Supreme Court again favors the State in an eminent domain dispute

Award of attorney's fees in favor of landowner reversed in opinion by Justice Phil Johnson. Justice O'Neill, writing separately, would have remanded case to trial court to consider imposing sanctions on the TxDOT for improper conduct in the botched condemnation proceeding that cost landowner an arm and a leg in legal fees.

State of Texas v. Brown,
No. 05-0236 (Tex. Aug. 29, 2008)(Johnson) ("[W]e grant the State’s petition for review. Without hearing oral argument, we reverse the court of appeals’ judgment and render judgment that Brown take nothing on his claim for attorney’s fees and expenses.")

THE STATE OF TEXAS v. J. GRADY BROWN, JR.; from Denton County; 2nd district
(02-04-00035-CV, 158 SW3d 68, 01-27-05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Willett joined.

Justice O'Neill delivered an opinion concurring in part and dissenting in part:

I agree fully with the Court’s conclusion that Property Code sections 21.019 and 21.0195 do not authorize the award of all fees and expenses under these circumstances. I dissent only because I would remand the case, rather than render judgment, so that the trial court may consider imposing any sanctions available under the Texas Rules of Civil Procedure. See, e.g., Tex. R. Civ. P. 13 (authorizing sanctions when a pleading is groundless or not brought in good faith); Tex. R. Civ. P. 70 (permitting a trial court to require a party whose amended or supplemental pleading surprises and prejudices another party to pay the additional costs and expenses incurred by the surprised party as a result of the surprise); Tex. R. Civ. P. 215 (providing for sanctions when a party abuses or fails to comply with discovery proceedings and requests).

As the Court notes, we recently held that such sanctions against a condemning authority are available because Property Code section 21.018(b) stipulates that condemnation trials are to be conducted in the same manner as any other civil trial. PR Invs. & Specialty Retailers, Inc. v. Texas, 251 S.W.3d 472, 480 (Tex. 2008).

As we noted in PR Investments, appropriate sanctions under the Rules of Civil Procedure may not constitute the entirety of the fees and costs; for example, perhaps only the costs associated with the untimeliness of the amendment to the petition are available here. Because PR Investments was decided after the trial court’s decision, in the interests of justice and fairness, I would remand to permit the trial court to consider sanctions under the Rules of Civil Procedure in light of PR Investments.