Motion for New Trial in Robert Kelton Rosenberger, Et Al vs. Harvey LeMaster| Trellis.Law

On May 20, 2021 a Motion,Ex Parte was filed involving a dispute between Roberts, Ronald, Rosenberger, Robert Kelton, and Lemaster, Harvey, for Real Property - Other Real Property - Ownership/Title in the District Court of Galveston County.

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Filed: 6/21/2021 5:51 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 54625643
By: Linda Scott
6/22/2021 3:32 PM

CAUSE NO. 16-cv-0524-A

ALBERT J. HERNANDEZ, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § GALVESTON COUNTY, TEXAS
§
WALDEN POND OWNERS §
ASSOCIATION §
§
Defendant. § 405th JUDICIAL DISTRICT

ROSENBERGER’S MOTION FOR NEW TRIAL
OR TO MODIFY, CORRECT OR REFORM JUDGMENT

Plaintiff Robert Kelton Rosenberger (“Rosenberger”) moves for a new trial or to modify,

correct or reform the judgment of this severed proceeding. In support of this motion, Rosenberger

says:

1. The trial court erred in holding that Rosenberger failed to provide sufficient

evidence to avoid the no-evidence summary judgment granted in favor of defendant Harvey

LeMaster. (“LeMaster”). In support of this Motion, Rosenberger adopts and incorporates:

Exhibit A: Plaintiff’s Original Petition and Initial Discovery filed August 7, 2019 in

Cause No. 19-CV-1418;

Exhibit B: December 2, 2019 Order consolidating Cause No. 19-cv-1418 into Cause

Np. 16-cv-0524

Exhibit C: Rosenberger’s and Roberts’ Joint Response to LeMaster’s No-Evidence

Summary Judgment Motion (with Exhibits 1-5) filed December 7, 2020 in the original Cause No.

16-cv-0524, before severance;

Exhibit D: Rosenberger’s Motion to Reconsider LeMaster’s No-Evidence Summary

Judgment Motion (Exhibit Exhibit 1) filed January 28, 2021 in the original Cause No. 16-cv-0524,
before severance.

2. At oral argument on December 12, 2020, the Court (not LeMaster) urged for the

first time that Rosenberger’s testimony as to the cause of his injury was somehow defective or

inadequate. Indeed, LeMaster’s December 10, 2020 Reply objected to two exhibits, but LeMaster

made no objections at all to Rosenberger’s testimony about causation, when Rosenberger testified

to his construction expertise and familiarity with the property before testifying that he was “injured

by the lack of insurance coverage to reimburse us for at least part of our repair costs resulting from

Hurricane Harvey.” (¶11, Rosenberger’s December 7, 2020 Declaration timely filed as Exhibit 1

to Rosenberger’s summary judgment response).

3. “To preserve a complaint for appellate review, a party must (1) complain to the trial

court by way of a timely request, objection, or motion; and (2) the trial court must rule or refuse

to rule on the request, objection, or motion.” Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 164

(Tex. 2018) (per curiam, omitting internal quotes) citing Mansions in the Forest, L.P. v.

Montgomery Cty., 365 S.W.3d 314, 317 (Tex. 2012) (per curiam); TEX. R. APP. P. 33.1(a). “And

if purported summary-judgment evidence presents a defect in form, that defect cannot provide

grounds for reversal unless specifically pointed out by objection by an opposing party with

opportunity, but refusal, to amend.” Seim at 164 (emphasis added; omitting internal quotes),

citing TEX. R. CIV. P. 166a(f).

4. Here, there was no timely objection to Rosenberger’s testimony, let alone an

opportunity to amend. See Seims (“Rule 33.1(a) requires a timely and ruled-upon objection to

preserve error”) citing TEX. R. APP. P. 33.1(a). Rosenberger certainly did not refuse to amend as

required by Rule 166a(f), because he was never given the opportunity. But aside from the Court’s

concern about this causal link, there was no other reason to grant LeMaster’s summary judgment

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motion.

5. Exhibit 1 to Rosenberger’s Motion to Reconsider (Exhibit D) is Rosenberger’s

January 22, 2021 Supplemental Declaration. This is identical to Rosenberger’s December 7, 2020

Declaration, except the Supplemental Declaration now adds paragraph 10A, which provides this

additional testimony as authorized by Seims and Rule 166a(f):

10A. Unit 403 was not penetrated by rising flood waters during Hurricane
Harvey. Hurricane Harvey did not cause flood damage to my Unit 403. During
Hurricane Harvey, water penetrated Unit 403 through the roof, which is the
Association’s responsibility to maintain, repair, and insure. Before Hurricane
Harvey, the roof of Building 400 was old but complete and intact. Immediately
after Hurricane Harvey, I observed that shingles were missing from the roof of
Building 400, directly above my Unit 403. A few days after Hurricane Harvey
passed, when the Association made no apparent effort to patch the roof, I personally
climbed onto the roof and replaced approximately 300 square feet of missing and
damaged roofing in order to minimize my property damage.

6. Even without the Court’s duty to employ all reasonable inferences in favor of the

non-movant, this testimony clearly establishes Rosenberger’s injuries were caused by wind

damage during Hurricane Harvey (not flooding as suggested for the first time by the Court at oral

argument). There was no evidence of flood damage. The Court should therefore set aside its

December 14, 2020 order granting the LeMaster summary judgment motion, and instead deny

LeMaster’s motion in all respects.

7. LeMaster has since argued that no objection was necessary because Rosenberger’s

initial testimony was conclusory. This is not the case, since Rosenberger’s initial testimony

showed his familiarity with the building and the damage it sustained during Hurricane Harvey. At

the December 12, 2020 oral argument, the trial court took judicial notice that windstorm insurance

does not protect against flooding, and the Court of Appeals will be free to do likewise. See Tex.

R. Evid. 201. It is therefore error to infer against Rosenberger, as the summary judgment

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respondent, that his initial declaration could have somehow nevertheless meant “flooding” despite

no mention of flooding. See Beesley v. Hydrocarbon Separation, Inc., 358 S.W.3d 415, 424 (Tex.

App. – Dallas 2012, no pet.) (summary judgment affidavit was not conclusory when it could have

been readily controverted if untrue).

8. Alternatively, if necessary, the Court should have exercised its discretion to

reconsider the December 14, 2020 order in light of the new evidence quoted above. Fruehauf

Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (multiple citations omitted). All evidence should

be considered, so that justice may be done.

WHEREFORE, Rosenberger respectfully requests that the December 14, 2020 partial

summary judgment be set aside, that Defendant Harvey LeMaster d/b/a Insurance Office of

Montgomery’s No-Evidence Motion for Summary Judgment be denied in all respects, and that

Rosenberger be granted all further relief to which he is entitled.

Respectfully submitted,

By: /s/ David A. McDougald________
David A. McDougald
Texas Bar No. 13570525
4309 Yoakum Blvd., Suite 3000
Houston, Texas 77006
(713) 522-1177 – telephone
(888) 809-6793 – telecopier
david@davidmcdougaldlaw.com
ATTORNEY FOR ROSENBERGER

4
CERTIFICATE OF SERVICE

I certify that the foregoing instrument has been served in compliance with the Texas Rules
of Civil Procedure on June 21, 2021, by serving:

Chris Archambault
Weston Prescott Ray
Daughtry & Farine, P.C.
17044 El Camino Real
Houston, Texas 77058

Via email: farine.filing@daughtryfarine.com
And carchambault@daughtryfarine.com, wray@daughtryfarine.com

and

Randall G. Walters
Walters, Balido & Crane, L.L.P.
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas75231
Via email: randy.walters@wbclawfirm.com
and WaltersEDocsNotification@wbclawfirm.com

_/s/David McDougald_______________
David McDougald

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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
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
4
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.
6
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
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
10
4309 Yoakum Blvd., Suite 3000
Houston, Texas 77006
(713) 522-1177 – telephone
(888) 809-6793 – telecopier
david@davidmcdougaldlaw.com

ATTORNEY FOR PLAINTIFFS

11
CAUSE NO. 16-cv-0524

ALBERT J. HERNANDEZ, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § GALVESTON COUNTY, TEXAS
§
WALDEN POND OWNERS §
ASSOCIATION §
§
Defendant. § 405th JUDICIAL DISTRICT

ROSENBERGER’S AND ROBERTS’ JOINT RESPONSE TO
LEMASTER’S NO-EVIDENCE SUMMARY JUDGMENT MOTION

Plaintiffs Robert Kelton Rosenberger (“Rosenberger”) and Ronald Roberts (“Roberts”)

jointly respond to Defendant Harvey LeMaster d/b/a Insurance Office of Montgomery’s No-

Evidence Motion for Summary Judgment (the “Motion”), filed by defendant Harvey LeMaster

d\/b/a Insurance Office of Montgomery (“LeMaster”). In support of this response, Rosenberger

and Roberts say:

I. The Motion Must Be Denied

1. LeMaster was an insurance agent acting for the Walden Pond Owners Association

(the “Association”) when LeMaster affirmatively represented to Rosenberger (acting individually

and as an agent for Roberts) that the Association’s windstorm policies covered Rosenberger’s and

Roberts’ condominium units against windstorm damage. Then when Hurricane Harvey caused

windstorm damage and Rosenberger attempted to submit claims for his and Roberts’ units,

LeMaster denied for the first time that the Association provided coverage after all.

2. LeMaster is liable for negligent misrepresentation and fraud, as well as exemplary

damages. Because LeMaster was acting on behalf of the Association as its insurance agent, the

Association is jointly and severally liable for LeMaster’s misrepresentations regarding coverage.
II. EXHIBITS

3. This Response is supported by the following exhibits:

Exhibit 1: Declaration of Robert Kelton Rosenberger

Exhibit 2: July 29, 2016 letter from LeMaster to Rosenberger

Exhibit 3:1 July 30, 2016 excerpts from telephone conference recording

between LeMaster and Rosenberger

Exhibit 4: September 2, 2017 excerpts from telephone conference recording

between LeMaster and Rosenberger

Exhibit 5: September 9, 2017 letter from LeMaster to Rosenberger

III. STATEMENT OF FACTS

4. At all material times, Rosenberger owned Unit 403 in Building 400 (a/k/a Building

4) and Roberts owned Unit 503 in Building 500 (a/k/a Building 5) of the Walden Pond

Condominiums in the City of Friendswood, Galveston County, Texas. Ex. 1, ¶¶ 2, 3. In the Walden

Pond Condominiums, there are four units per residential building. Ex. 1, ¶ 2.

5. Roberts lived out of state and did not reside in Unit 503. Instead, Roberts leased

Unit 503 to residential tenants. Ex. 1, ¶ 3.

6. Rosenberger is an experienced residential construction and repair contractor. Ex.

1, ¶ 4. Beginning no later than the Spring of 2013, Rosenberger contracted with Roberts to make

certain maintenance, repairs and renovations to Unit 503. Ex. 1, ¶ 4.

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Exhibits 3 and 4 are large audio files which could not be e-filed, and were instead transmitted
to the District Clerk via courier, on a flash-drive. They are being served to opposing counsel via
email providing a DropBox link.

2
7. By June of 2016, Rosenberger was also managing Unit 503 for Roberts, as Roberts’

local agent, and Rosenberger did so continuously until after May 31, 2020. Ex. 1, ¶ 4. Rosenberger

had frequent contact with Roberts during this interval, and Roberts justifiably relied on

Rosenberger to provide accurate reports about: (a) Unit 503’s rental status, (b) the condition of

Unit 503, (c) the Walden Pond Condominiums, (d) the Association’s insurance coverage, and (e)

other Association business. Ex. 1, ¶ 4.

8. Rosenberger understands that the declarations and by-laws for the Walden Pond

Condominiums and the Association, require the Association to insure Walden Pond’s buildings

and other improvements. Ex. 1, ¶ 5. In 2016, Rosenberger learned from Association records that

LeMaster was the Association’s insurance agent. Ex. 1, ¶ 5.

9. Unable to obtain reliable information about insurance coverage from the

Association, Rosenberger contacted LeMaster directly. Ex. 1, ¶ 6. In a telephone conference

between Rosenberger and LeMaster on or about July 28, 2016, LeMaster confirmed that he was

the Association’s insurance agent. Ex. 1, ¶ 6. Rosenberger asked LeMaster about insurance

coverage for the Walden Pond Condominiums, expressing particular concern about his own Unit

403. Ex. 1, ¶ 6.

10. On July 30, 2016, LeMaster hand-delivered to Rosenberger a July 29, 2016 letter

in response to Rosenberger’s telephone call. Ex. 1, ¶ 7; Ex. 2. Rosenberger understood and relied

on LeMaster’s letter: (a) to confirm that LeMaster was indeed the Association’s insurance agent;

(b) to advise Rosenberger that all units at Walden Pond were by that date insured, either under a

Builders Risk policy or under General Liability through Scottsdale Insurance Company and Wind

and Hail coverage through Texas Windstorm Association; (c) Building 400 with my Unit 403 was

insured through Scottsdale and Texas Windstorm; and (d) Building 400 was the most readily

3
insurable of all the Walden Pond buildings despite some minor repairs that were requested. Ex. 1,

¶ 7; Ex. 2.

11. When LeMaster hand-delivered the July 29, 2016 letter to Rosenberger on July 30,

2019, LeMaster personally told Rosenberger much of the same information presented in his July

29, 2016 letter. Ex. 1, ¶ 8; Ex. 2; Ex. 3. Rosenberger justifiably relied on LeMaster’s written and

in-person representations in believing that Rosenberger’s Unit 403 was covered by wind and hail

insurance, and that Roberts’ Unit 503 either had the same coverage under the same Association

policies, or at least had Builders Risk coverage if that was the best coverage available for Unit 503.

Ex. 1, ¶ 8; Ex. 2; Ex. 3. In 2016, Rosenberger understood that Builders Risk coverage would

include some windstorm coverage, up to 50% of replacement value. Ex. 1, ¶ 8.

12. Rosenberger reported this information to Ron Roberts. Ex. 1, ¶ 9. In reliance on

LeMaster’s representations, Rosenberger did not pressure the Association to provide the coverage

he believed that he and Roberts already had, and Rosenberger did not seek separate insurance

coverage for Units 403 or 503. Ex. 1, ¶ 9.

13. In August of 2017, Hurricane Harvey struck Galveston County and damaged

several Walden Pond units, including Units 403 and 503. Ex. 1, ¶ 10. Rosenberger promptly

submitted claims to LeMaster for the damage to Units 403 and 503, but then LeMaster told

Rosenberger on September 2, 2017 that Units 403 and 503 did not have insurance coverage for

these losses. Ex. 1, ¶ 10, Ex. 4. In that September 2, 2017 telephone conference, LeMaster

admitted to Rosenberger that Builders Risk coverage would have included windstorm coverage.

Ex. 1, ¶ 10, Ex. 4. LeMaster’s September 12, 2017 letter to Rosenberger confirmed there was no

coverage on Building 400. Ex. 1, ¶ 10, Ex. 5.

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14. LeMaster never advised Rosenberger after July 30, 2016, and before September 2,

2017, that his prior representations about coverage for Units 403 and 503 were false when made,

misleadingly incomplete, or changed by circumstances so that they were no longer true. Ex. 1, ¶

11. Roberts and Rosenberger were both injured by the lack of reimbursement from insurance

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Motion,Ex Parte: Robert Kelton Rosenberger, Et Al vs. Harvey LeMaster

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