                                         In The

                                  Court of Appeals
                       Ninth District of Texas at Beaumont
                                ____________________

                                 NO. 09-13-00390-CV
                                ____________________

                           APAC-TEXAS, INC., Appellant

                                           V.

                     TERRY BEASLEY, Appellee
_________________________________         ______________________

                On Appeal from the 60th District Court
                       Jefferson County, Texas
                      Trial Cause No. B-191,186
____________________________________________                           ____________

                             MEMORANDUM OPINION

      Terry Beasley sued APAC-Texas, Inc. (“APAC”) for negligence arising out

of a motor vehicle accident.1 APAC filed a traditional motion for summary

judgment, which the trial court denied. In this interlocutory appeal, APAC

challenges the denial of its motion for summary judgment. See Tex. Civ. Prac. &

Rem. Code Ann. § 51.014(d) (West Supp. 2013). We affirm the trial court’s order

denying the motion for summary judgment.


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          Beasley sued other individuals who are not parties to this appeal.
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                               Factual Background

      APAC entered into a contract with TxDOT to conduct roadwork on U.S.

Highway 69. The contract requires a licensed professional engineer to develop and

design a traffic control plan, but allows the contractor to submit proposed changes

to the engineer for approval. The engineer decides which appropriate traffic control

devices to use. The contractor may not change the location of devices without the

engineer’s approval. Kevin Grissom, a TxDOT field engineer, testified that APAC

should have provided a message board stating that the right lane was closed ahead;

instead, APAC installed a sign advising motorists to merge right. According to

Beasley, construction barrels blocked the right lane and traffic was merging left.

As Beasley attempted to merge back into the left lane, he became involved in a

multi-car collision.

      APAC Manager Kenneth Pierce testified that APAC relies on the traffic

control plan when designing the work zone. Pierce admitted that APAC has a duty

to follow the plan absent changes by an engineer, but that APAC deviated from the

traffic control plan. He explained that APAC complied with the plan as a guideline.

Grissom testified that a traffic control plan is State-mandated and that APAC

would be in breach of its agreement with the State if it failed to follow the plan.

According to Grissom, APAC had to use its discretion because there was no

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applicable traffic control plan. He explained that when a traffic control plan does

not provide guidance as to which signs should be used and where they should be

placed, contractors should use the plan as a guide to design the lane closure.

Grissom drove through APAC’s construction zone and testified that the lane

closures complied with the traffic control plan and he did not ask APAC to change

the closure or object to the manner in which APAC set up the construction zone.

Field engineer Benjamin Springs testified that a person need not be an engineer to

follow a traffic control plan, but that any deviations from the plan should be

referred to an engineer. Springs testified that APAC’s signage was appropriate for

the situation.

      Pierce explained that APAC tries to design signage for the safety of its

employees and the public. He testified that APAC employees relied on their

judgment when setting up the construction zone and that APAC decided how to

best construct the zone. According to Pierce, Springs and Grissom approved

APAC’s changes to the traffic control plan. He admitted that there is a difference

between a field engineer and a professional licensed engineer. In his deposition,

Grissom gave conflicting testimony as to whether APAC was in compliance with

the traffic control plan. However, Grissom believed APAC was in compliance with

all contract specifications.

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                                Summary Judgment

      In its sole appellate issue, APAC contends that the trial court erroneously

denied its motion for summary judgment because, according to APAC, it is

statutorily immune from liability. We review a trial court’s ruling on a traditional

summary judgment motion de novo. Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). We “consider whether reasonable and fair-

minded jurors could differ in their conclusions in light of all of the evidence

presented.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.

2007) (per curiam). We “consider all the evidence in the light most favorable to the

nonmovant, indulging every reasonable inference in favor of the nonmovant and

resolving any doubts against the motion.” Id. at 756.

      A contractor who constructs or repairs a highway, road, or street for TxDOT

is not liable to a claimant for injuries arising from the performance of the

construction or repair if, at the time of the injury, the contractor is (1) in

compliance with contract documents (2) that are material to the condition or defect

(3) that was the proximate cause of the injury. Tex. Civ. Prac. & Rem. Code Ann.

§ 97.002 (West 2011); Clark Constr. of Tex., Ltd. v. Bendy, No. 09-12-00560-CV,

2013 Tex. App. LEXIS 5094, at *11 (Tex. App.—Beaumont Apr. 25, 2013, no

pet.) (mem. op.). Contractors making road repairs for the State of Texas “must

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conform to the work specifications set by the governmental unit overseeing the

project.” House Comm. on Civ. Practices, Bill Analysis, Tex. H.B. 1699, 78th

Leg., R.S. (2003). “Sometimes those specifications may be inadequate or flawed to

such a degree as to threat[en] or cause harm or damage to some person or some

property.” Id. Accordingly, “a contractor performing roadwork for the State of

Texas may not be held liable for damage or injury resulting from work performed

in substantial compliance with TxDOT’s contract documents.” Bendy, 2013 Tex.

App. LEXIS 5094, at *11; see Tex. Civ. Prac. & Rem. Code Ann. § 97.002. The

record demonstrates that APAC was performing roadwork for TxDOT when the

accident occurred. If APAC was in compliance with TxDOT’s contract documents

regarding traffic control and its conduct was the proximate cause of Beasley’s

injuries, APAC will be entitled to immunity. See Bendy, 2013 Tex. App. LEXIS

5094, at **11-12; see also Tex. Civ. Prac. & Rem. Code Ann. § 97.002.

      The summary judgment response presented testimony that APAC was

required to follow the traffic control plan, APAC’s signage advising motorists to

merge right did not comply with the plan, only a licensed engineer could approve

deviations from the plan, APAC did not consult a licensed professional engineer,

and APAC would be in breach if it failed to follow the plan. APAC’s summary

judgment evidence included testimony that contractors must sometimes use the

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traffic control plan as a guide when designing a work zone, the field engineers

voiced no complaints about APAC’s work zone, and despite its deviation from the

traffic control plan, APAC’s signage was appropriate and APAC was in

compliance with the contract. Accordingly, viewing the evidence in the light most

favorable to Beasley, reasonable and fair-minded jurors could differ in their

conclusions regarding whether APAC’s signage complied with contractual

requirements. See Tex. Civ. Prac. & Rem. Code Ann. § 97.002; see also Bennett

Truck Transp., LLC v. Williams Bros. Constr., 256 S.W.3d 730, 732-33 (Tex.

App.—Houston [14th Dist.] 2008, no pet.) (A fact issue existed as to whether the

signage required by TxDOT was present.). Because a fact issue exists as to

APAC’s compliance, APAC failed to conclusively establish entitlement to

immunity and the trial court properly denied APAC’s traditional motion for

summary judgment. We overrule APAC’s sole issue and affirm the trial court’s

order denying APAC’s motion for summary judgment.

      AFFIRMED.

                                           ________________________________
                                                   STEVE McKEITHEN
                                                       Chief Justice

Submitted on December 30, 2013
Opinion Delivered March 6, 2014

Before McKeithen, C.J., Kreger and Johnson, JJ.
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