                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00228-CV

SUSAN J. SIMMONS D/B/A 342 GRILL & BAR,
                                                          Appellants
v.

BLACKSTONE DEVELOPERS, LLC,
                                                          Appellee



                         From the County Court at Law
                              Ellis County, Texas
                           Trial Court No. 14-C-3312


                          MEMORANDUM OPINION


      In three issues, appellant, Susan J. Simmons d/b/a 342 Grill & Bar, challenges

the trial court’s judgment entered in favor of appellee, Blackstone Developers, LLC

(“Blackstone”).   Because we conclude that Blackstone did not have the right to

terminate the lease by virtue of Simmons asking for a transfer of the lease, we reverse

the trial court’s judgment and remand for proceedings consistent with this opinion.
                                        I.   BACKGROUND

       This is a contract-interpretation case involving a lease between Simmons and

Blackstone pertaining to the premises located at 205 Main Street in Red Oak, Texas.

Specifically, on February 28, 2011, Simmons entered into a long-term lease with

Blackstone for an initial term of five years and three five-year options to be exercised at

Simmons’s discretion. Simmons operated the 342 Grill & Bar at the location covered by

the lease.

       In 2014, Simmons received an offer to buy the restaurant for $140,000.           To

complete the sale, Simmons repeatedly requested Blackstone’s consent to transfer her

leasehold interest to the purchaser. Blackstone property manager Randy Shelly testified

that he ignored Simmons’s requests for consent, which, as Shelly testified,

demonstrated that Blackstone did not consent to any transfer of Simmons’s leasehold.

Because Shelly ignored Simmons’s request for consent, Simmons and her husband,

Don, sent Shelly a letter dated March 4, 2014, indicating that: (1) they have “a very

qualified buyer for our restaurant” with many years of experience and a net worth of

over $4 million; (2) the buyer hoped to take over the restaurant by March 15, 2014; and

(3) the deal could “slip away” without Blackstone’s “prompt attention.”

       On March 11, 2014, Shelly responded to the Simmons’ March 4, 2014 letter,

stating that, under Section 11 of the lease, Blackstone “hereby exercises its right to

terminate the Lease. Such termination shall be effective as of March 15, 2014, the

anticipated effective date of the Transfer, as indicated in the Transfer Notice.”

Blackstone demanded that Simmons surrender the premises on March 15, 2014.

Simmons v. Blackstone Developers, LLC                                                Page 2
       Simmons refused to vacate the premises unless Blackstone consented to the

transfer. Blackstone replied that it would consent to the transfer in exchange for $40,000

or $50,000. Simmons refused to pay the requested amount, and Blackstone sent its

Notice to Vacate on March 24, 2014. In this notice, Blackstone demanded that Simmons

shut down her restaurant and vacate the premises within seventy-two hours. Simmons

refused.

       Blackstone subsequently filed its Petition for Forcible Detainer on April 27, 2014,

in the Ellis County Justice Court, Precinct 4. In its petition, Blackstone asserted that

Section 11(b) of the lease authorized the termination of Simmons’s leasehold interest.

The Justice Court dismissed the proceeding and awarded Simmons her reasonable and

necessary attorney’s fees.

       Thereafter, Blackstone appealed the Justice Court’s judgment to the Ellis County

Court at Law No. 1 for a de novo review. Following a bench trial, the trial court issued

a letter stating the following:

       The outcome of this case is governed by Section 11(b) of the lease between
       the parties. While the provision allowing for termination is extremely
       harsh and leaves the tenant utterly at the mercy of the landlord, it was
       nevertheless contractually agreed to by the parties and is clear. Landlord
       was entitled to terminate under 11(b)(ii) and it elected to do as evidenced
       by the March 11th letter.

The trial court then issued its judgment awarding Blackstone possession of the premises

and ordering the issuance of a writ of possession in Blackstone’s favor. This appeal

followed.




Simmons v. Blackstone Developers, LLC                                                Page 3
                                  II.     STANDARD OF REVIEW

       The construction and meaning of an unambiguous contract is a question of law.

Ganske v. Spence, 129 S.W.3d 701, 707 (Tex. App.—Waco 2004, no pet.). In construing the

written agreement, the primary concern of the court is to ascertain the true intentions of

the parties as expressed within the four corners of the instrument. Coker v. Coker, 650

S.W.2d 391, 393 (Tex. 1983); see Calpine Producer Servs., L.P. v. Wiser Oil Co., 169 S.W.3d

783, 787 (Tex. App.—Dallas 2005, no pet.). We consider the entire writing and attempt

to harmonize and give effect to all the provisions of the contract by analyzing the

provisions with reference to the whole agreement. Frost Nat’l Bank v. L&F Distribs., Ltd.,

165 S.W.3d 310, 312 (Tex. 2005) (per curiam).

                               III.     SECTION 11(B) OF THE LEASE

       In her second issue, Simmons argues that by applying Section 11(b)(ii) as the

controlling lease provision, the trial court ignored limiting language within the

provision itself that indicated that the right of termination existed only in the context of

a completed or actual transfer.

       The operative language of the lease, as contained in Section 11(b), provides the

following, in relevant part:

       (b) Landlord’s Options. Within 30 days after receipt of all required
       Transfer information, Landlord will give Tenant written notice of its
       election (i) to consent to the Transfer, subject to (A) this Lease, (B)
       Landlord’s approval of the Transfer instrument, (C) execution and
       delivery by Tenant and Transferee of Landlord’s then-current standard
       form consent agreement, and (D) Tenant paying Landlord’s required
       Transfer processing fee; or (ii) to terminate this Lease as of the anticipated
       effective date of the Transfer as to the space and for the period covered by
       such Transfer, in which event Tenant will be relieved of its obligations

Simmons v. Blackstone Developers, LLC                                                   Page 4
       with respect to the terminated interest; or (iii) not to consent to the
       Transfer, in which event this Lease will continue in full force and effect.

The trial court and Blackstone relied upon Section 11(b)(ii) to support the position that

the mere fact that Simmons informally requested a transfer of her leasehold interest

triggered Blackstone’s option to terminate the lease. We disagree with this assertion.1

       A plain reading of the lease shows that Section 11(b)(ii) only applies when there

is a transfer. Specifically, a review of the plain language of Section 11(b)(ii) reveals that

Blackstone is authorized “to terminate this Lease as of the anticipated effective date of

the Transfer as to the space and for the period covered by such Transfer.” (Emphasis

added). We believe this language contemplates that a transfer must occur, especially

considering that any termination is specifically tied to the effective date of the transfer

and the space and time period covered by the transfer.

       Therefore, because a transfer has not occurred, we do not agree that the mere

requesting of consent to transfer Simmons’s leasehold interest triggered Section 11(b)(ii)

of the lease. Accordingly, we conclude that the trial court erred in determining that the

lease had terminated, and instead, the lease remains in full force and effect. Thus, we

sustain Simmons’s second issue.2




       1We note that all the documentation necessary for a formal consideration of a transfer was never
provided to Blackstone. Simmons did what most prudent tenants would have done and was trying to
determine if Blackstone would consent before moving forward with the prospective buyer.

       2  Because we have sustained Simmons’s second issue, we need not address Simmons’s first or
third issues. See TEX. R. APP. P. 47.1.

Simmons v. Blackstone Developers, LLC                                                           Page 5
                                    IV.   ATTORNEY’S FEES

       In her prayer, Simmons requests an award of reasonable attorney’s fees in the

amount of $8,875. Section 16(f) of the lease provides that, in any dispute regarding the

lease, “the prevailing party will be entitled to recover reasonable attorney’s fees, court

costs[,] and expenses from the other party.” See Tony Gullo Motors I, L.P. v. Chapa, 212

S.W.3d 299, 310 (Tex. 2006) (“For more than a century, Texas law has not allowed

recovery of attorney’s fees unless authorized by statute or contract.”). However, in the

trial court, Simmons was not the prevailing party and, as such, was not awarded any

attorney’s fees. In any event, in support of her attorney’s fees request, Simmons directs

us to Attachment 5 in the appendix to her appellate brief, wherein Simmons’s attorney

executed an affidavit in support of the request for attorney’s fees.

       First, we note that an appellate court may not consider matters outside the

appellate record, and attachment of documents as appendices to an appellate brief does

not constitute formal inclusion in the record. See TEX. R. APP. P. 34.1 (“The appellate

record consists of the clerk’s record and, if necessary to the appeal, the reporter’s

record.”); see also Kuntze v. Hall, 371 S.W.3d 600, 601 (Tex. App.—Waco 2012, order);

Poston v. Wachovia Mortg. Corp., No. 10-14-11-00485-CV, 2012 Tex. App. LEXIS 3608, at

*3 n.2 (Tex. App.—Houston [14th Dist.] May 8, 2012, no pet.) (mem. op.) (citing Bencom

Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 210 (Tex. App.—Houston

[14th Dist.] 2005, no pet.)). Furthermore, it is well-settled that the determination of

whether a party may recover reasonable attorney’s fees is a question of law for the trial

court, which an appellate court reviews de novo. See Brent v. Field, 275 S.W.3d 611, 621

Simmons v. Blackstone Developers, LLC                                               Page 6
(Tex. App.—Amarillo 2008, no pet.) (citing Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91,

94-95 (Tex. 1999)); see also Pharia LLC v. Childers, No. 10-12-00241-CV, 2013 Tex. App.

LEXIS 9995, at *4 (Tex. App.—Waco Aug. 8, 2013, no pet.) (mem. op.). Accordingly, we

conclude that the trial court is in a better position and, therefore, should determine the

amount of attorney’s fees to which Simmons is entitled in light of our disposition of this

matter. See Holland, 1 S.W.3d at 94-95; Brent, 275 S.W.3d at 621; see also Childers, 2013

Tex. App. LEXIS 9995, at *4.

                                        V.   CONCLUSION

       Based on the foregoing, we reverse the judgment of the trial court and remand

for proceedings consistent with this opinion.




                                                AL SCOGGINS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed December 18, 2014
[CV06]




Simmons v. Blackstone Developers, LLC                                               Page 7
