                                       In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-20-00080-CV
                               __________________

                   R&T ELLIS EXCAVATING, INC. AND
                  PRINCIPAL SERVICES, LTD., Appellants

                                         V.

                 FLOYD PAGE AND GALE PAGE, Appellees

__________________________________________________________________

               On Appeal from the 253rd District Court
                        Liberty County, Texas
                     Trial Cause No. CV-1813535
__________________________________________________________________

                          MEMORANDUM OPINION

      R&T Ellis Excavating, Inc. and Principal Services, Ltd. (collectively, the

companies) seek this Court’s permission to appeal interlocutory orders denying their

respective pleas to the jurisdiction seeking dismissal of a lawsuit filed by Floyd and




                                          1
Gale Page. 1 After considering the companies’ joint request seeking permission to

appeal, we deny their request.

      The record the companies filed to support their request shows the Pages sued

them seeking damages and injunctive relief. In their suit, the Pages alleged the

companies trespassed on their property and were negligent based on the manner the

companies disposed of water while working on a project excavating a canal on land

adjacent to their property. According to the petition the Pages filed, the companies

pumped, dumped, transferred, and disposed of water and other substances on

property the Pages own in Liberty County, Texas.

      In response to the suit, the companies filed pleas to the jurisdiction.2 In them,

the companies argued that, as private contractors working under a contract issued by

a governmental entity — the Coastal Water Authority (CWA) — they enjoyed the

same rights to sovereign immunity as that enjoyed by the CWA. The trial court

denied the pleas. Later, the companies filed a joint request asking the trial court to

grant them permission to appeal its ruling denying their respective pleas. The order

granting Principal Service’s request to appeal states the controlling issue of law is


      1
        See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (Supp.); see also Tex.
R. App. P. 28.3.
      2
        A plea to the jurisdiction is a dilatory plea, which is commonly used by
governmental entities to challenge a court’s power to hear the merits of lawsuits filed
in courts. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
                                           2
“whether governmental immunity extends to Defendant Principal Services.” The

order granting R&T Ellis Excavating’s request to appeal states the controlling issue

of law is “whether governmental immunity extends to Ellis.”

      To obtain permission to appeal from an order not otherwise appealable, the

party seeking permission to appeal must establish (1) the order the subject of the

requested appeal involves a “controlling question of law as to which there is a

substantial ground for difference of opinion[]” and (2) an immediate appeal from the

order “may materially advance the ultimate termination of the litigation.” 3 In the

joint petition the companies filed in this Court, they argue the question of law they

are seeking to have reviewed is whether the doctrine of governmental immunity

extends “to private contractors, and — more specifically — the degree of control the

government must exercise for its immunity to extend to a private contractor[.]”

According to the companies, resolving questions about the degree of control required

could lead to another ruling that would either terminate the Pages’ suit or terminate

some of their claims.

      First, we address whether the companies established the trial court’s order

involves a controlling question of law on which there are grounds for a substantial

difference of opinion. In addressing that question, we note no party argues that the


      3
          Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d).
                                        3
CWA is not governmental entity, as the Legislature created it to provide untreated

surface water to the cities of Houston, Baytown, and Deer Park.4 The exhibits

attached to the companies’ joint request shows the CWA hired Principal Services as

a general contractor to build a canal system designed to carry water from the Trinity

River to Lake Houston. 5 To carry out its obligations to the CWA, Principal Services

subcontracted with R&T Ellis Excavating, an oilfield construction company whose

services include excavation work. As relevant to the suit, the record shows that R&T

Ellis Excavating is the company that built the canal on the property next to the Pages’

property.

       In July 2018, the Pages sued the companies, alleging they intentionally or

negligently trespassed on the Pages’ property while constructing the canal. Besides

monetary damages, the Pages sought injunctive and equitable relief. In response to

the suit, the companies filed pleas to the jurisdiction, in which they argued they were

immune from the Pages’ claims. The trial court denied the pleas but did so without

providing the parties with written findings of fact or conclusions of law that explain

its rulings.


       4
        Coastal Water Auth., https://www.coastalwaterauthority.org. (last visited
March 20, 2020).
      5
        The contract between the CWA and Principal Services is not among the
records the parties filed in the trial court to support their pleas or their respective
requests to appeal.
                                           4
      Without written findings, and if this were a regular appeal, we would need to

decide whether the trial court’s ruling is supportable under any legal theory

applicable to the case based on the pleadings and evidence the trial court considered

in ruling on the pleas. 6 Here, by denying the pleas, the trial court has not decided

governmental immunity cannot apply; instead, the rulings denying the companies’

pleas imply the trial court determined the companies were not entitled to rulings

granting their respective pleas at this time. In reaching that conclusion, the trial court

could have found that issues of material fact remained and need to be resolved

regarding whether (1) the companies damaged the Pages’ property, (2) the

instructions the CWA gave the companies left them with no discretion about how to

do the work the Pages claimed caused their damages, and (3) whether the companies

performed the work without negligence or by trespassing on the Pages’ land.

      In this Court, the companies’ main argument is that a substantial ground for

difference of opinion exists about the degree of control a governmental entity must

exercise over a private contractor before the contractor enjoys the same immunity



      6
         See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.
2004) (explaining the burden shifting analysis used to resolve a governmental
entity’s challenge to a court’s power to hear a case); Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990) (explaining that reviewing court implies the ruling the evidence
supports in a manner consistent with the ruling the trial court made when possible
absent written findings and conclusions).
                                           5
from suits as that enjoyed by the entity. We note this isn’t the question the trial court

certified. But even had the trial court certified that question, we would still deny the

companies’ request seeking this Court’s permission to appeal on the record before

us here.

      Here, the degree of control the CWA had over the work at issue in the suit has

not been resolved as a legal issue. For instance, the record before us as well as the

one before the trial court does not include a copy of the prime contract between the

CWA and Principal Services. For that reason, we cannot now determine whether the

work the companies performed fell within the duties they had to the CWA or whether

the contract gave them any discretion about the manner they performed their work.

And even if the prime contract or the CWA gave the companies general instructions

about pumping water from the canal being built, a general right of control would not

necessarily have prevented the companies from exercising some discretion in

carrying out their work. Without the evidence defining the rights that existed

between the CWA and the companies, we agree with the implied ruling the trial

court made when it denied the pleas that they both failed to meet their burden to

establish they acted without negligence and had no discretion about how they did

their work that the Pages alleged damaged them.



                                           6
      Next, we turn to whether a substantial question of law exists on the questions

the trial court certified, which were whether governmental immunity extends to the

Principal Services or to R&T Ellis Excavating.7 But no substantial ground for

disagreement exists about whether, generally speaking, the doctrine of governmental

immunity may in some case (depending on the facts involved) extend to private

government contractors. The Texas Supreme Court provided the guiding rules and

principles that apply to that general concept, a concept we call derivative

governmental immunity.8

      In this case, resolving whether immunity applies depends on the outcome of

issues that involve unresolved questions of fact. The record needs to be fully

developed in a trial and the fact issues resolved before we could decide whether

derivative governmental immunity applies to the suit. We decline the companies’

request to issue an advisory opinion because the outcome of the legal issue the trial

court identified depends on the manner the jury resolves the disputed facts.

      We hold the companies’ request to appeal does not involve a controlling

question of law on which there is a substantial difference of opinion. We further hold


      7
        See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d)(1).
      8
        Brown & Gay Eng’g Inc. v. Olivares, 461 S.W.3d 117, 124-27 (Tex. 2015)
(explaining the doctrine of sovereign immunity does not extend to private
government contractors who exercise independent discretion or who are found
negligent in the manner they performed their duties).
                                        7
that issuing an opinion on this record would be premature because it would not lead

to an order that would likely terminate the Pages’ lawsuit or allow the trial court to

finally resolve any of the issues without conducting a trial.

      Because the companies have not shown they met the dual prongs required to

grant permission to appeal from the orders denying their pleas, we deny their request

for permission to appeal.9

      PETITION DENIED.



                                                     PER CURIAM

Submitted on April 1, 2020
Opinion Delivered April 2, 2020

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




      9
        See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d)(2); Tex. R. App. P.
28.3(e)(4).
                                     8
