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Whallon v. Candlelight Trails I Association, Inc.

Court of Appeals of Texas, First District

November 14, 2019

ANDREW WHALLON, Appellant
v.
CANDLELIGHT TRAILS I ASSOCIATION, INC., Appellee

          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 ...


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