Webber, LLC v. Rachel Preter

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-25-00265-CV WEBBER, LLC, Appellant v. Rachel PRETER, Appellee From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2023-CI-21117 Honorable Marisa Flores, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Irene Rios, Justice Lori Massey Brissette, Justice H. Todd McCray, Justice Delivered and Filed: October 28, 2026 AFFIRMED Appellant Webber, LLC challenges the trial court’s denial of its motion for summary judgment based on immunity from liability provided by section 97.002 of the Texas Civil Practice and Remedies Code and overruling its objections to appellee Rachel Preter’s summary judgment evidence. We affirm.  04-25-00265-CV BACKGROUND Pursuant to its contract with the Texas Department of Transportation (“TxDOT”), Webber, a road construction contractor, was expanding State Highway 36 (“SH-36”) in West Columbia, Brazoria County, Texas (herein referred to as the “contract”). On March 23, 2023, Preter was walking to school along a stretch of Business Interstate Highway 35 (“Business-35”) that intersected SH-36. While attempting to cross SH-36 at the Business-35 intersection, Preter was struck by a vehicle traveling on SH-36. Preter sustained severe injuries from the incident. Preter sued Webber and other defendants, including Pape-Dawson Engineers (“Pape- Dawson), Rodriguez Transportation Group, LLC (“RTG”), and RPS Infrastructure, Inc. (“RPS”). Preter asserted negligent claims against Webber, alleging that Webber had a duty to “exercise ordinary care in the implementation of the traffic control plan [(“the TCP”)]” and did not do so when it failed to: (1) “barricade the corners of the subject intersection;” (2) “remove the crosswalk striping;” (3) “close the subject intersection to pedestrians;” and (4) comply with the Texas Manual on Traffic Control Devices.” Preter also alleged that Webber “[p]rematurely remov[ed] the pedestrian signals at the subject intersection[,]” but did “[n]ot provid[e] a safe alternative for pedestrians after removing the subject crosswalk signals[,]” which “[led] pedestrians into conflicts with vehicles[.]” Webber moved for summary judgment, asserting it was immune from Preter’s claims because it was a contractor who constructs or repairs highways, roads, or streets for TxDOT and was in compliance with the relevant contract documents at the time of the incident. See TEX. CIV. PRAC. & REM. CODE ANN. § 97.002. The trial court denied Webber’s motion and overruled its objections to Preter’s summary judgment evidence attached to her response to Webber’s motion. Webber then filed this interlocutory appeal. See id. § 51.014(a)(17) (authorizing interlocutory -2-  04-25-00265-CV appeal from order that “grants or denies a motion for summary judgment filed by a contractor based on [s]ection 97.002” of the Texas Civil Practice and Remedies Code). Before determining if the trial court erred in denying Webber’s motion for summary judgment, we first determine if the trial court abused its discretion by including evidence in the summary judgment record. EVIDENTIARY RULINGS On appeal, Webber argues the trial court erred when it overruled its objections to Preter’s summary judgment evidence with respect to “(1) the speculative, conclusory, and unreliable declaration of [Preter]’s retained expert David Steitle[,] and (2) the deposition testimony of the design consultants who lacked any personal knowledge of construction implementation.” 1 A. Standard of Review We review a trial court’s decision to admit or exclude summary judgment evidence for an abuse of discretion. See Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017); Schumacher v. Trois, 705 S.W.3d 854, 868 (Tex. App.—San Antonio 2024, pet. denied). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or principles. Schumacher, 705 S.W.3d at 868. “To obtain reversal for improper admissions or exclusions of evidence, the appellant must establish that the error was harmful— that it was calculated to cause and probably did cause the rendition of an improper judgment. Id. (citing In re Est. of Denman, 362 S.W.3d 134, 141 (Tex. App.—San Antonio 2011, no pet.)). “Errors in admission or exclusion of evidence are generally not reversible unless the appellant can 1 Webber additionally objected to Exhibit 15, referred to as the February 20 email exchange, but dated February 10th and 11th, 2020, that Preter attached to its response to RTG’s and RPS’s motions for summary judgment filed in the trial court. Webber does not address this objection on appeal, and therefore we do not further address it here. -3-  04-25-00265-CV show the whole case turns on the complained of evidence.” Id. (quoting Denman, 362 S.W.3d at 141). B. Analysis 1. David Steitle’s Declaration Webber contends Steitle’s opinions contained within his declaration are nothing more than ipse dixit testimony, because Steitle presents only conclusory opinions lacking valid factual support or methodology. Additionally, Webber argues that Steitle’s opinions are unreliable and contrary to undisputed facts as well as inadmissible as the contract is unambiguous and thus does not require interpretation. “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702; see Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 215– 16 (Tex. 2010). Steitle opined that Webber made several deviations from its contract with TxDOT that created a conflict for pedestrians resulting in a dangerous condition. Steitle summarized various contractual requirements and specifications along with facts that led him to conclude Webber was not in compliance with the contract. “An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.” TEX. R. EVID. 703; see In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007) (orig. proceeding) (referring to Texas Rules of Evidence 703 and 704, while noting that expert witnesses may testify about facts or data not personally perceived, -4-  04-25-00265-CV but “reviewed by, or made known to them;” experts may “rely on inadmissible hearsay, privileged communications and other information that the ordinary witness may not;” and “an expert may state an opinion on mixed questions of law and fact”) (internal quotations omitted). Steitle explained that his opinions are based on his review of the evidence. Specifically, in addition to analyzing the plans for the Temporary Signal Layout and Temporary Control Plan, Steitle stated he also reviewed deposition transcripts, written discovery responses and production, the information produced by TxDOT and others, photographs of the scene, law enforcement materials, affidavits and declarations, motions and responses, and video of the incident. In his declaration, Steitle explained the bases for his opinions while referring to the specific materials he analyzed to support his opinions. See, e.g., Bastida v. Aznaran, 444 S.W.3d 98, 105–106 (Tex. App.—Dallas 2014, no pet.) (explaining that logical conclusions based on stated underlying facts are not conclusory and are proper in summary-judgment affidavits). Webber offers no argument or authority explaining why Steitle’s reliance on the facts or data described undermines Steitle’s expert opinions. See In re Christus Spohn Hosp. Kleberg, 222 S.W.3d at 440. We therefore reject Webber’s arguments that Steitle’s opinions are conclusory, not readily controvertible, or not credible. Further, Steitle attached his curriculum vitae, which reflects his extensive qualifications, education and experience as a civil engineer with traffic engineering expertise. We conclude Webber has not established the trial court abused its discretion in overruling its objection to Steitle’s declaration. 2 2. Design Consultants’ Deposition Testimony Webber additionally complains the trial court erred in overruling its objections to the design consultants’ deposition testimony relied on by Preter—namely engineers Brian Allen of 2 As it is not before us, we take no position with regard to whether the expert’s opinions are ultimately admissible. -5-  04-25-00265-CV Pape-Dawson, Nathan Malleley of Webber, James Schwerdtfeger of RPS, and Brock Miller of RTG. We agree with the trial court’s denial of Webber’s evidentiary objections to the design consultants’ deposition testimony. First, we note Webber attached each of the same design consultant depositions as evidence to its own motion for summary judgment then objected to Preter’s use of the same depositions. Next, we recall that generally, an evidentiary objection must be timely, specific, and afford the trial court an opportunity to cure the alleged error, if any. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1). Here, Webber broadly objected “to the deposition testimony of the design engineers (Plaintiff’s Exhibits 2, 3, 4, and 5) to the extent these engineers attempt to address the contractual provisions in TxDOT’s contract with Webber or Webber’s compliance with the same during construction.” Webber contends the design engineers lacked personal knowledge about the construction phase of the project, and they misstated and misapplied the unambiguous contractual provisions applicable to the construction phase of the project. The exhibits totaled over seven hundred pages of deposition testimony that Webber itself relied on in part, including its own design consultant, Malleley. And while Webber attempted to limit the scope of testimony to which it objected, Webber’s asserted objections applied to the exhibits in their entirety, not only to certain portions. Similarly, Webber did not provide any reasoning or legal citations to support its objections to the challenged exhibits. See Wu v. Lumber Liquidators, Inc., No. 14-20-00765-CV, 2024 WL 3160554, at *4 (Tex. App.—Houston [14th Dist.] June 25, 2024, no pet.) (mem. op) (concluding trial court did not abuse its discretion by overruling broad evidentiary objections). Therefore, we cannot conclude the trial court abused its discretion by overruling Webber’s evidentiary objections to the design consultants’ deposition testimony. See Speier v. Webster Coll., -6-  04-25-00265-CV 616 S.W.2d 617, 619 (Tex. 1981) (“‘A general objection to a unit of evidence as a whole . . . which does not point out specifically the portion objected to, is properly overruled if any part of it is admissible.’”) (quoting Brown & Root, Inc. v. Haddad, 180 S.W.2d 339, 341 (Tex. 1944)). We overrule Webber’s second issue. WEBBER’S MOTION FOR SUMMARY JUDGMENT BASED ON CHAPTER 97 IMMUNITY In its first issue, Webber contends it is entitled to immunity under section 97.002 of the Texas Civil Practice and Remedies Code because its summary judgment evidence conclusively establishes it contracted with TxDOT to perform highway construction on portions of SH-36, including where SH-36 intersects Business-35; and at the time of the incident, it was in compliance with the contract documents material to the condition that was the proximate cause of Preter’s injuries. See TEX. CIV. PRAC. & REM. CODE ANN. § 97.002. A. Standard of Review We review a trial court’s ruling on a motion for summary judgment de novo. See Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 278 (Tex. 2018). In our review, “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.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A party moving for traditional summary judgment bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Mann Fankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009) (citing TEX. R. CIV. P. 166a(c)). Moreover, 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). “Evidence is -7-  04-25-00265-CV conclusive only if reasonable people could not differ in their conclusions[.]” City of Keller v. Wilson, 168 S.W.3d 802, 815 (Tex. 2005). On the other hand, evidence raises a genuine issue of material fact if reasonable jurors could differ in their conclusions in light of all the summary judgment evidence. Townsend v. Hindes, 619 S.W.3d 763, 770–71 (Tex. App.—San Antonio 2020, no pet.) (citing City of Keller, 168 S.W.3d at 882). B. TxDOT Contractor Immunity from Liability 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 ANN. § 97.002. As this court has previously stated, “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.” ISI Contracting, Inc. v. Markham, 647 S.W.3d 489, 496 (Tex. App.—San Antonio 2022, pet. denied) (citation omitted). However, the statute does not provide “blanket immunity . . . against all claims for any circumstances[.]” Id. “To the contrary, the statute contains multiple applicability requirements to create immunity, which must all be met[.]” Id. Specifically, section 97.002 has three distinct parts: (1) a description of who qualifies for the statute’s protection, (2) a description of the specific protection the statute affords, and (3) 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 2022, no pet.). -8-  04-25-00265-CV C. Analysis The parties do not dispute the evidence proves that Webber, as a contractor constructing a portion of a Texas highway, qualifies for section 97.002’s protection and that Preter’s claims are the type that fall within section 97.002’s purview. See TEX. CIV. PRAC. & REM. CODE ANN. § 97.002. Rather, the parties disagree as to whether the evidence conclusively proves the third part of section 97.002—the condition that must also be satisfied to warrant immunity. To reiterate, the third part of section 97.002 provides contractor immunity from liability if the contractor was “in compliance with contract documents material to the condition or defect that was the proximate cause of the personal injury, property damage, or death.” Id. This immunity provision corresponds to the role highway contractors assume when performing under a TxDOT contract, in which they “have no discretion to deviate from the design plans provided in their contract.” Navarrette, 656 S.W.3d at 725; see also APAC-Tex., Inc. v. Beasley, No. 09-13-00390- CV, 2014 WL 887266, at *1, 2 (Tex. App.—Beaumont Mar. 6, 2014, no pet.) (mem. op.). 1. Parties’ Arguments Both in the trial court and on appeal, Preter challenges Webber’s compliance with TxDOT’s contract documents on three grounds. If there is conflicting evidence on any ground, a genuine issue of material fact exists, precluding summary judgment. Preter contends the contract provides that the intersection was to be closed to pedestrian traffic at the time of the incident. Preter argues Webber failed to comply with the contract by not removing the crosswalk markings. According to Preter, Webber’s failure to remove the crosswalk markings resulted in a dangerous condition that led to the incident. Webber, on the other hand, maintains that the contract does not state, nor was Webber told that the intersection was to be closed to pedestrian traffic at the time of the incident. Webber also -9-  04-25-00265-CV asserts that the contract did not instruct it to remove the crosswalk markings. To the contrary, Webber contends the contract only speaks to how the crosswalk markings are to be removed, not that they should be removed. 2. Controlling Contract Provisions The contract between Webber and TxDOT includes several provisions that are arguably pertinent to this appeal. Item 502, “Barricades, Signs, and Traffic Handling,” directs the contractor, among other tasks, to “[c]over or remove the permanent signs . . . that are incorrect or that do not apply to the current situation for a particular phase.” Item 677, “Eliminating Existing Pavement Markings and Markers,” directs the contractor to “[r]emove existing pavement markings on concrete or asphalt surfaces by flail milling or as directed.” Item 678, “Pavement Surface Preparation for Markings,” on the other hand, directs the contractor how to prepare the road surface for new pavement markings; it does not direct the contractor to remove the crosswalk markings. Under the general notes to the TCP Narrative Segment 11, General Note 5 states that the “[c]ontractor shall be responsible for removing all conflicting existing and work zone pavement markings.” Next, the TCP sheet 11 of 12 regarding “Barricade and Construction Pavement Markings,” under the “Work Zone Pavement Markings, Removal of Pavement Markings” directs the contractor that “[p]avement markings that are no longer applicable, could create confusion[,] or direct a motorist toward or into the closed portion of the roadway shall be removed or obliterated before the roadway is opened to traffic.” - 10 -  04-25-00265-CV The contract also specifies that special provisions govern and take precedence over other contract provisions. Specifically, Special Provision Article 5.1 to “Item 5 Control of the Work” reads as follows: 5.1. Authority of Engineer. 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. Additionally, the TCP sheet 7 of 17, Phase 1, Step 3, and the Plan Sheet Temporary Signal Head Schedule, SH36 at Business-35, Temporary Signal Layout, Phase 1, Step 3, depict drawings of the intersection at issue. While disputed as to whether the plan sheets direct contractor action regarding the crosswalk markings, it is undisputed that neither plan sheet illustrates the crosswalk markings at the intersection relevant to this appeal. 3. Summary Judgment Evidence In addition to attaching the contract itself, both parties also attached several deposition transcripts to their motion and response, namely those engineers discussed above: Allen of Pape- Dawson, Malleley of Webber, Schwerdtfeger of RPS, and Miller of RTG. The deposition transcripts of Webber’s senior project manager, Jonathan Weiser, and TxDOT’s area engineer Maria Pilar Aponte, are also attached by both Webber and Preter. During Allen’s, Schwerdtfeger’s, and Miller’s depositions, each one of them testified that according to the contract, the intersection was supposed to be closed; and because it was supposed to be closed during construction, the contract directed Webber to remove the crosswalk markings. Allen testified that once Webber installed the temporary signal at the intersection the plans called for Webber to also remove the crosswalk markings. Moreover, Allen agreed that “The Texas - 11 -  04-25-00265-CV Manual on Uniform Traffic Control Devices” in the Texas Administrative Code, incorporated into the contract by reference, provides that when considering the protection of pedestrians, “[p]edestrians should not be led into conflicts with vehicles, equipment, and operations.” Therefore, Allen understood how remaining crosswalk markings could confuse a pedestrian into thinking the crosswalk was open thereby causing the pedestrian to be led into a conflict with a vehicle. According to Allen, the contract plans directed Webber to remove the crosswalk markings. Based on conversations with Pape-Dawson, the firm that oversaw the entire TxDOT project, Schwerdtfeger understood that the intersection was to be closed to pedestrian traffic. Schwerdtfeger explained that his understanding was based on an email chain during the early planning stages of the project, wherein Schwerdtfeger questioned whether the intersection would be closed to pedestrian traffic because the highway would be raised over a foot and half. Accordingly, Schwerdtfeger agreed the contract plans, particularly General Note 5 requiring the removal of any conflicting existing pavement markings, directed Webber to remove the crosswalk markings in the intersection. In his deposition, RTG project manager Miller, who designed the TCP, testified that the final plans submitted for the contract did not provide pedestrian access to the intersection, meaning the intersection was to be closed, because as Miller understood, TxDOT did not want pedestrians to go through the intersection for “safety reasons” during construction. Miller discussed a March 2023 email chain that began before the incident. The purpose of the email was to find alternatives for pedestrian traffic access. Miller also explained that the reason the email referenced the sidewalks being closed in front of the high school was because the contract plans called for the closure of the intersection. The email chain continued post-accident, and Miller noted that it stated the crosswalk markings should have already been removed because the TCP was designed to keep - 12 -  04-25-00265-CV the intersection closed during construction. Miller agreed that if the intersection was to be closed, remaining crosswalk markings would conflict with a closed intersection potentially leading to confusion. On the other hand, Weiser, Webber’s senior project manager overseeing the construction, testified differently. For example, when questioned about General Note 5 stating the “[c]ontractor shall be responsible for removing all conflicting existing and work zone pavement markings” and why the crosswalk markings were not removed, Weiser responded that based on his understanding, “[b]ecause the intersection was to remain open to pedestrian traffic.” Weiser explained that based on his experience, the absence of the crosswalk markings on the plan sheets did not mean Webber was to remove them, despite contrary testimony. Weiser added, “If they would have wanted us to remove the crosswalk, there should have been a plan set showing the signage and indicating to and when to eliminate that access. So there should have been something telling us to remove [the crosswalk markings].” Webber’s design engineer Malleley agreed with Weiser that the contract plans did not direct Webber to remove the crosswalk markings, and Malleley did not believe the crosswalk markings conflicted with any other markings. Malleley claimed he never heard that the intersection was to be closed to pedestrians. Regarding TxDOT’s area engineer’s opinion as to whether the crosswalk should have been closed on the day of the accident, Aponte testified, “It doesn’t seem to be closed. It’s an intersection. The road is open.” Referring to the present crosswalk markings, Aponte explained that the crosswalk was open “because you have other alternatives to where to go as a pedestrian” regardless that no sidewalks are present or open, as the crosswalk serves the purpose “[t]o safely cross the intersection.” In furtherance of her position that the intersection was to remain open, thereby supporting Webber’s position that it was not supposed to remove the crosswalk markings, - 13 -  04-25-00265-CV Aponte added retrospectively, “We are not stopping pedestrian[s] from crossing that intersection. It’s an intersection, and there is a delineated area for pedestrian[s] to cross the intersection[,]” even if there is no sidewalk to continue on when reaching the other side of the intersection, as “[p]eople [can] walk along the side of the road.” While referencing the March 2023 email chain regarding her response on the date of the incident, Aponte recommended two options specific to addressing pedestrian traffic at the intersection in the future. Aponte acknowledged the email stated that “[t]he TCP was designed to keep the intersection closed to pedestrians through construction.” When questioned about this sentence, Aponte responded that she did not understand the TCP to close the intersection to pedestrians; rather, Aponte understood that the intersection was open to both vehicular and pedestrian traffic at the time of the incident. Finally, in response to whether Webber was in compliance with the plans and specifications pertaining to the intersection, Aponte stated, “I believe so.” 4. Whether Webber Established Immunity as a Matter of Law We begin by stating that under the facts of this case, Webber’s reliance on this court’s Markham case for the proposition that TxDOT’s area engineer Aponte’s testimony conclusively establishes Webber was in compliance with the contract documents at the time of the incident is misplaced. 647 S.W.3d at 501–503. In Markham, the plaintiffs contended that the highway repair contractors that replaced a previously damaged guardrail at TxDOT’s request, replaced the guardrail at a height that was too low in violation of TxDOT’s established standards, and that the lower height caused the plaintiffs’ pickup truck to ride up over the guardrail allowing it to depart from the highway killing the driver and seriously injuring the passenger. Id. at 492. The contractors moved for summary judgment on multiple grounds including section 97.002’s immunity - 14 -  04-25-00265-CV affirmative defense. Id. at 492–93. Referring to the same contract provision language as is included in the contract here, Special Provision Article 5.1, the Markham Court reasoned that the contractors established their immunity under section 97.002, stating that [a]lthough the contractors and the Markhams disagree about what height the repaired section of the guardrail should have been, their differing views are made irrelevant by the Engineer’s acceptance of the work. As we have explained, the Engineer had final and binding authority to determine whether [the contractors’] work was in compliance with contract documents. It is undisputed, and the summary judgment evidence conclusively establishes, that the TxDOT Engineer approved and accepted the work which was the basis of the Markhams’ claims, and the Engineer’s acceptance of that work determines as a matter of law that [the contractors] were in “compliance with contract documents material to the condition or defect that was the [alleged] proximate cause of the personal injury, property damage, or death.” Id. at 502; see also TEX. CIV. PRAC. & REM. CODE ANN. § 97.002. While Special Provision Article 5.1 empowers the TxDOT engineer in charge of the project to make final and binding decisions here as it did in Markham, Webber and the contractors in Markham are not similarly situated. The contractors in Markham had completed the guardrail repair when the TxDOT engineer approved and accepted the contractors’ work, determining that the contractors’ work had fulfilled the contract requirements. Webber, on the other hand, was amid completing its contract requirements at the time of the incident. See Markham, 647 S.W.3d at 502. While we do not question TxDOT area engineer Aponte’s authority under Special Provision Article 5.1 to enforce and effectuate her decisions pertaining to the contract, the summary judgment record is devoid of evidence that at the time of the incident Aponte had accepted Webber’s work material to the condition that Preter alleges proximately caused her injuries, that is, that Aponte had accepted Webber’s work to maintain the intersection open to pedestrian traffic and leave the crosswalk markings in place. Rather, Aponte was asked whether at the time of the incident the TCP called for the intersection to be closed or open to pedestrian traffic, - 15 -  04-25-00265-CV which directly relates to whether Webber should have removed the crosswalk markings. We also note that, Aponte’s answer that she “believe[d]” Webber was in compliance with the contract appears equivocal, leaving open the possibility that she was not completely certain. Thus, Aponte’s testimony that she “believe[d]” Webber was in compliance with the contract, when considering the contract and contrary evidence, is not conclusive evidence that on the day of the incident Webber was in compliance with contract documents material as to whether the intersection should have been closed to pedestrian traffic and crosswalk markings removed. Several sister courts of appeals have also distinguished Markham when the contractor has not completed its work and when the contract at issue includes Special Provision Article 5.1 like in Markham and in this case. See Haydon Bldg. Corp. v Green, No. 08-23-00073-CV, 2024 WL 3611000, at *1, 6 (Tex. App.—El Paso July 31, 2024, pet. denied) (mem. op.) (concluding evidence, including the lead engineer’s testimony, failed to conclusively establish contractor’s entitlement to immunity as contractor was in process of performing its contract, unlike in Markham where contractor’s work was completed and the ultimate decision of contract fulfillment rested on TxDOT’s engineer’s approval); Austin Materials, LLC v. Rosado for Troche, No. 03-22-00201- CV, 2023 WL 3666107, at *1, 6 (Tex. App.—Austin May 26, 2023, pet. denied) (mem. op.) (affirming trial court’s denial of contractor’s summary judgment because TxDOT’s engineer had not accepted contractor’s work on day of accident and thus a fact issue remained as to whether contractor was in compliance with the TCP despite evidence from TxDOT area engineer that “to the best of his knowledge” contractor was in compliance with the TCP on day of accident); see also ISI Contracting, Inc. v. Dar, No. 14-24-00340-CV, 2025 WL 2114308, at *3–4 (Tex. App.— Houston [14th Dist.] July 29, 2025, pet. denied) (analogizing its facts as more akin to those in Haydon because contractor in process of performing its contract and dynamic nature of project - 16 -  04-25-00265-CV required barricades to be moved to allow work crews and vehicles to pass and concluding TxDOT area engineer’s testimony who did not complete or review daily reports or personally view placement of barriers did not conclusively establish contractor’s compliance with contract documents); Williams Bros. Constr. Co., Inc. v. Christ, No. 14-24-00626-CV, 2025 WL 1936931, *8–9 (Tex. App.—Houston [14th Dist.] July 15, 2025, pet. denied) (mem. op.) (analogizing its case to Austin Materials in distinguishing Markham and concluding “reasonable people could disagree regarding whether [contractor] complied with contract documents material to [the plaintiffs’] injuries” when court affirmed trial court’s denial of contractor’s motion for summary judgment). Additionally, the Beaumont Court of Appeals distinguished Markham by concluding that, although the contractor in its case had completed its work that was generally accepted by TxDOT, there was no evidence that the “area engineer actually approved and accepted the very work that [was] the basis of [the plaintiff’s] claims” to conclusively establish the contractor was in compliance with the contract. See Huber v. ISI Cont., Inc., No. 09-25-00198-CV, 2026 WL 958191, at *8 (Tex. App.—Beaumont April 9, 2026, no pet.) (mem. op.) (deciding that the fact a contractor completing the job, taken alone, does not automatically entitle the contactor to section 97.002 immunity). The Markham Court deliberately cautioned that section 97.002 does not create a blanket immunity to TxDOT highway construction and repair contractors for all claims. See Markham, 647 S.W.3d at 496. “To the contrary, the statute contains multiple applicability requirements to create immunity, which must all be met.” Id. Viewing all the evidence in the light most favorable to Preter and indulging every reasonable inference and resolving any doubts in her favor, we conclude a genuine issue of material fact exists as to whether the intersection should have been - 17 -  04-25-00265-CV opened or closed to pedestrian traffic thereby dictating whether Webber should have removed the crosswalk markings prior to the incident. See Dorsett, 164 S.W.3d at 661. Therefore, Webber failed to establish immunity by conclusively proving it was in compliance with contract documents material to the condition or defect that was the proximate cause of Preter’s personal injuries. Because Webber failed to conclusively establish its entitlement to immunity from liability under section 97.002, we conclude the trial court did not err in denying Webber’s motion for summary judgment. Accordingly, we overrule Webber’s first issue. CONCLUSION Having overruled both of Webber’s appellate issues, we affirm the trial court’s September 26, 2025 order denying Webber’s motion for summary judgment and overruling Webber’s objections to Preter’s summary judgment evidence. Irene Rios, Justice - 18 -