Preview
10/17/2023 12:06 AM
JOHN D. KINARD
District Clerk
Galveston County, Texas
Affirmed in Part, Reversed and Remanded in Part, and Majority Opinion and
Concurring and Dissenting Opinion filed October 17, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00467-CV
ROBERT KELTON ROSENBERGER, Appellant
V.
HARVEY LEMASTER D/B/A INSURANCE OFFICE OF MONTGOMERY,
Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 16-CV-0524-A
NO. 14-21-00511-CV
ROBERT KELTON ROSENBERGER, Appellant
V.
WALDEN POND OWNERS ASSOCIATION, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 16-CV-0524
MAJORITY OPINION
Robert Rosenberger owns unit 403 in the Walden Pond Condominiums.
These consolidated appeals concern a lawsuit by the Walden Pond Owners
Association against Rosenberger for unpaid monthly assessments on his
condominium and a lawsuit by Rosenberger against the Association’s insurance
agent, Harvey LeMaster, regarding the lack of insurance coverage for damage to
unit 403 occurring during Hurricane Harvey. The trial court entered judgments
against Rosenberger in both cases: a final judgment favoring the Association after
a jury trial in the former action and a no-evidence summary judgment favoring
LeMaster in the latter action. We affirm in part and reverse and remand in part the
judgment favoring the Association, and we affirm the judgment favoring
LeMaster.
Background
The Association’s lawsuit. Rosenberger purchased unit 403 in 2011. The
Association alleged that he stopped paying his mandated monthly maintenance
assessment shortly after the purchase. Under the Association’s governing
documents, the assessments are collected to pay for “Common Expenses,”
including insurance; management costs; repair, replacement, and maintenance of
common elements including landscaping; taxes; accounting fees; construction of
other facilities; swimming pool upkeep; roofs and exterior surfaces of all buildings
and carports; garbage pickup; pest control; outdoor lighting; and security.
According to Rosenberger, the Association had been in financial straits for
2
some time and was neglecting maintenance and repairs on some but not all of the
condominium buildings to such an extent that the City of Friendswood was
threatening residents in those buildings with fines and potential demolition of their
units. Because of this, Rosenberger said, many unit owners in unrenovated
buildings were refusing to pay their assessments.
Rosenberger asserted that his own unit suffered water penetration damage in
2012 due to the Association’s failure to maintain the roof above the unit.
Rosenberger insisted that the Association’s manager at the time told him to make
repairs himself and then credit the cost of those repairs against his monthly
assessments as that was the customary practice.
Rosenberger was elected to the Association’s board of directors in 2012 and
became its president. Susan Kinder was elected to the board at the same time and
became treasurer, and Geraldine Martisek was also elected but resigned shortly
thereafter, leaving the board with just two members, Rosenberger and Kinder. As
president, Rosenberger proposed and created agreements that he entitled Owners
Option to Renovate, or “OOTRs.” Under these agreements between the
Association and several individual owners, the owners were purportedly authorized
to make repairs to the exterior of their unit buildings at their own expense in
exchange for a reduction in the future assessments that the owner would be
required to pay to the Association. Rosenberger asserted that Kinder approved of
the concept in a telephone call, and Rosenberger signed his own OOTR both as
owner of unit 403 and as president of the Association. According to Rosenberger,
the Association initially accepted the benefits of the OOTRs, but subsequent
leadership moved to void the OOTRs, ignore the renovations that were performed,
and compel full payment of the assessments. Kinder, on the other hand, has
asserted that she never authorized the OOTRs, told Rosenberger he did not have
3
authority to sign contracts on behalf of the Association, and told him he needed to
pay his assessments.
The lawsuit between Rosenberger and the Association began in 2016 when
another condominium owner sued the Association to prevent foreclosure for
nonpayment of assessments and the Association counter-claimed against that
owner and named Rosenberger as a third-party defendant. The other owner
subsequently settled with the Association. In its action against Rosenberger, the
Association asserted that its governing documents constituted a contract between
the Association and the owners of condominium units and that Rosenberger
breached his obligations under the governing documents by failing to pay his
assessments, among other things. The Association further asserted Rosenberger’s
obligations were secured by a lien on unit 403. The Association sought damages,
foreclosure, and a permanent injunction.
Rosenberger answered in the lawsuit and filed a counterclaim. In his answer,
Rosenberger included the affirmative defense of offset based on his making repairs
to his building for which the Association had been responsible. Rosenberger
asserted that he provided over $30,000 in services and materials to the Association
in this manner. In his counterclaim, Rosenberger alleged that the Association
breached fiduciary duties it owed to him regarding property damage he allegedly
incurred in May 2012 due to a leaky roof, and he requested a declaratory judgment
confirming the validity of his OOTR agreement.
The Association filed a motion for partial summary judgment challenging
Rosenberger’s claim seeking a declaration on the validity of his OOTR. The
motion raised two grounds: (1) res judicata based on a prior lawsuit brought by
four condominium owners who had not signed OOTRs against the Association and
twelve of the owners who had signed OOTRs and in which Rosenberger
4
intervened, and (2) the OOTR was invalid because it required an amendment to the
Association’s governing documents and no such amendment occurred. The trial
court granted the Association’s motion, stating in its order that Rosenberger’s
“request to declare the [OOTR] valid and enforceable is barred due to a prior
judgment declaring such agreements invalid, unlawful, and void.”
The trial court also granted the Association’s pretrial motion in limine
regarding any evidence concerning Rosenberger’s alleged 2012 water leak
damage. The Association asserted the claim was barred by the applicable statute of
limitations, and Rosenberger argued the claim was still valid as an offset to the
Association’s claim for past due assessments. The trial court subsequently ruled on
the merits that the claim was barred by limitations.
At the conclusion of trial, a nonunanimous jury found that (1) Rosenberger
failed to comply with the governing documents by failing to pay his monthly
assessments from July 2012 through May 2021; (2) his failure to pay was not
excused; (3) the Association’s damages resulting from Rosenberger’s failure to pay
assessments, interest, and late charges totaled $102,203.79; (4) the Association
incurred attorney’s fees in prosecuting its case of $61,291.15 and would incur
additional specified amounts in the event of an appeal; and (5) the Association was
not failing to comply with the governing documents. Because of these answers, the
jury was not required to answer other questions in the charge. The trial court had
rejected jury submissions from Rosenberger regarding his alleged 2012 water
damage claim. In its final judgment, the trial court awarded the Association the
amounts found by the jury for damages and attorney’s fees. The trial court also
ordered foreclosure of the Association’s lien on Rosenberger’s condominium.
The lawsuit against LeMaster. Rosenberger further has asserted that in
July 2016, when he was unable to obtain reliable information regarding insurance
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coverage from the Association, he contacted LeMaster, who was then the
Association’s insurance agent. Rosenberger maintains that the Association’s
governing documents require it to insure the condominium buildings. According to
Rosenberger, LeMaster assured him both in person and in a letter that (1) LeMaster
was indeed the Association’s insurance agent; (2) all units were at that time
insured, either under a builder’s risk policy or a general liability policy through
Scottsdale Insurance Company and wind and hail coverage through Texas
Windstorm Association; (3) the building containing Rosenberger’s condominium
specifically was insured through Scottsdale and Texas Windstorm; and (4) that
building was the most insurable of all the buildings despite some minor repairs
having been requested.
Rosenberger asserts that in reliance on LeMaster’s representations, he
neither pressured the Association to provide coverage for the building nor sought
to obtain separate insurance coverage for his condominium. In August 2017,
Hurricane Harvey struck the Houston area, and Rosenberger contends that it
caused damage to his condominium. Rosenberger submitted claims to LeMaster
for the damage, but LeMaster reportedly informed Rosenberger in a September
2017 telephone call that unit 403 did not have insurance coverage for the loss. A
subsequent letter from LeMaster confirmed the lack of coverage on Rosenberger’s
building. Rosenberger further asserts that after July 30, 2016 and before September
2, 2017, LeMaster never informed him that the prior representations about
coverage were either false when made, misleadingly incomplete, or changed by
circumstances so that they were no longer true. Rosenberger contends that he was
injured by the lack of reimbursement from insurance.
Rosenberger filed suit against the Association and LeMaster in which he
contended that the water damage to his unit was not the result of flooding or of
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windstorm damage but was caused by “pre-existing leaks in the exterior
envelope[]” of the unit.1 He alleged that the Association had failed to comply with
its obligation to properly maintain the exterior of his unit and raised several related
causes of action against it. Against LeMaster, Rosenberger stated claims for fraud
and negligent misrepresentation.
LeMaster filed a no-evidence motion for summary judgment, asserting, as
will be discussed in more detail below, that Rosenberger could not produce any
evidence in support of several elements of his claims. Rosenberger responded by
filing his own declaration, two excerpts from recorded telephone calls between
himself and LeMaster, and two letters from LeMaster. At the hearing on the
motion, the trial court asked whether Rosenberger was asserting he sustained wind-
driven rain damage or just flood related damage; in response to which,
Rosenberger’s counsel explained that he sustained water penetration damage from
the hurricane—as water came in through the roof and from around the windows—
and not flood damage.
After the trial court granted LeMaster’s motion for summary judgment,
Rosenberger filed a motion to reconsider, to which he attached a supplemental
declaration in which he explicitly stated that the water damage was not caused by
flooding but was caused by water that came in through a roof that had a substantial
number of missing tiles. The trial court denied the motion to reconsider, severed
the claims against LeMaster from the remaining claims against the Association,
and this appeal followed.
Discussion
1
Rosenberger was initially joined as a plaintiff in the lawsuit by another Walden Pond
condominium owner who died during the pendency of the case. The other owner’s estate did not
pursue the lawsuit.
7
As discussed above, Rosenberger appeals both from the final judgment in
the Association’s lawsuit against him and from the final summary judgment
entered in his case against LeMaster. We will address the contentions in each
appeal in turn, beginning with the Association’s lawsuit.
I. Appeal in the Association’s Lawsuit
Rosenberger raises thirteen issues in his appeal of the Association’s lawsuit
against him, alleging (1) the trial court erred in granting summary judgment against
Rosenberger’s declaratory judgment action concerning the validity of his OOTR;
(2) the trial court erred in failing to submit Rosenberger’s breach of fiduciary duty
claim to the jury related to May 2012 water penetration damage; (3) the trial court
erred in failing to submit Rosenberger’s proposed breach of fiduciary duty jury
questions; (4) Rosenberger timely paid his monthly assessments in advance and the
jury’s contrary finding is wrong as a matter of law; (5) the trial court erred in
rejecting Rosenberger’s payment defense; (6) the evidence is legally and factually
insufficient to support the jury’s finding that Rosenberger failed to pay his
assessments; (7) the trial court erred in overruling Rosenberger’s objections to
charge Question 1, regarding whether Rosenberger failed to comply with the
governing documents by failing to pay his monthly assessments; (8) the evidence
is legally and factually insufficient to establish the amount of allegedly unpaid
assessments, interest, and late charges; (9) the trial court erred in overruling
Rosenberger’s objections to charge Question 3, concerning the amount of
damages; (10) Rosenberger was excused from paying the monthly assessments as a
matter of law; (11) the jury’s failure to find Rosenberger’s performance was
excused is against the great weight and preponderance of the evidence; (12) the
trial court erred in refusing Rosenberger’s proposed charge instruction for estoppel
by contract; and (13) the trial court erred in awarding attorney’s fees to the
8
Association in the absence of a valid claim.
We will begin our analysis by considering Rosenberger’s first issue
challenging the grant of summary judgment favoring the Association on the
validity of the OOTRs before turning to his second issue concerning the breach of
fiduciary duty claim and the statute of limitations. Because we sustain those first
two issues, we will need to discuss the remainder of the issues in the first of the
consolidated appeals only briefly.
A. Summary Judgment on the OOTRs
As indicated above, the trial court granted partial summary judgment
favoring the Association against Rosenberger’s declaratory judgment action
regarding the validity of his OOTR, thus preventing Rosenberger from asserting at
trial that the OOTR allowed him to, in essence, prepay or offset the monthly
assessments by making and paying for repairs to his condominium building that
were the responsibility of the Association. In its motion, the Association asserted
as grounds both that Rosenberger’s declaratory judgment action was barred by
application of the doctrine of res judicata and that the OOTRs were void because
they were in conflict with the Association’s governing documents. Although the
trial court expressly based its grant of summary judgment on the res judicata
ground, we will consider both grounds in this appeal. See Cincinnati Life Ins. Co.
v. Cates, 927 S.W.2d 623, 627 (Tex. 1996) (“[A]ppellate courts should consider all
summary judgment grounds the trial court rules on and the movant preserves for
appellate review that are necessary for final disposition of the appeal [and] may
consider other grounds that the movant preserved for review and trial court did not
rule on in the interest of judicial economy.”); see also Juda v. MarineMax, Inc.,
No. 01-18-00138-CV, 2018 WL 6693586, at *4 n.3 (Tex. App.—Beaumont Dec.
20, 2018, no pet.) (mem. op.); Hensley v. Vill. of Tiki Island, No. 14-03-00423-CV,
9
2004 WL 2162637, at *8 n.10 (Tex. App.—Houston [14th Dist.] Sept. 28, 2004,
pet. denied) (mem. op.).
In reviewing a summary judgment, we take as true all evidence favorable to
the nonmovant and indulge every reasonable inference and resolve any doubts in
the nonmovant’s favor. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157
(Tex. 2004). A party moving for traditional summary judgment under Texas Rule
of Civil Procedure 166a(c) bears the burden of proving that no genuine issue of
material fact exists and it is entitled to judgment as a matter of law. Id.2 The
evidence raises a genuine issue of fact if reasonable and fair-minded jurors could
differ in their conclusions in light of all of the summary judgment evidence.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
Summary judgment for a defendant is proper only when the defendant negates at
least one element of a plaintiff’s theory of recovery or pleads and conclusively
establishes each element of an affirmative defense. Hilburn v. Storage Tr. Props.,
LP, 586 S.W.3d 501, 506 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
1. Res Judicata
The doctrine of res judicata, or claim preclusion, bars claims that have
already been fully adjudicated or that, with the use of diligence, could have been
brought in the prior suit. Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212,
225 (Tex. 2022). It requires proof of (1) a prior final judgment on the merits by a
court of competent jurisdiction; (2) identity of parties or those in privity with them;
2
Although the Association did not specify in its motion whether it sought judgment
under either the traditional or no-evidence standards for summary judgment, the motion appears
to seek traditional summary judgment. See Tex. R. Civ. P. 166a(c), (i). Regardless, we construe a
summary judgment motion that does not clearly and unambiguously state that it is being brought
as a no-evidence motion as a traditional motion. See, e.g., Circle X Land & Cattle Co. v.
Mumford I.S.D., 325 S.W.3d 859, 862 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).
10
and (3) a second action based on the same claims as were raised, or could have
been raised, in the first action. Id.
The evidence. In support of its res judicata argument, the Association
attached a petition, a plea in intervention, an agreed order, a grant of summary
judgment, and a final judgment all from a prior lawsuit, along with a notice of
condominium board election results. The lawsuit in question was filed in 2013 by
four owners of Walden Pond condominiums who did not sign OOTRs against the
Association and twelve condominium owners who did sign OOTRs. In their
petition, the plaintiffs alleged that the defendant owners had failed to pay their
required assessments and the Association had failed to take required measures to
collect the assessments. The plaintiffs sought a declaratory judgment that they
were authorized to bring the action under Property Code section 82.161 3 and that
the OOTRs are illegal and void because they “are contrary to the governing
documents of the association.” The plaintiffs additionally sought a permanent
injunction requiring the payment and collection of the assessments.
Rosenberger—who was Association president at the time the 2013 lawsuit
was filed but was not originally a party to the lawsuit—filed a plea in intervention
in the case, asserting that he had a justiciable interest in the proceedings as a
member of the Association and an owner in the condominium complex. As his
only allegation, Rosenberger stated that “Plaintiff’s [sic] have maliciously
interfered and overtly thwarted the efforts of the Board and owners to conduct the
order of business to direct the Owners Association,” and as his only request for
relief, Rosenberger requested that “Plaintiff’s [sic] take nothing by this suit.”
3
Among other things, this section creates a claim for relief for any person adversely
affected by the violation of a condominium association’s bylaws or declarations. Tex. Prop.
Code § 82.161(a).
11
The election results state that on November 12, 2014, the Association held
its annual meeting at which three directors were elected: Steve White, Catherine
Dunning, and Isaac Reyes. Two of those new directors were also plaintiffs in the
2013 lawsuit: White and Dunning. In other words, the plaintiffs effectively won
control over the Association board during the pendency of the lawsuit.
The agreed order attached to the Association’s motion is dated July 20, 2015
and states that it resulted from a joint motion filed by the four plaintiffs and the
Association. In the agreed order, it declares that the plaintiffs were authorized to
bring the action and that
[a]ny agreement purported to have been made by Defendant
Association by which Defendant Association agreed or would agree to
accept payment of less than the full monthly assessment owing on a
condominium unit and that the owner thereof could use the remainder
. . . to repair the exterior of the subject condominium unit was and is
invalid because [] neither the members of the Defendant Association
nor the Board . . . authorized any such agreements and, further, any
such agreements are contrary to the governing documents of
Defendant Association and, therefore, are unlawful and void.
The agreed order further states that the plaintiffs had nonsuited the remainder of
their claims against the Association and the Association was to take nothing on any
claims it had made in the lawsuit. The order is signed “Agreed and Approved in
All Respects” by both a lawyer for the plaintiffs and a lawyer for the Association.
The order granting summary judgment appears to be dated July 24, 2015,
although the precise date is difficult to read. The order states that the four plaintiffs
moved for summary judgment against the intervenor (Rosenberger), the plaintiffs
“disprove[d] at least one element of Intervenor’s claims against Plaintiffs” and
“Intervenor has not provided competent evidence to support at least one element of
his claims against Plaintiffs.” The order then states that Rosenberger take nothing
12
on his claims. The order does not provide any specifics regarding what claims
Rosenberger raised or what was proven or not proven. The associated motion for
summary judgment is not in the record.
In the final judgment dated August 14, 2015, the court states that “all claims
and causes of action asserted in this action that have not heretofore been severed
have been adjudicated in full or voluntarily dismissed.” The judgment then lists
three prior orders of the court as setting forth the court’s disposition in the case,
apparently including the two orders discussed above as well as an additional order
not included in the summary judgment record in the present case. The judgment
further denied any relief not expressly granted in those prior orders. There is no
breakdown or explanation in the judgment, or anywhere else in the summary
judgment record, of what claims may have been severed from the main action or
“voluntarily dismissed,” or what became of the other twelve defendants (the
OOTR signatories) in the 2013 lawsuit.
Analysis. Again, res judicata requires proof of (1) a prior final judgment on
the merits; (2) the same parties or those in privity with them; and (3) a second
action based on the same claims as were raised, or could have been raised, in the
first action. See Rosetta Res., 645 S.W.3d at 225. To prevail on a motion for
summary judgment asserting res judicata, a movant must produce evidence,
including verified or certified copies of the judgment and pleadings from the
earlier suit, sufficient to establish the applicability of res judicata as a matter of
law. E.g., Fed. Home Loan Mortg. Corp. v. Pham, 449 S.W.3d 230, 237 (Tex.
App.—Houston [14th Dist.] 2014, no pet.). Here, the Association’s summary
judgment evidence and arguments were clearly lacking in several key respects,
particularly concerning the second element requiring an identity of parties in the
two actions.
13
In addressing the second element in its motion, the Association pointed out
that both Rosenberger and the Association were parties in the 2013 lawsuit and
2013 plaintiffs White and Dunning had been elected to the Association’s board by
the time the final judgment was entered. The Association suggests that this meant
White and Dunning were then controlling the Association or representing its
interests. However, Rosenberger expressly intervened in the litigation to support
the Association, and Rosenberger and the Association never became adverse
parties. “[R]es judicata applies only to adverse parties. Where two parties are
aligned in the first action and no issues are drawn between them, the judgment in
that action does not preclude later claims between those parties.” Getty Oil Co. v.
Ins. Co. of N. Am., 845 S.W.2d 794, 800 (Tex. 1992). “For the purposes of res
judicata, co-parties have issues drawn between them and become adverse when
one co-party files a cross-action against a second co-party.” State & Cnty. Mut.
Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001). Neither the Association
nor Rosenberger ever filed a claim against the other in the 2013 lawsuit. Moreover,
the Association never realigned as a plaintiff and did not join in the motion for
summary judgment against Rosenberger.4
In its reply to Rosenberger’s response to the motion for summary judgment,
the Association argued that it is in privity with the 2013 plaintiffs, but the
Association did not provide a basis for that conclusion other than the fact that two
of the 2013 plaintiffs were at one time board members for the Association. The
Association provides no authority that supports this position, and we are aware of
4
The Association appears to be suggesting that its separate legal existence apart from its
board members should be ignored in this analysis, but it has provided no legal authority or
argument for doing so.
14
none.5
In its brief to this court, the Association additionally suggests that res
judicata applies because both the 2013 lawsuit and the present action pertain to the
validity of a common contract. In support they cite two cases applying the doctrine
of virtual representation. See Caudle v. City of Garland, 583 S.W.2d 826, 827–28
(Tex. App.—Dallas 1978, writ ref’d n.r.e.); Oak Lawn Pres. Soc’y v. Bd. of
Managers of Dallas Cty. Hosp. Dist., 566 S.W.2d 315, 317–18 (Tex. App.—Dallas
1978, writ ref’d n.r.e.). This argument, however, cannot support the grant of
summary judgment in this case because it was not raised in the motion. See
Cincinnati Life, 927 S.W.2d at 627. 6 The trial court erred in granting partial
summary judgment favoring the Association on res judicata grounds.
5
People can be in privity in at least three ways: (1) they can control an action even if they
are not parties to it; (2) their interests can be represented by a party to the action; or (3) they can
be successors in interest, deriving their claims through a party to the prior action. Amstadt v. U.S.
Brass Corp., 919 S.W.2d 644, 653 (Tex. 1996). Privity exists if the parties share an identity of
interests in the basic legal right that is the subject of litigation. Id. Privity is not established by
the mere fact that the parties may happen to be interested in the same question or in proving the
same facts. Reynolds v. Quantlab Trading Partners US, LP, 608 S.W.3d 549, 560 (Tex. App.—
Houston [14th Dist.] 2020, no pet.). The 2013 plaintiffs sued pursuant to Property Code section
82.161 as persons allegedly affected by violations of the Walden Pond declarations to force the
2013 defendants to pay assessments and force the Association to collect those assessments. The
Association is suing in the present litigation to enforce the declarations as a contract right.
Although the two parties are certainly interested in some of the same questions and in proving
similar facts, they do not share an identity of interests in the basic legal right that is the subject of
litigation.
6
Additionally, we note that since the cited cases issued, the application of res judicata
through virtual representation has been disapproved based on due process concerns, at least in
federal-question claims. Taylor v. Sturgell, 553 U.S. 880, 885 (2008); Lee v. Rogers Agency, 517
S.W.3d 137, 155 (Tex. App.—Texarkana 2016, pet. denied). Also, even assuming the doctrine of
virtual representation could apply here, it requires that a prior court have ruled on the validity of
the contract, which has not been established on this record where the evidence indicates only that
the issues regarding the OOTRs were resolved in the prior case by an agreed order. See Caudle,
583 S.W.2d at 827-28; Oak Lawn Pres. Soc’y, 566 S.W.2d at 317–18. There is no evidence that
any court has determined that the OOTRs are invalid or illegal.
15
2. Validity of the OOTR
In its motion for partial summary judgment, the Association additionally
asserted that Rosenberger’s OOTR was illegal and void because it violated the
Association’s governing documents in two ways and no vote had been taken to
amend the conflicting portions of the governing documents. Specifically, the
Association asserted the OOTR violated provisions specifying that (1) all owners
must pay monthly assessments for the repair and maintenance of the common
areas, among other things, and (2) the Association has the responsibility for repairs
and renovations to the general elements and not the individual condominium
owners.
In comparison to its res judicata arguments, the Association’s arguments
based on the governing documents appear like afterthoughts. As stated, the
Association based these arguments on an alleged conflict between the OOTRs and
the governing documents, but it failed to attach a copy of an OOTR to its motion
and only attached a small excerpt from the Association’s declarations. Our review
of a trial court’s summary judgment is limited to the evidence before the court
when it granted the motion. E.g., Di Angelo Publ’ns, Inc. v. Kelley, No. 14-20-
00546-CV, 2022 WL 401561, at *2 (Tex. App.—Houston [14th Dist.] Feb. 10,
2022, no pet.) (mem. op.); see also Young v. Gumfory, 322 S.W.3d 731, 738 n.3
(Tex. App.—Dallas 2010, no pet.) (applying same restriction in partial summary
judgment case). Although a copy of Rosenberger’s OOTR had been attached to a
third party’s application for a temporary restraining order earlier in the case, no
complete copy of the Association’s governing documents appears in the record as
of the time of the trial court’s ruling on the motion for summary judgment or,
16
indeed, in the clerk’s record filed in this court.7 The excerpt provided contains
primarily paragraph 8.1 of the declarations. This paragraph provides, among other
things, that consent of at least 67 percent of owners was “required to add or amend
any provisions to this Declaration, including those provisions which provide for,
govern or regulate . . . (2) Assessments [and] (6) Responsibility for maintenance
and repair of the Units and Common Elements.”
The Association, however, failed to present any sections of the governing
documents that actually conflict with the OOTRs. For example, they did not
include any section spelling out the requirements for paying assessments or any
provision requiring that only the Association can renovate or repair the common
elements. They also did not provide an affidavit from anyone with relevant
knowledge. In his response to the motion, Rosenberger pointed out the lack of
evidence, and perhaps in recognition of this, in its reply to the response, the
Association relied on Rosenberger’s summary judgment declaration to fill in the
missing evidence. Specifically, the Association quoted Rosenberger as stating “an
‘owner complying with the OOTR is making the Association’s renovations and
repairs . . . thus prepaying assessments.’” But the Association does not allege and
did not prove that “prepaying assessments” would violate the governing
documents; the Association’s argument was instead that the OOTR’s effectively
released the signing and complying owners from paying assessments in conflict
7
The only complete copy of the Association’s declarations in the record was admitted as
an exhibit during trial. We assume without deciding that we can consider the OOTR but not the
full copy of the declarations. See generally Salas v. LNV Corp., 409 S.W.3d 209, 218 (Tex.
App.—Houston [14th Dist.] 2013, no pet.) (explaining that unverified documents attached to
pleadings do not constitute summary-judgment proof); Speck v. First Evangelical Lutheran
Church of Hous., 235 S.W.3d 811, 816 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“A party
must expressly and specifically identify the supporting evidence on file that it seeks the trial
court to consider in a summary judgment motion or a response to a summary judgment
motion.”).
17
with the requirement to do so in the governing documents. Additionally, even in its
reply, the Association still failed to provide any section of the Declarations
indicating that the Association could not fulfill its obligation to repair the common
elements through agreements with individual owners.
The Association also asserted new grounds for partial summary judgment on
the validity of the OOTRs in its reply to Rosenberger’s response. Specifically, the
Association alleged that (1) the failure to provide notice to the owners of an open
board meeting to consider the OOTRs violated Texas Property Code section
82.108, and (2) Rosenberger’s own OOTR, which he signed both as board
president and as an owner, violated Texas Business Organizations Code section
22.230, addressing contracts involving interested directors, officers, and members.
Tex. Bus. Orgs. Code § 22.230; Tex. Prop. Code § 82.108. However, a movant is
generally not permitted to use a reply to amend its motion for summary judgment
or to raise new and independent summary-judgment grounds, particularly not when
the reply was filed within two days of the hearing date, as in this case, and the
movant did not seek or obtain leave of court. See Ron v. AirTran Airways, Inc., 397
S.W.3d 785, 787 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Reliance Ins.
Co. v. Hibdon, 333 S.W.3d 364, 378 (Tex. App.—Houston [14th Dist.] 2011, pet.
denied). Moreover, the Association did not offer any evidence in support of these
new allegations.
3. Conclusion
The trial court erred in granting summary judgment favoring the Association
against Rosenberger’s declaratory judgment action regarding the validity of the
OOTRs. Accordingly, we sustain Rosenberger’s first issue.
B. Breach of Fiduciary Duty Claim
18
In his second issue, Rosenberger contends that the trial court erred in
refusing to submit his breach of fiduciary duty claim and instead ruling that it was
barred by the applicable statute of limitations. See Tex. Civ. Prac. & Rem. Code §
16.004(a)(5) (setting four-year limitations period for breaches of fiduciary duties).
Rosenberger based this claim on allegations that (1) his condominium unit suffered
water penetration damage in May 2012; (2) under the Association’s bylaws, it acts
as attorney-in-fact for an owner when his condominium unit becomes damaged;
therefore, Rosenberger contends, it owed a fiduciary duty to him regarding the
damage to his unit; (3) the Association’s representative (the property manager) told
Rosenberger that there was no money or insurance to cover the damage and that
Rosenberger should just take the money out of future assessments; and (4) the
Association subsequently sued Rosenberger in this litigation for past due
assessments without taking into account the uncovered 2012 damage.
The breach of fiduciary duty claim was a subject of the Association’s
pretrial motion in limine, but the issue was subsequently raised again in the middle
of trial and during the charge conference. The Association initially argues that (1) a
ruling on a motion in limine preserves nothing for review, citing Southwest
Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493–94 (Tex.
App.—Fort Worth 1999, pet. denied), and (2) Rosenberger never offered any
actual evidence to support his claim. It is clear, however, that although the court
initially only considered the issue in a motion in limine, the court subsequently
ruled on the merits in a hearing outside the presence of the jury, concluding, as the
Association argued, that the claim was barred by limitations. It is also clear that to
the extent the trial court’s ruling could be considered an evidentiary ruling,
although Rosenberger did not provide an offer of proof in the form of testimony,
his counsel adequately described the substance of the proposed evidence. See, e.g.,
19
PNS Stores, Inc. v. Munguia, 484 S.W.3d 503, 511 (Tex. App.—Houston [14th
Dist.] 2016, no pet.).
A statute of limitations is an affirmative defense which a defendant bears the
initial burden to plead and prove. See Nelson v. Gulf Coast Cancer & Diagnostic
Ctr. at Se., Inc., 529 S.W.3d 545, 548 (Tex. App.—Houston [14th Dist.] 2017, no
pet.) (citing Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988)).
A breach of fiduciary duty claim accrues when the claimant knows, or in the
exercise of ordinary diligence should know, of the wrongful act and resulting
injury. See Murphy v. Campbell, 964 S.W.2d 265, 271 (Tex. 1997); Williard L.
Firm, L.P. v. Sewell, 464 S.W.3d 747, 752 (Tex. App.—Houston [14th Dist.] 2015,
no pet.). The specific date by which a plaintiff knew or should have known of an
injury is generally a question of fact for the jury. Williard L. Firm, 464 S.W.3d at
752 (citing Childs v. Haussecker, 974 S.W.2d 31, 47 (Tex. 1998)). Unless evidence
conclusively establishes when a party should have known of facts giving rise to a
claim, the question is one for the jury. Id. (citing Barker v. Eckman, 213 S.W.3d
306, 312 (Tex. 2006)). “While a person to whom a fiduciary duty is owed is
relieved of the responsibility of diligent inquiry into the fiduciary’s conduct, so
long as that relationship exists, when the fact of misconduct becomes apparent it
can no longer be ignored, regardless of the nature of the relationship.” S.V. v. R.V.,
933 S.W.2d 1, 25 (Tex. 1996).
As stated, Rosenberger alleged his condominium unit was damaged by water
penetration in May 2012. He does not state when he was told by the Association’s
representative that there was no coverage for the damage and he should take the
money out of his assessments, but it obviously would have been after the damage
occurred. The Association filed suit against Rosenberger on the assessments in
June 2016, and Rosenberger raised his claim for breach of fiduciary duty less than
20
a month later. The Association has also noted that demands for payment of the
assessments were made on Rosenberger as early as January 2013.
Among the arguments Rosenberger made below and makes on appeal is that
he was not injured by the alleged breach of fiduciary duty until the Association
attempted to collect the assessments that he believed he was allowed to offset
against the lack of coverage or funds for his May 2012 water penetration damage.
Rosenberger suggests this occurred when the Association filed its third-party claim
against him; the Association notes that demands for payment were made before
suit was filed. Regardless, the Association has pointed to no evidence that such a
demand was made prior to January 2013, which was less than four years before
Rosenberger filed his counterclaim for breach of fiduciary duty. As stated, the date
on which a claim accrued is generally a question of fact for the jury. See Williard
L. Firm, 464 S.W.3d at 752. Based on the facts presented, a jury could reasonably
conclude that Rosenberger’s claim did not accrue prior to 2013. Accordingly, the
trial court erred in holding that Rosenberger’s breach of fiduciary duty claim was
barred by limitations. We therefore sustain Rosenberger’s second issue.8
C. Remaining Issues and Disposition
Having sustained Rosenberger’s first two issues, we turn to the remainder of
his thirteen issues and the proper disposition in this appeal. In his fourth, sixth, and
eighth issues, which he argues together, Rosenberger asserts both that the evidence
conclusively established he timely paid his assessments and the evidence was
legally insufficient to support the jury’s findings that he failed to pay his
assessments and as to the amount of assessments owed. See generally City of
8
We take no position in this appeal regarding the ultimate merits of Rosenberger’s
breach of fiduciary duty claim or whether the 2012 water penetration damages might be
recoverable or used as an offset under that or any other cause of action.
21
Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005) (legal sufficiency
standards of review). These issues potentially provide Rosenberger with greater
relief than his first two issues. 9 It was undisputed and established at trial that as a
Walden Pond unit owner, Rosenberger was required to pay monthly assessments
but did not directly pay assessments to the Association. It was hotly contested
throughout trial whether Rosenberger was authorized or permitted to offset the
assessments by amounts he spent on making repairs and renovations to the
building containing his condominium unit. In support of his argument that he
timely and fully paid the assessments through these offsets, Rosenberger relies on
his own testimony; however, as sole judge of witness credibility, the jury was free
to discount any or all of Rosenberger’s testimony. See Keller, 168 S.W.3d at 819;
Petrol. Workers Union of the Republic of Mex. v. Gomez, 503 S.W.3d 9, 28 (Tex.
App.—Houston [14th Dist.] 2016, no pet.).
In regard to the Association’s evidence, Rosenberger argues summarily that
the Association’s records were untrustworthy because they had not been audited or
inspected in years, but he cites no evidence in support of this assertion, and there
was testimony the current property management company for Walden Pond had
audited the records. Rosenberger further contends that the Association’s purported
custodian of records did not have sufficient personal knowledge to support
admission of plaintiff’s exhibit 4 showing assessments Rosenberger allegedly
owed from July 2012 through May 2021. Rosenberger only cites Texas Rule of
Evidence 803(6)(E) in support of this proposition, which does not directly support
the argument. Rosenberger does not discuss the other testimonial and documentary
9
In his sixth and eighth issues, Rosenberger also challenged the factual sufficiency of the
evidence, but such arguments would not provide greater relief than the first two issues we have
sustained and thus need not be addressed in this opinion.
22
evidence showing that he owed assessments of certain amounts and had not paid
them. In short, there was legally sufficient evidence that Rosenberger had not paid
assessments and the Association thereby suffered damages. We therefore overrule
Rosenberger’s fourth, sixth, and eighth issues.
In his tenth issue, Rosenberger asserts that he established as a matter of law
that he was excused from paying his monthly assessments. This issue also
potentially provides greater relief; however, as the Association asserts,
Rosenberger has failed to support this issue with cogent argument or relevant
citation to authority or the record, and it is therefore inadequately briefed and
overruled. See Tex. R. App. P. 38.1(i); Nguyen v. Pham, 640 S.W.3d 266, 275
(Tex. App.—Houston [14th Dist.] 2021, pet. denied).
Because under the first issue we hold that the trial court erred in granting
partial summary judgment on the validity of the OOTR, we reverse and remand the
portions of the trial court’s judgment (1) incorporating the partial summary
judgment; (2) ordering Rosenberger to pay any amounts, including as damages,
attorney’s fees, court costs, or otherwise; and (3) ordering a foreclosure sale.
Accordingly, we need not reach Rosenberger’s fifth, seventh, ninth, and eleventh
through thirteenth issues, which seek the same relief. Because under the second
issue, we hold that the trial court erred in concluding that Rosenberger’s breach of
fiduciary duty claim was barred by limitations, we reverse and remand the
judgment to the extent that it denied recovery on this claim and we need not
address Rosenberger’s third issue, which seeks the same relief. We affirm the
remainder of the judgment, including the portion denying recovery on
Rosenberger’s claims for breaches of the Association’s governing documents as
these were not challenged in this appeal.
II. Appeal in the Lawsuit against LeMaster
23
In his appeal of the summary judgment favoring LeMaster, Rosenberger
raises three issues, alleging (1) Rosenberger’s evidence was sufficient to defeat
LeMaster’s no-evidence motion for summary judgment; (2) the trial court erred in
denying Rosenberger’s motion to reconsider the summary judgment; and (3) in the
interests of justice, a motion for summary judgment seeking dismissal of valid
claims should be denied rather than decided on curable procedural or evidentiary
issues. Rosenberger did not separately brief his third issue. Because all three issues
concern similar contentions as to the merits of Rosenberger’s claims, we will
consider them together.
To defeat a no-evidence motion for summary judgment, the responding party
must present evidence raising a genuine issue of material fact supporting each
element contested in the motion. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310
(Tex. 2009). When reviewing a trial court’s grant of such a motion, we consider
the evidence presented in the light most favorable to the party against whom
summary judgment was rendered, crediting evidence favorable to that party if
reasonable jurors could and disregarding contrary evidence unless reasonable
jurors could not. Id. We indulge every reasonable inference and resolve any doubts
in the nonmovant’s favor. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481
(Tex. 2015). We review a no-evidence summary judgment de novo. See Joe v. Two
Thirty Nine Joint Venture, 145 S.W.3d 150, 156–57 (Tex. 2004). A no-evidence
summary judgment is improperly granted if the respondent presents more than a
scintilla of probative evidence to raise a genuine issue of material fact on each
challenged element. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003). More than a scintilla of evidence exists when the evidence “rises to a level
that would enable reasonable and fair-minded people to differ in their
conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
24
1997).
A. The Claims
As discussed above, Rosenberger asserted he obtained information from
LeMaster in July 2016 regarding whether the Association had obtained insurance
for the building containing Rosenberger’s condominium. In a letter dated July 29,
2016, LeMaster informed Rosenberger that he had been working with a Walden
Pond representative since March 2016 to secure insurance and was finally able to
do so in May 2016. Although some of the buildings had to be placed under
different policies owing to varied states of disrepair, Rosenberger’s building was
insured through a Scottsdale Insurance Company general liability policy and a
Texas Windstorm Association wind and hail policy. According to LeMaster, the
Scottsdale policy had a $5000 deductible and the Texas Windstorm policy had a 2
percent deductible. LeMaster additionally informed Rosenberger in the letter that
[t]he inspector came out from Texas Windstorm and made a report on
all the building [sic]. Your building had the best review of all since
you have new siding and new roof. There was only two request [sic]
on your building. One they want the red door repaired or replaced and
a photo showing the wor