Whallon v. City of Hous.

• Decision Date: 05 February 2015
• Docket Number: NO. 01–11–00333–CV,01–11–00333–CV
• Citation: 462 S.W.3d 146
• Parties: Andrew Whallon, Dahlia Garcia, and Richard Grayshaw, Appellants v. The City of Houston, Appellee
• Court: Texas Court of Appeals

462 S.W.3d 146

Andrew Whallon, Dahlia Garcia, and Richard Grayshaw, Appellants

v.The City of Houston, Appellee

NO. 01–11–00333–CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued February 5, 2015

Valorie W. Davenport, Denise Wells Novotny, Davenport & Novotny, Houston, TX, for Appellant.

David M. Feldman, City Attorney, Lynette K. Fons, First Asst. City Attorney, Judith L. Ramsey, Chief, General Litigation Section, Robert W. Higgason, Senior Assistant City Attorney, City of Houston Legal Dept., Houston, TX, Appellee.

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

OPINION

Sherry Radack, Chief Justice

This is an appeal from a judgment awarding demolition costs and attorneys' fees to the City of Houston from three property owners—appellants Andrew Whallon, Dalia Garcia, and Richard Grayshaw—for their proportional share of the total costs associated with demolition of a condominium complex. We reverse and render the judgment against appellants Garcia and Grayshaw and affirm the judgment against appellant Whallon.

BACKGROUND

At issue in this case is Candlelight Trails Condominium Complex. The complex became of particular interest to the Houston Police Department (HPD) because of the high volume of calls for assistance from, and related to, that complex. Specifically, the department's Differential Response Team (a division created to address high crime areas where traditional policing has been ineffective) was asked to focus on the complex in response to the approximately 800 calls the complex generated in 2007.

Since at least 2007, the units at the complex had been all open to the outside elements. At least 90 percent of the exterior windows and doors were either broken or removed, and all eight buildings were inundated with black mold. Every unit in the complex had been vandalized, and much of the wiring, plumbing, fixtures, and cabinets were torn out. There was also evidence of violent struggles in units that were splattered in blood. By 2007, only 34 of the 230 units still had occupants through ownership or rental agreements.

The complex is bordered by an apartment complex, a church, and a retirement home. It also is down the street from a playground, and HPD considered the complex to be an attractive nuisance to kids. None of the units were habitable, and the building conditions violated numerous city ordinances.

A. The Building and Standards Commission proceedings

On August 7, 2007, in response to a health and safety evaluation, the City of Houston posted notices to vacate at the complex and began making efforts to relocate anyone who was still living there. On August 15, 2007, the City's Neighborhood Protection Division initiated a hearing related to the property before the Building and Standards Commission. At that meeting, Mr. Fonteno, the owner of the majority of the condominium units, volunteered to take on the responsibility of boarding the property and securing the perimeter. The measures Fonteno took were short-lived, however, and the Neighborhood Protection Department eventually hired a contractor to secure the complex.

On November 7, 2007, the Building and Standards Commission held a public hearing pursuant to Section 54, Subchapter C of the Texas Local Government Code and Chapter 10 of the Code of Ordinances, Houston, Texas. The Commission found that the complex was dangerous and substandard in violation of Houston's Municipal Code of Ordinances.

Following the hearing, the Commission ordered the owners and lien holders of units in Candlelight Trails to bring the property into compliance with the Code of Ordinances within 60 days. The Commission's orders also provided,

UPON THE EARLIEST DATE OF ANY FAILURE BY THE OWNERS OR LIENHOLDERS TO TIMELY COMPLY WITH THIS ORDER, THE CITY OF HOUSTON SHALL BE AUTHORIZED TO REMEDY, ALLEVIATE, OR REMOVE ANY SUBSTANDARD OR DANGEROUS BUILDING IN ACCORDANCE WITH SECTIONS 10–351 AND 10–370 OF THE CITY'S CODE OF ORDINANCES [.] PURSUANT TO SECTIONS 10–351 AND 10–395 OF THE CITY'S CODE OF ORDINANCES A PRIVILEGED LIEN, INFERIOR ONLY TO TAX LIENS AND LIENS FOR STREET IMPROVEMENTS, MAY BE PLACED UPON THE LAND DESCRIBED HEREIN, PLUS TEN PERCENT (10%) INTEREST PER ANNUM UNTIL PAID.

B. The Underlying Bench Trial

Almost a year later, on August 27, 2008, the City of Houston sued, in Harris County district court, the owners and lienholders of one of the condo buildings seeking demolition of that building or, in the alternative, judgment authorizing the City to demolish the building, as well as recovery of demolition costs. The City later amended its petition, seeking permission to demolish the entire complex, demolition costs apportioned to each owner, liens against the underlying property apportioned to each owner for demolition costs, and attorney's fees. Later, on April 21, 2009, the City issued Notices of Statutory Municipal Liens against the owners and lienholders of the complex pursuant to Chapters 54 and 214 of the Texas Local Government Code and Chapter 10 of the Code of Local Ordinances. Appellant/defendant Andrew Whallon, who owned fourteen units in the complex, cross-claimed against the homeowners' association, Candlelight Trails 1 Association. The trial court appointed an ad litem to represent some property owners who could not be located. In the two years between the City's initially filing suit and the time of the bench trial, the court signed numerous interlocutory summary judgments and default judgments against various condominium owners.

By the time of the bench trial on September 2010, none of the necessary repairs had been completed by the complex owners, and the City had been unsuccessful in its attempts to keep the property secure. One of the eight complex buildings was completely destroyed by fire one month before trial.

Whallon was the only defendant who participated at trial. The court heard evidence about the condition of the buildings and expert testimony estimating the cost of demolition to be $455,000.00, and the amount of the City's reasonable and necessary attorneys' fees to be $607,504.77.

At the close of trial, Whallon agreed to the trial court's signing an immediate demolition order, given the hazardous condition of the buildings. At Whallon's request, his cross-claim against the homeowners' association was severed to be tried at a later date.

C. The Trial Court's Judgments and Findings of Fact and Conclusions of Law

On September 14, 2010, the trial court signed an interlocutory Order Regarding Demolition authorizing the City to demolish the buildings in the complex. On December 1, 2010, the trial court entered a final judgment in the City's favor. The judgment contained recitations identifying which of the 141 original defendants had been dismissed by the City pursuant to settlements or been the subject of interlocutory default and summary judgments. The judgment also recited that the City would incur demolition costs of $455,000.00 and that the City had incurred reasonable and necessary attorneys' fees of $494,751.00. It awarded to the City these demolition costs and attorneys' fees “against the Owner Defendants remaining in this case in proportion to their respective fractional interests in the Complex.”

As for the appellants here, the final judgment awarded damages of $41,314.00 from appellant Whallon to the City. There was no award from appellants Grayshaw and Garcia, as they were identified in the judgment as being either parties that had settled or parties with whom the City has “been in the process of settlement and dismissal during and following trial, and up to the time of this Judgment.”

On December 30, 2010, the City filed a Motion to Modify Final Judgment, in part because three property owners, including appellants Grayshaw and Garcia, “who had indicated their intention to settle at the time the City submitted the Final Judgment have failed or refused to complete the settlement process.” On January 21, 2011, the trial court signed a Corrected Final Judgment, which included awards against appellant Grayshaw for $5,129.00 and against appellant Garcia for $3,894.00.

At appellants' request, the trial court issued Findings of Fact and Conclusions of Law in Support of Corrected Judgment in March 2011.

ISSUES ON APPEAL

Appellant Andrew Whallon raises the following issues:

(1) “Did the trial court have jurisdiction to enter its corrected final judgment on 01–21–2011?”

(2) “Did the trial court err in refusing to strike plaintiff's untimely designated experts, their documents and their related findings?”

(3) “Did the trial court err in awarding attorneys' fees and expenses in the total amount of $494,751.00 and as apportioned between and amount defendants in the amounts set forth in the corrected final judgment?”

(4) “Did the trial court err in awarding $455,000.00 in demolition costs, in total and as apportioned between and among defendants in the amounts set forth in the corrected final judgment?”

(5) “Did the trial court err in entering any and all of its findings of fact/conclusions of law in support of its corrected final judgment,

a. “because the trial court lacked or lost jurisdiction over the entire proceedings?; and/or”

b. “because, as to those specific FOF/COL set forth below, the trial court committed an error in the admission of the allegedly supporting evidence upon which it, in whole or in part, based its FOF/COL and ultimately its corrected final judgment?; and/or”

c. “because there was no properly admissible and/or admitted evidence which supported said FOF/COL?; and/or”

d. “because contrary finding(s) and/or conclusion(s) were established as a matter of law?”

Appellants Dalia Garcia and Richard Grayshaw raise the following issues:

(1) “Did the trial court have jurisdiction to enter its corrected final judgment?”

(2) “Did the trial court err in awarding attorneys fees and expenses in the total amount of $494,751.00, and as combined then apportioned against defendants/appellants in the amounts set forth in the corrected final

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