Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 2 of Nueces County,
Chief Justice Contreras and Justices Benavides and Hinojosa
LETICIA HINOJOSA Justice
Audrey Nickerson sued appellees Julio Pineda and Unique
Employment I, Ltd., d/b/a Unique Employment Services (Unique)
for negligence. Appellees filed a plea to the jurisdiction,
which the trial court granted. By four issues, which we treat
as three, Nickerson argues that: the trial court erred in
granting appellees' plea to the jurisdiction with respect
to (1) Pineda and (2) Unique; and (3) the trial court abused
its discretion by denying Nickerson's motions to compel
discovery. We affirm in part and reverse and remand in part.
a City of Corpus Christi (City) employee, alleges that Pineda
struck Nickerson "in the back with a John Deere tractor
front loader bucket" while both were working on a City
project. Pineda was a temporary worker supplied by Unique to
the City through a temporary staffing service agreement.
Nickerson sued both Pineda and Unique for negligence.
filed a joint plea to the jurisdiction  arguing that
Pineda was an employee of the City at the time of the
accident because the City controlled the details of
Pineda's work. As such, appellees maintained that Pineda
was personally immune from suit by operation of the
election-of-remedies provision in the Texas Tort Claims Act
(TTCA). See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.106 (West, Westlaw through 2017 1st C.S.).
Appellees further argued that Unique could not be liable
under the theory of respondeat superior without a
valid cause of action against Pineda. Appellees attached the
following evidence to their plea to the jurisdiction: (1) the
declaration of Unique's Executive Vice President, Rebecca
Bradford; (2) the "Temporary Staffing Service
Agreement" between Unique and the City; and (3) excerpts
from Pineda's deposition testimony.
filed a response, arguing generally that Pineda was not an
employee of the City because the City did not control the
details of Pineda's work. Nickerson supported her
response with the following evidence: (1) appellees'
responses to written discovery; (2) the deposition testimony
of Nickerson, Reynaldo Garcia, Joe Ramirez, and Severiano
Salas; and (3) the affidavit testimony of Nickerson, Garcia,
Ramirez, and Salas.
filed an objection to the affidavits of Nickerson, Garcia,
and Ramirez, arguing that they were conclusory and that
Nickerson and Ramirez's affidavits were "sham"
later filed motions to compel: the deposition of a City
employee and Unique's corporate representative; and
responses to requests for production and interrogatories.
evidentiary record establishes the following uncontroverted
facts concerning Pineda's employment relationship to the
City and Unique. The City awarded Unique a contract to
provide temporary staffing services. Unique's duties
under the contract included administering payroll and
benefits for temporary workers. Pineda applied to Unique for
an assignment with the City, and he was later interviewed by
a City employee. Pineda accepted an offer from the City to
work in the City's Water Department. Once Pineda was
hired, the City determined his schedule, pay rate, and job
responsibilities. Pineda wore a City uniform, used City
equipment, and reported directly to a City supervisor. The
City paid Pineda's wages to Unique based upon the hours
of work performed, and Unique issued Pineda's paycheck.
City required Pineda to follow its policies and procedures,
and it was responsible for training, performance evaluations,
and discipline. During his tenure, the City promoted Pineda
from laborer to driver to heavy equipment operator. On the
day of the accident involving Nickerson, Pineda was operating
a City-owned backhoe for a City work project.
Trial Court's Ruling
holding a hearing, the trial court granted appellees'
objections to the affidavits of Nickerson, Garcia, and
Ramirez and struck the affidavits from the record. By
separate order, the trial court granted appellees' plea
to the jurisdiction. The trial court did not rule on
Nickerson's motions to compel various discovery. This
II.Plea to the ...