In FKM P'ship, Ltd. v. Board of Regents of the Univ. of Houston Sys., 255 S.W.3d 619 (Tex. 2008), the condemning authority amended its condemnation petition and reduced its proposed acquisition from 47,008 square feet of land to 1,260 square feet. Id. at 624-25.
The trial court granted the landowner's motion to dismiss which was based on jurisdictional grounds. Id. at 625.
In the motion, the landowner argued the trial court lacked jurisdiction because the condemning authority had not passed a board resolution authorizing the condemnation of the smaller tract and the special commissioners had only considered the value of the larger tract. Id. at 625.
In its order granting the motion, the trial court stated that the landowner was entitled to recover:
(1) all fees and expenses under section 21.019(c); and (2) damages for temporary possession under section 21.044. Id. The trial court set a jury trial on the issue of the fees, expenses, and damages to be awarded. Id.
Based on the jury's findings with regard to attorney's fees, the trial court awarded the landowner $495,642.05 in attorney's fees for preparation and trial and $150,000 in attorney's fees for appeal. Id.
The court of appeals reversed, holding the trial court erred in dismissing the suit for lack of jurisdiction and remanded the cause for a determination of the fees and expenses the landowner incurred in relation to the larger tract which was no longer being condemned. Id.
Although the Texas Supreme Court held that the trial court erred in dismissing the proceeding for lack of jurisdiction because the condemning authority had the right to amend its pleading, the court also held that the amended petition effected a voluntary dismissal of the claim for the larger tract, entitling the landowner to attorney's fees under section 21.019(c). Id. at 625-37.
The Texas Supreme Court further held, "By the plain language of the statute, a landowner is not entitled to recover fees and expenses, such as appellate fees incurred after the dismissal hearing." Id. at 637.
The case was remanded to the trial court for further proceedings, and the court noted, "The proceedings following remand should be consistent with this opinion." Id. at 638.