Big Creek Construction, LTD. v. Jim Sinkule, Individually and as Parent and Next Friend of Brent Sinkule, Carlos Cross, Individually as Parent and Next Friend of Darius Cross, Thomas Buchak, Individually and as Parent and Next Friend of John Buchak, and Tony Brown, Individually and as Parent and Next Friend of Tyler Brown

Court of Appeals
Tenth Appellate District of Texas

10-24-00224-CV

Big Creek Construction, Ltd.,
Appellant

v.

Jim Sinkule, Individually and as Parent and Next Friend of Brent
Sinkule, Carlos Cross, Individually as Parent and Next Friend of
Darius Cross, Thomas Buchak, Individually and as Parent and Next
Friend of John Buchak, and Tony Brown, Individually and as Parent
and Next Friend of Tyler Brown,
Appellees

On appeal from the
66th District Court of Hill County, Texas
Judge Lee Harris, presiding
Trial Court Cause No. CV510-21DC

SENIOR JUSTICE GABRIEL delivered the opinion of the Court.

MEMORANDUM OPINION

In this interlocutory appeal, appellant Big Creek Construction, Ltd. [Big

Creek] challenges the trial court’s order denying its No-Evidence and

Traditional Motion for Summary Judgment, filed in this suit brought against

it by the appellees, Jim Sinkule, Individually and as Parent and Next Friend
of Brent Sinkule, Carlos Cross, Individually and as Next Friend of Darius

Cross, Thomas Buchak, Individually and as Parent and Next Friend of John

Buchak and Tony Brown, Individually and as Parent and Next Friend of Tyler

Brown. In its first issue, Big Creek contends the trial court erred in denying

its summary judgment motion based on section 97.02 of the Texas Civil and

Practice Remedies Code. 1 In its second issue, Big Creek argues that the trial

court erred in overruling its objections to the affidavit of appellee’s expert, D.

Rowland Lamb. Because we conclude that genuine issues of material fact exist

as to the first issue and that we have no jurisdiction to consider the second

issue on an interlocutory appeal, we overrule issue one, dismiss issue two and

affirm the denial of Big Creek’s motion for summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

The event giving rise to this lawsuit was a single-vehicle accident that

occurred in October 2019 on FM 2114 in Hill County, Texas. The issues on

appeal concern a contract and compliance with that contract. In November

2018, appellant, Big Creek contracted with the Texas Department of

Transportation [TxDOT] to recondition and repave portions of FM 2114 in

McLennan and Hill County, Texas.

1 See TEX. CIV. PRAC. & REM. CODE ANN. §51.014(a)(17) (authorizing an appeal from an interlocutory

order denying a contractor’s motion for summary judgment based on TEX. CIV. PRAC. & REM. CODE
ANN. §97.002).

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 2
The TxDOT contract with Big Creek contained plans and specifications

for the project. The applicable 2014 TxDOT Standard Specifications included:

b. Sequence of Construction

....

4. In 2-mile roadway sections
a. Prep and widen subgrade using excavation and embankment
b. Reclaim existing material and spread evenly
c. Cement treat
d. Construct new flexible and prime coat treatment
e. Place temporary pavement markings
f. Place temporary seeding

5. When full roadway construction is completed, construct HMA
(hot mix asphalt) over full width of roadway, backfill pavement
edges as necessary.

The TxDOT contract also included Barricade and Construction Standard

General Notes which made it clear which contracting party was responsible for

making the decisions concerning traffic control plans, barricade development,

design and use and who was responsible for performing the work according to

the directives:

2. The development and design of the Traffic Control Plan (TCP)
is the responsibility of the Engineer.

....

4. The contractor is responsible for installing and maintaining the
traffic control devices as shown in the plans. The Contractor may
not move or change the approximate location of any device without
the approval of the Engineer.

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 3
....

9. As necessary, the Engineer will determine the most appropriate
traffic control devices to be used.

10. The Engineer has the final decision on the location of all traffic
control devices.

The summary judgment record contains the deposition testimony of Josh

Voiles, the TxDOT area engineer for the area where this accident occurred. He

identified the site of the accident as a bridge referred to as Brushy Creek STR

014. He acknowledged that there was some guardrail damage on bridges

included in this job, but nothing that required replacement of the rail itself.

He also explained that when there was “guard fence damage, it’s a best practice

to - - install some type of delineation or notification, whether that’s barrels or

cones or sometimes a sign.” Voiles testified that Eric Hudson was the TxDOT

inspector on this project who served as the “day-to-day eyes and ears on that

job.” Voiles described the allocation of responsibilities between the engineer,

the inspector and the contractor. He detailed that the TxDOT inspector is

someone “trained and certified in traffic control inspections.” He explained

that Hudson would “drive” the project to inspect for safety issues. When one

was identified, if it was something “standard,” such as the need for installation

of barrels, then the inspector could direct the contractor to perform that task

on behalf of the engineer.

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 4
Voiles also testified concerning documentation used by inspectors when

they did their daily inspections. He explained that a daily work report [DWR]

would be generated by an inspector that would document the “general work

that’s going on.” Voiles was shown a DWR for the four days preceding the

accident. On the DWR for October 1, 2019, there was a notation that directions

were given to install guardrail damage “signs where SGT is sagging at

guardrails on Brushy Creek STR 014.” (emphasis added) Voiles was shown

the DWRs from the days following October 1st, but preceding the accident, and

from his review, it appeared as though the inspector was looking at the

guardrails daily and made no notations that there was any further issue with

the sagging guardrail. He also expressed that the reports did not reflect any

indication that the directions of October 1st had not been complied with.

However, Voiles did point out a compliance issue on a separate concern. He

acknowledged that on October 4th there were “similar directions” to remove

the windrow material under the guardrail as given the day before.

Voiles explained that TxDOT had a Work Zone Awareness review team

that would pick “a couple of random jobs a month” to serve as an extra set of

eyes on a job to look for minor issues. This team would prepare a report that

TxDOT would then share with the contractors to get issues resolved that had

not been resolved. When presented with a Work Zone Awareness team report

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 5
dated October 2nd, Voiles testified that the report showed no indication of any

issues with Brushy Creek STR 014 on that date.

Voiles was shown pictures of the bridge at Brushy Creek STR 014 taken

after the accident on October 5, 2019. He agreed that the pictures depicted

orange barrels with white reflective stripes at each end of the bridge. Voiles

explained that the intent of orange barrels is to “delineate that there is

something there . . . .” He stated that “[o]range is like a standard like traffic

control color, orange and white, barrels, signs, cones. It’s typically a work

zone.” 2

After that acknowledgment, the following colloquy occurred:

Q. [By Big Creek’s attorney]: Based upon the DWR summary and
your knowledge of the contract – and these barrels, can you tell us
whether or not Big Creek was complying with the contract
requirements?

A. Yeah, I would – I would – say the fact that they got the barrels
out there like – obviously, I don’t know – there was nothing in the
DWR continuing to say that the work was completed. But since
there was nothing continually going on, I would say that that’s the
expectation of my inspector, that it was met and that they got out
there something. So I would say that they were meeting the
requirements of the inspector that was on the job. If not, I think
we would have – he would have continued to – to request
something additional.

2 Voiles referred to the Manual on Uniform Traffic Control Devices for Streets and Highways

promulgated by the Federal Highway Administration of the U.S. Department of Transportation as his
source for what the color orange meant.

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 6
In the same photographs Big Creek’s attorney directed Voiles to review,

there was depicted “material that the inspector was asking be removed from

along the guardrails.” Voiles confirmed the “material” was present in the

photograph taken the day of the accident. Voiles explained that the material

was what was referred to as a windrow. He clarified that a windrow was

created when the crew would be “working through the sequence of operation”

which would necessarily result in “windrows like we saw in those photographs”

forming under the guardrails on the side of the road. The material would be

the result of the pulverization of the existing roadway and the reclamation of

flexbase material that was to be spread evenly at the side of the road. This

windrow material would then be used at the end of the process to help backfill

pavement edges to eliminate a drop off at the edge of the road.

Voiles also testified that while working through the sequence of

operations, the windrows were an expected result of this type of flexbase work.

He explained that the photos showed yellow reflective tabs or yellow

delineators going down the center line of the bridge that appeared to serve the

channelizing purpose of directing traffic from the middle of the road to the

proper side lane of traffic. When asked if Big Creek was fully in compliance

with the contractual conditions, even considering the windrows that existed,

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 7
Voiles opined that Big Creek was meeting all the contractual requirements at

the time of the accident.

The deposition of Eric Hudson is also contained in the summary

judgment record. Hudson testified that he was the TxDOT inspector on this

project and responsible for preparing the daily reports. Hudson’s DWR for

October 1, 2019 contained a direction to Big Creek to install guardrail damage

“signs where SGT is sagging at guardrails on Brushy Creek STR Number 014.”

(emphasis added) Hudson stated he probably gave the directions to the general

foreman of Big Creek. Hudson agreed that it was his idea to put barrels at the

end of the bridge. When asked if that was the “proper treatment” for the

sagging guardrail, he responded “Yes, and signs.” He also opined that the

barrels were the proper treatment until the signs were available and that

would have been what TxDOT would have done in a similar situation. When

asked if he took any exception to any of the traffic control at the accident

location that was in place at the time of the accident, Hudson responded:

“There was no traffic control there for that – before the accident except for the

barrels.” He also explained “I think the signs came after, I do believe, I’m not

sure. Couldn’t – I don’t know right offhand, but I think they were added right

after because he asked me for them. That tells me they didn’t have them.”

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 8
On the October 3rd DWR, Hudson gave directions to “remove builtup

flexbase under[ ] g[ua]r[dr]ails and sides of roadway for proper drainage if rain

comes as predicted.” The same directions were repeated on October 4th, the

day before the accident. When asked the reason why he gave directions to

remove the flexbase material on the side of the road, Hudson agreed that the

DWR noted concerns about proper drainage due to anticipated rain. 3 He also

acknowledged that windrows were typical in a project such as this. However,

when questioning was pursued by asking whether he had any other concerns

about the material along the side of the road, Hudson answered: “No. We just

– we want it off the road. . . . But I just wanted it off the side of the road.”

Similar directions were repeated three days after the accident — on October

7th, 2019 — however the reference to concerns about rain was omitted. It is

undisputed that the flexbase material or windrow was not removed prior to the

accident.

Seth Nichols was Big Creek’s Project Superintendent for this project. He

confirmed that he received information from Hudson on October 1, 2019

concerning a sagging guardrail and to address this, Nichols placed two barrels

at each end of the guardrail. Nichols testified that Big Creek’s crews moved

further down the road on October 2nd and no other traffic control was set up

3 It is undisputed that there was no rain and no pooling of water that could have contributed to the

accident on October 5, 2019.

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 9
before the accident at the bridge occurred. Nichols acknowledged that Hudson

gave directions to get the windrow off the roadway and conceded that the crew

“just hadn’t got to that particular bridge yet.” When questioned as to whether

the windrow under the guardrail could create a safety hazard, Nichols testified

that it “could.” When he was shown a photograph of the windrow under the

guardrail at Brushy Creek STR 014, he stated he did see that the buildup of

windrow material spanned from the ground to “near the top of the guardrail”

and agreed that condition could operate as a “ramp” that could defeat the

purpose of the guardrail—which was to divert a vehicle if it makes contact with

the guardrail and to keep it from going into the creek— and instead could

result in a vehicle going over the guardrail into the creek below.

The testimony of Greg Amber, Big Creek’s corporate representative, is

also contained in the summary judgment record. Amber stated that when Big

Creek was directed by TxDOT to put up signs to delineate the sagging

guardrail, they instead put up barrels until they got the signs. He also testified

that Big Creek was directed to remove the windrow on October 3rd; however,

he agreed that the photographs depicted that it was not done prior to the

accident. After acknowledging that Big Creek had a safety department for

their projects, Amber was asked if TxDOT or Big Creek noticed a safety issue,

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 10
his company would take “immediate action because that’s what [Big Creek has]

been instructed to do, correct?” Amber responded: “Absolutely.”

In the early morning hours of Saturday October 5, 2019, sixteen-year-old

Tyler Petter was driving his 1997 Dodge Ram 3500 pickup on FM 2114 in Hill

County; a location within the work zone designated in the contract. Petter had

four other teenage boys as passengers — John Buchek, Brent Sinkule, Darius

Cross and Tyler Brown. Petter struck the guardrail at Brushy Creek STR 014

and then went over the guardrail causing his vehicle to land upside down in a

culvert in Brushy Creek below. The underlying case is a negligence action

arising from personal injuries sustained by the passengers due to alleged

hazardous conditions created by Big Creek as well as Big Creek’s failure to

sufficiently warn drivers of the construction or the dangerous conditions on the

roadway. 4 The appellees have alleged both negligence and gross negligence

against Big Creek.

The appellees allege in their personal injury lawsuit that the guardrail

on the bridge where the accident occurred was damaged to such a degree that

it stuck out into the roadway, creating a dangerous condition that resulted in

the accident. The appellees also claim that the flexbase material or windrow

under the guardrail created a dangerous condition because it served as a ramp

4 Tyler Petter, the driver of the pickup, was initially brought into the lawsuit by a third-party petition

of Big Creek. His alleged conduct has no bearing on the outcome of this appeal.

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 11
which caused the pickup to be directed over the guardrail rather than back into

the roadway. The appellees claim that there were no barrels or other traffic

control devices to give notice of these dangerous conditions at each end of the

bridge on the morning of the accident. The appellees maintain that there was

insufficient notice of the hazardous conditions which were created by Big

Creek.

Petter gave differing accounts of how the accident occurred. When he

first called 911, he simply told the operator that he had gone over the guardrail.

When he spoke to the trooper at the scene of the accident, he recounted that

he hit a pothole, lost control and then hit the guardrail and went over. In his

deposition testimony, Petter stated,

[he] hit the front right wheel of the truck on the guardrail that was
sticking out. And – which caused the steering to break. And once
that happened, the rear dual hit the guardrail and caused me to
come up on the guardrail and I had no control, and we kept going
down the rail and went off and hit the embankment on the other
side.

When asked if he remembered if there were barrels at the end of the bridge, he

responded “I never saw none.”

In his deposition, John Buchak testified that he remembered,

looking up and seeing the yellow and black stripes on the
guardrail, and, like – I just remember us hitting it and the
guardrail was bent. I would say, like, a quarter of the way in the
road it was bent, and I remember it just being turned and, like – I
just remember us hitting it and then riding the guardrail.

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 12
In his affidavit, Jim Sinkule stated that he drove the area of road where

the accident happened “almost every day.” He averred that he would have

driven in that exact area a day or two before the accident and that while he

had seen “damage to the guardrail,” he had not seen barrels at the end of the

bridge or cones on the roadway to warn motorists of the guardrail damage.

Sinkule received a phone call early on the morning of October 5, 2019 telling

him about the accident. He specified that he arrived at the scene of the

accident at approximately 6:15 to 6:20 a.m. and that there were no barrels at

the ends of the bridge upon his arrival. When shown pictures that Big Creek

assert show barrels present on the ends of the bridge immediately after the

accident, Sinkule countered that they were not there. He explained that at

approximately 7:00 to 7:15 a.m., he saw a Big Creek employee putting cones

along the damaged guardrail and bridge.

D. Rowland Lamb is a professional engineer who was timely designated

by the appellees to offer his expert opinion in this case and certain of his

opinions were timely disclosed. In their response to Big Creek’s Motion for

Summary Judgment, appellees included Lamb’s first affidavit containing his

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 13
professional opinion on multiple issues raised by the motion. This affidavit

was considered by the trial court in his ruling on the defendant’s motion. 5

In his affidavit, Lamb detailed the factual background that had been

provided to him to include the assertion that when the driver approached the

bridge the guardrail was damaged to the extent that it was “protruding out

into the roadway.” He stated that he was “advised there is a conflict between

the parties of whether or not the barrels were in place at the time of the

incident . . . .” Lamb concluded that “[r]egardless of whether or not there were

warnings . . . those warnings were inadequate to alert drivers of the actual

construction and conditions of the roadway.” He further concluded that when

the vehicle entered the portion of the roadway where the accident occurred, the

delineator cones directed the vehicle to the edge of the roadway and the

windrow caused it to go over the guardrail and into the culvert below.

Based on the facts and documents he reviewed and utilizing his

experience and education, Lamb made the following findings:

a. During construction of the roadway, a windrow of excess
flexbase material was stockpiled along the shoulder of the roadway
abutting the guardrail. At the location of the subject crash, the
windrow was less than 30 feet from the travel lanes and under the
guardrail and protruded toward the travel lane.

5 Big Creek objected to Lamb’s report based on appellees’ failure to disclose all of Lamb’s opinions prior

to the deadline for discovery supplementation contained in the court’s scheduling order. The affidavit
was filed after that deadline. The trial overruled Big Creek’s objection and considered the affidavit in
ruling on the motion. Big Creek’s complaint about the trial court’s ruling on this motion forms the
basis of their second issue on appeal.

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 14
b. The height of the windrow was approximately 8 to 12 inches,
which created a ramp from the roadway over the guardrail.

c. The placement and height of the windrow effectively eliminated
the ability of the guardrail to contain traffic within the roadway.

d. Channelizing devices were placed along the centerline (lane
line) of the roadway directing traffic to the edge of the roadway.

e. The guardrail was damaged at the time and there was no
warning signs to notify the travelling public of the damaged
guardrail at the time of the incident.

....

h. Sheet 39 of the plans for the subject construction project, (Bates
number BCC000261 and TxDOT Traffic Standard BC(10)-21)
shows the recommended location and traffic control for material
stockpiles. This includes:

i. Placement of the stockpiled material outside of the clear
zone.

ii. Using 2 drums or a type 3 barricade at each end of the
stockpile.

iii. When the stockpile is within 30 feet of the travel lanes,
place[ment] of channelizing devices parallel to the stockpile
with a maximum of 50 feet spacing.

....

j. Prior to the incident, TxDOT directed Big Creek to remove the
windrow, and Big Creek failed to follow the direction.

Based on his factual findings, Lamb rendered the following opinions

based on a reasonable degree of engineering probability:

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 15
i. The windrow of material placed under the guardrail was not
properly placed or properly delineated with traffic control devices,
creating a hazardous roadside condition.

ii. The effective height of the guardrail was reduced substantially
by Big Creek’s action in creating the windrow, which prevented the
guardrail from being able to redirect the truck driven by Tyler
Petter back into the roadway, as opposed to over the guardrail and
into the creek bed below.

....

iv. The placement of the stockpile material (windrow) did not
comply with the plans or the TxDOT standards.

v. The lack of placement of channelizing devices along the stockpile
(windrow) did not comply with the plans of the TxDOT standards.

....

vii. Even if there were two devices placed at the west end of the
subject guardrail, they would have been insufficient to channelize
traffic and would not have been in compliance with the TxDOT
Standards or the [Texas Manual on Uniform Traffic Control
Devices (TMUTCD)].

Big Creek filed its No-Evidence and Traditional Motion for Summary

Judgment on March 1, 2024. Big Creek filed its objection to the affidavit of D.

Rowland Lamb P.E. on June 17, 2024. The trial court signed an order denying

Big Creek’s hybrid motion for summary judgment on July 3, 2024. Big Creek

filed a Notice of Interlocutory Appeal on July 8, 2024. The trial court signed

an order denying Big Creek’s objections to Lamb’s affidavit on July 18, 2024.

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 16
II. DISCUSSION

In their first issue, Big Creek maintains that the trial court erred by

denying the no-evidence and traditional motion for summary judgment based

on statutory immunity pursuant to Texas Civil Practice and Remedies Code

section 97.002. In their second issue, they argue that the trial court erred by

overruling their objection to Lamb’s affidavit and considering it in the ruling

on the motion for summary judgment.

A. Appellate Court’s Jurisdiction

“Courts always have jurisdiction to determine their own jurisdiction.”

Hous. Mun. Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex. 2007). “A

court should only reach an issue on the merits after assuring itself of its

subject-matter jurisdiction.” Tex. Right to Life v. Van Stean, 702 S.W.3d 348,

355 (Tex. 2024).

We have jurisdiction over the interlocutory appeal from an order denying

a contractor’s motion for summary judgment based on section 97.002 of the

Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE

ANN. §51.014(a)(17). We only have jurisdiction in a case such as this one

because the statute explicitly provides appellate jurisdiction on the issue of

immunity alone. See Sanchez v. Boone, 579 S.W.3d 526, 531 (Tex. App.—

Houston [14th Dist.] 2019, pet. denied); Baylor Coll. Of Med. V. Hernandez, 208

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 17
S.W.3d 4, 7 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). We must

strictly construe statutes authorizing interlocutory appeals because such a

statute authorizes an appeal in derogation of the general rule that only final

judgments are appealable. Round Table Physicians Grp., PLLC v. Kilgore, 607

S.W.3d 878, 887 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (citing

Tex. A&M Univ. Sys. V. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). For

instance, we have jurisdiction over an interlocutory appeal from an order

denying a plea to the jurisdiction based on an official’s “assertion of immunity”

under Civil Practice and Remedies Code section 51.04(a)(5), but in the same

appeal lack jurisdiction to consider collateral arguments that are not based on

assertions of immunity. Sanchez, 579 S.W.3d at 536-537.

This appellate court has jurisdiction over appellant’s first issue under

Texas Civil Practice and Remedies section 51.014 which reads as follows:

(A) person may appeal from an interlocutory order of a district
court, a county court at law, a statutory probate court, a county
court, or the business court that:

....

(17) grants or denies a motion for summary judgment filed by
a contractor based on Section 97.02.

Appellant’s second issue is “Did the Trial Court err in overruling Big

Creek’s objections to the untimely, previously undisclosed opinions in the

Lamb Affidavit in ruling on Big Creek’s Motion for Summary Judgment?” In

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 18
the discussion on the issue, appellant strays into arguments focused on

violations of the Texas Rules of Civil Procedure and ultimately asks this court

to find the trial court committed error in overruling the objections and by

considering the affidavit. This issue—based on the argument that an affidavit

was inadmissible and thus improperly considered—is not an assertion of

immunity. We conclude that under the plain language of Civil Practice and

Remedies Code section 51.014(a)(17), we lack interlocutory-appellate

jurisdiction over Big Creek’s second issue. See id.

B. Standard of Review on Issue One

We review summary judgments de novo. Travelers Ins. v. Joachim, 315

S.W.3d 860, 862 (Tex. 2010). When, as here, a party moves for summary

judgment under both Rules 166a(c) and 166a(i) in a hybrid motion, we will first

review the trial court’s judgment under Rule 166a(i)’s standards. Ford Motor

Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If a no-evidence motion for

summary judgment is proper in a case, in order to prevail the movant must

first allege that no evidence supports one or more essential element on a claim

or affirmative defense on which the non-movant would have the burden of proof

at trial. See TEX. R. CIV. PROC. 166a(i). The burden then shifts to the

nonmovant to present evidence raising a genuine issue of material fact as to

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 19
each element specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W3d

572, 582 (Tex. 2006).

When reviewing a no-evidence summary judgment, we examine the

entire record in the light most favorable to the nonmovant, indulging every

reasonable inference and resolving any doubts against the motion. Sudan v.

Sudan, 199 S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary

judgment for evidence that would enable reasonable and fair-minded jurors to

differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.

2008) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). We

credit evidence favorable to the nonmovant if reasonable jurors could, and we

disregard evidence contrary to the nonmovant unless reasonable jurors could

not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (citing Mack

Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant

brings forward more than a scintilla of probative evidence that raises a genuine

issue of material fact, then a no-evidence summary judgment is not proper.

Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

To prevail on a traditional summary-judgment motion, the movant must

establish that no genuine issue of material fact exists and the trial court should

grant judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 20
Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).

We take as true all evidence favorable to the nonmovant, and we indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor.

Valencia Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

C. Applicable law

Texas law provides:

A contractor who constructs or repairs a highway, road, or
street for the Texas Department of Transportation is not liable to
a claimant for personal injury, property damage, or death arising
from the performance of the construction or repair if, at the time
of the personal injury, property damage, or death, 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 §97.002.

Statutory immunity under section 97.002 is an affirmative defense.

Brown v. Const. Ltd., 500 S.W.3d 509, 512 (Tex. App.—Texarkana 2016, pet.

denied); Peachtree Constr. Ltd. v. Head, No. 07-08-0020-CV, 2009 WL 606720,

at *3 (Tex. App.—Amarillo Mar. 10, 2009, no pet.) (mem. op.). The party

asserting an affirmative defense bears the burden of pleading and proving its

elements. Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 481 (Tex.

2001). An affirmative defense is a denial of the plaintiff’s right to judgment

even if the plaintiff establishes every claim in the pleadings. Walzier v.

Newton, 27 S.W.3d 561, 563 (Tex. App.—Amarillo, no pet.)

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 21
D. No-evidence motion for summary judgment

Big Creek filed a no-evidence motion for summary judgment on their own

“claim,” the affirmative defense contained in section 97.002. “A defendant

urging summary judgment on an affirmative defense is in the same position as

a plaintiff urging summary judgment on a claim.” Nowak v. DAS Investment

Corp. 110 S.W.3d 677, 680 (Tex. App.—Houston [14th Dist.] 2003, no pet.)

“Thus, a defendant urging summary judgment on an affirmative defense must

come forward with summary judgment evidence for each element of the

defense.” Id.

Nevertheless, Big Creek’s hybrid motion contained six no-evidence

points, four of which might be relevant to this appeal:

1. There is no evidence that Big Creek had actual knowledge of any
dangerous condition at the Incident Location prior to the Incident.

2. There is no evidence that the traffic control at the Incident
Location was other than the signs and barrels at the end of the
guardrails that TxDOT approved.

3. There is no evidence that the traffic control at the Incident
Location failed to satisfy TxDOT’s inspections throughout the days
before the Incident.

4. There is no evidence that the traffic control at the Incident
Location failed to meet TxDOT’s inspection prior to the Incident.

Under Texas procedural rules, a defendant cannot use a no-evidence

motion for summary judgment to establish an affirmative defense. Haver v.

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 22
Coats, 491 S.W.3d 877 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

“Although a plaintiff may move for no-evidence summary judgment on the

ground that there is no evidence of one or more essential element[ ] of an

affirmative defense that the defendant alleged and has the burden to prove, a

defendant must file a traditional motion for summary judgment if it wishes to

establish each element of that defense as a matter of law. See FDIC v. Lenk,

361 S.W.3d 602, 609 (Tex. 2012). See The Honorable Judge David Hittner &

Lynne Liberato, Summary Judgments in Texas, 54 Baylor L.Rev. 1, 62 (2002)

(stating that “[a] party may never properly urge a no-evidence summary

judgment on the claims or defenses on which it has the burden of proof”). If we

were to allow Big Creek to prevail on the no-evidence portion of their motion

for summary judgment, it would be the same as allowing a movant to prevail

on traditional motion for summary judgment without proving its claim as a

matter of law. We cannot allow Big Creek to prevail on the no-evidence portion

of their motion for summary judgment. See Nixon v. Mr. Prop. Mgmt. Co., 690

S.W.2d 546, 548 (Tex. 1985). 6 The trial court did not err by denying the no-

evidence portion of the motion for summary judgment.

6 Even if we were to consider Big Creek’s no-evidence issues as briefed, as detailed above and discussed

below, appellees presented evidence that raised a genuine issue of material fact which also precludes
granting their motion on each of the points listed herein.

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 23
E. Traditional Motion for Summary Judgment

When a defendant moves for a matter-of-law summary judgment on an

affirmative defense, it must plead and conclusively establish each essential

element of that affirmative defense, thereby defeating the plaintiff’s cause of

action. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Centeq Realty

Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). “A defendant who . . .

conclusively establishes an affirmative defense is entitled to summary

judgment.” Big Creek Constr. Ltd. v. Sustaita, No. 10-25-00033-CV, 2025 WL

2170348 at *2 (Tex. App.—Waco July 31, 2025, no pet.). If the movant carries

this burden, the burden then shifts to the nonmovant to raise a genuine issue

of material fact precluding summary judgment. Id; See Lujan v. Navistar, Inc.,

555 S.W.3d 79, 84 (Tex. 2018). We take as true all evidence favorable to the

nonmovant, and we indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor. Valencia Operating Co. v. Dorsett, 164 S.W.3d 656,

661 (Tex. 2005).

Big Creek repeatedly refers to the evidence they argue supports their

traditional motion as “undisputed.” Labeling it as such does not make it so.

The disputes in the evidence are laboriously detailed above. We conclude that

appellees’ evidence, which we must consider as true, defeats Big Creek’s claim.

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 24
Having found that we have no jurisdiction to consider Big Creek’s second

issue, we look at the same evidence that the trial court considered. The Lamb

affidavit addresses issues Big Creek claims are undisputed and his opinions

create genuine issues of material fact concerning whether Big Creek is

protected by statutory immunity under section 97.002 of the Texas Civil

Practice and Remedies Code. Appellees’ Third Amended Original Petition

alleged that Big Creek’s negligence included inadequate striping of the road as

well as failure to place adequate reflectors, cones, barrels, signs or warning

devices to give notice of the dangerous conditions on the road. They also

alleged that Big Creek failed to “remove the debris along the inside of the

guardrail.” The evidence is undisputed that Big Creek was instructed prior to

the accident by TxDOT Inspector Hudson to remove the windrow from under

the guardrail at Brushy Creek STR 014. It is also undisputed that the DWR

for the day before the date of the accident repeated the instruction, as did the

DWR for October 7, 2019, three days after the accident. Big Creek’s Project

Superintendent Nichols testified that the crew had not performed the

requested work at the time of the accident. Even Big Creek’s corporate

representative testified that the windrow was still present at the time of the

accident. Nichols also conceded that the windrow could have the effect of

defeating the purpose of the guardrail—to direct vehicles back onto the

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 25
roadway—and instead could operate as a ramp to direct the vehicle over the

guardrail. Lamb opined that within a reasonable degree of engineering

probability that “the placement of the windrow and the lack of placement of

channelizing devices, and the failure of Big Creek to follow the plans and

directions of TxDOT, were all proximate causes of the vehicle going over the

guardrail and into the creek bed.”

Another alleged “undisputed” fact asserted by Big Creek concerned the

presence of barrels placed at each end of Brushy Creek STR 014 before and on

the day of the accident. We recognize that there was evidence to show that

there were barrels in place, but there was also testimony disputing the

presence of barrels. This creates a fact issue on a genuine issue of material

fact.

Viewing all the evidence in the light most favorable to appellees, we

conclude that reasonable people could disagree regarding whether Big Creek

substantially complied with the contract conditions that would warrant an

immunity defense under section 97.002. The trial court did not err when it

denied Big Creek’s traditional motion for summary judgment under section

97.002. See Austin Materials, LLC v. Rosado for Troche, No. 03-22-00201-CV,

2023 WL 3666107, at *6 (Tex. App.—Austin May 26, 2023, pet. denied) (mem.

op.). We overrule issue number one.

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 26
F. Conclusion

We dismiss Big Creek’s second issue on appeal because we lack

interlocutory appellate jurisdiction over that issue. Having overruled Big

Creek’s first issue on appeal, we affirm the trial court’s order denying Big

Creek’s hybrid motion for summary judgment.

LEE GABRIEL
Senior Justice

OPINION DELIVERED and FILED: January 29, 2026
Before Chief Justice Johnson,
Justice Smith, and
Senior Justice Gabriel 7
Affirmed
CV06

7 The Honorable Lee Gabriel, Senior Justice (Retired) of the Second Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Texas.

Big Creek Constr., Ltd. v. Jim Sinkule, Ind. and as Parent and Next Friend of B.S. Et al. Page 27