This is a dispute involving a multivehicle accident, which resulted in Pedro Castaneda’s death. Appellees Felicitas Castaneda, individually and as representative of the estate of Pedro Castaneda, deceased; Irving Castaneda; Evelyn Castaneda; and Lizzie Castaneda (collectively, Plaintiffs) sued Appellants SpawGlass Civil Construction, Inc. (SpawGlass) and Third Coast Services, LLC (Third Coast) for negligence and premises liability. SpawGlass and Third Coast appeal from the trial court’s denial of their motions for summary judgment, arguing that they are immune from suit under section 97.002 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 51.014(15) (authorizing an appeal from an interlocutory order that “grants or denies a motion for summary judgment filed by a contractor based on Section 97.002″). Because SpawGlass and Third Coast failed to establish that they met each requirement of their affirmative defense, we affirm. Background On August 15, 2019, at the intersection of State Highway 249 frontage road and Woodtrace Boulevard, a fatal motor vehicle accident involving Pedro Castaneda occurred. Pedro was driving westbound on Woodtrace Boulevard towards SH 249 (the Intersection). Pedro was struck by two large truckswith trailers in tow travelling southbound on SH 249 when he attempted to cross the Intersection. Trooper Kameron Parker, with the Department of Public Safety, investigated the accident and reported that Pedro failed to yield the right of way. In November 2019, Plaintiffs initially sued Juan Carlos Cruz Galvan; Wayne Gross, LP d/b/a Tree Source; and Luis Ventura Alvarado Martinez for negligence and gross negligence. In March 2020, Plaintiffs filed their first amended petition and added R.T.D. Plumbing LTD and SpawGlass as additional defendants. Plaintiffs amended their petition two more times and added Third Coast as a defendant and removed R.T.D. Plumbing LTD as a defendant in their fourth amended petition. On February 16, 2022, Plaintiffs amended their petition again. This time, Plaintiffs removed Galvan; Wayne Gross, LP d/b/a Tree Source; and Martinez. Only SpawGlass and Third Coast remained as defendants. Among other things, Plaintiffs alleged that SpawGlass and Third Coast’s acts and omissions proximately caused Pedro’s death and Plaintiffs’ injuries.[1] In May 2020, SpawGlass filed its answer to Plaintiffs’ third amended petition. In January 2021, SpawGlass amended its answer and raised, among other things, the affirmative defense of statutory immunity under section 97.002. In September 2021, Third Coast filed its answer to Plaintiffs’ fourth amended petition and asserted, inter alia, that Pedro’s own conduct was the sole proximate cause or contributing cause of his accident. In November 2022, Third Coast amended its answer and included the affirmative defense of statutory immunity under section 97.002. Spaw Glass filed its traditional motion for summaryjudgmentinJanuary2021. SpawGlass amended its motion in October 2022. In its amended motion, SpawGlass stated that it was hired by Montgomery County and served as the general contractor to construct and build the SH 249 Tollway Mainlane Project from Spring Creek to 0.96 Miles South of FM 1774 (the “SH 249 Project”). Among other things, Spaw Glass attached a copy of: (1) Montgomery County Construction, Operation and Maintenance Agreement (the “Maintenance Agreement”); (2) SpawGlass’s construction contract with Montgomery County; and (3) Project Manual Excerpts with Texas Department of Transportation (TxDOT) Standards. According to SpawGlass, it was entitled to statutory immunity protections provided in section 97.002 because it “construct[ed] part of a state-owned highway for a government entity in connection with TxDOT.” In July 2022, Third Coast’s traditional summary judgment motion followed. In its motion, Third Coast also asserted that it was entitled to section 97.002′s statutory immunity because it served as a subcontractor and performed services under SpawGlass, the general contractor, to construct a road for Montgomery County and TxDOT.[2] In October 2022, Plaintiffs submitted their combined response to SpawGlass and Third Coast’s motions for summary judgment. In their response, Plaintiffs argued, amongother things, thatsection97.002′simmunityprotectionsdidnotapply because: 1. “SpawGlass was warned at least ten times in the year leading up to [Pedro]‘s death of reoccurring wrecks at the intersection and the unreasonably dangerous condition of the intersection”; 2. “SpawGlass failed to modify traffic controls and make changes to promote efficient road user movement in accordance with the contract documents”; 3. “Third Coast and SpawGlass failed to properly cover the signal heads prior to illumination of the traffic signals”; and 4. SpawGlass and Third Coast failed to use reasonable care in installing the traffic signals, specifically, failing to have the lights reinspected until eight (8) months after the first failed inspection.” Following a hearing, the trial court denied SpawGlass and Third Coast’s summary judgment motions. This interlocutory appeal followed. Standard of Review We review a trial court’s ruling on a motion for summary judgment de novo. Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 278 (Tex. 2018). Courts review the record “in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). In a traditional motion for summary judgment, the movant must establish that no genuine issue of material fact exists, and the movant is thus entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). To be entitled to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiff’s causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). “Undisputed evidence may be conclusive of the absence of a material fact issue, but only if reasonable people could not differ in their conclusions as to that evidence.” Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). If the movant meets that burden, the burden shifts to the nonmovant to present evidence raising a fact issue. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). But if the movant does not satisfy its initial burden, the burden does not shift, and the nonmovant need not respond or present any evidence. See id. at 511–12. This is because “summary judgments must stand or fall on their own merits, and the nonmovant’s failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant’s right” to judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979) (discussing evolution and purpose of shifting burdens in summary judgment practice)). Governing Law Beginning with its plain terms, 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. Statutory immunity under section 97.002 is an affirmative defense. Brown v. RK Hall Constr., Ltd., 500 S.W.3d 509, 512 (Tex. App.—Texarkana 2016); Peachtree Const., Ltd. v. Head, No. 07-08-0020-CV, 2009 WL 606720, at *3 (Tex. App.—Amarillo Mar. 10, 2009) (mem. op.). As the parties asserting the affirmative defense, SpawGlass and Third Coast bear the burden of pleading and proving the requisite elements under section 97.002. Peachtree, 2009 WL 606720, at *3 (citing Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 481 (Tex. 2001); Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844, 851 (Tex. App.—Dallas 2005, pet. denied)). Affirmative Defense Under Section 97.002 On appeal, SpawGlass argues that the trial court erred in (1) denying its amended motion for summary judgment based on section 97.002 and (2) overruling its objections to the amended declaration of Plaintiffs’ expert witness, David Steitle. Third Coast joins SpawGlass’s first issue.[3] We begin our analysis by addressing whether SpawGlass and Third Coast established their entitlement to summary judgment. If so, then the trial court erred in denying summary judgment unless Plaintiffs presented evidence raising a fact issue. But if SpawGlass and Third Coast failed to carry their burden, then summary judgment is proper, and we need not address SpawGlass’s remaining issue on appeal. See Tex. R. App. P. 47.1. Section 97.002 sets requirements for its applicability and “has three distinct parts: an introduction describing who qualifies for the statute’s protection, a middle portion describing the specific protection the statute affords, and 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 Nov. 18, 2022, no pet.). We begin our discussion with the first element: “[a] contractor who constructs or repairs a highway, road, or street for the Texas Department of Transportation.” Tex. Civ. Prac. & Rem. Code § 97.002. Thus, we must determine whether SpawGlass and Third Coast conclusively established that they are contractors who constructed or repaired a highway, road, or street for TxDOT. See id.; Martinez, 941 S.W.2d at 911 (providing that summary judgment is proper for a defendant only if the defendant pleads and conclusively establishes each element of its affirmative defense). In their summary judgment motions and opening briefs, SpawGlass and Third Coast allege that Plaintiffs did not dispute that SpawGlass and Third Coast satisfied the first element of section 97.002 and that this court need not consider this “undisputed” element. In their response to SpawGlass’s and Third Coast’s motions for summary judgment, Plaintiffs did not dispute SpawGlass’s and Third Coast’s status as TxDOT contractors. Rather, Plaintiffs argued that SpawGlass and Third Coast failed to adhere to the contract documents and that this alleged failure was the proximate cause of Pedro’s death. Nonetheless, Plaintiffs need not preserve a contention that the grounds presented by SpawGlass and Third Coast in their motions for summary judgment were “insufficient as a matter of law.” Clear Creek, 589 S.W.2d at 678 (emphasis in original). If we were to disregard SpawGlass’s and Third Coast’s burden to conclusively prove each element of their affirmative defense, we would necessarily shift their burden of proof to Plaintiffs, and this would be improper. See Draughon v. Johnson, 631 S.W.3d 81, 87–88 (Tex. 2021) (providing that courts “never shift the burden of proof to the non-movant unless and until the movant has ‘establish[ed] his entitlement to a summary judgment . . . by conclusively proving all essential elements of his cause of action or defense as a matter of law’”) (quoting Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989)). In their briefs, SpawGlass and Third Coast argue, among other things, that: (1) SpawGlass’s contract with Montgomery County and Third Coast’s subcontract required them to construct or repair a highway, road, or street for TxDOT, and (2) construction of a traffic signal constitutes construction of a highway, road, or street. Conversely, Plaintiffs contend that SpawGlass and Third Coast failed to conclusively establish that they are contractors constructing or repairing a highway for TxDOT because: (1) SpawGlass’s construction contract was with Montgomery County, and (2) the SH 249 Project was divided into two distinct parts: the “County Project” and the “TxDOT Project.”[4] Plaintiffs maintain that SpawGlass and Third Coast only performed work for Montgomery County on the County Project, and it is undisputed that Pedro’s accident occurred within the “County Project” limits. In support of their contention that they are contractors who constructed or repaired a highway, road, or street for TxDOT, SpawGlass and Third Coast rely heavily on the First Court of Appeals’ decision in Mahoney v. Webber, LLC., 608 S.W.3d 444, 447–48 (Tex. App.—Houston [1st Dist.] Aug. 18, 2020, no pet.). In Mahoney, the contractor was awarded a contract for the WestparkTollway extension project in Fort Bend County, Texas. Id. at 445. The contractor’s contract was with Fort Bend County, but the contract required the contractor to construct part of a state highway. Id. at 447. The contractor moved for summary judgment arguing that he was entitled to statutory immunity from liability because he “was a contractor hired to construct highways and roads on behalf of the County and TxDOT.” Id. at 446. In affirming the trial court’s grant of summary judgment, the First Court of Appeals held that section 97.002 did not “require the firm to have privity with TxDOT.” Id. at 448. The court explained that “the plain language of section 97.002 . . . requir[ed] only that the firm perform work under a contract that makes the firm responsible for constructing or repairing a highway, road, or street for TxDOT.” Id. In reaching this conclusion, the First Court of Appeals reasoned that: The Texas Transportation Code provision that addresses the Westpark Tollway extension project supports this interpretation, expecting that construction firms that contract with the County to work on the project will perform construction for TxDOT. See Tex. Trans. Code Ann. § 228.011. Under that statute, while the County has the primary responsibility for the financing, construction, and operation of the project, TxDOT, “consistent with federal law,” must “assist the [C]ounty” in achieving these objectives “by allowing the [C]ounty to use state highway right-of-ways owned by the department and to access the state highway system.” See Tex. Trans. Code Ann. § 228.011(b), (b-1). TxDOT “participate[d] in the cost of acquiring, constructing, maintaining or operating” the project. See id. Because the right-of-way used in the Westpark Tollway extension project remained part of the state highway system, the County had to “comply with [TxDOT] design and construction standards” in building the frontage roads. Id. § 228.001(h). Mahoney, 608 S.W.3d at 448. Mahoney is distinguishable from the case before us. The tollway project at issue in Mahoney was governed by section 228.011 of the Transportation Code. However, in this case, the contract documents explicitly state that the Maintenance Agreement is governed by section 373.006 of the Transportation Code. In its relevant parts, the Maintenance Agreement between TxDOT and Montgomery County provides: The parties acknowledge and agree that this Agreement is a toll project agreement under Section373.006, Transportation Code, and is intended to be an alternative to the primacy determination process under Subchapter B of Chapter 373, Transportation Code, for the development of the SH 249 Project. The SH 249 Project shall be developed in accordance with the terms of this Agreement, and this Agreement alters and replaces the steps and time limits specified in Subchapter B of Chapter 373 with the terms and conditions of this Agreement. See Tex. Trans. Code § 373.006; see also id. § 373.002 (providing that chapter 373 does not apply to a toll project described in section 228.011 of the Transportation Code). Further, we do not follow the First Court of Appeals’s interpretation of section 97.002 “as requiring only that the firm perform work under a contract that makes the firm responsible for constructing or repairing a highway, road, or street for TxDOT.” Such an interpretation impermissibly “rewrites” the statute and expands for whom the contractor must perform work in order for the statute to apply. See, e.g., Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 133 (Tex. 2019). If the Legislature intended for section 97.002 to apply to a contractor who contracts with any governmental entity to construct or repair a highway, road, or street, then the Legislature would have included that language in the statute. Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010) (“We presume the Legislature selected language in a statute with care and that every word or phrase was used with a purpose in mind.”). But in drafting section 97.002, the Legislature included language identifying TxDOT as the entity for whom the contractor must perform work and purposefully omitted other governmental entities. See Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam) (“We presume the Legislature included each word in the statute for a purpose and that words not included were purposefully omitted.”). SpawGlass and Third Coast also rely on the decision of the Fourth Court of Appeals in ISI Contracting, Inc. v. Markham. 647 S.W.3d 489, 498–500 (Tex. App.—San Antonio 2022, pet. denied). In ISI Contracting, following a motor vehicle accident, appellees sued TxDOT for premises defect, ISI Contracting for negligence and negligent undertaking, ISI Contracting and Guerra for breach of contract (under a third-party beneficiary status), and all defendants for concert of action claims. Id. at 492. ISI Contracting and Guerra moved for summary judgment on multiple grounds including the affirmative defense under section 97.002, and the trial court denied their motions for summary judgment. Id. at 492–93. Our sister court determined that ISI Contracting and Guerra are contractors for TxDOT because appellees’ “tenth amended petition alleges that . . . ISI was TxDOT’s guardrail maintenance contractor, and Guerra was ISI’s guardrail maintenance subcontractor.” Id. at 497. The court explained that “some of the statute’s applicability requirements hinge on what the plaintiff has pled.” Id. at 497 n.1. As with Mahoney, ISI Contracting is also distinguishable from the case before us. In Plaintiffs’ sixth amended petition, they alleged that the traffic lights installed by SpawGlass and Third Coast at the Intersection were not operational at the time of Pedro’s accident. Plaintiffs also alleged that SpawGlass and Third Coast breached multiple duties purportedly owed to Pedro, including failing to cover traffic signals in accordance with TxDOT requirements. However, Plaintiffs never alleged that SpawGlass and Third Coast were TxDOT contractors. Because the Fourth Court of Appeals did not specifically address who qualifies for statutory protection, we do not find ISI Contracting helpful in resolving the question of whether SpawGlass and Third Coast are qualified contractors for TxDOT. Of the recent cases addressing section 97.002′s applicability, we find the decision of the Eighth Court of Appeals in Navarrette to be particularly instructive. 656 S.W.3d at 722. The court construed the language of section 97.002 to determine who qualifies for the statutory protections. Id. The court reasoned that “the opening phrase, ‘[a] contractor who constructs or repairs a highway, road, or street for the Texas Department of Transportation,’ is a restrictive clause modifying the immediately preceding noun, ‘contractor.’” Id. The court held that because the restrictive clause in section 97.002 limits the essential meaning of “contractor,” the Legislature intended for the statutory protections to extend “only to contractors hired by TxDOT to perform highway, road, or street construction and repairs.” Id. We agree with the Eighth Court of Appeals to the extent that the plain language of the section 97.002 applies only to contractors hired by TxDOT.[5] Considering the text of the statute as a whole, it is clear that the Legislature intended for there to be a contractual relationship between the contractor and TxDOT. See KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 183 (Tex. 2019). As discussed above, the Legislature intentionally included language identifying TxDOT as the entity the contractor performs construction or repairs for and provides immunity from liability if the contractor is in compliance with the contract documents. See Tex. Civ. Prac. & Rem. Code § 97.002; see also Tex. Lottery Comm’n, 325 S.W.3d at 635. Additionally, the Legislature could have included but chose to omit other governmental entities that may work in conjunction with TxDOT or that must adhere to TxDOT specifications. See Lippincott, 462 S.W.3d at 509. Having determined who qualifies for section 97.002′s statutory protections, we must review the relevant summary judgment evidence to determine if SpawGlass and Third Coast established that they are contractors hired by TxDOT to construct or repair a highway, road, or street. See Tex. Civ. Prac. & Rem. Code § 97.002. Based on the record before us, we conclude that SpawGlass and Third Coast do not qualify for the statutory protections afforded by section 97.002. SpawGlass nor Third Coast provided any evidence that conclusively established that they were hired by TxDOT or otherwise contracted with TxDOT for the SH 249 Project. The summary judgment evidence presented in this case demonstrates that: (1) Montgomery County and TxDOT entered into an agreement for construction of the SH 249 Project, which included the County Project and the TxDOT Project; (2) SpawGlass was hired by Montgomery County to serve as the general contractor for the County Project; (3) SpawGlass reported to the County Engineer of Montgomery County; and (4) Third Coast entered into a subcontract with SpawGlass to furnish and install all electrical components associated with the County Project. We conclude that SpawGlass and Third Coast did not bring forth summary judgment evidence that conclusively established that they were contractors hired by TxDOT. Accordingly, we overrule SpawGlass and Third Coast’s first issue. We need not determine if the installation of traffic signals constitutes construction of “a highway, road, or street” and do not reach SpawGlass’s remaining issue of whether the trial court erred in overruling its objections to Steitle’s amended declaration. See Tex. R. App. 47.1. Conclusion We affirm the judgment of the trial court. Frances Bourliot Justice Panel consists of Justices Wise, Bourliot, and Spain. (Wise, J., concurring without opinion).
