Preview
CLERK’S RECORD
Appellate Court Case Number 14-21-00467-CV
Volume ___1__ of ____1______
Trial Court Cause No. 16-CV-0524-A
In the Court 405th District Court
of Galveston County, Texas
Honorable Jared Robinson Judge Presiding
_________________________________________________________________
Robert Kelton Rosenberger, Et Al vs. Harvey LeMaster
_________________________________________________________________
Appealed to the Court of Appeals for the Fourteenth District of Texas, at, Houston, Texas
Attorney for Appellants(s): David A. Mcdougald
Address: 4309 Yoakum Blvd Suite 3000
Houston TX 77006
Telephone Number: 713-522-1177 x325
Fax Number: 888-809-6793
E-Mail Address: david@thekimlawfirm.com
State Bar Of Texas Number: 13570525
Name Of Appellant/s: Robert Kelton Rosenberger
Name of clerk preparing the clerk’s record: John D. Kinard, District Clerk of Galveston County, Texas
By /s/ : Shailja Dixit
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Case Number 16-CV-0524-A - 405th District Court
Robert Kelton Rosenberger, Et Al vs. Harvey LeMaster
Date Filed and Document Name Page#
2021-09-10_Title Page 1
2021-09-10_Index 2
2021-09-10_Caption 4
2019-08-07_Original Petition - 19-CV-1418 5
2019-08-22_Original Answer 16
2019-12-02_Order for Consolidation 17
2020-09-21_Motion for Summary Judgment 18
2020-10-16_Notice of Hearing - Defendant's Motion for Summary Judgment 23
2020-12-07_Response - Response to Motion for Summary Judgment 25
2020-12-07_Correspondence from Attorney - Exhibits 3 and 4 (Audio Files on a flash drive) to 47
Response to Motion for Summary Judgment
2020-12-10_Objection - Defendant's Objections to Plaintiffs' Summary Judgment Evidence and 48
Reply to Response to Motion for Summary Judgment
2020-12-14_Order Granting Summary Judgment - Non-Final 53
2020-12-29_Motion - Defendant's Motion to Sever 54
2021-01-12_Notice of Hearing - Motion to Sever 57
2021-01-28_Response - Response to Motion to Sever 58
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Case Number 16-CV-0524-A - Index on Appeal Continued
2021-01-28_Motion - Motion to Reconsider Amended Partial Summary Judgment Motion 60
2021-01-29_Agreed Judgment - Non-Final 65
2021-02-03_Notice of Hearing 68
2021-02-25_Response - Defendant's Response to Motion to Reconsider No-Evidence Motion for 70
Summary Judgment
2021-05-20_Order Denying - Plaintiff's Motion to Reconsider 74
2021-05-20_Order Denying - Objections and Exceptions 75
2021-05-20_Order of Severance-Non Final 76
2021-06-21_Motion for New Trial - 16-CV-0524-A 77
2021-08-18_Notice of Appeal 124
2021-09-07_Request for Clerk's Record on Appeal 126
2021-09-08_Case Summary_16-CV-0524 131
2021-09-08_Case Summary_16-CV-0524-A 157
2021-09-08_Case Summary_19-CV-1418 159
2021-09-10_Cost Bill 162
2021-09-10_Clerk’s Certificate 165
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Appeal Caption
The State of Texas
County of Galveston
In 405th District Court at Galveston, Texas, within and for the County of Galveston, before the
Honorable Jared Robinson, Judge thereof Presiding, the following case came on for trial, to-wit:
CASE NUMBER 16-CV-0524-A
Robert Kelton Rosenberger, Et Al vs. Harvey LeMaster
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Filed: 8/7/2019 9:10 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 35754746
By: Lisa Kelly
19-CV-1418 8/7/2019 11:22 AM
CAUSE NO. __________________
ROBERT KELTON § IN THE DISTRICT COURT OF
ROSENBERGER and RONALD §
ROBERTS §
Plaintiffs, §
§
v. § GALVESTON COUNTY, TEXAS
§
WALDEN POND OWNERS §
ASSOCIATION, and HARVEY § Galveston County - 212th District Court
LEMASTER d/b/a §
INSURANCE OFFICE OF §
MONTGOMERY §
Defendant. § _____ JUDICIAL DISTRICT
PLAINTIFFS’ ORIGINAL PETITION AMD INITIAL DISCOVERY
Plaintiffs Robert Kelton Rosenberger (“Rosenberger”) and Ronald Roberts
(“Roberts”) allege that they are injured by the negligence and breach of governing
documents of Walden Pond Owners Association (“Walden Pond”), and materially
misled by Harvey LeMaster d/b/a Insurance Office of Montgomery, or both, as
follows:
I. Discovery-Control Plan
1. Rosenberger and Roberts intend to proceed under Level 2 of Texas
Rule of Civil Procedure 190.3.
II. Parties
2. Plaintiff Robert Kelton Rosenberger (“Rosenberger”) owns an undivided
Status Conference set 10-31-19
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fee-simple interest in Unit 403 in Building 400 (sometimes known as Building 4) of the
Walden Pond Condominiums, located at 111 Dunbar Estates in Friendswood,
Galveston County, Texas (“Unit 403”), and he has been a Member of Walden Pond
continuously since acquiring Unit 403.
3. Plaintiff Ronald Roberts (“Roberts”) owns an undivided fee-simple
interest in Unit 503 in Building 500 (sometimes known as Building 5) of the Walden
Pond Condominiums, located at 111 Dunbar Estates in Friendswood, Galveston
County, Texas (“Unit 503”), and he has been a Member of Walden Pond continuously
since acquiring Unit 503.
4. Defendant Walden Pond Owners Association (“Walden Pond”), a Texas
nonprofit corporation, may be served with process by serving its registered agent for
service of process, Associa Houston Community Management Services, at its
registered office, 17049 El Camino Real, Suite 100, Houston, Harris County, Texas
77058, or wherever it may be found.
5. Defendant Harvey LeMaster, doing business under the assumed name of
Insurance Office of Montgomery (“Le Master”), may be served with process by serving
him at his place of business, 19700 Highway 105 West, Montgomery, Texas 77356, his
home, 250 Spring Edge Dr., Montgomery, Texas 77356, or wherever he may be found.
III. Jurisdiction and Venue
6. Plaintiffs seek monetary relief over $1,000,000, which is within the
jurisdictional limits of this Court. Walden Pond is a Texas non-profit corporation with
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its principal place of business in Galveston County, Texas, where itis responsible for
managing the Walden Pond Condominiums in accordance with the duly adopted and
applicable Declarations, By-laws, and Rules and Regulations (collectively, the
“Governing Documents”). All (or a substantial part) of LeMaster’s conduct on which
these claims are based occurred in Galveston County, Texas.
IV. Factual Basis for Plaintiffs’ Requested Relief
7. At all material times, and in accordance with the Governing Documents,
Walden Pond owed Plaintiffs (and other owners) a duty to maintain, repair, and replace
Common Elements, including the exterior envelopes (roofing, siding, flashing, etc.) on
Buildings 400 and 500, and to insure against losses. Despite being aware of water leaks
in Unit 403 since at least 2012, Walden Pond neglected and failed to do so. When
Hurricane Harvey struck the Texas Gulf Coast in August of 2017, Rosenberger and
Roberts suffered water damage in their units – not due to the hurricane’s widespread
flooding (Units 403 and 503 did not flood), and not due to windstorm damage caused
by the Hurricane, but due to pre-existing leaks in the exterior envelopes for those units.
8. The envelopes on Buildings 400 and 500 are General Common Elements.
See, e.g., Declaration at 1.1.k.2. Walden Pond is responsible for maintaining, repairing
and insuring Common Elements, including the exterior envelopes of Buildings 400 and
500. Declaration at 1.1.d.2 and 4.6.a (duty to insure); compare Declaration 3.7 (omitting
roof from Owner Maintenance) and 3.8 (prohibiting Owner from work on Common
Elements). Rule 21 of the Association’s Rules and Regulations bars an owner from
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entering onto the roof of the Owner’s unit or conducting any roof repairs, and thus
prohibited Rosenberger and Roberts from making their own roof repairs.
9. The Governing Documents appoint Walden Pond as an Owner’s
fiduciary for dealing with damage to that Owner’s condominium unit (Bylaws XI.11).
Walden Pond’s breaches of its duties (fiduciary or otherwise) proximately caused injury
to Plaintiffs. Nearly two years after Hurricane Harvey, Walden Pond has not replaced
or even adequately repaired the exterior envelopes of Buildings 400 and 500. Walden
Pond has failed and refused to compensate Rosenberger or Roberts for the water
damage to their units during (and since) Hurricane Harvey.
10. Walden Pond claims that it did not have the funds to provide insurance,
replace the envelopes or compensate plaintiffs, but Walden Pond’s finances have not
been audited in years. It is far from clear why Walden Pond lacked both the insurance
coverage and the funds to meet its basic obligations, or what expenses could possibly
rate a higher priority than Walden Pond’s fiduciary duties to protect owners as
recognized in its own Governing documents, but it appears that Walden Pond
squandered a substantial portion of its funds paying its lawyers to bully Owners like
Rosenberger with meritless lawsuits that never had a realistic hope of justifying their
fees.
11. Contrary to Walden Pond’s denial that it obtained (or could obtain) the
required insurance coverage, by letter dated July 29, 2016, LeMaster affirmatively
represented to Rosenberger that his Building 400 was insured through a Commercial
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Property policy, a General Liability policy, and a Texas Windstorm Association wind
and hail policy. From that letter through and including the arrival of Hurricane Harvey,
LeMaster never advised Rosenberger of any change in this coverage. Rosenberger
reasonably relied on LeMaster’s assurance that Rosenberger’s building was insured.
Rosenberger has been unable to discern whether it was Walden Pond, LeMaster, or
both who misled him about insurance coverage.
12. Walden Pond has breached, and continues to breach, each of the
following duties owed to Plaintiffs:
a. the duty to keep the common elements and all common personal property
in good order, condition and repair, consistent with managing the Project in a
first-class manner and consistent with the best interests of the owners (Bylaws
IV.2.c and k);
b. the duty to insure and to keep insured the common elements and property
(Bylaws IV.2.d);
c. the duty to protect and defend the entire project from loss and damage
(Bylaws IV.2.g);
d. the duty to keep and maintain full and accurate books and records
showing all of the Association’s receipts, expenses and disbursements, and to
permit examination thereof by owners during normal business hours (Tex. Prop.
Code § 82.114(b); Bylaws IV.2.l and m);
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e. the duty to prepare and deliver annually to each Owner, and upon request,
to each holder of a first mortgage on a Condominium Unit, a statement showing
receipts, expenses and disbursement since the last such statement (Bylaws
IV.2.m);
f. the duty to have the Association’s books and records independently
audited each year by a certified public accountant (Tex. Prop. Code § 82.114(c);
Bylaws IV.2.l); and
g. the duty to act as a fiduciary for Rosenberger and Roberts with respect to
damage to their units.
These breaches have proximately caused injury to Rosenberger and Roberts.
13. If Walden Pond had insurance for Buildings 400 and 500 as Le Master
represented, but failed to promptly pursue coverage for damage to Buildings 400 and
500, then Walden Pond breached its fiduciary duties to Rosenberger and Roberts. If
Walden Pond did not have insurance as Walden Pond now claims, then Walden Pond
breached its duty to provide insurance and LeMaster materially misled Rosenberger.
V. Plaintiffs’ Causes of Action
A. Negligence and Gross Negligence
14. By reserving to itself the exclusive right to maintain, repair, and replace
Common Elements as needed, Walden Pond accepted a duty to do so reasonably and
promptly, and in a “first-class” manner. Walden Pond breached that duty, and plaintiffs
were injured as a result of Walden Pond’s negligence or gross negligence.
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B. Negligent Misrepresentation
15. By making conflicting representations about the nature, extent, and
existence of insurance coverage in the course of their business, one or both of Walden
Pond and LeMaster negligently misrepresented the status of insurance coverage for
Building 400 by supplying false information for the guidance of Rosenberger without
exercising reasonable care or competence, and Rosenberger justifiably relied on the
representation(s) to his injury.
C. Fraud
16. To the extent their false representations about insurance coverage were
intentional, or were made without the actual knowledge defendants claimed to have,
defendants defrauded Rosenberger.
D. Breach of Governing Documents
17. The Governing Documents impose on Walden Pond a duty to maintain,
repair, and replace Common Elements as needed, and to insure them. Walden Pond
breached these duties, injuring Rosenberger and Roberts as a result.
E. Breach of Fiduciary Duty
18. By agreeing to act as an agent for an Owner whose Unit suffered damage
(including, inter alia, Rosenberger and Roberts), Walden Pond agreed to accept the
responsibilities of a fiduciary, including the duties of loyalty, utmost good faith, candor,
full disclosure, fairness, a high degree of care, honesty and the strictest kind of integrity,
as well as the duty to refrain from self-dealing with Walden Pond’s agents (including its
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lawyers). Walden Pond has breached its fiduciary duties, and Rosenberger and Roberts
have been injured as a result.
F. Attorney Fees
19. Rosenberger and Roberts are entitled to recover their attorney fees from
Walden Pond as actual damages caused by Walden Pond’s breaches of duty, or as a
matter of law. Tex. Prop. Code § 5.006; Tex. Civ. Prac. and Rem. Code § 38.001 et seq.
E. Exemplary Damages
20. Walden Pond and Le Master breached their duties to Rosenberger and
Roberts with malice, fraud, or at least gross negligence. Plaintiffs are entitled to recover
exemplary damages. See Tex. Civ. Prac. and Rem. Code §§41.003(a) and 41.004(a).
When exemplary damages are awarded for breach of restrictive covenants, a successful
plaintiff may recover up to $200 per day for each violation. KBG Investments, LLC v.
Greenspoint Property Owners Assn, Inc., 478 S.W.3d 111, 122-23 (Tex. App. – Houston [14th
Dist.] 2015, no pet.) (construing Tex. Prop. Code §202.004(c)).
F. Joint and Several Liability
21. Walden Pond and LeMaster conspired or otherwise acted in concert to
mislead Rosenberger into relying on insurance coverage which apparently did not exist.
Walden Pond and LeMaster are jointly and severally liable for Rosenberger’s damages.
VI. Jury Demand
22. Rosenberger and Roberts demand a trial by jury and pay the jury fee
concurrently with the filing of this petition.
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VII. Discovery Requests
23. Pursuant to Rule 194, each defendant is requested to disclose, within 50
days after service of citation, the information or material described in Rule 194.2.
Pursuant to Rule 196 and the Texas Property Code provisions authorizing
condominium unit owners to inspect a condominium association’s books and records,
each defendant is also requested to produce, within 50 days after service of citation, all
documents after January 1, 2009 constituting, containing, modifying, transmitting,
summarizing, referring to, or otherwise relating to, any one or more of the following:
a. insurance policies naming Walden Pond as an insured;
b. communications about insurance policies (actual, proposed, or
merely hypothetical) naming Walden Pond as an insured;
c. invoices or payments for insurance premiums allegedly due from
Walden Pond;
d. communications about insurance coverage for Walden Pond
Buildings 400, 500, or both;
e. communications about insurance coverage for any claims asserted
against Walden Pond in lawsuits or demand letters;
f. invoices or payments for attorney fees due from Walden Pond;
g. audited financial records, together with all cover letters, footnotes,
audit reports, and other material associated with those financial records, and any
communications from accountants regarding audits, whether actual or hypothetical;
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h. financial reports from Walden Pond to any one or more owners of
Walden Pond Unit(s);
i. funds received by Walden Pond as a result of foreclosure auctions,
lawsuits, attorney demand letters, dispute settlements, or other action by Walden Pond’s
attorneys;
j. funds received by Walden Pond from WP Acquisitions, LLC, or
funds paid by Walden Pond to WP Acquisitions, LLC;
k. Walden Pond agreements for attorney services, and
communications terminating any one or more such agreements; and
l. work orders, vendor contracts, change orders, invoices, receipts,
cancelled checks (front and back), and other records of Walden Pond expenditures or
services received by Walden Pond. This category includes, but is not limited to,
correspondence and other accounting records documenting services received by
Walden Pond from Owners and consideration received by Owners in exchange for
those services.
WHEREFORE, Rosenberger and Roberts respectfully request that they be
awarded actual damages, attorney fees, exemplary damages, court costs, and pre-and
post-judgment interest, as well as all further relief to which they may be entitled.
Respectfully submitted,
By: /s/ David A. McDougald________
David A. McDougald
Texas Bar No. 13570525
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14
4309 Yoakum Blvd., Suite 3000
Houston, Texas 77006
(713) 522-1177 – telephone
(888) 809-6793 – telecopier
david@davidmcdougaldlaw.com
ATTORNEY FOR PLAINTIFFS
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15
'/
ROBERT KDELTON ROSENBURG, and RONALD ROBERTS
Planttiffs, August 20,2019
v.
WALDON POND OWNERS ASSOCIATION, and HARVEY LEMASTER d/b/a
INSURANCE OFFICE OF MONTGOMERY
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I Harvey LeMaster file not guilty in the proceedings brought against Harvey Let-t1j;ster , . , -.. D
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My agency has informed the board that unit 400 was not up specs on the repairs and the
TWIA sent out inspection form stating that the unit was not up to specs to insure as of July
18,2016,
The unit 4 was only brought up to compliance with TWIA on 12/12/2017 and was insured
shortly after the compliance letter was received from TWIA that is was insurable risk.
The unit 5 was never in question that it was insurable risk because unit 5 was under
construction at the time and I am not aware when it was finished and became insurable
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Risk.
ffar:e~eMaster
16
Received: 10/14/20195:08 PM
Envelope No. 37639840
l
CAUSE NO. 16-CV-OS24 190EC-2 PH 2:32
ALBERTJ.HERNANDEZ § IN THE "'~~J;:,~
Plaintiff, §
§ OlSTR!CT ClEi\K
v. § GALVEStl)~~(jif~~~:;i~s
§
WALDEN POND OWNERS §
ASSOCIA TION §
Defendant. § 40STH JUDICIAL DISTRICT
ORDER GRANTING MOTION TO CONSOLIDATE
After considering the Motion to Consolidate and other matters of record, the Court hereby
GRANTS the Motion to Consolidate, ordering Cause No.19-CV -1418, Robert Kelton Rosenberger
and Ronald Roberts v. Walden Pond Owners Association, and Harvey LeMaster d/bla Insurance
Office of Montgomery currently pending in the 212th Judicial District of Galveston, County, Texas
be consolidated with Cause No. 16-CV-0524, Albert J Hernandez v. Walden Pond Owners
Association, currently pending in the 405th Judicial District of Galveston County, Texas with the
consolidated case moving forward under Cause N.o. 16-CV -0524 and orders the clerk to note on the
docket sheets in both cases that the cases are HEREBY consolidated under Cause No. 16-CV -0524.
SIGNED this the~ day of k&ftl~, 2019.
APPROVED:
DAUGHTRY & FARINE, P.C.
BY: lsi Weston Prescott Ray
WESTON PRESCOTT RA Y
State Bar No. 24098307
17044 EI Camino Real
Houston, Texas 77058
Farine.filing@daughtryfarine.com
(281) 480-6888 16-CV-0524
DCORCON
(281) 218-9151 Order for Consolidation
1945879
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CAUSE NO. 16-CV-OS24
ALBERTJ.HERNANDEZ § IN THE DISTRICT COURT OF
Plaintiff, §
§
§
VS. § GALVESTON COUNTY, TEXAS
§
WALDEN POND OWNERS ASSOCIATION, §
and HARVEY LEMASTER d/b/a §
INSURANCE OFFICE OF MONTGOMERY §
Defendants. § 40STH JUDICIAL DISTRICT
DEFENDANT HARVEY LEMASTER D/B/A INSURANCE OFFICE OF
MONTGOMERY'S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
COMES NOW, Defendant Harvey LeMaster d/b/a Insurance Office of Montgomery
("LeMaster"), Defendant in the above entitled and numbered cause and files this No-Evidence
Motion for Summary Judgment and in suppOli thereof would respectfhlly represent and show unto
this Court the following:
I.
FACTUAL BACKGROUND
The present case arises out of a claim for insurance coverage based on property damage
allegedly sustained by the owners of two residential units in the Walden Pond Condominiums in
2017. Plaintiffs contend, without factual or evidentiary support, that LeMaster misrepresented the
scope and applicability of insurance coverage for the residential units prior to Hurricane Harvey.
As a result of these alleged misrepresentations, Plaintiffs have asserted claims against LeMaster
for negligent misrepresentation, fraud, exemplary damages, and joint and several liability.
However, Plaintiffs have offered no evidence that LeMaster misrepresented the scope and
applicability of insurance coverage for the Walden Pond Condominiums or even that LeMaster
owed any legal duty to Plaintiffs relating to the procurement of insurance for the Walden Pond
Owners Association rather than individual units. Because Plaintiffs have failed to offer evidence
DEFENDANT'S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT 1
18
in support of multiple essential elements of their claims against LeMaster, LeMaster is entitled to
summary judgment as a matter of law.
II.
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
A. An adequate time for discovery has passed
A no-evidence motion for summary judgment may be filed after the nonrnovant has had an
adequate time for discovery. TEX. R. Cry. P. 166a(i); Morehouse v. Chase Manhattan Bank, 76
S.W.3d 608, 612 (Tex. App. - San Antonio 2002, no pet.). It is not necessary that discovery be
completed. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App. - Houston [14th
Dist.] 2000, pet denied). Whether a nonrnovant has had an adequate time for discovery when a
no-evidence motion for summary judgment is filed before the end of the discovery period is case
specific. Restaurant Teams Int'l, Inc. v. MG Sec. Corp., 95 S.W.3d 336,339 (Tex. App.-Dallas
2002, no pet.). Among the factors a court may examine in determining whether a non-movant has
had an adequate time for discovery are the nature of the claim and the evidence necessary to
controvert the motion. Id.
Plaintiffs filed their original petition against LeMaster on August 7, 2019. Since that time,
the parties have exchanged written discovery requests. To date, Plaintiffs have not requested the
deposition of any representative or employee of Insurance Office of Montgomery.
B. Negligent Misrepresentation
Plaintiffs' claims against LeMaster for negligent misrepresentation require proof of the
following elements: 1) a representation made by a defendant in the course of his business or a
transaction in which he has a pecuniary interest; 2) the defendant supplies false information for
the guidance of others in their business; 3) the defendant did not exercise reasonable care or
competence in obtaining or communicating the information; and 4) the plaintiff suffered a
DEFENDANT'S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT 2
19
pecuniary loss by justifiably relying on the representation. Henry Schein v. Stromboe, 102 S.W.3d
675,686 (Tex. 2002).
In the present case, Plaintiffs have offered no evidence that LeMaster owed a legal duty to
Plaintiffs, no evidence that LeMaster made a representation in the course of his business or a
transaction in which LeMaster has a pecuniary interest or that any such representation by LeMaster
was false and use for the guidance of others in their business. Plaintiffs have also offered no
evidence that LeMaster failed to exercise reasonable care or competence in obtaining or
communicating any such information or that Plaintiffs suffered a pecuniary loss by justifiably
relying on the representation.
C. Fraud
Preview
CLERK’S RECORD Appellate Court Case Number 14-21-00467-CV Volume ___1__ of ____1______ Trial Court Cause No. 16-CV-0524-A In the Court 405th District Court of Galveston County, Texas Honorable Jared Robinson Judge Presiding _________________________________________________________________ Robert Kelton Rosenberger, Et Al vs. Harvey LeMaster _________________________________________________________________ Appealed to the Court of Appeals for the Fourteenth District of Texas, at, Houston, Texas Attorney for Appellants(s): David A. Mcdougald Address: 4309 Yoakum Blvd Suite 3000 Houston TX 77006 Telephone Number: 713-522-1177 x325 Fax Number: 888-809-6793 E-Mail Address: david@thekimlawfirm.com State Bar Of Texas Number: 13570525 Name Of Appellant/s: Robert Kelton Rosenberger Name of clerk preparing the clerk’s record: John D. Kinard, District Clerk of Galveston County, Texas By /s/ : Shailja Dixit 1 Case Number 16-CV-0524-A - 405th District Court Robert Kelton Rosenberger, Et Al vs. Harvey LeMaster Date Filed and Document Name Page# 2021-09-10_Title Page 1 2021-09-10_Index 2 2021-09-10_Caption 4 2019-08-07_Original Petition - 19-CV-1418 5 2019-08-22_Original Answer 16 2019-12-02_Order for Consolidation 17 2020-09-21_Motion for Summary Judgment 18 2020-10-16_Notice of Hearing - Defendant's Motion for Summary Judgment 23 2020-12-07_Response - Response to Motion for Summary Judgment 25 2020-12-07_Correspondence from Attorney - Exhibits 3 and 4 (Audio Files on a flash drive) to 47 Response to Motion for Summary Judgment 2020-12-10_Objection - Defendant's Objections to Plaintiffs' Summary Judgment Evidence and 48 Reply to Response to Motion for Summary Judgment 2020-12-14_Order Granting Summary Judgment - Non-Final 53 2020-12-29_Motion - Defendant's Motion to Sever 54 2021-01-12_Notice of Hearing - Motion to Sever 57 2021-01-28_Response - Response to Motion to Sever 58 2 Case Number 16-CV-0524-A - Index on Appeal Continued 2021-01-28_Motion - Motion to Reconsider Amended Partial Summary Judgment Motion 60 2021-01-29_Agreed Judgment - Non-Final 65 2021-02-03_Notice of Hearing 68 2021-02-25_Response - Defendant's Response to Motion to Reconsider No-Evidence Motion for 70 Summary Judgment 2021-05-20_Order Denying - Plaintiff's Motion to Reconsider 74 2021-05-20_Order Denying - Objections and Exceptions 75 2021-05-20_Order of Severance-Non Final 76 2021-06-21_Motion for New Trial - 16-CV-0524-A 77 2021-08-18_Notice of Appeal 124 2021-09-07_Request for Clerk's Record on Appeal 126 2021-09-08_Case Summary_16-CV-0524 131 2021-09-08_Case Summary_16-CV-0524-A 157 2021-09-08_Case Summary_19-CV-1418 159 2021-09-10_Cost Bill 162 2021-09-10_Clerk’s Certificate 165 3 Appeal Caption The State of Texas County of Galveston In 405th District Court at Galveston, Texas, within and for the County of Galveston, before the Honorable Jared Robinson, Judge thereof Presiding, the following case came on for trial, to-wit: CASE NUMBER 16-CV-0524-A Robert Kelton Rosenberger, Et Al vs. Harvey LeMaster 4 Filed: 8/7/2019 9:10 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 35754746 By: Lisa Kelly 19-CV-1418 8/7/2019 11:22 AM CAUSE NO. __________________ ROBERT KELTON § IN THE DISTRICT COURT OF ROSENBERGER and RONALD § ROBERTS § Plaintiffs, § § v. § GALVESTON COUNTY, TEXAS § WALDEN POND OWNERS § ASSOCIATION, and HARVEY § Galveston County - 212th District Court LEMASTER d/b/a § INSURANCE OFFICE OF § MONTGOMERY § Defendant. § _____ JUDICIAL DISTRICT PLAINTIFFS’ ORIGINAL PETITION AMD INITIAL DISCOVERY Plaintiffs Robert Kelton Rosenberger (“Rosenberger”) and Ronald Roberts (“Roberts”) allege that they are injured by the negligence and breach of governing documents of Walden Pond Owners Association (“Walden Pond”), and materially misled by Harvey LeMaster d/b/a Insurance Office of Montgomery, or both, as follows: I. Discovery-Control Plan 1. Rosenberger and Roberts intend to proceed under Level 2 of Texas Rule of Civil Procedure 190.3. II. Parties 2. Plaintiff Robert Kelton Rosenberger (“Rosenberger”) owns an undivided Status Conference set 10-31-19 5 fee-simple interest in Unit 403 in Building 400 (sometimes known as Building 4) of the Walden Pond Condominiums, located at 111 Dunbar Estates in Friendswood, Galveston County, Texas (“Unit 403”), and he has been a Member of Walden Pond continuously since acquiring Unit 403. 3. Plaintiff Ronald Roberts (“Roberts”) owns an undivided fee-simple interest in Unit 503 in Building 500 (sometimes known as Building 5) of the Walden Pond Condominiums, located at 111 Dunbar Estates in Friendswood, Galveston County, Texas (“Unit 503”), and he has been a Member of Walden Pond continuously since acquiring Unit 503. 4. Defendant Walden Pond Owners Association (“Walden Pond”), a Texas nonprofit corporation, may be served with process by serving its registered agent for service of process, Associa Houston Community Management Services, at its registered office, 17049 El Camino Real, Suite 100, Houston, Harris County, Texas 77058, or wherever it may be found. 5. Defendant Harvey LeMaster, doing business under the assumed name of Insurance Office of Montgomery (“Le Master”), may be served with process by serving him at his place of business, 19700 Highway 105 West, Montgomery, Texas 77356, his home, 250 Spring Edge Dr., Montgomery, Texas 77356, or wherever he may be found. III. Jurisdiction and Venue 6. Plaintiffs seek monetary relief over $1,000,000, which is within the jurisdictional limits of this Court. Walden Pond is a Texas non-profit corporation with 2 6 its principal place of business in Galveston County, Texas, where itis responsible for managing the Walden Pond Condominiums in accordance with the duly adopted and applicable Declarations, By-laws, and Rules and Regulations (collectively, the “Governing Documents”). All (or a substantial part) of LeMaster’s conduct on which these claims are based occurred in Galveston County, Texas. IV. Factual Basis for Plaintiffs’ Requested Relief 7. At all material times, and in accordance with the Governing Documents, Walden Pond owed Plaintiffs (and other owners) a duty to maintain, repair, and replace Common Elements, including the exterior envelopes (roofing, siding, flashing, etc.) on Buildings 400 and 500, and to insure against losses. Despite being aware of water leaks in Unit 403 since at least 2012, Walden Pond neglected and failed to do so. When Hurricane Harvey struck the Texas Gulf Coast in August of 2017, Rosenberger and Roberts suffered water damage in their units – not due to the hurricane’s widespread flooding (Units 403 and 503 did not flood), and not due to windstorm damage caused by the Hurricane, but due to pre-existing leaks in the exterior envelopes for those units. 8. The envelopes on Buildings 400 and 500 are General Common Elements. See, e.g., Declaration at 1.1.k.2. Walden Pond is responsible for maintaining, repairing and insuring Common Elements, including the exterior envelopes of Buildings 400 and 500. Declaration at 1.1.d.2 and 4.6.a (duty to insure); compare Declaration 3.7 (omitting roof from Owner Maintenance) and 3.8 (prohibiting Owner from work on Common Elements). Rule 21 of the Association’s Rules and Regulations bars an owner from 3 7 entering onto the roof of the Owner’s unit or conducting any roof repairs, and thus prohibited Rosenberger and Roberts from making their own roof repairs. 9. The Governing Documents appoint Walden Pond as an Owner’s fiduciary for dealing with damage to that Owner’s condominium unit (Bylaws XI.11). Walden Pond’s breaches of its duties (fiduciary or otherwise) proximately caused injury to Plaintiffs. Nearly two years after Hurricane Harvey, Walden Pond has not replaced or even adequately repaired the exterior envelopes of Buildings 400 and 500. Walden Pond has failed and refused to compensate Rosenberger or Roberts for the water damage to their units during (and since) Hurricane Harvey. 10. Walden Pond claims that it did not have the funds to provide insurance, replace the envelopes or compensate plaintiffs, but Walden Pond’s finances have not been audited in years. It is far from clear why Walden Pond lacked both the insurance coverage and the funds to meet its basic obligations, or what expenses could possibly rate a higher priority than Walden Pond’s fiduciary duties to protect owners as recognized in its own Governing documents, but it appears that Walden Pond squandered a substantial portion of its funds paying its lawyers to bully Owners like Rosenberger with meritless lawsuits that never had a realistic hope of justifying their fees. 11. Contrary to Walden Pond’s denial that it obtained (or could obtain) the required insurance coverage, by letter dated July 29, 2016, LeMaster affirmatively represented to Rosenberger that his Building 400 was insured through a Commercial 4 8 Property policy, a General Liability policy, and a Texas Windstorm Association wind and hail policy. From that letter through and including the arrival of Hurricane Harvey, LeMaster never advised Rosenberger of any change in this coverage. Rosenberger reasonably relied on LeMaster’s assurance that Rosenberger’s building was insured. Rosenberger has been unable to discern whether it was Walden Pond, LeMaster, or both who misled him about insurance coverage. 12. Walden Pond has breached, and continues to breach, each of the following duties owed to Plaintiffs: a. the duty to keep the common elements and all common personal property in good order, condition and repair, consistent with managing the Project in a first-class manner and consistent with the best interests of the owners (Bylaws IV.2.c and k); b. the duty to insure and to keep insured the common elements and property (Bylaws IV.2.d); c. the duty to protect and defend the entire project from loss and damage (Bylaws IV.2.g); d. the duty to keep and maintain full and accurate books and records showing all of the Association’s receipts, expenses and disbursements, and to permit examination thereof by owners during normal business hours (Tex. Prop. Code § 82.114(b); Bylaws IV.2.l and m); 5 9 e. the duty to prepare and deliver annually to each Owner, and upon request, to each holder of a first mortgage on a Condominium Unit, a statement showing receipts, expenses and disbursement since the last such statement (Bylaws IV.2.m); f. the duty to have the Association’s books and records independently audited each year by a certified public accountant (Tex. Prop. Code § 82.114(c); Bylaws IV.2.l); and g. the duty to act as a fiduciary for Rosenberger and Roberts with respect to damage to their units. These breaches have proximately caused injury to Rosenberger and Roberts. 13. If Walden Pond had insurance for Buildings 400 and 500 as Le Master represented, but failed to promptly pursue coverage for damage to Buildings 400 and 500, then Walden Pond breached its fiduciary duties to Rosenberger and Roberts. If Walden Pond did not have insurance as Walden Pond now claims, then Walden Pond breached its duty to provide insurance and LeMaster materially misled Rosenberger. V. Plaintiffs’ Causes of Action A. Negligence and Gross Negligence 14. By reserving to itself the exclusive right to maintain, repair, and replace Common Elements as needed, Walden Pond accepted a duty to do so reasonably and promptly, and in a “first-class” manner. Walden Pond breached that duty, and plaintiffs were injured as a result of Walden Pond’s negligence or gross negligence. 6 10 B. Negligent Misrepresentation 15. By making conflicting representations about the nature, extent, and existence of insurance coverage in the course of their business, one or both of Walden Pond and LeMaster negligently misrepresented the status of insurance coverage for Building 400 by supplying false information for the guidance of Rosenberger without exercising reasonable care or competence, and Rosenberger justifiably relied on the representation(s) to his injury. C. Fraud 16. To the extent their false representations about insurance coverage were intentional, or were made without the actual knowledge defendants claimed to have, defendants defrauded Rosenberger. D. Breach of Governing Documents 17. The Governing Documents impose on Walden Pond a duty to maintain, repair, and replace Common Elements as needed, and to insure them. Walden Pond breached these duties, injuring Rosenberger and Roberts as a result. E. Breach of Fiduciary Duty 18. By agreeing to act as an agent for an Owner whose Unit suffered damage (including, inter alia, Rosenberger and Roberts), Walden Pond agreed to accept the responsibilities of a fiduciary, including the duties of loyalty, utmost good faith, candor, full disclosure, fairness, a high degree of care, honesty and the strictest kind of integrity, as well as the duty to refrain from self-dealing with Walden Pond’s agents (including its 7 11 lawyers). Walden Pond has breached its fiduciary duties, and Rosenberger and Roberts have been injured as a result. F. Attorney Fees 19. Rosenberger and Roberts are entitled to recover their attorney fees from Walden Pond as actual damages caused by Walden Pond’s breaches of duty, or as a matter of law. Tex. Prop. Code § 5.006; Tex. Civ. Prac. and Rem. Code § 38.001 et seq. E. Exemplary Damages 20. Walden Pond and Le Master breached their duties to Rosenberger and Roberts with malice, fraud, or at least gross negligence. Plaintiffs are entitled to recover exemplary damages. See Tex. Civ. Prac. and Rem. Code §§41.003(a) and 41.004(a). When exemplary damages are awarded for breach of restrictive covenants, a successful plaintiff may recover up to $200 per day for each violation. KBG Investments, LLC v. Greenspoint Property Owners Assn, Inc., 478 S.W.3d 111, 122-23 (Tex. App. – Houston [14th Dist.] 2015, no pet.) (construing Tex. Prop. Code §202.004(c)). F. Joint and Several Liability 21. Walden Pond and LeMaster conspired or otherwise acted in concert to mislead Rosenberger into relying on insurance coverage which apparently did not exist. Walden Pond and LeMaster are jointly and severally liable for Rosenberger’s damages. VI. Jury Demand 22. Rosenberger and Roberts demand a trial by jury and pay the jury fee concurrently with the filing of this petition. 8 12 VII. Discovery Requests 23. Pursuant to Rule 194, each defendant is requested to disclose, within 50 days after service of citation, the information or material described in Rule 194.2. Pursuant to Rule 196 and the Texas Property Code provisions authorizing condominium unit owners to inspect a condominium association’s books and records, each defendant is also requested to produce, within 50 days after service of citation, all documents after January 1, 2009 constituting, containing, modifying, transmitting, summarizing, referring to, or otherwise relating to, any one or more of the following: a. insurance policies naming Walden Pond as an insured; b. communications about insurance policies (actual, proposed, or merely hypothetical) naming Walden Pond as an insured; c. invoices or payments for insurance premiums allegedly due from Walden Pond; d. communications about insurance coverage for Walden Pond Buildings 400, 500, or both; e. communications about insurance coverage for any claims asserted against Walden Pond in lawsuits or demand letters; f. invoices or payments for attorney fees due from Walden Pond; g. audited financial records, together with all cover letters, footnotes, audit reports, and other material associated with those financial records, and any communications from accountants regarding audits, whether actual or hypothetical; 9 13 h. financial reports from Walden Pond to any one or more owners of Walden Pond Unit(s); i. funds received by Walden Pond as a result of foreclosure auctions, lawsuits, attorney demand letters, dispute settlements, or other action by Walden Pond’s attorneys; j. funds received by Walden Pond from WP Acquisitions, LLC, or funds paid by Walden Pond to WP Acquisitions, LLC; k. Walden Pond agreements for attorney services, and communications terminating any one or more such agreements; and l. work orders, vendor contracts, change orders, invoices, receipts, cancelled checks (front and back), and other records of Walden Pond expenditures or services received by Walden Pond. This category includes, but is not limited to, correspondence and other accounting records documenting services received by Walden Pond from Owners and consideration received by Owners in exchange for those services. WHEREFORE, Rosenberger and Roberts respectfully request that they be awarded actual damages, attorney fees, exemplary damages, court costs, and pre-and post-judgment interest, as well as all further relief to which they may be entitled. Respectfully submitted, By: /s/ David A. McDougald________ David A. McDougald Texas Bar No. 13570525 10 14 4309 Yoakum Blvd., Suite 3000 Houston, Texas 77006 (713) 522-1177 – telephone (888) 809-6793 – telecopier david@davidmcdougaldlaw.com ATTORNEY FOR PLAINTIFFS 11 15 '/ ROBERT KDELTON ROSENBURG, and RONALD ROBERTS Planttiffs, August 20,2019 v. WALDON POND OWNERS ASSOCIATION, and HARVEY LEMASTER d/b/a INSURANCE OFFICE OF MONTGOMERY .. ..; .,., c Defendant. ~: -" .. , . N N -- "T1 r"'~ -. ~ :z rf! I Harvey LeMaster file not guilty in the proceedings brought against Harvey Let-t1j;ster , . , -.. D Dba Insurance Office Of Montgomery. ~~ ,.., Q My agency has informed the board that unit 400 was not up specs on the repairs and the TWIA sent out inspection form stating that the unit was not up to specs to insure as of July 18,2016, The unit 4 was only brought up to compliance with TWIA on 12/12/2017 and was insured shortly after the compliance letter was received from TWIA that is was insurable risk. The unit 5 was never in question that it was insurable risk because unit 5 was under construction at the time and I am not aware when it was finished and became insurable f~';iju/~ Risk. ffar:e~eMaster 16 Received: 10/14/20195:08 PM Envelope No. 37639840 l CAUSE NO. 16-CV-OS24 190EC-2 PH 2:32 ALBERTJ.HERNANDEZ § IN THE "'~~J;:,~ Plaintiff, § § OlSTR!CT ClEi\K v. § GALVEStl)~~(jif~~~:;i~s § WALDEN POND OWNERS § ASSOCIA TION § Defendant. § 40STH JUDICIAL DISTRICT ORDER GRANTING MOTION TO CONSOLIDATE After considering the Motion to Consolidate and other matters of record, the Court hereby GRANTS the Motion to Consolidate, ordering Cause No.19-CV -1418, Robert Kelton Rosenberger and Ronald Roberts v. Walden Pond Owners Association, and Harvey LeMaster d/bla Insurance Office of Montgomery currently pending in the 212th Judicial District of Galveston, County, Texas be consolidated with Cause No. 16-CV-0524, Albert J Hernandez v. Walden Pond Owners Association, currently pending in the 405th Judicial District of Galveston County, Texas with the consolidated case moving forward under Cause N.o. 16-CV -0524 and orders the clerk to note on the docket sheets in both cases that the cases are HEREBY consolidated under Cause No. 16-CV -0524. SIGNED this the~ day of k&ftl~, 2019. APPROVED: DAUGHTRY & FARINE, P.C. BY: lsi Weston Prescott Ray WESTON PRESCOTT RA Y State Bar No. 24098307 17044 EI Camino Real Houston, Texas 77058 Farine.filing@daughtryfarine.com (281) 480-6888 16-CV-0524 DCORCON (281) 218-9151 Order for Consolidation 1945879 III 1111111111111111111111111111111111111 1 17 012345ÿ789 89 9 ÿ75 ÿ ÿÿÿÿ ÿ!"# $ %&'()*+,-ÿ/,0-+12ÿ3)4&* 56789:;8ÿ=:>ÿ?@?ABCDE FGHÿJKLMNOLÿPMQMR STUVTUWUWÿSYZ[ÿ\] CAUSE NO. 16-CV-OS24 ALBERTJ.HERNANDEZ § IN THE DISTRICT COURT OF Plaintiff, § § § VS. § GALVESTON COUNTY, TEXAS § WALDEN POND OWNERS ASSOCIATION, § and HARVEY LEMASTER d/b/a § INSURANCE OFFICE OF MONTGOMERY § Defendants. § 40STH JUDICIAL DISTRICT DEFENDANT HARVEY LEMASTER D/B/A INSURANCE OFFICE OF MONTGOMERY'S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT COMES NOW, Defendant Harvey LeMaster d/b/a Insurance Office of Montgomery ("LeMaster"), Defendant in the above entitled and numbered cause and files this No-Evidence Motion for Summary Judgment and in suppOli thereof would respectfhlly represent and show unto this Court the following: I. FACTUAL BACKGROUND The present case arises out of a claim for insurance coverage based on property damage allegedly sustained by the owners of two residential units in the Walden Pond Condominiums in 2017. Plaintiffs contend, without factual or evidentiary support, that LeMaster misrepresented the scope and applicability of insurance coverage for the residential units prior to Hurricane Harvey. As a result of these alleged misrepresentations, Plaintiffs have asserted claims against LeMaster for negligent misrepresentation, fraud, exemplary damages, and joint and several liability. However, Plaintiffs have offered no evidence that LeMaster misrepresented the scope and applicability of insurance coverage for the Walden Pond Condominiums or even that LeMaster owed any legal duty to Plaintiffs relating to the procurement of insurance for the Walden Pond Owners Association rather than individual units. Because Plaintiffs have failed to offer evidence DEFENDANT'S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT 1 18 in support of multiple essential elements of their claims against LeMaster, LeMaster is entitled to summary judgment as a matter of law. II. NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT A. An adequate time for discovery has passed A no-evidence motion for summary judgment may be filed after the nonrnovant has had an adequate time for discovery. TEX. R. Cry. P. 166a(i); Morehouse v. Chase Manhattan Bank, 76 S.W.3d 608, 612 (Tex. App. - San Antonio 2002, no pet.). It is not necessary that discovery be completed. Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App. - Houston [14th Dist.] 2000, pet denied). Whether a nonrnovant has had an adequate time for discovery when a no-evidence motion for summary judgment is filed before the end of the discovery period is case specific. Restaurant Teams Int'l, Inc. v. MG Sec. Corp., 95 S.W.3d 336,339 (Tex. App.-Dallas 2002, no pet.). Among the factors a court may examine in determining whether a non-movant has had an adequate time for discovery are the nature of the claim and the evidence necessary to controvert the motion. Id. Plaintiffs filed their original petition against LeMaster on August 7, 2019. Since that time, the parties have exchanged written discovery requests. To date, Plaintiffs have not requested the deposition of any representative or employee of Insurance Office of Montgomery. B. Negligent Misrepresentation Plaintiffs' claims against LeMaster for negligent misrepresentation require proof of the following elements: 1) a representation made by a defendant in the course of his business or a transaction in which he has a pecuniary interest; 2) the defendant supplies false information for the guidance of others in their business; 3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and 4) the plaintiff suffered a DEFENDANT'S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT 2 19 pecuniary loss by justifiably relying on the representation. Henry Schein v. Stromboe, 102 S.W.3d 675,686 (Tex. 2002). In the present case, Plaintiffs have offered no evidence that LeMaster owed a legal duty to Plaintiffs, no evidence that LeMaster made a representation in the course of his business or a transaction in which LeMaster has a pecuniary interest or that any such representation by LeMaster was false and use for the guidance of others in their business. Plaintiffs have also offered no evidence that LeMaster failed to exercise reasonable care or competence in obtaining or communicating any such information or that Plaintiffs suffered a pecuniary loss by justifiably relying on the representation. C. Fraud