Robert Kelton Rosenberger v. Walden Pond Owners Association, 14-21-00511-CV

Background

Robert Rosenberger purchased Unit 403 at Walden Pond Condominiums; the Owners Association sued him for unpaid monthly assessments and sought foreclosure.
Rosenberger, a former board president, created and signed "Owners Option to Renovate" (OOTR) agreements allowing owners to repair exteriors in exchange for reduced assessments; later boards disavowed the OOTRs.
A 2013 lawsuit involving other owners produced an agreed order declaring such owner agreements invalid; the Association relied on that history and the governing documents to obtain partial summary judgment that barred Rosenberger’s declaratory claim that his OOTR was valid.
The trial court excluded Rosenberger’s 2012 water-damage breach-of-fiduciary claim as time-barred; a jury nevertheless found Rosenberger failed to pay assessments (July 2012–May 2021) and awarded damages, fees, and foreclosure.
Rosenberger separately sued the Association’s insurance agent, Harvey LeMaster, for fraud and negligent misrepresentation over representations in 2016 about insurance coverage for Rosenberger’s building; LeMaster obtained a no-evidence summary judgment.
On appeal, the court: reversed and remanded the partial summary-judgment/OOTR ruling and the ruling that the fiduciary claim was time-barred; affirmed the remainder of the Association judgment; and affirmed the summary judgment for LeMaster.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of OOTRs / res judicata	Rosenberger: OOTRs were valid and permitted offsets against assessments; prior case did not preclude his declaratory claim.	Association: prior 2013 litigation and agreed order barred the claim (res judicata) and OOTRs conflict with governing documents.	Trial court erred to grant partial SJ on res judicata and on document-conflict grounds; reversed and remanded.
Breach of fiduciary duty (2012 water damage) — statute of limitations	Rosenberger: claim accrued when Association sought full assessments (post-2013); timely filed counterclaim.	Association: claim barred by 4‑year limitations.	Court held accrual was a fact question; trial court erred to rule claim time‑barred; reversed and remanded.
Sufficiency of evidence that Rosenberger failed to pay assessments	Rosenberger: he timely paid by offsetting repairs under OOTRs; evidence conclusively shows payment.	Association: records and testimony show nonpayment; jury may credit witnesses over Rosenberger.	Evidence legally sufficient to support jury’s finding of nonpayment; issues 4,6,8 overruled as to sufficiency; foreclosure and damages affirmed except as affected by reversed SJ/offset ruling.
No‑evidence SJ for LeMaster (fraud/negligent misrep)	Rosenberger: his declarations, two phone excerpts, and two letters raise genuine issues on misrepresentation, duty to disclose, causation, and damages.	LeMaster: no evidence that (1) his 2016 statements were false, (2) he had a duty to continuously disclose changed coverage, or (3) Rosenberger suffered covered damages proximately caused by LeMaster.	Affirmed: Rosenberger produced no more than conclusory evidence on falsity, continuing duty, causation, or covered damages; no‑evidence SJ properly granted.

Key Cases Cited

Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) (summary‑judgment review standards)
Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212 (Tex. 2022) (elements of res judicata)
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007) (genuine‑issue summary‑judgment test)
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623 (Tex. 1996) (appellate review may consider all preserved SJ grounds)
Murphy v. Campbell, 964 S.W.2d 265 (Tex. 1997) (accrual rule for fiduciary‑duty claims)
JPMorgan Chase Bank, N.A. v. Orca Assets G.P., 546 S.W.3d 648 (Tex. 2018) (elements of negligent misrepresentation)
In re FirstMerit Bank, 52 S.W.3d 749 (Tex. 2001) (elements of fraud)
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) ("more than a scintilla" evidentiary standard explanation)