SCR Civil Construction LLC v. David Dimock

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-23-00258-CV

SCR CIVIL CONSTRUCTION LLC, APPELLANT

V.

DAVID DIMOCK, APPELLEE

On Appeal from the 46th District Court
Wilbarger County, Texas
Trial Court No. 28,990, Honorable Cornell Curtis, Presiding

March 4, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

In this interlocutory appeal,1 Appellant, SCR Civil Construction LLC, appeals from

an order in favor of appellee, David Dimock, denying SCR’s no-evidence and traditional

summary judgment motions in Dimock’s action premised on negligence and premises

liability. On appeal, SCR contends (1) its evidence conclusively establishes its immunity

1 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.104(a)(15) (“A person may appeal from an
interlocutory order of a district court . . . that . . . grants or denies a motion for summary judgment filed by a
contractor based on Section 97.002.”). Throughout the remainder of this opinion, provisions of the Texas
Civil Practice and Remedies Code will be cited as “section ____” and “§ ____.”
under section 97.002 of the Texas Civil Practice and Remedies Code, and (2) the trial

court abused its discretion by overruling its objections to Dimock’s summary judgment

evidence. We affirm.

Background

The facts relevant to this appeal are as follows: in February 2018, SCR was

performing construction work on the bridge near the intersection of Farm-to-Market Road

433 and U.S. Highway 287 in Wilbarger County. Pursuant to a contract with the Texas

Department of Transportation, the bridge’s deck had been removed, and subcontractors

were cleaning up debris that had fallen below the bridge onto the intersecting road.

Around 8:00 a.m. on February 28, 2018, Dimock was driving a pickup on Highway

287 and exited onto the FM 433 ramp. At the time, no traffic control devices (such as

“Bridge Out” signage, barricades, and other warning devices) blocked Dimock’s access

to the FM 433 bridge.2 As Dimock drove on, he suddenly realized a portion of the bridge

was missing and applied his brakes. Nevertheless, the front end of his pickup slid over

the pavement’s edge and dropped approximately one to two feet onto the bridge’s deck.

Dimock sued SCR3 in district court, alleging he sustained personal injuries because of

SCR’s general negligence, as well as under a premises defect theory.

2 According to a property damage report prepared by Darryl Roberts, two “type 3 barricades”
(typically used to indicate road closures) were later found across the road and an eight-foot “Bridge Closed”
sign was “nowhere to be found.” During his deposition, Roberts said the barricades had been “stacked up.”
3 Dimock filed his original petition on February 12, 2020, against SCR and Lloyd D. Nabors
Demolition, LLC. Dimock agreed to nonsuit Nabors, and the trial court issued an order for nonsuit with
prejudice in November 2021.

2
Section 97.002 provides that a contractor who constructs or repairs a road for

TxDOT is not liable for personal injury, property damage, or death arising from the

performance of the construction or repair if, at the time of accident, “the contractor is in

compliance with contract documents material to the condition or defect that was the

proximate cause of the personal injury, property damage, or death.” TEX. CIV. PRAC. &

REM. CODE ANN. § 97.002. At its core, this appeal tests whether SCR conclusively proved

that it was in compliance with the relevant contracting documents at the time of Dimock’s

accident. The trial court denied SCR’s (second) no evidence and traditional motions for

summary judgment4 and overruled SCR’s objections to Dimock’s summary judgment

evidence.

SCR’s Position

SCR was the general contractor for the bridge project according to a contract with

TxDOT; it repeatedly characterized the traffic control devices as “missing” at the time of

Dimock’s accident. Per the TxDOT contract, SCR alleges it was required to replace

“missing” traffic control devices within 24 hours after receiving notice. SCR relies on the

affidavit of its project superintendent in charge of the traffic control devices, Darryl

Roberts, who states he had found the control devices to be in place when he “inspected”5

the jobsite at 7:30 p.m. on February 27, approximately 12 hours before the accident.6

4 SCR’s motion was filed April 12, 2023. It was denied on June 27, 2023.
5 During his deposition, however, Roberts said, “When I drove by, everything that we had put there

was there.”
6 Roberts’ affidavit says in relevant part, “On February 27, 2019, at approximately 7:30 p.m., I

inspected the barricades and warning signs indicating that the FM 433 bridge was closed. At that time, the
barricades and warning signs were in place. I received no notice that the barricades and warning signs . .
. were missing from the time I completed my inspection on the evening of February 27, 2018 until [I] arrived
at the FM433 bridge at approximately 8:00 a.m. on February 28, 2018.” (ellipsis added).

3
Theorizing that the control devices must have “gone missing” and/or were moved

between the time Roberts said he performed his inspection and the time of Dimock’s

accident, SCR argues it was in compliance with its contract when Dimock entered onto

the FM 433 bridge. In other words, SCR argues the district court erred in denying SCR’s

immunity via summary judgment because the contractor had not breached the 24-hour

obligation to remedy the “missing” control devices.7

Dimock’s Position

In addition to Dimock’s testimony about the accident, the Appellee presented an

affidavit of Jeff Harts, who is also employed in road construction. Harts stated that at 6:00

p.m. on February 27, he was traveling on FM 433 and approached the bridge. He said

that as he did so, “I saw that there were no barricades in place blocking traffic from

crossing the bridge. It was apparent that the road leading up to the bridge had been

cleared so dump trucks that were present could enter and exit to and from the bridge

platform.”

Dimock also criticized the accuracy of Roberts’ memory, directing the trial court to

deposition testimony wherein Roberts said he has been diagnosed with an onset of

Alzheimer’s, and although he remembers “most things,” he suffers from “cognitive

7 SCR also argued it was entitled to summary judgment on the merits of Dimock’s premises liability

claim, claiming there is no evidence that SCR knew the “missing” traffic control devices posed an
unreasonable risk of danger. See Gilbert v. Gilvin-Terrill, Ltd., No. 07-07-00206-CV, 2008 Tex. App. LEXIS
4348, at *10 (Tex. App.—Amarillo June 12, 2008, no pet.) (affirming grant of no-evidence motion for
summary judgment). However, that argument does not comprise the affirmative defense of immunity
serving as the basis for our exercising jurisdiction over this interlocutory appeal. See TEX. CIV. PRAC. &
REM. CODE ANN. § 51.104(a)(15) (permitting interlocutory appeal from denied motion for summary judgment
“filed by a contractor based on Section 97.002.”) (emphasis added).

4
memory loss.” Moments later, Roberts said, “There’s just a lot of things I can’t remember.

I remember a lot about this day.”

There is some testimony suggesting that Roberts’ crew had moved some of the

barricades as early as February 26, two days before the accident. In addition, Dimock

proffered Roberts’ testimony wherein he said that on the morning of February 28, before

the accident, Roberts drove underneath the FM 433 bridge, and could not see the “Bridge

Out” sign. The parties offer differing explanations as to why that could be the case.

Analysis

As noted above, when a TxDOT contractor is in substantial compliance with the

contract documents material to the defect that was the proximate cause of an injury,

section 97.002 affords the contractor immunity from liability for any injury resulting from

the performance of the construction or repair. TEX. CIV. PRAC. & REM. CODE ANN. § 97.002.

Immunity under section 97.002 is an affirmative defense. Brown v. RK Hall Constr., Ltd.,

500 S.W.3d 509, 514 (Tex. App.—Texarkana 2016, pet. denied).

SCR’s theory in the trial court and on appeal is that it was in compliance with its

contract notwithstanding the “missing” traffic control devices because Roberts said he

had “inspected” the placement of the barricades and warning signs and found them to be

proper approximately 12 hours before the accident. Presuming Roberts’ statement to be

true, SCR then reasons the signs must have “gone missing” due to windy conditions or

an act of vandalism.

SCR misunderstands its summary judgment burden. When a party moves for

summary judgment on an affirmative defense, it bears the burden of proof. Brown, 500

5
S.W.3d 509, 512 (Tex. App.—Texarkana 2016, pet. denied) (citing Peachtree Const., Ltd.

v. Head, No. 07-08-00020-CV, 2009 WL 606720, at *3 (Tex. App.–Amarillo Mar. 10, 2009,

no pet.) (mem. op.). Our Supreme Court has taught for more than 50 years that this

requires SCR to conclusively prove each element of its affirmative defense when it

pursues the defense at summary judgment. See Eagle Oil & Gas Co. v. TRO-X, L.P.,

619 S.W.3d 699, 705 (Tex. 2021); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).

That Roberts was the last human to view the jobsite where he said he viewed traffic

control devices in their proper place is not effective in serving as conclusive summary

judgment evidence. “Undisputed evidence and conclusive evidence are not the same—

undisputed evidence may or may not be conclusive, and conclusive evidence may or may

not be undisputed.” City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

Undisputed evidence only becomes conclusive when there is only a single logical

inference, i.e., when “reasonable people could not differ in their conclusions, a matter that

depends on the facts of each case.” Id. at 815–16.8 SCR failed to present conclusive

evidence.

SCR’s theory that it complied with its contractual requirements regarding traffic

control devices on February 28 fatally depends on an assumption that no reasonable

person could disbelieve Roberts’ statements about what he observed the night before.

But summary judgment is inappropriate if the credibility of the affiant or deponent is likely

to be a dispositive factor in the resolution of the case. Casso v. Brand, 776 S.W.2d 551,

8 As a reviewing court, we are required to examine the record in the light most favorable to Dimock

as the non-moving party, and to “indulg[e] every reasonable inference and resolv[e] any doubts against”
SCR’s motion. Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021) (affirming rejection
of summary judgment motion because defendant did not conclusively establish affirmative defense).
6
558 (Tex. 1989). Though jurors at trial might ultimately agree with SCR, we find that the

state of this record is such that reasonable jurors could disagree about whether Roberts’

statements were untrue, or misinformed, or inaccurate due to a loss of memory. The trial

court was thus required to deny SCR’s motion for summary judgment.

We hold the trial court correctly denied the motion for summary judgment because

SCR did not prove each element of its affirmative defense with conclusive evidence. At

bottom, reasonable jurors could determine that Roberts’ proffered testimony was either

true or untrue, rendering such evidence to be inconclusive as a matter of law. City of

Keller, 168 S.W.3d at 815. SCR’s first issue is overruled.

Because SCR failed to carry its summary judgment burden, it was unnecessary

for Dimock to present any controverting evidence in response. See Casso, 776 S.W.2d

at 556 (Tex. 1989). Accordingly, we decline to consider SCR’s second issue regarding

whether portions of Dimock’s summary judgment evidence were admissible. TEX. R. APP.

P. 47.1; Heinert v. Wichita Falls Hous. Auth., 441 S.W.3d 810, 824 (Tex. App.—Amarillo

2014, no pet.).

Conclusion

The judgment of the district court is affirmed.

Lawrence M. Doss
Justice

7