R&T Ellis Excavating, Inc. and Principal Services, Ltd. v. Floyd Page and Gale Page ( 2020 )

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