Texas Department of Transportation v. Haley Brown

ACCEPTED
06-15-00090-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/18/2015 4:26:55 PM
DEBBIE AUTREY
CLERK

No. 06-15-00090-CV FILED IN
___________________________________________________
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE SIXTH COURT OF APPEALS 12/18/2015 4:26:55 PM
AT TEXARKANA, TEXAS DEBBIE AUTREY
Clerk
___________________________________________________

TEXAS DEPARTMENT OF TRANSPORTATION,
Appellant

v.

HALEY BROWN,
Appellee

___________________________________________________

UNOPPOSED MOTION FOR EXTENSION OF
TIME TO FILE APPELLEE’S BRIEF
___________________________________________________

TO THE HONORABLE COURT OF APPEALS:

Comes now, Haley Brown, the Appellee in the above case and file this Unopposed

Motion to Extend Time to File Response to Appellant’s Brief, and shows as follows:

BACKGROUND

1. This is an appeal in a civil case, wherein Defendant / Appellant Texas

Department of Transportation is appealing the Court’s Order Denying Texas Department of

Transportation’s Motion to Dismiss for Lack of Jurisdiction and No Evidence Motion for

Summary Judgment (the “Appealed Order”). The Appealed Order was signed on September

23, 2015 by the Hon. Will Biard, presiding over the 62nd Judicial District Court of Lamar

UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE APPELLEE’S BRIEF PAGE 1
County, Texas, in Cause No. 82395, styled Haley Brown v. RK Hall Construction, Ltd., Stacy

Lyon, d/b/a Lyon Barricade & Construction, and Texas Department of Transportation. The

Trial Court later signed an order severing case number 82395, thereby placing all defendants

other than the Texas Department of Transportation into trial court cause number 84841;

which is being separately appealed to this Court as Case No. 06-15-00099-CV.

MOTION FOR EXTENSION OF TIME TO FILE APPELLEE’S BRIEF

2. In the instant case, Defendant / Appellant Texas Department of Transportation

filed its Notice of Interlocutory Appeal on October 20, 2015. The Clerk’s Record was filed

in this case on October 23, 2015. The Reporter’s Record was filed in this case on October

27, 2015.

3. Appellant’s Brief was initially due in this appeal on November 16, 2015.

After this Court granted Appellant’s Unopposed Motion for Extension of Time to File

Appellant’s Brief, Appellant filed its brief on December 4, 2015.

4. Accordingly, Appellee’s Brief in this appeal is currently due to be filed on

December 24, 2015.

5. Appellee requests an extension of time to file Appellee’s Brief until Tuesday,

January 23, 2016, which is thirty (30) days after the current due date of December 24, 2015.

6. This is Appellee’s first request for extension of time to file Appellee’s Brief

in this appeal.

UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE APPELLEE’S BRIEF PAGE 2
 7. Good cause exists for this request for extension of time. The deadline to file

Appellee’s Brief is currently the day before Christmas. With the holidays, Appellee’s

counsel’s trial docket, and another appeal in which Appellee and Appellee’s counsel are

involved arising from the same trial court proceeding below, there is not adequate time to

complete Appellee’s Brief by the current due date.

8. Specifically, at the trial court level, prior to denying Appellant’s motion for

summary judgment which is the subject of this appeal, the trial court granted motions for

summary judgment filed by Appellant’s co-defendants, R.K. Hall Construction, Ltd., R.K.H.

Capital, LLC and Stacy Lyon d/b/a Lyon’s Barricade & Construction. The claims against

R.K. Hall and Lyon’s Barricade were severed, and the severed cause is now on appeal in this

Court in Appeal No. 06-15-00099-CV, styled Haley Brown, Appellant v. R.K. Hall

Construction, Ltd., R.K.H. Capital, LLC and Stacy Lyon d/b/a Lyon’s Barricade &

Construction. Appellee in this appeal (who is also the Appellant in Appeal Case No. 06-15-

00099-CV) has just requested the clerk’s and court reporter’s records from the severed cause,

and appellant’s briefing therein will have to commence. Thus, in addition to his normal trial

docket, Appellee’s counsel will be preparing appellant’s brief and other necessary documents

in the related appeal. Given that the Christmas holidays falls square in the middle of all of

this appellate activity, Appellee’s counsel will be disadvantaged in this appeal unless the

extension requested herein is granted.

UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE APPELLEE’S BRIEF PAGE 3
 9. Moreover, the extension sought herein will not materially delay the disposition

of the case. Although this appeal is on an accelerated schedule due to the fact it is an

interlocutory appeal, delay in the finality of this appeal will not delay the underlying trial of

this matter. As noted above, there is another appeal pending in this Court arising from the

same suit filed below. Until Appeal No. 06-15-00099-CV is fully decided, the trial court

cannot proceed to trial in the suit below, as the trial judge desires to have a single trial from

the one set of facts giving rise to the underlying suit. Thus, delaying this interlocutory,

accelerated appeal will not delay the trial in the underlying suit.

10. This Motion is unopposed. Counsel for Appellee has conferred by phone with

counsel for Appellant, and all counsel agreed that the extension of time requested herein will

not delay the trial in the trial court below, and thus, this motion is not opposed.

Wherefore, premises considered, Appellee respectfully requests that the Court extend

the time for filing Appellee’s Brief to January 23, 2016.

UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE APPELLEE’S BRIEF PAGE 4
 Respectfully submitted:

By:
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
(469) 402-0450
(469) 402-0461 (Facsimile)

Attorneys for Appellee

Certificate of Conference

I hereby certify that I conferred with counsel for the Appellant –Texas Department of
Transportation about this requested extension of time. The Appellant does not oppose the
extension. Therefore, this motion is submitted as “unopposed”.

KEVIN W. VICE

UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE APPELLEE’S BRIEF PAGE 5
 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 December, 2015:

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

KEVIN W. VICE

UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE APPELLEE’S BRIEF PAGE 6