in the Interest of L.E.M., K.G.M., G.G.M., W.M.M., S.E.M., and A.S.M., Children

lem, kgm, ggm. wmm, sem, and asm children IN THE TENTH COURT OF APPEALS No. 10-03-320-CV IN THE INTEREST OF L.E.M., K.G.M., G.G.M., W.M.M., S.E.M., AND A.S.M., CHILDREN From the County Court at Law No. 2 Brazos County, Texas Trial Court # 37,302A-CCL2                                                                                                                                                                                                                          MEMORANDUM OPINION                                                                                                                        Kimberly Everett-George perfected an appeal from an adverse judgment in a proceeding to modify and enforce a prior child custody and/or child support order. She has now filed a motion to dismiss her appeal.       Rule of Appellate Procedure 42.1(a)(1) provides: (a) The appellate court may dispose of an appeal as follows: (1) On Motion of Appellant. In accordance with a motion of appellant, the court may dismiss the appeal or affirm the appealed judgment or order unless such disposition would prevent a party from seeking relief to which it would otherwise be entitled. Tex. R. App. P. 42.1(a)(1).       Everett-George’s dismissal motion satisfies the requirements of the appellate rules. Appellee has not filed a response. Accordingly, we dismiss the appeal with costs to be taxed against Everett-George. See id. 42.1(d).                                                                     PER CURIAM Before Chief Justice Gray,       Justice Vance, and       Judge Strother (Sitting by Assignment) Appeal dismissed Opinion delivered and filed December 10, 2003 [CV06] ’s property interest under Article I, § 17 of the Constitution of the State of Texas.” After stating the jury’s findings, the judgment addresses the City’s ripeness argument, finds in favor of the City, and dismisses the case without prejudice for lack of jurisdiction.   We determined that the trial court erred in finding the claims not to be ripe, then we assessed whether or not Trail was entitled to judgment on the jury’s verdict. We determined that it was. Typically, when an order granting a summary judgment is reversed on appeal, the case is remanded for a trial. Here, the trial has occurred. We overrule ground three.            Ground four asserts that a remand is necessary for additional proceedings in the trial court, i.e., a final determination by the trial court on the issue of a taking and post-trial remedies available to the City. Trail again responds that the trial court’s judgment recites that it had found that the ordinance “resulted in an inverse condemnation” of Trail’s interests. Further, it says that all of the City’s post-trial remedies were available.            We believe that the City’s post-trial motion reasserting the ripeness question, described above, should be treated the same as a motion for judgment notwithstanding the verdict. Appellate Rule 38.2(b) requires that an appellee faced with an appeal from the grant of a motion for judgment n.o.v. “bring forward by cross-point any issue or point that would have vitiated the verdict or that would have prevented an affirmance of the judgment if the trial court had rendered judgment on the verdict.” Tex. R. App. P. 38.2(b). Failure to bring such a cross-point “waives that complaint.” Id.  The City has waived its complaints about the verdict. We overrule ground four. TRAIL’S MOTION            In arguing its first issue concerning title, Trail reviews the language of the Final Judgment, the history of the litigation, the pleadings of the parties, and the trial court’s determination of an inverse condemnation to conclude that only the right of reasonable access was inversely condemned by the City. Trail further points out that the City has never contended that it should be awarded fee simple title to all of Trail’s oil and gas interests. The City urges that a judgment that does not grant title to the City will result in a “windfall” to Trail because it may well be able to further develop its mineral interests in the future. The City further points to the fact that Trail told the trial court that the City had “effectively tak[en]” the mineral estates and sought compensation because the mineral rights had been “rendered valueless.”            The parties remain poles apart on this issue. Neither has suggested alternate language to that used in our judgment. Thus, our question is: what interest, if any, should be awarded to the City as a result of the payment of damages awarded in this inverse condemnation suit?[4] The Texas Constitution prohibits three distinct types of "takings" without adequate compensation: (1) taking, (2) damaging, and (3) destroying property. City of Dallas v. Jennings, 142 S.W.3d 310, 313 n.2 (Tex. 2004). In Hallco, the Supreme Court observed: A regulation that deprives a property owner of all economically beneficial or productive use of the property "makes the regulation categorically a taking." [Citation omitted.] Lesser interferences, however, may also result in a taking. These types of regulatory actions require an "essentially ad hoc, factual inquir[y]...."  Hallco Texas, Inc. v. McMullen County, 221 S.W.3d 50, 56 (Tex. 2007) (quoting Penn Cent. Transp. Co. v. City of New York, 488 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)). Here, the ordinance did not deprive Trail of “all economically beneficial or productive use of the property,” as evidenced by Trail’s continued receipt of royalty payments after the date the ordinance was adopted.            The issue submitted to the jury, i.e., the difference in market value before and after the imposition of the ordinance, also contemplated a “damaging” of Trail’s interests rather than a “taking.”  The trial court’s characterization as a “taking” is not necessarily determinative.  Tarrant County Water Control & Imp. Dist. No. 1 v. Reid, 203 S.W.2d 290, 293 (Tex. Civ. App.—Fort Worth 1947, writ ref’d n.r.e.) (“The great weight of authority holds that where the owner's land which has been damaged is abutting to the land occupied by the project and/or is so situated with reference to the project that such owner's land suffers from injury by reason of the operation of the project, that a claim for such injury becomes one of 'damage' rather than of 'taking.'”); see also McCammon & Lang Lumber Co. v. Trinity & B.V. Ry., 104 Tex. 8, 133 S.W. 247, 248 (1911) (distinction between taking and damaging is provided in Art. 1, § 17 of the Constitution); Queen City Land Co. v. State, 601 S.W.2d 527, 528 (Tex. Civ. App—Austin 1980, writ ref’d n.r.e.) (court erred in vesting fee simple title, as the petition in condemnation sought only an easement in and to the tract); City of Houston v. Hamons, 496 S.W.2d 662, 665 (Tex. Civ. App.—Houston [14th Dist.] 1973, writ ref’d n.r.e.) (determining to take the fee title to the defendants' property, rather than an easement, is subject to judicial review for 'palpable abuse' of the City's eminent domain power; City did not need and had no intention to use surface rights when air rights easement would serve the public purpose of the condemnation); Stiman v. City of Tyler, 443 S.W.2d 354, 358 (Tex. Civ. App.—Tyler 1969, writ ref’d n.r.e.) (some affirmative expression of a desire to condemn a fee must be made, either in the order of condemnation or by some other official act or order properly enacted by the governing body); Burgess v. City and County of Dallas Levee Imp. Dist., 155 S.W.2d 402, 403 (Tex. Civ. App.—Eastland 1941, writ ref’d w.o.m.) (“The general rule is that the nature of the estate in lands, constituting the subject matter upon which the power of eminent domain operates, is that of an easement.”).            Extrapolating from these principles, we believe that Trail is correct in its assertion that the City is not entitled to fee simple title to interests that it has “damaged” but not “taken.” Accordingly, we will withdraw our judgment and issue a corrected judgment.            In Tarrant Regional Water Dist. v. Gragg, the trial court “awarded the District a permanent and perpetual flowage easement over the property” based on the trial court’s finding that an inverse condemnation had occurred on a specific date and jury findings of market value immediately before and immediately after the condemnation. Tarrant Regional Water Dist. v. Gragg, 151 S.W.3d 546, 550 (Tex. 2004) (describing easement); Tarrant Regional Water Dist. v. Gragg, 43 S.W.3d 608, 613 (Tex. App.—Waco 2001) (describing the “date of taking” and the easement), aff’d, 151 S.W.3d 546 (Tex. 2004). Here, however, it is Ordinance 97-1394 enacted by the City that restricts Trail’s ability to enjoy the full benefits or productive use of its interests. As far as the record shows, that Ordinance remains in effect, and control of Trail’s access to its mineral interests effectively rests in the City’s hands. Thus, we find that an award of an interest in Trail’s property is not justified and should not be made. Trail’s first rehearing issue is sustained. Trail’s second issue addresses the credit we gave the City for sums received by Trail on its interests after the date of inverse condemnation by the ordinance. The City’s response does not address this issue. For the same reasons expressed above concerning no award of an interest in the property, we agree with Trail. Thus, Trail’s second rehearing issue is sustained and our corrected judgment will delete the credit. CONCLUSION We have overruled the City’s grounds for rehearing and sustained Trail’s issues. Trail’s motion for rehearing is granted. Tex. R. App. P. 49.3. Our judgment dated November 21, 2007, is withdrawn. Without further briefing or oral argument, we again sustain Trail’s original issues one through six, reverse the trial court’s judgment, and based on the trial court’s finding that an inverse condemnation occurred and on the jury’s verdict, render judgment that: Plaintiffs have and recover of and from the City of Houston the sum of SIXTEEN MILLION EIGHT HUNDRED FORTY-NINE THOUSAND NINTY-NINE AND 37/100 DOLLARS ($16,849,099.37), together with pre-judgment interest thereon at the rate of 5% per annum from November 5, 1997, to date of this judgment, and post-judgment interest at the maximum rate provided by law from the date of this judgment until paid; and The City of Houston pay all costs of this proceeding, including costs incurred in the trial court and in this court.  BILL VANCE Justice  Before Chief Justice Gray,        Justice Vance, and        Justice Reyna        (Chief Justice Gray dissenting) Appellants’ Motion for Rehearing granted Appellee’s Motion for Rehearing denied Judgment reversed and rendered Opinion delivered and filed April 9, 2008 [CVPM]         [1] 221 S.W.3d 50 (Tex. 2006).  [2] 964 S.W.2d 922 (Tex. 1988).  [3] We refer to all of the Appellants collectively as “Trail,” as we did in our original opinion. [4] Although not directly applicable, we note that section 21.045 provides that, except where otherwise provided by law, the interest acquired by a condemnor in an eminent domain proceeding under chapter 21 does not include fee simple title. Tex. Prop. Code Ann. § 21.045 (Vernon 2000).