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Click here for the full text of this decision FACTS:Appellee PR Investments owns a 23-acre tract of land on the east side of South Main Street in Harris county. Appellee Specialty Retailers Inc. owns a leasehold interest in a portion of the 23-acre tract. The Texas Department of Transportation proposed to convert South Main Street from a four-lane road to Highway 90A, a controlled-access highway six lanes wide with frontage roads. As part of the construction plan, the state of Texas sought to condemn a strip of PR Investments’s property approximately 23 feet, 8 inches wide at the southerly end of the property tapering north to the original right-of-way, a total area of .3407 acres. Both before and after the state filed the original petition, the state discussed potential modifications to the plan for the project to accommodate the concerns expressed by the property owners. Because of the proposed modifications, two plans, the Sparks Plan and the Corder Plan, were before the trial court. Reflecting changes in project development, the state requested permission to amend its condemnation petition. The trial court determined that the amended petition had nothing to do with the change from the Sparks Plan to the Corder Plan and that it simply made a technical correction to the field notes. Therefore, the trial court granted the state’s motion for leave to file its first amended petition. PR Investments then made an oral motion to dismiss for lack of jurisdiction. PR Investments argued that the change by the state from the Sparks Plan to the Corder Plan deprived the trial court of jurisdiction over the trial de novo in the condemnation action. Specialty Retailers joined in PR Investments’ motion. The trial court found that the property owners’ motions to dismiss raised a material issue as to whether the property owners would suffer a compensable, substantial and material impairment of access, under either the Sparks Plan or the Corder Plan. The state asserted that the trial court should try the case based on the Corder Plan, but that if the trial court would not do so, then the state, under protest, would follow the second option the trial court offered. The trial court stated that trial would proceed under the Sparks Plan. The state then moved for a continuance, which the trial court denied. The property owners asserted that, under Rule 13, the trial court should dismiss the condemnation petition and award the property owners all of the attorney’s fees, expenses and costs they had incurred in this case. Finally, the trial court stated that it would be a waste of resources to have two actions � a condemnation action and then an inverse-condemnation action. The court granted the property owners’ motion for Rule 13 sanctions against the state, dismissed the case without prejudice, and stated that it would award the property owners all of their attorney’s fees and expenses. The state appealed. HOLDING:Reversed and remanded for further proceedings. The court states that the main issue in this appeal is the effect of the state’s decision, five days before the date set for the trial de novo in the county court at law, to change the specifics of its planned highway project, without changing the allegations in its pleadings and without changing the property that it sought to condemn. The trial court concluded that it lacked jurisdiction to conduct a trial de novo as to the Corder Plan because the Corder Plan allegedly deprived the property owners of greater rights and imposed greater burdens on the remaining property than the Sparks Plan. The trial court also relied on the fact that the state’s change from the Sparks Plan to the Corder Plan was a failure to strictly comply with the Texas Property Code that deprived the property owners of a meaningful administrative hearing before the commissioners. The court disagrees with the trial court’s conclusions and states that Chapter 21 of the Texas Property Code sets forth the procedures for condemnation proceedings. The court finds that the record in this case shows that the state complied with all of these statutory requirements in both its original and amended petitions. While the court agrees that the state’s amended petition made a technical correction to the property description, it holds that, nonetheless, the amended petition did not change the property to be condemned, and the amended petition was not tied to the state’s decision to return to the Corder Plan. Though the state can elect to limit itself to a specific plan in its condemnation petition, the court holds that the condemnation statute does not require the state to do so. In its judgment, the trial court also dismissed without prejudice the condemnation action and awarded the property owners all of their attorney’s fees and expenses under 21.0195(c) of the Texas Property Code, which allows a trial court to dismiss a condemnation proceeding and award attorney’s fees and expenses to the property owners if the Texas Department of Transportation fails to bring the proceeding properly. But because the court finds that the state complied with the applicable sections of the Texas Property Code, the court holds that the trial court erred in determining that the state failed to bring this proceeding properly and in dismissing the condemnation action and awarding attorney’s fees and expenses. The trial court also dismissed the state’s condemnation proceeding without prejudice and awarded the property owners all of their attorney’s fees and expenses under Rule 13. The court notes that the trial court based its Rule 13 sanctions in part on the state’s trial position, the manner in which it prosecuted this action and its acceptance of the trial court’s invitation to go to trial on the Sparks Plan even though the state would build the project based on the Corder Plan. To this extent, the court determines that the trial court abused its discretion because Rule 13 sanctions are not based on a party’s conduct during the prosecution of the action; rather, they are based on the signing and filing of pleadings in violation of the duties imposed by Rule 13. The court also holds that the trial court erred to the extent it dismissed the state’s condemnation petition and ordered the state to pay the property owners’ attorney’s fees and expenses under the Frivolous Claims Act and under either Rule 215 or its inherent power to sanction. OPINION:Frost, J.; Frost, Yates, Hudson, Fowler, and Guzman, JJ. DISSENT:Anderson, J., dissenting. Hedges, C.J., Edelman and Seymore, JJ., join. “In short, the majority has, in essence, endorsed trial by ambush in the eminent domain arena. For the preceding reasons and those set forth in the original panel opinion, I respectfully dissent from the decisions to grant en banc rehearing and to reverse the judgment of the trial court.”

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