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 TEXASDEBBIE AUTREY Clerk
HALEY BROW N P ETITIONER/APPELLANT, v. R.K HALL CONSTRUCTION, LTD., RKH CAPITAL, LLC, and STACY LYON DIBIA LYON BARRICADE & CONSTR UCTION RESPONDENTS/ APPELLEES
Arising from an interlocutory Order signed on August 27, 2015, in Brown v. R .K. Hall Canst. Ltd., et al., Cause No. 82395in the 62nd Judicial District Court of Lamar County, Texas Hon Will Biard, Presiding
PETITION FOR INTERLOCUTORY APPEAL
.KEVJN W. VICE State Bar No. 00785150 K vice@mmvllp.com DALE H. HENLEY State Bar No. 24048148 Dhenley@mmvllp.com BRIAN L. B ENITEZ State Bar No. 24082679 Bbenitez@mmvllp .com 5368 State Hwy. 276 Royse City, Texas 75 189 (469) 402-0450 (469) 402-0461 (Facsimile) A ITORNEY S FOR PETITION ER/APPELLANT IDENT ITY OF PARTIES AND COUN SEL
Judge Presiding at time of Ron. Will Biard Interlocutory Order 119 North Main Paris, Texas, 75460
Plainti ff/Petitioner/Appellant Kevin W. Vice Haley Brown ' s Trial Counsel State Bar No. 007851 50 Mayo, Mendo lia & Vice 5368 State Hwy. 276 West Royse City, Texas 75189 kvice@ mmvll p.com
Dale H. Henley State Bar No. 24048148 Mayo, Mendo lia & Vice 5368 State Hwy. 276 West Royse City, Texas 75189 dhenley@mmvllp.com
Plaintiff/Petitioner/Appell ant's Kevin W. Vice Haley Brown 's Counse l on Dale H. Henley Interlocutory Appea l Brian L. Benitez State Bar No. 24082679 Mayo, Mendolia & Vice 5368 State Hwy. 276 West bbenitez@mmvllp.co m
Defendant/Re sponde nt/ Appellee Blair Partlow R.K. Hall Constr uction, Ltd' s, and Fox Rothschild, LLP RKH Capital, LLC's Counsel at Two Lincol n Tower Trial and on Appeal 5420 LBJ Freeway, Suite 1200 Dallas, TX 75240 bpartlow@foxrothschild.com
PETITIO N FOR INTERL OCUTO RY APPEAL 11 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.co m
PETITION FOR INTERLOC UTORY APPEAL lll TABL E OF CONT ENTS
IDENT ITY OF PARTI ES AND COUN SEL .... . . . . . ...... ... ...... .... . ii
TABL E OF CONT ENTS ...... .. .. .. . ...... . .... .... ... .. . ...... ... tv
INDEX OF AUTH ORITI ES . . . . .. .. ...... ...... . . .... . ..... . ... . . . . . v
ISSUE S PRESE NTED . . ... . ..... . . ... .. .... ... .... .. . . .. ...... .. .. vi
STATE MENT OF FACTS ...... ...... . . ...... ...... .. ... . .. . ...... . vii
PETIT ION FOR INTER LOCU TORY APPEA L ...... . ...... . .. ...... . . . xii
ADVIS ORY NOTE TO THE COUR T ...... .... .. ...... . . .. .. . . . .. . . 1
PETIT ION FOR INTER LOCU TORY APPEA L ..... .. ... ..... .. ... .... 1
CERTI FICAT E OF SERVI CE .. ..... ...... ... . . ...... ... ...... ...... . 4
VERIF IED MOTIO N ...... ...... ...... ...... .. .. . . ..... . . .. . ... .... 6
CERTI FICAT ES OF COMP LIANC E AND CONF ERENC E ...... . ... . .... . 7
PETITIO N FOR INTERL OCUTO RY APPEAL lV INDEX OF AUTHORITIES
RULES
Tex. R. App. P. Ann. 10.1(a)(2) ....... ....... ....... ....... ....... ... vn
Tex. R. App. P. Ann. 10.1(a)(3) ....... ....... ... . ....... ... .. ..... . .. vn
Tex. R. App. P. Ann. 10.5(b)(l)(A) ....... ....... ....... ....... ... . ... vu
Tex. R. App. P. Ann. 10.5(b)(l)(B) ....... ....... ..... ... .. .. . .. .... . . vn
Tex. R. App. P. Ann. 10.5(b)(l)(C) .. .... .. ... .. .. .... ... ....... ...... vu
Tex. R. App. P. Ann. 10.5(b)(l)(D) ....... ....... .... . ...... . ....... .. vn
Tex. R. Civ. P. 168 (West2015) . . ....... ....... . ...... .. . .... viii; ix; 2; 4
Tex. R. Civ. P. 306a (West2015) ....... .. . . ....... ... . .... . ....... .... x
PETITION FOR INTERLO CUTORY APPEAL v ISSUES PRESENTED
Whether Petitio ner's interests in this matter will be irrepar ably prejudiced ifshe
is not granted an interlocutory appeal , or other substantial relief from the Trial's
Court' s interlocutory Order granting summary judgm ent in favor of Respondents,
when: (1) the Trial Court's Order sought to grant Petitio ner the right to seek
interlocutory appeal; but (2) that Order did not conform to Rule of Civil Procedure
168 because it omitted reference to the controlling question of law as to which there
is a substantial ground for difference of opinion.
PETITIO N FOR INTERL OCUTO RY APPEAL Vl STATE MENT OF FACTS
This Petition for Interlocutory 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. RKHall Construction, LTD, Stacy Lyon dlblaLy onBarri cade
& Construction, & Texas Department ofTransportation, Honora ble Judge Will Biard
presiding.
Petition er's Applica tion for Interlocutory Appeal would have been due on
September 11, 2015, had the Trial Court's Order contained all the information
required by Texas Rule of Civil Procedure 168, as shall be discusse d below. Tex. R.
App. P. Ann. 10.5(b)( l)(A) (West 2015). Petitioner seeks an addition al30 days in
which to perfect her interlocutory appeal; such date to be measure d as 3 0 days from
the date Court signs the Order granting the instant Motion. ld., 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 through out Section (I)
herein. !d. , at (b )(1 )(C); !d., at 10.1 (a)(2) No previous extensio ns of time have been
granted in this matter. ld. , at (b)(1)(D).
The underly ing lawsuit was filed by Petitioner on March April18 , 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
PETITION FOR INTERLO CUTORY APPEAL Vll 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 Judgment 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 permission to file an
interlocutory appeal, via the following language:
"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 ... "
See Exhibit 1.
Thus, asset forth above, 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.
PETITION FOR INTERLOC UTORY APPEAL Vlll However, the Order did not specify 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 require d by Tex.R.Civ.P Ann.
168 (West 20 15). With the understanding that the Order did not comply with
Tex.R.Civ.P Ann. 168 (West 2015), on or about September 21, 2015, Petitioner filed
a Motion to Modify Judgment and Alternative Motion to Extend Time to File
Interlocutory Appeal in the trial court, wherein Petitioner reques ted that the trial court
modify the order to comply with Texas Rule of Civil Procedure 168, or alternatively,
to extend Petitioner' s deadline to file her Petition for Interlo cutory Appeal in this
Court. As of the date of the filing of this Motion, Petitioner's Motion to Modify and
Alternative Motion to Extend Time to File Interlocutory Appea l 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 Petitioner's counsel received
proper or timely notice of the Order entered by the trial court. The specific factual
and procedural backgr ound in this regard is as follows:
On Augus t 13 , 2015, the trial court heard argument on "Defen dant RK Hall
Construction, Ltd.'s Motion for Traditional Summary Judgment," "Defendant RK
Hall Construction, Ltd.'sAme ndedM otion for No Evidence Summary Judgment" and
PETITIO N FOR INTERL OCUTORY APPEAL lX "Defendant Stacy Lyon d/b/a Lyon Barricade & Constr uction' s Amend ed Traditional
and No Evidence Motion for Summary Judgment." Thereafter, on or about August
20, 2015, the trial court, via email, advised counsel for all parties that it would grant
Defend ants' motions, give Petitioner the right to an interlocutory appeal (although not
requested by Petitioner), and requested that Defendants/Re sponde nts' counsel submit
a propos ed order consistent with the Court's ruling.
Thereafter, on or about Augus t 24, 2015, Defendants/Respondents' Counsel
submitted a proposed order. The trial court evidently signed the order submitted by
Defendants/Respondents on August 27, 2015 , yet, as of this date, neither Petitioner
nor Petitio ner'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, Petitio ner's counsel received the Order for the first time via fax from
counsel for Respon dent Lyon Barrica de's counsel at 3:44p.m., on September 9, 2015
(13 Y2 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'
PETITIO N FOR INTERL OCUTO RY APPEAL X motion to sever further asked the trial court to sever the claims by and against
Defendants/Respondents, so that the summary judgm ent dispos ing oftheir claims will
become final. See Defendant RK Hall Construction, Ltd. and Defend ant Stacy Lyon
d/b/a Lyon Barricade & Construction's Joint Motion for Severance, attached hereto
as Exhibit 5.
Thereafter, as noted above, m light of comme nts made m Defendants/Respondents' Motion to Sever, and in an overabundance 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 has filed with this Court both her Motion to
Extend Time to File Petition for Interlocutory Appeal, and the instant Petition for
Interlocutory Appeal with this court; and, for same, would show this honorable Court
as follows.
PETITIO N FOR INTERL OCUTO RY APPEAL Xl HALE YBRO WN § Petitio ner/Appell ant, § § § V. § § RK HALL CONS TRUC TION, LTD. § RKH CAPIT AL, LLC, § STACY LYON d/b/a LYON § BARR ICADE & CONS TRUC TION § Respon dents/ Appell ees §
PETITI ON FOR INTERLOCUTORY APPEA L
Petitio ner/Appell ee, Haley Brown, Plainti ff in the trial court below, submits
and files this Motion to Extend Time to File Petitio n for Interlo cutory Appeal, from
an Order entered by the 62nd Judicial Distric t Court in Lamar County, Texas, on
Augus t 27,201 5. In this Motion , Movant and Petitio ner/Ap pellee Haley Brown will
be referred to as "Petiti oner," Respon dent/Appell ee R.K. Hall Constr uction, Ltd. will
be referred to as "Respo ndent RK Hall," Respon dent Stacy Lyon d/b/a Lyon
Barricade & Constr uction will be referred to as "Respo ndent Lyon Barrica de," and
Respon dents/ Appell ees collectively will be referre d as "Respo ndents " of
"Defen dants/R espond ents."
PETITIO N FOR INTERL OCUTO RY APPEAL Xll PETITION FOR INTERLOCUTORY APPE AL
ADVISORY NOTE TO THE COU RT
Petitioner would respectfully call the Court 's attent ion to the fact that this
Petitio n for Interlocutory Appeal is filed in Conjunction with, and subjec t to, Petitioner Haley Brow n's Motio n to Extend Time to File Petiti on for Interlo cutory Appeal filed with the Clerk ofthis Court contemporaneously with the instant Petitio n.
PETITION FOR INTERLOCUTORY APPE AL
This Petition for Interlocutory Appeal arises from an Order entered by the 62nd
Judicial District Court in Lama r County, Texas, on August 27, 2015 , in Cause No. 82395, Haley Brown v. R.K. Hall Construction, LTD., Stacy Lyon d/b/a Lyon Barricade & Construction, & Texas Department a/Transportation, Honorable Judge
Will Biard presiding.
The underlying lawsuit was filed by Petitioner on March April1 8, 2013, in the
62nd District. The lawsuit involves personal injuries sustained by Petitioner during
an accident that occurred on Highway 82 in Lama r County, Texas, on or about March
16, 2012, while Highw ay 82 was under construction. Petitioner drove unimp eded through a construction zone and collided with a shuttle buggy, causing serious bodily
mJury. In the suit, Petitioner made claims against the Texas Department of
Transportation, R.K. Hall Construction, Ltd., and Stacy Lyon d/b/a Lyon Barric ade
PETITION FOR INTERL OCUTO RY APPEAL Page 1 & Construction, alleging various theories ofliability surrou nding 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 Evide nce Motions for Summary Judgm ent ofR.K . Hall Construction, Ltd., and Stacy Lyon d/b/a Lyon Barric ade & Constructio n" (hereinafter referred to as the "Orde r"). A copy of the Order is attached hereto as Exhib it 1. In the Order, the trial court gave Petitioner permi ssion to file an
"IT IS FURT HER ORDERED, ADJU DGED AND DECR EED that Plaintiff, Haley Brown, is grante d permission to file a Petition for Interlocutory Appea l in the 61h Court of Appeals of this Court ' s granti ng of Defen dant's Motions ... "
This case canno t be materially advanced and ultimately terminated in keeping
with the requir ement s of Rule 168 and other controlling law unless this appea l is granted, and the matter remanded back to the trial court, because the Order does not specify the contro lling issue of law as to which there is a substantial differe nce of opinio n, and why an immediate appeal may materially advance the ultima te termination of the litigation, as required by T.R.C.P 168. Thus, as the Order curren tly stands, grants Petitio ner the right to seek a permissive appeal but it fails to compl y
PETITI ON FOR INTERL OCUTO RY APPEAL Page 2 with those preconditions necessary to cause that right to seek permissive appeal to arise. The Order, therefore, substantially prejudices Petiti oner's rights with regard to the matter at issue before the Trial Court, and this injust ice can only be correc ted by appeal and remand.
Therefore, with the understanding that the Order did not comply with T.R.C.P.
168, on or about September 21, 2015, Petitioner filed a Motio n to Modify Judgm ent in the trial court, wherein Petitioner requested that the trial court modify the order to comply with T.R.C .P 168. As ofthe date of the filing ofthis Petition, Petitio ner's Motion to Modify has not been heard by the trial court.
In an overabundance of caution, and in effort to preser ve her right to appeal ,
Petitioner hereby seeks permission from the Sixth Court of Appeals to appea l the interlocutory Order entered by the trial court on August 27, 2015. In the alterna tive, Petitioner prays this Court set aside the Trial Court 's August 27, 2015 Order and remand this matter back to the Trial Court for issuance of an Interlocutory Order granting the right to permissive appeal, which Order complies with Rule 168.
PETITION FOR INTERL OCUTO RY APPEAL Page 3 Respectfully submi tted:
MAY O MEN DOLI A & VICE , L.L.P.
By: /s/ Kevin W. Vice KEVIN W. VICE kv ice@mmvllp .com State Bar No. 00785 150 DALE H . H ENLEY dhen ley@mm v11p.com State Bar No. 24048 148 BRIAN L. B ENITE Z bbenitez@m mv lip. com State Bar No. 24082 679
5368 State Highway 276 Royse City, Texas 75189 (469) 402-0450 (469) 402-0461 (Facsimile)
ATTO RNEY FOR PETI TION ER HALE Y BROW N
CERT IFICA TE OF SERV ICE
I hereby certify that a true and correct copy of the foregoing document has been
forwarded to the following counsel of record, on this 251h day of Septe mber, 2015:
Blair Partlo w ViaE- File Service Fox Roths child, LLP 5420 LBJ Freew ay, Suite 1200 Dallas, Texas 75240
PETITI ON FOR INTER LOCUT ORY APPEAL Page 4 Ed Carlton Via E-File Service Quilling, Selander, Lownds, Winslett & Moser, P .C. 2001 Bryan St., Suite 1800 Dallas, Texas 75201
Garland Williams ViaE-File Service Transportation Division Office of the Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548
Is/ Kevin W. Vice KEVINW . VICE
PETITION FOR INTERLOC UTORY APPEAL Page 5 VERIF ICATI ON
STATE OF TEXAS § § COUN TY OF § ROCK WALL §
BEFOR E ME, the undersigned authority, on this day personally
appeared Brian L. Benite z, an attorney known personally to me, license d to practice
law in Texas, holding license numbe r 24082679. And, Brian L . Benite z, who, having
been by me first duly sworn, depose d and said that he has read the allegations in the
foregoing Petitio n for Interlocutory Appeal, that each and every fact and matter
therein stated, including those averred in any attached Certifi cate is within his
person al knowledge, and is true and correct.
B l<"---.!~
State Bar Numbe r 240826 79 Attorney at Law Mayo, Mendo lia & Vice, LLP ATTORNEYS FOR PETIT IONER
SUBSC RIBED AND SWOR N to before me, this, the 25 1h day of September,
2015 ~ (!-/~ ,,,~~~~~~'"' ALEXANDRA C. HALEY !f;:-:.:.s;~;--'§. Notary Public. State of Texas ~~:}~.~·~i My Commissi on Expires Notary Public in and for "''i'~'oi \'-~~ June 25, 2017 :~,/""''''' The State ofTexa s PETITIO N FOR INTERL OCUTO RY APPEAL Page 6 CERTIFICATE OF COM PLIA NCE
Petitioner's Motion for Extension of Time to File Petiti on for Interl ocutory Appeal contains 2635 words, and, as such, complies with Texa s Rule of Appellate Procedure 9.4(i)(2)(D) (word count determined by the comp uter program (WordPerfect x5) used to create said Motion).
CERTIFICATE OF CON FERE NCE
Counsel for Petitioner has made a reasonable attempt to confer about the instant Motion with counsel for Respondents. Although no accor d has been reached, on information and belief, this Motion is Opposed by Respondents.
PETIT lON FOR INTER LOCU TORY APPEAL Page 7 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~ ~,:. (..')~ l.:>o • i
·-· ;··: c:: ' 1 "" m ·' -.. /o •£ . ' _.., r' . .) -·~ ...,.... ' ~ 1/~:; S'? _, ;.: (J"J
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/\? I D day of_~ """"""f---'-.....:.._M _~. : : .( :. ._ _, 2015, to certify which witness my hand and official seal.
My Commission Expire s:
~,~S~t~~~,,_ JESSICA T. lOERA t~~~~t>% Notary PubliC. State ol l exos i ..; ~·~\""'~·= ....~J.'' i;~i$.;> My Commis sion Exp1res · 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:
,,,,..~"''''~ /~'~~~· :,~~~~ 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 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 ; .,. ~~~~\ 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 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
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."
Subscribed to and sworn to before me on this ltl\ay of certify which witness my hand and official seal. ¥~ ,2015, to
,,,,..~"''''~ /~'~~~· :,~~~~ 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
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
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