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Click here for the full text of this decision FACTS:Fiesta Mart Inc. leased 7.3704 acres of land from Weingarten Realty Investors on the northwest corner of Old Katy Road and Blalock in Houston. The property consisted of a Fiesta grocery store, which occupied 91,414 square feet, a retail strip center, which occupied 13,500 square feet and a parking lot consisting of approximately 437 parking spaces. Fiesta leases the grocery store and its appurtenances on a long-term basis from Weingarten. As part of the Katy Freeway expansion project, the state filed a petition against Weingarten, Fiesta and Vivo Ltd., to take 1.2362 acres of the property by eminent domain. Fiesta alleged this taking eliminated 185 parking spaces from the parking lot. Three disinterested freeholders of Harris County, empaneled as Special Commissioners of the County Civil Court-at-Law No. 3, awarded Vivo, Weingarten and Fiesta $7,721,575 in damages under Texas Property Code �21.042. All parties appealed the commissioners’ award to the trial court. Fiesta subsequently filed a counterclaim alleging inverse condemnation and seeking to recover damages to its personal property and its business losses caused by the state’s taking. The taking of a portion of Fiesta’s parking lot left Fiesta with two options. Fiesta could relocate its business, in which case the state would be responsible to pay Fiesta for the entire property; or Fiesta could remain on the property and accept the state’s “cure plan.” The state proposed to cure Fiesta’s parking shortage by condemning the retail strip center and converting that space to parking. In its objections to the commissioners’ award, Fiesta pursued both remedies in the alternative. Fiesta contended that it could not make a final decision as to whether to remain on the property until the state completed the freeway expansion. Before to trial, the state filed a plea to the jurisdiction in which it alleged that the trial court did not have jurisdiction over the state’s condemnation claim, because the state had not taken Fiesta’s real property but only the parking lot, which was not leased by Fiesta. The state further alleged the trial court had no jurisdiction over Fiesta’s inverse condemnation claim, because Fiesta was not entitled to recover lost profits or reimbursement for relocation expenses. The trial court denied the state’s plea. On Fiesta’s request, the trial court entered an order severing the state’s statutory condemnation claim from Fiesta’s inverse condemnation claim. The state filed an interlocutory appeal challenging the trial court’s ruling on its plea to the jurisdiction in both cases. HOLDING:Affirmed. In its first issue for review, the state contended that Fiesta failed to invoke the trial court’s jurisdiction over its counterclaims by failing to allege facts in its pleadings sufficient to show a compensable taking under Texas Constitution Art. I, �17. It is fundamental, the court stated, that to recover under the constitutional takings clause, one must first demonstrate an ownership in the property taken. In this case, the state alleged in its petition for condemnation that Fiesta was an owner of the land. It is the general rule that the pleadings in a particular case are to be regarded as judicial admissions. Accordingly, the court held that the trial court acquired subject matter jurisdiction by virtue of the state’s petition for condemnation. In its second issue, the state contended that Fiesta and the other tenants had only a limited interest in the condemned property. Because the state condemned only a portion of the parking lot serving the leased property, the state claimed that Fiesta had not shown its entitlement to compensation. The owner of any legal right or interest in land, the court stated, must be adequately compensated when the land is taken. Thus, unless a contrary provision exists in the lease agreement, a lessee is entitled, as a matter of law, to share in a condemnation award when part of its leasehold interest is lost by condemnation. To what extent Fiesta’s leasehold interest was diminished by the condemnation of parking spaces “is a fact issue yet to be determined,” the court stated. In its third and fifth issues, the state contended that Fiesta must, before filing its counterclaim, decide whether it will: 1. surrender its leasehold interest and relocate; or 2. remain on the premises. The state maintained that unless Fiesta elected which course of action it would pursue, its counterclaim simply invited the trial court to issue an advisory opinion. In reality, the court stated, the state in raising the two points of error effectively sought a determination that Fiesta must elect its remedy before proceeding to trial. The issue of Fiesta’s ownership interest in the parking lot, the court stated, is a matter to be determined at trial, not through a plea to the jurisdiction. The court therefore declined to permit the state to use its interlocutory appeal as a vehicle to circumvent the bounds set by the statute in order to obtain judicial review of the merits of Fiesta’s case. In its fourth issue, the state complained of the trial court’s denial of its plea to the jurisdiction on Fiesta’s inverse condemnation claim. Fiesta brought an inverse condemnation counterclaim seeking recovery for damages to its personal property, and business losses caused by the state’s taking. The state contended that Fiesta could not maintain such an action, because Fiesta failed t 1. properly allege impaired access; and 2. exhaust its administrative remedies. On the first point, the court found that Fiesta alleged facts that affirmatively demonstrated the court’s jurisdiction to hear the cause. On the second point, the court noted that Fiesta did not seek relocation benefits. Therefore, the court found that the failure to exhaust administrative remedies did not defeat jurisdiction in the county court. OPINION:Hudson, J.; Hedges, C.J., and Hudson and Guzman, JJ.

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