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Nickerson v. Pineda

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 9, 2019

AUDREY NICKERSON, Appellant,
v.
JULIO PINEDA AND UNIQUE EMPLOYMENT, LLC, UNIQUE EMPLOYMENT SERVICES, UNIQUE EMPLOYMENT I, LTD, D/B/A UNIQUE EMPLOYMENT SERVICES, Appellees.

          On appeal from the County Court at Law No. 2 of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Hinojosa

          MEMORANDUM OPINION

          LETICIA HINOJOSA Justice

         Appellant 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.

         I. Background

         A. Pleadings

         Nickerson, 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.

         Appellees filed a joint plea to the jurisdiction [1] 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.

         Nickerson 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.

         Appellees 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" affidavits.

         Nickerson later filed motions to compel: the deposition of a City employee and Unique's corporate representative; and responses to requests for production and interrogatories.

         B. Evidentiary Record

         The 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.

         The 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.

         C. Trial Court's Ruling

         After 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 appeal followed.[2]

         II.Plea to the ...


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