ACCEPTED
06-15-00072-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/5/2015 3:15:41 PM
DEBBIE AUTREY
CLERK
No. 06-15-00072-CV
IN THE SIXTH DISTRICT COURT OF APPEALS FILED IN
AT TEXARKANA, TEXAS 6th COURT OF APPEALS
TEXARKANA, TEXAS
HALEY BROWN, 10/5/2015 3:15:41 PM
Petitioner/Appellant,DEBBIE AUTREY
Clerk
v.
R.K. HALL CONSTRUCTION, LTD.,
RKH CAPITAL, LLC AND STACY LYON D/B/A
LYON BARRICADE & CONSTRUCTION.
Respondents/Appellees.
Appealed from the 62nd Judicial District Court,
Lamar County, Texas,
The Honorable Will Biard, Presiding
APPELLEES/RESPONDENTS’ RESPONSE TO
PETITION FOR INTERLOCUTORY APPEAL
Greg K. Winslett (Lead Counsel) Brett L. Myers (Lead Counsel)
Texas State Bar No. 21781900 State Bar No. 00788101
W. Edward Carlton Blair M. Partlow
Texas State Bar No. 03820050 State Bar No. 24013299
Marcie L. Schout FOX ROTHSCHILD, LLP
Texas State Bar No. 24027960 Two Lincoln Tower
QUILLING, SELANDER, LOWNDS, 5420 LBJ Freeway, Suite 1200
WINSLETT & MOSER, P.C. Dallas, Texas 75240
2001 Bryan Street, Suite 1800 (972) 991-0889 (Telephone)
Dallas, Texas 75201 (972) 404-0516 (Facsimile)
(214) 871-2100 (Telephone) ATTORNEYS FOR
(214) 871-2111 (Facsimile) RESPONDENTS/APPELLEES
gwinslett@qslwm.com R.K. HALL CONSTRUCTION,
ecarlton@qslwm.com LTD. AND RKH CAPITAL, LLC
mschout@qslwm.com
ATTORNEYS FOR
RESPONDENT/APPELLEE,
STACY LYON D/B/A LYON
BARRICADE & CONSTRUCTION
IDENTITY OF PARTIES AND COUNSEL
Petitioner/Appellant: Petitioner/Appellant’s Counsel:
Haley Brown Kevin W. Vice
Dale H. Henley
Mayo, Mendolia &Vice
5368 State Hwy. 276 West
Royse City, Texas 75189
Fax: 469-402-0461
Respondents/Appellees: Respondents’/Appellees’ Counsel:
R.K. Hall Construction, Ltd. Brett L. Myers
RKH Capital LLC Blair M. Partlow
Fox Rothschild, LLP
Two Lincoln Tower
5420 LBJ Freeway, Suite 1200
Dallas, Texas 75240
Fax: 972-404-0516
Stacy Lyon d/b/a Greg K. Winslett
Lyon Barricade & Construction W. Edward Carlton
Marcie L. Schout
Quilling, Selander, Lownds,
Winslett & Moser, P.C.
2001 Bryan Street, Suite 1800
Dallas, Texas 75201
Fax: 214-871-2111
i
TABLE OF CONTENTS
Page
Identity of Parties and Counsel ...................................................................................i
Table of Contents ...................................................................................................... ii
Index of Authorities ................................................................................................. iii
Issues Presented for Review .....................................................................................iv
Statement of Facts ......................................................................................................1
Argument and Authorities..........................................................................................2
I. The petition for interlocutory appeal has been rendered moot because
a final judgment has been entered as to RK Hall and Lyon. ........................... 2
II. The requirements of Texas Rule of Civil Procedure 168 and Texas
Rule of Appellate Procedure 28.3 have not been met and accordingly
an interlocutory appeal is not permitted. ......................................................... 3
III. Even if the requirements of Rule 168 and Rule 28 had been met, an
interlocutory appeal is not proper because the summary judgment is
not limited to a controlling issue of law and an interlocutory appeal
will not advance the ultimate termination of the litigation. ............................ 5
Prayer .........................................................................................................................6
ii
INDEX OF AUTHORITIES
Page
CASES
Heinrich v. Strasburger & Price, L.L.P.,
01-15-00473-CV, 2015 WL 5626507 (Tex. App.—Houston [1st
Dist.] Sept. 24, 2015, no. pet. h.) .....................................................................4
Hernandez v. Ebrom,
289 S.W.3d 316 (Tex. 2009) ...........................................................................3
In re Estate of Fisher,
421 S.W.3d 682 (Tex. App.—Texarkana 2014, no pet.) ....................... 3, 5, 6
Long v. State,
03-12-00437-CV, 2012 WL 3055510 (Tex. App.—Austin July
25, 2012, no pet.) .............................................................................................4
Richardson v. Kays,
No. 02–03–241–CV, 2003 WL 22457054 (Tex. App.—Fort
Worth Oct. 30, 2003, no pet.) ..........................................................................5
RULES
TEX. R. APP. P. 28.3(e)(4) ................................................................................. 3, 4, 5
TEX. R. CIV. P. 168 ............................................................................................ 3, 4, 5
iii
ISSUES PRESENTED FOR REVIEW
1. Has the request for an interlocutory appeal been rendered moot by the
trial court’s granting of a severance, which permitted the summary
judgment in favor of the defendants to become a final judgment which
is subject to traditional appeal?
2. Should the petition for interlocutory appeal be denied where the
underlying order does not comply with the requirements of Texas
Rule of Civil Procedure 168 and the petition does not comply with the
requirements of Texas Rule of Appellate Procedure 28?
3. Should the petition for interlocutory appeal be denied where it will not
materially advance the ultimate termination of the litigation and will
not result in judicial efficiency where interlocutory appeal will not
allow consideration of all summary judgment grounds presented to the
trial court?
iv
STATEMENT OF FACTS
The Texas Department of Transportation (“TxDOT”) entered into a contract
with RK Hall Construction, Ltd. (“RK Hall”) for repair and construction on a
portion of US Highway 82 located in Lamar County, Texas. RK Hall entered into a
subcontract with Stacy Lyon d/b/a Lyon Barricade & Construction (“Lyon”)
whereby Lyon would supply certain traffic control devices in accordance with the
traffic control plan designed by TxDOT for this project.
On March 16, 2012, Haley Brown (“Brown”) had an accident while driving
a vehicle through the project’s construction zone. Brown filed suit against TxDOT,
RK Hall and Lyon asserting premises liability and negligence theories.
Both RK Hall and Lyon filed motions for summary judgment arguing
(1) Brown’s claims were barred because they had immunity under section 97.002
of the Texas Civil Practice and Remedies Code, (2) Brown had no evidence of an
unreasonable risk of harm, and (3) Brown had no evidence that they had actual
knowledge of an unreasonable risk of harm. In addition, RK Hall argued it was
entitled to summary judgment because (1) there was a lack of proximate cause, and
(2) there was no evidence Brown was a licensee.
Following a hearing on the motions for summary judgment, the trial court
indicated in an email that it was granting both the traditional and no evidence
motions for summary judgment and further indicated that it would grant Brown the
1
ability to pursue an interlocutory appeal of these rulings. On August 27, 2015, the
trial court entered an order consistent with this email, entering a take nothing
judgment on the claims asserted against RK Hall and Lyon. The order did not
constitute a final judgment because Brown’s claims against TxDOT remained
pending.
On September 14, 2015, RKH and Lyon filed a motion for severance,
seeking to have the claims against them severed so that the take nothing judgment
as to the claims against them could become final.
On September 17, 2015, the trial court held a hearing on a motion for
summary judgment filed by TxDOT. The trial court determined that fact issues
remained as to the claims against TxDOT and denied the motion for summary
judgment. However, the trial court also granted the motion to sever filed by RK
Hall and Lyon and severed all claims asserted by Brown against them into a new
cause number such that the judgment as to them is final.
ARGUMENT AND AUTHORITIES
I. The petition for interlocutory appeal has been rendered moot because a
final judgment has been entered as to RK Hall and Lyon.
There is no reason for this Court to grant a petition for interlocutory appeal
where the trial court has entered a final judgment as to the claims against RK Hall
and Lyon and this matter is ripe for a traditional appeal. On September 17, 2015,
the trial court severed all claims against RK Hall and Lyon into a separate suit. As
2
a result, the summary judgment granted to RK Hall and Lyon is a final judgment.
Because there is a final judgment, Brown is free to file a notice of appeal under
Texas Rule of Appellate Procedure 25.1.
Nothing about requiring a traditional appeal will limit the arguments Brown
can make on appeal. The failure to pursue a permissible interlocutory appeal does
not prevent a party from raising in a traditional appeal following final judgment the
issue that could have been raised in an interlocutory appeal. Hernandez v. Ebrom,
289 S.W.3d 316, 319 (Tex. 2009). Accordingly, even if Brown had not filed a
petition for interlocutory appeal, she would have been permitted to attack all
grounds which could potentially support the summary judgment, even those that
could have been considered in an interlocutory appeal. Because a traditional
appeal is available to Brown, and there is no prejudice in requiring her to pursue a
traditional appeal instead of an interlocutory appeal, Brown’s petition for
interlocutory appeal is moot and should be denied.
II. The requirements of Texas Rule of Civil Procedure 168 and Texas Rule
of Appellate Procedure 28.3 have not been met and accordingly an
interlocutory appeal is not permitted.
Statutes permitting interlocutory appeal are strictly construed. In re Estate of
Fisher, 421 S.W.3d 682, 685 (Tex. App.—Texarkana 2014, no pet.). Where the
order permitting an interlocutory appeal under section 51.014(d) does not comply
with the requirements of Texas Rule of Civil Procedure 168, the appellate Court
3
lacks jurisdiction to consider the petition for interlocutory appeal. Heinrich v.
Strasburger & Price, L.L.P., 01-15-00473-CV, 2015 WL 5626507, at *1 (Tex.
App.—Houston [1st Dist.] Sept. 24, 2015, no. pet. h.).
Rule 168 requires that the order granting permission to seek an interlocutory
appeal “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. Where an order merely grants permission to seek an interlocutory
appeal, without specifying the controlling question of law at issue, the petition for
interlocutory appeal should be denied. Long v. State, 03-12-00437-CV, 2012 WL
3055510, at *2 (Tex. App.—Austin July 25, 2012, no pet.). Here, the order
permitting the interlocutory appeal does not satisfy either condition of Rule 168, 1
and accordingly, the Court does not have jurisdiction to grant the petition for
interlocutory appeal.
In addition, the Texas Rules of Appellate Procedure require the petition for
permissive appeal to “argue clearly and concisely why the order to be appealed
involved a controlling question of law as to which there is a substantial ground for
difference of opinion.” TEX. R. APP. P. 28.3(e)(4). Applications for permissive
1
At a hearing on October 2, 2015, the trial court denied a motion seeking to modify the
August 27, 2015 summary judgment order, stating that there was a final judgment, Brown
can appeal, and the trial court saw no reason to modify the summary judgment order.
4
appeal have been denied where the application did “not mention, discuss, or
analyze why the issue ... involves a controlling question of law as to which there is
a substantial ground for difference of opinion.” Richardson v. Kays, No. 02–03–
241–CV, 2003 WL 22457054, at *2 (Tex. App.—Fort Worth Oct. 30, 2003, no
pet.); see also In re Estate of Fisher, 421 S.W.3d 682, 685 (Tex. App.—Texarkana
2014, no pet.). Because Brown has not met the standard of Rule 28.3(e)(4), the
application for permissive appeal should be denied.
III. Even if the requirements of Rule 168 and Rule 28 had been met, an
interlocutory appeal is not proper because the summary judgment is not
limited to a controlling issue of law and an interlocutory appeal will not
advance the ultimate termination of the litigation.
This Court has noted that the interlocutory appeal allowed under section
51.014(d) exists to promote judicial efficiency. In re Estate of Fisher, 421 S.W.3d
682, 685 (Tex. App.—Texarkana 2014, no pet.). Here, that goal of judicial
efficiency is better served by denying the interlocutory appeal and permitting a
traditional appeal from the now final judgment.
The summary judgment was premised in part on a controlling question of
law pertaining to the application of the immunity provisions contained in section
97.002 of the Texas Civil Practice and Remedies Code. However, the summary
judgment motions also raised no evidence and traditional summary judgment
grounds based on the lack of evidence regarding certain elements of Brown’s
causes of action. These additional grounds could not be considered in the context
5
of an interlocutory appeal because a finding based on a no evidence point involves
a controlling fact issue, not a controlling question of law. Fisher, 421 S.W.3d at
685. For example, in Fisher, this Court denied a petition for interlocutory appeal
where the trial court’s ruling involved a finding that there was no evidence of
undue influence at the time of the execution of a will. Id.
If an interlocutory appeal were permitted here, only one of the multiple
summary judgment grounds could be considered. If the Court were to find that
ground did not support the summary judgment, that would not result in the
termination of this litigation because a traditional appeal would then be required to
consider the other summary judgment grounds. Such an approach, especially
where a final judgment has been entered by the trial court as to the claims against
RK Hall and Lyon, would not lead to judicial efficiency. Instead, it would result in
the duplication of appeals. The better approach is to deny the petition for
interlocutory appeal and permit the traditional appeal from the final judgment to
proceed.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Respondents/Appellees RK
Hall Construction, Ltd. and Stacy Lyon d/b/a Lyon Barricade & Construction pray
that the petition for interlocutory appeal be denied.
6
Respectfully submitted,
/s/ Brett L. Myers
Brett L. Myers (Lead counsel)
State Bar No. 00788101
Blair M. Partlow
State Bar No. 24013299
FOX ROTHSCHILD, LLP
Two Lincoln Tower
5420 LBJ Freeway, Suite 1200
Dallas, Texas 75240
(972) 991-0889 (Telephone)
(972) 404-0516 (Facsimile)
ATTORNEYS FOR
RESPONDENTS/ APPELLEES
R.K. HALL CONSTRUCTION, LTD.
/s/ Greg K. Winslett
Greg K. Winslett (Lead Counsel)
Texas State Bar No. 21781900
W. Edward Carlton
Texas State Bar No. 03820050
Marcie L. Schout
Texas State Bar No. 24027960
QUILLING, SELANDER, LOWNDS,
WINSLETT & MOSER, P.C.
2001 Bryan Street, Suite 1800
Dallas, Texas 75201
(214) 871-2100 (Telephone)
(214) 871-2111 (Facsimile)
gwinslett@qslwm.com
ecarlton@qslwm.com
mschout@qslwm.com
ATTORNEYS FOR
RESPONDENT/APPELLEE, STACY
LYON D/B/A LYON BARRICADE &
CONSTRUCTION
7
CERTIFICATE OF SERVICE
On October 5, 2015, I served a copy of the foregoing pleading by electronic
service, upon the following:
Kevin W. Vice Brett L. Myers
Dale H. Henley Blair Partlow
Mayo, Mendolia &Vice Fox Rothschild, LLP
5368 State Hwy. 276 West Two Lincoln Tower
Royse City, Texas 75189 5420 LBJ Freeway, Suite 1200
kvice@mmvllp.com Dallas, Texas 75240
dhenley@mmvllp.com bmyers@foxrothschild.com
bpartlow@foxrothschild.com
/s/ Greg K. Winslett
Greg K. Winslett / W. Edward Carlton
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft
Word and contains 1,467 words, as determined by the computer software’s word-
count function.
/s/ Greg K. Winslett
Greg K. Winslett
8