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Date: 09-25-2022

Case Style:

The City of Austin v. Irene Quinlan

Case Number: 03-21-00067-CV

Judge: Gisela D. Triana

Court:

Court of Appeals Third Appellate District of Texas at Austin

On appeal from the 98th District Court of Travis County

Plaintiff's Attorney: Brent A. DeVere

Defendant's Attorney:





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The following summary is taken from the allegations in Quinlan’s fourth
amended petition and the City’s amended plea to the jurisdiction, the live pleadings in the case.
According to Quinlan, her “lawsuit is primarily for a premises-liability claim in connection to a
2
serious injury that Plaintiff Quinlan sustained while she was a patron at a restaurant owned by
Defendant Guero’s.” Guero’s “was in possession and control of the premises” located at 1412
South Congress Avenue in Austin and holds a permit to occupy the City’s Right of Way
(specifically, a sidewalk on South Congress Avenue) to operate a “sidewalk café” on a patio area
outside the restaurant. To obtain this permit, Guero’s agreed to pay the City an application fee of
$100 and an annual fee of $200. Additionally, Guero’s was required to maintain the premises in
accordance with the terms of a “Maintenance Agreement” with the City (the Agreement).
Copies of the permit and the Agreement were attached to the parties’ pleadings.
In relevant part, the Agreement provides that the patio may be occupied and used by Guero’s
“for the sole purpose of constructing, installing, operating, maintaining and repairing a
temporary sidewalk cafe for food and beverage service.” “In its use and occupancy of the
Premises,” Guero’s is to “strictly comply” with various maintenance requirements specified in
the Agreement, including that any “[f]urnishings shall not extend or overhang outside of the
permitted area, constitute a danger to the health or safety of a patron or the public, violate any
other ordinance that governs the use of public right of way, or interfere with or obstruct the
public right of way”; that no signs or banners be placed or permitted on the premises; and that no
hazardous materials be placed or permitted in or about the premises.
The Agreement also provides that Guero’s “shall be responsible at its sole
expense for the construction, installation, operation, maintenance, repair and removal of any
improvements to the Premises” and that Guero’s was to “acknowledge[] that the area covered by
this permit constitutes a portion of a public right-of-way and agree[] that use herein permitted
shall be done in compliance with all codes, ordinances and regulations.” Further, the Agreement
requires Guero’s “to pay all costs required to repair damage to or relocate existing Facilities,
3
which are damaged or destroyed or need to be relocated as a result of activities under this
Agreement,” “to pay all costs required to remove or modify any Improvements now existing or
to be replaced if the City determines that the Improvements need to be removed or modified,”
and to “timely and properly maintain all Improvements” to the premises.
The Agreement also provides that the City “shall at all times have the right to
enter the Premises to inspect, improve, maintain, alter or utilize the Premises in any manner
authorized to the City.” Further, “[i]f such entry requires disturbance of any items placed upon
the Premises under this Agreement, the City shall not be required to repair or replace any such
disturbance.” For its part, Guero’s is required to “avoid any damage or interference with any
City installations, structures, utilities or improvements on, under, or adjacent to the Premises.”
Moreover, the Agreement provides that if Guero’s fails to comply with its maintenance
obligations, “the City may at its sole discretion terminate this Agreement as provided herein or
take measures as it determines necessary to bring the Premises into compliance with the terms
hereof, and the cost of any such measures shall be paid by” Guero’s.
The patio, although level with the restaurant, is elevated above the street. On or
about May 27, 2018, Quinlan was a patron at Guero’s when she injured herself after falling
“more than a foot” from the patio on the outer edge of the premises while she was exiting the
restaurant. Quinlan alleges that
The layout of the restaurant/Premises was such that a patron exits the main
restaurant building and then enters a patio area, which in turn connects to the
street. However, there are no railings on the patio and no warnings of the large
and sudden drop from the patio to the street. Moreover, the placement by Guero’s
of furniture and chairs and plants on the patio further confused Plaintiff and
obstructed the drop from the patio to the street.
4
Quinlan further alleges that the City “may also be liable for the claims in this
lawsuit to the extent that the patio and/or surrounding area is owned and/or under the control of
the City of Austin.” Quinlan claims that according to the terms of the Agreement, the City
“assumed contractual responsibility to both monitor and enforce violations by Guero’s with
regards to safety of the patio.” Quinlan also claims that “[i]n light of the Agreement, the City of
Austin further became obligated to ensure that the patio and the street was level so as not to pose
a dangerous condition to Plaintiff and other patrons.”
Quinlan alleges that the City and Guero’s “were jointly in control of the subject
Premises” and that both Guero’s and the City “had a duty to exercise the degree of care that a
reasonably careful person/party would use to avoid harm to others under circumstances similar to
those described” in Quinlan’s petition. Quinlan claims that both Guero’s and the City breached
that duty by “fail[ing] to install railings between the patio and the street,” “fail[ing] to warn
Plaintiff and other patrons of the danger of a sudden drop from the patio to the street,
notwithstanding the fact that the patio area was essential for access to and from Guero’s,”
“maintain[ing] tables and chairs and plants on the patio, which had the effect of obstructing the
street and confusing the patron about the sharp drop immediately following the patio entrance,”
and “fail[ing] to make level the patio and the street.”
Quinlan further alleges that the City, by virtue of the Agreement with Guero’s,
“was obligated to elevate the street and/or provide appropriate modifications to the patio and
surrounding area to make such premises safe for patrons.” Quinlan claims that by failing to do
so, the City “was negligent in the implementation of policy and/or its responsibilities regarding
the patio and the Agreement with Guero’s.” “At the very least,” Quinlan continues, “the City of
Austin allowed Guero’s to obstruct and/or mislead Plaintiff regarding the drop from the patio and
5
the street by the placement of furniture, tables and plants on the patio.” In Quinlan’s view, the
Agreement between the City and Guero’s “precluded obstruction/confusion by Guero’s of the
patio and further obligated the City of Austin to monitor the patio and take enforcement action
against Guero’s.” As an additional basis for liability, Quinlan alleges that the Agreement
between the City and Guero’s constituted a “joint enterprise,” thereby making the City
vicariously liable for Guero’s conduct.
The City filed a plea to the jurisdiction, arguing that Quinlan’s claims against it
were barred by governmental immunity. The district court denied the City’s plea without
specifying the basis for the denial, and this interlocutory appeal followed.
STANDARD OF REVIEW
“Sovereign immunity protects the state and its various divisions, such as agencies
and boards, from suit and liability, whereas governmental immunity provides similar protection
to the political subdivisions of the state, such as counties, cities, and school districts.” Travis
Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57–58 (Tex. 2011). Consequently, cities are
generally immune from suit and liability absent a legislative waiver of that immunity. See Reata
Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374–75 (Tex. 2006); City of Houston v. Nicolai,
539 S.W.3d 378, 386 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
An assertion of governmental immunity implicates the trial court’s jurisdiction
and thus is properly asserted in a plea to the jurisdiction. Tarrant Regional Water Dist.
v. Johnson, 572 S.W.3d 658, 664 (Tex. 2019); Texas Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 225–26 (Tex. 2004). The burden is on the plaintiff to affirmatively
demonstrate the trial court’s jurisdiction. Miranda, 133 S.W.3d at 225. Therefore, when a
6
government defendant challenges jurisdiction on the basis of immunity, the plaintiff must
affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity. Ryder
Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex. 2015) (per curiam).
“The trial court’s ruling on the plea is reviewed de novo on appeal.” Johnson,
572 S.W.3d at 664. In reviewing a plea to the jurisdiction, we begin with the plaintiff’s live
pleadings and determine if the plaintiff has alleged facts that affirmatively demonstrate the trial
court’s jurisdiction to hear the cause. Miranda, 133 S.W.3d at 226. In making this assessment,
we construe the plaintiff’s pleadings liberally, taking all assertions as true, and look to the
plaintiff’s intent. Id. “Parties may submit evidence at the plea-to-the-jurisdiction stage, and the
trial court’s review generally mirrors the summary judgment standard.” Johnson, 572 S.W.3d at
664 (citing Sampson v. University of Tex., 500 S.W.3d 380, 384 (Tex. 2016)). Thus, we review
the evidence in the light most favorable to the nonmovant to determine whether a genuine issue
of material fact exists. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019)
(citing Miranda, 133 S.W.3d at 221, 227-28).
When the jurisdictional facts implicate the merits of a plaintiff’s claims, as they
do in this case, the party asserting the plea must overcome a burden similar to the movant’s
burden on a traditional-summary-judgment motion. See Bacon v. Texas Hist. Comm’n,
411 S.W.3d 161, 171 (Tex. App.—Austin 2013, no pet.) (citing Miranda, 133 S.W.3d at 228;
Hendee v. Dewhurst, 228 S.W.3d 354, 367 (Tex. App.—Austin 2007, pet. denied)). To meet this
burden, the defendant asserting the plea must present evidence to support its assertion, which
then shifts the burden to the plaintiff to show that a disputed material fact exists regarding the
jurisdictional issue. Miranda, 133 S.W.3d at 228. “If the evidence creates a fact question
regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and
7
the fact issue will be resolved by the fact finder.” Miranda, 133 S.W.3d at 227–28. “However,
if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue,
the trial court rules on the plea to the jurisdiction as a matter of law.” Id. “Our ultimate inquiry
is whether the plaintiff’s pleaded and un-negated facts, taken as true and liberally construed with
an eye to the pleader’s intent, would affirmatively demonstrate a claim or claims within the trial
court’s jurisdiction.” Brantley v. Texas Youth Comm’n, 365 S.W.3d 89, 94 (Tex. App.—Austin
2011, no pet.).
DISCUSSION
Premises-liability claims
The Texas Tort Claims Act provides a limited waiver of governmental immunity
for claims such as Quinlan’s that allege personal injury caused by a premises defect. See Tex.
Civ. Prac. & Rem. Code §§ 101.021(2), .022; State v. Shumake, 199 S.W.3d 279, 281 (Tex.
2006). However, the Tort Claims Act does not waive immunity for such claims that are based on
“the failure of a governmental unit to perform an act that the unit is not required by law to
perform” or “a governmental unit’s decision not to perform an act or on its failure to make a
decision on the performance or nonperformance of an act if the law leaves the performance or
nonperformance of the act to the discretion of the governmental unit.” Tex. Civ. Prac. & Rem.
Code § 101.056. This is known as the “discretionary powers” exception to the waiver of
governmental immunity. Id. “The exception’s purpose is to avoid judicial review or interference
with those policy decisions committed to the other branches of government.” Stephen F. Austin
State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007) (citing State v. Terrell, 588 S.W.2d 784,
787 (Tex. 1979)). “The provision generally preserves immunity not only for the [government]’s
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public policy decisions, but also for the [government]’s failure to act, when no particular action
is required by law.” Id.; see also State v. San Miguel, 2 S.W.3d 249, 250–51 (Tex. 1999).
The “touchstone” for Section 101.056 is “discretion.” Johnson, 572 S.W.3d at
667–68. Accordingly, the question in this case is whether Quinlan’s claims implicate
discretionary or non-discretionary actions by the City. See City of Corsicana v. Stewart,
249 S.W.3d 412, 416 (Tex. 2008) (“[T]he City is immune from liability for discretionary
decisions concerning the expenditure of limited resources for the safety of its citizens.”). “An
act is discretionary if it requires exercising judgment and the law does not mandate performing
the act with such precision that nothing is left to discretion or judgment.” State v. Rodriguez,
985 S.W.2d 83, 85 (Tex. 1999) (per curiam), overruled on other grounds by Denton County
v. Beynon, 283 S.W.3d 329 (Tex. 2009). Whether a governmental activity is discretionary is a
question of law. Miguel, 2 S.W.3d at 251.
There are two tests that aid courts in determining whether a governmental activity
is discretionary. One test “distinguishes the design of public works, for which there is immunity,
from their maintenance, for which there is not immunity.” Flynn, 228 S.W.3d at 657. “Design
of any public work, such as a roadway, is a discretionary function involving many policy
decisions, and the governmental entity responsible may not be sued for such decisions.”
Rodriguez, 985 S.W.2d at 85. “Likewise, decisions about installing safety features are
discretionary decisions for which the State may not be sued.” Texas Dep’t of Transp. v. Ramirez,
74 S.W.3d 864, 867 (Tex. 2002) (per curiam). On the other hand, a governmental entity may be
sued for failing to maintain public works that the entity is obligated to maintain. Thus, for
example, “while the government is not liable for designing a bridge without lighting, it may be
9
liable for failing to maintain the lighting on a bridge designed to be illuminated.” Flynn,
228 S.W.3d at 657–58.
The other test “distinguishes between policy-level decisions and operational-level
decisions.” Id. at 657. “When the government in the exercise of its discretion decides to act . . .
a distinction is drawn between the negligent formulation of policy, for which sovereign
immunity is preserved, and the negligent implementation of policy, for which immunity
is waived.” Id. (citing Terrell, 588 S.W.2d at 788); City of Brownsville v. Alvarado,
897 S.W.2d 750, 754 (Tex. 1995). Thus, for example, a water district’s “decision to release
water from a spillway constitutes policy formulation for which the water district is immune,” but
“the subordinate decision of determining the volume of the outflow is policy implementation for
which the district is not immune.” Flynn, 228 S.W.3d at 657.
“Although described at times as two distinct inquiries, both of these ‘tests’ have
the effect of distinguishing ‘between policy-level decisions and operational-level decisions.’”
Johnson, 572 S.W.3d at 665. “The design versus maintenance ‘test’ is simply the policy-level
versus operational-level test applied to public works.” Id. “Of course, neither ‘design’ nor
‘maintenance’ appears in the text of section 101.056.” Id. “For that matter, neither do the terms
‘policy-level’ or ‘operational-level.’” Id. “The words of section 101.056 protect a governmental
entity’s failure to act or its decision not to act (or its failure to make any decision at all) on
matters within ‘the discretion of the governmental unit.’” Id. at 665–66. “They do not protect a
governmental entity’s failure to act when a particular action is ‘required by law.’” Id. at 666.
In this case, some of Quinlan’s allegations involve discretionary design decisions
regarding the safety features of the premises, specifically her allegations that the City “failed to
install railings between the patio and the street,” “failed to warn Plaintiff and other patrons of the
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danger of a sudden drop from the patio to the street,” “failed to make level the patio and the
street,” and “was obligated to elevate the street and/or provide appropriate modifications to the
patio and surrounding area to make such premises safe for patrons.” There are numerous cases
holding that governmental immunity is not waived for these and similar design defects. See, e.g.,
Ramirez, 74 S.W.3d at 867 (State retained immunity for claims related to design of highway and
failure to install safety features); Rodriguez, 985 S.W.2d at 86 (State retained immunity for
claims related to design of detour and warning signs); City of Austin v. Silverman, No. 03-06-
00676-CV, 2009 WL 1423956, at *3 (Tex. App.—Austin May 21, 2009, pet. denied) (mem. op.)
(City retained immunity for claims related to design of sidewalk, lighting in surrounding area,
and City’s decision not to install railing or warning sign); University of Tex. Health Sci. Ctr.
v. Bruen, 92 S.W.3d 24, 27 (Tex. App.—San Antonio 2002, pet. denied) (university retained
immunity for claims related to design of auditorium ramp, including that there was no difference
in color between ramp’s carpet and carpet on auditorium’s floor and that university failed to
warn of dangerous condition with railing or other device to prevent stepping off side of ramp);
Mogayzel v. Texas Dep’t of Transp., 66 S.W.3d 459, 465-66 (Tex. App.—Fort Worth 2001, pet.
denied) (State retained immunity from claims related to lack of barriers or guardrails on highway
as originally designed). Moreover, there is nothing in the Agreement between the City and
Guero’s that obligates the City to take such specific actions regarding the design of the premises.
Accordingly, we conclude that the City’s immunity is not waived for these allegations.
However, Quinlan’s other allegations present a closer call on the question of the
City’s discretion. The City, by entering into the Agreement with Guero’s, created a policy
whereby it largely delegated to Guero’s the responsibility for maintaining the premises but
retained considerable control of how the premises would be maintained. Although Guero’s was
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to “strictly comply” with various maintenance requirements, it was the City that specified what
those requirements would be, including that no signs or banners be placed or permitted on the
premises and that any “[f]urnishings shall not extend or overhang outside of the permitted area,
constitute a danger to the health or safety of a patron or the public, violate any other ordinance
that governs the use of public right of way, or interfere with or obstruct the public right of way.”
Additionally, Guero’s was to acknowledge that the area covered by the City’s permit “constitutes
a portion of a public right-of-way and agree[] that use herein permitted shall be done in
compliance with all codes, ordinances and regulations,” which gave the City further control over
what Guero’s could and could not do on the premises. The Agreement further provides that the
City “shall at all times have the right to enter the Premises to inspect, improve, maintain, alter or
utilize the Premises in any manner authorized to the City.” Thus, the Agreement contemplates at
least the possibility of the City inspecting, improving, maintaining, altering, or utilizing
the premises.
In similar cases involving government-owned premises, courts have held that
immunity is waived for a governmental entity’s failure to maintain the premises or its negligent
implementation of policy regarding the maintenance of the premises. For example, in City of
Irving v. Seppy, survivors brought a wrongful-death action against the City of Irving after Seppy,
a volunteer at a theater, fell from a catwalk in the theater and died from his injuries. 301 S.W.3d
435, 439–40 (Tex. App.—Dallas 2009, no pet.). The plaintiffs alleged that the City, which
owned the theater, was negligent in failing to (1) maintain the catwalk in a reasonably safe
condition; (2) adequately warn Seppy of the catwalk’s unsafe condition; and (3) fix or repair the
dangerous condition of the catwalk. Id. at 442. Construing the plaintiff’s pleadings liberally, the
court concluded that “the allegations against the City attack the condition of the catwalk at the
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time of Seppy’s accident, rather than decisions relating to the design of the catwalk, and that the
Seppy Family’s allegations show an intent to prove the City’s claimed failure to maintain and fix
the catwalk caused their injuries.” Id. Similarly, in this case, Quinlan’s allegations involving the
Agreement address the changed conditions on the premises at the time of Quinlan’s fall from the
patio, which, according to Quinlan, resulted at least in part from the City’s negligent
implementation of the Agreement.
In Texas Department of Transportation v. Pate, the jury found that the
Department was liable for the wrongful deaths of three young people who were killed in a pickup
truck at a highway intersection. 170 S.W.3d 840, 843 (Tex. App.—Texarkana 2005, pet.
denied). The survivors sued the Department under a premises liability theory, alleging that the
Department “did not keep the trees at the intersection trimmed back enough to provide sufficient
visibility” for the driver of the truck to see and avoid oncoming traffic as he approached the
intersection. Id. The Department argued that it was immune from suit because “it can design its
roads however it chooses and that it has no duty to ‘provide a clear line of sight distance from the
stop line.’” Id. at 844. The appellate court disagreed, concluding that the Department was
required by law to maintain the roadways, including provisions in the Transportation Code that
gave the Department “exclusive and direct control of all improvement of the state highway
system.” Id. at 844-45. Here, Quinlan is similarly alleging that the City owned the patio,
exercised control over the maintenance of the patio, and negligently implemented its
maintenance policy, as specified in the Agreement, by allowing Guero’s to obstruct the patio.
At this stage of the litigation, we do not know the extent to which the City
exercised its rights under the Agreement to “inspect, improve, maintain, alter, or utilize” the
13
premises or the extent to which the City monitored and enforced Guero’s compliance with the
Agreement. Those are fact questions ultimately for the jury to decide.
The dissent contends that we are relying on “additional, hypothetical facts” to
establish jurisdiction and that “it was Quinlan’s burden to allege facts to affirmatively
demonstrate that the City’s immunity either does not apply or has been waived.” However, it
was the City’s burden, as the party asserting the plea to the jurisdiction, to “meet the summary
judgment standard of proof.” Miranda, 133 S.W.3d at 228. “Under this procedure, the burden is
on the defendant to put forth evidence establishing as a matter of law that the trial court lacks
subject-matter jurisdiction.” City of Austin v. Rangel, 184 S.W.3d 377, 382 (Tex. App.—Austin
2006, no pet.); see also Miranda, 133 S.W.3d at 228 (“By requiring the state to meet the
summary judgment standard of proof in cases like this one, we protect the plaintiffs from having
to ‘put on their case simply to establish jurisdiction.’” (quoting Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 554 (Tex. 2000))). The plaintiff does not have a similar burden to establish
jurisdiction “as a matter of law.” “We simply require the plaintiff[] . . . to show that there is a
disputed material fact regarding the jurisdictional issue.” Miranda, 133 S.W.3d at 228.
By presenting evidence of the Agreement between the City and Guero’s, Quinlan
has shown that there is a disputed material fact regarding the jurisdictional issue, specifically the
degree to which the City exercised control over the maintenance of the premises. Construing the
pleadings liberally and viewing the evidence in the light most favorable to Quinlan, the
Agreement constituted a policy by the City regarding the maintenance of the premises, and some
of Quinlan’s claims allege a negligent implementation of that policy by the City, specifically her
claims that the City “was negligent in the implementation of policy and/or its responsibilities
regarding the patio and the Agreement with Guero’s,” “allowed Guero’s to obstruct and/or
14
mislead Plaintiff regarding the drop from the patio and the street by the placement of furniture,
tables and plants on the patio,” “maintained tables and chairs and plants on the patio, which had
the effect of obstructing the street and confusing the patron about the sharp drop immediately
following the patio entrance,” “assumed contractual obligations to monitor and enforce violation
by Guero’s of the patio and Premises,” and that the Agreement “precluded obstruction/confusion
by Guero’s of the patio and further obligated the City of Austin to monitor the patio and take
enforcement action against Guero’s.” We conclude that the evidence raises at least a fact
question as to whether the City’s immunity is waived for these allegations. Accordingly, the
district court did not err in denying the plea to the jurisdiction for these allegations.
The City argues that Quinlan’s negligent-implementation-of-policy claims fail for
two reasons. First, it argues that Quinlan has no standing to bring a suit to enforce terms of the
City’s Agreement with Guero’s because she is not a party or a third-party beneficiary to the
contract. However, construing the pleadings liberally and “with an eye to the pleader’s intent,”
Quinlan is not alleging a breach of contract but is instead alleging that the City was negligent in
implementing its policy, as set forth in its Agreement with Guero’s, to require Guero’s to
maintain the premises. In other words, Quinlan is not suing to enforce the Agreement. Rather,
she is suing the City for negligently implementing its maintenance policy regarding the premises,
and the Agreement is evidence of the City’s policy.
1
1 The dissent “question[s] Quinlan’s standing to assert claims against the City . . . based
on the City’s contractual obligations under its agreement with Guero’s” and contrasts this case
with City of Saginaw v. Cruz, No. 05-19-01141-CV, 2020 WL 5054802 (Tex. App.—Dallas
Aug. 27, 2020, no pet.) (mem. op.). In Saginaw, there was a construction contract between the
City of Saginaw and an engineer to reconstruct and widen a roadway, and a motorist who had
been injured on the roadway sued the City and the engineer for negligence. Id. at *1. The City
filed a plea to the jurisdiction, which the trial court denied. Id. The appellate court affirmed,
concluding that the construction contract, which included a provision that made the engineer the
15
Second, the City argues that its decision whether to enforce the Agreement’s
provisions was “inherently discretionary.” As support for this assertion, the City references the
portion of the Agreement providing that if Guero’s fails to comply with its maintenance
obligations, “the City may at its sole discretion terminate this Agreement as provided herein or
take measures as it determines necessary to bring the Premises into compliance with the terms
hereof.” However, the City’s discretion to “terminate” the Agreement and to “take measures to
bring the premises into compliance with the terms of the Agreement” does not mean that the City
has no obligations regarding the premises. According to the allegations in Quinlan’s petition,
both Guero’s and the City control the premises, with the City having the ultimate say in how the
premises are used and maintained. The Agreement provides that Guero’s must “strictly comply”
with the City’s maintenance requirements and that Guero’s use of the premises “shall be done in
compliance with all codes, ordinances and regulations.” The Agreement further provides that the
City “has the right to enter the Premises to inspect, improve, maintain, alter or utilize the
Premises in any manner authorized to the City.” Thus, the Agreement reflects a policy by the
City to control and monitor Guero’s maintenance of the premises to ensure compliance with the
City’s requirements, and the City’s immunity is waived for any negligent implementation of
that policy.
City’s “representative during construction,” was sufficient to raise a fact question as to whether
the City had constructive knowledge of an alleged defect in the roadway. Id. at *6. The dissent
concludes that the circumstances in this case are “notably different from a governmental entity’s
agency-like relationship with a third party” that existed in Saginaw. However, an agency
relationship between the City and Guero’s is not required for the City to be liable in this case.
Rather, the City’s liability depends on the extent to which the City exercised its rights under the
Agreement “to inspect, improve, maintain, alter or utilize the Premises in any manner authorized
to the City,” which is a fact question for the jury to decide.
16
Joint-enterprise liability
Quinlan additionally alleges that the City’s immunity is waived under a “joint
enterprise” theory of liability. The Texas Tort Claims Act waives governmental immunity for
“personal injury and death so caused by a condition or use of tangible personal or real property if
the governmental unit would, were it a private person, be liable to the claimant according to
Texas law.” Tex. Civ. Prac. & Rem. Code § 101.021(2). “Joint enterprise liability makes ‘each
party thereto the agent of the other and thereby to hold each responsible for the negligent act of
the other.’” Texas Dep’t of Transp. v. Able, 35 S.W.3d 608, 613 (Tex. 2000) (quoting
Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 14 (Tex. 1974)). Therefore, if Guero’s and the
City entered into a “joint enterprise,” and if the City would have been liable for Guero’s
negligence had the City been a private person, then the City would not have governmental
immunity. See id.
The essential elements of a joint enterprise are (1) an Agreement, express or
implied, among the members of the group; (2) a common purpose to be carried out by the group;
(3) a community of pecuniary interest in that purpose, among the members; and (4) an equal
right to a voice in the direction of the enterprise, which gives an equal right of control.2 Id. We
conclude that in this case, at least the third element is absent.
A “community of pecuniary interest” refers to a monetary interest that is
“common among the members of the group—it must be one ‘shared without special or
2 The “equal right of control” element does not mean equality in the literal sense of the
word but requires that each member of the group have “some voice and right to be heard” in the
direction of the enterprise that is “authoritative,” not merely the right to make “suggestions” that
the other group members “could adopt or reject” at will. See Triplex Commc’ns, Inc. v. Riley,
900 S.W.2d 716, 719 (Tex. 1995); Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 14–15
(Tex. 1974).
17
distinguishing characteristics.’” St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 531 (Tex. 2002)
(quoting Ely v. General Motors Corp., 927 S.W.2d 774, 779 (Tex. App.—Texarkana 1996, writ
denied)). Thus, evidence that each member of the group benefited financially in some way from
the Agreement is not sufficient. See id. Rather, a “community of pecuniary interest” is shown
by such evidence as shared financial resources, pooled funds, or joint monetary investments in
the enterprise. See Able, 35 S.W.3d at 614; Blackburn v. Columbia Med. Ctr. of Arlington
Subsidiary, L.P., 58 S.W.3d 263, 276 (Tex. App.—Fort Worth 2001, pet. denied); see also
Stroup v. MRM Management, Inc., No. 03-17-00534-CV, 2018 WL 5074692, at *3 (Tex. App.—
Austin Oct. 18, 2018, no pet.) (mem. op.).
In this case, there is no evidence of a “community of pecuniary interest” between
Guero’s and the City. Guero’s paid money to the City for a permit to operate a sidewalk café as
part of its restaurant business, and although the City undoubtedly receives sales taxes from the
business that Guero’s generates, there is no evidence that Guero’s and the City shared financial
resources, pooled funds, or made joint monetary investments in the café, nor is there any
evidence that Guero’s shared its revenue from the sidewalk café with the City or that the City
shared its sales tax revenue with Guero’s. Thus, there is no fact issue as to whether Guero’s and
the City share a “community of pecuniary interest.”
Additionally, “a contract entered into by a local government entity is not a joint
enterprise for liability purposes.” Tex. Loc. Gov’t Code § 271.160. Accordingly, the Agreement
between the City and Guero’s cannot give rise to a joint-enterprise theory of liability. See Fort
Bend Cnty. Toll Road Auth. v. Olivares, 316 S.W.3d 114, 128–29 (Tex. App.—Houston [14th
Dist.] 2010, no pet.) (holding that section 271.160 applies broadly to “any contract entered into
by a local-government entity”); see also Zachry Const. Corp. v. Port of Houston Auth. of
18
Harris Cnty., 449 S.W.3d 98, 107 (Tex. 2014) (“Section 271.160 precludes a finding of
joint enterprise.”)
We sustain in part and overrule in part the City’s first issue. The district court
erred in denying the plea to the jurisdiction as to Quinlan’s claims relating to the design of the
premises and her claims relating to the alleged “joint enterprise” between the City and Guero’s.
However, the district court did not err in denying the plea to the jurisdiction for Quinlan’s claims
relating to the City’s alleged negligent implementation of its policy regarding the maintenance of
the premises.
Dismissal with prejudice
In its second issue, the City argues that Quinlan’s claims against the City should
be dismissed with prejudice. “In general, a dismissal with prejudice is improper when the
plaintiff is capable of remedying the jurisdictional defect.” Harris County v. Sykes, 136 S.W.3d
635, 639 (Tex. 2004). However, when the jurisdictional defects cannot be cured, such as when
governmental immunity is conclusively established, dismissal with prejudice is appropriate. See
Texas A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839–40 (Tex. 2007). Regarding the claims
against the City that the district court should have dismissed, summarized above, there are no
jurisdictional facts that Quinlan could allege that would bring those claims within the waiver of
immunity provisions of the Tort Claims Act. See, e.g., Clint Indep. Sch. Dist. v. Marquez,
487 S.W.3d 538, 559 (Tex. 2016); Holms v. West Travis Cnty. Pub. Util. Agency,
No. 03-17-00584-CV, 2019 WL 1141870, *5 (Tex. App.—Austin Mar. 13, 2019, no pet.)
(mem. op.); City of Madisonville v. Murders, No. 10-13-00234-CV, 2014 WL 1518244, at *2
19
(Tex. App.—Waco April 17, 2014, no pet.) (mem. op.). Accordingly, we dismiss with prejudice
those claims against the City.
We sustain the City’s second issue to the extent it applies to the claims that the
district court should have dismissed.

Outcome: We affirm in part the district court’s order as to Quinlan’s claims relating to the
City’s alleged negligent implementation of its policy regarding the maintenance of the premises, reverse in part the district court’s order as to Quinlan’s claims relating to the design of the premises and her claims relating to the alleged “joint enterprise” between the City and Guero’s,and render judgment dismissing those claims

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