### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00067
- CV

The City of Austin , Appellant

v. Irene Quinlan , Appellee

FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 18
- 003598 , THE HONORABLE AMY CLARK MEACHUM , JUDGE PRESIDING

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N

I concur with the Court ’ s judgment to t he extent that it reverses the trial court ’ s order den ying the City of Austin ’ s plea to the jurisdiction and dismisse s Irene Q uinlan ’ s claims against t he City for lack of sub j ect matter jurisdiction . I re spectfully dissent, however, to the
Court ’ s holding that the trial court has ju risdiction over Quinlan ’ s claims against the Ci ty for negligent implementation of policy

. Based on Quinlan ’ s pleadings a nd the ev idence before the trial c o urt , I would reve rse the trial court ’ s order and dismiss al l her claims against the C ity

. As a threshold matter, I question Qu inlan ’ s stan ding to assert claims against the City under the T exas T ort C laims A ct (TTCA), see generally Tex. Civ. Prac. & Rem. Code §§ 101.001

– .109, based on t he City ’ s contractual obligations under its agreement with Guero ’ s Restaurant, Inc . The City argues that Quinlan “ lacks sta nding to enf or ce the terms of a contra ct to which she is not a part y . ” See First Bank v . Brumitt , 519 S.W.3d 95, 102 ( Tex. 2017)2 ( a ddressing third

- party beneficiaries of contracts)

. The Court sidesteps the C i ty ’ s standing
argum ent by charac terizing the agreement between the City and Guero ’ s as “ evidence of the City ’ s po lic y. ” The Court then characterizes the City ’ s policy under the terms of the agreement

as “ to control and monitor Guero ’ s maintenance of the premises to en sure co mpliance with the City ’ s requirements , ” and conclude s that “ the City ’ s immunity is waive d for any n egligent implementation of that policy

. ” I have not found authority that would support both standing and a c ity ’ s waiver of immunity based on the terms of an agree ment between a city and restaurant that relate s to a restaurant’ s permit to operate a s idewalk café and g ives sole discretion to the city to take enforcement action against the restauran t under the agreement ’ s terms . The City ’ s relationship with Guero ’ s is notably diffe rent from a governmental en tit y ’ s a gency - like relat ionship with a thir d party

. Cf. City of Saginaw v. Cruz , No. 05

- 19

- 0 1141

- CV, 2020 Tex

. App. L EXIS 6984, at

* 12

– 1 6 (Tex. App.

— Da llas Aug. 27, 2020, no pet.) (mem. op.) (affirming den ial o f ple a to jurisdiction on issue of kno wledge of a l leged premises defec t wh ere c ity hire d e ngi neer to reconstruct and widen roadway and re lying on c onstr uction c ontract between c ity and engineer that included pro vision that engineer was c ity ’ s agent during construct ion ). The two cases cited by the Court to sup port the waiver of the City ’ s im muni t y are not analogous

. In City of Irving v. Seppy , the c ity owned “ and operated ” the premis es in question . 301 S.W.3d 435, 439 (Tex. App.

— Dallas 2009 , no pet.) ( emphasis added)

. An d in
Texas Department of Transportation v. Pate , t he Texas De partment of Transpo rtat i on ’ s duty to maintain the right

- of

- wa y next to a highway is not comparable to the City ’ s discretion to mo nitor
Guero ’ s compliance with the agreement be tween the City and Guero ’ s. See Texas Dep ’ t of3 Transportation v. Pate , 170 S.W.3d 8 4 0, 843 ( Tex. Ap p.

— T e xarkana 2005, pet. denied ) ( re jecting department ’ s argum e nt that keeping sight lines clear is discretionary duty)

. E ve n if Qu inlan has sta nding t o bring TTCA claims ag ain st the C ity that are based on the City ’ s agreement with Guero ’ s , I canno t a gree wit h the C o urt ’ s analysis as to the City ’ s waiver of immunity

. In my view, th e pleadings and evidence conclusively establish that it wa s within the Cit y ’ s discretion to enforc e or monitor Guero ’ s compliance with the agreement , such

as whether and whe n to se n d City personnel to m onitor the way Guero ’ s arrange d i ts patio fur niture

. See Tex. C iv. Prac. & Rem. Code § 101. 056 ( stating that chap ter does not a pply to

c laims ba s ed on governmenta l unit ’ s discretionary powers) ; City of Corsicana v. Stewart , 249 S .W. 3d 412, 416 (Tex. 2008) (explaining that city was immune from liab ility for discretionary decisions concerning ex pendi ture of limit ed re sources for s a fety of citizens) ; Morg an v. City of Terrell , No

. 05

- 16

- 00554

- CV, 2 017 Tex. App. LEXIS 7736, at * 5

– 6 (T ex. App.

— Dallas Aug. 15, 2017, no pet.) (mem. op.) (reje cting assertion that pro visions of c ity ’ s code “ cre ated a manda tory d uty o n be half of the c ity t o remedy unsafe conditio ns on the

s i dewalks ” ) ; City of Austin v. Fra me , No. 03

- 15

- 00292

- CV, 2 017 T e x. Ap p. LEXIS 4104 , at *3,
11

– 22 (Tex. App.

— Aus tin May 5, 2017, pet. deni ed ) (mem. op.) ( construing discretionary

powe rs exception and rejecting claim that “ failure to address an id en tified safety hazard .

. . was a negligent failure to impl ement an exist i ng po lic y ” )

. A s support for its jurisdiction al conclusion , t he Court explains that “ [a]t this stage of the litigation, we do not know the extent to whic h the City exercised its rights under the
A greement or the ext ent to wh ic h the City monitored and en f orce d Gue ro ’ s compliance with the
A greement. ” But it was Quinlan ’ s burden to allege facts in her pleadings to affirmatively demonst rate that the C ity ’ s immunity either doe s not apply or has been waived ; t he “ question is4 not wh ether additional, hypothetic a l fa cts c ould come to ligh t

. ” See Matzen v. McLane , No. 2 0

- 0523 , 2021 Tex. L EX IS 1192 , at *10

– 11 ( Tex. Dec. 17, 2021) ( “ If additional facts wou ld be necessary

. . . to sta te a viable claim fallin g within a waiver or exception to immunity, then the plaint i ff h as no t affir matively demonstrat ed the court ’ s jurisdiction. In such a case, a plea to the jurisdiction sho uld be granted. ” ) ; Tex as Dep ’ t of Parks & Wildlife v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004) (describing plaintiff ’ s burden to allege facts to demonstra te t hat jurisdic tion exists)

. The City ’ s ple a t o the jurisdiction c hallenged Quinlan ’ s pleadings and the existence of jurisdictional facts. See Te xas Dep ’ t of Crim

. Justice v. Rangel , 595 S.W.3d 198, 205 (Tex. 2020) (recognizing that plea to j u risdictio n “ m ay challenge the pleadings, the existence of jurisdictional facts, or both ” (q uoting Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 770 (Tex. 2018)) ). Quinlan ’ s pleadings alleged four “ dangerous ” conditions : (i) fail i ng to install railings betw een the patio and the street; (ii) fail ing to warn of danger of the drop from the patio to the street; (iii) fail ing to make the patio and the street lev e l; and (iv) mai ntaining the ta bles and chairs and plan ts on the pa tio , “ which had the ef f

ect of ob stru cting the street and con fusing the patrons about the s harp drop immediately following the pat io entrance

. ” The Court appears to conclude that at least the first three factual allegations do not support jurisdiction based on the agreement be twe en the Ci ty and Guero ’ s , explaining that “ there is nothing in the Agreement b etween the City and Guero ’ s that obligates the City to take such specific actions re garding the design of the premises

. ” But the Court also conclu des that the

a greement itself is evidence th at supports jurisdiction and then places the burden on the City to defeat the trial court ’ s jurisdiction by present ing evi dence about its actions under the terms of the5 agreement

. This approach confuses a plaintiff ’ s burden to allege facts i n t heir plea di ngs that affirmatively demonstrate jurisdiction , which in this case includes alleging facts as to a

“ condition ” of “ real property , ” see Tex. Civ. Prac. & Rem. Code § 101.021 (2) ( ge nerally waiving immunity for injury or death caused by conditi on of real p ro perty) , and a governmental enti ty ’ s p r e sentation of evidence to challenge a pleaded jurisdictional fact , see City of Austin

v. Rangel , 184 S.W.3d 377, 385 (Tex. App.

— Austin 2006, no pet.) ( e xplaining that plaintiff ha s burden of all eging fact s t hat affir ma tively demonstrate tria l court ’ s jurisdiction and providing example of facts that plaintiff could al lege to create jurisdictional fact issue about p roperty ’ s condition ) ; see also Rangel , 595 S.W.3d at 205 (explaining that when plea challe nges th e existen ce of jurisdictional facts, “ a plaintiff must raise a genui ne issue of material fact to overcome the challeng e to the trial court ’ s jurisdiction ” )

. Based on Quinl an ’ s pleadings and the evidence before the trial court, I conclud e that Quinla n has fai led t o plead a claim against the City t hat would invoke the tri al court ’ s jurisdiction. Therefore, I would re verse the trial court ’ s order denyi ng the City ’ s plea to the jurisdiction and dismiss Quinlan ’ s claims against the City for lack of subjec t mat ter juris diction

. 1

1 In the procedural context of this appeal , I would not remand to allow Q uinlan the opport unity to amend

. See Clint Indep. Sch. Dist. v. Marquez , 487 S.W.3d 538, 559 (Tex. 201 6) (notin g that plaintiffs were not entitled to another opportunity to replead when they “had the opportunity to, and did in fact, amend their pleadings in the trial court after the [defendant] filed its plea to the jurisdiction ”) ; Texas A&M Univ. Sys

. v. Koseoglu , 233 S.W.3d 835, 840 (Tex. 2007) ( “But Koseoglu ’ s pleading defects cannot be cured, and he has made no suggestion as to how to cure the jurisdictional defect .”)

.6 _____________________ _____________________ Melissa Goodwin , Justice Before Justices Goodwin, Triana , and Kelly Filed: January 28, 2022