CROSSOVER: Interlocutory Trap: Tenth Court Reaffirms That Expert Witness Objections Cannot Be Smuggled Into Limited Statutory Appeals
Memorandum Opinion by Visiting Justice Gabriel, 10-24-00224-CV, January 29, 2026.
On appeal from Unknown
Synopsis
The Tenth Court of Appeals affirmed the denial of a contractor’s summary judgment motion, finding that conflicting evidence regarding compliance with specific government safety directives created a genuine issue of material fact under Texas Civil Practice and Remedies Code Section 97.002. Critically, the court dismissed the appellant’s challenges to expert witness testimony, reaffriming that the narrow statutory grant for an interlocutory appeal does not extend to ancillary evidentiary rulings.
Relevance to Family Law
While this is a construction and sovereign immunity case, its holding on “interlocutory smuggling” is a vital cautionary tale for family law practitioners. In the heat of high-stakes litigation involving temporary orders, receiverships, or special appearances, counsel often attempt to challenge the underlying evidence—specifically expert qualifications or the admission of reports—within the interlocutory appeal of the substantive order. This case confirms that if the statutory basis for the appeal (such as CPRC § 51.014) does not explicitly include evidentiary rulings, the appellate court lacks jurisdiction to hear them, potentially waiving those issues for the duration of the temporary phase.
Case Summary
Fact Summary
Big Creek Construction entered into a contract with TxDOT to recondition and repave portions of FM 2114. The contract placed the responsibility for traffic control and safety signage on the contractor, acting under the direction of TxDOT engineers. Following a single-vehicle accident at a bridge site, the plaintiffs alleged that Big Creek failed to properly warn of a sagging guardrail. Big Creek moved for summary judgment, asserting immunity under Section 97.002, which protects government contractors who comply with the government’s plans and specifications. The record contained testimony from a TxDOT engineer who noted that “directions were given” to install specific warning signs, but the Daily Work Reports (DWR) and other evidence were ambiguous as to whether those specific signs were actually erected prior to the accident. Furthermore, Big Creek attempted to strike the plaintiffs’ expert, D. Rowland Lamb, arguing his affidavit was conclusory and lacked foundation.
Issues Decided
- Does a contractor qualify for immunity under CPRC Section 97.002 when the record contains conflicting evidence regarding its actual compliance with the government’s specific safety directives?
- Does an appellate court have interlocutory jurisdiction to review a trial court’s ruling on expert witness objections when the appeal is brought under Section 51.014(a)(17)?
Rules Applied
The court applied Texas Civil Practice and Remedies Code § 97.002, which provides a “safe harbor” for contractors who prove they were in compliance with government-mandated plans at the time of an incident. The court also relied on CPRC § 51.014(a)(17), which authorizes an interlocutory appeal from the denial of a summary judgment based on Section 97.002. Central to the jurisdictional analysis was the principle that interlocutory appeal statutes are strictly construed, as they are narrow exceptions to the “final judgment rule.”
Application
The court’s analysis turned on the granular details of “compliance.” Big Creek argued it followed all TxDOT directives. However, the court highlighted the TxDOT engineer’s testimony and the DWRs, which showed that while an order was given to place signs near the sagging guardrail, there was no definitive proof of the contractor’s execution of that order. Because the contractor bears the burden of proving compliance to trigger the statutory immunity, the absence of conclusive evidence meant a fact issue remained for the jury.
Regarding the expert witness objections, Big Creek argued that the trial court’s refusal to strike the expert’s affidavit was an error that infected the summary judgment ruling. The Tenth Court rejected this “smuggling” attempt. It held that the legislature’s grant of jurisdiction under Section 51.014(a)(17) is limited to the merits of the immunity claim. Because the statute does not explicitly authorize the review of evidentiary or expert-related rulings, those issues remain outside the appellate court’s reach until a final judgment is entered.
Holding
The Court of Appeals affirmed the trial court’s denial of the motion for summary judgment. The court held that the existence of a material fact issue regarding the contractor’s actual compliance with safety instructions precluded the application of statutory immunity at the summary judgment stage.
The court further held that it lacked jurisdiction to consider the appellant’s second issue regarding the trial court’s overruling of expert witness objections. The court dismissed this portion of the appeal, emphasizing that interlocutory jurisdiction is limited strictly to the four corners of the authorizing statute.
Practical Application
For the family law litigator, this case serves as a strategic reminder when appealing temporary orders or orders appointing a receiver. If you are appealing an order under Section 51.014, you cannot assume the appellate court will review the trial court’s admission of an expert’s valuation or a social study’s methodology. If the evidentiary ruling is not the basis of the statutory appeal, it is likely unreviewable until the final decree. Practitioners must focus interlocutory briefing on the specific statutory criteria rather than attempting to rectify trial-level evidentiary errors.
Checklists
Evaluating Interlocutory Appealability
- Identify the specific subsection of CPRC § 51.014 (e.g., (a)(1) for receivers, (a)(4) for temporary injunctions).
- Determine if the complaint is a “merits” challenge to the order or an “evidentiary” challenge to the supporting data.
- If the complaint is evidentiary (e.g., expert qualifications), verify if the specific statutory grant includes “incidental” or “evidentiary” rulings.
- Prepare to defend a motion to dismiss for lack of jurisdiction if the brief wanders into non-statutory grounds.
Establishing Statutory Compliance (Defense Side)
- Ensure the client (contractor or fiduciary) has a clear “paper trail” of following specific court or government directives.
- Review Daily Work Reports, emails, or logs to ensure they prove execution of an order, not just receipt of the order.
- Identify any “compliance gaps” where a directive was given but no proof of completion exists.
Citation
Big Creek Construction, Ltd. v. Jim Sinkule, et al., __ S.W.3d __ (Tex. App.—Waco 2026, no pet.).
Full Opinion
Family Law Crossover
This ruling can be weaponized in Texas divorce or custody litigation to parry an opponent’s attempt to stall the case through interlocutory appeals. For example, if an opposing party appeals the appointment of a receiver (allowable under § 51.014(a)(1)) and tries to argue that the trial court erred in considering a specific financial expert’s report, you can move to dismiss that specific point of error for lack of jurisdiction based on the Big Creek Construction reasoning. By forcing the appellate court to ignore the expert-related “smuggling,” you maintain the integrity of the evidence at the trial level and narrow the scope of the appeal, often leading to a faster resolution and a higher likelihood of affirmation.
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