Big Creek Construction, Ltd. v. Marco and Marina Sustaita, Nyssa Johnson, Individually and as Heir to the Estate of Darren Johnson, and Shaquille D. Johnson, Individually and as Wrongful Death Beneficiary and on Behalf of the Estate of Darren D. Johnson

Court of Appeals
Tenth Appellate District of Texas

10-25-00033-CV

Big Creek Construction, Ltd.,
Appellant

v.

Marco and Marina Sustaita, Nyssa Johnson, Individually and as Heir to
the Estate of Darren Johnson, Deceased, and Shaquille D. Johnson,
Individually and as Wrongful Death Beneficiary and on behalf of the
Estate of Darren D. Johnson, Deceased,
Appellees

On appeal from the
278th District Court of Madison County, Texas
Judge Tracy Sorenson, presiding
Trial Court Cause No. 23-17611

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

In this accelerated interlocutory appeal, Big Creek Construction, Ltd., a

defendant in the underlying wrongful death/personal injury lawsuit, appeals

from the trial court’s denial of its no evidence and traditional motion for
summary judgment.1 Appellees are plaintiffs Marco and Marina Sustaita, and

intervenors Nyssa Johnson, individually and as heir to the Estate of Darren

Johnson, deceased, and Shaquille D. Johnson, individually and as wrongful

death beneficiary and on behalf of the Estate of Darren D. Johnson, deceased.

In two issues, Big Creek contends the trial court erred in denying its motion

for summary judgment because it conclusively established its statutory

immunity defense and erred in denying its objections to the affidavit of

Appellees’ expert. We affirm.

BACKGROUND

In 2022, Big Creek contracted with the Texas Department of

Transportation (TxDOT) to perform road improvements on Highway 75 at its

intersection with Spur 67 in Madison County. On June 6, 2023, an accident

occurred at that intersection resulting in the death of Darren D. Johnson and

causing Marco Sustaita to sustain personal injuries. At the time of the

accident, no work was being done on the roadway. Big Creek’s subcontractor,

J&M Contracting Company, was performing concrete and culvert work next to

Highway 75. Shortly after the accident, the Sustaitas sued Big Creek, J&M,

and others for negligence and gross negligence. Intervenors also asserted

causes of action for negligence and gross negligence against Big Creek and

1 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(17).

Big Creek Constr., Ltd. v. Sustaita Page 2
J&M.2 On July 1, 2024, Big Creek filed its “No-Evidence and Traditional

Motion for Summary Judgment as to All Claims Asserted by Plaintiffs and

Intervenors” along with its summary judgment evidence. In the traditional

portion of the motion, Big Creek asserted the affirmative defense of statutory

immunity pursuant to Texas Civil Practice and Remedies Code Annotated

Section 97.002.3 See TEX. CIV. PRAC. & REM. CODE ANN. § 97.002. As required

in order to claim immunity, Big Creek asserted that it had set up the required

traffic control plan at the location of the accident and was thus in compliance

with the TxDOT contract. A few months later, Big Creek filed a supplement

to its motion, accompanied by additional evidence. After Appellees filed their

response, the trial court denied Big Creek’s motion in its entirety. Big Creek

filed this interlocutory appeal requesting this Court render summary

judgment in its favor on its statutory immunity defense.

AFFIRMATIVE DEFENSE OF SOVEREIGN IMMUNITY

In its first issue, Big Creek asserts entitlement to summary judgment

based on its statutory immunity defense. Appellees contended in their

pleadings that Big Creek failed to have “warnings, signage and personnel” to

2 The plaintiffs and intervenors raised additional causes of action against other defendants not
pertinent to this appeal.

3 Big Creek included other arguments in its motion. However, due to the limited nature of Section
51.014 governing interlocutory appeals, we have jurisdiction to review the issue of immunity only. See
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(17); Richardson v. Parker, 903 S.W.2d 801, 803 (Tex.
App.—Dallas 1995, no writ).

Big Creek Constr., Ltd. v. Sustaita Page 3
direct traffic and alert the traveling public of the construction activity at the

intersection of Highway 75 and Spur 67. Big Creek contends that it presented

conclusive evidence of compliance with the TxDOT contract as to the traffic

control plan required for J&M’s workspace off the roadway at the time of the

accident. Further, it argues, compliance with contract terms material to the

condition alleged to be the proximate cause of Appellees’ damages entitles Big

Creek to immunity.

Appellees contend that Big Creek failed to adhere to its contractual

requirements by failing to place channeling devices and warning signs, and

failing to close one lane and use one lane with two-way operation controlled by

a pilot car and flagger. Thus, Appellees argue that Big Creek is not entitled to

immunity.

Standard of Review

We review the trial court's decision on a motion for summary judgment

de novo. Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021).

The movant for traditional summary judgment has the burden of showing that

there is no genuine issue of material fact, and it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Eagle Oil & Gas Co., 619 S.W.3d at 705.

We review summary judgment evidence “in the light most favorable to the

party against whom the summary judgment was rendered, crediting evidence

Big Creek Constr., Ltd. v. Sustaita Page 4
favorable to that party if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not.” B.C. v. Steak N Shake

Operations, Inc., 512 S.W.3d 276, 279 (Tex. 2017). We indulge every

reasonable inference in favor of the nonmovant and resolve any doubts in his

favor. Eagle Oil & Gas Co., 619 S.W.3d at 705. We consider whether

reasonable and fair-minded jurors could differ in their conclusions in light of

all of the evidence presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d

754, 755 (Tex. 2007) (per curiam).

A defendant who conclusively negates at least one of the essential

elements of the cause of action or conclusively establishes an affirmative

defense is entitled to summary judgment. Frost Nat'l Bank v. Fernandez, 315

S.W.3d 494, 508 (Tex. 2010). Once the movant establishes its right to summary

judgment as a matter of law, the burden shifts to the nonmovant to present

evidence sufficient to raise a genuine issue of material fact, thereby precluding

summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018).

Applicable Law

The legislature has limited the liability of contractors providing services

for a governmental unit:

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

Big Creek Constr., Ltd. v. Sustaita Page 5
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.

See TEX. CIV. PRAC. & REM. CODE ANN. § 97.002.

To determine whether the contractor is in compliance with the contract,

the court must first determine the meaning of the contract. The goal of

contract construction is to ascertain the parties’ intent as expressed in the

language of the agreement. Great Am. Ins. Co. v. Primo, 512 S.W.3d 890, 892

(Tex. 2017). Every contract should be interpreted as a whole and in accordance

with the plain meaning of its terms. See Nat’l Union Fire Ins. Co. v. Crocker,

246 S.W.3d 603, 606 (Tex. 2008). We assign terms their ordinary and generally

accepted meaning unless the contract directs otherwise. Id. We examine the

entire agreement and seek to harmonize and give effect to all provisions so that

none will be meaningless. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s

London, 327 S.W.3d 118, 126 (Tex. 2010).

If, after the pertinent rules of construction are applied, the contract can

be given a definite or certain legal meaning, it is unambiguous and courts

should construe it as a matter of law. Frost Nat’l Bank v. L&F Distribs., Ltd.,

165 S.W.3d 310, 312 (Tex. 2005) (per curiam). Conversely, if a contract is

susceptible to more than one reasonable interpretation, it is ambiguous. Id.

Big Creek Constr., Ltd. v. Sustaita Page 6
To determine if a contract is ambiguous, the court looks at the contract as a

whole in light of the circumstances existing at the time the contract was

entered into. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex. 1987).

A court may conclude a contract is ambiguous even in the absence of such a

pleading by either party. Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d

438, 445 (Tex. 1993). When a contract contains an ambiguity, granting

summary judgment based on the contract is improper because the

interpretation of the instrument is an issue of fact. Coker v. Coker, 650 S.W.2d

391, 394 (Tex. 1983).

Analysis

Before considering the question of whether Big Creek implemented the

correct traffic control plan on the day of the accident, and was therefore in

compliance with the contract, we must determine which traffic control plan the

contract required. Appellees assert that the contract required a traffic control

plan involving closing one lane and using a pilot car and flagger to direct two-

way traffic on one lane of the highway. Big Creek contends that traffic control

plan did not apply because J&M was working next to the highway, not on the

roadway.

The contract spans almost 500 pages. In addition to the plans for the

proposed improvements on Highway 75, it contains hundreds of pages of

Big Creek Constr., Ltd. v. Sustaita Page 7
separate documents, many of which appear to be standard forms created by

TxDOT for use in any contract, as applicable. Topics include, for example,

terms, technical requirements for building roads, estimates, quantities,

description of work phases, construction notes, numerous diagrams which are

labelled with sheet numbers, including several pages of various traffic control

plans, guidance for use of work zone speed limit signs, instructions for

pavement markings, special provisions, and erosion and pollution control

measures.

Almost 200 pages in, is a page containing the engineer’s seal. On that

page is the declaration that: “The enclosed Texas Department of

Transportation Specifications, Special Specifications, Special Provisions,

General Notes and Specification Data in this document have been selected by

me, or andor (sic) my responsible supervision as being applicable to this

project.” It is signed by Jean J. Feng, P.E. This is followed by a list of all the

items and special provisions that are included. The list is followed by several

special provisions, specifications, and certifications, such as a conflict-of-

interest certification and an e-verify certification. Also included are

instructions to bidders, information on types of material to be used, testing of

that material, and payment for that material. 465 pages after the title page of

Big Creek Constr., Ltd. v. Sustaita Page 8
the contract is a page entitled “Construction Contract” followed by a list of

items and their costs, and then a signature page.

The contract contains a “TCP Narrative” for Highway 75 and another for

US 287, as well as at least eleven separate sheets labelled “Traffic Control

Plan.” These sheets contain diagrams indicating required traffic control plans

to be used in various situations and are designated “Traffic Operations

Division Standards.”

There is no dispute that, at the time of the accident, J&M personnel were

working on culverts fourteen feet away from Highway 75 and not on any part

of the roadway. Their traffic control consisted of signs, a crash attenuator

truck with flashing lights, and cones placed next to the road, while both lanes

of traffic remained open.

Sheet 31, the “TCP Narrative” for State Highway 75, entitled “Sequence

of Work,” indicates there are four phases to this project. Phase I involves work

on the culvert and provides: “Extend culvert at one side of roadway per

sequence of work. Use one lane with two-way operations controlled by pilot

car and flagger per TXDOT standards.” Sheet 32, a diagram of culvert

extensions, shows a traffic cone drawn on the center line separating the two

lanes of traffic. A reasonable interpretation of Sheets 31 and 32, as asserted

by Appellees, is that, when working on culverts, the contractor is required to

Big Creek Constr., Ltd. v. Sustaita Page 9
use a traffic control plan calling for use of one lane with two-way operations

controlled by a pilot car and flagger.

Big Creek argues that, although Sheet 31 references use of one lane with

two-lane operations, in the same sentence it also refers to “TXDOT standards”

which are found in Sheets 46 through 49. Each of these sheets is designated

“Traffic Operations Division Standards.” Big Creek contends that the

reference to the standards requires contractors to consult Sheets 46 through

49 to determine the applicable traffic control plan depending on the situation.

Specifically, Big Creek argues that, in this instance, Sheet 31’s directive to

apply a traffic control plan “per TXDOT standards” refers to Sheet 48, which

does not require use of one lane with two-way operations when the work is off

the roadway. Instead, Sheet 48 requires signs and cones next to the roadway

when work is being done near the shoulder. We agree with Big Creek that a

reasonable interpretation of the contract is that Sheet 31 refers the contractor

to the applicable standards found in Sheets 46 through 49 and that lane

closures using one lane with two-way operations controlled by a pilot car and

flagger were not required while J&M worked on culverts.

Because the contract is susceptible to more than one reasonable

interpretation, it is ambiguous. See L&F Distribs., Ltd., 165 S.W.3d at 312.

Summary judgment is improper when the contract contains an ambiguity

Big Creek Constr., Ltd. v. Sustaita Page 10
because the interpretation of the instrument is a question of fact. See Coker,

650 S.W.2d at 394. Accordingly, Big Creek did not meet its burden to show

compliance with the contract, establish its affirmative defense of immunity, or

show entitlement to summary judgment as a matter of law. See TEX. CIV.

PRAC. & REM. CODE ANN. § 97.002; Frost Nat’l Bank, 315 S.W.3d at 508.

The trial court did not err in denying Big Creek’s motion for summary

judgment on its claim for statutory immunity. We overrule Big Creek’s first

issue. Because Big Creek’s first issue is dispositive, we need not reach its

remaining issue. See TEX. R. APP. P. 47.1.

CONCLUSION

Big Creek did not meet its burden to prove its entitlement to the

affirmative defense of immunity. We therefore affirm the trial court’s

judgment.

STEVE SMITH
Justice

OPINION DELIVERED and FILED: July 31, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
CV06

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