Opinion issued February 5, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00333-CV

———————————

ANDREW WHALLON, DAHLIA GARCIA, AND RICHARD GRAYSHAW, 

Appellants

V.

THE CITY OF HOUSTON, Appellee

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Case No. 2008-51588

O P I N I O N

This is an appeal from a judgment awarding demolition costs and attorneys’ 

fees to the City of Houston from three property owners—appellants Andrew 

Whallon, Dalia Garcia, and Richard Grayshaw—for their proportional share of the 

total costs associated with demolition of a condominium complex. We reverse and 
2

render the judgment against appellants Garcia and Grayshaw and affirm the 

judgment against appellant Whallon. 

BACKGROUND

At issue in this case is Candlelight Trails Condominium Complex. The 

complex became of particular interest to the Houston Police Department (HPD)

because of the high volume of calls for assistance from, and related to, that 

complex. Specifically, the department’s Differential Response Team (a division 

created to address high crime areas where traditional policing has been ineffective) 

was asked to focus on the complex in response to the approximately 800 calls the 

complex generated in 2007. 

Since at least 2007, the units at the complex had been all open to the outside 

elements. At least 90 percent of the exterior windows and doors were either 

broken or removed, and all eight buildings were inundated with black mold. 

Every unit in the complex had been vandalized, and much of the wiring, plumbing,

fixtures, and cabinets were torn out. There was also evidence of violent struggles 

in units that were splattered in blood. By 2007, only 34 of the 230 units still had 

occupants through ownership or rental agreements. 

The complex is bordered by an apartment complex, a church, and a 

retirement home. It also is down the street from a playground, and HPD 
3

considered the complex to be an attractive nuisance to kids. None of the units 

were habitable, and the building conditions violated numerous city ordinances. 

A. The Building and Standards Commission proceedings

On August 7, 2007, in response to a health and safety evaluation, the City of 

Houston posted notices to vacate at the complex and began making efforts to 

relocate anyone who was still living there. On August 15, 2007, the City’s 

Neighborhood Protection Division initiated a hearing related to the property before 

the Building and Standards Commission. At that meeting, Mr. Fonteno, the owner 

of the majority of the condominium units, volunteered to take on the responsibility 

of boarding the property and securing the perimeter. The measures Fonteno took 

were short-lived, however, and the Neighborhood Protection Department 

eventually hired a contractor to secure the complex. 

On November 7, 2007, the Building and Standards Commission held a 

public hearing pursuant to Section 54, Subchapter C of the Texas Local 

Government Code and Chapter 10 of the Code of Ordinances, Houston, Texas. 

The Commission found that the complex was dangerous and substandard in 

violation of Houston’s Municipal Code of Ordinances. 

Following the hearing, the Commission ordered the owners and lien holders 

of units in Candlelight Trails to bring the property into compliance with the Code 

of Ordinances within 60 days. The Commission’s orders also provided,
4

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 

10-351 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. 

B. The Underlying Bench Trial

Almost a year later, on August 27, 2008, the City of Houston sued, in Harris 

County district court, the owners and lienholders of one of the condo buildings

seeking demolition of that building or, in the alternative, judgment authorizing the 

City to demolish the building, as well as recovery of demolition costs. The City 

later amended its petition, seeking permission to demolish the entire complex, 

demolition costs apportioned to each owner, liens against the underlying property 

apportioned to each owner for demolition costs, and attorney’s fees. Later, on 

April 21, 2009, the City issued Notices of Statutory Municipal Liens against the 

owners and lienholders of the complex pursuant to Chapters 54 and 214 of the 

Texas Local Government Code and Chapter 10 of the Code of Local Ordinances. 

Appellant/defendant Andrew Whallon, who owned fourteen units in the complex, 

cross-claimed against the homeowners’ association, Candlelight Trails 1 

Association. The trial court appointed an ad litem to represent some property 
5

owners who could not be located. In the two years between the City’s initially 

filing suit and the time of the bench trial, the court signed numerous interlocutory 

summary judgments and default judgments against various condominium owners. 

By the time of the bench trial on September 2010, none of the necessary 

repairs had been completed by the complex owners, and the City had been 

unsuccessful in its attempts to keep the property secure. One of the eight complex 

buildings was completely destroyed by fire one month before trial.

Whallon was the only defendant who participated at trial. The court heard 

evidence about the condition of the buildings and expert testimony estimating the 

cost of demolition to be $455,000.00, and the amount of the City’s reasonable and 

necessary attorneys’ fees to be $607,504.77. 

At the close of trial, Whallon agreed to the trial court’s signing an immediate

demolition order, given the hazardous condition of the buildings. At Whallon’s 

request, his cross-claim against the homeowners’ association was severed to be 

tried at a later date. 

C. The Trial Court’s Judgments and Findings of Fact and Conclusions 

of Law

On September 14, 2010, the trial court signed an interlocutory Order 

Regarding Demolition authorizing the City to demolish the buildings in the 

complex. On December 1, 2010, the trial court entered a final judgment in the 

City’s favor. The judgment contained recitations identifying which of the 141 
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original defendants had been dismissed by the City pursuant to settlements or been 

the subject of interlocutory default and summary judgments. The judgment also 

recited that the City would incur demolition costs of $455,000.00 and that the City 

had incurred reasonable and necessary attorneys’ fees of $494,751.00. It awarded 

to the City these demolition costs and attorneys’ fees “against the Owner 

Defendants remaining in this case in proportion to their respective fractional 

interests in the Complex.” 

As for the appellants here, the final judgment awarded damages of 

$41,314.00 from appellant Whallon to the City. There was no award from 

appellants Grayshaw and Garcia, as they were identified in the judgment as being 

either parties that had settled or parties with whom the City has “been in the 

process of settlement and dismissal during and following trial, and up to the time 

of this Judgment.” 

On December 30, 2010, the City filed a Motion to Modify Final Judgment, 

in part because three property owners, including appellants Grayshaw and Garcia, 

“who had indicated their intention to settle at the time the City submitted the Final 

Judgment have failed or refused to complete the settlement process.” On January 

21, 2011, the trial court signed a Corrected Final Judgment, which included awards 

against appellant Grayshaw for $5,129.00 and against appellant Garcia for 

$3,894.00. 
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At appellants’ request, the trial court issued Findings of Fact and 

Conclusions of Law in Support of Corrected Judgment in March 2011. 

ISSUES ON APPEAL

Appellant Andrew Whallon raises the following issues: 

(1) “Did the trial court have jurisdiction to enter its corrected final 

judgment on 01-21-2011?”

(2) “Did the trial court err in refusing to strike plaintiff’s untimely 

designated experts, their documents and their related findings?”

(3) “Did the trial court err in awarding attorneys’ fees and expenses in the 

total amount of $494,751.00 and as apportioned between and amount 

defendants in the amounts set forth in the corrected final judgment?” 

(4) “Did the trial court err in awarding $455,000.00 in demolition costs, 

in total and as apportioned between and among defendants in the 

amounts set forth in the corrected final judgment?”

(5) “Did the trial court err in entering any and all of its findings of 

fact/conclusions of law in support of its corrected final judgment,

a. “because the trial court lacked or lost jurisdiction over the entire 

proceedings?; and/or”

b. “because, as to those specific FOF/COL set forth below, the 

trial court committed an error in the admission of the allegedly 

supporting evidence upon which it, in whole or in part, based its 

FOF/COL and ultimately its corrected final judgment?; and/or” 

c. “because there was no properly admissible and/or admitted 

evidence which supported said FOF/COL?; and/or”

d. “because contrary finding(s) and/or conclusion(s) were 

established as a matter of law?” 

Appellants Dalia Garcia and Richard Grayshaw raise the following issues: 
8

(1) “Did the trial court have jurisdiction to enter its corrected final 

judgment?”

(2) “Did the trial court err in awarding attorneys fees and expenses in the 

total amount of $494,751.00, and as combined then apportioned 

against defendants/appellants in the amounts set forth in the corrected 

final judgment?”

(3) “Did the trial court err in awarding $455,000.00 in demolition costs, 

in total and as combined then apportioned against 

defendants/appellants in the amounts set forth in the corrected final 

judgment?”

(4) “Did the trial court err by entering its corrected final judgment so as to 

include the COH’s claims against settling defendants/appellants Dalia 

Garcia and Richard Grayshaw?”

(5) “Did the trial court err in entering its corrected final judgment and any 

and/or all of its findings of fact and/or conclusions of law against 

settling defendants Dalia Garcia and Richard Grayshaw as support 

therefore?:

a. “because the trial court lacked (or lost) jurisdiction over these 

defendants/appellants as well as over the entire proceedings no 

later than 9/10/2010”

b. “because, as to certain specific FOF/COL set forth herein, the trial 

court committed an error in law in its admission of evidence 

necessary to support, in whole or in part, those FOF/COL and 

ultimately its corrected final judgment”

RES JUDICATA

In Whallon’s first issue and in Garcia and Grayshaw’s first issue, appellants

argue that the district court did not have subject matter jurisdiction because no 

property owner appealed the Commission’s November 2007 orders. Specifically, 

appellants contend that the Commission’s orders became “final and binding” on 

December 7, 2007 and, as such, “jurisdiction never passed to the 270th District 
9

Court.” Accordingly, they contend, the City could not “re-litigate the proceeding 

or otherwise disturb” the Commission’s judgments. Although the City “chose not 

to seek all possible relief in that initial action,” appellants argue that “under the 

doctrine of res judicata, the Order became final and binding” on both matters that 

“were and/or could have been at issue.” 

A. Res Judicata does not implicate Subject-Matter Jurisdiction.

As a threshold matter, we note that appellants’ argument conflates the 

separate and distinct concepts of res judicata and subject-matter jurisdiction. 

Subject matter jurisdiction is “essential to a court’s power to decide a case.” 

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). 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, 

443–44 (Tex. 1993). Not only may a reviewing court assess jurisdiction for the 

first time on appeal, but all courts bear the affirmative obligation “to ascertain that 

subject matter jurisdiction exists regardless of whether the parties questioned it.” In 

re United Servs. Auto. Ass’n, 307 S.W.3d 299, 306 (Tex. 2010). A judgment 

rendered without subject matter jurisdiction cannot be considered final. Dubai 

Petrol. Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (citing Restatement (Second) of 

Judgments § 12 cmt.b (1982)). Subject matter jurisdiction presents a question of 
10

law we review de novo. Tex. Dep’t of Transp. v. A.P.I. Pipe & Supply, LLC, 397 

S.W.3d 162, 166 (Tex. 2013).

In contrast, res judicata is an affirmative defense that must be pleaded. TEX.

R. CIV. P. 94; Barnes v. United Parcel Serv., Inc., 395 S.W.3d 165, 173 (Tex. 

App.—Houston [1st Dist.] 2012, pet. denied). As such, unlike subject-matter 

jurisdiction, res judicata is subject to waiver. E.g., Green v. Parrack, 974 S.W.2d 

200, 202 (Tex. App.—San Antonio 1998, no pet.) (“Generally, res judicata must be 

pled or be waived”); Green v. Doakes, 593 S.W.2d 762, 764 (Tex. Civ. App.—

Houston [1st Dist.] 1979, no writ) (“If the facts had given rise to a plea of res 

judicata, appellant has waived such by failing to affirmatively plead this defense in 

accordance with Rule 94, T.R.C.P.”).

Here, the affirmative defense of res judicata was neither pleaded nor raised 

in the trial court. Because it was waived at the trial court, it may not be raised for 

the first time on appeal. 

B. Res Judicata did not bar the City from pursuing claims to recover 

demolition costs and attorneys’ fees in the trial court. 

In any event, the City’s trial-court claims were not barred by res judicata. 

1. Standard of Review

Under Texas law, “[r]es judicata is a generic term for the related concepts of 

claim preclusion (res judicata) and issue preclusion (collateral estoppel).” Barnes, 

395 S.W.3d at 173. “Res judicata bars the relitigiation of claims that have been 
11

finally adjudicated or that could have been litigated in the prior action.” Igal v. 

Brightstar Info. Tech. Grp., 250 S.W.3d 78, 86 (Tex. 2008). For res judicata to 

apply, the defendant must show that: (1) there is a prior final judgment on the 

merits by a court of competent jurisdiction; (2) the parties in the second action are 

the same or in privity with those in the first action; and (3) the second action is 

based on claims that were or could have been raised in the first action. Id.; Dardari 

v. Tex. Commerce Bank Nat’l Ass’n, 961 S.W.2d 466, 470 (Tex. App.—Houston 

[1st Dist.] 1997, no pet.). Res judicata does not operate as a bar to litigation when 

the second claim could not have been raised in the previous litigation. See Abbott 

Labs. v. Gravis, 470 S.W.2d 639, 642 (Tex. 1971); Voskamp v. Arnoldy, 749 

S.W.2d 113, 126 (Tex. App.—Houston [1st Dist.] 1987, writ denied).

“The doctrine of res judicata also applies to the relitigation of claims 

previously determined by an administrative agency.” Tricon Tool & Supply, Inc. v. 

Thumann, 226 S.W.3d 494, 511 (Tex. App.—Houston [1st Dist.] 2006, pet. 

denied); see also, e.g., Coal. of Cities for Affordable Util. Rates v. Pub. Util. 

Comm’n of Tex., 798 S.W.2d 560, 563, 565 (Tex. 1990) (applying res judicata to a 

Public Utilities Commission ruling); Harrison v. Gemdrill Int’l, Inc., 981 S.W.2d 

714, 718 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (applying res judicata 

to a Texas Employment Commission ruling). 
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Here, appellants do not argue that the City is seeking to relitigate what was 

actually litigated before the Building and Standards Commission. Rather, they

argue that the City should have sought demolition costs and attorneys’ fees in the 

Commission proceeding. Because it did not, appellants argue that the City was 

barred from seeking damages in the district court. 

2. Relevant Ordinances and Statutes

Sections of the Houston Municipal Code of Ordinances that regulate 

building safety, seizure, and removal are authorized under the authority of Chapter

214 of the Texas Local Government Code. E.g., TEX. LOC. GOV’T CODE ANN §§ 

214.001(a) (“A municipality may, by ordinance, require the vacation, relocation of 

occupants, securing, repair, removal, or demolition of a building . . .”); 

214.0011(a) (authorizing municipalities to enact ordinances establishing 

“minimum standards for the use and occupancy of buildings” and authorizing 

municipality to secure buildings if standards are not satisfied), & 214.002(b) (“The 

governing body shall provide by ordinance for . . . assessment of repair, removal or 

demolition expenses incurred” by municipality.). 

Chapter 54—entitled “Enforcement of Municipal Ordinances”—grants 

municipalities the authority to enforce ordinances and defines the scope of this 

authority. TEX. LOC. GOV’T CODE ANN. § 54.001. Chapter 54 also contains two 

distinct subchapters with provisions allowing municipalities to bring suit either 
13

before a civil trial court (Subchapter B) or a Building and Standards Commission 

(Subchapter C). TEX. LOC. GOV’T CODE ANN. §§ 54.012–.019 & 54.031–.043 

(Vernon 2008 & Supp. 2013). These two subchapters provide alternative methods 

through which a municipality may seek to enforce ordinances passed under the 

authority of Chapter 214 (Sections 214.001, 214.0011(a), & 214.002(b)). See 

Jamestown Partners, L.P. v. City of Fort Worth, 83 S.W.3d 376, 381 (Tex. App.—

Fort Worth 2002, pet denied): 

The legislature has . . . made it clear there is a difference between civil 

actions to enforce ordinances and quasi-judicial enforcement through 

a building standards commission. The provisions governing those two 

types of enforcement are located in separate and distinct subchapters 

of chapter 54. Thus, the City’s Minimum Building Standards Code 

and chapter 54 make it clear that BSC review is not the same as a 

chapter 54 civil action.

Id. (internal citations omitted). 

Chapter 214 additionally outlines the administrative procedures through 

which a municipality may enforce ordinances or acquire a demolition order. Id. at 

§ 214.001; see also Martinez v. City of Forth Worth Historic & Cultural 

Landmarks Comm’n, No. 02-08-00433-CV, 2009 WL 1372974, at *1 (Tex. 

App.—Fort Worth May 14, 2009, pet. denied) (mem. op.).

3. Remedies available in Building and Standards Commission

Proceeding

The City’s Building and Standards Commission was created under the 

authority of Subchapter C. TEX. LOC. GOV’T CODE ANN. §§ 54.031 & 54.033. The 
14

permissible functions of a building and standards commission are defined by 

statute, and—at the times relevant to the underlying proceedings—included the 

authority to: 

(1) order the repair, within a fixed period, of buildings found to be in 

violation of an ordinance; 

(2) declare a building substandard in accordance with the powers 

granted by this subchapter; 

(3) order, in an appropriate case, the immediate removal of persons or 

property found on private property, enter on private property to secure 

the removal if it is determined that conditions exist on the property 

that constitute a violate of an ordinance, and order action to be taken 

as necessary to remedy, alleviate, or remove any substandard building 

found to exist; 

(4) issue orders or directives to any peace officer of the state, 

including a sheriff or constable or the chief of police of the 

municipality, to enforce and carry out the lawful orders or directives 

of the commission panel; 

(5) determine the amount and duration of the civil penalty the 

municipality may recover as proved by Section 54.017. 

TEX. LOC. GOV’T CODE ANN. §§ 54.036; see also HOUSTON CODE § 10-394.

A person aggrieved by the commission’s decision may file a verified petition 

in district court on the ground that the commission’s decision was illegal. TEX.

LOC. GOV’T CODE ANN. § 54.039. The commission panel decision is final if not 

appealed. LOC. GOV’T CODE ANN. § 54.041. Proceedings before the Building and 

Standards Commission are “cumulative of all other available remedies.” HOUSTON

CODE § 10-397.
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4. Remedies available in district court

Subchapter B, governing civil district court actions, also permits ordinances 

to be enforced through a civil court action:

A municipality may bring a civil action for the enforcement of 

ordinances: (1) for the preservation of public safety, relating to the 

materials or methods used to construct a building or other structure or

improvement, including foundation, structural elements, electrical 

wiring or apparatus, plumbing fixtures, entrances, or exits; . . . . (6) 

relating to dangerously damaged or deteriorated structures or 

improvements; (7) relating to conditions caused by accumulations of 

refuse, vegetation, or other matter that creates breeding and living 

places for insects and rodents . . . .

TEX. LOC. GOV’T CODE ANN. § 54.012 (Vernon Supp. 2013). In addition to civil 

penalties, a municipality may seek, as a remedy, to “compel the repair or 

demolition of a structure or to obtain approval to remove the structure and recover 

removal costs.” TEX. LOC. GOV’T CODE ANN. § 54.018(a). Section 214.0015 

allows the trial court to award attorneys’ fees to the prevailing party “in any 

judicial proceeding regarding enforcement of municipal rights” under that section. 

TEX. LOC. GOV’T CODE ANN. § 214.0015(h). 

C. Analysis

Appellants argue that the City was barred from bringing an action in district 

court because it first initiated proceedings before the Building and Standards 

Commission. Specifically, according to appellants, the City “brought all its claims 

to final resolution” before the commission, which barred the City from “re-
16

litigat[ing] the nuisance and remedy issues in the District Court” absent an appeal 

of the commission’s orders. The City disagrees, and further argues that all the 

cases cited by appellants are simply inapposite. 

We agree with the City that appellants have not demonstrated that res 

judicata barred the underlying proceeding in district court. The jurisdiction of 

administrative agencies is established by the legislature. Igal, 250 S.W.3d at 83. 

An administrative agency may only exercise powers conferred upon them by “clear 

and express statutory language.” City of Houston v. Rhule, 417 S.W.3d 440, 442 

(Tex. 2013). 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.

The commission’s November 7, 2007 orders gave Candlelight Trails 

property owners and lienholders 60 days to bring the complex into compliance 

with the relevant ordinances. The orders further provided that, if this mandate 

were not timely complied with, the City was authorized to demolish the complex 

and place a lien on the complex’s land. After the owners failed to comply, the City 

sued in district court seeking demolition costs and attorney’s fees. 
17

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 demolition 

costs and attorneys’ fees was relief that the City could have, but did not, seek 

before the commission for purposes of res judicata.

Further, none of the cases appellants cite involving administrative 

proceedings support the proposition that the ordinance enforcement remedies 

available before the commission and district court are mutually exclusive. 

Appellants cite Thomas v. Long, 207 S.W.3d 334, 340 (Tex. 2006) and City of 

Dallas v. Stewart, 361 S.W.3d 562, 580 (Tex. 2012) for the proposition that, if no 

appeal is taken, an agency decision is final and binding in all regards and cannot be 

collaterally attacked. But the City’s pursuing a civil action in district court is not 

“appeal” of any order related to the administrative proceeding. Compare TEX.

LOC. GOV’T CODE § 54.012-.013 (authorizing civil court action to enforce 

ordinances in district court) with TEX. LOC. GOV’T CODE §§ 54.039, 214.0012 

(providing for appeals to district court of administrative decision enforcing 
18

ordinances). Appellants have not established that the commission proceedings 

operate as res judicata to bar the underlying civil proceedings in district court. 

We overrule Whallon’s first issue and Garcia and Grayshaw’s first issue.

JUDGMENT AGAINST GARCIA AND GRAYSHAW

In their fourth issue, Garcia and Grayshaw argue that the trial court erred in 

entering judgment against them because “1. Garcia and Grashaw both entered into 

Rule 11 settlements with the [City] before trial; 2. The Court had signed 

interlocutory agreed judgments based on the settlements after trial; 3. Garcia and 

Grayshaw did not participate in trial based on the settlement; and 4. Neither 

pleadings nor evidence supported the [City’s] bare assertion that [Garcia and 

Grayshaw] breached their settlements.”

The City contends that this issue was waived by failure to cite the record and 

that, in any event, “Garcia’s and Grayshaw’s inchoate attempts to settle did not 

result in binding contracts, so jurisdiction remained.” 

A. Evidence related to Settlements 

The record contains the following related to settlements between the City 

and Garcia and Grayshaw:

1. Rule 11 Agreements

The following is the complete text of a September 3, 2010 letter agreement 

between Garcia’s counsel the City’s counsel:
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This Letter Agreement confirms the agreement between your 

client, Dalia Garcia (“Garcia”), and the City of Houston (the “City”) 

for the disposition of the Litigation. Garcia and the City (each, a 

“Party”' and collectively, the “Parties”') have agreed as follows:

1. No later than the close of business on September 8, 2010, you 

will cause to be delivered to the undersigned counsel an Agreed 

Interlocutory Judgment (the “Interlocutory Judgment”) 

executed by you on behalf of Garcia. The substance of the 

Interlocutory Judgment will not vary from the form attached to 

this Letter Agreement as Exhibit “A.” The undersigned counsel 

will execute the Interlocutory Judgment on behalf of the City, 

promptly provide a copy of the said document to you, and file 

the original of the said document with the Court no later than 

September 9, 2010.

2. No later than the close of business on September 20, 2010, the 

Parties will execute a written agreement of settlement and 

mutual release (the “formal settlement agreement”) in a form 

approved by the Parties’ respective counsel, which approval 

may not be withheld unreasonably. Whether or not the Parties

execute a formal settlement agreement, this Letter Agreement 

constitutes a release by each Party of all claims and causes of 

action that each Party has asserted or could have asserted 

against the other Party in the Litigation, save and except only

those obligations created by or resulting from this Letter 

Agreement, which obligations, in any event, continue until 

discharged or modified by a subsequent, mutual agreement of 

the Parties.

3. No later than the close of business on September 30, 2010, 

Garcia will execute or cause to be executed all documents 

reasonable and necessary to convey to the City all of Garcia’s 

rights title, and interest in the Candlelight Trails condominium 

complex, which is located in the 5500 and 5600 blocks of De 

Soto Street in Houston, Harris County, Texas, and is described 

in the Exhibit “2” attached to the Plaintiffs Fourth Amended 

Petition filed in the Litigation.
20

4. Each Party agrees to cause to be executed and delivered to the 

other Party additional documents as reasonably may be required 

to carry out the intentions of this Letter Agreement.

Please confirm the above terms by countersigning this Letter 

Agreement and faxing the letter back to me for filing with the Court

pursuant to Rule 11 of the Texas Rules of Civil Procedure.

This Rule 11 agreement is signed by both the City Attorney and Garcia’s 

attorney. It has a September 10, 2010 facsimile stamp across the top of the page. 

It also has a file stamp indicating it was filed with the trial court on September 10, 

2010. 

The record also contains a September 3, 2010 Rule 11 letter agreement 

between the City’s counsel and Grayson. It is the same typewritten Rule 11 

agreement quoted above with the following handwritten alterations: (1) Garcia’s 

counsel’s contact information is crossed out and replaced with Grayshaw’s name, 

(2) Garcia’s name is crossed out throughout the agreement and replaced with 

Grayshaw’s name, and (3) the date for Grayshaw to return the executed Agreed 

Interlocutory Judgment to the City’s counsel is changed from September 8, 2010 to 

September 15, 2010.1

 

1 Despite providing a later date for Grayshaw to return the Agreed Interlocutory 

Judgment, i.e., September 15, 2010, the September 9, 2010 date by which the City 

represented it would file the executed Agreed Interlocutory Judgment with the trial 

court was not correspondingly changed.
21

This Rule 11 agreement is signed by both the City Attorney and by 

Grayshaw. It has a file stamp indicating it was filed with the trial court on 

September 10, 2010. 

2. Agreed Interlocutory Judgments

There is an Agreed Interlocutory Judgment, signed by the trial court on 

September 15, 2010, stating, in its entirety:

ON THIS DAY came on for consideration the captioned cause, 

in which the City of Houston is the Plaintiff and Dalia Garcia, is one 

of the Defendants. The City seeks a judgment from this Court 

authorizing the demolition of all structures on the premises of the 

Candlelight Trails condominium complex (the “Premises”) located in 

the 5500 and 5600 blocks of De Soto Street in Houston, Harris 

County, Texas, and described more particularly in the Exhibit “2” 

attached to the Plaintiffs Fourth Amended Petition filed in this cause. 

The City and Dalia Garcia announced to the Court that all matters in 

controversy between them have been resolved, and those parties only 

have asked the Court to enter this Agreed Interlocutory Judgment. The 

Court, having considered the agreement of the parties as evidenced by 

the signatures of counsel below, is of the opinion that this Agreed

Interlocutory Judgment should be entered as requested.

Accordingly, it is

ORDERED that, insofar as the legal and any equitable interests 

of Dalia. Garcia, are concerned, the City may demolish and remove all 

structures and personality on the Premises, at such time and in such 

manner as the City deems reasonable. lt is further

ORDERED that the Interlocutory Default Judgment previously 

rendered in this case against Dalia Garcia is set aside. It is further

ORDERED that each party shall bear its own costs. It is further

ORDERED that all relief not granted herein is DENIED. It is 

further
22

ORDERED that this Agreed Interlocutory Judgment shall be 

finalized in accord with the Final Judgment to be entered in this cause.

This agreed judgment is signed by both the City Attorney and Garcia’s 

attorney under notation, “AGREED AND ENTRY REQUESTED.” 

The record also contains a substantively identical Agreed Interlocutory 

Judgment disposing of claims between the City and Grayshaw. It is signed by both 

the City Attorney and Grayshaw. It was signed by the trial court on September 16, 

2010. 

3. The Corrected Final Judgment 

The trial court’s final judgment, signed December 1, 2010, identified Garcia 

and Grayshaw (along with numerous other defendants) as “hav[ing] been in the 

process of settlement and dismissal during and following trial, and up to the time 

of this Judgment.” On December 30, 2010, the City filed a Motion to Modify 

Final Judgment requesting that (1) the judgment delete recovery against two 

defendants who settled post-judgment, and (2) the new judgment be entered 

granting monetary relief against three defendants—Garcia, Grayshaw, and a 

third—because they “had indicated their intention to settle at the time the City 

submitted the Final Judgment [but] have failed or refused to complete the 

settlement process.” In support, the City’s attorney filed an affidavit verifying that 

this quoted sentence is “true and correct” based on his personal knowledge. 
23

On January 21, 2011, the trial court granted the City’s motion and entered a 

Corrected Final Judgment. That judgment identified Garcia as one of the parties 

“against whom Interlocutory Default Judgment” was previously signed because 

she, “having been duly served, did not file an answer, did not make any pretrial 

appearance, did not appear at trial, and [has] wholly made default.” The corrected 

judgment awarded the City $3,894.00 from Garcia, representing her proportional 

share of demolition costs and attorneys’ fees. 

The corrected judgment identified Grayshaw as one of the parties “who filed 

answers or appearances but did not appear at trial,” and who had an interlocutory 

summary judgment previously granted against him. The corrected judgment 

awarded the City $5,129.00 from Grayshaw, representing his proportional share of 

demolition costs and attorneys’ fees. 

B. Analysis

The City contends that “the record does not support” Garcia and Grayshaw’s 

claim that they settled with the City. Rather, according to the City, “[a]lthough 

they were engaged in an exchange of purposed settlement documents with [the 

City], neither Garcia nor Grayshaw completed the process to form a binding 

contract.” It asserts that there is a lack of record evidence that Garcia and 

Grayshaw accepted the City’s offers to settle in strict compliance with their terms, 

such that no binding agreement was reached. 
24

1. Applicable Law

Pursuant to Rule 11 of the Texas Rules of Civil Procedure, no agreement 

between the parties or their attorneys shall be enforceable unless the agreement is 

either (1) in writing, signed by the parties, and filed with the papers as part of the 

record or (2) made orally in open court and entered as part of the record. “Rule 

11 aims to eradicate the misunderstandings and controversies commonly associated 

with verbal agreements among parties and counsel.” Scott-Richter v. Taffarello, 

186 S.W.3d 182, 189 (Tex. App.—Fort Worth 2006, pet. denied) (citing Padilla v. 

LaFrance, 907 S.W.2d 454, 460 (Tex. 1995)). “Agreements in writing and filed 

with the court allow the writings to speak for themselves so that the court can 

judge of their import, and proceed to act upon them with safety.” Id. 

“Where a settlement offer prescribes a specific deadline for acceptance, that 

deadline must be met in order to create a binding settlement agreement.” In re 

Robison, 335 S.W.3d 776, 783 (Tex. App.—Amarillo 2011, orig. proceeding). A 

trial court has a ministerial duty to enforce a valid Rule 11 agreement. ExxonMobil 

Corp. v. Valence Operating Co., 174 S.W.3d 303, 309 (Tex. App.—Houston [1st 

Dist.] 2005, pet. denied). 

An agreed judgment has the same effect as any court judgment. Gulf Ins. Co. 

v. Burns Motors, Inc., 22 S.W.3d 417, 422 (Tex. 2000) (citing Wagner v. 

Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893 (1956)). When a judgment is 
25

rendered by consent it has neither less nor greater force or effect than it would have 

had it been rendered after litigation, except to the extent that the consent excuses 

error and operates to end all controversy between the parties. Id. An agreed 

judgment should be construed in the same manner as a contract. Id. (citing Gracia 

v. RC Cola–7–Up Bottling Co., 667 S.W.2d 517, 519–20 (Tex.1984)). 

2. Garcia

The City contends that it can be inferred from the record that Garcia may or 

may not have timely accepted its offer of settlement. This is because the Rule 11 

agreement between the City and Garcia specified that (1) Garcia would deliver an 

executed Agreed Interlocutory Judgment to the City by September 8, 2010, and (2) 

the City’s lawyer would then execute the Agreed Interlocutory Judgment and file it 

with the court by September 9, 2010. The City asserts that “it does not appear” 

that the Agreed Interlocutory Judgment was delivered to the City in the “specified 

time frame,” i.e., by September 8, 2010, because:

The fax legend at the top shows the date of September 10, 2010, 

which is two days later than the required September 8 acceptance 

date. (It is unclear who was the sender and who was the recipient, so 

it is unknown if this was the delivery of the acceptance or some other 

fax transmission of the executed document.) The file stamp on the 

upper right hand corner shows that the Agreed Interlocutory Judgment 

was filed with the court on September 13, 2010, which is four days 

after the specified September 9 filing date required by the offer. (It 

cannot be said that [the City] waived its right to strict compliance by 

accepting and filing the untimely-executed Agreed Interlocutory 

Judgment, because there is no showing of who filed it with the court.). 
26

We disagree with the City that the record establishes that no binding 

settlement was reached between Garcia and the City. 

First, the City’s speculation that Garcia’s delivery of the executed Agreed 

Interlocutory Judgment “may” have been late under the terms of the Rule 11 

agreement based on a facsimile legend that the City admits may have been 

untimely acceptance or simply “some other fax transmission of the executed 

document” does nothing to disprove the timely delivery of the agreed judgment. 

Similarly, we reject the City’s argument that the untimely filed Agreed Judgment 

cannot show the City acquiesced in any late delivery because “there is no showing 

of who filed it with the court.” The City specified in the Rule 11 that Garcia was 

required to sign the Agreed Interlocutory Judgment first, and then the City’s 

attorney would sign it and file it with the court. In other words, the only evidence 

in the record reflects that it was the City, rather that Garcia, that had the obligation 

to timely file the Agreed Interlocutory Judgment. 

More fatal to the City’s argument, though, is that timely delivery of the 

Agreed Interlocutory Judgment was one of several obligations created by the Rule 

11 agreement, not a condition of the Rule 11 agreement’s acceptance or 

effectiveness. The Rule 11 agreement obligates the parties to do several things by 

certain dates, including the executing and filing the Agreement Judgment, 

executing a formal settlement agreement, and executing documents to transfer title 
27

to Garcia’s property from Garcia to the City. The Rule 11 agreement itself, 

though, does not contain a deadline for acceptance, and the City has not argued 

that the Rule 11 agreement was not timely accepted or filed. The City’s allegations 

about Garcia’s allegedly untimely delivery of the agreed judgment go to whether 

Garcia breached the Rule 11 agreement, not to whether the agreement was binding 

in the first instance. 

The Rule 11 agreement—executed and on file with the court—expressly 

releases all prior claims, excepting only claims related to performance under the 

Rule 11:

[T]his Letter Agreement constitutes a release by each Party of 

all claims and causes of action that each Party has asserted or could 

have asserted against the other Party in the Litigation, save and except 

only those obligations created by or resulting from this Letter 

Agreement, which obligations, in any event, continue until discharged 

or modified by a subsequent, mutual agreement of the Parties. 

Given the terms of the parties’ Rule 11 agreement releasing all the City’s 

claims against Garcia, the trial court erred by reviving these claims and entering 

judgment on them against Garcia in the corrected judgment based on the City’s 

later representation that Garcia had “failed or refused to complete the settlement 

process.” 

3. Grayshaw 

With regard to the Rule 11 agreement entered between the City and 

Grayshaw, the City argues that “Grayshaw did not reach a meeting of the minds 
28

with [the City] and did not form a binding contract.” This Rule 11 agreement is 

identical to the one that the City entered with Garcia, but each instance of Garcia’s 

typewritten name within the agreement is manually crossed out and replaced with 

Grayshaw’s handwritten name, and the date for Grayshaw to return the Agreed 

Interlocutory Judgment is likewise changed. The City asks us to (1) compare the 

signatures on Grayshaw letter with the Garcia letter, (2) conclude the signatures are 

identical (except for size), (3) take this as evidence that the City’s counsel signed 

the letter first before the handwritten changes and, finally, (4) hold that because the 

name “modifications were not acknowledged by the subsequent signature of [the 

City’s] counsel,” the Rule 11 agreement “does not reflect a meeting of the minds 

and is not a binding settlement agreement.” 

The Rule 11 agreement on file with the court is signed by both the attorney 

for the City and Grayson. The body of the Rule 11 agreement provides that, once 

Grayson signs it and returns it to the City attorney, the City attorney will file it. On 

the same day that this executed Rule 11 agreement containing the handwritten 

alternations changing the name from Garcia to Grayshaw was filed with the court, 

a wholly typewritten Agreed Interlocutory Judgment was filed with the court 

(containing Grayshaw’s name throughout) and the document does not contain any 

handwritten alterations. That agreed judgment, which states that it is pursuant to 
29

the parties’ settlement, is signed by the City Attorney under the notation 

“AGREED AND ENTRY REQUESTED.” 

Given that the Grayshaw Rule 11 agreement containing the handwritten 

changes was filed with the trial court with signatures by both parties, and that the 

City then executed and filed an agreed judgment pursuant to that agreement, the 

City’s argument that it did not have a meeting of the minds with Grayshaw as to 

the Rule 11 agreement (based solely upon speculation when the handwritten 

alterations to the name were made) is unpersuasive. 

The City also argues that the executed Agreed Interlocutory Judgment 

provided for in the Rule 11 agreement was filed with the court six days after the 

date provided in the Rule 11 agreement. Thus, it contends, the filing was not “in 

strict compliance” with the agreement, meaning that “there was no enforceable 

Rule 11 Agreement.” We have already rejected this argument as it relates to 

Garcia’s Rule 11 agreement because (1) timely filing of the agreed judgment under 

the Rule 11 agreement was not a condition of the agreement’s acceptance, and (2) 

timely filing of the agreed judgment was the City’s obligation. We reject the 

City’s argument that the late filing of the agreed judgment invalidated its 

settlement agreement with Grayshaw for the same reasons. 

We sustain Garcia and Grayson’s fourth issue. 
30

DEMOLITION COSTS AND ATTORNEYS’ FEES

In his third issue, Whallon argues that the trial court erred “in awarding [the 

City] attorneys[’] fees and expenses in the total amount of $494,751.00, as 

apportioned against defendants/appellants in the amounts set forth in the corrected 

final judgment.” In his fourth issue, he argues that the trial court erred “in 

awarding $455,000.00 in demolition costs, as apportioned against 

defendants/appellants in the amounts set forth in the corrected final judgment.”2

Whallon argues that the trial court’s attorneys’ fees award was improper for 

the following reasons:

(1) “the proceeding in District Court was totally unnecessary, 

inasmuch as the first proceeding (before the Building and Standards 

Commission) disposed of all matters and issues presented or which 

could have been presented to that tribunal”;

(2) “administrative expenses, including the value of legal work, 

could have been procured in the Commission’s Administrative 

proceeding”;

(3) “the only attorneys fees which were sought began after entry of 

the Commission’s final orders, and continued through entry of the 

Corrected Final Judgment”;

(4) there are no pleadings or statutory bases supporting an the 

award;

(5) “the attorneys fees were not segregated”;

 

2 Whallon’s brief combined these two issues into one argument section. That 

section, however, only contains arguments related to attorneys’ fees, not 

demolition costs. 
31

(6) “no credit was applied for amounts received in excess of the 

settling defendant’s fractional percentage interest on the total award”; 

and 

(7) “the amount and method of apportioning attorneys fees is 

factually flawed, and its use and implementation constitutes err by the 

trial court.”

We considered, and rejected, these first three contentions in addressing 

Whallon’s first issue, i.e., that res judicata barred the City’s civil lawsuit. We thus 

confine our analysis here to the remaining arguments not previously addressed.

A. Pleadings 

Whallon acknowledges that the City requested attorneys’ fees in the prayer 

of its petition, but notes that references to attorneys’ fees is “otherwise omitted 

from its live pleading at trial,” and that the City pleaded “no statutory basis for the 

award.” The City contends that its pleadings were sufficient. 

“To be entitled to an award of attorney’s fees, a party must file an 

affirmative pleading requesting them.” Menix v. Allstate Indem. Co., 83 S.W.3d 

877, 880 (Tex. App.—Eastland 2002, pet. denied). “[I]f a party pleads facts 

which, if true, entitle him to the relief sought, he need not specifically plead the 

applicable statute in order to recover [attorney’s fees] under it.” Gibson v. Cuellar, 

440 S.W.3d 150, 156 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (quoting 

Mitchell v. LaFlamme, 60 S.W.3d 123, 130 (Tex. App.—Houston [14th Dist.] 

2000, no pet.)). When the opposing party fails to specially except to a pleaded 
32

request for attorneys’ fees, the pleading requesting fees will be construed liberally 

in favor of the pleader. Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 

S.W.3d 877, 884 (Tex. App.—Dallas 2009, no pet.). 

In the body of its petition, the City cited Chapter 54 of the Local 

Government Code as the authority for its seeking “to enforce Chapter 10 of the 

City’s Code of Ordinances, . . . which was enacted pursuant to Chapters 54 and 

214 of the Local Government Code.” In the prayer, the City requested that the 

City have judgment:

a. Against all parties authorizing the City to demolish and remove the 

buildings and structures comprising the Complex;

b. Against the Owners for the costs, to be apportioned to each Owner, 

associated with demolishing and removing the buildings and 

structures that comprise the Complex together with interest thereon 

at the highest rate allowed at law or equity until paid;

c. Against the Owners for liens, in an amount to be apportioned to 

each Owner, against the property upon which the Complex is 

located in an amount equal to the costs associated with 

demolishing and removing the buildings and structures that 

comprise the Complex together with interest thereon at the highest 

rate allowed by law or in equity until paid;

d. Against the Owners for attorney’s fees as authorized by law; and 

e. All other relief in law and in equity to which the City of Houston is 

entitled. 

(emphasis added). Whallon did not specially except to the City’ pleadings. 

So long as Chapter 54 or Chapter 214 authorizes attorneys’ fees, we hold 

that the City’s pleadings supports an award of attorneys’ fees because its petition 
33

puts Whallon on notice about the relief sought, and contains facts which, if true, 

entitle him to the relief sought. Mitchell, 60 S.W.3d at 130.

B. Statutory Authority 

The trial court made a conclusion of law that the “City is entitled to recover 

attorneys’ fees from the Owners pursuant to Chapters 54 and 214 of the Texas 

Local Government Code, including Sections 54.039(h), 214.0012(h) and 

214.0015(h).” Whallon contends that none of these sections authorize an award of 

attorneys’ fees. 

“Under Texas law, a court may award attorney’s fees only when authorized 

by statute or by the parties’ contract.” Peterson Group, Inc. v. PLRQ Lotus Group, 

L.P., 417 S.W.3d 46, 59 (Tex. App.—Houston [1st Dist.] 2013, pet. filed); (citing 

MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009)). 

“Whether a party is entitled to seek an award of attorney’s fees is a question of law 

that we review de novo.” Id. (citing Holland v. Wal–Mart Stores, Inc., 1 S.W.3d 

91, 94 (Tex. 1999)).

1. Sections 54.039(h) and 214.0012(h)

We agree with Whallon that, by their plain language, sections 54.039(h) and 

214.0012(h) do not support the trial court’s attorneys’ fee award here. These 

sections provide for a municipality to recover its attorneys’ fees if—on an appeal 
34

to the district court from a decision by a commission panel or municipality—the 

district court wholly or substantially affirms the decision: 

If [on appeal to the district court], the decision of the commission 

panel is affirmed or not substantially reversed but only modified, the 

district court shall allow the municipality all attorney’s fees. . . .

TEX. LOCAL GOV’T CODE § 54.039(h).

If [on appeal to the district court], the decision of the municipality is 

affirmed or not substantially reversed but only modified, the district 

court shall allow the municipality all attorney’s fees. . . . 

TEX. LOCAL GOV’T CODE § 214.0012(h). 

The City’s suit here does not seek appellate review of an order by the 

commission panel or a municipality. The City does not appear to disagree with 

appellants, as it does not argue in its brief here that either of these sections cited by 

the district court support the trial court’s award of attorneys’ fees.

2. Section 214.0015(h)

The other section cited by the trial court, and the only one relied upon by 

City in its brief, is section 214.0015(h) of the Texas Local Government Code, 

which states:

In any judicial proceeding regarding enforcement of municipal rights 

under this section, the prevailing party is entitled to recover 

reasonable attorney’s fees from the nonprevailing party.

TEX. LOCAL GOV’T CODE § 214.0015(h). 

Whallon argues that “‘this section’ as that term is referred to in subsection 

(h) concerns only administrative decisions and the process for an owner(s) appeal 
35

of an unfavorable commission decision to the district court.” According to 

Whallon, because “no appeal was taken from the Commission’s decision, . . . 

Section 214.0015(h) does not apply.” 

We disagree with Whallon that the “judicial proceeding[s]” referred to in 

section 214.0015(h) is limited to appeals of unfavorable commission decisions to 

the district court. 

 Section 214.001 of the Local Government Code authorizes the City to, by 

ordinance, “require the . . . demolition of a building that is: (1) dilapidated, 

substandard, or unfit for human habitation and a hazard to the public health, safety 

and welfare.” The City exercised such right through the enactment of Houston 

City Ordinance 10-370, providing that,

If 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, the neighborhood protection official shall cause the 

building to be vacated, repaired, secured, and/or demolished pursuant 

to the order. 

The City’s district court petition states:

This is an action by the City against the owners and lien holders of 

units in the Complex to enforce Chapter 10 of the City’s Code of 

Ordinances (entitled “Comprehensive Urban Rehabilitation and 

Building Minimum Standards”) (“Chapter 10”), which was enacted 

pursuant to Chapters 54 and 214 of the Local Government Code.

. . . . 

The state of disrepair and the Owners’ failure to comply with City 

Ordinances, including, without limitation, certain provisions of 

Chapter 10 and the Orders compelling the Complex to be secured has

resulted in a situation dangerous to the community. Given the 
36

advanced state of disrepair and the danger to the community, repair is 

not feasible and the Complex should be demolished. 

Section 214.0015 provides, “This section applies only to a municipality that 

has adopted an ordinance under Section 214.001” of the Local Government Code. 

TEX. LOC. GOV’T CODE § 214.0015(a) (Vernon 2008). In addition to exercising the 

authority granted by section 214.001, section 214.0015 grants additional authority 

to a municipality to repair a building at the expense of the municipality and to 

assess the expenses on the land on which the building stands, or to assess a civil 

penalty against the property owner “for failure to repair, remove, or demolish the 

building and to provide for that assessment, the mode and manner of giving notice, 

and the means of recovering the assessment” to bring the building up to code 

standards; and to impose a lien upon the land. Id. § 214.0015(b)–(c). Subsection 

(h) provides that, “[i]n any judicial proceeding regarding enforcement of municipal 

rights under this section, the prevailing party is entitled to recover reasonable 

attorney’s fees from the non-prevailing party.” 

We agree with the district court that the underlying suit here is a “judicial 

proceeding regarding enforcement of [these] municipal rights” TEX. LOCAL GOV’T 

CODE § 214.0015(h). Accordingly, the City, “as the prevailing party[,] is entitled 

to recover reasonable attorney’s fees” under section 214.0015(h).
37

C. The Amount of Attorneys’ Fees Awarded

Finally, Whallon argues that the amount of attorneys’ fees awarded was 

improper. The City’s expert, Joel Mohrman, testified from the City’s outside 

counsel’s itemized invoices. These invoices totaled $607,504.77, which Mohrman 

testified were reasonable and necessary attorneys’ fees. The trial court found that 

the City had “incurred reasonable and necessary legal fees in the amount of 

$494,751.00.” In its conclusions of law, the trial court stated that the “amount of 

judgment for each Owner is determined by the fractional ownership interest of 

each unit owned by the Complex multiplied by the total fees incurred.” 

Whallon argues that the fees expended should have instead been segregated 

by each property owner and then a credit applied for amounts received from 

individual defendants in excess of the defendant’s fractional percentage. 

A similar argument was made in Main Place Custom Homes, Inc. v. 

Honaker, 192 S.W.3d 604 (Tex. App.—Fort Worth 2006, pet. denied). In that 

case, the plaintiffs originally sued ten defendants involved in the construction of a 

home. Honaker, 192 S.W.3d at 611. Eight of the defendants settled, and the 

plaintiffs proceeded to trial against the remaining two. Id. at 611–12. Following 

the trial court’s judgment awarding to the plaintiffs actual damages and 80% of the 

total attorneys’ fees, the defendants argued on appeal that the “trial court erred by 

awarding attorney’s fees because the Honakers failed to allocate the amount of 
38

attorney’s fees incurred with respect to each of the ten original defendants.” Id. at 

621.

The court of appeals began by announcing the general rule that: 

When a plaintiff seeks to recover attorney’s fees in cases where there 

are multiple defendants, and one or more of those defendants have 

made settlements, the plaintiff must segregate the fees owed by the 

remaining defendants from those owed by the settling defendants so 

that the remaining defendants are not charged fees for which they are 

not responsible.

Id. at 622 (quoting Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10–11 (Tex.

1991)); Hartmann v. Solbrig, 12 S.W.3d 587, 594 (Tex. App.—San Antonio 2000, 

pet. denied). The court noted that “[s]egregation is not required, however, if the 

claims arise out of the same transaction and are so interrelated that their 

prosecution or defense requires proof or denial of essentially the same facts.” Id.

(citing Sterling, 822 S.W.2d at 11; Hartmann, 12 S.W.3d at 594).

When asked if he could apportion the attorneys’ fees among the defendants, 

the attorney in Honaker testified that “there is a lot of duplication of work, whether 

it is one defendant or multiple defendants, I believe that at least 80 to 85 plus 

percent of the work would be the same whether or not it was just your clients or 

whether there were these other defendants as well.” Id. The court held that this 

uncontroverted testimony supported the trial court’s award of unsegregated 

attorneys’ fees. Id. 
39

There was similar testimony here. On cross-examination, Mr. Mohrman 

testified that he had not segregated fees per defendant because it was not feasible 

and the fees were too intertwined:

Q. Sir, of the 607,504.77 amount, have you in any way 

identified what charges were specifically about Andrew Whallon?

A. We have not divided them up by defendant . . . 

[W]e’re seeking liability individually based upon their 

percentage ownership in the condominium. Same with the attorney’s 

fees and all costs. 

Q. But you’re also asking him to pay, potentially, costs that 

– I mean a portion of costs that may not be representative of what 

costs were actually incurred in relation to him; is that correct?

A. I would disagree.

. . . .

Q. Well, I understand, but in collecting that potential 

liability, if you just did it on a percentage, it may suck up attorney’s 

fees that were incurred in service on somebody or default judgments 

on somebody and that kind of thing, isn’t that true?

A. No, because I think the work that we did was inextricably 

intertwined. I don’t think you can factor those things out and look at 

it on a defendant-by-defendant basis. There’s one set of facts and 

circumstances here, one cause of action alleged against everyone . . . . 

This uncontroverted evidence supports the trial court’s proportional 

attorneys’ fee award. 

Having rejected Whallon’s argument that the trial court’s attorneys’ fees 

award was erroneous, we overrule his third issue. 
40

Because Whallon presents no argument in support of his fourth issue that the 

award of demolition costs was erroneous, we also overrule his fourth issue. 

EXPERT WITNESSES

In his second issue, Whallon argues that “the trial court erred in refusing to 

strike [the City’s] untimely designated experts, their documents and their related 

findings.” During the course of trial, Whallon withdrew objections to all experts 

except Dokell (demolition costs) and Mohrman (attorneys’ fees), so we confine our 

discussion to these two experts. 

In a Level 2 discovery case, the discovery period ends on the earlier of “30 

days before the date set for trial,” or “nine months after the earlier of the date of 

the first oral deposition or the due date of the first response to written discovery.” 

TEX. R. CIV. P. 190.3(b)(1)(A),(B). The first discovery responses in this case were 

due on February 26, 2009, which started the clock on the nine-month period ending 

November 30, 2009. The City was required to designate testifying experts by 90 

days before that November 30, 2009 date, i.e., by September 1, 2009. TEX. R. CIV.

PROC. 195.2(a) (“Unless otherwise ordered by the court, a party must designate 

experts—that is, furnish information requested under Rule 194.2(f)[3]—by the later 

 

3

(1) the expert’s name, address, and telephone number;

(2) the subject matter on which the expert will testify;

(3) the general substance of the expert’s mental impressions and opinions and a 

brief summary of the basis for them, or if the expert is not retained by, employed 
41

of the following two dates: 30 days after the request [for disclosures] is served, 

or—(a) with regard to all experts testifying for a party seeking affirmative relief, 

90 days before the end of the discovery period.”). Supplemental discovery related 

to a testifying expert should be made “reasonably promptly after the party 

discovers the necessity for such a response.” TEX. R. CIV. PROC. 193.5(b); 195.6. 

There is a presumption that supplementation less than 30 days before trial is not 

made “reasonably promptly.” TEX. RULE CIV. P. 193.5(b). 

In its March 4, 2009 disclosures to Whallon, the City stated that experts had 

not been retained, and that disclosures would be amended if they were. On May 

15, 2009, the City filed Plaintiffs’ Designation of Expert Witnesses, which 

included the following designations related to demolition costs and attorneys’ fees:

- Mr. Dokell with Cherry Demolition to testify “as to the reasonable 

cost to demolish the Candlelight Trails Complex.” The 

designation noted that Dokell had not prepared a report; and

- two attorneys, including Mr. Mohrman, to “testify as to the 

reasonableness, necessity of and amount of attorneys fees” 

 

by, or otherwise subject to the control of the responding party, documents 

reflecting such information;

(4) if the expert is retained by, employed by, or otherwise subject to the control of 

the responding party:

(A) all documents, tangible things, reports, models, or data compilations 

that have been provided to, reviewed by, or prepared by or for the expert in 

anticipation of the expert’s testimony; and

(B) the expert’s current resume and bibliography

TEX. R. CIV. P. 194.2(f)
42

On August 6, 2010—35 days before trial—the City supplemented its 

discovery responses with Mr. Dokell’s curriculum vitae and with a $455,000.00 

estimate, dated October 12, 2009, for demolishing the complex prepared by Mr. 

Dokell. The City did not supplement with attorneys’ fees information at that time. 

According to the City, none of the defendants ever complained about the 

alleged inadequacy of these designations and none of the defendants sought to 

depose any of the experts. In August 2009, Whallon’s counsel withdrew from 

representation. On September 7, 2010—three days before trial—Whallon’s current 

counsel made an appearance and moved to strike the City’s experts, arguing that 

the City did not timely provide expert designations or supplementation.4 

At trial, Mr. Mohrman, the City’s outside counsel, testified that his firm 

communicated to all parties’ counsel that relevant documents were available for 

inspection at his office. Only two lawyers took them up on that offer, Mr. Maida 

(the attorney ad litem representing certain property owners who could not be 

located), and one lawyer representing another defendant who was negotiating a 

settlement. Mohrman testified that he could not remember whether specific 

attorneys’ fees billing records had been requested, but that all exhibits had been

 

4 Whallon’s counsel acknowledged in that filing that, given her recent appearance in 

the case, she “is unfamiliar with the history of discovery in this case” and that it 

appears from the file that “all parties were somewhat lax in forwarding copies of 

discovery requests and answers.” 
43

available for inspection, and that his office had provided access and copies of 

anything requested. 

The trial court denied Whallon’s request to strike Dokell’s and Mohrman’s 

testimony for failure to provide supplementation as to the substance of their 

opinions and supporting documents. We review a trial court’s decision to admit or 

exclude evidence for an abuse of discretion. Bay Area Healthcare Grp., Ltd. v. 

McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam). The trial court abuses 

its discretion when it acts in an unreasonable and arbitrary manner, or without 

reference to any guiding rules or principles. Downer v. Aquamarine Operators, 

Inc., 701 S.W.2d 238, 241–42 (Tex.1985). We will not conclude that a trial court 

abused its discretion in admitting evidence that was not provided in timely 

supplementation if the proponent of the evidence establishes either that there is 

good cause for the failure to timely supplement or that the delay will not unfairly 

surprise or unfairly prejudice the other parties. TEX. R. CIV. P. 193.6(a)–(b). 

With regard to Dokell’s testimony estimating demolition costs, the record

demonstrates that Dokell was timely disclosed as an expert who would testify as to 

demolition costs and that his demolition estimate (1) was available to Whallon’s 

prior counsel for inspection at the City’s outside counsel’s office, and (2) was 

faxed to Whallon’s prior counsel 35 days before trial. The trial court was within 

its discretion to refuse to exclude Dokell’s testimony. 
44

As for Mohrman’s attorneys’ fees testimony, the record demonstrates that 

Mohrman was timely disclosed as an expert who would testify as to attorney’s 

fees, and that Whallon’s prior counsel was informed that he could inspect the 

records there. Whallon’s counsel did not inspect the records at the City’s counsel’s 

office, nor did he request that the court compel their production. To the extent 

that the City was obligated to supplement discovery disclosures with billing 

records and estimates of attorneys’ fees incurred,5 we conclude that the trial court 

was within its discretion to refuse to exclude Mohrman’s testimony. 

We overrule Whallon’s second issue. 

CHALLENGES TO FINDINGS OF FACT AND CONCLUSIONS OF LAW

In Whallon’s fifth issue, he argues:

The Trial Court erred in entering any all of its Findings of Fact and 

Conclusions of Law because: (1) the Court lacked jurisdiction over 

the proceeding (See Issue One); (2) the Trial court committed errors 

of fact or law which it then applied or recited as a basis, in whole or 

part to these FOF/COL and ultimately to its Corrected Final 

Judgment; (3) after removing the wrongfully admitted evidence, there 

remained no legally sufficient evidence to support the specified 

FOF/COL; (4) if there remained insufficient evidence to support the 

particular Finding and Conclusions where noted. 

 

5 Goldman v. Olmstead, 414 S.W.3d 346, 365 (Tex. App.—Dallas 2013, pet. 

denied) (disclosure providing only names of attorney that would testify as to 

amount and reasonableness of attorneys’ fees was sufficient to comply with rules, 

absent motion to compel); see also Jespersen v. Sweetwater Ranch Apartments, 

390 S.W.3d 644, 660–61 (Tex. App.—Dallas 2012,no pet.) (“[T]he calculation of 

the amount of attorney’s fees incurred by appellees is not an economic damage 

that is required to be disclosed in response to a request for disclosure.). 
45

The City argues that Whallon’s fifth issue—which contains “at least 

seventeen subparts” and few cites to authority or the record—is inadequately 

briefed and multifarious. We will endeavor to address any fairly presented 

argument not previously addressed in our opinion. 

A. Standard of Review

Findings of fact entered in a case tried to a court are of the same force and 

dignity as a jury’s verdict on jury questions. Catalina v. Blasdel, 881 S.W.2d 295, 

297 (Tex. 1994); Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex. App.—Dallas 

1997) (en banc), pet. denied, 977 S.W.2d 562 (Tex. 1998) (per curiam). We apply 

the same standards in reviewing the legal and factual sufficiency of the evidence 

supporting the trial court’s fact findings as we do when reviewing the legal and 

factual sufficiency of the evidence supporting a jury’s answer to a jury question. 

Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam); Catalina, 881 

S.W.2d at 297. We indulge every reasonable presumption in favor of the findings 

and judgment of the trial court, and no presumption will be indulged against the 

validity of the judgment. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 

252 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

In reviewing the legal sufficiency of the evidence, we view the evidence in 

the light favorable to the fact finding, crediting favorable evidence if reasonable 

persons could, and disregarding contrary evidence unless reasonable persons could 
46

not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). To evaluate the 

factual sufficiency of the evidence to support a finding, we consider all the 

evidence and will set aside the finding only if the evidence supporting the finding 

is so weak or so against the overwhelming weight of the evidence that the finding 

is clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Unchallenged findings of fact are binding on the parties and the appellate 

court. Employers Cas. Co. v. Henager, 852 S.W.2d 655, 658 (Tex. App.—Dallas 

1993, writ denied); Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (“It 

is axiomatic that an appellate court cannot reverse a trial court’s judgment absent 

properly assigned error.”); Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) 

(holding that court of appeals generally cannot reverse for reason that is not 

assigned as error on appeal); see also TEX. R. APP. P. 38.1(e).

We review the trial court’s conclusions of law de novo. See BMC Software 

Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Incorrect 

conclusions of law will not require a reversal if the controlling findings of fact will 

support a correct legal theory. Sears, Roebuck and Co. v. Nichols, 819 S.W.2d 900, 

903 (Tex.App.—Houston [14th Dist.] 1991, writ denied).

B. Proof of Ownership 

Whallon challenges the trial court’s findings of fact and conclusions of law 

that set forth that the defendants are owners or lienholders of property at 
47

Candlelight Trails in the percentage stated in two exhibits: Exhibit 1 to the 

Plaintiffs’ petition and Plaintiffs’ Exhibit 65 introduced at trial. Whallon concedes 

in his brief that he is “one or the other,” but argues that the City did not introduce 

evidence specifically establishing that he was a property owner at Candlelight 

Trails rather than a lien holder. He acknowledges that the City’s Exhibit No. 65, 

i.e., a chart entitled “Fractional Ownership Per Unit (from Condo Declarations),” 

indicates that he is an owner, not a lienholder, and that this is some evidence of his 

ownership. But because the “creator of Ex. 65 was never identified” and because 

there was no “testimony explaining the source(s) of the chart’s numbers, or other 

information,” Whallon asks us to hold that the chart should have been excluded, or 

its admission limited to “for demonstrative purposes only.”6

Contrary to Whallon’s assertion that the record is silent as to the source of 

the information contained in Exhibit 65, Mr. Mohrman testified that the 

information in Exhibit No. 65 setting forth ownership information was pulled from 

the condominium declarations that were admitted into evidence without objection. 

In addition, the record reflects that, while the ad litem objected to admission of 

Exhibit No. 65, Whallon’s counsel did not object to its admission. Whallon failed 

to preserve any complaint about admission of this evidence on appeal. E.g., Austin 

 

6 Whallon contends that the City’s counsel conceded that his intent was to offer the 

chart as only a demonstrative exhibit. The record reflects, however, that the City’s 

counsel actually made that comment with regard to a different exhibit. 
48

v. Weems, 337 S.W.3d 415, 421 (Tex. App.—Houston [1st Dist.] 2011, no pet.) 

(objection waived by failure to timely lodge objection in the trial court, and by 

failing to object when the same or similar evidence is introduced). Exhibit 65, as 

well as the condominium declarations, is some evidence of Whallon’s status as an 

owner, rather than lienholder, of Candlelight Trails. See Benavides v. Cushman, 

Inc., 189 S.W.3d 875, 885 (Tex. App.—Houston [1st Dist.] 2006, no pet.) 

(evidence entered without a limiting instructed admitted for all purposes).

 C. Findings Related to Hearing Before the Commission

Whallon challenges several of the trial court’s findings of fact and 

conclusions of law related to the proceedings before the Building and Standards 

Commission. Specifically, he contends that the City did not give notice to all 

members of the complex about the commission hearing. He also asserts that the 

City’s efforts to secure the property before and after the commission proceedings 

were ineffective. These arguments present nothing for our review, as Whallon did 

not take an appeal to the district court from the commission proceedings, and 

Whallon does not connect his complaints here about notice and ineffectual efforts 

to secure the property to any requested relief here.
49

D. Findings Related to the City’s Demolition Costs 

Whallon next challenges the trial court’s finding that the cost to the City to 

demolish the complex will be $455,000.00. The City’s expert, Dokell, testified at 

trial that he estimated the cost to demolish to be $455,000.00. 

Whallon contends, however, that the trial court erred in sustaining objections 

to his attempt to introduce evidence about potential grants to cover a portion of the 

costs, which would have proven that the City would not incur the expense of 

demolition. This evidence Whallon attempted to introduce was in the form of 

printouts from the City’s website discussing potential grants for demolition of this 

property. These exhibits drew hearsay and authenticity objections, which were

sustained, and those rulings have not been specifically challenged here. Next, 

Whallon sought to subpoena a member of the Houston City Counsel to prove up 

the exhibits. The trial court denied that request. Whallon’s counsel then called 

one of the City’s attorneys as a witness, but that witness did not have personal 

knowledge about any potential grants or the ability to authenticate the website 

printouts. Whallon has not established that the trial court’s exclusion of this grant 

evidence was error. Bay Area Healthcare Grp., Ltd., 239 S.W.3d at 234

(evidentiary rulings reviewed for abuse of discretion). 

Whallon also argues that the $455,000.00 estimate of demolition costs was 

“not accurate” because, on cross examination, Dokell testified that he might be 
50

willing to give the City a discount of between 1% and 10% if his company were

awarded the work. Thus, Whallon contends, the City stood to make a profit on the 

demolition, which is improper. 

Whallon’s arguments do not establish that the trial court’s finding that the 

City’s demolition costs would be $455,000.00 was not supported by sufficient 

evidence. While Dokell testified that the City might obtain a slight discount, he 

also testified that that his budget did not take into account contingencies that could 

make the demolition costs higher, such as the potential need for asbestos 

abatement. The trial court was the finder of fact, and the trial court’s finding of 

$455,000.00 in demolition costs was within the range supported by the evidence. 

Hertz Equip. Rental Corp. v. Barousse, 365 S.W.3d 46, 56 (Tex. App.—Houston 

[1st Dist.] 2011, pet. denied) (“[T]he fact-finder has the discretion to award 

damages within the range of evidence presented at trial, so long as a rational basis 

exists for its calculation.”).

E. Findings Related to Attorneys’ Fees 

Finally, Whallon argues that there is no evidence to support the trial court’s 

finding that the City incurred reasonable and necessary attorneys’ fees of 

$494,751.00. At trial, Mohrman testified that the City incurred reasonable and 

necessary attorneys’ fees of $607,504.77. When moving for entry of judgment, 

however, the City requested that judgment be entered on only $494,751.00 in fees. 
51

Whallon argues that “it is impossible to determine if the newly disclosed amount of 

$494,751.00 in fees was reasonable or were necessarily incurred.” 

The uncontroverted testimony supporting reasonable and necessary fees of 

$607,504.77 is evidence supporting the trial court’s finding that $494,751.00 in 

fees is reasonable and necessary. 

We overrule Whallon’s fifth issue. 

CONCLUSION

We reverse the trial court’s judgment against Garcia and Grayshaw and 

render judgment that the City take nothing on its claims against Garcia and 

Grayshaw. We affirm the trial court’s judgment against Whallon. 

Appellant’s Renewed Request for Oral Argument or, Alternatively, for a 

Postponement of the Submission of Case on Appeal is denied. Appellants’ Motion 

to Return the Clerk’s Record and Order the Filing of a New Record in Proper 

Form, and for an Extension in Appellants’ Briefing Deadline is denied. 

Appellants’ Motion for Extension of Time to File Appellants’ Motion for En Banc 

Reconsideration of its Motion for Leave to File Amended Briefs and Appellant’s 

Supplement to Appellants’ Motion for Extension of Time to File Appellants’ 
52

Motion for En Banc Reconsideration of its Motion for Leave to File Amended 

Briefs are both dismissed as moot.7 

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

 

7

The en banc court ruled today on Appellants’ Motion for En Banc Reconsideration 

of its Motion for Leave to File Amended Briefs by separate order.