Case No. 01-11-00333-CV

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In the Court of Appeals for the 

First Supreme Judicial District 

at Houston, Texas

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Andrew Whallon, Dalia Garcia, and Richard Grayshaw, 

Appellants 

vs. 

City of Houston, 

Appellee

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On Appeal from the 270

th 

Judicial District Court 

of Harris County, Texas

Trial Court Cause Number 2008-51588 

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Appellant Andrew Whallon’s Motion for En Banc Reconsideration of this 

Court’s Opinion and Judgment of February 5, 2015

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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 

ACCEPTED

01-11-00333-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

11/3/2015 11:16:28 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 11/3/2015 11:16:28 PM CHRISTOPHER A. PRINE Clerk
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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

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 

) rather than on Appellant's res judicata argument, the 

Opinion would have read differently. 

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