Haley Brown v. RK Hall Construction, LTD., RKH Capital, LLC, and Stacy Lyon D/B/A Lyon Barricade & Construction
06-15-00072-CV
| Tex. App. | Oct 6, 2015Background
- TxDOT contracted with RK Hall; RK Hall subcontracted traffic control to Stacy Lyon (Lyon Barricade).
- On March 16, 2012, Haley Brown crashed in the highway construction zone and sued TxDOT, RK Hall, and Lyon for negligence/premises liability.
- RK Hall and Lyon moved for traditional and no-evidence summary judgment asserting statutory immunity (Tex. Civ. Prac. & Rem. Code §97.002), lack of unreasonable risk proof, lack of actual knowledge, and other grounds (proximate cause, licensure).
- Trial court granted take-nothing summary judgment for RK Hall and Lyon and authorized Brown to seek an interlocutory appeal; the order was not final because claims against TxDOT remained.
- RK Hall and Lyon moved to sever; the trial court severed their claims, making the summary-judgment order final as to them, and denied TxDOT’s summary judgment on remaining issues.
- Respondents argue the interlocutory appeal is moot (final judgment exists), Rule 168 and App. R. 28.3 requirements were not satisfied, and interlocutory review would not advance termination because multiple non-controlling factual grounds underpin the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the interlocutory appeal is moot after severance/final judgment | Brown argues interlocutory review is appropriate per trial court authorization | Respondents: severance made judgment final; Brown can pursue a traditional appeal, so interlocutory petition is moot | Court should deny interlocutory petition as moot because final judgment exists and traditional appeal is available |
| Whether the trial-court order and petition satisfy Tex. R. Civ. P. 168 and Tex. R. App. P. 28.3 | Brown contends requirements met (seeking permission to appeal) | Respondents: order fails to identify controlling question and explain material advancement; petition does not show substantial ground for difference of opinion | Court lacks jurisdiction for permissive interlocutory review where Rule 168 and Rule 28.3 standards unmet |
| Whether interlocutory appeal would materially advance termination when summary judgment rests on mixed legal and factual/no-evidence grounds | Brown seeks immediate review of legal immunity question to potentially terminate litigation | Respondents: judgment rests on multiple grounds including no-evidence/factual issues that are not proper for interlocutory review; interlocutory review would not resolve all grounds and would duplicate appeals | Interlocutory appeal is improper because it would not materially advance termination and cannot address all grounds supporting the judgment |
Key Cases Cited
- Hernandez v. Ebrom, 289 S.W.3d 316 (Tex. 2009) (failure to seek interlocutory review does not preclude raising issues on appeal after final judgment)
- In re Estate of Fisher, 421 S.W.3d 682 (Tex. App.—Texarkana 2014) (interlocutory-permission statutes construed strictly; no-evidence/factual determinations are not controlling legal questions for interlocutory review)