source: Caselaw Access Project

author: Justice MEDINA Chief Justice JEFFERSON, Justice JOHNSON,

license: Public Domain

text:
    Samuel GARCIA Jr., M.D., Petitioner, v. Maria GOMEZ, Individually and Representative of the Estate of Ofelia Marroquin, Deceased, Respondent.
    No. 09-0159.
    Supreme Court of Texas.
    Argued Jan. 21, 2010.
    Decided Aug. 27, 2010.

      Ronald G. Hole, Ida Cecilia Garza, Hole & Alvarez, L.L.P., McAllen, TX, for Petitioner.

      Savannah Robinson, Law Office of Savannah Robinson, Danbury TX, for Respondent.
   Justice MEDINA

delivered the opinion

of the Court,

joined by Justice HECHT, Justice WAINWRIGHT, Justice GREEN, Justice WILLETT, Justice GUZMAN, and Justice LEHRMANN.

The Texas Medical Liability Act requires that a health care liability claimant serve expert reports on each defendant physician or provider within 120 days after filing suit. Tex. Civ. Prac. & Rem.Code § 74.351(a). We have characterized this requirement as “a threshold over which a claimant must proceed to continue a [health care liability] lawsuit.” Murphy v. Russell, 167 S.W.3d 835, 838 (Tex.2005) (per curiam). If no report is timely served, the trial court must, on motion, dismiss the claim and award reasonable attorney’s fees and costs to the affected physician or provider.

No expert report was served in this case, and the trial court accordingly dismissed it. The court, however, did not award attorney’s fees. The court of appeals affirmed, concluding the trial court had not abused its discretion in failing to award attorney’s fees because the record contained no evidence of the reasonable fees incurred by the physician in defense of the claim. 286 S.W.3d 445, 449. We conclude, however, that there is some evidence of reasonable attorney’s fees and some evidence that the physician incurred attorney’s fees. We further conclude that section 74.351(b) mandates an award of attorney’s fees and costs, when expert reports are not served timely, and accordingly reverse the court of appeals’ judgment and remand to the trial court for further proceedings.

I

Ofelia Marroquin died from a pulmonary embolism following surgery. Her daughter, Maria Gomez, individually and as representative of her mother’s estate, sued the hospital and the treating physician, Dr. Samuel Garcia. Gomez asserted that her mother had a history of blood clots and that Dr. Garcia had not taken proper precautions to guard against the embolism that caused her death. Specifically, she argues that the standard of care required the doctor to install a blood filter as a preventive measure.

Medical records obtained from Dr. Garcia failed to indicate that he had placed such a filter in her mother’s chest cavity during surgery. After filing suit, however, Gomez obtained additional medical records from the hospital, which revealed that a filter had in fact been placed in her mother’s chest cavity apparently during some earlier procedure. This new information apparently caused Gomez not to serve expert reports.

After the deadline for serving these reports, Dr. Garcia moved to dismiss Gomez’s claim. Gomez did not oppose the dismissal, although she did contest Garcia’s right to attorney’s fees, arguing that Garcia had in a sense brought the suit on himself by failing to produce the medical records confirming the existence of the blood filter. After a hearing, the trial court granted the physician’s motion in part, dismissing the health care liability claim with prejudice, while denying him attorney’s fees. Dr. Garcia appeals complaining that he is entitled to an award of attorney’s fees.

Dr. Garcia’s evidence on attorney’s fees came from his counsel, who testified as follows:

My name is Ronald Hole. I’m an attorney practicing in Hidalgo County, doing medical-malpractice law/litigation. I have done it since 1984. For a usual and customary case like this these fees for handling it up to the point of dismissal, the reasonable and necessary attorney’s fees for handling that is 12,200 dollars.
If the case is appealed to the Court of Appeals, the reasonable fee for handling the matter at the Court of Appeals would be 8,000 dollars. If a Petition for Review is filed at the Supreme Court, an additional fee of 5,000 dollars would be reasonable for handling the matter of the Petition for Review and our brief or briefs on the merit. Petition granted by the Supreme Court then adds an additional 6,000 dollars. That would be a reasonable fee for handling the matter at that stage.

In affirming the trial court’s judgment, the court of appeals concluded that this testimony was conclusory and therefore no evidence of the reasonable attorney’s fees incurred by Dr. Garcia. 286 S.W.3d at 449. The court further concluded that the attorney’s testimony was insufficient because it failed to establish that the physician actually incurred attorney’s fees, which the court described as “an essential statutory element.” Id.

II

An attorney’s testimony about the reasonableness of his or her own fees is not like other expert witness testimony. Although rooted in the attorney’s experience and expertise, it also consists of the attorney’s personal knowledge about the underlying work and its particular value to the client. The testimony is similar to that of a property owner whose personal knowledge qualifies him to give an opinion about his own property’s value. See, e.g., State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 874 (Tex.2009); Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex.2002). The attorney’s testimony is not objectionable as merely conclusory because the opposing party, or that party’s attorney, likewise has some knowledge of the time and effort involved and if the matter is truly in dispute, may effectively question the attorney regarding the reasonableness of his fee.

In this case, Garcia’s attorney testified briefly about his experience in medical malpractice litigation. He then estimated $12,200 to be a reasonable and necessary fee for representation through dismissal in a case like this one. Finally, he testified about his fees in the event of an appeal and that such fees were also reasonable. Gomez did not cross-examine the witness or present any additional evidence on the issue of attorney’s fees. Nor did she question the reasonableness of the amount of any of these fees. While the attorney’s testimony lacked specifics, it was not, under these circumstances, merely concluso-ry. It was some evidence of what a reasonable attorney’s fee might be in this case.

Dr. Garcia argues, however, that the attorney’s testimony was not only some evidence of his reasonable attorney’s fees, but also conclusive evidence on the issue. Generally, the determination of reasonable attorney’s fees is a question of fact and “ ‘the testimony of an interested witness, such as a party to the suit, though not contradicted, does no more than raise a fact issue to be determined by the jury.’ ” Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex.2009) (quoting Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex.1990)). Dr. Garcia’s argument, however, relies on an exception to this general rule, that is, “where the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon, it is taken as true, as a matter of law.’ ” Ragsdale, 801 S.W.2d at 882 (quoting Cochran v. Wool Growers Cent. Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (1942)). Because Gomez had the means and opportunity to contest the attorney’s testimony on what a reasonable attorney fee would be in this case, but failed to do so, Garcia concludes that reasonableness was established as a matter of law.

While we agree that Garcia’s attorney’s testimony is some evidence of a reasonable fee, it is not conclusive. The statute here provides that the trial court is to award “reasonable attorney’s fees and costs of court incurred by the physician or health care provider” when the claimant fails to serve an expert report within 120 days of filing suit. Tex. Civ. PRAC. & Rem. Code § 74.351(b) (emphasis added). Under the statute, the fees awarded must be both “reasonable” and “incurred.” Id. § 74.351(b)(1). A reasonable fee is one that is not excessive or extreme, but rather moderate or fair. A fee is incurred when one becomes liable for it.

Both the adjective “reasonable” and the verb “incurred” act to limit the amount of attorney’s fees the trial court may award. Ideally, they will be the same, such as when the physician has agreed to pay reasonable fees and costs. But a physician may negotiate a fee that is either more or less than a reasonable fee and thus incur, or become liable for, a greater or lesser amount. The statute, however, limits the award to the lesser of the two, that is, the fee to be awarded is the lesser of a reasonable fee or the fee actually incurred. Testimony about reasonable fees then is not necessarily evidence about the fees incurred.

Although there is no evidence of the amount of the fees incurred by Dr. Garcia, the court of appeals goes further to conclude there is no evidence that Dr. Garcia actually incurred attorney’s fees at all. The record reflects, however, that services were performed on the doctor’s behalf. The attorney filed an answer, a plea in abatement, a motion to dismiss, and a notice of appeal. The attorney also appeared, argued, and gave testimony regarding the motion to dismiss. While there is no evidence about what Dr. Garcia (or perhaps his insurance carrier) agreed to pay for these services, it blinks reality to assume that the attorney was a volunteer or that Dr. Garcia did not incur attorney’s fees for this work. As we recently held in another case involving this statute, a health-care-liability defendant incurs attorney’s fees when he is “personally liable in the first instance for both defense costs and any potential judgment.” Aviles v. Aguirre, 292 S.W.3d 648, 649 (Tex.2009) (per curiam).

Section 74.351(b) requires the award of the reasonable attorney’s fees incurred by a physician who is not served with a timely expert report. Because there is some evidence in this case that attorney’s fees were both incurred and reasonable, the trial court should have awarded attorney’s fees to Dr. Garcia. The court of appeals therefore erred in affirming that part of the trial court’s judgment.

Ill

Gome?, argues, however, that Dr. Garcia should nevertheless be denied attorney’s fees because he failed to produce the appropriate medical records in a timely manner. Pertinent to this argument is section 74.051(d) of the Texas Medical Liability Act, which provides that all parties are “entitled to obtain complete and unaltered copies of the patient’s medical records from any other party within 45 days from the date of a written request for such records ...” Tex. Civ. PRAC. & Rem. Code § 74.051(d). This provision is part of the section requiring pre-suit notice of a health care liability claim. Id. § 74.051. Its purpose is to encourage pre-suit negotiations and settlement and thereby reduce litigation costs. See De Checa v. Diagnostic Ctr. Hosp., Inc., 852 S.W.2d 935, 938 (Tex.1993) (interpreting similar provision in statute’s predecessor)- Gomez contends Dr. Garcia waived his right to recover his attorney’s fees because he was slow to produce medical records and ultimately failed to produce the critical records which indicated that the blood filter was indeed in place during her mother’s surgery. Gomez’s argument assumes that Dr. Garcia withheld relevant medical records, but the record in this case does not support that assumption.

Gomez’s pleadings asserted that Dr. Garcia was negligent in “not preventing] the formation of a pulmonary embolism by appropriate means,” but the pleadings did not expressly mention the critical blood filter. Even assuming the physician understood the filter’s significance to Gomez’s case, it is not apparent why he would have concealed this exculpatory information. Instead, Dr. Garcia maintains that he produced all relevant medical records in his possession. Moreover, the hospital ultimately produced the records confirming the filter’s existence as part of its medical records. Nothing in the record suggests that Dr. Garcia’s records also contained this information or that he withheld the information. Gomez fails to explain why she did not seek or obtain these records from the hospital during the pre-suit notice period or why it was Dr. Garcia’s responsibility to obtain them for her. Although we can imagine a case in which discovery sanctions might offset an award of fees and costs under section 74.351(b), this is not such a case because the trial court has made no finding of discovery abuse.

⅜ ⅜ ⅜ ⅜ ⅜ ⅜

Section 74.351(b) of the Texas Medical Liability Act requires the award of reasonable attorney’s fees incurred by a physician in defense of a health care liability claim when expert reports are not timely served. Because there was some evidence of these fees, the trial court erred in failing to make an award, and the court of appeals erred in affirming that part of the trial court’s judgment. Accordingly we reverse the court of appeals’ judgment, in part, and remand the physician’s attorney’s fees claim to the trial court for further proceedings. The remainder of the court of appeals’ judgment is affirmed.

Chief Justice JEFFERSON filed a dissenting opinion, joined by Justice JOHNSON.

Justice JOHNSON filed a dissenting opinion.

Chief Justice JEFFERSON,

joined by Justice JOHNSON, dissenting.

In a health care liability case, a plaintiff must serve an expert report on a defendant physician within 120 days of filing suit. See Tex. Civ. Prac. & Rem.Code § 74.351(a). If a claimant fails to serve a report, the physician may move to dismiss the claim and recover attorney’s fees. Specifically, the statute provides:

If ... an expert report has not been served ... the court, on the motion of the affected physician or health care provider, shall ... enter an order that:
(1) awards to the affected physician or health care provider reasonable attorney’s fees and costs of court incurred by the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.

Tex. Civ. Prac. & Rem.Code § 74.351(b) (emphasis added). Notably, the statute requires the trial court to award fees that are both “reasonable” and “incurred.” Id. Today, however, the Court concludes that section 74.351(b) mandates a fee award even though the defendant introduced no evidence of fees incurred. For this reason, I respectfully dissent.

The Court has previously stated, and emphasizes again today, that if a timely and sufficient expert report is not served, a trial court must dismiss the case and award fees on motion by the affected physician or health care provider. See 319 S.W.3d at 640 (“[Ejection 74.351(b) mandates an award of attorney’s fees and costs, when expert reports are not served timely .... ”); see also Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex.2009) (“If a timely and sufficient report is not served, the trial court must award the provider its attorney’s fees and costs and dismiss the case with prejudice.”); Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998) (“Statutes providing that a party ‘may recover,’ ‘shall be awarded,’ or ‘is entitled to’ attorney fees are not discretionary.”). But even a mandatory fee award must have evidentia-ry support. Bocquet, 972 S.W.2d at 21.

Section 74.351(b) requires proof of “reasonable” fees and evidence of the fees “incurred.” See Tex. Civ. Prac. & Rem.Code § 74.351(b); see also 319 S.W.3d at 642 (“Under the statute, the fees awarded must be both ‘reasonable’ and ‘incurred.’ ”). Here, the only evidence concerning fees came from Dr. Garcia’s attorney, who stated the following:

My name is Ronald Hole. I’m an attorney practicing in Hidalgo County, doing medical-malpractice law/litigation. I have done it since 1984. For a usual and customary case like this these fees for handling it up to the point of dismissal, the reasonable and necessary attorneys fees for handling that is 12,200 dollars. If the case is appealed, reasonable fees up to this point is 12,200. If the case is appealed to the Court of Appeals, a reasonable fee for handling the matter at the Court of Appeals would be 8,000 dollars. If a Petion [sic] for Review is filed at the Supreme Court, an additional fee of 5,000 dollars would be reasonable for handling the matter of the Petition for Review and our brief or briefs on the merit. Petition granted by the Supreme Court then adds an additional 6,000 dollars. That would be a reasonable fee for handling the matter at that stage.

I am surprised that the Court ignores the gap in Hole’s testimony: nowhere does he state an amount of fees actually charged. There is no mention of the amount of time he spent on this case or even his hourly rate. See Brockie v. Webb, 244 S.W.3d 905, 909 (Tex.App.-Dallas 2008, pet. denied) (“Generally, the nature and extent of the attorney’s services are expressed by the number of hours and the hourly rate.”). The trial court was presented, instead, with a statement that $12,200 is a reasonable and necessary fee for “a usual and customary case like this.” In no other area of the law would we credit such a statement as “evidence,” whether an objection is made or not.

Testimony that a fee is reasonable, without saying it was ever charged, is useless. What if Dr. Garcia incurred only $1,000 in fees, even though a “typical” case like this would involve $12,200? Would the trial court have the discretion to award $12,200? See Daughters of Charity Health Servs, of Waco v. Linnstaedter, 226 S.W.3d 409, 412 (Tex.2007) (indicating that the Court favored a theory of jurisprudence that avoided a “windfall” to the injured party). This is why the statute requires evidence that attorney’s fees were both reasonable and incurred.

The Court holds that “there is some evidence in this case that attorney’s fees were both incurred and reasonable.” 319 S.W.3d at 643. The Court gives two reasons for that conclusion. First, the record reflects that Dr. Garcia had an attorney and that he filed pleadings on Dr. Garcia’s behalf. No one disputes that Dr. Garcia was represented; the question is the amount of fees he incurred. His lawyer did not answer that question. We should not give Dr. Garcia a second chance to satisfy his burden of proof.

Next, the Court relies on our recent decision in Aviles v. Aguirre, 292 S.W.3d 648, 649 (Tex.2009) (per curiam); however, such reliance is misplaced. In Aviles, we addressed whether a defendant physician “incurred” fees under section 74.351(b), even though an insurance carrier paid the physician’s fees. Aviles, 292 S.W.3d at 649. We said that the statute did not require as proof that fees were “incurred” that the physician personally paid the fees. Id. The physician incurred fees when he first became liable for defense costs and a potential judgment, and the insurer stood in the shoes of the physician when it paid the fees. Id.

Aviles is not relevant here. We are not concerned with whether a party “incurs” fees when he or she becomes liable for those fees — the issue we decided in Aviles. Instead, we must decide whether there is evidence that fees were incurred at all.

We have repeatedly held that an award of attorney’s fees must be supported by evidence. See, e.g., Torrington Co. & Ingersoll-Rand Corp. v. Stutzman, 46 S.W.3d 829, 852 (Tex.2000) (“Generally, an award of attorney’s fees must be supported by evidence.”); Boequet, 972 S.W.2d at 21 (noting that it is an abuse of discretion to award fees without sufficient supporting evidence); Sharp v. Broadway Nat’l Bank, 784 S.W.2d 669, 672 (Tex.1990) (reversing award of attorney’s fees when “[t]he award ... was based entirely on testimony which should not have been admitted, and when that testimony is excluded, the award cannot stand.”); Great Am. Reserve Ins. Co. v. Britton, 406 S.W.2d 901, 907 (Tex.1966) (holding that attorney’s fees in an insurance case must be supported by competent evidence). And, the party seeking the fees carries the burden of proof. Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex.2009) (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.1991)). As our courts of appeals have recognized, although “Attorneys’ fees and costs of court are mandatory under the [Texas Medical Liability Act,] ... nothing in the act modifies the general rule that a party seeking attorneys’ fees must present evidence of attorneys’ fees.” Brower v. Hearn, No. 14-07-00967-CV, 2009 Tex.App. LEXIS 3551, at *8-*9 (Tex.App.-Houston [14tb Dist.] Feb. 10, 2009, no pet.); Sandles v. Howerton, 163 S.W.3d 829, 839 n. 9 (Tex.App.-Dallas 2005, no pet.); Doades v. Syed, 94 S.W.3d 664, 674 (Tex.App.-San Antonio 2002, no pet.) (“[E]ven a mandatory award of attorney’s fees [under the Medical Liability Act] must be supported by evidence.”); Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex.App.Fort Worth 1998, no pet.) (holding that trial court did not abuse its discretion in denying attorney’s fees to health care provider who failed to present evidence of fees).

The Court comes close to a dispositive concession by acknowledging “there is no evidence of the amount of fees incurred by Dr. Garcia.... ” That should be the end of it. A party with the burden of proof who fails to produce evidence of attorney’s fees, waives his right to those fees. Intercontinental Group P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 657 (Tex.2009). An award of zero fees is therefore appropriate. See Cale’s Clean Scene Carwash, Inc. v. Hubbard, 76 S.W.3d 784, 787 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (“[A] zero award for attorney’s fees [is] proper if the evidence ... failed to prove (a) that any attorney’s services were provided; or (b) the value of the services provided....”). When the party with the burden presents “no evidence” to satisfy it, we do not ordinarily remand the matter to the trial court for a second chance. See Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex.2007) (recognizing that we generally render judgment when there is no evidence).

As there is no evidence of fees incurred, I would conclude, as the court of appeals did, that the trial court did not abuse its discretion in refusing Dr. Garcia’s request for attorney’s fees under section 74.351(b). Accordingly, I would affirm the court of appeals’ judgment, Because the Court does otherwise, I respectfully dissent.

Justice JOHNSON,

dissenting.

I disagree with the Court’s holding for the reasons expressed by Chief Justice Jefferson and join his dissent. However, I write to express particular disagreement with the Court’s statement that “[a]n attorney’s testimony about the reasonableness of his or her own fees is not like other expert witness testimony.... The attorney’s testimony is not objectionable as merely conclusory because the opposing party, or that party’s attorney, likewise has some knowledge of the time and effort involved and, if the matter is truly in dispute, may effectively question the attorney regarding the reasonableness of his fee.” 319 S.W.3d at 641.

As to reasonableness of an attorney’s fee, in Arthur Andersen & Co. v. Perry Equipment Corp., the Court addressed language in the Deceptive Trade Practices Act allowing recovery of “reasonable and necessary attorneys’ fees.” 945 S.W.2d 812, 818 (Tex.1997). In considering whether a contingent fee was a reasonable fee we said:

Factors that a factfinder should consider when determining the reasonableness of a fee include:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
(2) the likelihood ... that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.
A party’s contingent fee agreement should be considered by the factfinder, see Tex. DisciplinaRY R. Prop. Conduct 1.04(b)(8), and is therefore admissible in evidence, but that agreement cannot alone support an award of attorney’s fees under Texas Business and Commerce Code section 17.50(d). In other words, the plaintiff cannot simply ask the jury to award a percentage of the recovery as a fee because without evidence of the factors identified in Disciplinary Rule 1.04, the jury has no meaningful way to determine if the fees were in fact reasonable and necessary.

Id. at 818-19 (citation omitted).

Without saying why, the Court departs significantly from the evidence requirements for determining reasonable fees we set out in Arthur Andersen. Here the testimony touched on two of the Arthur Andersen factors: the attorney’s experience in this type of litigation and a “reasonable and necessary” fee for a “usual and customary case like this.” In Arthur Andersen the fee was contingent. Here the testimony did not even address the basis of the fee; that is, whether it was contingent, a flat rate through some part of the case, an hourly or per diem charge, a blend of fee types, or some other type of fee arrangement. The attorney’s testimony as to experience involved facts. His testimony as to fees, however, was not factual; it was opinion and conclusory. And even assuming it addressed the attorney’s own work on this case (the testimony did not specify who worked on the case and pointedly did not address work done on this specific case) it was nothing more than an ipse dixit by a credentialed witness.

The court of appeals addressed the Arthur Andersen issue and properly determined there was no evidence of a reasonable fee because the attorney’s testimony was conclusory. I agree with the court of appeals. Garcia’s attorney’s testimony is not probative evidence because it does not contain the underlying factual basis on which it rests. See, e.g., Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999) (“[A] claim will not stand or fall on the mere ipse dixit of a credentialed witness.”); Black’s Law DictionaRY 284 (7th ed.1999) (defining con-clusory as “[ejxpressing a factual inference without stating the underlying facts on which the inference is based”). As Chief Justice Jefferson notes, in no other area of the law would such testimony be entitled to probative weight. See 319 S.W.3d at 645 (Jefferson, C.J., dissenting).

Further, the rule has long been that whether testimony of a witness is conclu-sory turns on the testimony itself, not on whether the opposing party or its attorney has knowledge of matters underlying the testimony and examines the testifying witness. E.g., Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 839 (Tex.2010) (“No-evidence challenges to allegedly conclusory expert testimony require us to examine the record on its face to determine whether the evidence lacks probative value.”); City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex.2009); Coastal Transport Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex.2004) (“When the testimony is challenged as conclusory or speculative and therefore non-probative on its face, however, there is no need to go beyond the face of the record to test its reliability.”) (citations omitted); Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 380-81 (1956) (“It is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection.”). There may be valid reasons for the Court to take the position that an attorney’s testimony about the reasonableness of his or her fees is different from other expert witness testimony. But it is hard to see valid reasons for holding that conclusory testimony, which according to long-standing precedent has no probative force, is converted to evidence with probative value because an adverse party has information or knowledge about matters underlying the testimony. In an environment where discovery plays a major part in any lawsuit, only a naive or completely unprepared litigant will lack knowledge of matters underlying the testimony of an opposing expert, especially one testifying about attorney's fees. It distorts the litigation process and burdens of proof to require an adverse party to cross-examine an opposing party’s expert and assist in proving up a case against himself or herself on pain of converting concluso-ry, legally insufficient evidence into legally sufficient evidence.

With the foregoing comments and for the reasons expressed both by Chief Justice Jefferson and the court of appeals, I respectfully dissent. I would affirm the judgment of the court of appeals.

      . The statute provides that when the claimant fails to serve a defendant physician or health care provider with an expert report within 120 days of filing suit:
      [T]he court, on the motion of the affected physician or health care provider, shall, subject to [an extension of time for a deficient report], enter an order that:
      (1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider; and
      (2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.
      Tex. Civ. Prac & Rem Code § 74.351(b).

      . The trial court also dismissed the case against the hospital, but the hospital did not seek attorney’s fees and is not a party to this appeal.

      . See Webster’s Ninth New Collegiate Dictionary 981 (1984) (defining the adjective "reasonable”); see also Black's Law Dictionary 1272 (7th ed.1999). (defining "reasonable” as fair, proper, or moderate under the circumstances).

      . See Webster's Ninth New Collegiate Dictionary 611 (1984) (defining the verb "incur”); see also Black's Law Dictionary 771 (7th ed.1999) (defining "incur" as to suffer or bring on oneself (a liability or expense)).

      . Cf. Doctor's Hosp. at Renaissance, Ltd. v. Ramirez, No. 13-07-00608-CV, 2008 WL 2744629, at *2-*3, 2008 Tex.App. LEXIS 5124, at ‡8-'⅛9 (Tex.App.-Corpus Christi July 10, 2008, no pet.) (observing that, in another case involving the same attorney representing Dr. Garcia in this case, attorney “testified that he was familiar with the usual and customary terms and fees associated with handling medical negligence cases in Hidalgo County, Texas”; “that he personally worked on this case from the beginning”; "that a reasonable and necessary fee for handling the case up to the point of dismissal was $ 9,840”; and "that in deriving this figure, he charged $ 200 per hour for forty-nine hours of work”); Martinez v. Miranda, No. 13-07-00497-CV, 2008 WL 2744768, at *3-*4, 2008 Tex.App. LEXIS 5128, at *8 (Tex.App.-Corpus Christi July 3, 2008, no pet.) (noting that Dr. Garcia's attorney “testified to his qualifications, opining that reasonable attorney’s fees from the point of inception until the hearing were $ 35,-000.... He outlined the work he performed and the number of hours he had expended in tire case.”).

      . This was not an issue in Aviles. In Aviles, proof of reasonable and incurred fees was presented. See Aviles v. Aguirre, 292 S.W.3d 697, 702 (Tex.App.-Corpus Christi 2008) (mem.op.) (Vela, J., dissenting) (“Here, there was no claim that the fees sought as sanctions were improperly proven or unreasonable.’’), rev'd, 292 S.W.3d 648 (Tex.2009) (per curiam).

      . Cf. Dilston House Condo. Ass’n v. White, 230 S.W.3d 714, 718 (Tex.App.-Houston [14th Dist.] 2007, no pet.) ("Even when an award of attorney’s fees is mandatory under an applicable statute, the requesting party is still required to offer evidence to support an award.”); Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 751-52 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (even though fees are mandatory under the DTPA and Chapter 38 of the Civil Practice and Remedies Code, plaintiffs could not recover fees because they failed to introduce evidence of fees at trial).

      . Cf. Eagle Trucking Co. v. Tex. Bitulithic Co., 612 S.W.2d 503, 507 (Tex.1981) (“Guin had the burden to establish Eagle Trucking’s negligence .... Guin’s total failure to do anything to get a jury finding which compared Eagle Trucking’s negligence ... with his own ... amounted to a waiver of any complaints to the charge.”); Glens Falls Ins. Co. v. C.C. Peters, 386 S.W.2d 529, 531 (Tex.1965) (holding that failure to request a jury finding, by the party with the burden, waived party's right to any judgment on the pleaded issue).

      . See Tex. Bus. & Com.Code § 17.50(d).


author: Justice JOHNSON

text:
    The STATE of Texas, Petitioner, v. Charles Lynn BROWNLOW and Marlene H. Brownlow, Respondents.
    No. 08-0551.
    Supreme Court of Texas.
    Argued Dec. 16, 2009.
    Decided Aug. 27, 2010.

      Greg W. Abbott, Attorney General of Texas, Kent C. Sullivan, David S. Morales, Office of the Attorney General of Texas, Deputy First Assistant Attorney General, Kristina Weber Silcocks, Office of Attorney General, Lisa Marie McClain, Office of the Attorney General, Transportation Division, Susan Desmuráis Bonnen, Walter C. Brocato, Office of the Attorney General of Texas, Clarence Andrew Weber, First Assistant Attorney General, Austin, TX, for Petitioner.
    William D. Noel, William Guy Arnot III, Houston, TX, for Respondent.
    Charles Black McFarland, Joyce, McFarland + McFarland LLP, Houston, TX, for amicus curiae North Fort Bend Water Authority.
   Justice JOHNSON

delivered the opinion of the Court.

The State obtained an easement to construct a mitigation pond on Charles and Marlene Brownlow’s property to collect water that would result from a highway expansion project. The State built the pond and used most of the excavated dirt for highway construction purposes in another location. The Brownlows sued the State for inverse condemnation as to the dirt it removed. The State asserted sovereign immunity from suit in a plea to the jurisdiction. The trial court granted that plea and dismissed the suit. The court of appeals reversed. We hold that the easement did not grant the State the right to use the excavated dirt for highway construction, the Brownlows’ suit states a takings claim under the Texas Constitution, and the State does not have sovereign immunity from the suit. We affirm the court of appeals’ judgment,

I. Background

When the State initiated plans to widen State Highway 35 in Brazoria County, it calculated that the expanded highway required construction of a floodplain mitigation pond. The State elected to build the mitigation pond on part of a tract of land owned by Charles and Marlene Brownlow. It initiated condemnation proceedings by which it sought a fee estate in 12.146 acres of the Brownlows’ land. Eventually the parties came to an agreement embodied in an Agreed Judgment by which the State received a permanent easement over the 12.146 acres. A recital in the judgment noted that the State sought the property “for highway purposes.” The judgment then ordered that the easement was granted

for the purpose of opening, constructing, and maintaining a detention facility in, over, and across the [Brownlows’ land], together with the right, at all times of ingress, egress, and regress in[,] over[,] on and across such tract of land for the purpose of making additions to, improvements on, and repairs to said detention facility or any part thereof.

The property description and a construction plan was appended to the judgment.

In accordance with the construction plan for the pond, the State excavated in excess of 87,500 cubic meters of dirt from its easement. Despite the Brownlows’ protests, the State removed most of the excavated dirt and used it in the Highway 35 expansion project, so the Brownlows sued for inverse condemnation. They claimed that the State unconstitutionally took the excavated dirt, entitling them to compensation. The State filed a plea to the jurisdiction. It argued that the Agreed Judgment gave it the right to use the dirt for highway construction purposes, it was within its rights to remove and use the dirt, and that it was immune from suit on the basis of sovereign immunity.

The trial court granted the State’s plea and dismissed the case. The court of appeals reversed, holding that the dirt belonged to the Brownlows and they could maintain their takings suit. 251 S.W.3d 756, 762. We granted the State’s petition for review.

The State argues that (1) the Agreed Judgment implicitly grants it the right to use all materials located in the easement to construct, repair, or improve roadways, (2) it is entitled to use the dirt for highway construction purposes because such use is reasonably necessary to ensure its full enjoyment of the easement, and (3) it has compensated the Brownlows in full. Thus, the State asserts the Brownlows do not possess a compensable interest in the excavated dirt and their takings claim is defective. The Brownlows argue that the express terms of the Agreed Judgment allow the easement to be used for “opening, constructing, and maintaining” the mitigation pond and the State cannot remove the dirt and use it for highway construction without paying additional compensation.

We agree with the Brownlows.

II. Discussion

A. Constitutional Taking

The Texas Constitution provides that “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation.” Tex. Const, art. I, § 17(a). An inverse condemnation may occur if, instead of initiating proceedings to condemn property through its powers of eminent domain, the government intentionally physically appropriates or otherwise unreasonably interferes with the owner’s right to use and enjoy his or her property. Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex.1992); see Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex.2001). The essence of an inverse condemnation proceeding is that the government has intentionally taken or unreasonably interfered with an owner’s use of property and the property owner is attempting to recover compensation for the lost or impaired rights. See City of Abilene v. Burk Royalty Co., 470 S.W.2d 643, 646 (Tex.1971). Sovereign immunity from suit does not protect the State from a claim under the takings clause. State v. Holland, 221 S.W.3d 639, 643 (Tex.2007).

When the State acquires fee simple title to land through a condemnation proceeding, it acquires the land as well as appurtenances to and buildings on the land. Brunson v. State, 418 S.W.2d 504, 506 (Tex.1967) (quoting 3 Nichols On Eminent Domain § 9.2(5) (1965)). However, “[w]here only an easement is ac-quiredU the owner retains title to the land and all that is ordinarily considered part of the land.” Id. If only an easement is acquired, it is the State’s burden to assure that the document granting the easement expressly addresses any “special arrangements or provisions in the easement taking.” Id. at 507. The State’s burden flows from the principle that “[a]n easement’s express terms, interpreted according to their generally accepted meaning ... delineate the purposes for which the easement holder may use the property.” Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 701 (Tex.2002). An easement, unlike a possessory interest in land, “is a nonpossessory interest that authorizes its holder to use the property for only particular purposes.” Id. at 700. An easement does not transfer rights by implication “ ‘except what is reasonably necessar/ to fairly enjoy the rights expressly granted.” Id. at 701 (quoting Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974)). If the rule were otherwise, “easements would effectively become possessory, rather than nonpossessory, land interests.” Id. at 702. The emphasis placed on an easement’s express terms serves the important public policy of promoting certainty in land transactions. Id.

B. Application

In its plea to the jurisdiction, the State argued that the Brownlows failed to state a takings claim because the Agreed Judgment gave the State the right to use the dirt for highway construction purposes and the Brownlows did not have a compen-sable interest in the dirt the State removed. See Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 644 (Tex.2004) (“[T]o recover under the constitutional takings clause, one must first demonstrate an ownership interest in the property taken.”). The heart of the State’s argument is that the Agreed Judgment expressly or implicitly gives it the right to remove the dirt excavated from the Brownlows’ land and use it in highway construction, or that, in any event, use of the dirt is reasonably necessary for the State to fully enjoy the easement rights it was expressly granted. The Agreed Judgment, however, sets out the purposes of the easement as “opening, constructing, and maintaining” a mitigation pond; it does not grant the State rights to use the Brownlows’ property for other purposes. See Marcus Cable, 90 S.W.3d at 701 (“[I]f a particular purpose is not provided for in the grant, a use pursuing that purpose is not allowed.”). Using the dirt at a site remote from the Brownlows’ property to construct a highway does not constitute a use related to either (1) opening, (2) constructing, or (3) maintaining a mitigation pond on the Brownlows’ property. The purpose of a mitigation pond is to hold water.

Nor does a recital in the Agreed Judgment that the State first sought the Brownlows’ property for “highway purposes” expressly or implicitly grant the State a right to use the dirt from the easement for highway construction. It was incumbent on the State to be sure the property rights it needed were acquired and encompassed within the language of the Agreed Judgment. See Brunson, 418 S.W.2d at 507 (“[I]t should be the burden of the condemning authority to have its judgment speak expressly of special arrangements or provisions in the easement taking.”). The Agreed Judgment mentions “highway purposes” a single time, and that is in the recitals. In contrast, at five different points — twice in the granting clauses and three times in the recitals— the Agreed Judgement announces that the State is acquiring the easement for the purpose of “opening, constructing, and maintaining” a detention facility. Express decretal language in a judgment controls over recitals. Magnolia Petroleum Co. v. Caswell, 1 S.W.2d 597, 600 (Tex.Comm’n App.1928, judgm’t adopted); see Nelson v. Britt, 241 S.W.3d 672, 676 (Tex.App.-Dallas 2007, no pet.) (“[W]here there appears to be a discrepancy between the judgment’s recital and decretal paragraphs, a trial court’s recitals, which precede the decretal portions of the judgment, do not determine the rights and interests of the parties.”). Therefore, a single statement in the recitals that the State “sought and prayed for the acquisition, for highway purposes” is not clear enough to carry the State’s burden. It does not unambiguously indicate that the State has the right to use the Brownlows’ property for purposes unrelated to “opening, constructing, or maintaining” the mitigation pond generally, or more specifically, as highway construction material.

The State argues that under longstanding precedent, it has the right to use all materials located in the easement for the purpose of constructing, repairing, or improving roadways. It argues this right tacitly inures to every condemned easement under City of San Antonio v. Mullaly, 33 S.W. 256 (Tex.Civ.App.-San Antonio 1895, no writ), and City of La Grange v. Brown, 161 S.W. 8 (Tex.Civ.App.-Austin 1913, writ refd). We disagree that the cited cases are controlling here.

In both Mullaly and Brown the plaintiffs claimed that the cities unlawfully took gravel, dirt, and materials from dedicated streets and adjacent properties while grading and maintaining their streets. Mullaly, 33 S.W. at 256; Brown,, 161 S.W. at 10. The cities used that material for grading and maintaining streets in other areas. Mullaly, 33 S.W. at 256; Brown, 161 S.W. at 10. The courts in both cases upheld the cities’ use of the material taken from the streets for constructing and grading streets elsewhere. The court in Mullaly held that the plaintiffs were not entitled to damages for materials the city took from above grade level in the street; it stated:

Although the fee to a street may be in the adjoining lot owner, a city grading the street has the right to take from any portion of it the gravel or other material situated above the grade line, and use the same in improving or repairing that or any other of its streets, and without compensation to the owners of the property abutting on the portion of the street from whence the gravel or other material may be taken.

33 S.W. at 256.

In Brown, the plaintiffs sought to enjoin the city from taking gravel and materials for constructing and maintaining city streets elsewhere, including a road outside the city limits. 161 S.W. at 9. The trial court permanently enjoined the city from removing gravel from one street. Id. In dissolving the injunction, the court of appeals stated:

[T]he correct rule is that when a street, or other highway, has been legally established, the officer or governing body charged with the duty of opening up, constructing, and maintaining such street or highway has the right to remove soil, gravel, and other like material from one part of such street or highway to another portion of that or some other street or highway, for the purpose of constructing or maintaining the latter. ...
... [As to] that portion of this case which involves the right of the city of La Grange to remove gravel and soil from the streets abutting upon appellees’ property for the purpose of improving a highway outside the limits of the city, we think a sufficient answer is that, under article 769 of the Revised Statutes of 1911, the city of La Grange was authorized to construct and maintain a street or roadway from the city limits to its waterworks plant, and that it had the same power and authority in reference to that street or roadway that it had as to any street within the corporate limits.

Id. at 10,12.

While the courts in Mullaly and Brown held that the cities could use materials removed from the streets during the grading process to construct and grade other roads, they were not considering materials removed from easements other than easements for city streets. See Mullaly, 33 S.W. at 256 (“[A] city grading the street has the right to take ... the gravel or other material situated above the grade line.”) (emphasis added); Brown, 161 S.W. at 10 (holding that the city had the right to “remove soil, gravel, and other like material from one part of such street or highway ”) (emphasis added). Grading, constructing, and maintaining streets necessarily involves cutting, moving, and redistributing dirt and other materials because, as the court in Brawn explained, street grading does not involve just the leveling of one street but conforming a number of streets to grade level for proper drainage and sewerage purposes. Brown, 161 S.W. at 11 (quoting City of New Haven v. Sargent, 38 Conn. 50, 55-56 (Conn.1871)). In contrast, the soil removed from the Brownlows’ property was not removed as part of the grading process nor was the property in the highway right of way. The materials could be removed only for the specific purpose of opening, constructing, and maintaining the mitigation pond. Brown and Mullaly are not controlling.

Ultimately, the facts and issues before us are closer to those presented to this Court in Brunson than those presented to the courts of appeals in Mullaly and Brown. In Brunson, the State asserted its power of eminent domain and obtained a judgment granting it an easement “for highway right-of-way-purposes” across the Brunsons’ property. 418 S.W.2d at 505. A trailer house, cabana, and other improvements were located on the easement. Id. After the condemnation judgment was signed, the Brunsons removed the improvements from their land. Id. The State sued the Brunsons for conversion and recovered possession of the improvements. Id. The Brunsons contended that they owned the improvements because the easement granted by the judgment in the condemnation action did not transfer title to the permanent improvements. This Court held that the Brunsons were correct:

The easement ... carried with it the right of the State to remove any improvements on the land which would interfere with the full and beneficial use of the easement rights but did not take away the subsisting ownership of the [Brunsons] in the improvements and [their] right to remove them.
... [T]he parties to an easement condemnation may agree upon the disposition of permanent improvements which may be involved and upon a corresponding basis for payment of compensation. ... But it should be the burden of the condemning authority to have its judgment speak expressly of special arrangements or provisions in the easement taking; otherwise, the ownership of the landowner in improvements which are a part of the realty, and his right to remove them, will be enforced. Here the judgment is clear and unambiguous in its terms. It does no more than award the State the easement which it sought for right-of-way purposes over the land of Petitioners and fixes the amount of the damages therefor.

Id. at 506-07. Thus, we held that the State could move the improvements, but it did not own them because title to them was not granted by the condemnation suit judgment.

As to the matter before us, the State had the right to excavate the dirt from its easement on the Brownlows’ property in order to open and construct the mitigation pond — the reason for its acquisition of the easement. Further, it could use the excavated dirt to maintain the pond. But the easement did not give the State the right to use the dirt for any other purposes— just as the easement in Brunson did not give the State more rights to the improvements than to remove those that interfered with its nonpossessory interest.

The State also argues that it was entitled to use the dirt to construct a highway embankment because doing so was neeessary to fully enjoy its easement. We agree that “an unlimited easement carries with it all rights as are reasonably necessary for enjoyment consistent with its intended use.” Coastal Indus. Water Auth. v. Celanese Corp. of Am., 592 S.W.2d 597, 601 (Tex.1979). But the rights reasonably necessary for full enjoyment of an easement are limited. They do not encompass rights foreign to the purpose for which the easement is granted. The servient estate holder retains these rights. See Brunson, 418 S.W.2d at 506 (“ ‘Where only an easement is acquired the owner retains title to the land and all that is ordinarily considered part of the land.’ ”) (quoting 3 Nichols On Eminent Domain § 9.2(5) (1965)). By using the excavated dirt to build the highway embankment, the State exercised a right neither granted by the easement nor reasonably necessary for the State to fully enjoy the easement for the purpose it was granted.

Finally, the State urges that it does not owe the Brownlows further compensation for the excavated dirt because the Brown-lows were fully compensated in the original condemnation proceeding. The State supports its position with two arguments.

First, it urges that when a tract of land is condemned for road construction purposes, a presumption arises that the damages allowed are for all lawful elements of damages that could reasonably have been foreseen and determined at the time of condemnation. It contends that because the construction plans attached to the Agreed Judgment stated the cut volume of the mitigation pond would be 87,-544 cubic meters, the Brownlows were on notice about how much dirt the State intended to excavate and use, and damages stemming from the removal of the dirt were reasonably foreseeable. In making this argument, the State relies on City of La Grange v. Pieratt, 142 Tex. 23, 175 S.W.2d 243 (1943). There, the State sought to widen State Highway 71, which was also a La Grange city street. Id. at 244. The City and the State entered into a contract setting out details of the project and authorizing the State to perform the construction. Id. The construction plans called for using part of a tract of land owned by Pieratt, on which he operated a filling station. Id. After attempts to purchase the necessary part of Pieratt’s property failed, the City initiated condemnation proceedings and obtained, in fee, the required parcel. Id. at 244-45. Several months after the condemnation proceedings were completed, Pieratt brought an inverse condemnation claim, alleging that the highway construction project had damaged his business and he was entitled to additional compensation for lost profits. Id. at 245. This Court held that Pieratt was not entitled to additional compensation because it was reasonably foreseeable at the time of the initial condemnation proceeding that he might suffer a loss of profits as a result of the road work:

The work of improving this street was done by a contractor, substantially in accordance with the contract submitted to the City by the State Highway Department. This contract was attached to the ordinance authorizing the Mayor to enter into it on behalf of the City, and must have constituted a public record. There is no contention that there was any undue delay in performing the contract, or that the contractor did anything unusual, unreasonable, or negligent in its use of the street while improving it.
... [W]here a part of a tract of land is condemned for street or road purposes, and the owner claims consequential damages to the land left, on account of the loses of profits arising from an established business being conducted thereon, while the road or street improvements are in progress, such a claim may and should be presented at the condemnation proceeding, if it is of such a nature that it could reasonably have been foreseen and determined at the time.

Id. at 245-^16.

Pieratt does not dictate the outcome in this case. Under the circumstances there, part of Pieratt’s property was condemned for inclusion in the construction project and it was reasonably foreseeable from the publicly available project plans that construction activities could affect Pieratt’s business located on the remainder of the property. In today’s case, the State could not use an easement on the Brownlows’ property for its intended purpose of a mitigation pond without excavation work taking place, but it could do so without removing and using the excavated dirt for highway construction. The work plans were attached to the condemnation judgment, and it was reasonably foreseeable that material would be excavated in order to both create and subsequently maintain a holding pond. But the State does not claim that the construction plans or the judgment granting its easement stated that the State would take title to the excavated dirt or incorporate it as a permanent part of the highway project off of the Brownlows’ property. That the pond was made necessary by a highway construction project, did not make it reasonably foreseeable to the Brownlows that the excavated dirt would be removed and used to build the embankment when that purpose was not included in the language granting the easement. See Marcus Cable, 90 S.W.3d at 702 (“The emphasis our law places upon an easement’s express terms serves important public policies by promoting certainty in land transactions.”).

Second, the State argues that it fully compensated the Brownlows for the exea-vated dirt when it acquired the easement because the value of the fee estate over which its easement runs and the value of an easement for highway purposes are substantially equivalent. It is true that sometimes the fee simple value of land and the value of an easement across that land may be the same. See Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953, 956 (1952) (explaining that when an “easement leaves [a] landowner with some beneficial use of the land ... then the damages for condemnation thereof ... will be less than the value of the fee,” but when an easement deprives a landowner of all beneficial use of the land, “the landowner may recover as damages the market value of the land”). Whether the two values are the same is a matter of proof. Id. (noting that in condemnation proceedings where there is no substantial difference in value between the easement and fee, the damages sustained may be proven with evidence of the full value of the land taken). Here, the State and the Brownlows agreed on a price for the easement granted by the Agreed Judgment. Just as the judgment in Brunson was clear and unambiguous, the judgment in the condemnation suit between the State and the Brownlows is clear and unambiguous. See Brunson, 418 S.W.2d at 507. Regardless of what the State may have sought, the judgment awarded it an express easement for a particular purpose and fixed the amount of the damages for that easement. That judgment is final. It is not subject to collateral attack by claims that the price agreed upon was full value for the 12.146 acres, as opposed to an agreed price for the easement expressly granted. See id. (explaining that the condemnation judgment in Brunson was “not subject to impeachment or collateral attack” by the State; that is, the State could not sue the Brunsons for conversion, essentially collaterally attacking the condemnation judgment).

III. Conclusion

The Brownlows’ suit states a takings claim, and the State does not have sovereign immunity from it. We affirm the court of appeals’ judgment. We remand to the trial court for further proceedings.

Justice GUZMAN did not participate in the decision.

      . Although we conclude that the Brownlows' suit is not barred by sovereign immunity, the Brownlows must still prove the elements of their inverse condemnation claim.