU CTION, and § TEXASDE PARTMffi NTOF § TRANSPO RTATION § Defendants . § 62"' JUDICIAL DISTRICT

AFFJJ)AVIT OF HAUW BROWN

l. "My name is Haley Brovm. I am the Plaintiff in this case, I am over the age of 21, and am of sound mind and fully competent to testifY to the matters set forth herein. The facts contained in this Affidavit are true and correct. I have personal knowledge of the facts stated herein."

2. I did not receive notice of the order granting Defendant RK Hall Construction , Ltd.'s Motion for Traditional Summary Judgment, Defendant RK Hall Construction , Ltd.'s Amended Motion for No Evidence Summary Judgment, and Defendant Stacy Lyon d/b/a Lyon Barricade & Constructio n's Amended Traditional and No Evidence Motion for Summary Judgment until September 9, 2015, 13 days after the Order was signed by the Court.

Subscribed to and sworn to before me on this certifY which witness my hand and official seal.

J..$ da:y of ::S -e QX£ XV\ID. 2015, to

Notary Public in and for

The State of Texas

My Commissio n Expires:

~".,.~)'ft'''+, ALEXANDRA C. HALEY ; .,.

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Affidavit of Haley Brown '"m''' __j.J Page 1 oO

EXHIBIT 3

CAUSE NO: 82395

HALEY BROWN § IN THE DISTRICT COURT §

Plaintiff, § §

v. § § OF LAMAR COUNTY, TEXAS RK HALL CONSTR UCTION , LTD., § STACY LYON d/b/a LYON § BARRICADE & CONSTR UCTION , and § TEXAS DEPART MENT OF § TRANSP ORTATI ON § Defendants. § 62"d JUDICIAL DISTRIC T

AFFIDAVIT OF DALE H. HENLEY

1. "My name is Dale H. Henley. I am over 21 years of age, and am of sound mind and fully competent to testify to the matters set forth herein. The facts contained in this Affidavit are true and correct.

2. I am one ofPlainti ffHaley Brown's ("Plaintiff') attorneys in the above referenced case. As such, I have personal knowledg e of the facts stated herein.

3. On August 13, 2015, this Court heard argument on Defendant RK Hall Construction, Ltd.'s Motion for Traditional Summary Judgment , Defendant RK Hall Construction, Ltd.'s Amended Motion for No Evidence Summary Judgment, and Defendan t Stacy Lyon d/b/a Lyon Banicade & Construction's Amended Tradition al and No Evidence Motion for Summary Judgmen t (Defendant RK Hall Construction, Ltd. and Defendant Stacy Lyon d/b/a Lyon Barricade & Construction shall be collectively refened to herein as "Defendants"). Thereafter, on or about August 20, 20 15 the Court, via email, advised counsel for all parties that it was going to grant Defendants' motions, grant Plaintiff the right to an file an interlocutory appeal (although Plaintiff did not request an interlocutory appeal) and requested that counsel for Defendants to submit a proposed order consistent with that ruling.

4. Thereafter, on or about August 24, 2015, Defendants submitted a proposed order. The Court signed the order on August 27, 2015, yet, as oftoday' s date, neither our office or our client has received a copy of the Order from the clerk of the Court. In fact, I received the Order for the first time via fax from counsel for Defendant Stacy Lyon d/b/a Lyon Barricade & Construction, at 3:44 p.m., on Septembe r 9, 2015, 13 days after the Order was signed by the Court.

Affidavit of Dale H. Henley Page 1 of2

5. That concludes my affidavit testimony."

Dale H. Henley -

Subscribed to and sworn to before me on this ltl\ay of certify which witness my hand and official seal.

¥~ ,2015, to

t ry Public in and for

State of Texas

My Commission Expires:

,,,,..~"''''~

/~'~~~· :,~~~~ JESSICA T. LOERA ~... "f

IJ!...

)"~ Notary Public , State or Texas . ...,... . • -.._~;· .....·;." $ My Commrssron Expire s '•,,f,,~:.:~··'' May 05, 2019

Affidav it of Dale H. H enley Page 2 of2

EXHIBIT 4

CAUSE NO: 82395

RALEY BROWN § IN THE DISTRICT COURT §

Plaintiff, § §

v. § § OF LAMAR COUNTY, TEXAS RK HAI.L CONSTRU CTION, LTD., § STACY LYON d/b/a LYON § BARRICA DE & CONSTRU CTION, and § TEXASDE PARTMffi NTOF § TRANSPO RTATION § Defendants . § 62"' JUDICIAL DISTRICT

AFFJJ)AVIT OF HAUW BROWN

l. "My name is Haley Brovm. I am the Plaintiff in this case, I am over the age of 21, and am of sound mind and fully competent to testifY to the matters set forth herein. The facts contained in this Affidavit are true and correct. I have personal knowledge of the facts stated herein."

2. I did not receive notice of the order granting Defendant RK Hall Construction , Ltd.'s Motion for Traditional Summary Judgment, Defendant RK Hall Construction , Ltd.'s Amended Motion for No Evidence Summary Judgment, and Defendant Stacy Lyon d/b/a Lyon Barricade & Constructio n's Amended Traditional and No Evidence Motion for Summary Judgment until September 9, 2015, 13 days after the Order was signed by the Court.

Subscribed to and sworn to before me on this certifY which witness my hand and official seal.

J..$ da:y of ::S -e QX£ XV\ID. 2015, to

Notary Public in and for

The State of Texas

My Commissio n Expires:

~".,.~)'ft'''+, ALEXANDRA C. HALEY ; .,.

~~~~\ Notary Publi~, s_tote of .Texos i ~

;.;;,:.pif...._!~j My CommiSSIOn Exp1res ! 1j ~~~·u;"$$ June 25, 2017 ~ ..

Affidavit of Haley Brown '"m''' __j.J Page 1 oO