Austin Materials, LLC v. Rosado

• Docket Number: 03-22-00201-CV
• Decision Date: 26 May 2023
• Parties: Austin Materials, LLC, Appellant v. Christina Rosado, as Guardian for Sonia Troche, an Incapacitated Person; Julizandra Cedeno; Lyzandra Cedeno; and Kazandra Cedeno, Appellees
• Court: Texas Court of Appeals

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Austin Materials, LLC, Appellant v. Christina Rosado, as Guardian for Sonia Troche, an Incapacitated Person; Julizandra Cedeno; Lyzandra Cedeno; and Kazandra Cedeno, Appellees

No. 03-22-00201-CV

Court of Appeals of Texas, Third District, Austin

May 26, 2023

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO D-1-GN-19-006091, THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING

Before Justices Baker, Theofanis, and Jones ^[*]

MEMORANDUM OPINION

Rosa Lopez Theofanis, Justice

This is a dispute over a multi-vehicle accident that seriously injured Sonia Troche. Austin Materials appeals from the trial court's denial of its motion for summary judgment, which argued that it is immune from suit under Section 97.002 of the Civil Practice and Remedies Code. See Tex. Civ Prac. & Rem. Code § 51.014(a)(15) (authorizing appeal of order that "grants or denies a motion for summary judgment filed by a contractor based on Section 97.002"). Austin Materials also attempts to appeal from an order granting Troche's partial motion for summary judgment. We affirm the first order and dismiss the appeal of the second for want of jurisdiction.

BACKGROUND

On April 17, 2019, Sonia Troche was driving westbound on I-10 in Seguin when she encountered an unexpected traffic slowdown. As she slowed, Christopher Ferguson came up behind her in an eighteen-wheel tractor trailer. Ferguson was unable to stop in time and collided with the rear of her vehicle. Ferguson died, and Troche sustained injuries that left her incapacitated. The accident occurred in a construction zone controlled by Austin Materials, an asphalt paving company that was performing road construction work approximately two miles away under contract with the Texas Department of Transportation (TxDOT).

Troche's guardian sued Austin Materials on her behalf alleging that it failed to place an electronic sign warning motorists of the lane closure in the correct location and that this failure caused Troche's injuries.^[1] The placement of the sign was allegedly required by Austin Materials' contract with TxDOT. The contract requires Austin Materials to "perform the work in accordance with the provisions of the referenced specifications and special provisions which are a part of this contract." Those specifications included TxDOT's "Standard Specifications for Construction and Maintenance of Highway, Streets and Bridges," which requires Austin Materials to provide "a safe and comfortable passage for vehicular and pedestrian traffic with minimal inconvenience to the public as shown in the plans." The "plans" refer to Traffic Control Plan (6-1)-12. TCP (6-1)-12 requires placement of a "portable changeable messages sign" (PCMS) displaying "appropriate information" such as "MERGE LEFT," the recommended advisory speed, or information about delays. TCP (6-1)-12 states that the PCMS should be placed 3,600 feet from the beginning of the construction zone. Troche alleged that Austin Materials placed the PCMS sign 1.1 miles away from that location.

Austin Materials filed a motion for summary judgment with traditional and no-evidence grounds. In its traditional motion, Austin Materials argued that Ferguson's failure to control his speed was an unforeseeable event that negated causation and, in the alternative, that it was entitled to immunity because it complied with TCP (6-1)-12. See Tex. Civ. Prac. & Rem. Code § 97.002 (providing immunity for road contractors from negligence suits if "the contractor is in compliance with contract documents material to the condition or defect" that allegedly caused injury). Austin Materials attached to its motion, inter alia, excerpts from the depositions of TxDOT area engineer Will Lockett and inspector Victor Abrego; the declaration of Austin Materials' construction manager, Alex Flores; and TxDOT's discovery answers. Austin Materials also asserted a no-evidence point alleging Troche had no evidence that the sign placement caused her injuries.

Troche filed a response and attached excerpts from Austin Materials' daily work report for the date of the accident; the declarations of Austin Materials' work superintendent, Charles Anthony Martinez and crew foreman Juan Hernandez; a video of the accident site taken by Martinez; and the declaration of Troche's expert, David Steitle. Troche also filed a motion for partial summary judgment arguing that Austin Materials owed her a "duty to comply with Traffic Control Plan (6-1) - 12 regarding the lane closure at issue, including the proper placement of the PCMS 3,600 feet from the beginning of the lane closure, as required by the plan."

The trial court signed separate orders denying Austin Materials' motion and granting Troche's motion. Austin Materials filed timely appeal of both orders.

APPELLATE JURISDICTION

We first consider our own jurisdiction. Troche has filed a partial motion to dismiss this appeal to the extent it challenges the trial court's order granting her motion for partial summary judgment, arguing that we lack jurisdiction over that order. Whether we possess jurisdiction is a question of law that we consider de novo. Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC 603 S.W.3d 385, 390 (Tex. 2020). Our jurisdiction is generally limited to appeals from final judgments and certain interlocutory orders made appealable by statute. McFadin v. Broadway Coffeehouse, LLC, 539 S.W.3d 278, 283 (Tex. 2018) (citing Tex. Civ. Prac. & Rem. Code § 51.012).

The legislature has authorized an appeal from an order that "grants or denies a motion for summary judgment filed by a contractor based on Section 97.002." Tex. Civ. Prac. & Rem. Code § 51.014(a)(15). Austin Materials argues that our jurisdiction under this provision extends to reviewing the otherwise-unappealable order to the extent that ruling bears upon the validity of the appealable order.^[2] See Texas State Bd. of Exam'rs in Optometry v. Carp, 343 S.W.2d 242, 243 (Tex. 1961) (unappealable interlocutory orders "cannot be attacked in an appeal from another interlocutory order which is appealable except in so far as the questions raised might affect the validity of the latter order"); Verticor, Ltd. v. Wood, 509 S.W.3d 488, 493 n.13 (Tex. App.-Austin 2015, pet. denied) (same). Austin Materials argues that the trial court's ruling on duty affects the validity of its ruling on immunity because whether Austin Materials owed Troche a duty is a factor in determining its entitlement to immunity. Troche replies that whether Austin Materials is entitled to immunity "is completely independent from the existence of a duty" to Troche.

We agree with Troche. Section 97.002 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. Austin Materials argues that without a duty to Troche, "there would be no material condition or defect that was the proximate cause of [her] personal injury to invoke statutory immunity." This is correct to the extent that Troche would not have a negligence claim in the absence of a duty-a negligence claim "consists of three elements: (1) a legal duty; (2) a breach of that duty; and (3) damages proximately resulting from the breach." See City of Austin v. Membreno Lopez as Next Friend of Lopez, 632 S.W.3d 200, 210-11 (Tex. App.-Austin 2021, pet. denied) (citing Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998)).

But Austin Materials' entitlement to immunity does not turn on the existence of a duty. Section 97.002 is an affirmative defense. See, e.g., ISI Contracting, Inc. v. Markham, 647 S.W.3d 489, 492-93 (Tex. App.-San Antonio 2022, pet. denied) (characterizing Section 97.002 as affirmative defense); Brown v. RK Hall Constr., LTD., 500 S.W.3d 509, 511 (Tex. App.-Texarkana 2016, pet. denied) (same); Peachtree Const., Ltd. v. Head, No. 07-08-0020-CV, 2009 WL 606720, at *3 & n.5 (Tex. App.-Amarillo Mar. 10, 2009, no pet.) (mem. op.) (same). "[A]n affirmative defense 'defeats the plaintiff's claim without regard to the truth of the plaintiff's assertions.'" Philadelphia Indem. Ins. v. White, 490 S.W.3d 468, 485 (Tex. 2016) (quoting Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 156 (Tex. 2015)); see Phillips v. Phillips, 820 S.W.2d 785, 791 (Tex. 1991) (explaining that affirmative defense "does not tend to rebut factual propositions asserted by a plaintiff[ ] but seeks to establish an independent reason why the plaintiff should not recover"). Section 97.002 makes a contractor immune based on its compliance with the "contract documents" material to the condition or defect that allegedly caused the plaintiff's injury. See Tex. Civ. Prac. & Rem. Code § 97.002. Whether a contractor was in compliance does not hinge on whether the plaintiff's allegation that the contractor owed the plaintiff a duty is true. See Markham, 647 S.W.3d at 502-03 (concluding defense applied because "contractors had complied with the contract documents material to the alleged proximate cause of the personal injury and death" (emphasis added)); A.S. Horner, Inc. v. Navarrette, 656 S.W.3d 717, 723-24 (Tex. App.-El Paso 2022, no pet.) (construing Section 97.002 to require "a causal nexus between the contractor's conduct in performing a TxDOT project-whether ongoing or completed-and the injury claimed" (emphasis added)).

We conclude that the validity of the trial court's order denying Austin...