                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00461-CV


CITY OF JUSTIN, TEXAS                                              APPELLANT

                                       V.

RIMROCK ENTERPRISES, INC.                                            APPELLEE


                                    ----------

            FROM THE PROBATE COURT OF DENTON COUNTY
                   TRIAL COURT NO. PR-2009-00779

                                    ----------

                                  OPINION

                                    ----------

                                I. INTRODUCTION

      Appellant City of Justin, Texas, undertook a reconstruction project in 2009

to improve a number of roads located in its industrial park. Part of one of the

improved roads, Colorado Avenue, crossed a tract of land owned by Appellee

Rimrock Enterprises, Inc. Rimrock sued the City for inversely condemning its

property, and the City claimed that the road had been impliedly dedicated to the
public.    A jury found that only part of Colorado Avenue had been impliedly

dedicated and awarded Rimrock compensation for the portion that the City had

taken.

         In seven issues, the City argues that it conclusively established its statute-

of-limitations affirmative defense; that it proved as a matter of law that all of

Colorado Avenue had been impliedly dedicated for public use; that Rimrock

failed to prove its inverse condemnation claim, its damages, and its attorneys’

fees; that the trial court erred in its charge; and that Rimrock’s declaratory-relief

claim was improper. We will affirm in part and reverse and render in part.

                                    II. BACKGROUND

         The City is located in Denton County and had a population of 3,150 in

2010. The City’s east and west sides are generally divided by railroad tracks that

run north and south. The City’s downtown area is located on the west side of

town.     The east side of town has a few residences but primarily contains

commercial and industrial businesses, including Rimrock, a Texas corporation

owned by Carla Hardeman.           Rimrock contracts with governmental entities to

perform work like silt removal and dredging.

         In 1886, L.S. Helms deeded a tract of land located immediately east of the

railroad tracks to the Atchison, Topeka and Santa Fe Railway Company




                                            2
(AT&SF).1 At some point in the 1950s, the AT&SF began leasing a portion of

that property to a business owned by Buddy Hardeman, Carla’s uncle. Carla’s

father C.J. Hardeman later partnered with Buddy and leased the same property

from the AT&SF after Buddy died. In 1994, C.J. assigned his lease to Rimrock,

who purchased the property from the AT&SF that same year.

      Rimrock’s property is a rectangular-shaped, 2.17-acre tract. According to

a survey that was performed when Rimrock purchased the property (set out in

part below), the east and west boundaries of the property measure 473' long and

the north and south boundaries measure 200' wide. Fifth Street (a/k/a F.M. 407)

borders the southern side of the property; the railroad tracks border the western

side of the property; a private parcel borders part of the northern side of the

property; and Colorado Avenue runs north and south on the eastern side of the

property.2 There is no dispute that Colorado Avenue crosses the eastern portion

of Rimrock’s property.




      1
      Helms created a plat map in 1887 that identifies the property as a “Rail
Road Reservation.”
      2
       Colorado Avenue continues north beyond Rimrock’s property, where it
eventually dead-ends at Seventh Street, but that portion of the road is not the
subject of this lawsuit.


                                       3
      Colorado Avenue appeared on the City’s “Original Town Plat” and also on

the 1887 Helms plat. However, according to C.J., who grew up in the City and

graduated from high school in 1951, Colorado Avenue was not a road or a street

in the early 1950s; it was a trail, but cars could use it if it had not rained. In the

late 1950s or early 1960s, Buddy covered the road with gravel to help make it

passable, especially for the heavy equipment that his business used. Sometime

                                          4
in the 1970s, and several times thereafter, Buddy and C.J. “chip sealed” the

road. In 1970, C.J. installed a fence around the leased property, but the fence

did not extend to include the eastern portion of the leased property that Colorado

Avenue crossed.3 C.J. located the fence there because he did not want to deny

his neighbors, who used Colorado Avenue, access to the road. Indeed, at no

point when C.J. leased the property or during Carla’s ownership of it has a

“Private Property” or a “No Trespassing” sign been posted on the part of

Colorado Avenue that crosses the property; the public has used the road for

decades.

      In June 2009, as part of an effort to improve the quality of the roads

located in the City’s industrial park, the City constructed concrete roads over the

existing dirt or gravel roads.4 One of those roads was Colorado Avenue. The dirt

and gravel road that had been there was “basically pulverized into the subgrade

and mixed with lime.” Unpaved ditches—at most two feet deep—are located on

either side of the improved road.

      In October 2009, Rimrock sued the City for inversely condemning the part

of its property that the City improved—where Colorado Avenue crosses, or .78

acres of Rimrock’s property. See Tex. Const., art. I, § 17. In response, the City


      3
      In other words, the eastern border of the fence tracked the western side of
Colorado Avenue, not the eastern border of the leased property.
      4
       The City also installed or replaced water and sewer lines along the roads.


                                        5
pleaded, among other things, that Rimrock’s inverse condemnation claim was

barred by limitations and that no taking had occurred because the portion of

Colorado Avenue that crossed Rimrock’s property was impliedly dedicated to the

public before Rimrock purchased the property.        Rimrock later added a claim

seeking a declaratory judgment.

      At the jury trial that ultimately followed, the trial court submitted, and the

jury answered, the following six questions:


            QUESTION ONE

            Do you find from a preponderance of the evidence that the
      road, referred to in this action as Colorado Avenue, was dedicated
      as a public road?

                   ....

            ANSWER: Yes

                   ....


            QUESTION TWO

             What is the total square footage, if any, of the road, referred to
      in this action as Colorado Avenue, that was dedicated by implied
      dedication?

             In answering question two you are instructed that at the time
      of the implied dedication of the road, the size of the dedicated road
      is not limited by the beaten path used, but may be made to include
      sufficient land for drainage ditches, repairs, and the convenience of
      the traveling public, which would be reasonable and customary in
      that locality for that type of terrain.

            Answer in square footage.


                                         6
      ANSWER: 7,095 square feet


      QUESTION THREE

       What is the square footage, if any, of the current road, referred
to in this action as Colorado Avenue, that is inside the boundary
lines of the real property owned by [Rimrock] that has not been
dedicated by implied dedication to the City of Justin?

      In answering question three you are instructed that the size of
the road is not limited by the beaten path used, but may be made to
include sufficient land for drainage ditches, repairs, and the
convenience of the traveling public, which would be reasonable and
customary in that locality for that type of terrain.

      Answer in square footage.

      ANSWER: 21,285 square feet

      ....


      QUESTION FOUR

      What was the date of the take, if any, by the City of Justin?
      Answer in month, date and year.

      ANSWER: 6/15/2009



      QUESTION FIVE

     What was the fair market value of the total amount of the
square footage taken, if any, at the date of the take?

      In answering question five you are to use your answer to
question three as the total amount of square footage taken, if any.
Also, for purposes of determining the value of the square footage



                                   7
      taken, if any, you are instructed to use your answer to question four
      as the date of the take.

             Answer in dollars and cents.

             ANSWER $105,573.60


             QUESTION SIX

            What is the amount of damage, if any, to Rimrock’s remaining
      property resulting from [the City’s] taking, if any, of Rimrock’s
      property, if any?

            You are instructed that in answering question Six, you are to
      consider the difference between (a) the fair market value of the
      remaining property immediately before the taking and (b) the fair
      market value of the remaining property immediately after the taking,
      giving consideration to the uses to which the part that has been
      taken is to be put.

             Answer in dollars and cents.

             ANSWER $7,500.00


The trial court later heard evidence on attorneys’ fees and awarded Rimrock fees

in the amount of $42,000 and expenses in the amount of $8,400.              It also

(i) denied the City’s motion for judgment notwithstanding the verdict (JNOV),

(ii) signed a final judgment that incorporated the jury’s findings and that ordered

an easement in favor of the City measuring 60' wide and 473' long running

parallel to the eastern boundary of Rimrock’s property, and (iii) denied the City’s

motion for new trial.




                                        8
                            III. STATUTE OF LIMITATIONS

      The City argues in its first issue that the trial court erred by denying its

motion for JNOV on the ground that Rimrock’s inverse condemnation claim was

barred by the applicable statute of limitations.

      A trial court may disregard a jury verdict and render a JNOV when the

evidence conclusively establishes the right of the movant to judgment. See Tex.

R. Civ. P. 301; Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d

74, 77 (Tex. 2000); Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392,

394 (Tex. 1991).     To determine whether the trial court erred by rendering a

JNOV, we view the evidence in the light most favorable to the verdict under the

well-settled standards that govern legal sufficiency review. See Ingram v. Deere,

288 S.W.3d 886, 893 (Tex. 2009); Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d

706, 709 (Tex. 2003).      We must credit evidence favoring the jury verdict if

reasonable jurors could and disregard contrary evidence unless reasonable

jurors could not. See Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828,

830 (Tex. 2009); Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651

(Tex. 2007).

      Statute of limitations is an affirmative defense; therefore, the defendant

bears the burden to plead, prove, and secure findings to support the defense.

See Tex. R. Civ. P. 94; Prestige Ford Garland Ltd. P’ship v. Morales, 336 S.W.3d

833, 836 (Tex. App.—Dallas 2011, no pet.). This burden includes establishing



                                          9
when the plaintiff’s cause of action accrued to demonstrate the bar of limitations.

Prestige Ford, 336 S.W.3d at 836. When the jury is not asked to determine when

the cause of action accrued for purposes of supporting a limitations defense, the

defense is waived unless the date was conclusively established by the evidence.

Id.; see Tex. R. Civ. P. 279.

      Inverse condemnation occurs when the government intentionally performs

an act that results in the taking of private property for public use. Gen. Servs.

Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). There is

no statutory provision specifically providing a limitations period for inverse

condemnation actions. Trail Enters., Inc. v. City of Houston, 957 S.W.2d 625,

631 (Tex. App.—Houston [14th Dist.] 1997, pet. denied), cert. denied, 525 U.S.

1070 (1999). However, Texas courts agree that a plaintiff’s claim for inverse

condemnation is barred after the expiration of the ten-year period of limitations to

acquire land by adverse possession.5 Id.; see Tex. Civ. Prac. & Rem. Code Ann.

§ 16.026 (West 2002).      For cases of adverse possession, a cause of action

accrues and limitations begins to run when entry upon the land is made. Trail

Enters., 957 S.W.2d at 631; Waddy v. City of Houston, 834 S.W.2d 97, 103 (Tex.

App.—Houston [1st Dist.] 1992, writ denied).

      5
        When an inverse condemnation claim involves property that has been
damaged, as opposed to taken, the limitations period is only two years. See
Allodial Ltd. v. N. Tex. Tollway Auth., 176 S.W.3d 680, 684 (Tex. App.—Dallas
2005, pet. denied). There is no dispute that Rimrock sought compensation for a
taking.


                                        10
      The City did not secure a jury finding on its limitations defense. Therefore,

to prevail on this issue, the evidence must conclusively establish that Rimrock’s

inverse condemnation claim accrued before October 1999, ten years before

Rimrock filed its original petition in October 2009.     See Prestige Ford, 336

S.W.3d at 836.

      We initially note that the City directs us to evidence that the public used

Colorado Avenue as early as the 1930s, 1940s, and 1950s, but this is no

evidence for purposes of our accrual inquiry because it is not evidence that the

City—the governmental defendant in this case—entered the land.                See

Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex. 1992) (reasoning that inverse

condemnation occurs when the government appropriates property without paying

adequate compensation); Millwee-Jackson Joint Venture v. Dallas Area Rapid

Transit, 350 S.W.3d 772, 781 (Tex. App.—Dallas 2011, no pet.) (“When a

defendant’s conduct produces a legal injury, however slight, the cause of action

accrues and the statute of limitations begins to run.”) (emphasis added); Trail

Enters., 957 S.W.2d at 632‒33 (reasoning that inverse condemnation claim

accrued for limitations defense when city passed ordinance); Waddy, 834 S.W.2d

at 103 (holding that inverse condemnation claim accrued for limitations defense

when city installed pipe across property).

      Nonetheless, the City points to evidence that it entered the land, and even

maintained it, well before 2009, and even before Rimrock purchased the property



                                        11
in 1994. But Carla testified that the City entered her property, and achieved a

taking, in June 2009, when the City constructed the concrete road, and that the

City performed no maintenance on her property before 2009.           Because the

record contains conflicting evidence regarding when Rimrock’s inverse

condemnation claim accrued, the City did not conclusively establish its limitations

affirmative defense. See Holland v. Lovelace, 352 S.W.3d 777, 791 (Tex. App.—

Dallas 2011, pet. denied) (reasoning that an accrual date is conclusively

established if reasonable minds could not differ about the conclusion to be drawn

from the facts). We overrule the City’s first issue.

             IV. WIDTH OF COLORADO AVENUE IMPLIEDLY DEDICATED

      The improved portion of Colorado Avenue that crosses Rimrock’s property

measures 473' long by 60' wide. As Rimrock observes, the jury used these

figures to calculate its answers to jury question numbers 2 and 3—the portion of

Colorado Avenue that was impliedly dedicated (473' x 15' = 7,095 square feet)

and the portion that was not impliedly dedicated (473' x 45' = 21,285 square

feet).6 In its second issue, the City challenges the jury’s finding that only 7,095

square feet of Colorado Avenue, or 473' x 15', had been impliedly dedicated,

arguing that it proved as a matter of law that the entire width of Colorado Avenue,

or 473' x 60', was impliedly dedicated to the public.


      6
        Indeed, 473 x 60 = 28,380, which is the equivalent of 7,095 + 21,285, the
total of the jury’s answers to question numbers 2 and 3.


                                         12
      The City bore the burden of proof on its implied dedication claim. A party

challenging the legal sufficiency of an adverse finding on an issue on which the

party had the burden of proof at trial must demonstrate on appeal that the

evidence conclusively established, as a matter of law, all vital facts in support of

the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). The

reviewing court first examines the record for evidence that supports the finding,

crediting favorable evidence if a reasonable factfinder could, while disregarding

contrary evidence, unless a reasonable factfinder could not.         Id.; see City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If no evidence supports the

finding, then the reviewing court will examine the entire record to determine if the

contrary proposition is established as a matter of law.        Dow Chem. Co., 46

S.W.3d at 241.

      The City directs us to evidence that the full sixty-foot width of Colorado

Avenue was impliedly dedicated, but we are required to first examine the record

for evidence that supports the jury’s finding that only 7,095 square feet was

impliedly dedicated. See id. C.J. testified that Colorado Avenue used to be a

trail, not a “street”; that the road was, at most, twelve feet wide; and that two cars

could pass on the road, but only if one moved over to the ditch. Carla testified

that Colorado Avenue used to be a trail, that the pre-improved road was no more

than fifteen feet wide, that the improved road is wider than the pre-improved

road, and that the improved road is “a larger area than [her] private road [was].”



                                         13
Rimrock argues that none of Colorado Avenue was impliedly dedicated, but the

City presented uncontroverted evidence that the road had been open to and

used by the public for decades, as the jury found in answer to question number

1.7 See Las Vegas Pecan & Cattle Co. v. Zavala Cnty., 682 S.W.2d 254, 256

(Tex. 1984) (listing elements of implied dedication).        This evidence, and any

reasonable inferences that can be drawn therefrom, supports the jury’s finding

that only 7,095 square feet, or 473' x 15', of Colorado Avenue had been impliedly

dedicated.

      Directing us to State v. NICO-WF1, L.L.C., the City argues that, as a

matter of law, the entire sixty-foot width of Colorado Avenue was impliedly

dedicated because “[l]and dedicated as a street includes the whole width of the

public right of way, including sidewalks and parkways, which are a part of the

street itself, and pavement, shoulders, gutters, curbs, and other areas within the

street lines.” 384 S.W.3d 818, 821 (Tex. 2012). In NICO, Arroyo Boulevard was

dedicated for public use in 1928. Id. at 820. The dedication “provided that its

boundary lines were to be 100 feet apart with curb lines fifteen feet inside the

outer boundaries, leaving seventy feet between the curb lines.” Id. TxDOT later

discovered that part of a building owned by NICO encroached about ten feet onto


      7
        In any event, insofar as Rimrock seeks greater relief than it was awarded
in the trial court, it was required to file a notice of appeal to raise this cross-issue,
but it did not do so. See Tex. R. App. P. 25.1(c); City of Austin v. Whittington,
384 S.W.3d 766, 789 (Tex. 2012).


                                           14
Arroyo Boulevard’s 100-foot public right of way. Id. The State sued NICO, and

NICO sought a declaration that its building did not encroach on Arroyo Boulevard

because the public dedication limited the road’s width to the existing curb line.

Id. The trial court granted summary judgment for NICO, concluding that Arroyo

Boulevard was subject to a curb-line condition that limited the roadway to a

maximum of seventy feet. Id. at 820–21. The court of appeals affirmed but also

held that NICO’s building did not encroach on the public right of way because the

fifteen feet between the curbs and outer street lines “[were] not dedicated for any

public use whatsoever.” Id. It was in the context of addressing this additional

holding by the court of appeals—that the public-street easement was defined by

a curb-line condition rather than the street’s boundary line as dedicated—that the

supreme court made the following observations:

             When a street is dedicated to the public, the governmental
      entity taking control of the street ordinarily acquires only an
      easement that it holds in trust for the public benefit. The easement,
      however, carries with it the right to use and control as much of the
      surface and subsurface of the street as may be reasonably needed
      for street purposes. These purposes, of course, include transporting
      people and property, but a public street may also be used as a
      passageway for utilities and other public purposes.

             In short, a street includes the whole width of the public right of
      way. It includes sidewalks and parkways, which “are a part of the
      street itself.” And it includes “the pavement, shoulders, gutters,
      curbs, and other areas within the street lines.”




                                         15
Id. at 821 (citations omitted). The supreme court held that the court of appeals

had erred by concluding that the dedication was defined by the curb-line

condition.8 Id.

      The City’s heavy reliance on NICO is misplaced.            NICO involved an

express dedication with clearly defined boundaries and a lower court ruling that

misapplied the law in determining the extent of those undisputed boundaries.

See id. at 820‒21.      In this case, there was an implied dedication of an

unspecified size and jury questions inquiring about the extent of the dedication.

In other words, one case called on a jury to resolve a disputed dedication of

undefined proportions; the other called on a court to apply the law to an

undisputed dedication of clearly defined proportions. The inquiry posed to the

jury in this case was not the same inquiry posed to the supreme court in NICO.

      Further, to the extent that the City argues that the jury’s finding in question

number 2 somehow ran afoul of the law elaborated in NICO, the jury was

instructed that in determining the square footage of the implied dedication, “the

size of the dedicated road is not limited by the beaten path used, but may be

made to include sufficient land for drainage ditches, repairs, and the convenience

of the traveling public.” This instruction is consistent with the law set out in NICO

and advocated by the City on appeal.            Unless the record demonstrates

      8
       The supreme court additionally held that the curb-line condition was
“repugnant to the State’s control and authority over the public street and is void,”
but that holding is not relevant to the City’s argument. NICO, 384 S.W.3d at 824.


                                         16
otherwise, appellate courts must presume that the jury followed the instructions

given in the jury charge. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d

757, 771 (Tex. 2003). There is nothing in the record to indicate that the jury did

not follow this instruction. Given this presumption, and in light of the evidence

detailed above, we decline to interfere with the jury’s finding in question number

2 that no more than 7,095 square feet was reasonably needed for street

purposes. See NICO, 384 S.W.3d at 821.

      Because the record contains evidence that supports the jury’s finding, we

do not review the record to determine if the City established its contrary

proposition as a matter of law. See Dow Chem. Co., 46 S.W.3d at 241. We

overrule the City’s second issue.

                                  V. INTENT TO TAKE

      The City argues in its third issue that the trial court erred by denying its

motion for JNOV on the ground that Rimrock failed to prove that the City acted

with the requisite intent to constitute a taking under the Texas constitution. The

City contends that it “believed that the road was a public road and the project

was undertaken on that belief.”

      A trial court may grant a motion for JNOV if no evidence supports the jury’s

finding on an issue necessary to liability.    See Tex. R. Civ. P. 301; Tiller v.

McLure, 121 S.W.3d 709, 713 (Tex. 2003). Again, we view the evidence in the




                                         17
light most favorable to the finding under the standards that govern legal

sufficiency review. Ingram, 288 S.W.3d at 893.

      The intent element of an inverse condemnation claim is satisfied by proof

that the government knows that the specific act is causing identifiable harm or

knows that the harm is substantially certain to result. City of Dallas v. Jennings,

142 S.W.3d 310, 314 (Tex. 2004). Acts of mere negligence will not support a

takings claim because the State is generally entitled to immunity for negligence

and, more importantly, “we seek to ensure that the public does not bear the

burden of paying for property damage for which it received no benefit.” Tarrant

Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 554‒55 (Tex. 2004); see Tex.

Const., art. I, § 17 (including public use requirement).

      The evidence demonstrates that the City undertook a public-works project

to improve the roads located in its industrial park, including Colorado Avenue.

The City hired engineers to prepare construction documents; held meetings to

address issues, including Rimrock’s property; and followed through with the

project by constructing concrete roads on dirt and gravel roads that were in poor

condition. Carla testified that at some point before the City began construction,

“some officials came to [her] and . . . said that they . . . wanted a deed. They

wanted me to give them the right-of-way deed to release the property to them.”

Carla did not agree to let the City perform the work on her property, but the City

proceeded anyway. Rimrock thus produced some evidence from which the jury



                                         18
could have rationally concluded that, at a minimum, the City knew that by

constructing a concrete road on property that Rimrock owned, Rimrock was

substantially certain to be harmed as prohibited by article I, section 17 of the

Texas constitution. See Jennings, 142 S.W.3d at 314. We hold that the trial

court did not err by denying the City’s motion for JNOV on this ground, and we

overrule the City’s third issue.

                                       VI. DAMAGES

      The City argues in its fifth issue that the “award of damages was against

the weight of evidence and the law” because Rimrock produced no evidence of

the market value of its remaining property after the taking and because the trial

court should have charged the jury using an alternative broad-form method. We

consider the latter complaint first.

      A trial court has broad discretion in submitting its jury charge, and we

review a complaint regarding the submission of jury questions for an abuse of

discretion. Air Prods. & Chems., Inc. v. Odfjell Seachem A/S, 305 S.W.3d 87,

100 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

      The supreme court has “long held that the measure of compensation in a

partial-takings case is the market value of the part taken plus damage to the

remainder caused by the condemnation.” Westgate, 843 S.W.2d at 456. The

supreme court has also outlined two acceptable methods for calculating these

damages—the Carpenter approach and the Uselton approach. Id. at 456‒57;



                                           19
see State v. Petropoulos, 346 S.W.3d 525, 530 (Tex. 2011); Uselton v. State,

499 S.W.2d 92 (Tex. 1973); State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194

(1936). A broad-form question that properly implements the Carpenter approach

“should be reduced to two questions: first, the market value of the part taken,

considered as severed land, and second, damages to the remainder,

accompanied by an instruction that such damages should be determined by

considering the difference between the remainder’s pre-and post-taking value.”

Westgate, 843 S.W.2d at 457. A broad-form question that properly implements

the Uselton approach should also be reduced to two questions: “first, the market

value of the part taken, considered as severed land, and second, the damages to

the landowner’s property, accompanied by an instruction that such damages

should be determined by considering the difference between a) the value of the

landowner’s entire tract before the taking, and b) the market value of the

remainder after the taking.”9 Id. The Uselton approach is preferable when the

part taken is a small or irregularly shaped tract that is difficult to value as a

severed land. Id. at 456. The trial court has discretion to determine whether the



      9
        Under this approach, the total measure of damages is usually the
damages to the landowner’s property (the second question). Westgate, 843
S.W.2d at 456. However, if that figure is less than the market value of the part
taken (the first question), indicating that the condemnation increased the value of
the remainder, the landowner is entitled to the market value of the part taken. Id.
If there is no evidence of such an increase, the first Uselton question generally
need not be submitted. Id. at 457.


                                        20
Carpenter approach or the Uselton approach should be used, given the

circumstances of the particular case. Id. at 457.

         Jury question numbers 5 and 6, the damages questions, utilized the

Carpenter approach. The City argues that the trial court should have instead

submitted questions that employed the Uselton approach.10 Given the particular

circumstances of this case, however, we cannot conclude that the trial court

abused its discretion by framing jury question numbers 5 and 6 to track the

Carpenter approach because the part of Rimrock’s property that was taken was

not difficult to value as a severed land. As explained above, the jury’s implied

dedication findings are derived from a 473' x 60' figure, or 28,380 total square

feet, representing the improved portion of Colorado Avenue that crosses

Rimrock’s property. In finding that 7,095 of those 28,380 square feet had been

impliedly dedicated to the public, the jury then used simple mathematics to

determine the value of the severed land—it multiplied the difference between

7,095 and 28,380 by a price-per-square-foot figure that fell between the range of

testimony elicited from Rimrock’s and the City’s appraisal experts.       The City

concedes that “the measure of damages was within the permissible range of

damages supported by the evidence.” We overrule this part of the City’s fifth

issue.



         10
          The City’s amended proposed charge reflected these questions.


                                        21
      The City also argues that the jury’s remainder-damages award “was

against the weight of the evidence” because Rimrock produced no evidence of

the remainder’s post-taking market value.11     Rimrock relied upon the expert

opinion of Joe Milkes to appraise the real property in this case. Milkes opined in

his report that while the remainder’s value incurred no loss as a result of the

taking, the remainder had suffered damages in the amount of $7,500 to the

fence, posts, and gate on the east side of the property and damages in the

amount of $19,200 for revised concrete entry aprons. James Hogg, the City’s

expert, opined that the value of the remainder after the taking had not decreased

but had actually increased slightly.    The jury awarded Rimrock $7,500, an

amount within the range of the experts’ testimony.

      In Suleiman v. Texas Department of Public Transportation, the expert

appraisers for both sides concluded that there was no diminution in the

remainder’s market value due to the taking but that the remainder had sustained

damages in an amount equal to the cost to replace a fence, and one of the

appraisers additionally opined that the remainder had incurred damages for the

      11
         In light of statements contained in the City’s brief, we construe this
argument to raise a factual sufficiency complaint. When reviewing an assertion
that the evidence is factually insufficient to support a finding, we set aside the
finding only if, after considering and weighing all of the evidence in the record
pertinent to that finding, we determine that the credible evidence supporting the
finding is so weak, or so contrary to the overwhelming weight of all the evidence,
that the answer should be set aside and a new trial ordered. Pool v. Ford Motor
Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d
175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).


                                       22
cost to remove a canopy. No. 01-09-00099-CV, 2010 WL 2431076, at *3‒4 (Tex.

App.—Houston [1st Dist.] June 17, 2010, no pet.) (mem. op.). The jury awarded

the landowner remainder damages in an amount within the range provided by the

experts for the cost of replacing the fence and the canopy, and the court of

appeals, after addressing several other sub-arguments, overruled the appellant’s

factual sufficiency complaint. Id. at *4, *6.

      The facts and arguments in this case are strikingly similar to those in

Suleiman. Like the court in that case, we hold that the evidence is sufficient to

support the jury’s remainder-damages finding. See Westgate, 843 S.W.2d at

456 (reasoning that the proper measure of compensation in a partial-takings

case is the market value of the part taken plus damages to the remainder caused

by the condemnation). We overrule the remainder of the City’s fifth issue.

                           VII. BIFURCATION AND CHARGE

      A.     Bifurcation

      In part of its sixth issue, the City argues that the trial court erred by denying

its motion to bifurcate the trial. It contends that the trial court should have first

conducted a bench trial to determine whether and when Rimrock’s property had

been taken and then conducted a separate jury trial, if necessary, on the

compensation issues.         According to the City, a “unified trial of the

taking/damaging questions and the valuation questions created an inherently

unfair dilemma for the City”:



                                          23
      Until the jury[] returned its verdict, at the end of the jury trial on the
      merits, the parties did not know: (1) whether the court would find the
      City responsible at all; (2) whether[] the court would find that the City
      had taken Rimrock’s property; (3) if a taking were found, when the
      taking occurred; and (4) how much property was affected by the . . .
      taking.

             ....

            . . . Because the issue of the taking was tried at the same
      time as the issue of damages, the City was obligated to present
      evidence it otherwise would not have presented to the jury for its
      consideration of the question of damages . . . .

      Gragg is an inverse condemnation case.          151 S.W.3d at 549.       At the

conclusion of the jury trial, the trial court (i) held that the Tarrant Regional Water

District had inversely condemned the plaintiffs’ property and (ii) submitted the

case to the jury to determine compensation. Id. at 550. The District argued on

appeal that the trial court should have first conducted a bench trial on the takings

issue and then held a separate jury trial on the compensation issue. Id. at 556.

The supreme court set out the District’s arguments as follows:

      The District complains that it was prejudiced in a number of respects
      by the trial court’s refusal to order separate trials. First, the District
      asserts that the failure to bifurcate left it confused about several
      issues, including “whether the court would find the District
      responsible at all,” whether the court would find a temporary or
      permanent taking which would in turn call for different damage
      measures, whether a fee or an easement was taken, and how much
      of the [plaintiffs’ property] was affected. The District argues that the
      trial court’s failure to order separate trials was inherently unfair
      because it forced the District to present proof of damages while
      simultaneously contesting liability.




                                         24
Id. In overruling the District’s argument, the supreme court reasoned that the

District had “articulated no reason why admitting damage evidence before liability

is determined is any more prejudicial in the condemnation context than in any

other”—defendants typically proceed without knowing whether, and on what

theory, they will be found liable, and it is not unusual for a plaintiff to present

more than one damage measure during trial.         Id. at 556‒57.    Moreover, the

record supported the trial court’s findings “that separate trials would have

resulted in considerable and unnecessary evidentiary repetition,” and the

supreme court’s prior caselaw did not support the District’s argument that

separate trials must be conducted on taking and compensation in every case. Id.

at 557.

      The City’s arguments here are virtually identical to those of the District’s in

Gragg, and they fail for the same reasons. The City does not differentiate this

case—in which it had to simultaneously litigate liability and damages—from

almost every other case—in which the defendant has to simultaneously litigate

liability and damages. Moreover, the City’s competing theory of the case was

that all of Colorado Avenue was impliedly dedicated to the public. Even if the

trial court had conducted a separate trial on the takings issue, it still would have

been required to submit the implied dedication issue to the jury.12 Separate trials


      12
        And in fact, the jury found that part of Colorado Avenue had been
impliedly dedicated.


                                        25
therefore   would   have    involved   significant   repetition   of   evidence   and,

consequently, inefficient use of judicial resources. We hold that the trial court did

not abuse its discretion by denying the City’s motion to bifurcate the trial. See

Tex. R. Civ. P. 174(b) (permitting trial court to order a separate trial on any issue

“in furtherance of convenience or to avoid prejudice”); Gragg, 151 S.W.3d at 556

(applying abuse of discretion standard of review to bifurcation determination).

We overrule this part of the City’s sixth issue.

      B.     Charge Error

      The City also argues in its sixth issue that the trial court erred by

“present[ing] a charge to the jury which implied that a taking had actually

occurred . . . ; alternatively, the charge improperly transferred the burden of

deciding whether a taking had in fact occurred to the jury.”

      We are not convinced that the charge, as worded, transferred to the jury

the determination of whether a taking had occurred.            The charge contained

neither a definition of inverse condemnation nor a question specifically asking

whether the City had inversely condemned part of Rimrock’s property. Several of

the questions do contain “if any” wording, but we decline to read into those few

words something as substantial as an affirmative taking finding. Indeed, if a

jury’s failure to find a particular fact does not permit the reverse of the failed fact

finding to be implied, see C. & R. Transp., Inc. v. Campbell, 406 S.W.2d 191, 194

(Tex. 1966), then we do not see how a finding can be implied when a question is



                                          26
not even asked. To the extent that the charge can be read to place the burden of

determining whether a finding occurred on the jury, the City provides no

argument or analysis explaining how it was harmed.13 See Tex. R. App. P.

38.1(i), 44.1(a)(1).

      Of course, if the charge did not transfer to the jury the determination of

whether a taking had occurred, then that determination could only have been

made by the trial court, as it was required to do. See City of Austin v. Travis

Cnty. Landfill Co., 73 S.W.3d 234, 241 (Tex.), cert. denied, 537 U.S. 950 (2002);

Harris Cnty. v. Felts, 881 S.W.2d 866, 870 (Tex. App.—Houston [14th Dist.]

1994), aff’d, 915 S.W.2d 482 (Tex. 1996). The City, however, does not assert

any issue or argument complaining that the trial court erred by failing to expressly

determine at the close of the evidence that the City inversely condemned part of

Rimrock’s property; it only contends that the charge improperly implied that a

taking had occurred. Addressing only the City’s specific contention, we hold that,

to the extent the charge did so imply, it was not error, or reversible error,

because the charge, the jury’s findings, and the trial court’s post-verdict actions



      13
         Insofar as the City contends that it was harmed for the same reasons that
it used to show alleged error in failing to bifurcate the proceedings—“whether the
court would find the City responsible at all; . . . whether[] the court would find that
the City had taken Rimrock’s property; . . . if a taking were found, when the taking
occurred; and . . . how much of the property was affected by the . . . taking”—
those reasons do not somehow simultaneously show any harm under the
presumed circumstances here.


                                          27
are all consistent with an implicit trial court ruling that the City inversely

condemned Rimrock’s property. See Tex. R. App. P. 44.1(a)(1).

      As mentioned, the charge did not define inverse condemnation or ask

whether the City inversely condemned Rimrock’s property. It asked the jury to

resolve the primary disputed fact issues between the parties—(i) whether, and

how much of, Colorado Avenue was impliedly dedicated to the public and (ii) the

amount of compensation that Rimrock was entitled to receive for the taking,

considering the jury’s finding regarding the amount, if any, of Colorado Avenue

that was impliedly dedicated. The charge gave detailed instructions for both

issues. The jury found that 7,095 square feet of Colorado Avenue had been

impliedly dedicated and that 21,285 square feet had not been impliedly

dedicated. The total square footage of the findings—28,380—just happens to

equal exactly 473' x 60', the same figures that the trial court used in the final

judgment to award the City an easement over Rimrock’s property.14 Post-verdict,

the trial court denied the City’s motion for JNOV, which challenged Rimrock’s

inverse condemnation claim; signed a final judgment that accounted for the jury’s

implied dedication findings and awarded Rimrock compensation; and denied the

City’s motion for new trial, which also challenged Rimrock’s inverse




      14
         The City incorporated and relied upon these figures in its second issue
above.


                                       28
condemnation claim.      The trial court thus had numerous opportunities to act

inconsistently with its implied taking determination, but it never did so.

      In Thomas v. Long, the supreme court considered whether the court of

appeals had properly determined that it lacked jurisdiction over an interlocutory

appeal involving a plea to the jurisdiction raised in a motion for summary

judgment.    207 S.W.3d 334, 338 (Tex. 2006).            The court of appeals had

concluded that it lacked jurisdiction in part because the record did not contain an

order granting or denying the plea to the jurisdiction. Id. The supreme court

analyzed this ground as follows:

      In this case, none of the trial court’s orders on the parties’ cross-
      motions for summary judgment explicitly denied the relief sought in
      the section of Thomas’s motion for summary judgment challenging
      the trial court’s subject matter jurisdiction. However, the trial court’s
      rulings on the merits of some claims for which Thomas argued the
      trial court lacked subject matter jurisdiction constitute an implicit
      rejection of Thomas’s jurisdictional challenges. The Texas Rules of
      Appellate Procedure only require that the record show the trial court
      ruled on the request, objection, or motion, either expressly or
      implicitly. Because a trial court cannot reach the merits of a case
      without subject matter jurisdiction, . . . , a trial court that rules on the
      merits of an issue without explicitly rejecting an asserted
      jurisdictional attack has implicitly denied the jurisdictional challenge.
      By ruling on the merits of Long’s declaratory judgment claim, the trial
      court necessarily denied Thomas’s challenge to the court’s
      jurisdiction.

Id. at 339‒40 (citations omitted) (emphasis added).

      Although the issue here is different, the same reasoning applies. The trial

court would not have submitted the implied dedication and compensation

questions to the jury if it had not implicitly determined that a taking had occurred.


                                          29
We acknowledge that the better practice for the trial court is to expressly rule on

the condemnation issue before submitting the disputed fact issues to the jury, but

in light of the City’s specific argument challenging only the form of the charge,

and for all of these reasons, we cannot conclude that reversible charge error

occurred here. We overrule the remainder of the City’s sixth issue.

                            VIII. DECLARATORY RELIEF

      The City argues in its fourth issue that “the trial court’s order granting

[Rimrock’s] declaratory judgment action was an abuse of discretion and should

be reversed” because the requested relief duplicated the issues already before

the court and because Rimrock sought the relief solely to recover attorneys’

fees.15 Rimrock responds that it properly sought a declaration of the parties’

interests in Rimrock’s property in light of the City’s implied dedication claim,

which also “essentially asked for a declaration that [the City] had obtained a 473 '

by 60' easement by prescription or implied dedication.” We agree with the City.

      The purpose of a declaratory judgment is to determine the parties’ rights

when a controversy has arisen but before a wrong has been committed; it is

“preventative in nature.” Etan Indus. v. Lehmann, 359 S.W.3d 620, 624 (Tex.

2011); see Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (West 2015).

Declaratory relief is not available to settle disputes already pending before a

      15
        The only part of the judgment that awards any declaratory relief is the
paragraph that orders an easement over Rimrock’s property in favor of the City.
The City nonetheless argues that such declaratory relief was improper.


                                        30
court. Hot-Hed, Inc. v. Safehouse Habitats (Scotland), Ltd., 333 S.W.3d 719,

727 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Indeed, a “declaratory

judgment is improper if the relief requested is raised for the first time in an

amended petition and merely addresses the same issues as were raised in the

original petition.” Id. A party cannot use the Uniform Declaratory Judgments Act

(UDJA) as a vehicle to obtain otherwise impermissible attorneys’ fees. MBM Fin.

Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009). Article I,

section 17 of the Texas constitution does not authorize attorneys’ fees in a

takings case. City of San Antonio v. El Dorado Amusement Co., 195 S.W.3d

238, 249 (Tex. App.—San Antonio 2006, pet. denied).

      Rimrock filed its original petition against the City in October 2009. It

alleged a claim for inverse condemnation and a claim for trespass to try title

arising out of the City’s construction of a concrete road on its property. Rimrock

did not allege a claim for declaratory relief until it filed its second amended

original petition in November 2010, over a year later. Rimrock averred as follows

in its seventh amended petition:

             18. More specifically, Plaintiff requests a judgment that the
      City owns no interest in the subject land nor does it hold or benefit
      from any easement allowing it to own or use Colorado Street across
      Plaintiff’s property.

            19. This request for a declaratory judgment requires that the
      Court declare the effect of laws of the State of Texas and the
      ordinances of the City of Justin upon the rights of the parties, as well
      as the deed granting Plaintiff the property.



                                        31
               20. Plaintiff further seeks declaratory judgment construing
         and defining the boundaries of any property taken by the City and/or
         the parameters, scope and extent of any easement(s) in favor of the
         City.

Paragraph 18 is an improper basis for declaratory relief; Rimrock did not have to

seek affirmative declaratory relief to defend against the City’s implied dedication

claim.     Paragraph 19 is boilerplate-like language that does not request any

specific relief whatsoever.      Regarding paragraph 20, Rimrock argues that

declaratory relief was necessary to resolve the boundary dispute between the

parties, see Tex. Civ. Prac. & Rem. Code Ann. § 37.004(c) (West 2015), but the

dispute was merely incidental to—or entirely subsumed by—the two primary

issues in this case—whether there was a compensable taking and whether part

or all of Colorado Avenue had been impliedly dedicated to the public. See Martin

v. Amerman, 133 S.W.3d 262, 267‒68 (Tex. 2004) (explaining that boundary

dispute was incidental to title dispute and therefore improper basis for declaratory

relief). As the City observes, Rimrock’s claim for declaratory relief asked for

nothing other than what was determined in the inverse condemnation and implied

dedication claims. Rimrock argues that the City pleaded a claim for declaratory

relief, but we do not find such a claim in the City’s live pleading.

         We hold that the trial court erred by granting Rimrock declaratory relief

because Rimrock sought declarations that duplicated the issues already before

the trial court; the declarations therefore merely sought to obtain otherwise

impermissible attorneys’ fees.     See Etan Indus., 359 S.W.3d at 624‒25 (“By


                                          32
these standards the declaratory judgment . . . [was] not warranted.”); Staff Indus.,

Inc. v. Hallmark Contracting, Inc., 846 S.W.2d 542, 547‒48 (Tex. App.—Corpus

Christi 1993, no writ) (reversing declaratory judgment because it “presented no

issues beyond those already raised by Staff”). We sustain the City’s fourth issue.

                                IX. ATTORNEYS’ FEES

         The City argues in its seventh issue that the trial court erred by awarding

Rimrock attorneys’ fees. Although a trial court may award attorneys’ fees to a

party who proceeds under the UDJA, including a party who does not prevail, the

trial court has no discretion to award fees if the claim for declaratory relief is

brought solely for the purpose of obtaining attorneys’ fees. See Etan Indus., 359

S.W.3d at 624‒25; Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 490 (Tex.

App.—Houston [1st Dist.] 2006, pet. denied). We have held that Rimrock’s claim

for declaratory relief was improper for this very reason. Accordingly, the trial

court had no discretion to award Rimrock attorneys’ fees under the UDJA. See

Etan Indus., 359 S.W.3d at 624‒25 (holding similarly); Mungia v. Via Metro.

Transit, 441 S.W.3d 542, 551 (Tex. App.—San Antonio 2014, pet. denied)

(same); City of Carrollton v. RIHR Inc., 308 S.W.3d 444, 454‒55 (Tex. App.—

Dallas 2010, pet. denied) (same). There being no other basis to support an

award of attorneys’ fees, we hold that the trial court abused its discretion by

awarding Rimrock attorneys’ fees and costs.         We sustain the City’s seventh

issue.



                                          33
                                   X. CONCLUSION

      Having sustained the City’s fourth and seventh issues, we reverse the

portions of the trial court’s judgment (1) that declare an easement over Rimrock’s

property and (2) that award Rimrock attorneys’ fees and expenses, and we

render judgment that Rimrock take nothing on those claims.          We affirm the

remainder of the trial court’s judgment. See Tex. R. App. P. 43.2(c).



                                                   /s/ Bill Meier

                                                   BILL MEIER
                                                   JUSTICE

PANEL: MEIER and GABRIEL, JJ.16

DELIVERED: April 2, 2015




      16
           Justice McCoy was a member of the original panel but has retired in the
interim.


                                         34
