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Tuesday, January 28, 2020

Houston property owner loses appeal based on 34 months of inactivity


By Charmaine Little | Nov 19, 2019

General court 06

HOUSTON – A property owner caught up in a legal battle with a homeowners’ association lost his appeal years after his claims against the association were dismissed for want of prosecution.

The Court of Appeals for the First District of Texas affirmed the dismissal in Andrew Whallon’s lawsuit against Candlelight Trails 1 Association, Inc. on Nov. 14.

“Here, the record supports the trial court’s dismissal of this case for failure to comply with the supreme court’s 18-month administrative deadline,” the appeals court stated in the decision. “The record shows that over eight years elapsed between the inception of Whallon’s cross-claims and the trial court’s dismissal.”

Chief Justice Sherry Radack

The Supreme Court’s previous order had stated that civil jury cases like this one must be disposed of within 18 months. While Whallon claims the clock on the appearance date did not start ticking until March 26, 2015, when the association answered his cross-claims, the appeals court disagreed and pointed out that 34 months of inactivity from Whallon elapsed as it relates to his cross-claims.

“He acted only to retain, continue or reinstate the case,” the appeals court wrote. Considering that, the 34-month lapse most certainly missed the 18-month deadline.

There was still hope for Whallon as he could have shown a reasonable explanation of why there was such a long delay. He pointed to his lawyer’s physical and emotional health problems as his reasons. This did not move the appeals court as Whallon still failed to explain why he did not take any action at all for nearly three years.

Whallon claims he issued “thousands of pages of discovery” and “had been presented for deposition along with several other witnesses,” during the time in question, according to the court's opinion. But the appeals court wrote, “Other than evidence that Whallon, and two others, appeared for deposition at the association’s behest, his assertions are not supported by the record before us and do not explain the 34-month delay.”

Whallon also argued that the lower court should not have denied his motion for reinstatement because his failure to show up at trial was the result of his lawyer's inability to continue due to his personal issues. Since the lower court’s dismissal is backed via Rule 165a(2) and since Whallon did not ask for reinstatement concerning that exact policy, the appeals court said it had nothing to evaluate concerning the lower court’s ruling in this matter.

Whallon was the owner of 14 units in Candlelight Trails Condominiums when the City of Houston sued him for nuisance and condemnation. Whallon in turn sued the homeowners’ association for negligence, breach of contract and breach of fiduciary duty, claiming the association is the party that let the complex take on hazardous conditions, leading to the city’s legal action. 

When the trial ended in 2010, the lower court green-lighted an order that called for the complex to be demolished and spreading the costs to Whallon and the other owners. The lower court also granted Whallon’s motion to sever his cross-claims. The current court also affirmed the lower court’s judgment against Whallon.

Then, in 2018, the lower court severed Whallon’s cross-claims against the association in the current lawsuit, dismissing his claims for want of prosecution, leading to Whallon’s appeal.

Chief Justice Sherry Radack wrote the opinion and Justices Evelyn Keyes and Peter Kelly concurred.

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