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

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
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.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~ ~,:.
(..')~ l.:>o
• i

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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/\?
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

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