AFFIRM; and Opinion Filed December 18, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-14-00244-CV

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

                      On Appeal from the 101st Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 11-05580-E

                            MEMORANDUM OPINION
                        Before Justices Francis, Lang, and Lang-Miers
                                 Opinion by Justice Francis
       Continental Foods, Inc. appeals the trial court’s summary judgment in favor of Rossmore

Enterprises. In two issues, Continental contends the trial court erred when it found Rossmore

had no obligation to share with Continental proceeds of a private sale in lieu of condemnation.

We affirm.

       Rossmore bought land in Irving that was, at the time of the purchase, leased to Denny’s

Inc. Denny’s, in turn, had sublet the property to its franchisee, Continental. In November 2007,

the State acquired the property in a private sale in lieu of condemnation as part of a highway

expansion project.    On April 15, 2008, Rossmore executed a release of Denny’s lease

obligations, and five days later, Denny’s assigned all of its rights to “any separate awards and

portions of lump sum awards, including severance damages, if any, as may be allocated to its

interest in any condemnation proceedings” to Continental. On April 21, the Texas Department
of Transportation filed the special warranty deed evidencing its ownership of the property.

Continental was told to vacate the property as of February 6, 2009.

       Continental sued the State of Texas, claiming inverse condemnation. After the trial court

granted the State’s plea to the jurisdiction, this Court affirmed. See Continental Foods, Inc. v.

State of Tex., 05–09–01249, 2011 WL 258999, at *1 (Tex. App.−Dallas Jan. 27, 2011, no pet.)

(mem. op.). Continental then sued Rossmore, alleging Rossmore breached “the Master Lease by

not refusing the State’s offer so as to require a special commissioners’ hearing and by not

tendering to Plaintiff its share of the condemnation proceeds to which it is entitled under the

Assignment.” The trial court granted Rossmore’s motion for summary judgment on the ground

that Continental’s claims had already been determined by this Court. We reversed, stating

“collateral estoppel does not bar appellant’s breach of contract claim.” See Continental Foods,

Inc. v. Rossmore Enter., 05–11–01668, 2013 WL 1277884, at *2 (Tex. App.−Dallas Mar. 1,

2013, no pet.) (mem. op.).

       On remand, Rossmore filed a supplemental motion for summary judgment on the

grounds (1) nothing in the lease required the State to proceed through a special commissioner’s

hearing instead of the private sale in lieu of condemnation and (2) Continental was not entitled to

condemnations proceeds because no condemnation proceeding occurred. The trial court granted

summary judgment in favor of Rossmore on both grounds, stating the master lease imposed no

obligation on Rossmore to (1) “require formal condemnation proceedings be instituted rather

than enter into a sale in lieu of condemnation,” and (2) “share with [Continental] the proceeds of

a sale in lieu of condemnation.” The trial court did not award Rossmore any attorney’s fees.

Both parties appealed.

       In two issues, Continental claims the trial court erred by granting summary judgment.

Specifically, Continental contends that because the master lease defined condemnation to include

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a “private purchase in lieu thereof,” a condemnation occurred and, therefore, condemnation

proceedings occurred. As result, Continental claims it was entitled to any separate award and

portion of lump sum awards.

       We review the trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). To succeed in a traditional motion for summary judgment,

the movant must establish there are no genuine issues of material fact and it is entitled to

judgment as a matter of law. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). In

reviewing a summary judgment, we consider the evidence in the light most favorable to the

nonmovants and resolve any doubt in their favor. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d

546, 548–49 (Tex. 1985).

       The trial court found the master lease did not require formal condemnation proceedings

be instituted instead of entering into a sale in lieu of condemnation, and Continental does not

challenge this on appeal. Condemnation is defined in the lease as “the exercise of the power of

eminent domain by any person, entity, body or agency, or private purchase in lieu of eminent

domain.”    The date of condemnation is “the day on which the actual physical taking of

possession” occurs or the “date of settlement or compromise of the claims,” whichever occurs

first. The lease also provides:

              In the event the entire leased premises are taken, or a substantial part
       hereof are taken, that said leased premises are no longer suitable for continuation
       of the business then being conducted thereon, in either event, this Lease shall
       terminate on the date of the condemnation.

               *                            *                             *

              Lessor and Lessee shall each be entitled to receive and retain such separate
       awards and portions of lump sum awards including severance awards, if any, as
       may be allocated to their respective interest in any condemnation proceedings . . .
       Termination of this Lease shall not affect the rights of the respective parties to
       such awards.



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          The plain language of the lease provides that the lessee, Continental, was entitled to a

separate award or portion of the lump sum awards, “if any,” allocated in “any condemnation

proceedings.” The lease does not, however, require any condemnation proceedings be held. The

summary judgment evidence shows no condemnation proceedings occurred and no separate

award was allocated to Continental. Under the plain language of the lease and in light of the

summary judgment evidence, Rossmore was not obligated to pay, and Continental was not

entitled to receive, any amount from the sale of the property. We overrule Continental’s two

issues.

          In its single issue on crossappeal, Rossmore contends it was entitled to attorney’s fees

under section 37.009 of the civil practices and remedies code.

          Section 37.009 of the declaratory judgments act provides that “[i]n any proceeding under

this chapter, the court may award costs and reasonable and necessary attorney’s fees as are

equitable and just.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (West 2008). The grant or

denial of attorney’s fees in a declaratory judgment action lies within the discretion of the trial

court, and its judgment will not be reversed on appeal absent a clear showing that it abused its

discretion. Oake v. Collin County, 692 S.W.2d 454, 455 (Tex. 1985); Park Cities Ltd. P’ship v.

Transpo Funding Corp., 131 S.W.3d 654, 661 (Tex. App.―Dallas 2004, pet. denied). A trial

court abuses its discretion when it acts without reference to any guiding rules or principles. Park

Cities Ltd. P’ship, 131 S.W.3d at 661. We broadly construe the trial court’s discretion to award

attorney’s fees and costs in a declaratory judgment action. Id.

          Here, the trial court concluded neither party was entitled to declaratory relief, stating

Continental’s request was “not appropriate in this case” and Rossmore’s was “an impermissible

mirror image of [Continental’s] claim for money damages.” Because neither Continental nor

Rossmore prevailed in their requests for declaratory relief, we cannot conclude the trial court

                                                –4–
abused its discretion by refusing to award attorney’s fees. See Ochoa v. Craig, 262 S.W.3d 29,

33 (Tex. App.―Dallas 2008, pet. denied) (concluding trial court did not abuse discretion by

failing to award attorney’s fees to party who did not prevail on declaratory judgment claim). We

overrule Rossmore’s issue.

       We affirm the trial court’s judgment.




                                                     /Molly Francis/
                                                     MOLLY FRANCIS
                                                     JUSTICE

140244F.P05




                                               –5–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

CONTINENTAL FOODS, INC., Appellant                   On Appeal from the 101st Judicial District
                                                     Court, Dallas County, Texas
No. 05-14-00244-CV         V.                        Trial Court Cause No. 11-05580-E.
                                                     Opinion delivered by Justice Francis,
ROSSMORE ENTERPRISES, Appellee                       Justices Lang and Lang-Miers participating.

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

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


Judgment entered this 18th day of December, 2014.




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