Opinion issued August 18, 2020




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-01105-CV
                           ———————————
 JEFFREY MAHONEY, KRISTIN MAHONEY, AND HECTOR BORGES,
                       Appellants
                                        V.
                           WEBBER, LLC, Appellee


                   On Appeal from the 400th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 16-DCV-236228


                                  OPINION

      Appellants, Jeffrey Mahoney, Kristin Mahoney, and Hector Borges

(collectively, the “homeowners”), challenge the trial court’s rendition of summary

judgment in favor of appellee, Webber, LLC (“Webber”), in their suit against it for
private nuisance and a permanent injunction. In two issues, the homeowners contend

that the trial court erred in granting summary judgment on their claims.

      We affirm.

                                   Background

      In their first amended petition, the homeowners alleged that they own homes

in a subdivision in Fort Bend County, Texas (the “County”). In January 2016,

Webber was awarded a contract for the Westpark Tollway extension project. In

February 2016, Webber’s contract was approved by the County’s Commissioners’

Court and signed. Webber began work on the Westpark Tollway extension project

and erected a concrete batch plant on property neighboring the homeowners’

subdivision. Webber used that property as a temporary center of operations during

its construction of the Westpark Tollway extension project. The homeowners’

homes were the two closest homes to Webber’s concrete batch plant.            The

homeowners alleged that after the Westpark Tollway extension project began they

experienced substantial interference with the use and enjoyment of their homes,

including an unreasonable level of noise from the concrete batch plant and

construction traffic, an unreasonable amount of dust from the property, an

unreasonable amount of light pollution from the concrete batch plant and

construction traffic, an unsightly view created by Webber, and an invasion of the

homeowners’ privacy.


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      The homeowners sued Webber for private nuisance, claiming that Webber’s

conduct caused them a loss of fair market rental value, past and future physical pain

and suffering, and past and future mental anguish, including loss of enjoyment. The

homeowners also sought a permanent injunction to restrict Webber’s hours of

operation; institute dust reduction, noise control, and light reduction measures; and

regulate Webber’s use of construction vehicles to abate invasion of privacy issues.

      Webber answered, generally denying the homeowners’ allegations and

asserting that it was entitled to statutory immunity from liability under Texas Civil

Practice and Remedies Code section 97.002.

      Webber moved for summary judgment, arguing that as a contractor

constructing a road “for” the Texas Department of Transportation (“TxDOT”), it

was entitled to statutory immunity from liability as a matter of law under Texas Civil

Practice and Remedies Code 97.002.1 In its motion, Webber asserted that the

homeowners’ suit arose from construction on the Westpark Tollway extension

project by the County and TxDOT because connectivity to the northwest portion of

the County had become a problem. Before the Westpark Tollway extension project

began in 2016, FM 1093—a farm-to-market road that is part of the state highway

system—was a rural, two-lane road. With the explosion in the County’s population,



1
      See TEX. CIV. PRAC. & REM. CODE ANN. § 97.002 (“Limit on Liability of Certain
      Highway, Road, and Street Contractors”).

                                          3
FM 1093 became heavily congested with traffic. TxDOT standards required that

FM 1093 be upgraded to a four-lane divided roadway. The plan, as shown in an

appendix to TxDOT’s environmental assessment of the project, a copy of which

Webber attached as an exhibit to its summary-judgment motion, included replacing

a portion of FM 1093 with an extension of the Westpark Tollway, to be operated by

the County, and contiguous non-toll frontage roads, to be owned and maintained by

the State of Texas. TxDOT provided the County with $40 million in financing for

the Westpark Tollway extension project.

      In January 2016, the County awarded Webber the contract to construct the

Westpark Tollway extension and frontage roads. For the project, Webber leased a

tract of land adjacent to FM 1093. The property was already being used as a

commercial sand pit. Webber leased the property to use as its operations hub, and it

erected and operated a temporary concrete batch plant on the property. Webber

began producing concrete at the plant in April 2016.

      Because Webber was a contractor hired to construct highways and roads on

behalf of the County and TxDOT, it asserted it was entitled to statutory immunity

from liability under Texas Civil Practice and Remedies Code 97.002.

      In response to Webber’s summary-judgment motion, the homeowners argued

that Texas Civil Practice and Remedies Code section 97.002 did not apply to Webber

because its contract was with the County, not TxDOT.


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      Webber replied that the statute’s plain language did not require Webber to

have a direct contractual relationship with TxDOT, only that it be performing road

work for TxDOT. And its contract with the County came about because of “the

County’s partnership with TxDOT whereby TxDOT agreed to finance $40 million”

for the Westpark Tollway extension project.

      After a hearing, the trial court granted Webber summary judgment on the

homeowners’ claims.2

                        Statutory Immunity from Liability

      In their first issue, the homeowners argue that the trial court erred in granting

Webber summary judgment on their claims because Texas Civil Practice and

Remedies Code section 97.002 does not grant statutory immunity from liability to a

contractor who is not providing services under a TxDOT contract.

      We review a trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true

all evidence favorable to the non-movant, and we indulge every reasonable inference

and resolve any doubts in the non-movant’s favor. Valence Operating, 164 S.W.3d

at 661; Knott, 128 S.W.3d at 215. If a trial court grants summary judgment without


2
      In March 2019, Webber completed its work on the Westpark Tollway extension
      project, closed the concrete batch plant, and ceased operations on its property near
      the subdivision.

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specifying the grounds for granting the motion, we must uphold the trial court’s

judgment if any of the asserted grounds are meritorious. Beverick v. Koch Power,

Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

      To prevail on a matter-of-law summary-judgment motion, the movant must

establish that no genuine issue of material fact exists and the trial court should grant

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.

Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a

defendant moves for a matter-of-law summary judgment, it must either: (1) disprove

at least one essential element of the plaintiff’s cause of action, or (2) plead and

conclusively establish each essential element of an affirmative defense, thereby

defeating the plaintiff’s cause of action. See Cathey v. Booth, 900 S.W.2d 339, 341

(Tex. 1995); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Once

the movant meets its burden, the burden shifts to the non-movant to raise a genuine

issue of material fact precluding summary judgment. See Siegler, 899 S.W.2d at

197; Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 691 (Tex. App.—

Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine issue of fact if

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

all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236

S.W.3d 754, 755 (Tex. 2007).




                                           6
      The homeowners argue that Texas Civil Practice and Remedies Code section

97.002, which provides statutory immunity from liability for contractors that

construct or repair highways, roads, or streets for TxDOT, does not apply to Webber

because it provided services under a contract with the County and not with TxDOT.

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
      the 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.

      Webber’s contract was with the County, but the contract required Webber to

construct part of a state highway.      We therefore must consider whether the

Legislature intended that the immunity from liability provided by Texas Civil

Practice and Remedies Code section 97.002 extend only to contractors who

contracted with TxDOT to construct or repair roads or whether it also intended to

confer immunity on firms that have contracted with other governmental entities to

construct or repair state-owned highways, roads, or streets.

      We review issues of statutory construction de novo. Silguero v. CSL Plasma,

Inc., 579 S.W.3d 53, 59 (Tex. 2019). “In interpreting statutes, we must look to the

plain language, construing the text in light of the statute as a whole.” Id. “The


                                          7
statutory terms bear their common, ordinary meaning unless the text provides a

different meaning or the common meaning leads to an absurd result.” Id. A court

“may not impose its own judicial meaning on a statute by adding words not

contained in the statute’s language.” Id.

      Section 97.002 refers to “a contractor,” but it does not define “contractor” as

a construction firm that has contracted with TxDOT, nor does it otherwise require

the firm to have privity with TxDOT. We read the plain language 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.

      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. TRANSP. 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. TRANSP. CODE ANN. § 228.011(b), (b-1). TxDOT “participate[d] in the

cost of acquiring, constructing, maintaining or operating” the project. See id.




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      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). The Financial Assistance Agreement3 between TxDOT and the

County confirms that the frontage roads constructed in the project belong to the state

highway system, acknowledging that after construction, “TxDOT shall be

responsible for maintenance of the frontage roads of the project.”

      The Legislature knows how to draft statutes that limit liability for only those

contractors that contract with TxDOT.         See, e.g., TEX. TRANSP. CODE ANN.

§ 473.003 (limiting civil liability for “[a] contractor who enters into a contract with

a governmental entity” arising out of damage caused by defective project

specifications). No such limitation appears in Texas Civil Practice and Remedies

Code section 97.002. Because the undisputed facts show that Webber’s contract

with the County required it to construct a “highway, road, or street” for TxDOT, it

is entitled to statutory immunity from liability under section 97.002 as a matter of

law. Accordingly, we hold that the trial court did not err in granting Webber

summary judgment.

      We overrule the homeowners’ first issue.



3
      Webber attached a copy of the Financial Assistance Agreement to its
      summary-judgment motion.

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                               Constitutional Claim

      In their second issue, the homeowners argue that the trial court erred in

granting Webber summary judgment on their claims because Texas Civil Practice

and Remedies Code section 97.002 is unconstitutional as applied in this case.

Because the homeowners waived their constitutional claim by failing to first raise it

in the trial court, we do not reach this issue. See TEX. R. CIV. P. 166a(c); TEX. R.

APP. P. 33.1(a).

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Julie Countiss
                                              Justice

Panel consists of Justices Kelly, Landau, and Countiss.




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