### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00410- CV

Appellan ts, Harry M . Whittington; Merc edes B. Whittington; Merc edes G regg f/k/a Mer cedes Whittington, ind ividu ally and as trustee of the Margare t Lynn Puckett 1989 Trust, the Sara Whittington May 1989 Trust, the Caroline Elizabeth P uckett 1989 Trust, the Mic hael Erskin e May 1989 Tr ust, the Cam ille Mer iw ether May 1989 Trust, and the William Tyndale Pucket t, Jr. 1989 Trust; Sally Wh ittington May, ind ividu ally and as truste e of the Margar et Lynn Pucket t 1989 Trust, the Sara Whittington May 1989 Trust, the Car oline El izabeth P uckett 1989 Trust, the M ichael Erskin e May 1989 Tr ust, the Cam ille Mer iw ether

May 1989 Trust, and the Willi am Tynd ale P uckett, Jr . 1989 Trust; and Margaret

Whittington Puckett , ind ividu ally and as trustee of the Margare t Lynn P uckett 1989 Trust, the Sara Whittington May 1989 Trust, the C aroline Elizabeth Pucket t 1989 Trust, the Michael Erskine May 1989 Trust, the Cam ille Mer iw ether May 1989 Trust, and th e William Tynd ale P uckett, Jr . 1989 Trust // Cross-Appellant, City of Austin

v. Appellee, City of Austin / / Cross-Appellees, Harr y M. Whittington; Mer cedes B. Whittington; Merc edes G regg f/k/a Merc edes Whittington, in divid ually an d as trustee of the Mar garet

Lynn P uckett 1989 Trust, the Sara Whittington May 1989 Trust, the Caroline Elizabeth P uckett 1989 Trust, the M ichael Erskin e May 1989 Tr ust, the Cam ille Mer iw ether May 1989 Trust, and the Willi am Tynd ale P uckett, Jr . 1989 Trust; Sally Whittington May, in divid ually an d as trustee of the Mar garet Lynn P uckett 1989 Trust, the Sara Whittington May 1989 Trust, the Caroline Elizabeth P uckett 1989 Trust, the Michael Erskine May 1989 Trust, the Cam ille Mer iw ether May 1989 Trust, and the William Tyndale Pucket t, Jr. 1989 Trust; and Margaret Whittington Puckett , ind ividu ally and as truste e of the Margar et Lynn Pucket t 1989 Trust, the Sara Whittington May 1989 Trust, the Caroline Elizabeth P uckett 1989 Trust, the M ichael Erskin e May 1989 Tr ust, the Cam ille Mer iw ether May 1989 Trust, and the Willi am Tynd ale P uckett, Jr . 1989 Trust 1

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -GV-0 7-0 0094 2, H ONO RAB LE JO SEP H H. H ART, JUDGE P RESIDING

I n this appea l, we will ref

er to the appellants and cross-a ppellees as “the Whit tingtons” and 1 to the appellee and cr oss-appe llant as “the City .”O P I N I O N

T h e Ci ty e le c te d to ta

k e p r o p e r ty b e lo n g in g to th e Wh it

ti n g to n s
. A s p a

r t o f th e p r o c e s s , the City paid a deposit into the registry of the trial court, and the deposit was later place d in an investment acc ount with the permission of the parties. After the supreme court deter mined that the condemna tion of t he property was proper, the district court aw arde d the investment income to the City

. Fur ther, the district court used the date of a prior trial court judgme nt in its calc ulations when d e te r mi n in g th e a

mo u n t o f p r e ju d g me n t a

n d p o s tj u d g me n t in

te r e s t o w e d

. O n a

p p e a l, th e Wh it

ti n g to n s
urg e that they wer e entitled to the investment income, and on cross-a ppeal, the City challeng es the district court’s decision to use the date of the prior judgme nt when deter mining the interest awa

rds.
We will reve rse the portion of the district court’s judgme nt awa rding investment interest to the City and af firm the re mainder of

the judg ment.

BACK GR OUND This c ase prese nts the denoueme nt of a conflict that arose betwee n the City and the Whit tingtons, which has resulted in extensive litigation as well as multipl e appea ls in this Court and
in th e s u p r e me c o u

r t. S e e Ci ty o f A u s ti n v
. W

h it ti n g to n , 3 8 4 S. W. 3 d 7 6 6 ( T e x. 2 0 1 2 ) ( “ W h it ti n g to n ” ) ; City of Austin v. W

hittingt on , 379 S.W .3d 278 (Tex. App.—Austin 2010) (“ 2010 W hittingt on ”),

r e v ’ d , 3 8 4 S. W. 3 d 7 6 6 ( T e x. 2 0 1 2 ) ; Ci ty o f A u s ti n v
. W

h it ti n g to n , 3 8 5 S. W. 3 d 2 8 ( T e x. A p p
. — Au s ti n 2007, no pet.) (“ 2007 W hittingt on ”); W

hittingt on v. City of A u s t i n , 1 7 4 S.W .3d 889 (Tex. App.—Austin 2005, pet. denied) (“ 2005 W hittingt on ” )

. I

n c o n f o r mi ty w it h a n e xte n s iv e construction projec t, including the expansion of the City ’s convention cente r and the building of a cooling plant,

2the City elec ted “to acquir e Bloc k 38.” W hittingt on , 384 S.W .3d at 774. At that time, Bloc k 38 was owned by the Whit tingtons. Id. at 773. “The City and the Whit tingtons could not ag ree on a price for B lock 38, so the C ity Council passed a resolution in Aug ust 2001 authorizing a c ondemnation suit to acquire B lock 38.” Id. at 775.

I n October 2001, “[t] he City filed a condemna tion suit” in a county court at law. Id. Subsequently , the trial court “appointe d th r e e specia l commissioners, who awa rded the Whit tingtons $7,650,000.” Id. Howeve r, the City and the Whit tingtons objected to the amount of the awa rd. Id.
I n order to take possession of the proper ty pending the resolution of the dispute, the City deposited the amount of the a

war d “into the re g istry of the cour t in J anuar

y 2002.” Id. ; see Tex. P rop. Code § 21.021(a) (authorizing condemnor to take possession of proper ty if condemnor deposits with court
amount awa

rded by specia l commissioners); Tex. L oc. Gov’t Code § 117.052(c) (7) (explaining that county cler

k “is responsible for funds deposited into the reg istry fund” for “an eminent domain
proce eding ”). Once the City took possession of the proper ty , the construction projec t beg an. Shortly afte r the awa

rd was place d in the reg istry of the c ourt, the Whit tingtons filed a motion to place the
money in a sepa rate acc ount “[i] n order that this awa rd earn int ere st at t he highest rate reasonably

a v a il a b le , ” a n d th e Ci ty a g

r e e d w it h th e r e q u e s t. S e e T e x. L o c
. G o v ’ t Co d e § 1 1 7

. 0 5 3 ( c ) ( a u th o r iz in g cler k to transfe r funds into separ ate acc ount if order ed by court). Acc ording ly , the trial court g rante d the reque st. When they made the reque st, the Whit tingtons explained that they wer e still contesting the C ity ’s right to condemn the proper ty and, therefor e, were not asking “to wit hdraw fu n d s fr om the custody

of the Clerk’ s Reg istry .” At the end of

the trial bef

ore the county court at law, the “jury awa rded $7,750,000
in damag es, and the trial court enter ed judgme nt on that awa rd.” W hittingt on , 384 S.W .3d at 775-76.
3Be cause the damag es aw arde d by the jury wer e $100,000 more than the deposit that the City

orig inally made, the City deposited an additional $100,000 into the acc ount plus an additional $13,260, which repr esente d the amount of prejudg ment interest on the extra deposit that had acc rued since the first deposit. See 2005 W hittingt on , 174 S.W .3d at 9 0 7 (explaining that “pre judgme nt interest beg i n s to acc rue on the date of the constitutional taking , the date the condemnor pay s the
amount of the specia l commissioners’ awa rd into the court’s reg istry and g ains the rig ht to possess the proper ty ”). The Whit tingtons appea led the judgme nt of the trial court, and this Court deter mined “that the City failed to meet its

. . . burden reg arding its authority to condemn the Whit tingtons’
proper ty .” Id. at 894, 908. Acc ording ly , we reve rsed and rema nded the case for further proce eding s. Id. at 908. After the case was rema nd ed, it was transfe rre d to the district court. W hittingt on , 384 S.W .3d at 776. At t he end of the t rial on rema nd, “the jury found t hat: (1) the taking was not

nece ssary to advanc e or achie ve a public use; (2) the taking was for economic development purposes; and (3) the decision to take the proper ty was fra udulent, in bad faith, and arbitra ry and capr icious.” Id. at 776. Moreove r, the jury deter mined that the fair marke t value of Bloc k 38 was $10,500,000. After the jury rea ched its decision, the Whit tingtons filed a motion for entry of judgme nt and proposed judgme nt in which the Whit tingtons reque sted that the district court decide , in acc ordanc e with the jury ’s deter

minations, that the City did not have the rig ht to condemn t h e p ro p er t y and
to order that the C ity surre nder possession of t he p ro perty to the W hittingtons. Subsequently , the trial court determined “as a matter of l aw that: (1) the taking was necessa ry to advanc e or achie ve

a public use”; and (2) “the statute prohibiting taking s for e conomic development

. . . did not apply

4retroa ctively to the p ro ce ed ing (disreg arding the jury ’s contra ry answe rs).” Id. Although the district court reve rsed two of the jury ’s finding s, it “ente red judgme nt for the Whit tingtons beca use it deter mined that leg ally and fac tu al l y s u fficie nt evidenc e supported the jury ’s finding s that the taking was fra

udulent, in bad faith, and arbitra ry and capr icious.” Id. Acc ording ly , the district court order ed the City to surre nder possession of Bloc k 38 and awa rded the Whit ti n gt o n s damag es resulting from the temporar y possession of Bloc k 38. After the district court rende red its judgme nt (“2007 judg ment”), the City did not place a

ny additional funds into the acc ount. Subsequently , the City appea led the district court’s judgme nt. See 2010 W hittingt on , 379 S.W .3d at 280. On appea l, this Court conclude d that the jury ’s deter mination of bad faith “wa s

s u p p o r te d b y le g a ll y a

n d f a c tu a ll y s u f

f ic ie n t e v id e n c e
. ” I

d

. a t 2 8 2

- 8 3

. T h e Ci ty a

p p e a le d o u

r d e c is io n ,

an d the supreme court reve rsed our judgme nt and conclude d that “the City ’s deter minat i o n t h at Bloc k 38 was nece ssary for public use was not fra udulent, in bad faith, or arbitra ry and capr icious.”
W hittingt on , 384 S.W .3d at 792. I n addition, the court decide d that the City ’s taking did not violate the s tatutory

prohibition ag ainst taking s for e conomic deve lopment beca use the City ’s ac tions fell within a statutory exception. Id. I n light of these deter minations, the court rema nded the case to the district court “f

or entry of judg ment in acc ordanc e with [it s] opi nion.” Id. During this rema

nd, the Whit tingtons and the City filed competing motions for entry of final judgme nt. I n the City ’s motion, the City mentioned that it has “thus far deposited a total of $7,763,260.60” into the reg istry of the court, that t h e m o n ey was transfe rre d to an investment

acc ount, and t h at t h e Whit tingtons have not withdrawn any of the money
. Moreove r, the City

rec ommended that postjudgment interest beg in to run fro m t h e date that the court issued its final

5judgme nt on rema nd and that the interest awa rd be calc ulated using a rate of 5%. See Tex. Fin. Code § 304.005(a) (explaining that postjudg ment interest beg ins to run on da y “judg ment is render ed”)

. Reg arding prejudg ment interest, the City simil arly rec ommended a rate of 5 %. S ee i d

. § 304.201 (explaining that prejudg ment interest rate in condemna tion case “is eq u al to the postjudgment interest rate”)

. Howeve r, t he C ity arg ued that the Whittingtons were only entitled to prejudg ment interest from the day that the City took possession of the proper ty to the date of the 2007 judgme nt rende red by

the di strict court. Essentially , the C ity arg ued that the W hittingtons wer e not entitled to any additional interest bec ause the Whit tingtons re jected the compensa tion awar d at that time.
I n their motion, the Whi ttingtons arg ued that in lieu of prejudgme nt interest on the
amount of money that the City deposited into the court reg istry , they shoul d b e gi v en the amount of investment interest ear ned on that money when i t wa s invested by ag ree ment of the parties. Reg arding the portion of the $10,500,000 awa rd that exceede d the amount deposited into the
reg istry , the Whit tingtons urg ed that they wer e entitled to postjudgme nt interest from the date that the 2007 judgme n t wa s re n dere d. Moreove r, the Whit tingtons contende d that beca use the 2007 judgme nt is the start date, the interest rate should be 8.25%. Alterna tively , the Whit tingtons arg ued that in the event that the district court deter mined that the 2007 judgme nt should not be considere d the start date for the calc ulation of postjudgment interest and instead elec ted to use as the start date the date of the final judgme nt on rema nd, the Whit tingtons wer e entitled to prejudg ment interest until the date tha t the judgme nt on remand w as issued.

After considering the ar g uments by the par ties, the district court issued a judgme nt (“2013 judgme nt”) awa

rding “fee s i m p l e t i t le to Bloc k 38” to the City and order ing that the Whit tingtons rec o v er $ 1 0 , 500,000 in compensa tion as found by the jury previously

. Reg arding
6interest awa rds, the district court deter mined that the date of the 2007 judgme nt should serve as the end point for the awa

rd of prejudg ment interest and as the start point for the awa rd of postjudgment
in te r e s t a n d f u r th e r d e te r mi n e d th a t th e r a te f o r e a c h a w a r d w a s 8

. 2 5 %

. A c c o r d in g ly , th e d is tr ic t c o u r t conclude d that the Whit tingtons should be awa rded $1,254,959 in prejudg ment interest, which was interest accr

ued on the di ffe renc e between the jury awa rd of $10,500,000 and the $7,7 5 0 , 000 that the City deposited with the court reg istry and was compensa tion from the time of the taking (January 24, 2002) to the day

befor e the 2007 judg ment was e ntere d. Reg arding postjudgment intere st, the district court awa

rded the Whit tingtons interest on the differ ence betwee n the jury awa rd an d the
amount deposited into the court reg istry ($2,750,000) and on the prejudgment interest calc ulated above ($1,254,959). Fur

ther, the distric t co u rt order ed that the amount of this awa rd continue to incre ase until the rema inder of the judgme nt was paid to the Whit tingtons. I n addition, the district court denied the W hitti n gt o n s ’ reque st for the interest earne d on the deposit ed money afte r i t was invested and instead awa

rded the interest to the City . I n summary , the Whitt ingtons we re e ntitled
t o $ 1 0 ,500,000 for the value of Bloc k 38, $1,254,959 in prejudg ment interest, and postjudgment interest on $4,004,959, which repr esents the differ ence betwee n the deposits made by the City and the value of

Bloc k 38 plus the prejudg ment-intere st awar d. Shortly afte r the district c ourt rende red its judg ment, the Whitt ingtons a nd the City

eac h appea led the judg ment of the district cour t.

DISCUSSIO N
I n this appea l, the Whit tingtons and the City eac h challeng e differ ent portions of the interest awa

rds order ed by the district court. I n their appea l, the Whit tingtons note that the City took

7possession of Bloc k 38 on J anuar y 24, 2002, when the City deposited into the court reg istry the
amount awa

rded by the specia l commissioners. Acc ording ly , they urge t h at they are entitled “to the interest ear

n ed o n t h e deposited funds during the ten-plus y ear s that the money rema ined in the court’s reg istry .” I n its cross-a ppeal, the City co n t en d s that the district court err ed when it used the 2007 judgme nt as the date from which to make prejudg ment and postjudgment interest-r ate calc ulations. I nstead, t he City urg es that the district court should have used the date of the 2013 judgme nt. Moreove r, the City contends that the district c ourt’s alleg edly improper decision to use
t h e ear lier judgme nt resulted in the imposit ion of a highe r interest rate for both calc ulations. I n addition, the City notes that the Whit tingtons wer e awa rded $10,500,000 by a j u ry in 2007 but

asser ts that the Whit tingtons reje cted that awa rd. Acc ording ly , the City insists that the Whit tingtons

wer e n o t en t i tled to an interest awa rd for the period of time betwee n the 2007 judgme nt and the 2013 judgme nt.

The Whi ttingtons’ Appeal

I n their appea l, the Whit tingtons contest the portion of the district court’s judgme nt

awa rding the City the investment interest ear ned on the deposits th at t h e C ity made to the court
reg istry

. At the time that the district court e ntere d the 2013 judg ment, the investment interest that had been ear

ned on the acc ount was approximately $1.8 milli on. When challeng ing this portion of th e d is tr ic t c o u

r t’ s ju d g me n t, th e Wh it

ti n g to n s c o n te n d th a

t th e d is tr ic t c o u

r t’ s ju d g me n t is in c o n s is te n t with the common law rule requiring that interest follow principal, is not authorized by the Property Code, and is contra

ry to the manner in which prejudg ment intere s t i s ca l culated in condemna tion

8case s. I n resolving this issue on appea l, we must bear in mind that this issue only conce rns the 2
interest acc rued o n t h e d ep o sits that the City made to the court reg istry and does not addre ss the prejudg ment intere s t t h at t h e district court order ed the City to pay on the portion of the valuation

a w a r d th a t e xc e e d e d th e a

mo u n t o f th e d e p o s it s
. S

e e 2 0 0 5 W h it ti n g to n , 1 7 4 S. W. 3 d a

t 9 0 7 ( e xp la in in g that proper

ty owner s are entitled to prejudg ment interest on any awa rd g iven by trial court that exceeds amount of deposit but stating that owner s do not recei ve prejudg ment interest on amount of deposit). As discusse d ear lier, t he dis trict court determined that the Whittingtons were entitled
to prejudg ment interest on t h e p ortion of the $10,500,000 judgme nt that exceede d the deposits totaling $7,750,000, but as pointed out by the Whit tingtons in this issue, the court conclude d that the Whit tingtons we re not e ntitled to int ere st of any kind on the $7,750,000 deposit. When arg uing in favor of the dist ri ct court’s decision, the City contends that the Whit tingtons had no rig ht to the i nvestment interest on the funds deposited by the C ity

. First, the City arg ues that the Property Code expli citly states t h at condemning authorities are entitled to the i n tere st on funds deposit ed with trial courts. See Tex. Prop. Code § 21.021. Under the C ode, “[a]ft er the specia l commissioners have made an awa rd in a condemna tion proce eding , . . . the condemnor may take possession of the condemne d proper ty pending the results of further litigation
if the condemnor” ful fi l l s t he st atutory require ments. Id. § 21.021(a) ; see also City of Houston v. T exan Land & Cattl e C o. , 138 S.W .3d 382, 390 (Tex. App.—Houston [14t h Dist.] 2004, no pet

. )

I n rela ted arg uments, th e Whit tingtons also contend that the district court’s decision to 2 awa rd the investment interest to the City resulted in an u nconstitutional taking and denied them

“ ju s t” a n d “ a d e q u a te ” c o mp e n s a

ti o n
. B e c a u s e w e a r e p e r s u a d e d b y th e Wh it

ti n g to n s ’ o th e r a

r g u me n ts , we need not addre ss their constit utional claims. See Stockton v. Offenbach , 336 S.W .3d 610, 618 ( T e x. 2 0 1 1 ) ( in s tr

u c ti n g c o u

r ts to a v o id ma k in g c o n s ti tu

ti o n a l r u li n g s if a lt e r

n a ti v e r u li n g is p o s s ib le )

. 9(explaining that when seeking to condemn proper ty , condemning authority has two options: “he can either make the requisite deposit and take immediate possession of the proper ty , or he may awa it the jury ’s decision and leave the condemne e with possession during the pendenc y of suit”). Specifica lly , the conde mnor must:
(1 ) pay [] to the proper

ty owner the amount of damag es and costs awa rded by th e specia l co m missioners or deposit[ ] that amount of m oney with the court subject t o the orde r of the pr operty

owner ; (2) d ep o s it[ ] with the court either the amount of money awa rded by the specia l commissioners as damag es or a surety bond in the s ame amount issued by a surety company qualified to do business i n t h is state, conditioned to secur e the pay ment of an awa

rd of damag es by the court in excess of the award o f the specia l commissioners; and (3) execute[] a bond that has two or more g ood and solvent sureties approve d by the judge of the court in which the proce eding is pending and conditioned to secur e the pay ment of additi onal costs that may be aw arde d to the property owner by the t rial court or on a

ppeal.

T e x. Pr o p
. Co d e § 2 1

. 0 2 1 ( a )

. A f te r n o ti n g th e s e r e q

u ir e me n ts , th e Ci ty c o n

te n d s th a t if a c o n d e mn in g entity seeks to g ain po s s es s i on by pay ing the require d deposit, trial courts are obliga ted under the Code to “pay t h e i n t er est that acc rues from the deposit or investment to the condemnor .” Id. § 21.021(d). Acc ording ly , the City asser ts that the trial co u rt p ro perly awa rded to the City the interest ea

rned f rom investing the deposit. The City ’s relianc e on this provision is misplaced. See City of Rock wall v. Hughes , 246 S.W .3d 621, 625-26 (Tex. 2008) (desc ribing manner in which courts construe statutes). The provision instructing courts to awa rd interest to a condemnor specifie s that the instruction is limit ed
to deposits made “under Subdivis ion (2) of Subsection (a) .” Tex. Prop. Code § 21.021(d). Fur ther,

10the statute in question excuses cond em n o rs that are also g overnme ntal entities from pay ing the

additional deposits require d by subsections 21.021(a) (2) and (a) (3). Id. § 21.021(b) (providing that “[t] his state, a county , or a municipal corpor ation

. . . is not require d to deposit a bond or the amount equal to the awa

rd of damag es under Subdivis ions ( 2) and (3) of Subsection (a) ”). I n other words,
g overnme ntal units, like the City , are not require d to make the additional deposit that is the subject of the Property Code’s instruction oblig ating trial courts to a war d interest ea

rned on the deposit to a conde mnor. Id. § 21.021(a) , (c) , (d). 3

By only imposing this require ment on deposits made under subsection 21.021(a) (2), the leg islature has seeming ly deter mined that the acc rued interest on deposits re q u i red under subsection 21.021(a) (1) does not belong to the condemnor

. This differ ential trea tment is supported by the stated purpose for the two ty pes of deposits. I n particula r, the first deposit is to be made either
to the prope rty

owner or the re g istry

of the court “subjec t to the order of the property owner ,” and
t h e amount of the deposit is equal to the awa rd deter mined by the specia l commissioners. Id. § 21.021(a) (1); Thomas v. Housing Auth. , 264 S.W .2d 93, 94 (Tex. 1953) (explaining that “subjec t

On appea l, the City contends that construing the g overning statutes in the manner descr ibed 3 above place s g overnme ntal entities “in an inferior p o s i t ion to private condemnor s” beca use this construction denies g overnme ntal entities “ac cumulated interest that the private condemnor s would be statutorily entitled to.” We disag ree
. Our deter mination that condemnor s are not entitled to investment i n t erest acc rued on a deposit made under subsection 21.021(a) (1) would seem to have equal applicability to private entities as we l l as g overnme ntal ones. See Tex. Prop. Code § 21.021(a) (1). Acc ording ly , p r iv a te and g overnme ntal condemnor s are trea ted identically reg arding these ty pes of deposits. Moreove r, al t h o u g h the Property Code does allow non-g overnme ntal condemnor s to rec over interest on a deposit made under subsection 21.021(a) (2), id. § 21.021(a) (2), (d), we cannot ag ree that this results in pref er en t i al trea tment to private condemnor s beca use the Code entirely excuses g overnme ntal condemnor s from the obliga tion of making this ty pe of deposit at all, id. § 21.021(a) (2), ( c). 11to the order of” means that “the lan downer may withdraw the deposit”). Moreove r, the proper ty

owner ’s “rig ht to have full control over the deposited funds, including interest acc rued,” is the “quid
p r o q u o f o r [t h e c o n d e mn o r ]’ s r ig

h t o f im me d ia te p o s s e s s io n
. ” S

ta te v
. G o r

d o n , N o
. 1 4

- 9 4

- 0 0 8 6 8

- CV , 1996 Tex. App. L EXI S 605, at *11 (Tex. App.—Houston [14t h Dist.] Fe b. 15, 1996, writ denied) ;

see also id. at * 1 0 -1 1 (conc luding that proper ty owner was proper ly awa rded interest on deposit made in court’s reg is try beca use condemnor took immediate possession of proper ty afte r making deposit require d by

subsection 21.021(a )(1) of Proper ty Code).
On the other hand, the second deposit, which is the ty pe subject to the instruction that interest ear

ned on the deposit be awa

rded to the condemnor , Tex. Prop. Code § 21.021(d), is require d in order “ to secure the pay ment of an a

war d of damag es by the court in e x cess of the a war d by the specia l commissioners,” id. § 21.021(a) (2). Unlike the first ty pe of deposit, proper

ty owner s do not have control over the funds when they are d ep o s i t ed and may only withdraw the funds afte r the j u d gm en t b ecome s final and only if the amount of the judgme nt exceeds the amount set by the specia l commissioners. See Central Power & Light Co. v. Graddy , 318 S.W .2d 943, 951 (Tex. Civ. App.—Houston 1958, no writ) (explaining that under prede cessor statute, proper ty owner had rig ht
to withdraw first deposit in amount of commissioners’ awa rd when deposit was made but that owner could not withdraw second deposit in same amount, which was made to protec t owner if there was incre ase in amount of damag es, until afte r judgme nt beca me final), disapproved of on other grounds by State v. Mey er , 403 S.W .2d 366, 375 (Tex. 1966). The limit ation on interest acc rued on this ty pe of deposit makes sense g iven that the deposit is desig ned to ensure that p ro p er t y o wn ers will be able to rec over any amount of the final judgme nt that exceeds the award made by the specia l

12commissioners. I n other words, if the amount of t he final judgment doe s not ex cee d the awa rd of the spec i al commissioners, no portion of the second deposit is neede d to fully compensa te the
p ro p er t y owner , and there fore , the proper ty owner should not rec over the acc rued interest on t h e deposit. I f the judgme nt amount does exc eed the amount of the awa rd, the limit ation still makes

sense beca

use, as evidenc ed by the district court’s judgme nt in this case , the propert y owner is

en t itled to rec over prejudg ment interest on the amount that exceeds the specia l commiss i o n er s ’

awa rd i n order to fully compensa te t he owner for t h e taking of his proper ty

. See Tex. Prop. Code § 21.021(a) (2), (d). Acc ording ly , the proper ty owner is made whole without needing to awa rd him the intere st acc rued on the deposit. 4

When suppor

ting the district court’s decision, the City points to a prior case by this Court 4 that the City

insists has settl ed thi s issue in its favor

. See Hopkins v. State , No. 03-03-00499- CV, 2006 Tex. App. L EXI S 3530 (Tex. App.—Austin Apr. 27, 2006, pet. denied) (mem. op.). I n that case , like this one, the proper ty owner asked to transfe r a condemna tion deposit “into an interestbear ing acc ount.” Id. at *2. The trial court awa rded interest on the funds to the owner , and the State d i d n o t ch al l eng e the interest awa rd. Id. at *5, *25. The entirety of the issue perta ining to t h i s interest aw ard is as f

ollows:
I n their fourth issue, appellants asser t that the judgme nt does no t cl ea rl y awa rd them the $35,462 held in the reg istry of the court along with the interest that acc rued while in the interest-be aring acc ount. They acknow ledg e th at the State “does not contest [ their] rig ht to rece ive t he award deposit (and the interest on such deposit), as indicated by its motion for judgme nt,” but arg ue that reg ardle ss o f t he State’s ag ree ment, “the judg ment itself must clearly g rant this relief

.” The State took posse ssion of the conde mned prope rty

afte r it deposited the amount of the specia l commissioners’ awa rd into the reg istry of t h e court. See Tex. Prop. Co d e A n n
. § 2 1

. 0 2 1 ( a ) ( 2 )

. Wh e n it d e p o s it e d th e mo n e y , th e p a r ti e s a g r e e d to tr a

n s f e r the m oney into an int ere st bear ing acc o u n t. Under these circumstance s, “the court shall pay the interest that acc rues from the deposit or investment to the condemnor .” Id. § 21.021(d). Thus, the court was not require d to awa rd the interest to appellants. The trial court awa

rded appellants the underly ing amount in a ddition to the interest acc rued beca

use the ultimate awa

rd exceede d both the orig inal awa rd and the amount 13Next, the City asser ts that even if subsection 21.021(d) of the Property Code does not compel a deter

mination that the C i t y wa s entitled to the interest ear ned on the deposit, then the

s ta tu te is s il e n t o n th e is s u e
. S

e e id

. § 2 1

. 0 2 1

. A c c o r d in g ly , th e Ci ty in s is ts th a t th e g o v e r

n in g s ta tu te s should be construe d in acc ordanc e with g ener al leg al principles indicating that judgme nt cre ditors

are not entitled to interest awa rds once they have rec eived and have complete acc ess to an awa rd of damag es. See Miga v. Jense n , 96 S.W .3d 207, 212 (Tex. 2002) (providing that “[w]hen a judgme nt

cre ditor has rec eived an unconditional tender of the money awa rded, and may invest it as he chooses, there is no need for the continuing acc rual of post-judgme nt interest”) ; see also Arete Partners, L.P.

v. Gunnerman , 643 F.3d 410, 416 (5th Cir. 2011) (ex plaining that case s have held that if plaintiff

can acc ess funds without condition, “ther e is no need to compensa te him” with prejudg ment interest “in the eve nt he does not” but concluding that rule was inapplicable in that case ). I n addition, the

of interest acc rued in the acc ount. Although appellants also arg ue that the judgme nt is in s u f f ic ie n tl y d e f

in it e to s u p p o r t th e ir r ig h t to th e o r ig in a l a

w a r d , w e d is a g r e e
. T h e judgme nt rec ites that the orig inal awa rd, along with interest, shou l d b e cr ed ited to appellants. We over

rule a ppellants’ four

th issue. Id. at *24-26. As shown a bove, this Court did not make a ny aff irmative dec lara

tion reg arding the propriety of prejudg ment-intere st awa rds in condemna tio n proce eding s by g overnme ntal entities; instead, the holding on this issue was limit ed to a deter mination that the trial court’s underlying judgme nt was clea

r enoug h to awa

rd the appellants all of the relief that they reques t ed , i n cl uding prejudg ment interest. Id. When this Court commented that interest g oes to the condemnor , we also, perha ps mistakenly , stated that the deposit at issue in that case was made under subsection 21.021(a) (2) rathe r than subsection 21.021(a) (1), which is the rele vant su b s e c ti o n in the prese nt case
. See Tex. Prop. Code § 21.021(a) (1), (2). More importantly , those comments wer e not nece ssary to any holding and wer e, there fore , mere ly dicta. See Travelers Indem

. Co. v. Fuller , 892 S.W .2d 848, 852 n.3 (Tex. 1995) (explaining that dicta is mere expression of op i n i o n o n issue not nece ssarily involved in case and does not cre ate binding prec edent) ; Edwards v. Kaye , 9 S.W .3d 310, 314 (Tex. App.—Houston [14t h Dist.] 1999, pet. denied) (providing that “[d] ictum is an observa tion or rema rk made conce rning some rule, princip l e, or application of law sug g ested in a particula r case , which observa tion or remar

k is not necessa

ry to the deter

mination of the ca se”)

. 14City highlig hts condemna tion case s standing for the proposition that “whe n a condemning authority

tender s the amount of the c ommissi oners’ awa rd in the re g istry

of the c ourt, it toll s the running of interest, at least to the amount so tender ed” beca use “the condemne e may withdraw the deposit and is entitled to the use of the money pending a cour

t de termination of his da

mag es.” Lin v. Houston Cmty. Coll. Sys. , 948 S.W .2d 328, 338 (Tex. App.—Amar illo 1997, writ denied) ; see Housing Auth.

v. Shambry , 252 S.W .2d 963, 966 (Tex. Civ. App.—Austin 1952, writ ref ’d n.r.e.) (on reh’ g ) (stating that in c ases wher e amount of damag es is only issue, “the de posit is t he equiva lent of a tender and
preve nts the running of interest to t he extent of the deposit ”); see also Shambry v. Housing Auth. , 255 S.W .2d 184, 185 (T ex
. 1 9 5 3 ) (appr oving appellate court’s ruling on interest but ref using application for

writ).
As po i n t ed out by the City , if the condemnor elec ts to pay the deposit, “any prejudg ment interest that would acc rue as a result of the condemnor ’s possession is tolled.” Texan
L a nd & Cattl e Co. , 138 S.W .3d at 390; see also id. (explaining that for condemna tion case s, “pre judgme nt i n t er es t d oes not beg in to acc rue until the condemnor takes possession of the
proper ty ”). The rationale behind this r ule is that once the deposit is made, the prope rty owner has the right to use or invest those funds and will only be awarde d additional prejudg ment i ntere st on

awa rds that exceed the amount of the deposit beca use the additional amount repr esents money that the proper ty owner was deprive d of befor e the judgme nt. See 2005 W hittingt on , 174 S.W .3d at 907. The intere st awar d soug ht by the Whit tingtons in this case is complete ly consistent with these g ener al principles. As set out above, the City deposited the amount of the commissioners’

awa rd, and the Whit tingtons and the City asked the trial court to invest those funds. Ra t h er than

15seeking to compel the City to pay a prejudg ment-intere st awa rd on funds that simply sat in the court
reg istry , the Whit tingtons soug ht the investment interest that was ear ned on the deposit afte r it was transfe rre d. Acc ording ly , the interest soug ht is consistent with the premise that funds deposited by the condemning au t h o ri t y belong to the proper ty owner and with the premise that owner s do not

rec eive a prejudg ment-intere st awa rd from condemnor s on the amoun t o f t h e deposit beca use the

owner s are fre e to use and invest the money as they see fit. That is essentially what occur red in this

case , and the City ’s construction would lead to the unrea sonable result that proper ty owner s are not entitled to investment income when the investments are mad e with the permission of trial courts but are entitled to investment income g enerat ed from the same ty pe of investment if the owner s

c o mp le te ly r e mo v e th e d e p o s it f r o m th e c u s to d

y o f th e c o u

r t. S e e C& H Na ti o n wi d

e , I n c
. v
. Th o m

p s o n , 903 S.W .2d 315, 322 n.5 (Tex. 1994) (explaining that courts should not construe statute in manner that leads to absur d results “if the pr ovision is s ubject to another , more re asonable construction or
i n t er p retation”), disapproved on other grounds by Battaglia v. Alexande r , 177 S.W .3d 893, 90 9 (Tex. 2005).
Moreove r, in cha lleng ing the condemna tion in thi s case , the Whit tingtons disputed
not only the amount of the awa rd but also the propriety of the condemna tion. Had the Whit tingtons

remove d the deposit completely from the control of the trial court, they would have been prec luded from challeng ing the City ’s rig ht to take their proper ty

. See Coastal Indus. W

ater Auth. v. Celanese Corp. of Am. , 592 S.W .2d 597, 599 (Tex. 1979); Hanford-Southport, LLC v. C ity of San Antonio , 3 8 7 S. W. 3 d 8 4 9 , 8 5 0 ( T e x. A p p
. — Sa n A n to n io 2 0 1 2 , p e t. d e n ie d )

. We f in d n o th in g in th e g o v e r

n in g framework that would justify a c o n c lu s ion that proper ty owner s seeking to challeng e only the amount

16of a condemna tion awa rd should be trea ted more favor ably than owner s who want to challeng e the amount of the evalua tion as well as the propriety of the condemna tion. The $1.8 milli on in 5
i n v es tment interest at issue in this case illust rate s just how signific ant and unrea sonable t h at differ ential trea tment could be.

As will be addre ssed more t h o ro u gh l y later in the opinion, the City contends that the 5 Whit tingtons proce durally waived this claim by not proper ly prese nting their claim for the interest. Howeve r, the City also prese nts waiver arg uments rela ted t o the issue discussed above: the Whit tingtons’ decision to challeng e the City ’s ability to take their proper ty

. For example, in one set of arg uments, the City contends that the Whit tingtons waived their claim for the acc rued interest by ref using “to acc ept the funds tender ed them by the City ’s deposits.” Essentially , the City urg es that the Whit tingtons wer e free t o withdraw the funds from the reg istry afte r the 2003 judgme nt was re n dere d but that the Whit tingtons chose instead to challeng e the City ’s rig ht to conde m n t h e proper ty at all. For that rea son, the City arg ues that the Whit tingtons voluntarily chose not to acc ess the money and also chose to fore g o any investment opportunities that the money would have g iven them. I n addition, the City insists that beca use the Whit tingtons chose to challeng e the rig ht of the City to condemn the proper ty instead of elec ting to exercise control over the d ep o sited funds, the Whit tingtons “made an elec tion of reme dies,” which included an elec tion “to fore g o any rig ht they might have ot herw ise had .

. . to interest on the deposited funds for the duration of the exercise of their elec tion.” See Krobar Drilling, L.L.C

. v. Ormiston , 426 S.W .3d 107, 113 (Tex. A p p
. — H o u s to n [1st Dist.] 2012, pet. denied) (discussing doctrine of elec tion of remedie s).
As discussed above, if the Whit tingtons had taken the funds completely from the custody of th e tr ia l c o u

r t, th e y w o u ld h a

v e b e e n u n a b le to c h a ll e n g e th e a

b il it y o f th e Ci ty to c o n d e mn B lo c k 3 8

. See Hanford-Southport, LLC v. City of San Antonio , 387 S.W .3d 849, 850 (Tex. App.—San Antonio 2012, pet. denied)

. Moreove r, while the City corr ectly points out that proper ty owner s may choose to challeng e the condemning authorities’ ability to condemn or to acc ept the decision but challeng e the amount of the awa

rd, we can see no rea son to conclude that the elec tion to choose the first of two e q u a ll y p e r mi s s ib le r e me d ie s s h o u ld r e s u lt in th e o w n e r b e in g d e n ie d f u ll c o mp e n s a

ti o n
. F u r th e r , w e cannot ag ree with the City ’s asser tion that the Whit tingtons ag ree d to g ive up any acc umulation of in te r e s t o n th e d e p o s it ; a s d is c u s s e d a b o v e , th e Wh it

ti n g to n s a s k e d th e tr ia l c o u r t to in v e s t th e mo n e y . See Tex. L oc. Gov’t Code § 117.053(c)

. Acc ording ly , the Whit tingtons did not preve nt the deposit from accumulating interest and then i mpermissibly seek a prejudg ment-intere st awa rd; rathe r, t he Whit tingtons soug ht the return on their elec tion to have the trial court invest the funds. Finally , for the rea sons that are more thoroug hly discussed in the portion of the opinion discussing the City ’s cross-appea l, we do not believe that the Whit tingtons made the ty pe of elec tion of reme dies that could somehow ha ve prohibited them fr om rec overing interest that wa s rig htfully theirs. 17I n addition, the awa rd soug ht by the Whit tingtons is consistent with the common law principle that owner ship of principal deter mines owner ship of interest. See, e.g. , W ebb’s Fabulous Pharmacies, Inc. v. Bec kwith , 449 U.S. 155, 162 (1980) (providing that “[t] he usual and g ener al rule is that any interest on an int erple aded and deposit ed fu n d fo llows the principal and is allocate d to those who are ultimately to be the owner s of that principal” ); State Farm Life Ins. Co. v. Martinez , 216 S.W .3d 799, 808 (Tex. 2007) (explaining that afte r funds are deposited into reg istry , “intere st

acc rues to its ultimate owner ”); cf. Mol d o n v. C o u n t

y of Clark , 188 P.3d 76, 78 (Ne v. 2008) (conc luding that proper

ty ow n e r is entitled to interest ear ned on condemna tion deposit); Gove rnment of the Virgin I

slands v

. 8560 Square Fee t of Land , 41 V.I

. 120, 125 (Ter r. V.I

. 1999) (de termining that proper

ty owner was entitl ed to interest accumulated on deposit p l ac ed in trial court’s reg istry
as par t of conde mnation proce eding ). Finally , the City also insists in its briefing that even if the Whit tingtons wer e entitled
to the investment interest on the deposited funds, the “Whitti ng tons waived any claim to the interest th a t a c c u mu la te d o n th e Ci ty ’ s d e p o s it s in to th e c o u r t r e g is tr y . ” A s s u p p o r t f o r th is a r g u me n t, th e Ci ty
arg ues that the 2003 judgme nt, which awa rded the W h i t tingtons $7,750,000, did not specific ally

a w a r d th e Wh it

ti n g to n s th e a c c u

mu la te d in te r e s t. M o r e o v e r , th e Ci ty n o te s th a t w h e n th e Wh it

ti n g to n s
appea led that judgme nt, they did not prese nt any issue reg arding the acc umulated interest. Simi larly , the City points out t hat when the Whit tingtons filed their motion for judgme nt reg arding the 2007
proce eding , their proposed judgme nt reque sted that “[a]ny excess reg istry funds rema ining afte r
pay ment of the sums awa

rded to the Whit tingtons under this judgme nt shall be returne d to the City ” and, acc ording ly , made no reque st reg arding the acc umulated interest. Fur thermore , the City notes

18that the 2007 judgmen t i n corpor ated that excess-fund request and did not awa rd t he W hittingtons the investment interest. I n addition, the City highlig hts that the Whit tingtons did not appea l the 2007 judgme nt. See Tex. R. App. P. 25.1(c) (re quiring party seeking to alter trial court’s judgme nt to file notice of appea l); Lubbock Cnty. v. Trammel’s Lubbock Bail Bonds , 80 S.W .3d 580, 584 (Tex. 2002) (conc luding that issue was waived when party prese n t i n g cl aim did not appea l trial court’s judgme nt); see also N

ee l ey v. W

est Orange-Cov e C onsol. Indep. Sch. Dist. , 228 S.W .3d 864, 867 (Tex. App.—Austin 2007, pet. denied) (providing that party may not prese nt “issue on rema nd that it failed to raise in previous appe llate proc eeding s”).

We disag ree
. When this Court reve rsed the 2003 judgme nt in response to the appea l filed by the Whit tingtons, we reve rsed the trial court’s judgme nt and rema nded the case for further proceed i n gs
. S

ee 2005 W

hittingt on , 174 S.W .3d at 906. Moreove r, the only limit ation that this
Court offe red on rema

nd conce rned prejudg ment interest on any awa rd exceeding the amount of the specia l c ommissi oners’ evalua tion, id. at 906-08, and we made no ruling reg arding the investment interest that beg an acc ruing when the deposit was transfe rre d to an in v e s tm e n t a c count. Acc ording ly ,

o u r reve rsal and rema

nd eff ectively reope ned the case “in i ts entirety ,” Simulis, L.L.C

. v. Gener a l Elec. Capital Corp. , 392 S.W .3d 729, 734 (Tex. App.—Houston [14t h Dist.] 2011, pet. denied) , and the case was reinstated on the trial court’s docket “as though it had never been tried,” see Profitli ve P’ship v. Surber , 248 S.W .3d 259, 262 (Tex. App.—For t Worth 2007, no pet.). Compare Manon

v. Solis , 142 S.W .3d 380, 386 (Tex. App.—Houston [14t h Dist.] 2004, pet. denied) (explaining that

rema nd without special limiti ng instructions allows trial court to have “a new trial on all iss ues of fac t”), with Neeley , 228 S.W .3d at 867 (conc luding that party could not challeng e other party ’s rig ht

19to attorney ’s fees when rema nd was limited to determination of a mount of those fee s), and Miller

v. University Sav. Assoc. , 858 S.W .2d 33, 35-36 (Tex. App.—Houston [14t h D i s t

. ] 1 9 9 3 , w r it d e n ie d ) ( d e te r mi n in g th a t p a r ty ma y n o t a g a in c o n te s t l ia

b il it y in s e c o n d a p p e a l w h e n first appe al re manded

case only for de termination reg arding damag es).
On rema nd, the jury deter

mined that the condemna tion was i m p roper but also deter mined th e fa i r m ar k et value of Bloc k 38. I n its 2007 judgme nt, the di strict court ag ree d that the condemna

tion was improper, W

hittingt on , 384 S.W .3d at 776, o rd er ed the City to surre nder possession of the proper

ty , require d the City to pay compensa tion for its temporar y possession of Bloc k 38, and returne d the rema ining portion of the deposit to the City

. Acc ording ly , under the 2007 jud gm en t , the Whit tingtons wer e not entitled to the deposit nor to the investment interest on that deposit. After the trial court’s decision was aff irmed by this Court, 2010 W hittingt on , 379 S.W .3d
at 283, the supreme court reve rsed, deter mined that the City had the authority to condemn Bloc k 38, and rema n d ed “for entry of judgme nt in acc ordanc e with [i ts] opinion,” W hittingt on , 384 S.W .3d
at 792. Ba s ed o n this dispositi on and history , we do not believe that the Whit tingtons somehow waived their rig ht to pursue a claim for the investment interest on the deposit made by the City

. See
D iG iu s e p p e v
. La wl

e r , 2 6 9 S. W. 3 d 5 8 8 , 6 0 3 ( T e x. 2 0 0 8 ) ( e xp la in in g th a t “ a li ti g a n t w h o h a s o b ta in e d

a favor able judgme nt and has no rea son to complain in the trial court is not require d to raise an issue
reg arding an alternate gr ound o f recover y until an appellate court reve rses the judgme nt” and that party does not waive alterna tive g round for rec overy by prese nting it for first time afte r reve rsal on
appea l); cf. Boyc e Iron W

orks, Inc. v. Southwestern Bell Tel. Co. , 747 S.W .2d 785, 787 (Tex. 1988) (providing that if jury makes alterna tive theories of rec overy , party may seek reco v er y u n d er “alter native theor

y if the judg ment is rever sed on appe al”)

. 20For all the rea sons previously g iven, we sustain th e W h i t t ingtons’ issue on appea l

challeng ing the trial court’ s decision to awa rd the investment intere st to the Cit y . The City’s Cross- appeal

I n its cross-a

ppeal, the City arg ues that when the district court deter mined the amount of the prejudg ment- and postjudgment-i n t erest awa rds, it improperly based those calc ulations on the date of the 2007 judgme nt and the corr esponding interest rate at that time rathe r than the date of the 2013 judgme nt and the corr esponding interest rate

. Consequently , the City contends that it was improperly

obliga ted to pay

milli ons more in intere st than it should have been. Under the Fina nce Code , “postjudg ment interest on a money judgme nt

. . . acc rues during the period beg inning on the date the judgme nt is rende red.” Tex. Fin. Code § 304.005.
Rece ntly , the supreme court has issued two opinions addre ss i n g wh en a trial court’s judgme nt is considere d “re ndere d” afte r i t h as been appea led. See Long v. Castle Tex. Prod. Ltd. P’ship , 426 S.W .3d 73 (Tex. 2014); Phillips v. Bramlett , 407 S.W .3d 229 (Tex. 2 0 1 3). I n Bramlett , the
Br amletts filed a healthcar e claim ag ainst Phill ips and wer e aw arde d actua l damag es, and Phillips
appea led the trial court’s judgme nt. 407 S.W .3d at 232. On appea l, the intermediate appellate court aff irmed the actua l damag es awa rded. Id. Subsequently , Phill ips appea led the intermediate ruling , and the supreme court deter mined that “for

mer article 4590i cappe d Phill ips’s liability .” Id. at 233.
Acc ording ly , the supreme court “re verse d the court of appea ls’ judgme nt, and rema nded the case to the trial court for entry of a new judgme nt c onsistent with [i ts] opinion.” Id. On rema nd, “no new evidenc e” was admitted, and “both sides moved for entry of a new judgme nt.” Id. I n its judgme nt, the trial court “aw arde d th e Bramletts actua l damag es cappe d under former article 4590i plus

21postjudgment interest calc ulated from the date of the rema nd judgme nt.” Id. Th e Br amletts
appea led the trial court’s judgme nt and arg ued that the trial court err ed by calc ulating postjudgment interest from the date of the rema nd judgme nt rathe r than the date of the orig inal judgme nt. Id. The court of a ppeals a g ree d with the Br amletts, and Philli ps appea led the interme diate ruling

. Id. When deciding which t ri al court judgme nt should serve as the starting point for interest calc ulations, the s u p r e me c ourt explained that it has consistently held that “whe n an appellate
court reve rses a trial court’s judgme nt and rende rs judgme nt on appea l, p o s tjudgment interest beg ins to run from the date of t he trial court’s judgment, not the l ater date of the appellate cour t’s judgme nt.” Id. at 239. I n addition, the s upreme court ex plained that when it orig inally rema nded the case , it “per

mitted the trial court to enter a final judgme nt tha t r efle cted this Court’s holdings.” Id. at 237. I n light of this limit ed rema nd, the supreme court held that “whe n an ap p el l at e co u rt

rema nds a case to the trial court for entry of judgme nt consistent with the appellate court’s opinion, and the tria l court is not require d to admit new or additional evidenc e to enter that judg ment, as is the case here , the date the trial court enter ed the orig inal judgme nt is the ‘date the judgme nt is rende red,’ and postjudg ment interest beg ins to a ccr ue and is c alculate d as of that date .” Id. at 239 (construing “date the judgme nt is rende red” as mentioned in section 304.005 of Financ e Code). I n

rea ching this decision, the supreme court analog ized the fac ts to those in D.C. Hall Transport ation,
Inc. v. Hard , 355 S.W .2d 257, 258 (Tex. Civ. App.—Fort Worth 1962, writ ref’ d n.r.e.) , in which the trial court on rema

nd considere d no new evidenc e an d deter mined that postjudgment interest should r un from the date of the orig inal judgme nt. Bramlett , 407 S.W .3d at 240. I n endorsing the decision by that trial court , t h e s u p re me court relied heavily on the rea soning of the intermediate

22appellate court in D.C. Hall , which explained that the case was not rema nded for a new trial, that the

rema nd conta i n ed instructions direc ting the trial court to make additional finding s based on the

rec ord from the orig inal trial, and t h at t h e judgme nt on rema nd eff ectively took the place of the orig inal judgme nt. Id. (citing D.C. Hall , 355 S.W .2d at 260).

Shortly afte r the supreme co u rt rele ased its opinion in Bramlett , it issued another opinion further solidify ing the holding from Bramlett

. See Long , 426 S.W .3d 73. I n Long , a contra ct dispute resulted in a trial court judg ment in favor of Castle Texas Production L imited Partnership and ag ainst L ong
. Id. at 76. On appea l to the intermediate appellate court, the court deter mined that the trial court improperly calc ulated the amount of prejudg ment interest owed and rema nded the case
to the trial court “to rec alculate prejudg ment interest” in acc ordanc e with the “par ties’ joint opera ting
ag ree ment.” Id. On remand, over Castle’s objections, “the trial court conclude d multipl e times that it require d evidenc e
. . . to adjudicate prejudg ment interest under the joint opera ting ag ree ment.” Id. at 85. Subsequently , the trial court issued a judgme n t awa rding Castle postjudgment interest from the date of the orig inal judgme nt, a nd L ong appea led. Id. at 77, 85. The court of appea ls a ffirme d the trial cour

t’s judgme nt, and L ong appea led ag ain. Id. at 77. When issuing its decision, the supreme court explained that in g ener al “if a n a ppellate
court reve rses [a] final judgme nt a nd rema nds for further proce eding s, the orig inal, err oneous trial
court judgme nt is no longe r final beca use it no longe r disposes of all parties and claims.” Id. at 79.
Fur ther, the court provided that “if a rema nd results in multipl e trial court judgme nts, postjudgment interest acc rues from the date of the final judgme nt (ra ther than the orig inal, err oneous judgme nt).” Id. Howeve r, the court explained that “if a rema nd d o es n o t re q uire the trial court to reope n the

rec ord” or “if an appellate court rende rs the judgme nt the trial court should have rende red,” then an 23exception to that g ener al rule applies, “and postjudgment i n t er es t wi ll acc rue from the date of t he

orig inal, err oneous judgme nt.” Id. at 79-80 (discussing Rule of Appellate Procedur e 43.3); see also
Tex. R. App. P. 4 3

. 3 (providing that “[w]hen reve rsing a trial court’s judgme nt, the court must rende r the judgme nt that the trial court should have rende red, except when: (a) a rema nd is nece ssary for further proce eding s; or (b) the interest s o f justice require a rema nd for another trial”). Stated differ ently , the court ex p l ained that “[t] he ex ception is when the appellate court render s (or could have rende red) judgme nt, in which case postjudgme n t i ntere st acc rues from the date of [t he] trial
court’s orig inal, err oneous judgme nt.” Long , 426 S.W .3d at 80. Fur ther, the court clar ified that “[i] f the trial court possessed a sufficie nt rec ord to rende r a corr ect judgme nt, the Financ e Code and the rules of proce dure allow postjudgment interest to a ccr ue from the orig inal judgme nt date” but tha t “if the trial court did not possess a sufficie nt rec ord to rende r a corr ect judgme n t o r t h e rec ord otherwise must be reope ned (as in a retria l), postjudgment intere s t wi l l o nly acc rue on the final judgme nt date once the rec ord is sufficie nt.” Id. at 81 (footnote omitted). Acc ording ly , the supreme
court conclude d “that postjudgment interest acc rues from the date of the final judgme nt (ra ther than the orig inal, err oneous judgme nt) unless the appellate court can or does rende r the judgme nt the trial
court should have rende red.” Id. at 8 2. Moreove r, the court rea soned that “the deter mination of whether the re cord must be r eopene d on rema nd is one for the trial court in the f irst instance to be made based u p o n the t ime of remand.” Id. at 85. Finally , the court reve rsed the appellate court’s judgme nt and conclude d that beca use “[t] he trial court deter mined it require d additional evidenc e”

on rema nd and bec ause the re w as insufficie nt evidence in the rec ord, “postjudg ment interest must

acc rue f rom the trial cour

t’s final judg ment” on re mand. Id. at 87.

24I n the pre sent ca se, the supreme cour t concluded tha t the City

proper ly condemne d Bloc k 38, reve rsed this Court’s previous opinion, and rema nded the case “for entry of judgme nt in

acc ordanc e with [i ts] opinion.” W hittingt on , 384 S.W .3d at 792. After the rema nd, the district court d i d n o t consi der any additional evidenc e or reope n the rec ord befor e issuing the 2013 judgme nt. 6
Neve rtheless, the City insists that the 2013 judgme nt should serve as the starting po i n t for the calc ulation of postjudgment interest. As support for this proposition, the C i t y co n t ends that the
2007 judgme nt was not a final one beca use it did not dispose of the compensa tion issue and instead conclude d that the condemna tion was improper, that the 2013 judgme nt is the only final judgme nt

awa rding the Whit tingtons compensa ti o n f o r th e c o n d e mnation, and that the supreme court’s opinion did not specify

that it wa s rema

nding the ca se to allow the district cour t to issue the judgment that it “should have re ndere d” and instea d simply rema nded the c ase. Howeve r, we are not persua ded by these arg uments. I n Bramlett , the supreme court explained t h at the decision to reve rse or rema nd is often depende nt upon prac tical considerations “the purpose of which g ener ally is not to alter a party ’s substantive rig ht of rec overy
. I t should not be the basis for altering whether a party is entitled to postjudg ment interest during the pendenc y of the appea l.” 407 S

. W

. 3 d at 242. Moreove r, the supreme court has acknow ledg ed that althoug h Rule of Appellate Procedur e 43.3 “re quires a court of appea ls to rende r the judgme nt the trial court should have rende red, the limit ed nature of appellate rec ords can make this task impossibl e.” Long , 426 S.W .3d at 81. For these rea sons, the supreme court has deter mined that the decision of whether the record should be reopene d on rema nd should be left t o the t rial court. Id. I n the present case ,

I n its brie fing , the City repe atedly ag ree s that no new e vidence was pre sented on rema nd. 6 25the district court decide d that it did not need to reope n the rec ord on rema nd in order to comply with the supreme court’s direc tives, and no issue has been prese nted on appea l challeng ing that decision.
Moreove r, like Bramlett , the supreme court remanded the case in W hittingt on with the instruction that the district court enter a judgme nt in acc ordanc e with the opinion and did not order a new trial.
W h it ti n g to n , 3 8 4 S. W. 3 d a

t 7 9 2 ; P h il li p s v
. B r a m le tt , 2 8 8 S. W. 3 d 8 7 6 , 8 8 3 ( T e x. 2 0 0 9 )

. I n a d d it io n ,

a lt h o u g h th e d is tr ic t c o u

r t’ s 2007 judgme nt did not award c ompensation for the condemna tion, the jury did decide the alterna tive issue of compensa tion, and the jury ’s deter mination formed the basis for the 2013 judg ment.

I n an alterna tive set of arg uments, the City contends that the Whit tingtons should
not rec overy any “int er es t b ased on a 2007 acc rual date” from the 2007 judgme nt beca use the Whit tingtons reje cted the $10.5 milli on valuation awa rd deter mined by the jury in 2007 and instead asked the district court to conclude that the City had no rig ht to condemn Bloc k 38 and to order the City to relinquish possession of the proper ty

. Acc ording ly , the City urg es that the delay in pay ment

was entirely attributable to the Whit tingtons and that it should not be responsible for the buildup of
in te r e s t r e s u lt in g f

r o m th e Wh it

ti n g to n s ’ c h o ic e to f

o r e g o c o mp e n s a

ti o n a n d to in s te a d u

n s u c c e s s f u ll y challeng e the City ’s rig ht to condemn the proper ty

. See Miga , 96 S.W .3d at 212 (explaini n g t h at interest aw ards a

re not de signe d to punish judgment debtor)

. Finally , the City construes the Whit tingtons’ decision to challeng e the City ’s rig ht to condemn Bloc k 38 as an elec tion of reme dies, meaning that the Whit tingtons waived any “rig ht to

rec over interest based on a 2007 acc rual date.” See Krobar Drilling, L.L.C

. v. Ormiston , 426 S.W .3d 107, 113 (Tex. A

pp.—Houston [1st Dist.] 2012, pet. denied) (explaining that elec tion of reme dies

26“is the act of choosing betwee n two o r more inconsistent but coexistent modes of proce dure and

relief allowed by law on the same state of fac ts. When a party thus chooses to exercise one of
t h em h e abandons his rig ht to exercise the other reme dy and is prec luded from resor ting to it ”)

. Specifica lly , the City contends “that the Whit tingtons’ elec tion in 2007 to obtain a judgme nt that did
not include compensa tion but barr ed the taking of Bloc k 38 is fundame ntally inconsistent with their being awa rded interest on a compensa tion awa rd from the very date when the trial court reduc ed their choice to final jud gm en t

. ” See id. (providing that “[a]n elec tion betwee n reme dies occur s, at the latest, when a party proce eds to final judgme nt on one claim with knowledg e of an inconsistent claim

or reme dy ” and that “it is the obtaining of a judgme nt on one theory or state of fac ts tha t pr eclude s the ability to pursue other inconsistent reme dies”); F o l ey v. Parlier , 68 S.W .3d 870, 882 (Tex. App.—For

t Worth 2002, no pet.) (cla rify ing that reme dies are inconsistent when one st em s from aff irming transac tion and other from reje cting it). Although the City acknow ledg es t h at the Whit tingtons wer e fre e to seek compensa tion for the taking afte r the supreme court deter mined that the condemna tion was proper , the City insists that the Whit tingtons’ elec tion of reme dies prohibits the Whit tingtons from trea ting the 2007 judgme nt as if it wer e a judgme nt awa rding compensa tion and obtaining an intere st awar d from that date

.

Howeve r, we do not believe that the doctrine of elec t i o n of reme dies has any applicability to this case
. As a preliminary matter, we note that the supreme court has war ned ag ainst expanding the doctrine bey ond its traditional role. See Fina Suppl y, In c. v. Abilene Nat’l Bank , 726 S.W .2d 537, 541 (Tex. 1987) (explaining that doctrine is “not favor ed ’ an d “s hould not be extended”); see also Bocane gra v. Aetna Life Ins. Co. , 605 S.W .2d 848, 850 n.2 (Tex. 1980) (stating

27that doctrine has been re fe rr ed to as “a leg al wee d that judicial g arde ners should root out”). The

doctrine is desig ned “to preve nt a party who has obtained a specific form of reme dy from obtaining

a differ ent and inconsistent r emedy for the same wrong ,” Fina Supply , 726 S.W .2d at 541, and “to
preve nt a double redr ess for a single wrong ,” S l ay v. Burnett Trust , 187 S.W .2d 377, 393 (Tex. 1945). For example, the doctrine has been employ ed to preve nt a party who was awa rded damag es in a suit from filing a subsequent suit seeking damag es for a claim that is inconsistent with the claim from the first suit. See, e.g. , City of Glen Heights v. Sheffield Dev

. Co. , 55 S.W .3d 158, 162, 164, 168 (Tex. App.—Dallas 2001, pet. denied) (conc luding that doctrine applied and p re v ented subsequent suit wher e Sheffield was awa rded damag es in first su it a ll e g in g th a t o r d ina nce constituted impermissible taking of his proper ty and wher e in second suit Sheffield later alleg ed that ordinanc e had no eff

ect on him); cf

. B.L. Nelson & Assocs., Inc. v. City of Argyle , 535 S.W .2d 906, 910-11 (Tex. Civ. App

. — Fo rt Worth 1976, writ ref ’d n.r.e.) (dete rmining that doctrine barr ed claim for quantum meruit wher e plaintiff did not prese nt that claim in his cont ra ct s u i t and only prese nted claim on appe al in which appe llate cour t determined tha t contrac t was void).
I n this case , no impermissibly inconsistent claims wer e prese nted. When a
g overnme ntal entity seeks to acqui re an individual’s proper ty , the entity must pay adequate
compensa tion for the taking

. See Tex. Const. art. I , § 17 (providing that “[n] o person’ s proper ty shall be taken, damag ed, or destroy ed for or applied to public use without adequate compensa tion be ing made, unless by the consent of such person” ). Howeve r, in resisting the entity ’s eff orts, the proper

ty

owner may challeng e whe ther the c ondemnation was pe rmissible and whethe r the amount offe red

as compensa tion was adequate. S ee Hanford-Southport , 387 S.W .3d at 850 (explaining that if
proper ty owner does not remove deposit from custody of t rial cour t , h e m ay contest condemnor’s
28ability to take prope rty as well as amount of awa rd); Duncan v. Calhoun Cnty. Navigation Dist. , 28 S.W .3d 707, 711 (Tex. App.—Corpus Christ i 2 0 0 0 , pet. denied) (holding that “conde mnation

cause of ac tion encompasses both the issues of ‘rig ht to take’ a

nd ‘just compensation’” ). That is what occur

red in this case , and we can see no rea son to deny the Whit tingtons an intere st awar d simply

beca use they elec ted to pursue and win at t rial t he cla im that would have provided them with the relief that they primarily wanted: ret ai n i n g o wn ership of Bloc k 38. See Krobar Drilling , 426 S.W .3d at 113 (stating that doctrine of elec tion of remed ies is desig ned to
prev en t p ar t y who has obtained one reme dy from also obtaining reme dy for same wrong that is inconsistent with first). Although the Whit tingtons wer e ultimately unsucce ssful in their eff orts to maintain owner ship, the ir elec tion to litigate this permissible claim should not be used as a tool to deny them full rec overy under their alterna tive claim for compensa tion. See Miga , 96 S.W .3d at 212 (stating that interest “is simply compensa tion for a judgme nt cre ditor’s lost opportunity to invest the
money awa

rded as damag es at trial”); State v. Hale , 146 S.W .2d 731, 738 (Tex. 1941) (noting that rig ht to compensation for da mag e to pr operty includes rec overy for “ leg al intere st on the damag es from the time the injury was inflicted”) ; see also DiGiuseppe , 269 S.W .3d at 603 (stating that litigant is not require d to raise issue reg arding alterna tive theory of rec overy until revie wing court reve rses
tr ia l c o u r t’ s ju d g me n t) ; B o

y c e I r o n W o r k s , 7 4 7 S. W. 2 d a

t 7 8 7 ( e xp la in in g th a

t if ju r y r e tu r n s f a v o r a b le finding s on alterna tive theories, preva iling party “may seek r ecove ry

under an alterna

tive theory if the judgme nt is reve rsed on appea l”). The de cision to challeng e the pr opriety of a taking does not waive a proper

ty owner ’s constitutional entitlement to compensa tion if the taking is deeme d proper ,

29and we simil arly can s ee n o rea son to conclude that challeng ing a condemnor ’s authority to take

proper ty waives a proper ty owner ’s rig ht to recove r otherw ise permissible intere st awar ds.
I n challeng ing the district court’s interest awa rds, the City essentially arg ues that by elec ting to ch al l en g e its ability to take their proper ty , the Whit tingtons risked the possibili ty that they would not rec eive full compensa tion for the taking of their proper ty by forf eiting their rig ht to

rec over interest on any amount of compensa tion that exceeds the amount of the deposit made by the City

. We believe that this puni tive interpre tation reve rses the e quities involved here

. By elec ting to condemn B lock 38 and assume possession of the proper ty befor e the c ondemnation proc eeding beca me final, see Texa n L a n d & C a t t l e Co. , 138 S.W .3d at 390, the City ran the risk that the Whit tingtons might challeng e its ability to c ondemn the proper ty and that it would owe interest on
any compensa tion awa

rded that exceede d the amount of the require d deposit, see 2005 W hittingt on , 174 S.W .3d at 907; cf. Gordon , 1996 Tex. App. L EXI S 605, at *11 (conc luding that proper ty owner

wa s ev en enti tled to interest that “ac crue d on the amount by which the specia l commissioners ’

awa rd exc eede d

the jury awa rd”) (empha sis added).
For all of these r easons, we overr ule the City ’s issue ra ised in its cross-appe al.

CONCLUSION Having overr u l ed the City ’s issue on cross-a ppeal and having sustained the Whit tingtons’ issue on appea l, we reve rse the portion of the district court’s judgme nt awa rding the

acc rued investment interest to the City , aff irm the rema inder of the d i s trict court’s judgme nt, and

rema nd the ca se for

further proce eding s consistent with this opi nion.

30__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Goodwin, and F ield
Affir med in part; Rever sed and Rema nded in par

t Filed: January

29, 2015

31