                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                                 NO. 02-11-00126-CV


Amy Sipes and Tana Trevino                  §   From the 236th District Court

v.                                          §   of Tarrant County (236-180975-99)

Sunmount Corporation and The                §   March 14, 2013
State of Texas - Department of
Transportation                              §   Opinion by Justice Dauphinot



                                   JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was error in the trial court’s judgment. It is ordered that the judgment of the

trial court is reversed and the case is remanded to the trial court for further

proceedings consistent with this opinion.

      It is further ordered that Appellees Sunmount Corporation and The State of

Texas – Department of Transportation shall pay for all of the costs of this appeal,

for which let execution issue.

                                      SECOND DISTRICT COURT OF APPEALS



                                      By_________________________________
                                        Justice Lee Ann Dauphinot
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00126-CV


AMY SIPES AND TANA TREVINO                                           APPELLANTS

                                         V.

SUNMOUNT CORPORATION AND                                              APPELLEES
THE STATE OF TEXAS -
DEPARTMENT OF
TRANSPORTATION


                                      ----------

          FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

      Amy Sipes and Tana Trevino appeal from the trial court’s grant of

summary judgment on their claims against Sunmount Corporation and the Texas

Department of Transportation (TxDOT). In two issues, Sipes and Trevino argue

that neither the law of the case doctrine nor collateral estoppel bars their claims.

      1
       See Tex. R. App. P. 47.4.
In a cross-appeal, Sunmount and TxDOT argue that the trial court erred by not

awarding them court costs.      Because we hold that the summary judgment

grounds asserted by Sunmount and TxDOT do not support the trial court’s

judgment, we reverse.

                                   Background

      Sipes and Trevino sued the City of Grapevine (the City), Jerry Gaston,

Sunmount, and TxDOT for claims based on a car accident in which Sipes’s car

was struck by another vehicle in a construction zone. After Sipes and Trevino

settled with Gaston, the trial court signed an agreed order of dismissal of their

claims against him. The trial court granted summary judgment for Grapevine and

severed the claims against TxDOT and Sunmount. The events giving rise to the

claims in this case were set out by this court and by the Supreme Court of Texas

in the appeal in the severed suit against the City, and we will not recite them here

except when necessary for addressing the issues on appeal.2 The instant appeal

is from the judgment rendered in the severed suit against TxDOT and Sunmount.

      After the trial court severed the claims against the City, Sipes and Trevino

amended their petition. In their Amended Seventh Amended Original Petition,

Sipes and Trevino alleged that Sunmount and TxDOT were negligent by: failing

to follow the traffic control plan; revising the traffic control plan without the

approval of the registered professional engineering company that had prepared

      2
      City of Grapevine v. Sipes, 195 S.W.3d 689 (Tex. 2006); Sipes v. City of
Grapevine (Grapevine), 146 S.W.3d 273 (Tex. App.—Fort Worth 2004).


                                         2
the plan; and failing to request the professional engineering company to review

and revise the traffic control plan “after receiving repeated notice of the dramatic

increase in the number of traffic accidents at the subject intersection since the

initiation of construction.” They also alleged that Sunmount and TxDOT were

grossly negligent. Trevino asserted a claim as a bystander for mental anguish

and also sought compensation for loss of consortium.

      In the trial court, Sunmount filed a motion for traditional summary judgment

asserting (1) that Sipes’s and Trevino’s claim was for premises liability; (2) that

Sipes and Trevino were licensees; (3) that as licensees, Sipes and Trevino were

required to prove that Sunmount had a duty to warn them of the condition; and

(4) that Sunmount did not have a duty if Sipes and Trevino knew about the

condition. Sunmount pointed out language from this court’s opinion in Grapevine

and then relied on that language to show its right to summary judgment. In that

opinion, we stated:

      By [A]ppellants’ own admissions, they knew they were entering a
      construction zone, and Sipes admitted that there were sufficient
      signs to alert her to unexpected dangers at the intersection. Traffic
      barricades, barrels, and signs are not unexpected or unusual and, in
      this case, they did not impair [A]ppellants’ ability to travel on the
      road. Therefore, we conclude that the obstruction about which
      [A]ppellants complain was a premises defect about which they had
      adequate warning. We hold that the trial court did not err by
      granting the City’s summary judgment on the premises liability
      issue.3



      3
       Grapevine, 146 S.W.3d at 283 (emphasis added).


                                         3
      Using that language, Sunmount first asserted a right to judgment based on

the doctrine of collateral estoppel. Sunmount argued that Sipes and Trevino

could not re-litigate the issue of whether they had been adequately warned of the

intersection’s dangers because Sipes and Trevino did not appeal that part of this

court’s judgment, and the Texas Supreme Court did not address it on review.

Thus, Sunmount argued, the part of this court’s opinion regarding premises

defect and adequate warnings became the law of the case.              Sunmount

contended that Sipes and Trevino therefore could not prove that Sunmount failed

to warn them of the condition of the intersection or that they did not know about

the condition of the intersection, and thus Sunmount had conclusively negated an

essential element of their claims.

      As another ground for summary judgment, Sunmount also argued that

even aside from collateral estoppel and law of the case, it had produced as

summary judgment evidence “the exact same evidence” that this court had relied

on in reaching its holding that Sipes and Trevino were adequately warned about

the conditions of the intersection. Because this court had already held that this

evidence was sufficient to show that Sipes and Trevino had been adequately

warned, they could not establish that they had not been adequately warned, and

Sunmount was therefore entitled to summary judgment.

      TxDOT also filed a summary judgment motion, making the same

arguments as Sunmount.         The trial court granted summary judgment for




                                       4
Sunmount and TxDOT and rendered a final judgment that Sipes and Trevino

take nothing on their claims. Sipes and Trevino then brought this appeal.

                                Standard of Review

      We review a summary judgment de novo.4 We consider the evidence

presented in the light most favorable to the nonmovant, crediting evidence

favorable to the nonmovant if reasonable jurors could, and disregarding evidence

contrary to the nonmovant unless reasonable jurors could not.5        We indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor.6 A

defendant who conclusively negates at least one essential element of a cause of

action is entitled to summary judgment on that claim.7

                                      Analysis

      In their first issue, Sipes and Trevino argue that the trial court’s summary

judgment should be reversed because the doctrine of the law of the case does

not bar their claims.      In their second issue, they argue that the summary

judgment should be reversed because collateral estoppel does not preclude their

claims.


      4
          Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
      5
      Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009).
      6
          20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
      7
       Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see
Tex. R. Civ. P. 166a(b), (c).


                                          5
      Before we address Sipes and Trevino’s issues, we first consider Sunmount

and TxDOT’s argument that the summary judgment must be affirmed because

Sipes did not challenge one of their summary judgment grounds: that Sunmount

and TxDOT could not be liable because Sipes and Trevino knew about the

condition of the intersection. Sunmount and TxDOT argue that although Sipes

and Trevino did include argument in their brief about the adequacy of warnings,

they did not include argument about whether they knew about the intersection’s

condition.   Sunmount and TxDOT argue that because the brief included no

challenge to this ground, we must therefore affirm the summary judgment on that

ground.8

      We disagree with Sunmount and TxDOT’s characterization of Sipes and

Trevino’s brief. Although their brief was not as well articulated as it could have

been, we conclude from reading their brief in its entirety that they do maintain

that they did not know that their view would be obstructed at the intersection. For

example, Sipes and Trevino state that “[a]lthough the traffic barrels and cement

barriers indicated that [Sipes and Trevino] were driving through a construction

zone, their awareness of that fact did not apprise them of the obstructed view of

eastbound vehicles traveling to the intersection on their left.” Sipes and Trevino

also state that although Sunmount and TxDOT argue that they were warned of


      8
       See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970)
(holding that summary judgment must stand since it may have been based on a
ground not specifically challenged on appeal).


                                        6
the dangers of the obstructed view at the intersection, they only admitted that

they were aware that they were traveling in a construction zone. Elsewhere,

Sipes and Trevino again assert that they were aware only that they were

traveling in a construction zone. On that same page, Sipes and Trevino state

that Sunmount and TxDOT had “actual knowledge of the specific visibility

problem” but that Sipes and Trevino “were unaware of the danger until they

attempted to cross the intersection.”    Because we conclude that Sipes and

Trevino assigned error to Sunmount and TxDOT’s summary judgment ground

alleging that they knew of the dangerous condition, we decline to affirm the trial

court’s judgment on the basis that they did not challenge all asserted summary

judgment grounds.

      We now turn to Sipes and Trevino’s issues. Under their first issue, Sipes

and Trevino argue that the doctrine of the law of the case does not apply. They

make several arguments under this issue. First, they contend that we held in

Grapevine that the City did not own or control the intersection. They argue that if

the City did not own or control the intersection, it had no duty to Sipes and

Trevino with respect to the condition of the intersection.9 They maintain that

although this court stated that the condition of the intersection was a premises



      9
       See City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986) (holding
that Denton was not liable for the dangerous condition of a storage building
because it neither (1) created the dangerous condition nor (2) owned, occupied,
or controlled the premises).


                                        7
defect “about which [Sipes and Trevino] had adequate warning,”10 that statement

was irrelevant to this court’s holding. They point out that in contrast to the City,

Sunmount and TxDOT owned or controlled the intersection.11

      In a reply brief, Sipes and Trevino elaborate on this argument.         They

reassert that the City did not own or control the intersection and assert that once

this court reached that holding, any discussion by this court about the adequacy

of warnings was unnecessary to the disposition of the appeal because if the City

did not own or control the intersection, it had no duty to Sipes and Trevino

regarding the intersection’s condition.

      We must first point out that in considering the primary question of law we

determined in the section of Grapevine relied on by Sunmount and TxDOT—

whether the obstruction to Sipes’s and Trevino’s view was a special defect or a

premises defect—we applied a test that has been done away with by the

Supreme Court. In Grapevine, we considered whether the obstruction was a

special defect by considering whether it was unexpected or unusual.12          The

Supreme Court has since made clear that the only test for a special defect is

whether the condition is of the same class as excavations or obstructions on the


      10
        Grapevine, 146 S.W.3d at 283.
      11
        See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002) (noting
that a premises-liability defendant may be held liable for a dangerous condition
on property it did not own if it assumed control over the property).
      12
        Grapevine, 146 S.W.3d at 282–83.


                                          8
road, not whether the condition was something unexpected or out of the

ordinary.13   The fact that a condition presents some unusual quality may be

relevant to whether the condition is like an excavation or obstruction, but its

ordinariness alone does prevent it from being a special defect.14 Thus, with

respect to this part of our holding, our opinion cannot be the law of the case. 15

But even assuming that we would still hold that the obstruction alleged in this

case was, as a matter of law, not a special defect, we still decline to apply the

law of the case doctrine here.

      We agree with Sipes and Trevino that our holding regarding the use or

condition of tangible property rendered any discussion of premises defect

unnecessary to affirm the trial court’s summary judgment. The City argued that it

could not be liable because it did not own, use, or control any property at the

intersection.16   Regarding Sipes and Trevino’s allegation that immunity was

waived based on the City’s use of tangible property, we stated that the City had

“supported its motion with evidence that the State owned the right-of-way at the


      13
        Denton Cnty. v. Beynon, 283 S.W.3d 329, 331–32 (Tex. 2009).
      14
       City of Denton v. Paper, 376 S.W.3d 762, 765 (Tex. 2012) (listing
characteristics to consider in determining whether a particular condition is like an
excavation or obstruction).
      15
        See In re Estate of Chavana, 993 S.W.2d 311, 315 (Tex. App.—San
Antonio 1999, no pet.) (holding that even if the law of the case applied to the
court’s prior statement, supervening and controlling case law overruled it).
      16
        Grapevine, 146 S.W.3d at 281; see Page, 701 S.W.2d at 835.


                                         9
intersection, maintained control over the construction project, and placed the

traffic control devices at the intersection.”17 We held that the City’s act in moving

some of the traffic control devices was too attenuated from the events that gave

rise to the accident to be a proximate cause of Sipes’s and Trevino’s injuries.18

      Having agreed that the City had established that it did not own or control

the intersection, we could not have then affirmed a judgment finding the City

liable for a premises defect at the intersection because, if the City did not own or

control the intersection, it had no duty to Sipes and Trevino with respect to the

intersection.19 We therefore did not need to decide either whether the condition

was a special defect or a premises defect or whether Sipes and Trevino had

been warned about the intersection’s condition in order to affirm the judgment in

favor of the City. Because the statement on which Sunmount and TxDOT rely

was not necessary to our judgment in Grapevine, we sustain Sipes’s first issue.20

      17
        Id. at 282.
      18
        Id.
      19
        See Page, 701 S.W.2d at 835.
      20
        See Smith v. Alston, 40 Tex. 139, 141 (1874) (noting that “[d]icta, or even
matters of argument not necessary to the decision of a question before the court,
as is well known, is never regarded as deciding the law of the case”); Four Bros.
Boat Works, Inc. v. Tesoro Petroleum Cos., Inc., 217 S.W.3d 653, 662 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied) (declining to apply the law of the
case doctrine to a statement that was not necessary to the determination of the
case); In re Certain Underwriters at Lloyd’s, 18 S.W.3d 867, 870 (Tex. App.—
Beaumont 2000, no pet.) (same); Chavana, 993 S.W.2d at 315; Huckabay v.
Irving Hosp. Auth., 879 S.W.2d 64, 66 n.1 (Tex. App.—Dallas 1993, writ dism’d
by agr.) (same).


                                         10
      Sipes and Trevino’s second issue challenges the trial court’s application of

collateral estoppel. We agree with Sipes and Trevino for the same reason we

stated under their first issue. Even if the other elements of collateral estoppel—

that the facts sought to be litigated in the second action were fully and fairly

litigated in the first action and that the parties were cast as adversaries in the first

action21—were present here, which we do not hold, the statement relied on by

Sunmount and TxDOT to establish summary judgment was not essential to our

holding that summary judgment for the City was correct.            Collateral estoppel

cannot be based on this court’s statement about the adequacy of any warning.

      Finally, we consider Sipes and Trevino’s argument that summary judgment

should not have been granted on the ground that Sunmount and TxDOT

produced evidence showing as a matter of law that they had been warned of and

knew of the dangerous condition at the intersection. Sunmount and TxDOT had

asserted as a ground for summary judgment that they had produced “the exact

same evidence” that had led this court to hold that the obstruction was a

premises defect “about which [Sipes and Trevino] had adequate warning.” As

stated, that statement by this court was not necessary to our holding in

Grapevine and therefore was not binding on the trial court. Thus, to affirm the




      21
       Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801–02, 803 (Tex.
1994) (setting out the elements of collateral estoppel and discussing the
purposes of the doctrine).


                                          11
summary judgment on this ground requires us to consider the sufficiency of the

evidence on its own merits and not merely in light of our previous statement.

      In this appeal, Sipes and Trevino point to evidence that they contend

raised a fact issue about whether the evidence had established their knowledge

of the dangerous condition—the obstructed view—and the adequacy of

Sunmount and TxDOT’s warning as a matter of law. The dangerous condition

alleged in this case was the danger from presently approaching eastbound traffic

of which northbound traffic did not and could not know because of an obstruction

to their view of eastbound traffic.22   That is, the problem was not just that

northbound drivers could not see to their left, it was that they could not see

oncoming traffic to their left. The testimony from Sipes and Trevino was that they

did perceive that they were entering a construction zone, a fact we noted in

Grapevine.23 Having reviewed the record, we hold that nothing in the record

established as a matter of law that Sipes and Trevino knew that they were

approaching an intersection at which their view would be obstructed. Nothing in

the record established as a matter of law that they knew or should have known

that a vehicle was travelling toward them at the moment they entered the


      22
        See Texas Dep’t of Transp. v. Olson, 980 S.W.2d 890, 895 (Tex. App.—
Fort Worth 1998, no pet.) (holding that TxDOT’s negligence in permitting
shrubbery, bushes, and high grass to obscure drivers’ views at an intersection
was a ground on which the jury could find proximate cause of an accident at the
intersection).
      23
       Grapevine, 146 S.W.3d at 283.


                                        12
intersection. And nothing in the record established as a matter of law that they

were warned of this danger, much less that the warning was adequate to have

allowed Sipes and Trevino to avoid harm.24 Accordingly, we agree with Sipes

and Trevino that summary judgment could not have been granted on this ground.

We sustain Sipes and Trevino’s second issue.

                              Cross-Appeal

      In their sole issue in their appeal, Sunmount and TxDOT argue that the

trial court erred by not awarding them court costs as the prevailing parties in the

litigation. Because we reverse the trial court’s summary judgment, we overrule

this issue as moot.

                                   Conclusion

      Having sustained Sipes and Trevino’s issues, and having overruled

Sunmount and TxDOT’s sole issue on cross-appeal, we reverse the trial court’s

summary judgment and remand this case for further proceedings.




      24
         See W. Auto Supply Co. v. Campbell, 373 S.W.2d 735, 736 (Tex. 1963)
(setting out the duty of a possessor of land with respect to dangerous conditions
as including a duty to either make the condition reasonably safe or give a
warning adequate to enable visitors to avoid the harm); see also Del Lago
Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010) (“In some
circumstances, no warning can suffice as reasonably prudent action to reduce or
remove an unreasonable risk.”).


                                        13
                                      LEE ANN DAUPHINOT
                                      JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: March 14, 2013




                              14
