HOUSTON – An appellate court has upheld a lower court's ruling in a suit over possession of a Kemah bed and breakfast.
Justices John Donovan of the 14th Court of Appeals authored the Nov. 6 opinion while Chief Justice Kem Frost and Justice Marc Brown concurred. The Appeals Court affirmed the ruling of the 122nd District Court of Galveston County, which signed an order of judicial foreclosure of a lien created in a 2012 judgment and entered a judgment in favor of the appellees.
According to the ruling, appellant Amelia Kelly asked for declaratory judgment and legal and equitable claims from a judgment that dates back to 2012 and a post-judgment judicial foreclosure order that dates back to 2014.
John Donovan
She initially sued appellee Matthew D. Wiggins Jr. after Wiggins foreclosed on a property they once owned together.
“Kelly may not challenge the validity of the 2012 final judgment ... in this proceeding,” Donovan wrote in the opinion. “A direct appeal would have been the avenue to challenge the 2012 final judgment, but Kelly chose not to appeal, and the time for appealing that judgment has long passed.”
The Appeals Court also pointed out Kelly has made several attempts to raise issues concerning the property in question. Still, she’s not allowed to bring up the same issues in a new lawsuit asking for declaratory judgment, expressing concerns with the 2012 final judgment. It added Kelly’s arguments about the title to the property show impermissible collateral attacks on the final judgment a court ruled six years ago and overruled her issues.
The ruling states Kelly purchased the property in 2006 and conveyed the deed to William Kelleher to obtain additional financing for updates to the property.
Three years after the sale, Kelly wanted to buy Kelleher’s interest in the property and Wiggins gave her a loan. The two partnered together and established the property as a bed and breakfast. Kelly executed a promissory note for $400,000 to be paid to Wiggins and used money she borrowed from him to repurchase the property from Kelleher.
Kelly allegedly never paid Wiggins, so he distributed a notice of foreclosure. Hammaker came into the picture as he conducted a nonjudicial foreclosure sale of the property and sold it to Wiggins. Kelly sued Wiggins in hopes of getting a trial court to void the 2010 foreclosure, which it did, becoming the final judgment in 2012. Both Wiggins and Kelly appealed and in 2014, the trial court signed an order of judicial foreclosure of the lien from the 2012 judgment.