                                                                                    ACCEPTED
                                                                                06-15-00072-CV
                                                                     SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                           10/6/2015 2:07:01 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,              10/6/2015 2:07:01 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’ AMENDED 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 .........................................................................................................................7




                                                               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, 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. A true and correct

copy of the August 27, 2015 order is attached hereto as Exhibit A. 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. A true and correct copy

of the September 17, 2015 severance order is attached hereto as Exhibit B.


                      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

                                         2
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

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



                                          3
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

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


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
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

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


                                         5
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

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.




                                          6
                                      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.




                                          7
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


  8
                        CERTIFICATE OF SERVICE
      On October 6, 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 1,501 words, as determined by the computer software’s word-
count function.

                                                /s/ Greg K. Winslett
                                     Greg K. Winslett




                                       9
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