                                                                                       ACCEPTED
                                                                                   01-11-00333-CV
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                             11/3/2015 11:16:28 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK

                          Case No. 01-11-00333-CV
                  ______________________________________
                                                             FILED IN
                                                      1st COURT OF APPEALS
                      In the Court of Appeals for the     HOUSTON, TEXAS
                      First Supreme Judicial District 11/3/2015 11:16:28 PM
                             at Houston, Texas        CHRISTOPHER A. PRINE
            _______________________________________________ Clerk

           Andrew Whallon, Dalia Garcia, and Richard Grayshaw,
                               Appellants
                                   vs.
                            City of Houston,
                                Appellee
                ______________________________________
                                      th
               On Appeal from the 270 Judicial District Court
                          of Harris County, Texas
                   Trial Court Cause Number 2008-51588
                ______________________________________

  Appellant Andrew Whallon’s Motion for En Banc Reconsideration of this
            Court’s Opinion and Judgment of February 5, 2015
     _______________________________________________________

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

      COMES NOW, APPELLANT Andrew Whallon, in the above styled and

numbered appeal and files this, his Motion for En Banc Reconsideration of this

Court’s Opinion and Judgment of February 5, 2015, relative to this Court's

affirmance of the underlying Judgment against him. Pursuant to Rule 49 of the

Texas Rules of Appellate Procedure, Appellant Whallon would respectfully show

the Court as follows:

      On February 5, 2015, this Court affirmed the underlying trial court’s
Corrected Final Judgment against Appellant Whallon, where the City of Houston

brought suit in District Court for demolition costs and attorneys fees, after having

first sought and received administrative remedies related to the same matters under

the Local Government Code §54.017 and Chapter 10 of the Houston Municipal

Code.

         By this Motion, Appellant Whallon respectfully asks this Court to revisit its

decision as to Appellant Whallon, and more specifically, as to the Trial Court's

jurisdiction to hear the underlying matter. Appellant Whallon believes that en banc

reconsideration is appropriate because it appears that the Court panel

misinterpreted Appellant's arguments as to the trial court's jurisdiction to hear the

underlying case. Appellant believes that, had the panel focused its analysis on the

existence of subject matter jurisdiction, (a threshold matter that the Court

"admittedly had the affirmative obligation to ascertain ... regardless of whether the

parties questioned it" 1) rather than on Appellant's res judicata argument, the

Opinion would have read differently.

         Additionally, the primary issue concerning the trial court’s jurisdiction

following an earlier administrative proceeding resulting in final and binding Orders

(which were not appealed to the district court), is a developing area of the law. In

fact, the Texas Supreme Court has issued two opinions (in 2011 and 2012) which

1
    Opinion at pg. 9 citing In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 306 (Tex. 2010).

                                                  2
deal with the issue of jurisdiction in this type of case differently. See City of

Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012), and City of Beaumont v. Como,

381 S.W.3d 538 (Tex. 2012). For these reasons, Appellant urges the entire court to

consider the following facts and arguments. 2

                                  UNDERLYING FACTS

       On Nov 7, 2007, the Building Standards Commission issued eight (8) Orders

requiring that the Owners/lien holders of the Candlelight Trails Condominium

complex secure the complex to City specifications within 60 days. It also provided

that if the Complex was not secured within that period, the COH had the authority

to secure, repair or demolish the Complex as the COH saw fit. (FOF 9) (RR Vol. 6

at 170-323 - Defendant’s Trial Exs. 1, 2 & 3) The COH was also granted a

privileged lien against the owners/lien holders’ property. (RR Vol. 5 at 53-121 -

Plaintiff’s Trial Ex. 6-13) Any appeal of the Commissions Orders had to be filed

within 30 days. The Commission’s orders were not appealed. Instead, on August

27, 2008, long after the Commission’s Orders became “final and binding,” the

COH filed the underlying lawsuit in District Court (APP L) seeking essentially the

same relief as it had received from the Building Standards Commission (e.g.,

demolition, a privileged lien for demolition costs and administrative costs (App H -

Sec. 10-373).

2
 Appellant also incorporates his prior arguments, briefing and Appendices, as if set forth in their
entirety.
                                                 3
      After a trial to the Bench, the District Court found for the Plaintiff (COH)

and Defendants Whallon, Garcia and Grayshaw appealed, arguing (among other

things) that the District Court lacked jurisdiction to hear the underlying matter,

once the issues had been tried through the administrative proceedings before the

Building Standards Commission. Appellants improperly cited the doctrine of res

judicata in their argument.

      Ultimately, this Court reversed and rendered Judgment as to Appellants

Garcia and Grayshaw, but affirmed the Trial Court's Corrected Final Judgment as

to Appellant Whallon.

                                   ARGUMENT

The Res Judicata Analysis

      Initially, this Court began examination of Appellant's argument, that the

underlying trial court lacked jurisdiction to hear the case before it, by comparing

and contrasting subject-matter jurisdiction with res judicata, based upon

Appellant's earlier argument of res judicata.

      The Court began with the premise that subject matter jurisdiction is

“essential to a court’s power to decide a case,” citing Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 553–54 (Tex. 2000), and continued stating that "[A] court

acting without such power commits fundamental error that we may review for the

first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,


                                          4
443–44 (Tex. 1993).

      The Court pointed out that "as a threshold matter, Appellant improperly

conflate[d] the concept of res judicata and subject-matter jurisdiction"; however,

even if true, the Court admittedly had the affirmative obligation "to ascertain that

subject matter jurisdiction exists, regardless of whether the parties questioned it."

Opinion at pg. 9 citing In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 306 (Tex.

2010).

      Although the Court admitted its responsibility in this regard, in its Opinion,

the Court failed to meet that responsibility, and instead, limited its analysis to "res

judicata" and Appellant's misapplication of that concept to the case at hand. In its

Opinion, the Court stated that

      "Appellants’ res judicata arguments rest entirely on the erroneous
      premise that the City could have sought and obtained an award of
      demolition costs and most of its attorneys’ fees in a proceeding before
      the commission. But appellants do not cite authority for that
      proposition, and our own research has not found support for it in the
      Texas Local Government Code, in the relevant ordinances, or in the
      case law."
Opinion pg. 16.

The Court went on to say that

      "Both the Texas Local Government Code and the Houston City
      Ordinance authorize the commission to order repairs, order that
      property be vacated, and order that property be demolished. They also
      both authorize liens against the real property and civil penalties in
      commission proceedings, but neither authorizes an award of
      demolition costs or attorneys’ fees. Accordingly, appellants cannot
      demonstrate, through reference to statutory authority, that recovery of
                                          5
      demolition costs and attorneys’ fees was relief that the City could
      have, but did not, seek before the commission for purposes of res
      judicata."
Opinion pg. 17.

      The Court made these determinations despite Appellant Whallon's argument

in his Brief under Issue 1, beginning in the last paragraph of pg. 22 and concluding

on pg. 23, where Whallon directs the Court to "See Houston Municipal Code,

Article IX, Division 4, Sec. 10-373 (2007); (APP H)."

      Division 4 of the Houston Municipal Code of Ordinances regarding

"Dangerous Buildings" and Division 5, “Building and Standards Commission”

establish a statutory scheme which include very specific provisions for abating the

nuisance of dilapidated buildings and construction as well as implementation of

Local Government Code Chapter 54, Sec. C, establishing Houston’s Building and

Standards Commission, (Houston Municipal Code of Ordinances, Sec. 10-391 et

seq). The Court of Appeals Opinion highlights only one or two of those provisions

while omitting the rest.

      In fact, the Orders issued by the Building Standards Commission,

themselves, stated on their face that:

      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-

                                         6
      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. (Emphasis added)

      Sec. 10-351 of the City's Code of Ordinances specifically authorized the

City to perform any and all work as may be required to bring the property into

compliance with the applicable order, and the city's expenses related to such work

to constitute a lien against the property.

      Sec. 10-370 of the City's Code of Ordinances specifically authorized the

neighborhood protection official to cause the building to be vacated, repaired,

secured, and/or demolished pursuant to the order, should the persons having an

interest in the property fail to comply with the order of the hearing official within

the time specified in the order for compliance.

      Sec. 10-395 of the City's Code of Ordinances specifically provides that, if

the city causes any dangerous building or vector conditions to be abated with its

own employees or through contractors, the cost of the work and the administrative

expenses incurred for the work performed under this division shall constitute a lien

on the property.

      Appellant points out the above ordinances as references cited within the

Commission's Orders; however, Appellant would also refer the Court to additional

ordinances which were available to the City in the underlying administrative


                                             7
proceeding: specifically, Secs. 10-371 through 10-373.

      Sec. 10-371 provides that the hearing official's file will remain open for

three years from the date of the Commission's Order and if the neighborhood

protection official receives evidence that the building has not remained secured ...

the hearing official shall reconvene the hearing. If the hearing official finds that the

building remains a dangerous building, the hearing official may issue a revised

order that the building be demolished.

      Sec. 10-372 provides that the Orders of the hearing official are final and

binding, absent an appeal.

      Sec. 10-373 provides that the administrative expenses incurred by the City

for inspecting buildings, locating owners, conducting hearings, issuing notices and

orders, together with all associated administrative functions, as well as the costs of

securing, demolishing or performing other work in connection with an order either

by the city or by persons doing so under contract with the city, shall be separately

calculated and assessed in each instance in which the city takes the described

action pursuant to this division, and this amount shall constitute a priority lien on

the property.

      Finally, Sec. 54.036 of the Local Government Code authorizes the Building

Standards Commission to (5) determine the amount and duration of the civil

penalty that the municipality may recover as provided by Sec. 54.017 (which


                                           8
allows the City to recover civil penalties against property owners who commit acts

in violation of the ordinance or failed to take action necessary for compliance with

the ordinance relating to dangerously damaged or deteriorated structures).

      In this case, the Orders rendered by the Building Standards Commission

after the 11/7/07 hearing, gave the City all of the relief requested by the City: the

property was vacated, ordered secured and/or, if it was not secured, allowing the

demolition of the buildings. Although the COH chose not to request or prove its

monetary damages before the Commission it was granted a privileged lien

(apparently for any demolition costs that may have been properly proven and

certified as required by law). It also did, to some extent, partake of the benefits that

it (the COH) was, or could have been entitled to receive as a result of the

Commission’s initial eight Orders. Not only did the COH exclude the Complex’s

owners from their own property, but it also secured the entire premises from entry,

even by the unit’s actual owner, resident or mortgagee. All of this was under the

authority of the eight Commission Orders that the City later appeared to otherwise

totally disregard.

      Any remedy that the City did not receive from the Commission, was because

it did not ask for it. The only remedy that the COH sought in their District Court

filing that it could not have recovered in the underlying Administrative proceeding

was its almost $500,000 in unnecessarily incurred attorneys fees, and that was


                                           9
because it did not incur those fees until after it left the realm of the Commission

and moved to District Court. The City could, however, have sought administrative

costs (including attorneys fees) in the underlying administrative action, had it

chosen to do so.

The Jurisdiction Analysis

         Certain limitations on the subject matter jurisdiction of courts are imposed

by the Texas Constitution. These include the constitutional requirement of

standing, which imposes certain threshold standards regarding the stake a plaintiff

must possess in a dispute before a court can exercise subject matter jurisdiction to

resolve it. See Texas Ass'n of Bus., 852 S.W.2d at 44345. Standing under the Texas

Constitution requires "a concrete injury to the plaintiff and a real controversy

between the parties that will be resolved by the court." The general test for

constitutional standing in Texas courts is whether there is a "real" (i.e., justiciable)

controversy between the parties that will actually be determined by the judicial

declaration sought.

         The controversy in this action was adjudicated before an administrative

body: the Building Standards Commission, and brought to a final Order that was

binding on all parties. There was no justiciable issue to be brought in District

Court.

         As subject-matter jurisdiction is essential to the authority of a court to decide


                                             10
a case, standing is implicit in the concept of subject-matter jurisdiction. Under the

Texas Constitution, standing is implicit in the open courts provision, which

contemplates access to the courts only for those litigants suffering an injury.

Specifically, the open courts provision provides:

     All courts shall be open, and every person for an injury done him, in
     his lands, goods, person or reputation, shall have remedy by due
     course of law.
TEX. CONST. art. I, § 13 (emphasis added).

      Appellant contends that the City did not have standing to bring suit in the

District Court as all controversies were (or could have been) resolved by the

Building Standards Commission.

Ripeness:

      Just as subject matter jurisdiction requires that the party bringing the suit

have standing, that there is a live controversy between the parties, and that the case

be justiciable, State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994),

Ripeness is also an element of subject matter jurisdiction. Ripeness is a legal

question subject to de novo review. Robinson v. Parker, 353 S.W.3d 753, 755

(Tex. 2011); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In

evaluating ripeness, we consider whether, at the time a lawsuit is filed, the facts are

sufficiently developed so that an injury has occurred or is likely to occur, rather

than being contingent or remote. Robinson, 353 S.W.3d at 755; Waco Indep. Sch.

Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000); Patterson v. Planned Parenthood
                                          11
of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998). The ripeness

analysis focuses on whether the case involves uncertain or contingent future events

that may not occur as anticipated or may not occur at all. Robinson, 353 S.W.3d at

755; Patterson, 971 S.W.2d at 442. A case is not ripe when determining whether a

plaintiff has a concrete injury depends on contingent or hypothetical facts. Waco

Indep. Sch. Dist., 22 S.W.3d at 852. The ripeness doctrine serves to avoid

premature adjudication. Patterson, 971 S.W.2d at 442.

      At the time that the City filed suit in the District Court, Appellant contends

that, not only was there no justiciable issue in the case, but also that the case was

not ripe for consideration, as the Building Standards Commission still had

jurisdiction over the issues raised. The commission had already provided for

demolition of the property in the event that the property was not secured. The

costs associated with demolition was already available to the City, in the form of

privileged liens on the property and/or civil penalties; a remedy that the City

received and subsequently perfected in April of 2009.

      Attorneys fees and expenses were also available through the administrative

process for a period of three years from the date of the initial orders (or until

November 7, 2010). The City prematurely brought their suit in District Court in

August, 2008, prior to the expiration of the Commission's jurisdiction. Additional




                                         12
attorneys fees (incurred because of the filing in District Court) only arose based

upon the District Court action, and was not a justiciable issue at the time of suit.

      Appellants contend that the District Court did not have subject matter

jurisdiction over the issues presented in the underlying case and the Court of

Appeals panel erred in finding otherwise.

                         CONCLUSION AND PRAYER

      Appellant Andrew Whallon requests that the Court grant rehearing in this

matter and find that the trial court lacked subject-matter jurisdiction to hear the

underlying matter in District Court, and, as such, reverse the Corrected Final

Judgement and render judgment for the Appellant.

      WHEREFORE PREMISES CONSIDERED for all of the reasons set forth

herein and in his Brief, Appellant Andrew Whallon, respectfully requests that this

Court grant this Motion for Rehearing of the Court’s February 5, 2015 Opinion and

Judgment, and for all other such relief that Appellant may be justly entitled.




                                          13
                                     Respectfully submitted,

                                     By: /s/ Denise Wells
                                     DENISE WELLS
                                     SBOT No. 00797165
                                     15935 Manor Square Dr.
                                     Houston, TX 77062
                                     Telephone: (832) 817-2234
                                     Facsimile: (855) 796-9376
                                     ATTORNEY FOR APPELLANT


                           CERTIFICATE OF SERVICE

      I hereby certify that on this 3rd day of November, 2015, a true and correct

copy of the foregoing document was served, pursuant to the Texas Rules of

Appellate Procedure, on all counsel of record via the efiling system used in the

State of Texas.



                                     By: /s/ Denise Wells




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