REVERSE and RFNiANl Opinion Filed March I, 2013.




                                             In The
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                                      No. 05-1 1-01668-CV

                      CONTINENTAL FOODS, INC., Appellant
                                    V.
                       ROSSMORE ENTERPRISES, Appellee

                      On Appeal from the 10 1st Judicial District Court
                                   Dallas County, Texas
                             Trial Court Cause No. 11-05580

                                MEMORANDUM OPINION
                         Before Justices Moseley. ONeill, and Murphy
                                  Opinion by Justice O’Neill
       Appellant Continental Foods, Inc. appeals the trial court’s grating of summary judgment

in favor of appellee Rossmore Enterprises. In two issues, Continental Foods complains genuine

issues of material fact exist regarding breach of a lease and collateral estoppel does not bar its

claim. We reverse and remand for further proceedings. The background facts of this case are

well-kiown to both parties; therefore, we only include the facts necessary to disposition of this

appeal. TEx. R. APP. P. 47.7.

       Continental Foods, Inc. originally filed an inverse condemnation suit against the State of

Texas after the State acquired property for a highway expansion and appellant received no

compensation for its perceived loss of a real property interest under a Master Lease and sublease.

The trial court granted the State’s plea to the jurisdiction and we affirmed. See Continental

Foods, Inc. v. State of Texas, 05-09-01249, 2011 WL 258999, at *1 (Tex. App.—Dallas Jan. 27,
2011, no pet,) (mem. op). In our opinion, we stated “The termination language of the Master

Lease and sublease makes it clear the intent of the parties was that in the event of condemnation,

the leasehold interest would be extinguished.” and concluded “the Master Lease and sublease

terminated upon condemnation,’ leaving appellant with no compensable interest to protect.

Appellant subsequently filed a breach of contract and declaratory action suit against appellee.’

Id. at *34

           In its petition, appellant asserted appellee breached the Master Lease (a) by not requiring

the State to proceed through a Special Commissioner’s hearing so that appellant could present its

case to receive an allocation of the award to the landowner, which survived under the Master

Lease; or alternatively, it breached the lease (h) by not tendering to appellant its share of the

condemnation proceeds to which it is entitled under the Master Lease. Appellee filed a motion

for summary judgment arguing that collateral estoppel barred appellant’s claim because whether

appellant had a right to any condemnation proceeds had already been decided against it in our

prior opinion. The trial court agreed and granted appellee’s motion for summary judgment. This

appeal followed.

           The standard for reviewing a traditional summary judgment is well-established.                                                 See

Nixon     v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548—49 (Tex. 1985). The movant has the

burden of showing that no genuine issue of material fact exists and that it is entitled to judgment

as a matter of law. TEx. R. Civ. P. 166(a)(c). In deciding whether a disputed material fact issue

exists precluding summary judgment, evidence favorable to the nonmovant will be taken as true.

Nixon, 690 S.W.2d at 549.                     Every reasonable inference must be indulged in favor of the

nonmovant and any doubts resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824

(Tex. 2005). We review a summary judgment de novo to determine whether a party’s right to

Rossmore Enterprises was the fee simple owner of the property at issue in the condemnation proceedings and successor in interest to the parties
who originally entered into the Master Lease, which allowed Denny’s to sublease the Property to appellant.

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    prevail is established as a matter of law. Mira Mar Dcv. Corp. v. City of coppell. 364 SW .3d

    366. 374 (Tex. App—Dallas 2012, pet. filed).

               As noted above,         appellant   argued in its petition two separate ways in which appellee

    allegedly breached the contract. Appellant alleges appellee’s breached the Master Lease by                       not


    requiring the State to proceed through a Special Commissioner’s hearing. It contends this breach

    affected the rights and obligations of the parties befrc the Master Lease and sublease terminated

    because of condemnation.

               Nothing in our prior opinion determined the parties’ obligations under the Master Lease

    before condemnation. Rather, this Court determined only that appellant had no compensable

    interest    to protect once the Master Lease and sublease terminated upon condemnation.

    Continental      froods,   Inc.,   2011 WL 258999, at *3_4• Accordingly, collateral estoppel does not

    bar appelhmt’s breach of contract claim because this issue has not been previously litigated. See,

    e.t., MGA Ins. Co. v. Charles R. Chesnutt, P.C., 353 S.W.3d 808. 817 (Tex. App.—Dallas 2012,

    no pet.) (noting that to assert the affirmative defense of collateral estoppel a party must first

    establish the facts sought to be litigated in the second action were fully and fairly litigated in the

    first action).

               Having determined appellant’s petition alleges a breach of contract prior to the

    condemnation and appellee did not challenge the breach, the time when it occurred, or the

    damages flowing from the alleged breach hut relied only on the affirmative defense of collateral

    estoppel in its response, we conclude appellee failed to establish it is entitled to judgment as a

    matter of law.
              2 Further, in reaching this conclusion, we need not address appellee’s cross-point




2
    Appellee filed a post-submission brief in which he argued it did not breach the Master Lease and appellant incurred
    $0 damages. However, these arguments were never presented to the trial court as a basis for defeating summary
    judgment, and we may not consider them. TEx. R. Civ. P. I 66a(c) (“Issues not expressly presented to the trial court
    by written motion, answer, or other response shall not be considered on appeal as grounds for reversal.”).

                                                              3
in which he argues the trial   court   erred by failing to award him reasonable and necessary

attorney’s fees.

        Accordingly. the judgment of the trial court is reversed and the cause is remanded for

further proceedings.




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                                        JUDGMENT

CONTINENTAL FOODS. INC., Appellant                     On Appeal from the 101st Judicial District
                                                       Court, Dallas County, Texas
No. 05-11-01 668-CV        V.                          Trial Court Cause No. 11-05580.
                                                       Opinion delivered by Justice O’Neill,
ROSSMORE ENTERPRISES, Appellee                         Justices Moseley and Murphy participating.

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and REMANDED for further proceedings.

       It is ORDERED that appellant CONTINENTAL FOODS, INC. recover its costs of this
appeal from appellee ROSSMORE ENTERPRISES.


Judgment entered this l day of March, 2013.




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