On
Appeal from the 270th District Court Harris County, Texas
Trial Court Case No. 2008-51588A
Panel
consists of Chief Justice Radack and Justices Keyes and
Kelly.
MEMORANDUM OPINION
Sherry
Radack Chief Justice.
In a
previous lawsuit in 2008, the City of Houston[1] brought a
nuisance and condemnation action against the owners of a
condominium complex, known as Candlelight Trails
Condominiums, located in northwest Houston. See Whallon
v. City of Hous., 462 S.W.3d 146, 152 (Tex. App.-Houston
[1st Dist.] 2015, pet. denied). Appellant, Andrew Whallon,
who owned fourteen units in the complex, brought cross-claims
against the owners' association, appellee Candlelight
Trails I Association (the "Association"), for
negligence, breach of contract, and breach of fiduciary duty.
Id. Whallon alleged that the Association had allowed
the complex to fall into the hazardous condition
precipitating the City's lawsuit. At the close of trial
in 2010, the trial court signed an agreed order authorizing
the immediate demolition of the complex and apportioning
demolition costs against each of the owners, including
Whallon. Id. at 153. The trial court granted
Whallon's request to sever his cross-claims. Id.
On appeal from the main case, this Court affirmed the trial
court's judgment against Whallon. Id. at 173.
In
2018, eight years after the trial court severed Whallon's
cross-claims against the Association into the instant suit,
the trial court dismissed his claims for want of prosecution.
It is from this order that Whallon now appeals. In two
issues, Whallon contends that the trial court erred in
dismissing his cross-claims, and in denying his motion to
reinstate, because "the facts and circumstances
throughout the case show that the case was either proceeding
in development through discovery . . . or was otherwise
derailed in its development by unavoidable and tragic events,
totally outside [his] and [his] counsel's control."
We
affirm.
Background
For
nine months after the trial court's severance of
Whallon's cross-claims into the instant suit, there was
no activity in the case. On August 8, 2011, the trial court
issued a Notice of Disposition Deadline, setting a deadline
of September 12, 2011 and instructing: "If you have not
set and had this matter heard before the disposition deadline
this case will be DISMISSED FOR WANT OF PROSECUTION on that
date without further notice. Hearing dates may be obtained
from the court coordinator . . . ." Whallon moved to
retain the case, asserting only that his trial counsel had
misplaced the notice while moving her office. The trial court
granted the motion and issued an order retaining the case.
Nine
months later, in June 2012, there again having been no
activity in the instant case, the trial court issued a second
Notice of Disposition Deadline, stating its intent to dismiss
the case for want of prosecution. Whallon moved to retain the
case, citing "[c]onfusion and miscommunications"
regarding the reporter's record in the appeal of the main
case. The trial court granted the motion and retained the
case.
Ten
months later, in April 2013, there again having been no
activity in the instant case, the trial court issued a third
Notice of Disposition Deadline, stating its intent to dismiss
the case for want of prosecution. Whallon moved to retain the
case, asserting that his trial counsel was suffering from
certain health issues and that this case was still within the
eighteen-month administrative deadline set by the Texas
Supreme Court for the disposition of civil jury
cases.[2] He asserted that the administrative period
commenced on the date of the defendant's appearance and
that, here, although the Association had appeared and
answered the City's claims in the main case, the
Association had not answered his cross-claims. The trial
court granted the motion and retained the case.
In
July, August, and September 2013, there again having been no
activity in the instant case, the trial court issued its
fourth, fifth, and sixth Notices of Disposition Deadline,
stating its intent to dismiss the case. Whallon again moved
to retain the case, asserting that the case was still within
the supreme court's eighteen-month administrative
deadline because the Association had not yet filed an answer.
The trial court twice signed orders retaining the case.
On
February 6, 2014, there still having been no activity in the
instant case, the trial court issued a seventh Notice of
Disposition Deadline, stating its intent to dismiss the case
for want of prosecution unless the matter was set and heard
by March 17, 2014. On April 2, 2014, the trial court
dismissed the case for want of prosecution, stating that
Whallon had failed to comply with the notice. Whallon moved
to reinstate the case, citing his trial counsel's health
and staffing issues. The trial court issued an order
reinstating the case.
In
August 2014, the trial court issued an eighth Notice of
Disposition Deadline, stating its intent to dismiss the case
for want of prosecution. Matthew Walker, counsel for the
Association in a related case, filed a letter informing
Whallon's counsel that all of the Association's
records had been transferred to the City of Houston, who had
obtained ownership of the condominium complex after it was
closed. He noted that the Association had long since
forfeited its corporate existence and had no assets. Whallon
moved to retain the case so that he could "explore [his]
options." The trial court issued an order granting the
motion and retaining the case.
In
December 2014, Whallon's trial counsel died. Thereafter,
counsel's sister and law partner, Denise Wells, took up
Whallon's case.
It is
undisputed that, on March 26, 2015, the Association,
represented by Walker, filed an Original Answer to
Whallon's cross-claims.
Five
months later, in August 2015, there having been no activity
in the instant case, the trial court issued its ninth Notice
of Disposition Deadline, stating its intent to dismiss the
case for want of prosecution. Wells, on behalf of Whallon,
moved to retain the case. Wells asserted that, although the
Association had filed an answer on March 26, 2015, the
electronic notice of filing "went undetected" and
the mailed notice was sent after Wells had moved her law
office. Wells requested 90 days to review the case to
determine whether she would agree to represent Whallon and,
if not, to afford him time to find new counsel.
In its
response, the Association moved to dismiss the case for want
of prosecution under Rule of Civil Procedure 165a(2),
pursuant to which any case not disposed of within the
administrative deadlines promulgated by the supreme court was
subject to dismissal.[3] It asserted that Whallon had failed to
comply with the applicable eighteen-month administrative
deadline, that he had ...