law-TTCA-joint-enterprise | alter ego theory | respondeat superior |
JOINT ENTERPRISE CLAIM
The essential elements of a joint enterprise, which interrelate, require (1) an agreement, express or implied,
among the group members; (2) a common purpose to be carried out by the group; (3) a “community of
pecuniary interest" in that common purpose, among the members; and (4) an equal right to a voice in the
direction of the enterprise, giving rise to an equal right of control over the enterprise or project formed to carry
out that purpose. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 526-28 (Tex. 2002); Shoemaker v. Estate of
Whistler, 513 S.W.2d 10, 16B17 (Tex. 1974). Thus, the joint-enterprise elements must exist with respect to the
same purpose and enterprise. St. Joseph Hosp., 94 S.W.3d at 529.
Seureau v. Exxon Mobil Corp (Tex.App.- Houston [14th Dist.] Oct. 16, 2008)(Brown)
This principle takes on added significance in a case in which the members of the claimed joint enterprise have a
more complicated, ongoing relationship. See id. In such a case, the evidence may demonstrate numerous
agreements arising from an assortment of common purposes, thus leading to “a number of possible projects or
'enterprises' devoted to carrying them out." Id.
D. Joint Enterprise
Alternatively, Father contends that the Port's governmental immunity is waived because, under the theory of
joint enterprise, the Port should be held responsible for ExxonMobil's alleged wrongdoing. Generally, the
theory of joint enterprise imputes liability to one who did not do wrong, but who is so closely connected to an
active wrongdoer as to justify the imposition of vicarious liability. See Esquivel v. Murray Guard, Inc., 992 S.W.
2d 536, 541 (Tex. App.- Houston [14th Dist.] 1999, pet. denied). Father contends that the Texas Supreme
Court has recognized joint enterprise as an independent basis for waiver of governmental immunity, citing
Texas Department of Transportation v. Able, 35 S.W.3d 608 (Tex. 2000). We disagree with this expansive
reading of Able.[9]
Able arose from a personal-injury lawsuit filed by the surviving relatives and estate of Margaret Able, who was
killed when her automobile was struck head-on by a vehicle driving the wrong direction in the same HOV lane.
Id. at 610. The plaintiffs sued the Texas Department of Transportation (“TxDOT") and the Houston
Metropolitan Transit Authority (“Metro"), among others, for negligence and gross negligence. See id. The jury
found Metro - but not TxDOT - negligent, and likewise found that TxDOT had entered into a joint enterprise with
Metro. See id. TxDOT appealed, arguing that sovereign immunity had not been waived. See id. at 610-11.
However, the Legislature had provided for limited waiver of sovereign 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 Ann. §101.021
(2) (Vernon 2005). Because the Legislature had expressly consented to a personal-injury suit against a
governmental entity, the theory of joint enterprise would prevent TxDOT from escaping liability:
Here the trial court found a waiver of sovereign immunity because of the jury's finding that there was a joint
enterprise. Because the jury found that TxDOT was not individually negligent for a premises defect, TxDOT
can only be liable if the joint enterprise finding brings the liability within the waiver of sovereign immunity
language in the Tort Claims Act. Section 101.021(2) waives liability for a governmental unit if “the
governmental unit would, were it a private person, be liable to the claimant according to Texas law." We have
stated in the context of private parties that “the theory of joint enterprise is to make each party thereto the
agent of the other and thereby to hold each responsible for the negligent act of the other." If there is a joint
enterprise here between Metro and TxDOT, and if TxDOT would have been liable for Metro's negligence had
TxDOT been a private person, then we must conclude that the State has waived its immunity and that TxDOT is
liable under the plain meaning of section 101.021(2).
Able, 35 S.W.3d at 613 (citations omitted) (emphasis added). Thus, the Able court utilized joint enterprise not
as an independent basis for waiver but, rather, to “bring the liability within" the waiver provisions of the Tort
Claims Act. See id. This result comports with the well-known principle that the Legislature - through statute or
resolution - waives immunity from suit, and not the courts through the application of common-law theories. See
IT-Davy, 74 S.W.3d at 854.
Unlike in Able, the Legislature has not waived the Port's governmental immunity from suit. Able involved
statutory waiver under the Tort Claims Act, but the Seureaus concede that their fraud and contract claims fall
outside of the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (waiving immunity for property
damage, personal injury, and death under certain conditions); City of Fort Worth v. Patusek Indus., Inc., 48 S.W.
3d 366, 372 (Tex. App.- Fort Worth 2001, no pet.) (holding that Legislature did not waive immunity for fraud
and contract claims). Nor has the Legislature elsewhere waived the Port's immunity against the Seureaus'
claims. As is discussed above, the contract claim does not fall within the auspices of the waiver provisions of
the Local Government Code. See Tex. Loc. Gov't Code Ann. § 271.151, et seq.
Seureau v. Exxon Mobil Corp (Tex.App.- Houston [14th Dist.] Oct. 16, 2008)(Brown)
Although the Legislature has provided for an administrative remedy for certain breach-of-contract cases, the
statutory provisions would not apply to the Letter Agreement, which was executed before August 30, 1999. See
IT-Davy, 74 S.W.3d at 856.[10] Finally, the Legislature has not waived immunity with respect to the intentional
tort of fraud.[11] See Patusek Indus., 48 S.W.3d at 372; Ethio Express Shuttle Serv., Inc. v. City of Houston,
164 S.W.3d 751, 757-58 (Tex. App.- Houston [14th Dist.] 2005, no pet.); City of Houston v. Petroleum Traders
Corp., 261 S.W.3d 350, 361 (Tex. App.- Houston [14th Dist.] 2008, rule 53.7(f) motion granted). Accordingly,
we hold that, absent legislative consent to suit, the common-law theory of joint enterprise, by itself, does not
waive a governmental entity's immunity from suit. See Able, 35 S.W.3d at 613.
Moreover, as is discussed below, we hold that the evidence fails to demonstrate a joint enterprise by the Port
and ExxonMobil to acquire the land subject to the 1966 Letter Agreement.
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