                                                                                            ACCEPTED
                                                                                        06-15-00072-CV
                                                                             SIXTH COURT OF APPEALS
                                                                                   TEXARKANA, TEXAS
                                                                                   9/25/2015 8:26:48 PM
                                                                                       DEBBIE AUTREY
                                                                                                 CLERK



                               06-15-00072-CV
                                                                      FILED IN
                                                               6th COURT OF APPEALS
                                                                 TEXARKANA, TEXAS
                                                               9/25/2015 8:26:48 PM
             IN THE SIXTH COURT OF APPEALS OF                 TEXASDEBBIE AUTREY
                                                                       Clerk


                               HALEY BROW N
                            P ETITIONER/APPELLANT,
                                       v.
      R.K HALL CONSTRUCTION, LTD., RKH CAPITAL, LLC, and STACY LYON
                  DIBIA LYON BARRICADE & CONSTR UCTION
                          RESPONDENTS/ APPELLEES



Arising from an interlocutory Order signed on August 27, 2015, in Brown v. R .K.
  Hall Canst. Ltd., et al., Cause No. 82395in the 62nd Judicial District Court of
                               Lamar County, Texas
                             Hon Will Biard, Presiding


               PETITION FOR INTERLOCUTORY APPEAL


                                         .KEVJN W. VICE
                                         State Bar No. 00785150
                                         K vice@mmvllp.com
                                         DALE H. HENLEY
                                         State Bar No. 24048148
                                         Dhenley@mmvllp.com
                                         BRIAN L. B ENITEZ
                                         State Bar No. 24082679
                                         Bbenitez@mmvllp .com
                                         5368 State Hwy. 276
                                         Royse City, Texas 75 189
                                         (469) 402-0450
                                         (469) 402-0461 (Facsimile)
                                         A ITORNEY S FOR PETITION ER/APPELLANT
                    IDENT ITY OF PARTIES AND COUN SEL

 Judge Presiding at time of            Ron. Will Biard
 Interlocutory Order                   119 North Main
                                       Paris, Texas, 75460

Plainti ff/Petitioner/Appellant        Kevin W. Vice
Haley Brown ' s Trial Counsel          State Bar No. 007851 50
                                       Mayo, Mendo lia & Vice
                                       5368 State Hwy. 276 West
                                       Royse City, Texas 75189
                                       kvice@ mmvll p.com

                                       Dale H. Henley
                                       State Bar No. 24048148
                                       Mayo, Mendo lia & Vice
                                       5368 State Hwy. 276 West
                                       Royse City, Texas 75189
                                       dhenley@mmvllp.com

Plaintiff/Petitioner/Appell ant's      Kevin W. Vice
Haley Brown 's Counse l on             Dale H. Henley
Interlocutory Appea l                  Brian L. Benitez
                                       State Bar No. 24082679
                                       Mayo, Mendolia & Vice
                                       5368 State Hwy. 276 West
                                       bbenitez@mmvllp.co m

Defendant/Re sponde nt/ Appellee       Blair Partlow
R.K. Hall Constr uction, Ltd' s, and   Fox Rothschild, LLP
RKH Capital, LLC's Counsel at          Two Lincol n Tower
Trial and on Appeal                    5420 LBJ Freeway, Suite 1200
                                       Dallas, TX 75240
                                       bpartlow@foxrothschild.com




PETITIO N FOR INTERL OCUTO RY APPEAL
                                                                      11
Defendant/Respondent/Appellee        Greg K. Winslett
Stacy Lyon d/b/a Lyon Barricade &    Quilling, Selander, Lownds, Winslett
Construction's Counsel at Trial       & Moser, P.C.
and on Appeal                        2001 Bryan St. , Suite 1800
                                     Dallas, Texas 75201
                                     gwinslett@ gslwm.co m




PETITION FOR INTERLOC UTORY APPEAL                                     lll
                            TABL E OF CONT ENTS

IDENT ITY OF PARTI ES AND COUN SEL .... . . . . . ...... ... ...... .... . ii

TABL E OF CONT ENTS ...... .. .. .. . ...... . .... .... ... .. . ...... ... tv

INDEX OF AUTH ORITI ES         . . . . .. .. ...... ...... . . .... . ..... . ... . . . . . v

ISSUE S PRESE NTED . . ... . ..... . . ... .. .... ... .... .. . . .. ...... .. .. vi

STATE MENT OF FACTS ...... ...... . . ...... ...... .. ... . .. . ...... . vii

PETIT ION FOR INTER LOCU TORY APPEA L ...... . ...... . .. ...... . . . xii

   ADVIS ORY NOTE TO THE COUR T ...... .... .. ...... . . .. .. . . . .. . . 1

   PETIT ION FOR INTER LOCU TORY APPEA L ..... .. ... ..... .. ... .... 1

CERTI FICAT E OF SERVI CE .. ..... ...... ... . . ...... ... ...... ...... . 4

VERIF IED MOTIO N ...... ...... ...... ...... .. .. . . ..... . . .. . ... .... 6

CERTI FICAT ES OF COMP LIANC E AND CONF ERENC E ...... . ... . .... . 7




PETITIO N FOR INTERL OCUTO RY APPEAL
                                                                                          lV
                           INDEX OF AUTHORITIES

                                     RULES

Tex. R. App. P. Ann. 10.1(a)(2) ....... ....... ....... ....... ....... ... vn

Tex. R. App. P. Ann. 10.1(a)(3) ....... ....... ... . ....... ... .. ..... . .. vn

Tex. R. App. P. Ann. 10.5(b)(l)(A) ....... ....... ....... ....... ... . ... vu

Tex. R. App. P. Ann. 10.5(b)(l)(B) ....... ....... ..... ... .. .. . .. .... . . vn

Tex. R. App. P. Ann. 10.5(b)(l)(C) .. .... .. ... .. .. .... ... ....... ...... vu

Tex. R. App. P. Ann. 10.5(b)(l)(D) ....... ....... .... . ...... . ....... .. vn

Tex. R. Civ. P. 168 (West2015) . . ....... ....... . ...... .. . .... viii; ix; 2; 4

Tex. R. Civ. P. 306a (West2015) ....... .. . . ....... ... . .... . ....... .... x




PETITION FOR INTERLO CUTORY APPEAL                                                v
                                ISSUES PRESENTED

       Whether Petitio ner's interests in this matter will be irrepar ably prejudiced ifshe

is not granted an interlocutory appeal , or other substantial relief from the Trial's

Court' s interlocutory Order granting summary judgm ent in favor of Respondents,

when: (1) the Trial Court's Order sought to grant Petitio ner the right to seek

interlocutory appeal; but (2) that Order did not conform to Rule of Civil Procedure

168 because it omitted reference to the controlling question of law as to which there

is a substantial ground for difference of opinion.




PETITIO N FOR INTERL OCUTO RY APPEAL
                                                                                        Vl
                            STATE MENT OF FACTS

       This Petition for Interlocutory Appeal arises from an Order entered by the 62nct

Judicial District Court in Lamar County, Texas, on August 27, 2015, in Cause No.

82395; Haley Brown v. RKHall Construction, LTD, Stacy Lyon dlblaLy onBarri cade

& Construction, & Texas Department ofTransportation, Honora ble Judge Will Biard

presiding.

       Petition er's Applica tion for Interlocutory Appeal would have been due on

September 11, 2015, had the Trial Court's Order contained all the information

required by Texas Rule of Civil Procedure 168, as shall be discusse d below. Tex. R.

App. P. Ann. 10.5(b)( l)(A) (West 2015). Petitioner seeks an addition al30 days in

which to perfect her interlocutory appeal; such date to be measure d as 3 0 days from

the date Court signs the Order granting the instant Motion. ld., at (b)(1)(B); Id., at

10.1(a)(3). The facts upon which Petitioner relies in this Motion, and the particular

grounds upon which such Motion are based are set forth through out Section (I)

herein. !d. , at (b )(1 )(C); !d., at 10.1 (a)(2) No previous extensio ns of time have been

granted in this matter. ld. , at (b)(1)(D).

      The underly ing lawsuit was filed by Petitioner on March April18 , 2013, in the

62nct District Court. The lawsuit involves personal injuries sustained by Petitioner

during an accident that occurred on Highway 82 in Lamar County, Texas, on or about


PETITION FOR INTERLO CUTORY APPEAL                                                      Vll
March 16, 2012, while Highway 82 was under construct ion. Petitioner drove

unimpeded through a construction zone and collided with a shuttle buggy, causing

serious bodily injury.    In the suit, Petitioner made claims against the Texas

Department of Transportation, R.K. Hall Construction, Ltd., and Stacy Lyon d/b/a

Lyon Barricade & Construction, alleging various theories ofliabilit y surrounding the

failure to design and implement a safe traffic control plan.

      On or about August 27, 2015, Judge Biard signed an order granting various

motions for summary judgment filed by Respondents, which was nominated "Order

Granting Traditional and No Evidence Motions for Summary Judgment ofR.K. Hall

Construction, Ltd., and Stacy Lyon d/b/a Lyon Barricade & Construction"

(hereinafter referred to as the "Order"). A copy of the Order is attached hereto as

Exhibit 1.   In the Order, the trial court gave Petitioner permission to file an

interlocutory appeal, via the following language:

      "IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
      Plaintiff, Haley Brown, is granted permission to file a Petition for
      Interlocutory Appeal in the 6th Court of Appeals of this Court's granting
      of Defendant's Motions ... "

See Exhibit 1.

      Thus, asset forth above, Plaintiff/Appellant's Application for Interlocutory

Appeal would have been due on September 11, 2015 had Judge Biard's Order

contained all the information required by Texas Rule of Civil Procedure 168.

PETITION FOR INTERLOC UTORY APPEAL                                                Vlll
However, the Order did not specify the controlling issue of law as to which there is

a substantial difference of opinion, and why an immediate appeal may materially

advance the ultimate termination of the litigation, as require d by Tex.R.Civ.P Ann.

168 (West 20 15). With the understanding that the Order did not comply with

Tex.R.Civ.P Ann. 168 (West 2015), on or about September 21, 2015, Petitioner filed

a Motion to Modify Judgment and Alternative Motion to Extend Time to File

Interlocutory Appeal in the trial court, wherein Petitioner reques ted that the trial court

modify the order to comply with Texas Rule of Civil Procedure 168, or alternatively,

to extend Petitioner' s deadline to file her Petition for Interlo cutory Appeal in this

Court. As of the date of the filing of this Motion, Petitioner's Motion to Modify and

Alternative Motion to Extend Time to File Interlocutory Appea l has not been heard

by the trial court. A copy of said Motion with all Exhibits is attached hereto as

Exhibit 2.

      More importantly however, neither Petitioner, nor Petitioner's counsel received

proper or timely notice of the Order entered by the trial court. The specific factual

and procedural backgr ound in this regard is as follows:

      On Augus t 13 , 2015, the trial court heard argument on "Defen dant RK Hall

Construction, Ltd.'s Motion for Traditional Summary Judgment," "Defendant RK

Hall Construction, Ltd.'sAme ndedM otion for No Evidence Summary Judgment" and


PETITIO N FOR INTERL OCUTORY APPEAL
                                                                                        lX
 "Defendant Stacy Lyon d/b/a Lyon Barricade & Constr uction' s Amend ed Traditional

 and No Evidence Motion for Summary Judgment." Thereafter, on or about August

20, 2015, the trial court, via email, advised counsel for all parties that it would grant

Defend ants' motions, give Petitioner the right to an interlocutory appeal (although not

requested by Petitioner), and requested that Defendants/Re sponde nts' counsel submit

a propos ed order consistent with the Court's ruling.

       Thereafter, on or about Augus t 24, 2015, Defendants/Respondents' Counsel

submitted a proposed order. The trial court evidently signed the order submitted by

Defendants/Respondents on August 27, 2015 , yet, as of this date, neither Petitioner

nor Petitio ner's has received a copy of the Order from the clerk of the trial court as

required by the Texas Rules of Civil Procedure. See Tex.R.Civ.P. Ann. 306a (West

2015). In fact, Petitio ner's counsel received the Order for the first time via fax from

counsel for Respon dent Lyon Barrica de's counsel at 3:44p.m., on September 9, 2015

(13 Y2 days after the Order was signed by the Court). See Affidavit of Dale H.

Henley and Affidavit of Haley Brown, attached hereto as Exhibits 3 and 4

respectively.

      On Monday, September 14, 2015, Defendants/Respondents filed a Joint Motion

to Sever in the trial court, noting that Petitioner had not timely filed a petition with

the court of appeals requesting an interlocutory appeal. Defendants/Respondents'


PETITIO N FOR INTERL OCUTO RY APPEAL
                                                                                      X
motion to sever further asked the trial court to sever the claims by and against

Defendants/Respondents, so that the summary judgm ent dispos ing oftheir claims will

become final. See Defendant RK Hall Construction, Ltd. and Defend ant Stacy Lyon

d/b/a Lyon Barricade & Construction's Joint Motion for Severance, attached hereto

as Exhibit 5.

      Thereafter,   as   noted    above,   m    light   of   comme nts    made    m
Defendants/Respondents' Motion to Sever, and in an overabundance of caution,

Petitioner filed her Motion to Modify and Alternative Motion to Extend Time to File

Interlocutory Appeal in the trial court.    In that same vein, and in the same

overabundance of caution, Petitioner has filed with this Court both her Motion to

Extend Time to File Petition for Interlocutory Appeal, and the instant Petition for

Interlocutory Appeal with this court; and, for same, would show this honorable Court

as follows.




PETITIO N FOR INTERL OCUTO RY APPEAL
                                                                                 Xl
      HALE YBRO WN                                    §
      Petitio ner/Appell ant,                         §
                                                      §
                                                      §
      V.                                              §
                                                      §
      RK HALL CONS TRUC TION, LTD.                    §
      RKH CAPIT AL, LLC,                              §
      STACY LYON d/b/a LYON                           §
      BARR ICADE & CONS TRUC TION                     §
      Respon dents/ Appell ees                        §



                     PETITI ON FOR INTERLOCUTORY APPEA L


      Petitio ner/Appell ee, Haley Brown, Plainti ff in the trial court below, submits

and files this Motion to Extend Time to File Petitio n for Interlo cutory Appeal, from

an Order entered by the 62nd Judicial Distric t Court in Lamar County, Texas, on

Augus t 27,201 5. In this Motion , Movant and Petitio ner/Ap pellee Haley Brown will

be referred to as "Petiti oner," Respon dent/Appell ee R.K. Hall Constr uction, Ltd. will

be referred to as "Respo ndent RK Hall," Respon dent Stacy Lyon d/b/a Lyon

Barricade & Constr uction will be referred to as "Respo ndent Lyon Barrica de," and

Respon dents/ Appell ees collectively will be referre d as "Respo ndents " of

"Defen dants/R espond ents."




PETITIO N FOR INTERL OCUTO RY APPEAL
                                                                                      Xll
                   PETITION FOR INTERLOCUTORY APPE AL

                        ADVISORY NOTE TO THE COU RT

         Petitioner would respectfully call the Court 's attent ion to the fact that this

Petitio n for Interlocutory Appeal is filed in Conjunction with, and subjec
                                                                            t to,
Petitioner Haley Brow n's Motio n to Extend Time to File Petiti on for Interlo
                                                                               cutory
Appeal filed with the Clerk ofthis Court contemporaneously with the instant Petitio
                                                                                      n.

                   PETITION FOR INTERLOCUTORY APPE AL

         This Petition for Interlocutory Appeal arises from an Order entered by the 62nd

Judicial District Court in Lama r County, Texas, on August 27, 2015 , in Cause
                                                                               No.
82395, Haley Brown v. R.K. Hall Construction, LTD., Stacy Lyon d/b/a
                                                                     Lyon
Barricade & Construction, & Texas Department a/Transportation, Honorable Judge

Will Biard presiding.

         The underlying lawsuit was filed by Petitioner on March April1 8, 2013, in the

62nd District. The lawsuit involves personal injuries sustained by Petitioner during

an accident that occurred on Highway 82 in Lama r County, Texas, on or about March

16, 2012, while Highw ay 82 was under construction. Petitioner drove unimp
                                                                           eded
through a construction zone and collided with a shuttle buggy, causing serious bodily

mJury.     In the suit, Petitioner made claims against the Texas Department of

Transportation, R.K. Hall Construction, Ltd., and Stacy Lyon d/b/a Lyon Barric
                                                                               ade

PETITION FOR INTERL OCUTO RY APPEAL                                               Page 1
 & Construction, alleging various theories ofliability surrou nding the failure
                                                                                  to design
 and implement a safe traffic control plan.

       On or about August 27, 2015, Judge Biard signed an order granting various

motions for summary judgment filed by Respondents, which was nominated
                                                                                   "Order
Granting Traditional and No Evide nce Motions for Summary Judgm ent ofR.K
                                                                                     . Hall
Construction, Ltd., and Stacy Lyon d/b/a Lyon Barric ade & Constructio
                                                                       n"
(hereinafter referred to as the "Orde r"). A copy of the Order is attached hereto
                                                                                  as
Exhib it 1.   In the Order, the trial court gave Petitioner permi ssion to file an

interlocutory appeal, via the following language:

              "IT IS FURT HER ORDERED, ADJU DGED AND
              DECR EED that Plaintiff, Haley Brown, is grante d
              permission to file a Petition for Interlocutory Appea l in the
              61h Court of Appeals of this Court ' s granti ng of
              Defen dant's Motions ... "

       This case canno t be materially advanced and ultimately terminated in keeping

with the requir ement s of Rule 168 and other controlling law unless this appea
                                                                                l is
granted, and the matter remanded back to the trial court, because the Order does
                                                                                      not
specify the contro lling issue of law as to which there is a substantial differe
                                                                                 nce of
opinio n, and why an immediate appeal may materially advance the ultima
                                                                        te
termination of the litigation, as required by T.R.C.P 168. Thus, as the Order curren
                                                                                     tly
stands, grants Petitio ner the right to seek a permissive appeal but it fails to compl
                                                                                       y

PETITI ON FOR INTERL OCUTO RY APPEAL
                                                                                   Page 2
with those preconditions necessary to cause that right to seek permissive appeal
                                                                                 to
arise. The Order, therefore, substantially prejudices Petiti oner's rights with
                                                                                regard
to the matter at issue before the Trial Court, and this injust ice can only be correc
                                                                                        ted
by appeal and remand.

       Therefore, with the understanding that the Order did not comply with T.R.C.P.

168, on or about September 21, 2015, Petitioner filed a Motio n to Modify Judgm
                                                                                ent
in the trial court, wherein Petitioner requested that the trial court modify the order
                                                                                         to
comply with T.R.C .P 168. As ofthe date of the filing ofthis Petition, Petitio
                                                                               ner's
Motion to Modify has not been heard by the trial court.

      In an overabundance of caution, and in effort to preser ve her right to appeal ,

Petitioner hereby seeks permission from the Sixth Court of Appeals to appea
                                                                            l the
interlocutory Order entered by the trial court on August 27, 2015. In the alterna
                                                                                  tive,
Petitioner prays this Court set aside the Trial Court 's August 27, 2015 Order
                                                                               and
remand this matter back to the Trial Court for issuance of an Interlocutory
                                                                            Order
granting the right to permissive appeal, which Order complies with Rule 168.




PETITION FOR INTERL OCUTO RY APPEAL
                                                                                 Page 3
                                       Respectfully submi tted:



                                       MAY O MEN DOLI A & VICE , L.L.P.

                                       By:     /s/ Kevin W. Vice
                                              KEVIN W. VICE
                                              kv ice@mmvllp .com
                                              State Bar No. 00785 150
                                              DALE H . H ENLEY
                                              dhen ley@mm v11p.com
                                              State Bar No. 24048 148
                                              BRIAN L. B ENITE Z
                                              bbenitez@m mv lip. com
                                              State Bar No. 24082 679

                                       5368 State Highway 276
                                       Royse City, Texas 75189
                                       (469) 402-0450
                                       (469) 402-0461 (Facsimile)

                                       ATTO RNEY FOR PETI TION ER
                                       HALE Y BROW N


                         CERT IFICA TE OF SERV ICE

      I hereby certify that a true and correct copy of the foregoing document has been

forwarded to the following counsel of record, on this 251h day of Septe mber,
                                                                              2015:



 Blair Partlo w                                                    ViaE- File Service
 Fox Roths child, LLP
 5420 LBJ Freew ay, Suite 1200
 Dallas, Texas 75240

PETITI ON FOR INTER LOCUT ORY APPEAL
                                                                               Page 4
  Ed Carlton                                               Via E-File Service
  Quilling, Selander, Lownds, Winslett & Moser, P .C.
  2001 Bryan St., Suite 1800
  Dallas, Texas 75201

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


                                       Is/ Kevin W. Vice
                                       KEVINW . VICE




PETITION FOR INTERLOC UTORY APPEAL
                                                                      Page 5
                                                      VERIF ICATI ON



  STATE OF TEXAS                                       §
                                                       §
  COUN TY OF                                           §
  ROCK WALL                                            §


                    BEFOR E ME, the undersigned authority, on this day personally

appeared Brian L. Benite z, an attorney known personally to me, license d to practice

law in Texas, holding license numbe r 24082679. And, Brian L . Benite z, who, having

been by me first duly sworn, depose d and said that he has read the allegations in the

foregoing Petitio n for Interlocutory Appeal, that each and every fact and matter

therein stated, including those averred in any attached Certifi cate is within his

person al knowledge, and is true and correct.



                                                            B l<"---.!~

                                                            State Bar Numbe r 240826 79
                                                            Attorney at Law
                                                            Mayo, Mendo lia & Vice, LLP
                                                            ATTORNEYS FOR PETIT IONER

 SUBSC RIBED AND SWOR N to before me, this, the 25 1h day of September,

 2015                                                         ~ (!-/~
          ,,,~~~~~~'"'      ALEXANDRA C. HALEY
         !f;:-:.:.s;~;--'§. Notary Public. State of Texas
         ~~:}~.~·~i         My Commissi on Expires          Notary Public in and for
          "''i'~'oi \'-~~       June 25, 2017
            :~,/""'''''                                     The State ofTexa s
PETITIO N FOR INTERL OCUTO RY APPEAL                                                      Page 6
                      CERTIFICATE OF COM PLIA NCE

       Petitioner's Motion for Extension of Time to File Petiti on for Interl
                                                                              ocutory
Appeal contains 2635 words, and, as such, complies with Texa s Rule
                                                                    of Appellate
Procedure 9.4(i)(2)(D) (word count determined by the comp
                                                          uter program
(WordPerfect x5) used to create said Motion).

                       CERTIFICATE OF CON FERE NCE

       Counsel for Petitioner has made a reasonable attempt to confer about
                                                                            the
instant Motion with counsel for Respondents. Although no accor d has
                                                                     been reached,
on information and belief, this Motion is Opposed by Respondents.




PETIT lON FOR INTER LOCU TORY APPEAL
                                                                             Page 7
EXHIBIT 1
To: I 4694020461 I                                      From: Shannon Wright                                 9-09-15                   3:41pm         p. 3     of 4




                                                                                                                                                 Kristen Boehler
                                                           CAUSE NO. 82395

                     HALEY BROWN                                     ~           IN THE DISTRICT COURT
                                                                     §
                     VS.                                             §
                                                                     §           OF LAMAR COUNTY, TEXAS
                     RK HALL CONSTRUCTION, LTD.                      §
                     RKH CAPITAL, LLC, STACY LYON d/b/a              §
                     LYON BARRICADE & CONSTRUCTION                   §
                     and TEXAS DEPARTMENT OF                         §
                     TRANSPORTATION                                  §           62nd JUDICIAL DISTRICT

                         ORDER GRANTING TRADITIONAL ANI) NO EVIDENCE MOTIONS FOR
                      SUMMARY JUDGMENT OF RK HALL CONSTRUCTION, LTD. AND STACY LYON
                                  D/B/A LYON BARRICADE & CONSTRUCTION

                            On the I 3th day of August, 20 !5. came on to be heard Defendant RK Hall Construction.

                     Ltd.'s Traditional Motion for Summary Judgment, Defendant RK Hall Construction, Ltd.'s,

                     Amended No Evidence Motion for Summary Judgment, and Defendant Stacy Lyon dlb/a Lyon

                     Barricade & Construction's Amended Traditional and No Evidence Motions For Summary

                     Judgment (collectively "Defendants' Motions"); and all parties appeared by and through their

                     respective counsel; and the Court, having reviewed Defendants' Motions, Plaintitrs Responses

                     submitted thereto, the evidence on file, and having heard argument of counsel, is of the opinion

                     that Defendants' Motions should be granted in their entirety, and accordingly;

                            lt is ORDERED, ADJUDGED, and DECREED that Defendant RK Hall Construction,

                     Ltd.'s Traditional Motion for Summary Judgment, Defendant RK Hall Construction. Ltd.'s,

                     Amended No Evidence Motion for Summary Judgment, and Defendant Stacy Lyon d/b/a Lyon

                     Barricade & Construction's Amended Traditional and No Evidence           Motion~f.Jr                        Summary
                                                                                                   <>:>
                     Judgment be, and the same are, hereby granted; and                                    :-<:       '2~ ~,:.
                                                                                                                      (..')~             l.:>o
                                                                                                                                                       • i


                                                                                                                      ·-· ;··: c::
                                                                                                                      '          1 ""
                                                                                                       m                         ·' -..
                                                                                                      /o
                                                                                                      •£              . ' _..,
                                                                                                  r'              .         .)      -·~
                                                                                                                                    ...,....
                                                                                                       '
                                                                                                  ~ 1/~:;                          S'?
                                                                                                  _,                  ;.:          (J"J

                     ORDER GRANTING RK HALL AND LYON'S TRADITIONAL AND NO              EVJDENCEf~
                     MOTIONS FOR SUMMARY JUDGMENT-                                                                                   PAGEl
To: I 4694020461 I                                       From: Shannon Wright                           9-09-15   3:41pm     p. 4   of 4




                            It is FURTHER ORDERED, ADJUDGED, and DECREED that Plaintiff, Haley Brown,

                     take nothing by this suit as against RK Hall Construction, Ltd, and Stacy Lyon d/b/a Lyon

                     Barricade & Construction; and

                            It is FURTHER ORDERED, ADJUDGED, and DECREED that Plaintiff, Haley Brown,

                     is granted permission to file a Petition for Interlocutory Appeal in the 61h Court of Appeals of this

                     Court's granting of Defendants' Motions; and

                            IT IS FURTHER ORDERED. ADJUDGED and DECREED that this Order shall have no

                     impact on the claims of Haley Brown, as against Texas Department of'l'ransportation, which

                     claims will remain pending before the Court; and

                            IT IS FURTHER ORDERED, ADJUDGED and DECREED that all costs of court shall

                     be taxed in accordance with the future orders of the Court, it being understood, however, that no

                     costs of court shall be taxed against RK Hall Construction, Ltd. and Stacy Lyon d/b/a Lyon

                     Barricade & Construction.

                            SIGNED this 2.1_ day of August, 2015.




                     ORDER GRANTING RK HALL AND LYON'S TRADITIONAL AND NO EVIDENCE
                     MOTIONS FOR SUMMARY JUPCMENT-                                                                PACE2
EXHIBIT 2
                                                                                               Filed 9/21/2015 9:13:21 AM
                                                                                                          Shawntel Golden
                                                                                                              District Clerk
                                                                                                      Lamar County, Texas

                                                                                                    Jennifer Frazier
                                            CAUSE NO: 82395

HALEY BROWN                                           §    IN THE DISTRICT COURT
                                                      §
        Plaintiff,                                    §
                                                      §
V.                                                    §
                                                      §    OF LAMAR COUNTY, TEXAS
RK HALL CONSTRUCTION, LTD.                            §
RKH CAPITAL, LLC,                                     §
STACY LYON d/b/a LYON                                 §
BARRICADE & CONSTRUCTION, and                         §
TEXAS DEPARTMENT OF                                   §
TRANSPORTATION                                        §
     Defendants.                                      §    62nd JUDICIAL DISTRICT

       MOTION TO MODIFY JUDGMENT, AND, ALTERNATIVELY, MOTION TO
        EXTEND TIME TO FILE PETITION FOR INTERLOCUTORY APPEAL

TO THE HONORABLE COURT:

        COMES NOW, Haley Brown, Plaintiff herein, and files this, her Motion to Modify

Judgment, And, Alternatively, Motion to Extend Time to File Petition for Interlocutory Appeal, and

in support thereof, would respectfully show unto the Court as follows:

                                             I.
                                  BACKGROUND/INTRODUCTION

        1.1      On August 13, 2015, this Court heard argument on Defendant RK Hall Construction,

Ltd.’s Motion for Traditional Summary Judgment, Defendant RK Hall Construction, Ltd.’s

Amended Motion for No Evidence Summary Judgment, and Defendant Stacy Lyon d/b/a Lyon

Barricade & Construction’s Amended Traditional and No Evidence Motion for Summary Judgment

(Defendant RK Hall Construction, Ltd. and Defendant Stacy Lyon d/b/a Lyon Barricade &

Construction shall be collectively referred to herein as “Defendants”). Thereafter, on or about

August 20, 2015 this Court, via email, advised counsel for all parties that it had granted Defendants’

Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                           Page 1
motions, granted Plaintiff the right to an interlocutory appeal (although not requested by Plaintiff),

and requested the Defendants to submit a proposed order consistent with the Court’s ruling.

        1.2      Thereafter, on or about August 24, 2015, Defendants submitted a proposed order.

The Court evidently signed the order submitted by Defendants on August 27, 2015 (the “Order”),

yet, as of today’s date, the clerk of the Court has never sent Plaintiff’s counsel a copy of the Order.

In fact, Plaintiff received the Order for the first time via fax from counsel for Defendant Stacy Lyon

d/b/a Lyon Barricade & Construction, at 3:44 p.m., on September 9, 2015 (13 days after the Order

was signed by the Court). See Affidavit of Dale H. Henley and Affidavit of Haley Brown, attached

hereto as Exhibits 1 and 2 respectively.

        1.3      On Monday, September 14, 2015, Defendants R.K. Hall and Lyon Barricade filed a

Joint Motion to Sever, noting that Plaintiff has not timely filed a petition with the court of appeals

requesting an interlocutory appeal. Defendants’s motion further asks the Court to sever the claims

by and against Defendants so that the summary judgment disposing of their claims will become final.

        1.4      In an abundance of caution, and in light of the Court’s comments at the hearing on

Defendant Texas Department of Transportation’s Motion to Dismiss for Lack of Jurisdiction and

Motion for No Evidence Summary Judgment on September 17, 2015, regarding the Court’s desire

to wait until after the appeal on Defendants’ summary judgments are heard before proceeding with

trial in this matter, Plaintiff hereby files its Motion to Modify Judgment, requesting that the Court

modify the Order to comply with section 168 of the Texas Rules of Civil Procedure, and thus making

the Order a proper, appealable, interlocutory order. In the alternative, Plaintiff asks for an extension

of time to file its petition for interlocutory appeal.



Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                            Page 2
                                                  II.
                                               ARGUMENT

        2.1      Rule 168 of the Texas Rules of Civil Procedure states as follows:

                 On a party’s motion or on its own initiative, a trial court may permit
                 an appeal from an interlocutory order that is not otherwise appealable,
                 as provided by statute. Permission must be stated in the order to be
                 appealed. An order previously issues may be amended to include
                 such permission. The permission must identify the controlling
                 question of law as to which there is a substantial ground for
                 difference of opinion, and must state why an immediate appeal may
                 materially advance the ultimate termination of the litigation.

Tex.R.Civ.P. 168 (emphasis added).

        2.2      Courts of appeals do not have jurisdiction over appeals from interlocutory orders,

unless a statute provides for an interlocutory appeal from such orders. See Tex. A & M Univ. Sys. v.

Koseoglu, 233 S.W.3d 835, 840 (Tex.2007). Under section 51.014(d) of the Texas Civil Practice

and Remedies Code, a court of appeals may accept a permissive interlocutory appeal if (1) the order

being appealed involves a controlling question of law as to which there is a substantial ground for

difference of opinion, and (2) an immediate appeal from the order may materially advance the

ultimate termination of the litigation. See Tex. Civ. Prac. & Rem.Code § 51.014(d), (f); Hebert v.

JJT Const., 438 S.W.3d 139, 140 (Tex.App.–Houston [14th Dist.] 2014, no pet.).

        2.3      In its statement of permission granting an interlocutory appeal under section 51.014,

a trial court must identify the controlling question of law as to which there is a substantial ground

for difference of opinion and must state why an immediate appeal may materially advance the

ultimate termination of the litigation. Tex. R. Civ. P. 168; Hebert, 438 S.W.3d at 141; see also Tex.

Civ. Prac. & Rem.Code § 51.014(d).



Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                           Page 3
        2.4      While there is little case law as to what exactly constitutes a controlling issue of law,

the court in Gulf Coast Asphalt Company, LLC v. Lloyd, 457 SW3d 539, 544, cited from a law

review article the following:

                 A controlling question of law is one that deeply affects the ongoing
                 process of litigation. If resolution of the question will considerably
                 shorten the time, effort, and expense of fully litigating the case, the
                 question is controlling. Generally, if the viability of a claim rests upon
                 the court's determination of a question of law, the question is
                 controlling.... Substantial grounds for disagreement exist when the
                 question presented to the court is novel or difficult, when controlling
                 circuit law is doubtful, when controlling circuit law is in
                 disagreement with other courts of appeals, and when there simply is
                 little authority upon which the district court can rely.... Generally, a
                 district court will make [a finding that the appeal will facilitate final
                 resolution of the case] when resolution of the legal question
                 dramatically affects recovery in a lawsuit.

Gulf Coast Asphalt Company, LLC v. Lloyd, 457 SW3d 539, 544 (Tex.App.– Houston [14th Dist]
2015, no writ).

        2.4      Here, the Order states, in pertinent part, “IT IS FURTHER ORDERED, ADJUDGED

AND DECREED that Plaintiff, Haley Brown, is granted permission to file a Petition for

Interlocutory Appeal in the 6th Court of Appeals of this Court’s granting of Defendant’s Motions...”

The Order, however, is silent as to the controlling issue of law as to which there is a substantial

difference of opinion, and why an immediate appeal may materially advance the ultimate termination

of the litigation, as required by T.R.C.P 168.

        2.5      Thus, the Order presented by Defendants and signed by the Court does not comply

with Rule 168. If Plaintiff were to file a petition for interlocutory appeal based on this Order, as

required by the Texas Rules of Appellate Procedure, the petition would be denied by the court of




Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                              Page 4
appeals, as the proper requirements of Rule 168 are not contained therein. See, e.g., Estate of

Marshall, 2015 WL 5245268, (Tex.App.– San Antonio 2015, no writ).

        2.6      Accordingly, Plaintiff respectfully requests that the Court modify the Order to specify

the controlling question of law at issue, and state why an immediate appeal will materially advance

the ultimate termination of the litigation, so the Order will comply with the requirements of Rule

168, and will be in proper form from which an interlocutory appeal can be filed.

        2.7      Additionally, consistent with Rule 168 requirements, Plaintiff respectfully asks the

Court to modify the Order to identify the specific grounds upon which summary judgment was

granted. Defendant RK Hall moved for summary judgment on the following grounds:

                 1.      Immunity under Section 97.002 of the Texas Civil Practices and Remedies
                         Code:

                 2.      No Actual Knowledge of a Dangerous Condition;

                 3.      The Location and Condition of the Shuttle Buggy was not the Proximate
                         Cause of the Accident;

                 4.      No Evidence Plaintiff was a licensee;

                 5.      No Evidence a Condition on the Premises posed an Unreasonable Risk of
                         Harm; and

                 6.      No Evidence RK Hall had Actual Knowledge of the Danger.

        2.8      Defendant Lyon Barricade moved for summary judgment on the following grounds:

                 1.      Immunity under Section 97.002 of the Texas Civil Practices and Remedies
                         Code;

                 2.      No Evidence of Unreasonable Risk of Harm; and

                 3       No Evidence of Actual Knowledge of Unreasonable Risk of Harm.



Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                            Page 5
        2.9      The Order does not specify the upon which of the above grounds the Court granted

summary judgment. In order for this matter to be ripe for interlocutory appeal, the Order must state

the specific controlling question of law at issue, and why an immediate appeal will materially

advance the ultimate termination of the litigation. By narrowing the basis upon which the Court

granted Defendants’ motions for summary judgment, these requirements will be met and achieved.

        2.10     Thus, in order to comply with Rule 168, and to expedite the appellate process on the

interlocutory, accelerated appeal, Plaintiff would ask the Court to specify the exact grounds upon

which the motions for summary judgment were granted so as to narrow the issues for the Court of

Appeals.

                                         III.
                          ALTERNATIVE MOTION TO EXTEND TIME

        3.1      Alternatively, should the Court decline to modify the Order as requested above,

Plaintiff respectfully requests that the Court extend the time to file Plaintiff’s petition for an

interlocutory appeal under Rule 26.3 of the Texas Rules of Appellate Procedure and Rule 306a(5)

of the Texas Rules of Civil Procedure.

Background and Explanation

        3.2      Before delving into the argument on the motion to extend time, Plaintiff wants to

make clear on the record that this alternative motion to extend time is being made in an

overabundance of caution, and in expectations of, and to avoid, future arguments of opposing

counsel on appeal. As noted above, Plaintiff never requested, nor desired, a right to an interlocutory

appeal. Instead such right was provided in the Court’s Order granting the Defendants’ motions for

summary judgment, which was drafted by Defendants’ counsel. However, as discussed extensively


Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                           Page 6
above, the Order does not meet the requirements of Tex.R.Civ.P 168, and thus, any attempt by

Plaintiff to file an interlocutory appeal based on said Order would have been rejected and denied.

See, Estate of Marshall, 2015 WL 5245268, (Tex.App.– San Antonio 2015, no writ).

        3.3      Based on comments by the Court at the hearing on TXDOT’s motion for summary

judgment, it appears clear that the intent of the Court is the sever the claims and causes of action

against Defendants RK Hall and Lyon Barricade, and allow that case, including the granting of

Defendant RK Hall’s and Lyon Barricade’s motions for summary judgment, to go on appeal. The

Court advised that is would reset the trial against TXDOT after the appeal on the motions for

summary judgment were complete. However, a close reading of the Joint Motion for Severance by

RK Hall and Lyon Barricade reveals that they believe the deadline for Plaintiff to file a petition for

interlocutory appeal has passed, and that by granting the severance, Plaintiff will have lost her right

to appeal the motions for summary judgment granted in their favor.              See Defendant RK Hall

Construction, Ltd. and Defendant Stacy Lyon d/b/a Lyon Barricade & Construction’s Joint Motion

for Severance, page 2.

        3.4      It is Plaintiff’s position that her right to interlocutory appeal has not been created due

to the lack of the prerequisites of Rule 168 being met. However, even if it is determined that the

Order is a proper appealable interlocutory order, Plaintiff has not waived her right to file and conduct

an ordinary appeal after a final judgment is entered, either by way of severance or by final judgment

in this cause. In other words, even if Plaintiff decided not to, or failed to, exercise her right to

perfect the interlocutory appeal, her ordinary appeal rights still exist after final judgment is entered

by this Court. See, Hernandez v Ebrom, 289 S.W.3d 316 (Tex. 2008).



Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                               Page 7
        3.5      However, in light of previous activity in this case, recent developments on

Defendants’ lack of full and complete discovery production, in an overabundance of caution, and in

order to provide full and complete protection to Plaintiff, Plaintiff files this alternative request to

extend time to file Plaintiff’s petition for interlocutory appeal under Tex.R.App.P 26.3 and

Tex.R.Civ.P 306a(5) as follows:

Extension of Time under T.R.App.P. 26.3

        3.6      The Texas Rules of Appellate Procedure “govern procedure in appellate courts....”

and a party’s rights on appeal. TEX.R.APP.P. 1.1. The rules and policies regarding perfection of

an appeal are well-established in ordinary civil appeals and interlocutory appeals authorized by

section 51.014(a). Stolte v County of Guadalupe, 139 S.W.3d 406, 409 (Tex.App.–San Antonio

2004, no writ). A party who fails to file a perfecting “instrument” by the deadline may, within

fifteen days after the date the instrument was due, move for an extension of time. See TEX.R.APP.

P. 26.3. “[A] motion for extension of time is necessarily implied when an appellant acting in good

faith files [a perfecting instrument] beyond the time allowed by [the rules], but within the fifteen-day

period in which the appellant would be entitled to move to extend the filing deadline....” Id., citing

v. Dorner, 959 S.W.2d 615, 617 (Tex.1997). Both Rule 26.3 and Verburgt apply to appeals of

interlocutory orders authorized by section 51.014(a). See, Hone v. Hanafin, 104 S.W.3d 884

(Tex.2003) (applying Rule 26.3 and Verburgt to interlocutory appeal of order sustaining special

appearance).

        3.7      Here, Plaintiff is filing this specific motion to extend time well within 15 days from

the date its petition for interlocutory appeal was purportedly due to be filed. Thus, this motion is

timely filed under the guise of Tex.R.App.P. 26.3.

Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                            Page 8
        3.8      Accordingly, in the event the Court is disinclined to modify the Order as requested

herein, Plaintiff asks the Court to extend the time to perfect its interlocutory appeal under the

purview of Rule 26.3.

Extension Under Tex.R.Civ.P. 306a(5)

        3.9      Additionally, Plaintiff asks the Court to extend the deadline to file Plaintiff’s petition

for interlocutory appeal under Rule 306a(5). In this regard, Plaintiff respectfully asks the Court to

find and determine that Plaintiff has not yet received notice of the Order from the clerk of the Court,

as required by T.R.C.P. 306a(3), and that Plaintiff received actual knowledge of the Order thirteen

days after it was signed, via fax from opposing counsel. See Affidavit of Dale Henley and Affidavit

of Haley Brown, attached hereto as Exhibits 1 and 2.

        3.10     As argued by Defendants RK Hall and Lyon Barricade in their Joint Motion for

Severance, in order to be timely, a petition for interlocutory appeal must be filed within 15 days from

the date the order or judgment from which it is appealing was signed. Due to the lack of timely

notice of the Order, Plaintiff was only given two days to file her petition for interlocutory appeal,

after it received a copy of the Order via fax from opposing counsel.

        3.11     Although Plaintiff’s untimely notice of the Order, and Plaintiff’s request for to extend

the deadline to file for an interlocutory appeal, do not fall squarely in the purview of T.R.C.P

306a(5), it would be unjust and inconsistent with the intent of Rule 306a to preclude Plaintiff’s right

to file an interlocutory when Plaintiff did not get timely and proper notice of the Order.

        3.12     “The Texas Supreme Court has not yet enacted rules of procedure to implement the

permissive interlocutory appeal permitted by section 51.014(f).” Stolte, 139 S.W.3d at 408.

However, it is well established that “[i}n ordinary civil appeals, the appellate court's jurisdiction is

Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                               Page 9
invoked when an appellant timely files “an instrument in a bona fide attempt to invoke the appellate

court's jurisdiction”; thus, “an appellate court may not dismiss an appeal when the appellant filed the

wrong instrument required to perfect the appeal without giving the appellant an opportunity to

correct the error.” Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997)

        3.13     The intent of Rule 306a is clear: it is to give parties who do not get timely and proper

notice of a order or judgment adequate time to appeal.           However, Rule 306a contemplates a

standard, typical final order or judgment being signed, not an order regarding an interlocutory appeal,

and thus, the rule applies if the party receives actual notice of the order or judgment 20 days after

the judgment was signed. Tex.R.Civ.P. 306a(5). Had Plaintiff received actual notice of the Order

20 days after the Order was signed, its deadline to file the petition for interlocutory appeal would

have expired. Given the cases cited above, T.R.APP.P 26.3, and 306a, the intent of the rules and

appellate courts are clear. A party should not lose its right to appeal because of untimely notice of

an order or judgment, or because a procedural error which the party did not have an opportunity to

cure. Thus, consistent with the intent of Rule 306a, Plaintiff asks the Court, as an alternative

pleading, to extend the deadline to file its petition for interlocutory appeal.

Violation of Plaintiff’s Constitutional Due Process Rights

        3.14     Moreover, depriving Plaintiff of her right to appeal because of untimely and improper

notice of the Order, would be a violation of Plaintiff’s constitutional due process rights. "[T]he

requirement that parties be notified of proceedings affecting their legally protected interests is

obviously a vital corollary to one of the most fundamental requisites of due process – the right to be

heard." Schroeder v. City of New York, 371 U.S. 208, 212, 83 S.Ct. 279, 282, 9 L.Ed.2d 255 (1962).

Thus, "[t]here can be no due process without reasonable notice and a fair hearing." MacKenna v.

Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                             Page 10
Ellis, 263 F.2d 35, 43 (5th Cir. 1959), cert. denied, 360 U.S. 935, 79 S.Ct. 1453, 3 L.Ed.2d 1546

(1960); see also, Griffin v. Griffin, 327 U.S. 220, 231, 66 S.Ct. 556, 562, 90 L.Ed 635 (1946);

Johnson v. Williams, 109 S.W.2d 213, 214 (Tex. Civ. App. – Dallas 1937, no writ) ("The right to

a day in court and the privilege of being heard before judgment is a constitutional guaranty, the very

essence of due process of law."). As the Texarkana Court of Appeals summarized the applicable

rules:

                 At a minimum, constitutional due process requires that no person be
                 deprived of property by any adjudication unless that adjudication is
                 preceded by notice to the owner and a reasonable opportunity for an
                 appropriate hearing. The notice must be reasonably calculated, under
                 all the circumstances, to apprise the owner of the pendency of the
                 action and afford him an opportunity to present his objections. Doue
                 v. City of Texarkana, 786 S.W.2d 474, 477 (Tex App.–Texarkana
                 1990, writ denied); see also, Memphis, Light, Gas & Water Division
                 v. Craft, 436 U.S. 1, 14, 98 S.Ct.1554, 1563, 56 L.Ed.2d 30 (1978);
                 Creel v. District Attorney for Medina County, 818 S.W.2d 45, 46
                 (Tex. 1991).

         3.15    Based on the above analysis and authority, depriving Plaintiff of her right to appeal

due to untimely notice of the Order would violate Plaintiff’s constitutional due process rights. Thus,

in the event the Court declines to modify the Order as requested hereinabove, Plaintiff respectfully

requests that the Court extend Plaintiff’s time to file her petition for interlocutory appeal to avoid

violating Plaintiff’s constitutional due process rights.

                                                    IV.
                                                  PRAYER

         WHEREFORE, Plaintiff prays that the Court set this matter for hearing, and after

considering this Motion, the evidence attached hereto, and any response filed to this Motion, grant

Plaintiff’s Motion to Modify Judgment, and modify the Order entered in connection with Defendants


Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                          Page 11
RK Hall’s and Lyon Barricade’s motions for summary judgment consistent with the relief requested

herein. Alternatively Plaintiff respectfully requests that the Court grant her Motion to Extend Time,

and provide Plaintiff with ample time to timely file her petition for interlocutory appeal. Plaintiff

also prays for such other and further relief to which she has shown herself entitled.




Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                         Page 12
                                                   Respectfully submitted:

                                                   MAYO MENDOLIA & VICE, L.L.P.


                                                   By: /s/ Dale H. Henley
                                                           KEVIN W. VICE
                                                           State Bar No. 00785150
                                                           kvice@mmvllp.com
                                                           DALE H. HENLEY
                                                           State Bar No. 24048148
                                                           dhenley@mmvllp.com

                                                   5368 State Hwy. 276
                                                   Royse City, Texas 75189
                                                   (214) 402-0450
                                                   (214) 402-0461 (Facsimile)

                                                   ATTORNEYS         FOR     PLAINTIFF     HALEY
                                                   BROWN


                                 CERTIFICATE OF CONFERENCE

        The undersigned has emailed opposing counsel requesting whether they are opposed on the
merits of this Motion, and, to the best of Plaintiff’s knowledge, opposing counsel opposes this
Motion. Thus, Plaintiff requests that a hearing be set on this Motion at the earliest date convenient
for the Court.


                                                   _________________________________
                                                   DALE H. HENLEY




Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                         Page 13
                                     CERTIFICATE OF SERVICE

         I hereby certify that a true and correct copy of the foregoing document has been forwarded
to the following counsel of record, on this 18th day of September 2015:


Blair Partlow                                                                  Via E-File Service
Fox Rothschild, LLP
5420 LBJ Freeway, Suite 1200
Dallas, Texas 75240

Ed Carlton                                                                     Via E-File Service
Quilling, Selander, Lownds, Winslett & Moser, P.C.
2001 Bryan St., Suite 1800
Dallas, Texas 75201

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


                                                   ______________________________________
                                                   DALE H. HENLEY




Motion to Modify Judgment, And, Alternatively, Motion to
Extend Time to File Petition for Interlocutory Appeal                                       Page 14
                                                         VERIFICATION



 STATE OF TEXAS                                      §
                                                     §
 COUNTY OF ROCK WAL L                                §


        BEFORE ME, the undersigned Notary Public, on this day person ally
                                                                          appeared Dale H.
 Henley, who, being by me duly sworn upon his oath, deposed and said:

       1.      That he has personal knowledge of the facts contained herein , except as
                                                                                        to where they
may be stated upon infonn ation and belief, and where so stated, he believ
                                                                           es them to be true;
       2.      That he is of the age of 18 years, competent to testify under oath, and
                                                                                       has never been
convicted of a felony;

       3.      That he has read the attached document entitled Motion to Modify Judgm
                                                                                      ent, and,
Alternatively, Motion to Extend Time to File Petition For Interlocutory
                                                                        Appea l;

        4.      That the statements contained in Motio n to Modif y Judgm ent, and,
                                                                                       Alternatively,
Motion to Extend Time to File Petition For Interlocutory Appeal are true
                                                                           and correct, except to the
extent that they are stated to be upon information and belief, and where
                                                                         so stated, he believes them
to be hue and correc t                                          /)~7£7
                                                                     1}};

                                                            DALE H. HEN EY



        Subscribed to and sworn to before me on this '<:.t~     ~.~ I/\?
                                                     I D day of_~
                                                                """"""f---'-.....:.._M
                                                                                     _~. : : .(
                                                                                              :. ._ _, 2015, to
certify which witness my hand and official seal.




My Commission Expire s:



         ~,~S~t~~~,,_       JESSICA T. lOERA
       t~~~~t>% Notary PubliC. State ol l exos   i
               ..;
       ~·~\""'~·=
       ....~J.'' i;~i$.;>
                          My Commis sion Exp1res ·
                              May 05, 2019
EXHIBIT 1
                                           CAUSE NO: 82395

HALEY BROWN                                          §    IN THE DISTRICT COURT
                                                     §
         Plaintiff,                                  §
                                                     §
v.                                                   §
                                                     §    OF LAMAR COUNTY, TEXAS
RK HALL CONSTR UCTION , LTD.,                        §
STACY LYON d/b/a LYON                                §
BARRICADE & CONSTR UCTION , and                      §
TEXAS DEPART MENT OF                                 §
TRANSP ORTATI ON                                     §
     Defendants.                                     §    62"d JUDICIAL DISTRIC T

                                AFFIDAVIT OF DALE H. HENLEY

1.       "My name is Dale H. Henley. I am over 21 years of age, and am of sound mind and fully
competent to testify to the matters set forth herein. The facts contained in this Affidavit are true and
correct.

2.      I am one ofPlainti ffHaley Brown's ("Plaintiff') attorneys in the above referenced case. As
such, I have personal knowledg e of the facts stated herein.

3.      On August 13, 2015, this Court heard argument on Defendant RK Hall Construction, Ltd.'s
Motion for Traditional Summary Judgment , Defendant RK Hall Construction, Ltd.'s Amended
Motion for No Evidence Summary Judgment, and Defendan t Stacy Lyon d/b/a Lyon Banicade &
Construction's Amended Tradition al and No Evidence Motion for Summary Judgmen t (Defendant
RK Hall Construction, Ltd. and Defendant Stacy Lyon d/b/a Lyon Barricade & Construction shall
be collectively refened to herein as "Defendants"). Thereafter, on or about August 20, 20 15 the
Court, via email, advised counsel for all parties that it was going to grant Defendants' motions, grant
Plaintiff the right to an file an interlocutory appeal (although Plaintiff did not request an interlocutory
appeal) and requested that counsel for Defendants to submit a proposed order consistent with that
ruling.

4.     Thereafter, on or about August 24, 2015, Defendants submitted a proposed order. The Court
signed the order on August 27, 2015, yet, as oftoday' s date, neither our office or our client has
received a copy of the Order from the clerk of the Court. In fact, I received the Order for the first
time via fax from counsel for Defendant Stacy Lyon d/b/a Lyon Barricade & Construction, at 3:44
p.m., on Septembe r 9, 2015, 13 days after the Order was signed by the Court.




Affidavit of Dale H. Henley                                                                  Page 1 of2
5.      That concludes my affidavit testimony."




                                                         Dale H. Henley              -


        Subscribed to and sworn to before me on this ltl\ay of
certify which witness my hand and official seal.
                                                                                     ¥~    ,2015, to




                                                            t   ry Public in and for
                                                                State of Texas

My Commission Expires:

                                   ,,,,..~"''''~
                                 /~'~~~·    :,~~~~       JESSICA T. LOERA
                                ~... "f
                                     IJ!...
                                                )"~ Notary Public , State or Texas
                                             . ...,...           .   •
                                -.._~;· .....·;." $   My Commrssron Expire s
                                 '•,,f,,~:.:~··''         May 05, 2019




Affidav it of Dale H. H enley                                                            Page 2 of2
EXHIBIT 2
                                          CAUSE NO: 82395
RALEY BROWN                                     § IN THE DISTRICT COURT
                                                §
        Plaintiff,                                           §
                                                             §
v.                                                           §
                                                             §      OF LAMAR COUNTY, TEXAS
RK HAI.L CONSTRU CTION, LTD.,                                §
STACY LYON d/b/a LYON                                        §
BARRICA DE & CONSTRU CTION, and                              §
TEXASDE PARTMffi NTOF                                        §
TRANSPO RTATION                                              §
     Defendants .                                            §      62"' JUDICIAL DISTRICT

                               AFFJJ)AVIT OF HAUW BROWN

l.      "My name is Haley Brovm. I am the Plaintiff in this case, I am over the age of 21, and am
of sound mind and fully competent to testifY to the matters set forth herein. The facts contained in
this Affidavit are true and correct. I have personal knowledge of the facts stated herein."

2.      I did not receive notice of the order granting Defendant RK Hall Construction , Ltd.'s Motion
for Traditional Summary Judgment, Defendant RK Hall Construction , Ltd.'s Amended Motion for
No Evidence Summary Judgment, and Defendant Stacy Lyon d/b/a Lyon Barricade & Constructio n's
Amended Traditional and No Evidence Motion for Summary Judgment until September 9, 2015, 13
days after the Order was signed by the Court.




        Subscribed to and sworn to before me on this
certifY which witness my hand and official seal.
                                                                    J..$     da:y of   ::S -e QX£ XV\ID. 2015, to


                                                          Notary Public in and for
                                                          The State of Texas

My Commissio n Expires:
                                      ~".,.~)'ft'''+,        ALEXANDRA C. HALEY            ; .,.
                                     ~~~~\                Notary   Publi~,
                                                                       s_tote of .Texos i ~
                                     ;.;;,:.pif...._!~j     My CommiSSIOn Exp1res        ! 1j
                                     ~~~·u;"$$                  June 25, 2017            ~ ..
Affidavit of Haley Brown                  '"m'''                                      __j.J            Page 1 oO
EXHIBIT 3
                                           CAUSE NO: 82395

HALEY BROWN                                          §    IN THE DISTRICT COURT
                                                     §
         Plaintiff,                                  §
                                                     §
v.                                                   §
                                                     §    OF LAMAR COUNTY, TEXAS
RK HALL CONSTR UCTION , LTD.,                        §
STACY LYON d/b/a LYON                                §
BARRICADE & CONSTR UCTION , and                      §
TEXAS DEPART MENT OF                                 §
TRANSP ORTATI ON                                     §
     Defendants.                                     §    62"d JUDICIAL DISTRIC T

                                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
