Opinion issued May 17,=20
2007
In this=20
condemnation proceeding, appellant, Motiva Enterprises, LLC =
("Motiva"),=20
challenges the trial court's summary judgment granted in favor of=20
appellees, Audeen McCrabb, Norma Ann Euton, Connie Mendez, Tom =
Mendez,=20
Kirk McCrabb, Kathy McCrabb, Scott McCrabb, Sarah McCrabb, Joseph =
McCrabb,=20
and Rebacca McCrabb ("the McCrabbs"), awarding the McCrabbs =
$304,000 for=20
the value of 7,677 square feet of land actually =
condemned We=20
affirm. If all of=20
the Demised Premises shall be condemned or taken by lawful =
authority or if=20
such portion of the premises be so condemned or taken making it=20
unreasonable or imprudent to use the remaining portion for its =
intended=20
use, this lease shall terminate as of the date when =
possession is=20
required to be given in such condemnation. The rent shall be =
adjusted to=20
such date and all further rights and liabilities of the parties =
under this=20
lease shall terminate, except that Tenant shall be entitled to =
receive out=20
of the proceeds of such condemnation the amount attributed to any =
of the=20
following: buildings or other improvements installed on the =
Demised=20
Premises by Tenant; any damages to Tenant's personal property =
resulting=20
from said condemnation; removal or relocation costs of Tenant's=20
anticipated business proceeds lost to Tenant; or any special =
damages=20
of Tenant. (emphasis=20
added). On behalf=20
of the Texas Transportation Commission, the State filed a petition =
to=20
condemn and acquire 7,677 square feet of the 27,086 square foot =
tract of=20
land, owned by the McCrabbs and leased to Motiva, for the =
expansion of the=20
Katy Freeway. The special commissioners appointed by the trial =
court in=20
the condemnation proceeding found the value of the condemned =
property to=20
be $1,705,000, and the State deposited that amount into the =
registry of=20
the court on November 7, 2005, thus establishing the date of the =
taking in=20
this case. Motiva determined that the remaining portion of the =
property=20
was not suitable for continued use as a gas station and chose to =
terminate=20
the lease. Motiva and=20
the McCrabbs both filed objections to the award of the special=20
commissioners, thus converting the case into a judicial =
proceeding.=20
See Tex. Prop. Code Ann. =A7 21.018 (Vernon 2004). The =
McCrabbs=20
filed a cross-claim for declaratory judgment, seeking a =
determination from=20
the trial court that the lease between the parties terminated by =
its own=20
terms on November 7, 2005 and that Motiva was not entitled to any=20
additional compensation for its "leasehold advantage." The parties=20
then filed cross-motions for summary judgment. The trial court =
denied=20
Motiva's motion for summary judgment and rendered a final judgment =
in=20
favor of the McCrabbs. It concluded that Motiva owned the =
improvements to=20
the land and was entitled to recover the $1,401,000 of the =
compensation=20
allocated for those improvements, the McCrabbs were entitled to =
recover=20
the remaining $304,000 allocated for the land, and Motiva was not =
entitled=20
to any compensation for its "leasehold advantage" under the terms =
of the=20
lease. To prevail=20
on a summary judgment motion, a movant has the burden of proving =
that it=20
is entitled to judgment as a matter of law and that there is no =
genuine=20
issue of material fact. Tex. R. Civ. P. 166a(c); Cathey v. =
Booth,=20
900 S.W.2d 339, 341 (Tex. 1995). We may affirm a summary judgment =
only=20
when the record shows that a movant has disproved at least one =
element of=20
each of the plaintiff's claims or has established all of the =
elements of=20
an affirmative defense as to each claim. Am. Tobacco Co. v.=20
Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). We must accept as =
true=20
evidence in favor of the nonmovant and indulge every reasonable =
inference=20
and resolve all doubts in favor of the nonmovant. Cathey, =
900=20
S.W.2d at 341. A summary judgment must stand or fall on the =
grounds=20
expressly presented in the motion. McConnell v. Southside =
Indep. Sch.=20
Dist., 858 S.W.2d 337, 341 (Tex. 1993). When both parties =
move for=20
summary judgment and the trial court grants one motion and denies =
the=20
other, the reviewing court should review the summary judgment =
evidence=20
presented by both sides and determine all questions presented and =
render=20
the judgment that the trial court should have rendered. Tex. =
Workers'=20
Comp. Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, =
648 (Tex.=20
2004). In its sole=20
issue, Motiva argues that, based on its reservation of the right =
to=20
recover its "special damages," it is entitled to "recover its =
damages for=20
its lost leasehold," i.e., the market value of its leasehold =
interest in=20
the property under the ground lease. The McCrabbs argue that =
because=20
Motiva's leasehold rights terminated on November 7, 2005, Motiva =
is not=20
entitled to compensation for future benefits under the lease. They =
also=20
assert that the general reference in the lease to "special =
damages" in=20
regard to Motiva's reserved rights upon the termination of the =
lease does=20
not overcome Motiva's specific, contractual relinquishment of its=20
leasehold rights that occurred upon condemnation. Under Texas=20
law, parties have a right to contract for termination of a lease =
in the=20
event of condemnation. J.R. Skillern, Inc. v. leVison, =
591 S.W.2d=20
598, 599 (Tex. Civ. App.--Eastland 1979, writ ref'd n.r.e.). A =
lessee is=20
entitled, as a matter of law, to share in a condemnation award =
when part=20
of its leasehold interest is lost by condemnation. Texaco Ref. =
&=20
Mktg., Inc. v. Crown Plaza Group, 845 S.W.2d 340, 342 (Tex.=20
App.--Houston [1st Dist.] 1992, no writ). Unless a lease provides =
that it=20
terminates upon condemnation, the tenant will recover compensation =
for the=20
unexpired term. Id. But, if a lease provides that it =
terminates=20
upon condemnation, the lessee has no interest in the condemnation =
award.=20
Id.; see also Fort Worth Concrete Co. v. State, =
416=20
S.W.2d 518, 521 (Tex. Civ. App.--Fort Worth 1967, writ ref'd =
n.r.e.) ("A=20
tenant whose lease provides for its termination upon the taking of =
the=20
leased premises for a public use, is entitled to no compensation =
when it=20
is condemned."). Thus, Motiva had a right to part of the =
condemnation=20
award unless it waived that right in the lease or elsewhere. =
See=20
Texaco Ref. & Mktg., Inc., 845 S.W.2d at 342. In=20
Texaco Refining & Marketing, Crown had leased to =
Texaco=20
22,500 feet of land at $975 per month for fifteen years, with =
options to=20
renew for two additional five-year terms. Id. at 341. The =
lease=20
provided that it was solely Texaco's option to terminate the lease =
in the=20
event of condemnation. Id. at 342. After the condemnation =
award=20
was filed in the county court, Texaco exercised its option to =
extend the=20
lease for five years and reserved the right to exercise any future =
options. Id. at 341. Thereafter, Texaco tendered =
monthly=20
rent to Crown, but Crown refused it, contending that the lease had =
terminated when Harris County became entitled to possession of the =
land.=20
Id. Crown's contention was based on the stipulated fact =
that the=20
remaining property was too small for a gas station. Id. =
Texaco=20
asserted that the property's suitability for a gas station did not =
affect=20
either Texaco's right to exercise its option to extend or its =
right to=20
recover for loss of its lease. Id. This Court held that =
because=20
the lease did not automatically terminate upon condemnation and =
Texaco=20
chose to renew the lease, Texaco had the right to share in the=20
condemnation award with Crown as a matter of law and did not waive =
that=20
right. See id. at 342. In=20
Evans Prescription Pharmacy, Inc. v. County of Ector, the =
owners=20
of a commercial building in Odessa, Texas, had entered into a =
ten-year=20
lease agreement with a pharmacy. 535 S.W.2d 704, 704 (Tex. Civ. =
App.--El=20
Paso 1976, writ ref'd). The lease provided that "[s]hould the =
leased=20
property be taken by right of eminent domain, the lease shall be=20
terminated." Id. During the term of the lease, Ector =
County=20
condemned the tract of land subject to the lease for the purpose =
of=20
expanding a hospital. Id. The court held that because the =
parties=20
had contracted for the termination of the leasehold interest upon =
the=20
exercise of the right of eminent domain, the pharmacy did not have =
a=20
compensable interest in the condemnation proceeding. See =
id. at=20
706. Texaco=20
Refining & Marketing and Evans Prescription =
Pharmacy are=20
illustrative of two well-settled principles when dealing with a =
leasehold=20
interest that has been subjected to condemnation: (1) when a lease =
does=20
not terminate upon condemnation, unless a lessee has waived the =
right, a=20
lessee has the right to share in the condemnation award with the =
lessor;=20
and (2) when a lease does automatically terminate upon =
condemnation, a=20
lessee has no compensable interest. See, e.g., Texaco =
Ref.=20
& Mktg., Inc., 845 S.W.2d at 342; Evans Prescription=20
Pharmacy, Inc., 535 S.W.2d at 706. Here, the=20
lease does not define the term "special damages." In construing a =
written=20
contract, the primary concern of the court is to ascertain the =
true=20
intentions of the parties as expressed in the instrument. =
Valence=20
Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005); =
Coker=20
v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). To achieve this =
objective,=20
courts should examine and consider the entire writing in an effort =
to=20
harmonize and give effect to all the provisions of the contract so =
that=20
none will be rendered meaningless. Valence Operating Co., =
164=20
S.W.3d at 662. Contract terms are given their plain, ordinary, and =
generally accepted meanings unless the contract itself shows them =
to be=20
used in a technical or different sense. Id. No single =
provision=20
taken alone will be given controlling effect; rather, all the =
provisions=20
must be considered with reference to the whole instrument. =
Coker,=20
650 S.W.2d at 393. Motiva=20
argues that "[b]ecause damages to a leasehold are 'special =
damages' in a=20
condemnation case as a matter of law, Motiva was entitled to =
recover its=20
damages for the reasonable value of its leasehold interest in the =
land."=20
In other words, "all of the damages to be paid by the State, =
including the=20
proceeds attributable to the land taken, are 'special damages' and =
would=20
be subject to Motiva's reservation in the ground lease." However, =
"special=20
damages" is actually a term of art used in condemnation=20
proceedings. The Texas=20
Constitution provides that "[n]o person's property shall be taken, =
damaged=20
or destroyed for or applied to public use without adequate =
compensation=20
being made." Tex. Const. art. I, =A7 17. However, not all =
condemnation=20
damages are compensable. Interstate Northborough P'ship v. =
State,=20
66 S.W.3d 213, 218 (Tex. 2001). Under the Texas Property Code, in=20
estimating injury or benefit to a property owner when a portion of =
a tract=20
or parcel of real property is condemned, "the special =
commissioners shall=20
consider an injury or benefit that is peculiar to the property =
owner and=20
that relates to the property owner's ownership, use, or enjoyment =
of the=20
particular parcel of real property, but they may not consider an =
injury or=20
benefit that the property owner experiences in common with the =
general=20
community." Tex. Prop. Code Ann. =A7 21.042(d) (Vernon Supp. =
2006). This=20
section prohibits a court from considering community benefit or =
community=20
injury when assessing damages. Interstate Northborough =
P'ship, 66=20
S.W.3d at 219; State v. Schmidt, 867 S.W.2d 769, 780 =
(Tex. 1993).=20
In determining whether damages are "community" or "special," it is =
the=20
nature of the injury and whether it affects the remainder in some =
special,=20
unique way. Interstate Northborough P'ship, 66 S.W.3d at=20
222. In=20
contrast, under the common law, actual damages can either be =
"direct=20
damages," also known as "general damages," which compensate for =
the loss,=20
damage, or injury conclusively presumed to have been foreseen or=20
contemplated by a party as a consequence of a breach of contract =
or=20
wrongful act, or "consequential damages," also known as "special =
damages,"=20
which result naturally, but not necessarily, from the acts =
complained of.=20
See Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 163 =
(Tex. 1992)=20
(Phillips, C.J., concurring). Motiva=20
argues that damages to its leasehold, or "leasehold advantage," =
are=20
"special damages as that term is understood under the common law" =
because=20
"damages to a leasehold . . . are distinct from these 'general =
damages'=20
that typically result from a condemnation," such as the damages to =
a fee=20
owner for the taking of his property. However, Motiva does not =
cite any=20
authority suggesting that the inclusion in a lease agreement of =
the phrase=20
"special damages" in regard to reserved rights upon termination of =
a lease=20
entitles a lessee to recover from a lessor its lost future =
"leasehold=20
advantage" after the lease is terminated. Here, the=20
lease agreement specifically provided that the lease itself would=20
"terminate as of the date when possession is required to be given" =
in=20
condemnation. Because the lease automatically terminated upon=20
condemnation, Motiva had no compensable interest in regard to the=20
termination of the lease. See Texaco Ref. & =
Mktg.,=20
Inc., 845 S.W.2d at 342; Evans Prescription Pharmacy, =
Inc.,=20
535 S.W.2d at 706. Motiva's construction of the term "special =
damages" in=20
reference to its reserved rights upon termination of the lease =
conflicts=20
with the specific language in the lease providing that it actually =
terminated upon condemnation. Because the lease itself actually =
terminated=20
upon condemnation, Motiva, as a matter of law, was not entitled to =
recover=20
any damages for its "lost leasehold." Accordingly, we hold that =
the trial=20
court did not err in rendering judgment that Motiva was not =
entitled to=20
any compensation for its "leasehold advantage" under the terms of =
the=20
lease. We overrule=20
Motiva's sole issue. We affirm=20
the judgment of the trial court. Terry=20
Jennings Panel=20
consists of Justices Nuchia, Jennings, and Higley.=20