In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-25-00198-CV __________________
ROBERT HUBER, Appellant
V.
ISI CONTRACTING, INC., Appellee
__________________________________________________________________
On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 23-08-12394 __________________________________________________________________
OPINION
Robert Huber sued ISI Contracting, Inc. for continuing trespass to real
property arising from ISI’s construction of a state highway improvement project
adjacent to Huber’s property.1 ISI filed a traditional motion for summary judgment,
alleging it is immune from liability for Huber’s claim under Texas Civil Practice and
1 Huber also sued the Texas Department of Transportation (“TxDOT”) for trespass and inverse condemnation. TxDOT is not a party to this appeal. 1 Remedies Code section 97.002. See Tex. Civ. Prac. & Rem. Code Ann. § 97.002.
The trial court granted ISI’s motion for summary judgment, and Huber filed an
interlocutory appeal. See id. § 51.014(a)(17). Because ISI did not conclusively
establish each of the elements of its immunity defense under section 97.002, we
reverse the summary judgment and remand to the trial court for further proceedings.
Background
Huber owns and operates Bill’s Café in Montgomery County. The café
operates on two tax parcels that form a triangle on Loop 494 in Kingwood.
Improvements on the northern parcel include a restaurant building, covered patio,
paved parking lot, shed, and courtyard with palapas. The southern parcel is used for
additional parking and storage.
In 2019, TxDOT began State Highway Improvement Project No. CSJ 0177-
14-010. TxDOT contracted with ISI to perform construction for the project.
According to Huber’s most recent petition, almost immediately after the project
began, ISI set up a staging area on the south end of Huber’s property, where trucks,
building supplies, and concrete culverts were stored off and on during four years of
construction. The petition alleges that about two years into the project, ISI “began
to significantly impair access to the property.” According to Huber, ISI dug a hole
the size of a car just a few feet from the café’s covered patio, separately caused a
“water break” that flooded the café’s parking lot, frequently blocked parking areas 2 with construction barricades and vehicles, and sometimes made the property
completely inaccessible from the highway. The petition asserts, “On many days,
access was so inadequate that the restaurant was not able to open.” Huber claims the
café’s yearly profits dropped by over 50% during the construction project. The
petition asserts a cause of action for trespass to real property based on allegations
that ISI “repeatedly physically invaded and occupied Huber’s property without any
right or permission to do so, causing damages to Huber’s real property and his
business over the course of its four-year construction project.”
ISI filed a general denial and asserted immunity under section 97.002 of the
Texas Civil Practice and Remedies Code. ISI subsequently filed a traditional motion
for summary judgment arguing that as a matter of law ISI is immune from liability
to Huber because the summary judgment evidence conclusively establishes that “ISI
was a contractor constructing a highway for TxDOT and, at the time of the alleged
trespass allegedly resulting in property damage, was in full compliance with all
contract documents material to the condition or defect alleged by Plaintiff as the
proximate cause of his property damage.” ISI provided the trial court summary
judgment evidence including the contract between ISI and TxDOT, a copy of
TXDOT’s “Standard Specifications for Construction and Maintenance of Highways,
Streets, and Bridges” which were incorporated into the contract, an aerial photo with
markings purporting to show TxDOT’s right-of-way, and excerpts of deposition 3 testimony concerning ISI’s work. Huber filed a response arguing that ISI failed to
carry its burden to establish each element of its affirmative defense. Huber’s
summary judgment evidence included a copy of excerpts of TXDOT’s standard
specifications with which Huber claims ISI failed to comply, and diagrams,
photographs and deposition testimony that Huber claims prove that ISI trespassed
on his property.
The trial court signed an order granting ISI’s traditional motion for summary
judgment. This interlocutory appeal followed.
Standard of Review
We review grants of summary judgment de novo. Cantey Hanger, LLP v.
Byrd, 467 S.W.3d 477, 481 (Tex. 2015). A party who moves for traditional summary
judgment on an affirmative defense, such as immunity from liability, must
conclusively establish each element of its defense. See Eagle Oil & Gas Co. v. TRO-
X, L.P., 619 S.W.3d 699, 705 (Tex. 2021). In our review, we take as true all evidence
favorable to the non-movant, indulge every reasonable inference in favor of the non-
movant, and resolve any doubts in the non-movant’s favor. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). “Evidence is conclusive only if
reasonable people could not differ in their conclusions[.]” City of Keller v. Wilson,
168 S.W.3d 802, 816 (Tex. 2005).
4 “On appeal, the movant still bears the burden of showing that there is no
genuine issue of material fact and that the movant is entitled to judgment as a matter
of law.” Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). “Summary
judgments must stand on their own merits[.]” City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678 (Tex. 1979). “The non-movant has no burden to respond
to or present evidence regarding the motion until the movant has carried its burden
to conclusively establish the cause of action or defense on which its motion is based.”
State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S.
Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013).
Huber’s brief presents one issue: “Whether ISI conclusively established that
it was in compliance with its contractual obligation with TXDOT not to trespass
during the time frame alleged by Huber, as required to establish its immunity defense
under Section 97.002 of the Texas Civil Practice and Remedies Code.” However,
“we treat issue statements in briefs as ‘covering every subsidiary question that is
fairly included.’” Weekley Homes, LLC v. Paniagua, 646 S.W.3d 821, 826 (Tex.
2022) (citing Tex. R. App. P. 38.1(f)). “A brief’s issue statement ‘is sufficient if it
directs the attention of the appellate court to the error about which [the] complaint
is made.’” Id. (citing Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex. 1995)).
Beyond its issue statement, Huber’s brief broadly argues that ISI failed to satisfy its
burden to conclusively establish its affirmative defense of contractor immunity 5 under section 97.002. Therefore, in our de novo review, we analyze whether ISI
conclusively established each element of its immunity defense under section 97.002.
See Weekley Homes, 646 S.W.3d at 827 (concluding that non-movant who
substantively briefed only one subsection of Civil Practice and Remedies Code
section 95.002 nevertheless sufficiently preserved appellate review of the
applicability of a different subsection by quoting both subsections and describing
and citing authority regarding movant’s burden to conclusively establish both
subsections).
Analysis
In its entirety, section 97.002 of the Texas Civil Practice and Remedies Code
reads as follows:
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 Ann. § 97.002. “Notably, section 97.002 has three
distinct parts: (1) an introduction describing who qualifies for the statute’s
protection, (2) a middle portion describing the specific protection the statute affords,
and (3) an ending setting forth the condition that must be met for such protection to
apply.” A.S. Horner, Inc. v. Navarrette, 656 S.W.3d 717, 721 (Tex. App.—El Paso 6 2022, no pet.). A defendant seeking the immunity provided in the middle portion
must, therefore, establish that it is a party who qualifies for protection according to
the introduction, and must also establish all elements included in the ending. The
statute’s plain language does not provide “blanket immunity . . . against all claims
for any circumstances[.]” See ISI Contracting, Inc. v. Markham, 647 S.W.3d 489,
496 (Tex. App.—San Antonio 2022, pet. denied). “To the contrary, the statute
contains multiple applicability requirements to create immunity, which must all be
met[.]” Id.
Did ISI conclusively establish it is a party that may qualify under 97.002?
The introductory language of section 97.002 indicates a party who constructs
or repairs a highway for TxDOT may qualify for protection under the statute. See
Tex. Civ. Prac. & Rem. Code Ann. § 97.002. ISI provided the trial court conclusive
summary judgment evidence that it performed repairs on Loop 494 for TxDOT,
satisfying the statute’s introduction.
What protection may be provided to ISI under 97.002?
Turning our attention to the middle portion of the statute, it provides that a
qualifying contractor is not liable for “personal injury, property damage, or death
arising from the performance of the construction or repair[.]” Id. Huber’s petition
does not allege personal injury or death. ISI’s motion for summary judgment asserts
that since “[Huber] is suing ISI for property damage arising from ISI’s contract 7 performance[,]” the immunity provided by the statute applies. It is true that Huber’s
petition alleges property damage, but that is not all it alleges; Huber also asserts the
loss of use of his property and lost profits. Therefore, a closer comparison of the
statute and the petition is necessary.
Because section 97.002 does not define “property damage,” we must apply
the term’s “common, ordinary meaning unless a contrary meaning is apparent from
the statute’s language. To determine a statutory term’s common, ordinary meaning,
we typically look first to their dictionary definitions and then consider the term’s
usage in other statutes, court decisions, and similar authorities.” Tex. State Bd. of
Exam’rs of Marriage & Family Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 34-
35 (Tex. 2017) (citing Univ. of Tex. at Arlington v. Williams, 459 S.W.3d 48, 52
(Tex. 2015)). Merriam-Webster defines “property damage” as “damage or
destruction to houses, cars, etc.” Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/property%20damage (last visited
Mar. 24, 2026). The term “property damage” is used in other statutes, and court
decisions have consistently interpreted the term as referring to physical damage or
destruction of property. See Spangler v. Jones, 861 S.W.2d 392, 398 (Tex. App.—
Dallas 1993, writ denied) (construing statute providing for prejudgment interest on
property damage not to apply to economic loss resulting from breach of fiduciary
duty and fraud); Associated Tel. Directory Publishers, Inc. v. Five D’s Publ’g Co., 8 849 S.W.2d 894, 900 (Tex. App.—Austin 1993, no writ) (construing prejudgment-
interest statute not to apply to economic loss resulting from conversion of telephone
directories); Amarillo Nat’l Bank v. Terry, 658 S.W.2d 702, 704 (Tex. App.—
Amarillo 1983, no writ) (construing statute creating parental liability for property
damage caused by minor not to apply to economic loss sustained by bank due to
minor’s unauthorized withdrawals). “From these cases it is clear that property
damage cannot consist merely of damage to an intangible asset or increased
operational costs. Instead, some physical destruction of tangible property must
occur.” Zurich Am. Ins. Co. v. Hughes, Watters & Askanase, L.L.P., No. 11-05-
00044-CV, 2006 Tex. App. LEXIS 6037, at *9 (Tex. App.—Eastland July 13, 2006,
no pet.) (mem. op.) (construing prejudgment-interest statute). Because section
97.002 provides immunity only against liability for “personal injury, property
damage, or death[,]” we conclude that it does not provide immunity from liability
for economic loss that does not originate from physical damage to, or destruction of,
property.
Huber asserts only one cause of action against ISI: continuing trespass to
Huber’s real property. It is not necessary to prove physical damage to one’s property
to recover damages for trespass. In a “writ refused” opinion almost a century ago,
this Court recognized the rule that “every unauthorized entry upon land of another
is a trespass even if no damage is done or the injury is slight, and gives a cause of 9 action to the injured party.” McDaniel Bros. v. Wilson, 70 S.W.2d 618, 621 (Tex.
Civ. App.—Beaumont 1934, writ ref’d) (emphasis added). “The gist of an action of
trespass to realty is the injury to the right of possession.” Pentagon Enters. v. Sw.
Bell Tel. Co., 540 S.W.2d 477, 478 (Tex. Civ. App.—Houston [14th Dist.] 1976,
writ ref’d n.r.e.).
Damages recoverable for trespass to real property “include cost of restoration
or repair of the land to its former condition, loss of use of the land, and loss of
expected profits from use of land[.]” Meridien Hotels, Inc. v. LHO Fin. P’ship I,
L.P., 255 S.W.3d 807, 821 (Tex. App.—Dallas 2008, no pet.) (citations omitted).
“The law is well settled that where the owner of land establishes that his land has
been trespassed upon and appropriated by another to his use, the owner may recover
as damages from the trespasser the reasonable value of the use of the portion of the
land occupied by him.” Bradley v. McIntyre, 373 S.W.2d 389, 390 (Tex. Civ. App.—
Houston 1963, writ ref’d n.r.e.). “The purpose of the measure of damage being based
upon the value of the loss of use is to compensate the owner for his loss due to the
inability to use the property for its normal purposes.” Etex Tel. Coop., Inc. v.
Sanders, 607 S.W.2d 278, 281 (Tex. Civ. App.—Texarkana 1980, no writ). This
principle is demonstrated in Mangham v. Hall, where the Halls made allegations
similar to those in Huber’s petition:
10 Plaintiffs alleged that they were the owners of a laundromat business; that “beginning about 1967”, Mangham, who owned real property adjoining a parking lot owned by the plaintiffs and used by their customers, began the construction of a building, which was built for him by Valcon, Inc.; that during the course of the construction the defendants drove their heavily loaded trucks over and across the parking lot of the Halls and committed certain other enumerated acts of trespass; that following the completion of the building, the defendant Mangham continued to trespass upon the parking lot, and “this continued until in the year 1969”, when Valcon built a new building “on the front part” of the first building for Mangham; that the defendants, during the course of construction of the new building in 1969, actually ordered plaintiffs’ customers to move their cars from plaintiffs’ parking lot; that the customers quit using plaintiffs’ laundromat because of defendants’ trespasses; and that “same continued as a continuing trespass from May 1969 to October 1969[.]”
564 S.W.2d 465, 466 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.). A
jury awarded the Halls property damages of $165.08 for destruction of the fence and
$10,000 for “loss of business.” Id. Although the court of appeals ultimately held the
trial court’s charge should have asked the jury to award lost net profit rather than
“loss of business,” the court nevertheless recognized,
Where a business which was already established and was making a profit at the time a person trespassed on property which was used by the business, and the trespass resulted in a diminution in the amount of gross receipts which could have been expected in the light of past developments, existing conditions, and reasonable forecasts, the owner of the business is entitled to recover damages for the actual loss (profits) sustained by him because of the trespass.
Id. at 468. Huber’s petition alleges Huber sustained a diminution in revenue resulting
from ISI’s alleged activities which include placing construction materials and
11 vehicles on the property, denying access to the business, and taking up parking
spaces which could have been used by customers. Although other portions of the
petition could be construed as seeking loss of use and lost profits as elements of
damages caused by physical damage to Huber’s property such as flooding and a car-
sized hole, the petition expressly includes allegations of fact which would give rise
to a claim for loss-of-use and lost-profit damages resulting from the alleged trespass
itself, not derived from any physical damage to the property. For example, the
petition alleges ISI’s “occupation” of Huber’s property “deprived him of an
important parking area, which had a material impact on his business.” We conclude
the order granting summary judgment disposing of all of Huber’s claims was
improper because ISI is not immune from liability for any damages recoverable for
alleged injury to Huber’s right of possession that did not originate from physical
damage to Huber’s property.
Did ISI conclusively establish each statutory condition?
Regarding Huber’s claims for physical damage to his property, we turn our
attention to the ending of section 97.002 which requires a contractor to show that “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 Ann. § 97.002. We agree with our sister court’s observation that this 12 portion of the statute “contains multiple applicability requirements” for a contractor
seeking immunity. Markham, 647 S.W.3d at 496. Unpacking this language, we note
that it requires: (a) personal injury, property damage, or death; (b) a condition or
defect that proximately caused said personal injury, property damage, or death; (c)
contract documents material to said condition or defect; and (d) the contractor’s
compliance with said documents at the time of the personal injury, property damage,
or death.
Condition or Defect
As discussed above, portions of Huber’s petition allege property damage
satisfying element (a), so we turn our attention to element (b) which requires that the
property damage be proximately caused by a “condition or defect.” Although ISI, as
the party moving for summary judgment on an affirmative defense, had the burden
to conclusively establish each element of its defense, we do not read the statute as
reversing a plaintiff’s burden to establish the proximate cause of their own damages;
rather, a trial court may rely on the plaintiff’s live pleading regarding the alleged
cause or causes of the plaintiff’s alleged damages, along with any evidence offered
by the parties, to determine whether the alleged damage was proximately caused by
a condition or defect as required by the statute. See Neese v. Lyon, 479 S.W.3d 368,
375 (Tex. App.—Dallas 2015, no pet.) (“Although pleadings generally do not
constitute summary-judgment evidence, a summary-judgment movant may rely on 13 judicial admissions in the nonmovant’s live pleading.”). Here, ISI attached Huber’s
petition as a summary-judgment exhibit, but the only property damage mentioned in
the petition is alleged to have been caused, not by any condition or defect, but by
ISI’s alleged activities such as digging a car-sized hole or causing a “water break”
that flooded the parking lot. 2 See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.
1992) (distinguishing between activities and conditions in a negligence context
based on whether an injury is caused “by or as a contemporaneous result of the
activity itself rather than by a condition created by the activity.”).
We have recognized that section 97.002 was enacted because contractors
“must conform to the work specifications set by the governmental unit overseeing
the project” and that “[s]ometimes those specifications may be inadequate or flawed
to such a degree as to threat[en] or cause harm or damage to some person or some
property.” APAC-Texas, Inc. v. Beasley, No. 09-13-00390-CV, 2014 Tex. App.
LEXIS 2570, at *4-5 (Tex. App.—Beaumont Mar. 6, 2014, no pet.) (mem. op.)
(quoting House Comm. on Civ. Practices, Bill Analysis, Tex. H.B. 1699, 78th Leg.,
2 To the extent the petition may be unclear regarding whether Huber’s alleged property damage was caused by an activity rather than a condition or defect, the procedure for addressing a defective pleading is to file a special exception with an opportunity to replead prior to summary judgment. See Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 54-55 (Tex. 2003); Tex. R. Civ. P. 90, 91, 166a. 14 R.S. (2003)).3 “It is clear from the language of section 97.002, when read in its
entirety, that the Legislature enacted the statute to shield contractors who construct
or repair highways for TxDOT from liability in situations where it is affirmatively
shown that the contractors complied with TxDOT specifications over which they
had no control.” A.S. Horner, Inc., 656 S.W.3d at 725-26. Nothing in the text of the
statute indicates the legislature intended to provide immunity for damages caused by
a contractor’s activities rather than by “conditions or defects” that conform to
TxDOT’s specifications. If a contractor’s employee negligently operates a vehicle
that collides with another vehicle and propels it over a guardrail that the contractor
installed in compliance with TxDOT’s specifications, the statute would protect the
contractor from liability under a theory that the guardrail was too low, but it would
not provide immunity from liability for the employee’s negligent driving activity
which led to the collision with the other vehicle.
In Keetch, the Court concluded a plaintiff was injured as a result of the
slippery condition of the floor rather than the activity of Kroger’s employee who
allegedly over-sprayed plants with a leaf-shining substance. See Keetch, 845 S.W.2d
at 263, 266. We acknowledge conditions and defects such as standing water or a car-
sized hole can proximately cause personal injury, property damage or death as
3 Our reference to the legislative history is not meant to imply the meaning of the text is unclear. 15 contemplated by the statute. But Huber’s petition does not include a claim for
property damage proximately caused by a condition or defect such as a hole or
floodwater; it alleges damage to Huber’s real property in the form of a hole and
floodwater, both of which Huber claims to have been caused by ISI’s trespassing
activities rather than by any condition or defect arising from ISI’s work. Therefore,
we conclude ISI failed to conclusively establish that the property damage alleged in
Huber’s petition was proximately caused by (or is alleged in Huber’s petition to have
been proximately caused by) a “condition or defect” as required by section 97.002.
Contract Documents Material to the Condition or Defect
Lastly, in the event some portion of Huber’s petition could be construed as
including a claim for property damage proximately caused by a condition or defect,
we turn our attention to elements (c) and (d) which required ISI to conclusively
establish the existence of contract documents material to the condition or defect and
ISI’s compliance therewith at the time of the property damage. ISI provided the trial
court with approximately 1,400 pages of construction documents. ISI’s motion for
summary judgment does not direct the trial court to any contract documents or
standard specifications that are material to a contractor’s trespassing onto, invading,
occupying, blocking access to, digging holes or causing flooding on property
adjacent to a highway project. Instead, ISI relies on the testimony of TxDOT’s area
engineer who answered affirmatively to a deposition question asking whether “the 16 contract obligated ISI to stay within TxDOT’s right-of-way because that is what is
provided by the plans[.]”
The area engineer’s testimony concerning what the contract says about
staying within the right-of-way is not conclusive, not only because the area engineer
testified that he would “have to review the exact language” of the contract in
response to a related question immediately preceding the cited testimony, but also
because the testimony is contradicted by other evidence in the summary judgment
record. Standard Specification Item 6.6 directs a contractor to “[o]btain approval to
store materials on the right of way. Storage space off the right of way is at the
Contractor’s expense.” Contrary to the area engineer’s testimony, the contract does
not require a contractor to stay within the right-of-way, nor does it prohibit a
contractor from storing materials on private property adjacent to TxDOT’s right-of-
way; it simply requires that the contractor do so at the contractor’s expense. Such is
the request of Huber’s petition.
Compliance with Contract Documents
To the extent Item 6.6 is material to any “condition or defect” that proximately
caused Huber’s alleged “property damage,” it bears repeating that Item 6.6 indicates,
“Storage space off the right of way is at the Contractor’s expense.” Huber did not
bear the burden of proof in response to ISI’s motion for summary judgment, and his
petition alleges he was not compensated for ISI’s alleged “occupation” of his 17 property. In order to prove compliance with Item 6.6, ISI bore the burden to
establish, conclusively, either that it did not store anything on Huber’s property or
that it did so at ISI’s expense. ISI produced no evidence Huber was compensated for
any alleged use of his property, and as indicated below, the summary judgment
evidence raises genuine issues of fact regarding whether ISI stored construction
materials on Huber’s side of the boundary separating his property from TxDOTS’s
right-of-way.
ISI argues it must have been in compliance with all contractual requirements
at the time Huber allegedly sustained property damage, because
if ISI had deviated from the Contract without direction from the Engineer, TxDOT would not have accepted the work or paid ISI. Indeed, [the area engineer] testified that all of ISI’s work, including its use of the right-of-way for a staging area, was inspected, authorized, accepted, and paid for by TxDOT. [The area engineer] testified that ISI performed its work in compliance with the ISI-TxDOT Contract through the date ISI removed its equipment and materials from the right-of-way in front of [Huber’s] property and was in full compliance with the Contract on the date it removed its equipment and materials from the right-of-way.
Attached to his response, Huber provided the trial court photographs showing
construction materials and vehicles on Huber’s side of the utility poles which the
area engineer testified were a rough indicator of the boundary between TxDOT’s
right-of-way and Huber’s property. Huber directed the trial court’s attention to the
deposition of the area engineer who testified:
18 Q. But we can agree generally that the right-of-way -- anything going inwards into the client’s property beyond these poles basically, is it on the Plaintiff’s property? Can you agree with that, that the poles are -- To me, they appear on the property, but that they are roughly an indicator of where that boundary line is?
A. That’s correct.
Q. So anything inward of those poles in the Huber property is on the Huber property?
...
Q. Mr. Galland, would you agree that this picture shows equipment beyond the poles going into Plaintiff’s property?
A. Yes.
Q. Do you understand what this equipment is from looking at this?
Q. What type of equipment is this?
A. Material. So it’s the drainage. We call it precast. It’s cast on a separate facility and it’s brought to the site and used -- and used for drainage for the project.
Q. And drainage for the project was handled by ISI, right?
A. Correct, it’s in the contract.
Q. So this would have been equipment that was either ISI’s or a subcontractor of ISI’s?
A. Yes, it would be -- it would be material for the contract.
19 Viewed in the light most favorable to the nonmovant, this evidence raises a
question of fact regarding whether ISI placed construction material on Huber’s
property. Nevertheless, ISI argues that the area engineer’s testimony that ISI was in
compliance with the contract is conclusive as a matter of law because the contract
gives the TxDOT engineer the final say. First, ISI cites several excerpts from the
area engineer’s deposition testimony indicating ISI complied with the contract,
including the following:
Q. But if you were wanting to determine, okay, was a contractor deemed by TxDOT to be in compliance with the contract as of a certain month, in the middle of the contract, you would go back and look and see if the contractor was paid for the work through that month?
A. Yeah, paid, or if there was any documentation notifications.
Q. And TxDOT is not going to pay for work that’s not in compliance; is that correct?
A. Not knowingly, correct.
Q. . . . ISI was paid for all of the work that was performed in front of Plaintiff’s property; is that correct?
A. Correct.
Q. And so TxDOT then accepted all of the work ISI performed in front of Plaintiff’s property; is that correct?
... 20 Q. And as the area engineer, you accepted ISI’s work on the contract?
A. Yes, I did.
ISI then relies on Item 5.1 of the Standard Specifications which are
incorporated into the contract:
The Engineer has the authority to observe, test, inspect, approve, and accept the work. The Engineer decides all questions about the quality and acceptability of materials, work performed, work progress, Contract interpretations, and acceptable Contract fulfillment. The Engineer has the authority to enforce and make effective these decisions.
The Engineer acts as a referee in all questions arising under the terms of the Contract. The Engineer’s decisions will be final and binding.
In short, ISI argues that because the area engineer testified that ISI was paid in full,
ISI must have been in compliance with the contract, and because Item 5.1 indicates
the area engineer’s decisions are final and binding, the area engineer’s testimony
concerning ISI’s compliance is conclusive. We disagree.
We don’t doubt that ISI and TxDOT had the right to agree that the engineer’s
decisions on questions arising under the contract would be binding in a dispute
between the contracting parties, but we have serious doubts that by entering into
such an agreement the contracting parties somehow altered our standards for what
constitutes conclusive evidence in a claim for personal injury, property damage or
death sustained by a noncontracting party. The statute requires a contractor to 21 establish that it was in compliance with the “contract documents” at the time of the
injury or damage, and our summary judgment rules require the contractor to do so
with conclusive evidence. See Eagle Oil & Gas Co., 619 S.W.3d at 705 (“A
defendant may obtain summary judgment by conclusively establishing an
affirmative defense.”). “Evidence is conclusive only if reasonable people could not
differ in their conclusions, a matter that depends on the facts of each case.” City of
Keller, 168 S.W.3d at 816.
The evidence in our case differs from that in Markham, where it was
“undisputed, and the summary judgment evidence conclusively establishe[d], that
the TxDOT Engineer approved and accepted the work which was the basis of the
Markhams’ claims[.]” Markham, 647 S.W.3d at 502. In the Markhams’ lawsuit
arising out of an accident that occurred months later, “the contractors and the
Markhams disagree[d] about what height the repaired section of the guardrail should
have been,” but the court of appeals held “their differing views are made irrelevant
by the Engineer’s acceptance of the work.” Id. Here, ISI did not provide the trial
court documentation that the area engineer actually approved and accepted the very
work that is the basis of Huber’s claims; instead, ISI provided the area engineer’s
generalized testimony, after the fact, that because TxDOT accepted ISI’s work, ISI
must have been in compliance with the contract.
22 Our case is more like Williams Bros. Constr. Co. v. Christ, No. 14-24-00626-
CV, 2025 Tex. App. LEXIS 4944 (Tex. App.—Houston [14th Dist.] July 15, 2025,
pet. filed) (mem. op). There, the contract called for a concrete barrier separating
opposing traffic in a construction zone, but since a concrete barrier would not fit,
Williams Brothers submitted a proposed revision “substituting painted yellow
stripes and buttons for the concrete barriers.” Id. at *3. The revision was never
approved in writing and the parties disputed whether it was orally approved, but
since the area engineer testified in her deposition that the “use of the stripes and
buttons was appropriate given the circumstances[,]” Williams Brothers relied on
Item 5.1 to argue the area engineer’s approval conclusively established its
compliance with the contract. Id. at *12-13, 21. Our sister court held otherwise, in
part because the area engineer “only verbally approved the deviation from the traffic-
control plan after the Christ’s accident occurred.” Id. at *17, 23. See also Haydon
Bldg. Corp. v. Green, No. 08-23-00073-CV, 2024 Tex. App. LEXIS 5467, at *14,
16 (Tex. App.—El Paso July 31, 2024, pet. denied) (mem. op.) (rejecting
contractor’s arguments based on Item 5.1 and concluding TxDOT engineer’s
testimony “that he inspected each highway closure and determined the traffic control
barriers were properly in place in accordance with the Plan” was not conclusive in
light of other evidence that such barriers were not in place); Austin Materials v.
Rosado, No. 03-22-00201-CV, 2023 Tex. App. LEXIS 3631, at *17 (Tex. App.— 23 Austin May 26, 2023, pet. denied) (declining to “decide the precise interplay
between” Item 5.1 and other contractual provisions because in the absence of
evidence that the area engineer “had accepted Austin Materials’ work on the day of
the accident[,]” the area engineer’s deposition testimony that Austin Materials was
in compliance with the contract was not conclusive).
ISI presented no evidence that a “question[] ar[ose] under the terms of the
Contract[,]” that TxDOT’s engineer made a “decision[,]” and that the engineer’s
decision was included in the “contract documents” in the form of a letter, change
order or supplemental agreement in effect at the time of injury or damage. 4 Instead,
TxDOT the area engineer testified that after Huber notified TxDOT of his
complaints, the area engineer looked at the records, spoke with TxDOT’s district
office and legal counsel about Huber’s allegations, and concluded “that TxDOT
stayed within the right-of-way, that we used the right-of-way for the project and we
didn’t damage Mr. Huber’s property.” ISI’s brief appears to rely on this testimony
as “confirm[ation]” that “ISI’s parking and staging remained within the right-of-way
4 Standard Specification Item 1.3.35 defines “Contract documents” as “Elements of the Contract including, but not limited to the plans, specifications incorporated by reference, special provisions, special specifications, Contract bonds, change orders, and supplemental agreements.” Item 1.3.27 allows change orders only if they are in writing. Item 5.3.1 allows the engineer to accept nonconforming work if it is “adequate to serve the design purpose,” but the engineer must “document the basis of acceptance by a letter and may adjust the Contract price.” 24 and conformed to the plans.” Even if testimony that TxDOT stayed within the right-
of-way were evidence that ISI stayed within the right-of-way, nothing in the
language of Item 5.1 warrants elevating the engineer’s retrospective opinion
testimony to the level of conclusive evidence that the contractor was in compliance
with the material contract documents at the time of the injury or damage. We agree
with our sister court that “a contractor’s non-compliance with TxDOT’s
specifications might only be discovered after the completion of its highway work
and even after the project’s acceptance by TxDOT.” A.S. Horner, Inc., 656 S.W.3d
at 726. The area engineer himself agreed, “The fact that TxDOT did not identify
trespasses does not prove that ISI never trespassed[.]”
We conclude the area engineer’s testimony was not conclusive and did not
prevent the trial court from considering Huber’s evidence that ISI was not in
compliance at the time of the alleged damage. Because reasonable minds may differ
regarding ISI’s compliance with any contract documents that were material to any
condition or defect that proximately caused Huber’s alleged property damage, we
conclude ISI failed to carry its burden to conclusively establish its affirmative
defense under section 97.002.
Conclusion
In summary, we conclude that ISI failed to meet its burden to conclusively
establish its immunity defense under section 97.002 because: the petition seeks 25 damages other than personal injury, property damage or death, specifically loss of
use and lost profit damages from the alleged trespass itself (unauthorized entry
interfering with the right of possession) and not derived from any property damage
resulting from the alleged trespass; to the extent the petition seeks property damage,
the petition alleges such property damage was proximately caused by ISI’s activities
rather than any condition or defect; and, to the extent the petition seeks property
damage proximately caused by a condition or defect, ISI failed to conclusively
establish that it was in compliance with contract documents material to the condition
or defect at the time the property damage was sustained. We sustain Huber’s sole
issue on appeal.
We, therefore, reverse the order granting summary judgment and remand to
the trial court for further proceedings.
REVERSED AND REMANDED.
KENT CHAMBERS Justice
Submitted on September 18, 2025 Opinion Delivered April 9, 2026
Before Johnson, Wright and Chambers, JJ.