dissenting. Both parties petition for rehearing. The Vuncannons believe they are entitled to attorney’s fees because such fees should be authorized to inverse condemnation cases. While the Vuncannons filed and pursued this matter as an inverse condemnation case, it was not — as I pointed out in my earlier dissent — decided on that theory. The majority opinion initially describes this case as an inverse condemnation case, but no further mention of inverse condemnation is found in the opinion. The opinion more accurately should read that the Vuncannons brought this suit against the City of Jonesboro as one for inverse condemnation.1 Because the majority decided this cause on another theory, the Vuncannons’ argument for attorney’s fees on an inverse condemnation basis is misdirected, and must be denied on this basis alone.
In its petition for rehearing, the City of Jonesboro urges the four-member majority misreads and misapplies the statutory law cited in its opinion. While I agree, I have already addressed this point in my earlier dissent and need say no more on that subject. The city’s petition does prompt me to mention one brief point, however.
The majority opinion specifically concedes that neither party in this cause questions the city’s power to require dedication of rights-of-way in land which is the subject of an initial subdivision plat or development of land. The majority further stated the Vuncannons’ property had been platted, but then mused the majority did not know if the city had a regulation governing the replatting of land or whether that regulation, concerning replatting, by its terms constituted “development of land” under Ark. Code Ann. §§ 14-56-412 and -417 (1987). The city in its rehearing petition announces it does have regulations governing the replatting of land, the regulations define the terms subdivision and development, but the city did not put these regulations into evidence because the regulations were not relevant to the two theories — inverse condemnation and controlled access facility — asserted by the Vuncannons in their cause of action.
The city’s revelation in this respect merely underscores the point I offered in my earlier dissent — “ [I] f the parties had known the legal theory upon which the majority members of the court would decide this case, I have no doubt that the city and the Vuncannons would have presented evidence specifically bearing on such a theory.” This court should have reversed and remanded this case in order to allow both parties the opportunity to address and to offer evidence on the theory the majority court, itself, raised and upon which the court decided this case. Due process requires it.
Hays and Corbin, join this dissenting opinion.To have inverse condemnation, the reasonable commercial use of the property allegedly taken must have been substantially diminished or destroyed. Here, the Vuncannons built the same building they would have built before and are using the disputed nine feet for parking and signs for the shopping center.