AFFIRMED; Opinion Filed July 19, 2017.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-16-00402-CV

                          KMS RETAIL ROWLETT, LP F/K/A
                        KMS RETAIL HUNTSVILLE, LP, Appellant
                                       V.
                        THE CITY OF ROWLETT, TEXAS, Appellee

                       On Appeal from the County Court at Law No. 4
                                   Dallas County, Texas
                           Trial Court Cause No. CC-15-01323-D

                              MEMORANDUM OPINION
                          Before Justices Evans, Stoddart, and Boatright
                                    Opinion by Justice Evans
       KMS Retail Rowlett, LP, f/k/a KMS Retail Huntsville, LP appeals the trial court’s

adverse rulings on cross-motions for summary judgment resulting in a final judgment awarding

KMS stipulated damages of $31,662 for the City of Rowlett’s taking in fee simple of its private

drainage, access, and utility easement (private road easement) for use as a public roadway. In

three issues, KMS generally asserts the summary judgment evidence conclusively establishes, or

creates a fact issue as to whether, the City’s taking was for a private use, specifically, to provide

an economic benefit to a competing developer. KMS also challenges the trial court’s evidentiary

rulings on its objections to the City’s summary judgment evidence and the denial of its request

for attorney’s fees. For the reasons set forth below, we affirm the trial court’s judgment.
                                         BACKGROUND

       Central to this appeal is the validity of the City’s taking of KMS’s private road easement

to convert it to a public roadway. At the location of this dispute, a Wal-Mart Supercenter is

located to the west of KMS’s tract of land separated only by Kenwood Drive that generally runs

north-south. East of KMS’s tract is land owned by Briarwood Armstrong, LLC on which a

Sprouts grocery store later was developed. The private road easement the City condemned

generally runs east-west parallel to Lakeview Parkway. Lakeview Parkway is on the southern

border of the Wal-Mart and Briarwood tracts.           The private road easement connects at

approximately the mid-point of Briarwood’s tract to Kenwood Drive immediately across from an

entrance to approximately the mid-point of Wal-Mart.

       KMS’s undeveloped nine-acre tract is accessible from Kenwood Drive and is part of a

commercial subdivision named Luke’s Landing.         The condemned private road easement is

located on KMS’s tract’s southern boundary. KMS built a private road on the easement in 2006

in conjunction with KMS’s sale of four commercial pad sites located on the southern edge of the

private road easement. The southern boundary of those four commercial tracts is Lakeview

Parkway. By the time of the condemnation proceeding, those four tracts had been developed

into a Wells Fargo bank, Starbucks coffee shop, Chick-fil-A restaurant, and an Arby’s restaurant.

Along Lakeview Parkway, Wal-Mart is west and Briarwood’s tract is east of those four retail

businesses.

       KMS did not complete construction of the private road all the way to end of the easement

on the eastern edge of its subdivision in accordance with the easement in the Luke’s Landing’s

recorded plat. Instead, KMS constructed the private road only to the fourth pad site. To

complete the private road to the end of the easement, KMS would have had to construct a bridge

across a flood plain. At the time the private road was constructed, however, the tract to the east

                                               –2–
of KMS’s tract was undeveloped so the City allowed the development of the four pad sites

without requiring completion of the private road.

         Briarwood owns the twelve-acre tract abutting the east side of the KMS tract. In 2014,

Briarwood entered into an Economic Development Incentive Agreement with the City in

connection with Briarwood’s development of a Sprouts grocery store and other retail lots on its

twelve-acre tract. Among other things, the agreement provided for an infrastructure grant to

Briarwood for the design, construction, improvement and installation of a private circulation

drive and drainage culvert providing for cross-access between its tract and the KMS tract.

After Briarwood learned that it did not have legal authority to enter Luke’s Landing to construct

the drive and drainage culvert, however, it approached KMS for permission. The parties were

unable to reach an agreement. The City then sought to condemn the part of the private road

easement on KMS’s tract and convert it into a public roadway that would allow vehicles to travel

from Kenwood Drive across KMS’s tract to reach the Briarwood tract and vice versa.1 The

City’s economic incentive agreement with Briarwood was amended to reduce Briarwood’s grant

amount for the off-site culvert crossing to reflect the condemnation costs incurred by the City to

convert the private road easement into a public street. Notably, the City sought to condemn only

the boundaries of KMS’s existing private road easement, approximately a fifteen foot strip of

land 691 feet in length, plus a thirty foot wide drainage swale crossing.2

         After the City filed its condemnation petition, special commissioners conducted a hearing

and awarded KMS damages of $31,662 for the taking. KMS filed an answer objecting to the

award and moving to dismiss the eminent domain action, generally alleging the taking was not


    1
    Absent the condemnation, vehicles on the Briarwood tract would not be able to access Kenwood Drive via the
KMS tract, but would have to exit onto Lakeview Parkway and travel west to Kenwood Drive.
    2
       Including voluntary transfers from the four, abutting property owners to the south, the total area consisted of a
thirty-foot wide strip.


                                                         –3–
necessary for a public use and asserting the City’s determinations of necessity and public use

were fraudulent, in bad faith, or arbitrary and capricious.

        The parties filed competing motions for summary judgment regarding the propriety of the

City’s exercise of eminent domain. In its motion, the City requested the trial court deny KMS’s

illegal taking claims, confirm the special commissioners’ damage award, and award the City

reasonable attorney’s fees. KMS moved for summary judgment seeking dismissal of the City’s

eminent domain petition asserting the taking was not necessary for a public use and violated

chapter 2206 of the government code. It also asserted the City’s determinations of public use

and necessity were fraudulent, in bad faith, and arbitrary and capricious. The trial court granted

in part the City’s summary judgment motion and denied KMS’s motion in its entirety, dismissing

with prejudice KMS’s claims related to the alleged illegality of the taking and alleged fraud, bad

faith, and arbitrariness. These rulings were incorporated into a final judgment in the City’s favor

awarding KMS stipulated damages of $31,662.00 which was deposited into the registry of the

court.3 This appeal followed.

                                                  ANALYSIS

        A.       Standard of Review

        We review a trial court’s summary judgment rulings de novo. See Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Both parties moved for summary judgment on

traditional and no-evidence grounds. On their traditional summary judgments, each bears the

burden of establishing that there are no issues of material fact and it is entitled to judgment as a

matter of law. See City of Garland v. The Dallas Morning News, 22 S.W.3d 351, 356 (Tex.

2000). With respect to the no-evidence motions for summary judgment, the non-movant must

    3
      The parties agreed that the amount of the monetary judgment would not be appealed by either party, but the
damages stipulation did not waive or affect KMS’s right to appeal the issues addressed in the summary judgment
rulings.


                                                     –4–
produce more than a scintilla of evidence to raise a fact issue on each challenged element of a

claim on which it had the burden of proof. See Gen. Mills Rests., Inc., v. Tex. Wings, Inc., 12

S.W.3d 827, 832–33 (Tex. App.—Dallas 2000, no pet.). When both parties move for summary

judgment and the trial court grants one party’s motion for summary judgment and denies the

other party’s motion, we can consider both motions, review the summary judgment evidence

presented by both sides, determine all questions presented, and render the judgment the trial

court should have rendered. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872

(Tex. 2000); Malcomson Road Util. Dist. v. Newsom, 171 S.W.3d 257, 263 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied) (op. on reh’g).

        B.       Objections to the City’s summary judgment evidence

        In its fifth issue, KMS contends that the trial court erred in overruling its objections to the

affidavit of James Edward Grabenhorst, the City’s Director of Economic Development. 4 KMS

argues that the affidavit was the only evidence to support the City’s contention that the taking

was necessary for a public use, specifically, to alleviate traffic congestion and traffic hazards.

        A trial court’s evidentiary rulings are matters left to its sound discretion and will not be

disturbed on appeal unless an abuse of discretion is shown. See Cantu v. Horany, 195 S.W.3d

867, 871 (Tex. App.—Dallas 2006, no pet.).            Moreover, we may not reverse for an erroneous

evidentiary ruling unless the error probably caused the rendition of an improper judgment. See

TEX. R. APP. P. 44.1; Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 230 (Tex. 1990). Here, the

summary judgment evidence included the following evidence to which there was no objection:

(1) the City’s formal resolution indicating the taking was for creation of a public street; (2) the

City’s staff report indicating (a) the public street would provide access from Kenwood Drive


    4
       Although KMS identifies this as Issue V, we note that KMS’s “Issues Presented” does not contain a fourth
issue and identifies a total of five issues.


                                                     –5–
across the drainage channel to the Briarwood tract, (b) the drive approach would provide

circulation between retail locations on the north side of Lakewood Parkway, facilitating retail

activity and preventing an increase in traffic flow on Lakeview Parkway, and (c) the public street

is necessary for emergency vehicle access and first responder service; and (3) statements in

Grabenhorst’s affidavit indicating the acquisition of the property in this case was needed for

cross-access and traffic circulation between retail centers that were traffic generators. Because

the statements in Grabenhorst’s affidavit regarding traffic impact and emergency response

vehicles that KMS objected to are substantiated by other unobjected to summary judgment

evidence, any error with respect to the trial court’s overruling of KMS’s objections is harmless.

We resolve this issue against KMS.5

        C.       Public Use and Necessity

        In its first issue, KMS argues that the trial court erred in granting the City’s summary

judgment motion because the summary judgment evidence conclusively established the City’s

condemnation of KMS’s access drive was not necessary for a public use but rather, “to provide

access to a private road over KMS’s property for the sole benefit of its neighbor Briarwood.”

Alternatively, KMS asserts there were fact issues regarding whether the taking was necessary for

a public use.

        The Texas constitution and the local government code authorize municipalities to take

private property when they determine the property is necessary for a public use and provide just

compensation to the property owner. See City of Austin v. Whittington, 384 S.W.3d 766, 772

(Tex. 2012).       Among other things, to establish a valid exercise of eminent domain, a


    5
      Likewise, the City complains in its brief about the trial court’s ruling sustaining KMS’s objections to seven
statements in the Grabenhorst affidavit. The City contends, however, it was entitled to summary judgment without
these statements. In absence of any argument that these evidentiary rulings probably resulted in rendition of an
improper judgment, we decline to address the merits of the City’s evidentiary complaints. See TEX. R. APP. P. 44.1.


                                                       –6–
municipality must show it intends to put the property to public use and the condemnation is

necessary to advance or achieve that public use. See Whittington, 384 S.W.3d at 772. Property

is taken for public use only when there results to the public some definite right or use in the

undertaking to which the property is devoted. See Coastal States Gas Producing Co. v. Pate,

309 S.W.2d 828, 833 (Tex. 1958). So long as the use is open to all, however, it is irrelevant the

number of citizens likely to avail themselves of the use or that the use is limited to the citizens of

a local neighborhood. See Whittington, 384 S.W.3d at 779 (quoting Hous. Auth. of City of

Dallas v. Higginbotham, 143 S.W.2d 79, 84 (Tex. 1940)). Moreover, the mere fact that a

particular individual, group or enterprise may benefit will not deprive the use of its public

character. See Higginbotham, 143 S.W.2d 84. Where the power of eminent domain is granted, a

determination by the condemnor that the taking is necessary for a public use is conclusive absent

proof by the landowner that the public use or necessity determinations were fraudulent, in bad

faith, or arbitrary and capricious. See Whittington, 384 S.W.3d at 777. We review the summary

judgment evidence bearing in mind the supreme court’s observation, “Where a statute vests a

governmental agency with discretionary authority to condemn property, we have held that the

agency’s determination of public necessity is presumptively correct, absent proof by the

landowner of the agency’s fraud or proof that the condemning authority acted arbitrarily or

capriciously. FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 629

(Tex. 2008) (citing Higginbotham, 143 S.W.2d at 88).

       Here, the City passed a formal resolution that “a public necessity exists for the welfare of

the City and its citizens and it is in the public interest” to acquire KMS’s private road easement

“for the public purpose of acquiring right of way for construction, maintenance and operation of

a public street.” Moreover, according to a City staff report from January 2015, the condemnation

would permit Briarwood to construct a roadway on the private road easement that would be a

                                                 –7–
“city street and [serve] a public purpose by providing access from Kenwood Drive across the

drainage channel to the Briarwood tract.” The report further provides a public street in the

easement would “provide circulation between retail locations on the north side of Lakeview

Parkway which will facilitate retail activity and will prevent increased traffic flow on Lakeview

Parkway” when the Briarwood tract is developed. The staff report also indicated the drive

approach “is needed for emergency vehicle access and first responder service.” Finally, the

report stated when completed, the drive would allow vehicles to access the Briarwood tract from

Kenwood Drive (and Kenwood Drive from the Briarwood tract) without traversing Lakeview

Parkway. At his deposition, James Grabenhorst, the City’s Director of Economic Development,

testified that the taking was necessary to ensure cross-access between adjoining property owners.

       Traffic circulation and cross-access between retail areas is a public purpose. Section 77-

505(E)(2)(c) of the City Code provides, “Where new development is adjacent to land likely to be

developed or redeveloped in the future, all streets, bicycle paths, and access ways in the

development’s proposed street system shall continue through to the boundary lines of the area, as

determined by the director of planning, to provide for the orderly subdivision of such adjacent

land or the transportation and access needs of the community.” ROWLETT, TEX., CODE § 77-

505(E)(2)(c). In addition, section 77-505(E)(2)(e)(1) provides every proposed public or private

street system shall be designed to provide vehicular interconnections to all similar or compatible

adjacent uses complying with the standards of subchapter 77-505F, Access management and

driveway standards. ROWLETT, TEX., CODE §77-505(E)(2)(e)(1).

       KMS asserts that transforming its private road easement into a “City-owned” roadway

does not meet the necessity for public use requirements because the taking economically benefits

Briarwood and the condemnation was pursuant to the economic incentive agreement between

Briarwood and the City. Specifically, KMS argues that Briarwood and the Sprouts grocery store

                                               –8–
desired access to Kenwood Drive so that it could take advantage of the large amount of customer

traffic from the Wal-Mart store KMS developed adjacent to and immediately to the west of

Kenwood drive. KMS further contends the City condemned its private road easement to ensure

the Sprouts grocery store was developed. As such, KMS argues the City’s asserted public use is

nothing more than public welfare or good and under which almost any kind of business which

promotes the prosperity or comfort of the community which has been rejected by the supreme

court. See Pate, 309 S.W.2d at 833 (stating general proposition but concluding condemnation of

easement for slant-drilling site to extract oil and gas one-fourth of gross production being

reserved to the State was for a public purpose). KMS also argues that the condemnation was not

necessary for public safety reasons because Briarwood had four access connections to major

thoroughfares and the development project was completed and the grocery store was allowed to

open without a connection to Kenwood Drive.

       KMS’s arguments do not challenge, and there is no evidence in this record, that a public

street in the easement would not provide circulation between retail locations on the north side of

Lakeview Parkway, would not facilitate retail activity, and would not reduce increased traffic

flow on Lakeview Parkway—all matters in the City staff report on which the City’s resolution

was based. KMS’s argument as to the City staff’s reported need for emergency vehicle access

and first responder service to have access over the private road easement was challenged only to

the extent of KMS’s argument that there were other (more circuitous) means of access between

Kenwood Drive and Briarwood’s tract or between Wal-Mart and Briarwood’s tract. Instead, the

City by formal resolution determined “a public necessity exists” for acquiring KMS’s private

road easement “for the public purpose of acquiring right of way for construction, maintenance

and operation of a public street.” This resolution was based on the City staff’s report. We

conclude the City established as a matter of law that the taking was necessary for a public use to

                                               –9–
provide cross-access, traffic circulation, and emergency vehicle access between retail centers that

are traffic generators. The public street in that location would prevent an increase in traffic flow

on Lakeview Parkway and would allow vehicles to travel back and forth from the Briarwood

tract to Kenwood Drive without traversing Lakeview Parkway. Although the decision to convert

KMS’s private road easement to a public street may benefit Briarwood and the grocery store, it

also benefits all the retail businesses that abut the private road easement as well as the retail

establishments on Kenwood Drive. Moreover, it is immaterial whether the City wanted the

public roadway to assist the development of the Briarwood tract so long as the public could

benefit from or use the improvements and the improvements were not clearly and palpably

private. See Newsom, 171 S.W.3d at 267.

       In reaching our conclusion, we reject KMS’s reliance on Phillips v. Naumann, 275

S.W.2d 464 (Tex. 1955) and Maher v. Lasater, 354 S.W.2d 923 (Tex. 1962). In both of these

cases, the condemning authority attempted to convert existing private roads to public roads

solely for the private benefit of abutting property owners. Phillips, 275 S.W.2d at 467 (“What

this record discloses is the taking of private property of petitioners for the use of [abutting

landowner], and for no other use, and that, too, when there is no necessity for doing so.”); Maher

354 S.W.2d at 925–26 (by statute government was “authorized to declare a private roadway to be

a public highway if applicants therefor wish it to be done and ‘have no means of access to their

lands and premises.’ In so far as the amendment seeks to authorize the taking of private property

for private use, it is unconstitutional and void.”). These cases stand for the rather unremarkable

proposition that “private property cannot be taken for a private use.” Phillips, 275 S.W.2d at

467; see also Maher, 354 S.W.2d at 925–26. As detailed above however, the evidence before us

indicates that the City’s taking here was for a public purpose, namely cross-access, traffic

circulation, and emergency vehicle access between retail centers that are traffic generators.

                                               –10–
         Based on the record before us, we conclude the summary judgment evidence established

the City’s condemnation of the access road was necessary for a public use. Accordingly, to

reverse the trial court’s summary judgment, KMS must have presented evidence that, at the very

least, created a fact issue as to whether the City’s determinations of public use and necessity

were fraudulent, in bad faith, or arbitrary and capricious. See Whittington, 384 S.W.3d 777–78.6

         D.       Fraud, bad faith, and/or arbitrary and capricious

         In its third issue, KMS contends the summary judgment evidence establishes

conclusively or creates a fact issue as to whether the City’s determinations of necessity and

public use were fraudulent, in bad faith and/or arbitrary and capricious. We will analyze here

KMS’s arguments regarding fraud and arbitrary or capricious conduct by the City.7

                  1. Fraud

         KMS argues the City’s determination of necessity and public use was fraudulent because

the City’s purported public use was actually a pretext to confer a private economic benefit on

Briarwood. Specifically, KMS relies on evidence that the Sprouts grocery store and Briarwood

agreed to either (1) a lease termination or (2) a 4.53 percent reduction in the grocery store’s base

rent if the City had not approved condemnation of the private road easement before June 1, 2015.

Fraud in this context means “‘any act, omission or concealment, which involved a breach of

legal duty, trust or confidence, justly reposed and is injurious to another, or by which an undue

and unconscientious advantage is taken of another.’” Newsom, 171 S.W.3d at 269 (quoting

    6
       To the extent KMS appears to suggest the City has the burden to produce more than a scintilla of evidence
that the taking is not fraudulent, in bad faith, or arbitrary and capricious, Whittington indicates these are affirmative
defenses on which KMS bears the burden of proof. See Whittington, 384 S.W.3d at 777–78.
    7
       KMS argues the taking was in bad faith because it was plainly for economic development purposes in
violation of section 2206.001(b)(3) of the Texas Government Code. See TEX. GOV’T CODE ANN. § 2206.001(b)(3)
(West 2016). In relevant part, subsection (b)(3) provides a governmental entity may not take private property by
eminent domain if the taking “is for economic development purposes.” See id. Because section 2206.001(b)(3) is
the only argument KMS makes with respect to bad faith, we will address this argument in our analysis of KMS’s
second issue in which KMS asserts the taking was prohibited subsection(b)(3) and the three other subsections of
2206.001(b).


                                                         –11–
Wagoner v. City of Arlington, 345 S.W.2d 759, 763 (Tex. Civ. App.—Fort Worth 1961, writ

ref'd n.r.e.)). Thus even though the evidence KMS uses to argue that Briarwood might sustain

some economic harm in the absence of the condemnation, KMS does not provide any evidence

that the City did any act or omission involving breach of a legal duty, trust, or confidence or

which unduly or unconscionably took advantage of KMS other than make a determination of

necessity and public use with which KMS disagrees. In short, KMS’s evidence does not suggest

the City’s public use and necessity determination was a pretext for Briarwood’s private use of

the private road easement.

               2. Arbitrary or Capricious

       KMS also contends the City’s determination of necessity and public use was arbitrary

and capricious. Specifically, KMS argues the City abdicated to Briarwood its discretion to

condemn because it was only after Briarwood discovered it had no legal right to enter KMS’s

private road easement to construct the offsite culvert crossing, thereby allowing vehicles from

Kenwood Drive to reach its tract, that the City determined to condemn the private road easement.

KMS also relies on evidence that (1) Briarwood engaged and paid its engineers to conduct the

survey and prepare the exhibits for the City’s condemnation petition and (2) the agreement

between the City and Briarwood provided they would share the costs of the condemnation.

       For purposes of a condemnation proceeding, arbitrary and capricious means willful and

unreasoning action or action absent consideration and disregarding the facts and circumstances.

Newsom, 171 S.W.3d at 269. Accordingly, to show the City acted arbitrarily and capriciously,

KMS had to negate any reasonable basis for determining what and how much land to condemn

for the cross-access. See id. As discussed in the previous section, KMS did not negate the City

staff’s determination that a public street in the easement would provide circulation between retail

locations on the north side of Lakeview Parkway, facilitate retail activity, and reduce increased

                                              –12–
traffic flow on Lakeview Parkway. Instead, KMS asserts that like the utility district in Newsom,

the City acted arbitrarily and capriciously by abdicating its decision on the need to condemn to a

private developer. See id. at 257. But unlike Newsom, here the condemned property was already

recorded as a private easement on the Luke’s Landing plat. While the recorded easement

spanned the entire width of KMS’s subdivision, however, the private road was only partially

constructed. And there is no evidence suggesting that Briarwood determined what and how

much of KMS’s land to condemn. The location of the public street was simply superimposed

upon the platted private road easement.

        KMS, however, points to evidence that Briarwood paid the engineering firm that

prepared the exhibits to the City’s condemnation petition and that Briarwood and the City jointly

funded the construction of the drainage culvert. Moreover, the parties agreed the City’s funding

obligation could be reduced up to $62,750 to reflect right of way acquisition costs. Moreover the

decision to condemn was made only after Briarwood was unable to negotiate an agreement with

KMS for access to its private drive.              KMS does not cite any authority that concludes a

government’s determination of public necessity and use was arbitrary and capricious merely

because the costs of condemnation and construction of a public roadway were partially borne by

a private party. Newsom does not support that proposition, because there the private parties paid

the entire cost of acquisition and construction, chose the property to be condemned, and

indemnified the governmental authority from liability for condemning the property thereby

removing the governmental entity’s discretion in the matter. See Newsom, 171 S.W.3d at 274.8

        For these reasons, we conclude that the City’s determination of necessity and public use

was not fraudulent or arbitrary and capricious.

    8
      The Newsom court was particularly troubled by the indemnification provision in the private parties’ agreement
with the governmental condemning authority as removing the government’s obligation to exercise its condemning
authority properly. See Newsom, 171 S.W.3d at 275.


                                                      –13–
        E.       Government Code Section 2206.001

        In its second issue, KMS argues the City’s taking violates section 2206.001 of the

government code. That section provides in relevant part:

        (b)     A governmental or private entity may not take private property through
        the use of eminent domain if the taking:

               (1) confers a private benefit on a particular private party through the use of
        the property;

                (2) is for a public use that is merely a pretext to confer a private benefit on
        a particular private party;

                 (3) is for economic development purposes, . . . ; or

                 (4) is not for a public use.

        TEX. GOV’T CODE ANN. § 2206.001(b) (West 2016).

        KMS contends that the City’s taking in this case violates all four of the above provisions

making the same arguments and citing much the same evidence it presented with respect to its

first and third issues. The City counters that the taking was for a public road which is a statutory

exception to section 2206.001(b)’s prohibitions on takings. See TEX. GOV’T CODE ANN.

§ 2206.001(c)(1).9 Subsection (c) provides in part, “[t]his section does not affect the authority of

an entity authorized by law to take private property through the use of eminent domain for:

(1) transportation projects, including, but not limited to, railroads, airports, or public roads or

highways.”      TEX. GOV’T CODE ANN. § 2206.001(c)(1).                  In Whittington, the supreme court

acknowledged the prohibitions of section 2206.001(b) would not invalidate a taking for a

purpose that falls within one of the statutory exceptions listed in section 2206.001(c).

Whittington, 384 S.W.3d at 791. In the case before us, KMS presented no evidence or argument

    9
       On appeal, the City also contends the statutory exceptions of 2206.001(c)(3) (flood control and drainage
projects) and 2206.001(c)(5) (provision of utility services) also apply. These exceptions were not presented to the
trial court as a ground in the City’s motion or in its response to KMS’s motion and we may not consider them here
as a basis for affirming the trial court’s summary judgment. See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26
(Tex. 1993) (summary judgment cannot be affirmed on grounds not expressly set out in motion or response).


                                                       –14–
that the City’s taking did not constitute a transportation project. Instead it argues that it is not a

“legitimate transportation project” and subsection 2206.001(c) does not apply here because the

City’s taking exceeds the limitations set forth in subsection 2206.001(b). “A court may not ...

add words that are not implicitly contained in the language of the statute[,]” Lee v. City of

Houston, 807 S.W.2d 290, 294–95 (Tex. 1991), especially where doing so “judicially amend[s]

the statute to add an exception not implicitly contained in the language of the statute.”

Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex. 1999). KMS does

not argue there is any language in section 2206.001 on which to add an exception to the

application of subsection (c) if a transportation project is illegitimate or a requirement of

legitimacy. We are unpersuaded by KMS’s contention and conclude its argument is contrary to

supreme court’s analysis in Whittington of these sections. We therefore resolve KMS’s second

issue against it.

        F.      Attorney’s Fees

        In its last issue, KMS argues it is entitled to recover its attorney’s fees through trial

pursuant to property code section 21.019(c). That section allows the recovery of a property

owner’s attorney’s fees when the trial court dismisses a condemnation proceeding or otherwise

renders a judgment denying the right to condemn. See TEX. PROP. CODE ANN. § 21.019(c) (West

2014). Because we affirm the trial court’s grant of summary judgment in favor of the City, we

need not address this issue.

                                           CONCLUSION

        Based on the record before us, we affirm the trial court’s summary judgment.



160402F.P05
                                                     /David W. Evans/
                                                     DAVID EVANS
                                                     JUSTICE
                                                –15–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

KMS RETAIL ROWLETT, LP F/K/A KMS                       On Appeal from the County Court at Law
RETAIL HUNTSVILLE, LP, Appellant                       No. 4, Dallas County, Texas
                                                       Trial Court Cause No. CC-15-01323-D
No. 05-16-00402-CV         V.                          Opinion delivered by Justice Evans, Justices
                                                       Stoddart and Boatright participating.
THE CITY OF ROWLETT, TEXAS,
Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee The City of Rowlett, Texas recover its costs of this appeal
from appellant KMS Retail Rowlett, LP F/K/A KMS Retail Huntsville, LP.


Judgment entered this 19th day of July, 2017.




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