*1 proceeding) (mem.op.), involved three and seeking
mothers return of thirteen their
children. record reflects that ten of children are the other under 13 and
three, 13, 16, girls, all are 17. The appeals reached the same decision
in cases. For explain both we reasons in today Department Family In re Services, (Tex.
Protective
2008) curiam), (per peti the Department’s
tion is denied. O’NEILL, JOHNSON,
Justice Justice Justice in part WILLETT concur explained
dissent for the reasons
Justice O’NEILL’s separate opinion No.
08-0391. PARTNERSHIP, LTD.,
FKM A Texas Petitioner, Partnership,
Limited
BOARD OF REGENTS OF
UNIVERSITY OF HOUSTON
SYSTEM, Respondent.
No. 05-0661.
Supreme Court of Texas.
Argued March 2007.
Decided June
erty so as to great condemned is be original of the effect functional dismissal proceeding. I. Factual Procedural Background Montague, Billy H. Dyer, Dixon Coe Samora, L.L.P., Elkins, Gwen Partnership, J. Vinson FKM Ltd. owns 1.0792 feet) Houston, Ltd., 47,008 FKM A Partnership, (approximately square acres Partnership. Texas Limited property along edge the northeastern campus in Har- University of Houston McBee, Barry Ross Edward D. Bur- tract). (the This County rough- ris larger bach, Cruz, Rafael Edward Lynn Danica triangular Road for ly tract abuts Calhoun Milios, General, of the Attorney Office one feet on side and approximately 252 Monson, Kristofer S. Assistant Solicitor In other. Highway State 35 on the Janu- Wendlandt, General, Cavitt David S. Mor- ary University buy offered to ales, Texas, Attorney Office of General tract, FKM declined to sell. Gen., Abbott, Sullivan, Greg Atty. Kent C. Regents1 University’s Board of then Austin, Gen., Atty. First Asst. for Board of met and condemnation of the approved Regents Sys- of Houston February larger tract. In the Uni- tem. petition, versity a condemnation set- filed Dallas, Ken Kenneth A. Wright, Wright, out intended “to ting property’s use Horace H. Amicus Curiae Elam. expand campus *6 PROp.Code System.” See Houston Tex. delivered opinion Justice JOHNSON the 21.014, § 21.012.2 to section the Pursuant Court, of the in which Chief Justice special trial commissioners appointed JEFFERSON, HECHT, Justice Justice $275,000. damages who at assessed FKM’s O’NEILL, WAINWRIGHT, Justice The this sum into the University deposited BRISTER, MEDINA, Justice Justice and possession court’s of the registry and took joined. Justice GREEN PROp.Code § property. 21.021. See FKM the timely objected to commission- JOHNSON, PHIL Justice. requested jury ers’ a de novo findings and case, In this we consider whether a trial PROp.Code § trial. See 21.018. Tex jurisdiction court retains over a condemna- authority peti- tion action after the amended condemning Beginning with its second University the amends its to reduce the amount tion filed in April by ninety- proposed acquisi- taken reduced its property to be over the size of By the percent. pleadings, seven We hold it does. We tion. its amended Uni- larger condemning authority versity strip also the is sought hold that the expenses length property liable for fees and the tract that certain to ran the and larger line tract the Cal- prop- landowner because reduction between the Regents University’s legisla- Property Board of 2. Further references to Texas Code The tively by to take Uni- provisions generally authorized for the will be reference to by versity's proceedings eminent use domain section and number. party in and is the named this case. Tex clarity, § 111.38. For we will re- Educ.Code University condemning fer as the au- requires thority the context otherwise. unless right-of-way ages jury houn Road set out that for trial. In its order and written dismiss, granting would retain an easement across the FKM’s motion to FKM mo- driveway granting tract for to court stated that it was access Calhoun Road. tract, tion, University’s peti- condemnation being That five feet wide and ap- (the dismissed, and FKM tion and case were proximately 252 feet smaller long (1) all its tract), 1,260 was entitled to recover fees contained square about feet (2) 21.019(c), expenses under section out of the tract. When Univer- damages temporary possession for under sity its petition, filed second amended trial, Following jury section 21.044. possession surrendered to FKM of all the (1) determined FKM’s reasonable and nec- larger tract except for the five-foot-wide essary appraisal fees and were strip. University’s plead- The (2) $67,031.71; necessary reasonable and ings (collectively, petition) the amended attorneys prepara- fees and for plans for the by clarified smaller tract $495,642.05 tion and trial were setting University’s out that the intended (3) $150,000; appeal damages were expand use of the smaller tract was “to resulting University’s possession from the campus of the University Sys- of Houston to the time of trial were tem; specifically, to allow for the conver- $323,026. verdict, jury’s Based on the right-of-way, sion of the Calhoun Road trial court entered in favor of judgment part, parking faculty” students and jury FKM for the amounts found improvements and that to the tract would together with FKM’s court costs for a total be to landscaping. limited $1,048,881.40, judgment subject to re- responded FKM University’s appellate duction for University fees if the change in plans by filing styled pleadings appeal. did not court stated “Defendant’s Plea to the Jurisdiction and judgment jurisdiction that it did not have Motion to (collectively, Dismiss” the mo- proceed under the Fourth Amended dismiss). dismiss, tion to In its motion to Petition and the not have did (1) alleged FKM had legal right acquire tract. smaller (2) public necessity no taking, for the failed The court dismissed *7 to comply statutory prerequisites, with and case. (3) negotiate good failed to faith. The appeals The court of reversed. It held University filed motions for summary dismissing that the trial court erred in judgment. University’s suit and the case remanded dismiss, At hearing on its motion to including for proceedings, further determi- argued FKM the entire case should be nation of fees and incurred in jurisdictional dismissed on grounds be- ninety-seven percent relation to the (1) cause no Board resolution authorized larger longer tract no con- sought to be (2) tract, condemnation of the smaller demned. 178 9. parties S.W.3d Both trial ordinary “appellate” court lacked its petitions filed for review. jurisdiction in proceedings special because the commissioners had II. Discussion only considered the value A. Dismissal of the Lawsuit (3) tract, University, by belatedly tract, seeking only to condemn the small argues University, FKM that the jurisdiction. had divested the trial court of amending pleadings its to reduce the condemn, granted The trial court FKM’s motion and amount property sought it fees, expenses, compensation set the issues and dam- introduced new issues into 626 to the commissioners. We presented the trial sues thereby destroyed
the suit and
objections
explained
party
that once a
files
jurisdiction. FKM also
“appellate”
court’s
findings and seeks
to the commissioners’
properly
the trial court
dis-
argues that
court, pursuant
in the trial
University
de novo review
the suit because the
missed
21.018(b), the case is to be tried
necessity
to section
any public
lacked
for condemn-
civil cases.
in the same manner as other
only
smaller tract and because the
ing
allowing amendments to
damages as That
includes
negotiate
failed to
held that the trial court’s
agree
pleadings.
with the
We
to the smaller tract. We
is not limited to the
grounds
none of the
de novo
appeals
court of
pre-
facts and issues
compensation
exact
warranted dismissal.
at
to the commissioners.
Id.
sented
Introducing New
1. Dismissal
earlier in Texas
In Nelson and
Compensation
Issues
Cole,
v.
158 Tex.
Light
Power &
Co.
Nelson,
contends that State v.
160
FKM
(1958),
recognized
we
524
313 S.W.2d
(1960),
limits the
Tex.
334 S.W.2d
can,
after the administrative
condemnor
jurisdiction in
appellate
con-
trial court’s
phase, reduce the amount
is-
compensation
cases to those
demnation
change
that such a
does not
seeks and
special
commission-
sues raised before
jurisdiction.
Nel
the trial court
divest
It asserts that when the
ers.
790; Cole,
son,
S.W.2d at
S.W.2d
drastically
prop-
the amount of
so
reduced
Janes,
529-31;
Thompson
see also
at
materially differ-
erty
it introduced
sought,
495, 251 S.W.2d
954-55
151 Tex.
issues—the value
compensation
ent
(1952) (“[T]he condemning agency is ac
injury
remaining
smaller tract and
portion
as to a
right
to dismiss
corded
special
those the
commission-
tract —than
purpose
that its
of the land when it decides
PROp.Code
ers
considered.
See
with less land than
may
accomplished
be
21.041,
§§
21.042.
contends
initially sought.”). FKM
was
recently rejected
arguments
such an amend
only
those
that these cases
allow
State,
preju
will not be
PR Investments v.
251 S.W.3d
ment if the landowner
(2008),
in-
Nelson and Cole
although
agree
that case did not
diced. We
that amend
to the effect
language
in the area of
contain
change
volve a
prejudice
not
case,
is allowed if it will
In
reviewed Nelson ment
taken.3
we
think, however,
landowner.4 We do
statutory
framework
condem-
prejudice
such
FKM established
rejected the view that
proceedings
nation
University from
preclude
consider
the would
that the trial court can
First, a landown-
matters, evidence,
amending
pleadings.
compensation
is-
*8
right to dis-
doubtedly
has the
a condemnor
involve a
3. We note that this case does not
authority
condemning
may
without
be done
situation in which the
... when this
miss
property
attempts
the amount of
to increase
A condemnor
injury
the landowner....
pleadings
by amending its
after the
taken
than
required to take more land
should not be
hearing.
express no
commissioners’
unnecessary easement
it needs
secure
[to]
opinion
a
on such situation.
spe-
prior
of the
rights,
to confirmation
judgment
or other
award
cial commissioners'
("Where
Nelson,
627 (Tex.Civ.App.-Houston ordinarily will not harmed if a con- er be S.W.2d n.r.e.) fees, demning authority (“Attorneys decides to take less writ refd gets keep since the landowner land in and other experts costs of with, begin land it did not want to sell to merely for trial are incidental preparation fully and the landowner is to be entitled incurring of them is expenses.... compensated damages suffered as a require as to the condem- prejudice such property eventually result of whatever is it it can do nor to take decides Except strip taken.5 for a small of land without.”). condemn, now seeks to disagree with FKM that it was We also gets keep FKM it refused prejudiced because the amended University. regard to sell the In to ex- “deprived] statutorily-man- FKM of the penses litigating FKM incurred in because hearing special dated before the commis- University originally sought take of compensation.” sioners on the issues tract, larger may those FKM recover necessarily rejects PR this Investments for, Legislature provided has holding change our that a argument, recovery as we discuss below.6 Even if compensation special in facts after the unavailable, however, expenses is FKM generally commissioners’ award does not persuade does not us that a condemnor jurisdiction destroy trial court over
may not amend its petition to seek a
condemnation case. FKM
properly-filed
smaller tract. Such a rule would restrict
separately argues that
if
trial
even
petitions
use
in condemna-
required
court is not
to dismiss the case
tion proceedings,
contrary to section
21.018(b)’s
issues,
in
change
compensation
due to
specification
pro-
that suit is to
“in the
discretion to
ceed
same manner as other civil
should have
dismiss. We
Investments,
causes.” As we noted in PR
expressly rejected
argument
this
in PR
a trial
Investments,
“under
conducted ‘in the same man-
Conservation & (1943)). len, issue, 842 motion See 141 Tex. S.W.2d the should be denied. Thompson, in we held that landown- And at 228. id. if a prejudiced er would be condemnor Here there was evidence before the trial sought amount of land to be reduced the University public the had a ne- court that relinquish part but did not the condemned cessity taking. for the Education Code longer sought no to be condemned. 111.38,specifically applicable to the section present at 955. This case does not S.W.2d University, provides that board “[t]he [of allegation is no a similar situation. There power the of eminent University] the has has University physically here that the use of the acquire [U]ni- domain to for the land, permanently much less changed the necessary for versity any proper land and Further, since injuriously altered it. carrying purposes state-sup- out its as a filed its second amended higher institution of education.” ported possession in FKM has had in FKM claimed that the reason stated property except for the five of the entire February 1998 Board minutes of the strip. foot for the meeting condemnation —that right-of- to obtain a property was needed Lack
2. Dismissal for Highway false way over State 35—was Necessity a Public already University had ob- because the dismiss, In motion to FKM also con- its However, the right-of-way. such tained University did not have a tended that the (1) University offered evidence that necessity taking for the smaller public provided agenda Board for this item also no introduced tract. There was evidence in acquisition tract that the motion, hearing at the on FKM’s but evi- conjunction with two others the same support opposition dence filed in of and acquisition complete area “will summary University’s to the motion (2) areas,” and the Board met campus east judgment was before the court.7 approved acquisition prop- to con The trial court is allowed reasons, including not erty multiple jurisdiction hearing plea duct a on also as right-of-way, jurisdiction lack of or motion to dismiss for Plan, the need to an established Master in a manner similar to how it hears shortage, and campus parking address motion, may con summary judgment University’s for the tract as a need summary judg other sider affidavits and building future site. Dep’t ment-type evidence. See Shoup, Ron the Uni- Miranda, FKM claimed that Parks & 133 S.W.3d Wildlife (Tex.2004). planning and versity’s campus pres- If director the evidence the case for The court then reset the trial court conduct- to dismiss. 7. FKM contends that necessity public court ed a "trial” on the issue of 18. The next the week of November carry University failed to and that 20. It be- proceeding occurred on November However, proof burden of on this issue. asking, gan court motions "[w]hat with the granted record shows that the trial court parties hearing today,” will we be trial, without FKM's motion to dismiss before to dis- the court that FKM’s motion advised taking any testimony. to dismiss The motion argued parties miss was before it. The August hearing. at an was discussed motion, granted tak- without which the court stipulated evi- and FKM proceeded ing testimony. months The court University’s sum- dence submitted as to the jury issues of fees with a trial on FKM's later mary judgment motion could also be consid- expenses. ruling on FKM’s motion ered
629 estate, part plan of this “for acquired were stated in a memorandum ties real growth” of the needed, expansion and future the future the was not Uni- so,” very wisely and that University “and higher- offered the affidavit of a versity it tract was that Harris, plan the for the FKM official, ranking Vice Chancellor parking with landscaped “would be authorized Shoup who stated that was not A memo- an entrance there.” potentially University for or the on this speak bind from an associate vice chancellor randum University The submitted matter. further provide that the tract was needed to stated himself, Shoup the of who attest- affidavit “clearly edge” eastern bounded ed that his statement had been misinter- campus. in of preted, that it was made the context develop
an
for FKM to
proposal
earlier
that the
The Board’s determination
Uni-
use,
for
retail
and that based
legiti-
tract for a
versity needed the
knowledge
University’s
on his
a fact issue
university purpose
mate
raised
needs,
acquisition
proper-
of the FKM
regarding FKM’s motion to dismiss.
ty
public necessity
“constituted a
that it
governmental
a statute vests a
Where
provided
University
upon
with land
discretionary authority to con-
agency with
buildings,
which to construct needed
was
we
held that
property,
demn
have
busy
needed to enable the closure of a
necessity
agency’s
public
of
determination
i.e.,
Road,
thoroughfare,
and en-
Calhoun
correct,
proof by
presumptively
is
absent
University
abled the
to establish an archi-
agency’s
fraud or
the landowner
tecturally
aesthetically
desirable east-
condemning authority
that the
acted
proof
campus.”8
ern border to its
further
arbitrarily
capriciously.
or
See Hous.
Shoup
note that
memorandum was
City
Higginbotham,
Auth.
Dallas v.
of
of
equivocal, stating
point
(1940)
at one
135 Tex.
143 S.W.2d
88
University
proper-
(“The
did not need the FKM
law is well
in this state
established
ty,
qualifying
by
but then
that statement
power
that where the
of eminent domain is
stating
say
is
it
“[t]his
could not be granted,
by
a determination
the condem-
Shoup
utilized.”
deposition
necessity
acquiring
testified
his
nor of the
for
certain
ongoing
that the FKM tract was
of an
property is conclusive
the absence
fraud.”)9
expansion
challenge
eastward
FKM does not
this
project,
proper-
Agency
University
8. FKM claims that under a
In-
relied and offered
on which the
necessity.
public
evidence
Agreement
University
already
teraction
right-of-way
had a
over Calhoun Road and
City Wylie,
34 S.W.2d
See also Stone
closed,
already
that the road had
been
while
(Tex.
App.1931, judgm’t
Comm’n
University
claims and offered evidence
(holding
city
adopted)
selected a
once
that condemnation of the FKM tract was
sewage plant,
right
"the
of a citizen
site for
planned
needed to convert Calhoun Road to
question
judgment
the soundness of the
public
University.
uses
existing
governing body
city
of a
as to the
that,
claims
under section 51.904 of the Edu-
necessity
locating
plant
partic
such a
at a
Code,
though
cation
even
Calhoun Road is
foreclosed,
place
ular
and the court is with
end,
closed at one
must still
power
except
out
to review the same
where it
along
condemn all the land
that road
before
appear
be made to
that such officials acted
university
park-
can convert it to a
street with
arbitrarily
capriciously”); Whittington v.
ing, in accordance with its Master Plan. Evi-
Austin,
(Tex.App.
City
S.W.3d
summary judgment
dence submitted with the
denied) ("Once
pre
pet.
Austin
arises,
motion and motion to dismiss does not estab-
necessity
sumption
the defendant
is correct
Even as-
necessity only by
lish who
on this issue.
fact of
estab
can contest the
correct, however,
suming
closing
lishing
that FKM is
as fraud
affirmative defenses such
use,
(that,
public
just
contrary
Road was
one of
reasons
to the ostensible
Calhoun
several
*11
or,
standard. FKM’s motion to dismiss and whole
if suit
as in
tract
has been filed
case,
evidence
the trial
before
connec-
this
amend its condemnation
tion with that motion were not conclusive to
There is no
seek a smaller tract.
indi-
proof
University’s
that the
determination
in this
cation
record that
the Board has
fraudulent,
public necessity
of
was
University
arbi-
ever disavowed the actions of
trary, or capricious.
attorneys handling
officers and
the con-
University’s
proceeding.
demnation
argues
FKM
that
the suit was
counsel
trial court at
represented to the
properly
dismissed because
hearing on the motion to dismiss
any proof
“failed to offer
that its governing
testimony
that at
court would “hear
public
board had declared a
for
necessity
point
Regents
some
the Board of
made
taking
of the five-foot
of
strip
wide
they
determination that
couldn’t afford the
property sought.”
agree with
FKM
of
seeking
risk
the whole
because
[of
tract]
that Education Code section 111.38 re
rapidly increasing
put
on the
numbers
quires the Board to authorize condemna
Board
property” by FKM. The
resolution
of property,
only
tion
since section 111.38
authorizing
of the
grants
power
eminent domain to the
tract,
de-
together with the other evidence
points
Board itself.10 FKM
out
at the
above,
that condemna-
scribed
is evidence
dismiss
hearing on its motion to
the Uni
property
tion of the
portion
smaller
versity’s counsel conceded that the board
carrying
for
“necessary
proper
was
pass
separate
specifi
did not
resolution
out
purposes
cally authorizing condemnation of the
state-supported insti-
System
Houston
as a
agree
smaller
tract. We do not
with
section
higher
tution of
under
education”
FKM, however,
separate
that a
Board res
And we
111.38 of the Education Code.
necessary every
olution is
time a condem-
“
noted,
public,
have
the use is
‘[w]hen
acquire
nor
it
decides
less
than
necessity
expediency
appropriating
or
originally sought. FKM does not refer
any particular
subject
is not a
statutory
procedural require
ence a
or
”
judicial cognizance.’ Higginbotham, 143
position,
ment for its
and a resolution au
(quoting Imperial Irrigation
S.W.2d at 89
thorizing condemnation of a whole tract of
v. Jayne,
Co.
104 Tex.
138 S.W.
necessarily
land
authorizes condemnation
(1911));
see also Boom Co. v. Patter-
separate parts
comprise
(1878).
son,
98 U.S.
B. Award of FKM’s motion to dismiss asserted appeals, The court of that the introduced new com referencing section amendment, generally, pensation 21.019 reversed the trial court’s issues its lacked property, for the expenses public necessity award to FKM of fees and and a smaller tract. negotiate remanded for determination of fees and failed for the ninety-seven the motion without per- granted related to the The trial court have set specifying grounds. cent tract As we out larger above, however, grounds urged from the suit. FKM contends none dismissed concluding the properly the fees were a valid basis for Uni trial awarded right to including ap- versity both did not have the condemn expenses, trial argues It or smaller tract. The pellate attorney’s fees. that the either 21.019(c) plain language requires University agrees of section pleading’s that the not its judgment right an order or effect and title its na- denying determines ture, authority pleading, argues, the effect condemn the be- must to dismiss the proceeding, fees and be entire fore can recovered be opposed only part original by a owner. FKM does not as- *13 tract. any proper sert basis on which the trial court’s order dismissal could have de- 21.019(b) applicable Section is to dis- University’s right the the
nied
to condemn
requested
au-
by
condemning
missals
the
not
property. Accordingly, FKM could
re-
thority.
provides:
It
expenses
cover fees and
under section
A
grants
hears and
a motion
21.019(c).
a
proceeding
to dismiss
condemnation
a by
made
condemnor under Subsection
21.019(b)
Expenses
Under Section
(a)
prop-
make an allowance to the
shall
necessary
alternative,
erty
for reasonable and
In the
owner
FKM contends that
attorneys,
pho-
and
appraisers,
fees for
although
University
plead-
the
labeled
and for the other
tographers
expenses
as
ings
petitions
amended
instead of mo-
by
to the
incurred
the
owner
dismiss,
to
in
pleadings
tions
the
were
hearing.
date
the
and effect
as motions
substance
the same
dismiss, at
ninety-seven percent
to
least to
21.019(a)
party
provides
Section
that “[a]
tract, which in any
event entitles
may
petition
that files
to
expenses.
FKM fees and
FKM bases
the
proceedings,
move to
dismiss
on a
two
its claim
combination of
factors.
hearing
conduct a
on the mo-
court shall
first is the
in size
added).
The
drastic difference
(emphasis
tion.”
original
tract of land and the
between
question
address the
We first
sought
tract
smaller
to be condemned
must file a formal
of whether
landowner
original
petition
the amended
tract
—the
before
grants
motion that the trial court
47,008 square
contained
feet whereas
under
right
fees and
arises
1,260
tract
square
smaller
contained
feet.
party
this
If a
to a condemna
subsection.
University
is
alleged
The second
that the
timely
proper
tion
files a
to expand
intended
use the smaller tract
objection to
special
commissioners’
University
specifically
campus,
award,
case shall
“in
same
be tried
(1)
pleaded
improvements
other civil
manner as
causes.”
Peor
(2)
landscaping,
the tract would be
an
21.018(b).
general
§
In civil causes
Code
across the
appurtenant access easement
not
ly, filing
an amended
that does
along
frontage
tract and
FKM’s
would be
non-
effectively
of action
include a cause
driveway
to FKM for
access to
reserved
voluntarily
or
dismisses the omitted
suits
would run
Calhoun Road. The easement
filed.
pleading
claims
of the time the
is
as
with FKM’s land.
non-
necessary
No
is
to effect the
hearing
plain
lan-
if the
applies
relies on the
suit. Even
nonsuit
case,
voluntary dis
of the statute
an award of
the nonsuit or
guage
to refute
entire
or
ways.
in two
It asserts missal is effective when notice is filed
fees
21.019(b)
facially
in
of an
inapplica-
open
Entry
is
announced
court.
that section
granting
moved to
order
the nonsuit is ministerial.
ble because
never
and the See
Tex. Med. Branch at Galves
dismiss
condemnation action
Univ. of
Shultz,
hearing
court did not
on or
ton v. Estate
Blackmon ex rel.
trial
have
(Tex.2006) (“[A]
98,100
nonsuit
grant
although
motion to dismiss. And
195 S.W.3d
extinguishes
controversy
from
a case
Tex Gov’t Code
enacting
statute.
311.021(3).
§
is filed’
oral
‘the
the motion
or an
moment
court.”).
in
rules
open
motion is made
Our
legislative
histo-
guidance
We find no
provide
pleadings and their
that amended
intended sec-
ry
Legislature
as to
how
place
prior
pleadings.
contents take the
21.018(b)
to interact
and 21.019
tions
So,
P. 65.
causes of
not
action
Tex.R.
Civ.
Early eminent
question.
regard
this
pleadings
are effec
contained
amended
specified
condemna-
domain statutes
tively
at the time
dismissed
conducted
were
tion trials were to be
filed,
possible
pleading
except
cir
approved
Act
civil
See
Feb.
other
causes.
present
here. See
cumstances
Ortiz
2,
R.S.,
§
ch.
Leg.,
8th
(Tex.
Collins,
421 n. 4
203 S.W.3d
n
61-62,
reprinted in
*14
Tex. Gen. Laws
2006, no
App.-Houston
pet.)
Dist.]
[14th
Gammel,
Texas
H.P.N.
The Laws
1822-
of
(amended
specifically
pleading
reserved
(Austin,
at
1423-24
Gammel
or
right
appeal
to re-assert
trial court
1898) (“if
be
party
Book
either
dissat-
Co.
dismissing
order
causes
action and
with
of said Commis-
isfied
the decision
were, therefore,
which
of action
causes
sioners,
the
they
right
he
shall have
to
or
pleaded
pleading).
in the amended
Court,
in
as in
petition
file a
the District
action,
cases,
ordinary
reciting the cause
To
the
decide
issue we must
such
agree,
and the failure to
and
suit shall
statutory language
facially
reconcile
that
ordinary
proceed
judgment
to
as
dismiss,
hearing
allows motion and
to
see
21.018(b)
cases.”).
includes the
Section
(“[A] party
section
that files a con
21.019
Thus,
language.
substance of that
we seek
may move to
demnation
dismiss.”
words
legislative
plain
in the
intent
added)),
(emphasis
with
that re
language
statutory provisions,
pre-
mindfiil that we
sults
being
in a condemnor
allowed to dis
have
sume the
to
intended
Legislature
by amending pleadings
miss
its claim
result, and not an
just and reasonable
Prop.
cases,
occurs in other civil
see Tex.
one.
absurd
21.018(b) (“[T]he
§
court
shall cite
Code
21.018(b)
In
party
try
construing
adverse
and
in the
sections
case
same
civil
to us
(empha
together,
manner as other
cases.”
and 21.019
it seems
added)).
21.019,
statutes,
sis
section
construing
Legislature
In
we
intended
with
give
language
to
a condemnor to file a
Legisla
allowing
ascertain and
effect
motion,
expressed by
language
ture’s intent as
to assure notice and a
dismissal
Shumake,
hearing
entry
See
199
of an order dismiss
statute.
State
before
(Tex.2006).
ing
proceeding.
That is a
S.W.3d
We use defi
by
Legislature
just
example,
nitions
and
and
result. For
prescribed
reasonable
any
particular
if a
desires to dismiss the en
meaning
technical or
condemnor
otherwise,
acquired,
proceeding,
words
we
tire condemnation
land
have
hearing to
according
right
words
to owner has
to a
seek
construe the statute’s
statutorily
expenses.
plain
their
common
unless a
allowed fees and
On
meaning
hand,
other
a condemnor that decides
apparent
from the
contrary intention
proceeding has the
context,
unless such a
leads
to dismiss the entire
or
construction
to a
on the amount of fees
right
hearing
to
See absurd results.
Gov’t Code
311.011;
might
be assessed
§
Tex. Sw.
Ctr. v.
Univ.
Med.
(Tex.
Loutzenhiser,
it.
also seems to us that
against
But it
140 S.W.3d
2004).
a hearing
notice and
Legislature
having provided
in
presume the
circumstances,
Legislature
by under these
just
tended a
and reasonable result
did not
to
intend
override the directive of
the amended pleadings effected a volun
21.018(b),
section
tary
that condemnation
University’s
cases
dismissal of the
claim as
should be tried as other
civil cases—in-
of the larger tract not included
believe,
cluding,
procedural
we
aspect
pleading.
the amended
See Webb v.
Jorns,
(Tex.1972).
of voluntarily
nonsuiting claims so
488 S.W.2d
long as
prejudice
nonsuit does not
par-
other
21.019(b)
Whether section
al
ties. The two sections are compatible
lows recovery of fees
should
Moreover,
when so viewed.
construing
turn
aon
of events
common-sense view
the statutory framework
deprive
con-
formalistic,
rather than an excessively
me
right
demnors the
by
nonsuit a claim
approach
chanical
looking
par
filing a
notice
nonsuit or an amended
ticular
words
the label on the condem-
pleading could lead to an absurd result.
pleading
pleading
nor’s
or in the
itself.
For example, could
trial
deny
a This
approach
proce
is the
embodied in
motion
a condemning authority to dis- dures for
civil
trying
generally.
cases
miss the proceeding,
thereby require
Texas Rule of
Procedure 71 provides
Civil
the authority to take property it did not
a party
mistakenly desig
“[w]hen
has
want
Clearly
take?
it could not.
any
court,
nated
plea
pleading,
if
*15
(“[A]n
Thompson,
Thus, the University could have
right
the landowner’s
to fees and
dismissed all or
of
claim by
out,
its
amend
University points
arises. As the
ing
petition, subject
its
right
FKM’s
“par
statute does not make reference to a
dismissal,”
claim fees
expenses pursuant
to stat
tial
it
not
likewise does
162;
Cole,
ute. Tex.R.
P.
specifically provide
see
313
the condemnor
Civ.
Further,
S.W.2d at 530.
it is clear the must move to dismiss the condemnation
University intended to omit
entirety
its
or use similar
tract from its amended pleadings and con
language.
simply
all-inclusive
It
makes
demn
the smaller
Accordingly,
tract.
reference to dismissal of “a condemnation
576,
R.S.,
6,§
ch.
Legislature’s
Leg.,
68th
We think the
proceeding.”
3729,
providing
flexible to encom- Gen. Laws
language
sufficiently
expenses “[w]here
factual circumstances
recover
pass the uncommon
landowner shall
dismiss,
in this case.11
...
abandon
presented
plaintiff
desires
jury ver
or refuse the
proceedings,
21.019(b) provides
for
Section
dict”).
hand,
v.
other
in State
On the
immunity,
point
sovereign
waiver
(Tex.App.
were
and instructed the trial
Justice
opinion
WILLETT filed an
court to determine
damages
those
on re-
concurring in part and dissenting
part.
mand.
III. Conclusion shall conduct a hearing on the motion.”3 (b) Subsection reads: We affirm the court of appeals’ judg- reversing ment judgment of the trial A grants court that hears motion court and remanding the case for further to dismiss a proceedings. proceedings following made a condemnor under Subsection See, Stores, Inc., e.g., Holland v. Wal-Mart The Court infers waiver from Section (Tex. 1999). S.W.3d 21.019(b), agree and while I the statute is clear, clarity contrary cuts in a direction waivers, immunity 2. As things two are axi- least, holding. very the Court’s At the Section (1) they omatic: unambigu- must be clear and *19 21.019(b) upon is a slender reed which to ous, 311.034; § City Tookev. Tex. Gov’t Code Legislature immunity conclude the waived be- Mexia, 2, 197 S.W.3d 329 n. 333 yond all doubt. (Tex.2006); (2) legisla- uncertainties over tive consent must be resolved in favor of Prop.Code 21.019(a). § 3. Tex. retaining immunity, Hosp. Wichita Falls State Taylor, (Tex.2003). 106 S.W.3d 697
639 events, mandatory a court (a) triggering prop- an to the these shall make allowance and ex- authority no to award fees has necessary erty for reasonable and owner penses. attorneys, pho- appraisers, fees and for the other
tographers can Section 21.019 be construed Nor by the owner to the property incurred of the “partial a dismissal” encompassing (a) hearing.4 a mo- date covers proceeding. Subsection and Sub- proceedings,” tion “to dismiss the lan- Legislature’s must take the (b) applies grants where the court section judicially we find it and not re- guage as to “motion dismiss condemnation guise statute of con- write the under the (c) Similarly, cov- proceeding.” Subsection struction, imperfect unjust however we “a motion to dismiss ers the statute to be.5 Our confined believe The by landowner. proceeding” filed interpret unambiguous role is to text ac- proceed- of the term “condemnation use terms, cording reading Legisla- to its Chapter 21 throughout the rest ing” enacted, revising them ture’s words as not means the Legislature confirms the entire In from oft- departing as desired.6 our speaks to dismiss- case.8 The statute total plain language, adherence to professed anything provision al and makes no has treated the to clas- Court less. Inspector sic Clouseau moment.7 course, could, of enact a Legislature 21.019(b) requires On its face Section partial that covers dismissals. provision fee things, one happened three not of which so,9 states have done and Section Several this case: 1303(b) the Model Eminent Domain 1. a motion to dismiss filed the con- shifting scope authorizes fee “[i]f Code demning authority, be reduced as to taken is motion, 2. hearing on the In partial of ... a dismissal.”10 the result 3. an order granting motion. instance, code “the provides the model procedural steps None of these occurred: por- court shall award the defendant motion, no no no I hearing, litigation expenses order. would tion of his attributable written, apply scope the statute as to within the and absent 21.019(b). throughout § repeatedly 4. 8. The term used provisions everything Chapter related to 21 Arnim, 21.012, 5. See Simmons v. Tex. filing, § to from initial Prop.Code (1920). venue, 21.013, S.W. special § to the commission- .047, 21.042(a), .0421(a), procedures, §§ ers’ Servs., Mgmt. 6. Alex L.P. v. John- court, 21.018, proce- § Sheshunoff trial son, (Tex.2006). 209 S.W.3d 651-52 governing dure reinstatement of condemna- 21.020, proceedings, § to the rules cover- tion 7. pending litigation, ing possession land 21.021, your dog procedures Clouseau: Does bite? governing § final every §§ Clerk: judgments, Hotel No. 21.061-063. Each [bowing dog] pet Legislature's Clouseau: down Nice reference makes evident the in- doggie, [dog meaning. barks and bites Clouseau on tended the hand] 18-1A-232; thought dog you your § I E.g., Clouseau: said did Alaska R. Civ. Ala.Code 1268.610; 72(i), (k); § not bite! P. Cal.Civ.Proc.Code my dog. § That is . 308. Hotel Clerk: Pa. Cons.Stat Again (United Artists The Pink Panther Strikes 1303(b) 1976), http://youtube.com/watch? available at § 10. Model Eminent Domain Code (1984). v=SXn2QVipK2o. *20 reduction.”11 The model code was
adopted by the National Conference of In re Susan ROBERTS John R. Commissioners on Uniform Laws State Jr., Roberts, Individually and as Next 1984, lawmakers, but Texas while twice Friends of Their Minor Children Ja- substantively amending the fee-shifting Roberts, Roberts, mie Joshua and Ha- then, provisions since have declined au- ley Roberts, Relators. shifting thorize fee in partial-dismissal No. 05-0362. cases.12 Supreme Court Texas.
Chapter 21 of Property Code Legislature’s comprehensive gov rulebook 6, June 2008. erning taking private property for public use. And while I understand the
Court’s concerns about condemnors’ artful fees,
dodging of otherwise-recoverable actions,
statute motives; focuses on it
says says, what it not what the says Court says.
it Landowners recover when the grants a condemnor’s motion dis
missing the entire or deter
mines right the condemnor lacked the
acquire property,13 not when the con-
demnor amends property. take less Legislature specific has defined the
circumstances under which landowner
may recover expenses, fees and and those
circumstances —“a of legislative matter
grace rather than constitutional com
mand” 14—are simply absent this case.
Here, project;
to shrink the it did not dismiss its
petition to the project. abandon 11(B)(2)
I understand that Part opinion eminently
Court’s aims to an work result, upends
fair the balance controlling
lawmakers struck stat-
ute, I respectfully dissent.
21.019,
Id.
§§
11.
13. Tex.
.044.
Prop.Code
1, 1997,
R.S.,
Leg.,
Act
June
12.
75th
ch.
Co.,
202,
United States v. Bodcaw
U.S.
1171,
1.46,
4427,
§
1997 Tex. Gen. Laws
(1979).
99 S.Ct.