Civil Procedure: Pre-Trial & Trial

SMU Annual Texas Survey Volume 2 Article 3 2016 Civil Procedure: Pre-Trial & Trial Amanda Sotak Figari & Davenport, L.L.P. Andrew C. Whitaker Figari & Davenport, L.L.P. Raymond E. Walker Figari & Davenport, L.L.P. Ryan K. McComber Figari & Davenport, L.L.P. Follow this and additional works at: https://scholar.smu.edu/smuatxs Recommended Citation Amanda Sotak et al., Civil Procedure: Pre-Trial & Trial, 2 SMU ANN. TEX. SURV. 71 (2016) https://scholar.smu.edu/smuatxs/vol2/iss1/3 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Annual Texas Survey by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. CIVIL PROCEDURE: PRE-TRIAL & TRIAL Amanda Sotak* Andrew C. Whitaker** Raymond E. Walker*** Ryan K. McComber**** I. INTRODUCTION The major developments in the field of civil procedure during the Sur- vey period occurred through judicial decisions and a handful of legislative enactments. II. SUBJECT MATTER JURISDICTION During the Survey period, several cases addressed sovereign immunity. In City of El Paso v. High Ridge Construction, a contractor brought a breach of contract claim against the city relating to a conservation services contract.1 The trial court denied the city’s plea to the jurisdiction. On appeal, the contractor argued that the city was not entitled to sovereign immunity based on the “proprietary-dichotomy” applied to cities, for example, under the Tort Claims Act.2 Recognizing that the Texas Su- preme Court expressed doubt the dichotomy applied to contract claims in Tooke v. City of Mexia, the El Paso Court of Appeals examined the inter- play between the Tort Claims Act, which addresses waiver in certain instances, and the source of the city’s immunity.3 Noting disagreement in the appellate decisions, the El Paso Court of Appeals followed its sister courts in San Antonio and Amarillo in holding that “we must begin our analysis with the presumption that the City is immune from suit for breach of contract.”4 Starting from that proposition, the court of appeals * B.A., Texas A&M University; J.D., Southern Methodist University. Partner, Figari + Davenport, LLP, Dallas, Texas. ** B.A., Southern Methodist University; J.D., The University of Texas School of Law. Partner, Figari + Davenport, LLP, Dallas, Texas. *** B.A., Texas A&M University; J.D., Southern Methodist University. Partner, Figari + Davenport, LLP, Dallas, Texas. **** B.A., University of Oklahoma; J.D., Southern Methodist University. Partner, Figari + Davenport, LLP, Dallas, Texas. 1. City of El Paso v. High Ridge Constr., 442 S.W.3d 660, 664 (Tex. App.—El Paso 2014, pet. denied). 2. Id. at 666–67. 3. Id. (discussing Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006), in which the Texas Supreme Court observed, “[W]e have never held that this same distinction deter- mines whether immunity from suit is waived for breach of contract claims.”). 4. Id. at 667 (following City of San Antonio ex rel. City Pub. Serv. Bd. v. Whee- labrator Air Pollution Control, Inc., 381 S.W.3d 597, 603–04 (Tex. App.—San Antonio 2012, pet. denied), abrogated by Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 71 72 SMU ANNUAL TEXAS SURVEY [Vol. 2 analyzed whether the contractor’s agreement, under which it provided services to city residents rather than the city itself, was sufficient to in- voke the limited waiver of immunity under Chapter 271 of the Local Government Code, and ultimately determined it was not.5 The court of appeals therefore remanded to give the contractor the opportunity to cure and plead facts supporting a waiver of the city’s immunity as to the contract claim.6 Humana Insurance Company v. Mueller and several other cases in the Survey period addressed the extent to which governmental immunity ap- plies to agents, contractors, or other third parties. In Mueller, plaintiff brought claims against a third-party administrator of a governmental self- funded health plan.7 The third-party administrator asserted governmental immunity as an agent of a governmental unit by plea to the jurisdiction, which the trial court denied. On interlocutory appeal, plaintiff argued there was no appellate jurisdiction under § 51.014 of the Civil Practice and Remedies Code.8 The San Antonio Court of Appeals disagreed, noting that subsection (a)(8) applied to governmental units, and because the third-party administrator was seeking protection under a governmental unit’s immunity, there was jurisdiction over the appeal. Turning to the basis for immunity, the court of appeals examined Chapter 2259 of the Government Code governing a governmental unit’s establishment of health plans, and found providing a health plan is not a proprietary func- tion and does not waive immunity. The court of appeals therefore held that the immunity of the governmental unit extended to the third-party administrator of the plan.9 Whether sovereign immunity extends to a county toll road authority’s contractor was at issue in Brown & Gay Engineering, Inc. v. Olivares.10 The defendant engineering firm was hired to design and construct a toll road. In 2007, a drunk driver sped over eight miles down the toll road going the wrong way, resulting in a crash with an oncoming vehicle killing both drivers. The parents of one of the drivers sued the contractor for failure to design and install appropriate signs and traffic devices. The contractor filed a plea to the jurisdiction, asserting that it was immune from suit and liability as an employee of the toll road authority.11 The trial court granted the plea, the court of appeals disagreed, and the issue was appealed to the Texas Supreme Court. After tracing the origins of immu- 427 (Tex. 2016); Republic Power Partners, L.P. v. City of Lubbock, 424 S.W.3d 184 (Tex. App.—Amarillo 2014, no pet.), abrogated by Wasson Interests, Ltd., 489 S.W.3d 427). 5. Id. at 668–70. 6. Id. at 676. 7. Humana Ins. Co. v. Mueller, No. 04–14–00752–CV, 2015 WL 1938657, at *2 (Tex. App.—San Antonio Apr. 29, 2015, pet. denied) (mem. op.). 8. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West 2015) (providing for interlocutory appeal of specified orders). 9. Mueller, 2015 WL 1938657, at *5 (discussing Foster v. Teacher Retirement Sys., 273 S.W.3d 883, 889 (Tex. App.—Austin 2008, no pet.), which also held that immunity extends to a governmental plan’s third-party administrator). 10. 461 S.W.3d 117, 119 (Tex. 2015). 11. Id. at 119–20. 2016] Civil Procedure: Pre-Trial & Trial 73 nity and reviewing federal and lower state court opinions, the supreme court observed that, in these cases, “the complained-of conduct for which the contractor was immune was effectively attributed to government. That is, the alleged cause of the injury was not the independent action of the contractor, but the action taken by the government through the contractor.”12 Focusing on the government’s level of control over a private contractor’s work, the supreme court explained that “no control is deter- minative,” and held that immunity does not extend to private contractors “exercising independent discretion.”13 Justice Hecht, joined by Justices Willett and Guzman, wrote a concur- ring opinion, in which he proffered a supposedly simple syllogism: “Im- munity protects the government. An independent contractor is not the government. Therefore, immunity does not protect an independent contractor.”14 Even under this approach, however, immunity could extend to private contractors under certain circumstances: “An independent contractor may act as the government, in effect becoming the government for limited purposes, and when it does, it should be entitled to the government’s immunity.”15 Further, “insofar as [the contractor] is simply imple- menting the government’s decisions it is entitled to the government’s immunity. [T]he ultimate issue is whether the independent contractor is actually authorized by the government to act in its place.”16 Given that the majority limited its holding to instances where there was no control over the contractor, coupled with the potential applications in the concur- rence, Brown & Gay Engineering leaves open the question of whether governmental immunity could extend to a private contractor under an appropriate set of facts. In City of Ingleside v. City of Corpus Christi, Ingleside sued Corpus Christi over an ordinance that set the boundary between the Ingleside and Corpus Christi.17 Ingleside sought a declaration that the term “shore- line” in the ordinance delineating the common boundary included fix- tures on the shore. Corpus Christi filed a plea to the jurisdiction, which the trial court denied. The court of appeals reversed the trial court’s de- nial of the plea, holding that “selection of a political subdivision’s boundary is a ‘purely political question . not subject to judicial review.’”18 12. Id. at 125. 13. Id. at 124, 126. The supreme court distinguished Foster v. Teacher Retirement Sys- tem, in which a private company serving as the third-party administrator for the Teacher Retirement System’s self-funded health plan was granted immunity. Id. at 127 (distinguish- ing Foster, 273 S.W.3d 883). The supreme court noted that even though the third-party administrator had discretion to interpret the plan document, its duties were still described as essentially ministerial in helping the governmental unit administer the plan. Id. Factors that supported extension of immunity in Foster were the terms of the contract between the state agency and the contractor and the “direct implication of state funds in that case” by virtue of the governmental unit self-funding claims for health benefits.

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