This is аn appeal from a judgment awarded to the Spires Council of Co-Owners (The Spires) on claims arising from appellant’s, John M. Gaughan’s, failure to pay maintenance fees owing on three condominiums.
We affirm.
BACKGROUND
The Spires is a Texas nonprofit corporation that wаs created in 1983, for the purposes of the maintenance, management, preservation, and control of the common аreas of the Spires Condominium Regime (Regime). Each owner of a condominium in the Regime is required to pay to The Spires a maintenance assessment based on the square footage he or she owns. The Spires has the power to file suit against owners in the Regime who default in the payment of their maintenance fees, to recover the fees and interest, late charges, and attоrney’s fees. Additionally, the obligation to pay the maintenance assessments is the personal obligation of each owner during оwnership regardless if the property is subsequently sold or lost through foreclosure.
Gaughan purchased three units in the Regime from Century Condominium Ltd. (Century) and Century was the developer and note holder. Gaughan did not make any mortgage or maintenance payments from Deсember 1, 1986, through December 31, 1987. Century foreclosed and sued Gaughan for the deficiency. The case was ultimately settled. Gaughan claims it is the settlement that bars any recovery by The Spires for past due maintenance fees because of res judicata.
The рrimary issue before this Court is whether there is sufficient identity of parties between The Spires on the one hand, and Century and the mortgagor on the other, so that The Spires’ claim would be barred by the res judicata effect of the previous litigation and settlement. We find that there is not.
Res Judicata
Appellant contends that the trial court’s judgment in favor of The Spires should be reversed and a take-nothing judgment should be rendеred because the claim by The Spires is barred by the doctrine of res judicata.
Texas follows the “transactional” approach to res judicata. Barr v. Resolution Trust Corp.,
In Barr, both Barr and his partnеr executed a promissory note in the name of their partnership, and on that same day, both partners executed personal guarantees on the note. Barr,
In the previous suit brоught against Barr, the bank alleged that he had executed the guarantee on the note the same day and as part of the “samе transaction” as the promissory note. Id. at 631. Further, both suits sought the same amount of damages and required the same proof. Id. The cоurt held that the execution of the partnership note and Barr’s guarantee of it were sufficiently related in time, space and motivation, and that the parties considered it a single
Res judicata is not aрplicable to this ease. The Spires was not a party to the previous litigation or the resulting settlement agreement. The subject matter of that litigation was Gaughan’s default on the promissory note he executed in order to purchase the units from Century. The obligation of payments for the maintenance fees, though, arose after the purchase date and were to be made directly to The Spires, not to Century. A claim arising from a failure to pay maintenance fees on the one hand, and one arising from a fаilure to make payments on a promissory note on the other, are two totally different causes of action. Similarly, the pаrties who brought these respective claims against Gaughan are two completely different entities.
Appellant contends that res judica-ta applies nonetheless, because The Spires was “in privity” with the parties to the previous litigation. Under Texas lаw, a former judgment bars a second suit against all who were “in privity” with the parties to the first suit. Getty Oil,
The Spires is managed by a board of directors, who are elected by a majority of the condominium owners. The record is silent on their identity. There is no evidence in the record to suggest the association is a sham or alter ego of Century. None of the parties to the previous litigation represented the same legal right insofar as the unpaid maintenance fees owed The Spires. Id. Consequently, The Spires was not in privity with any of the parties to the previous litigаtion.
It is appellant’s contention that since the obligation to pay maintenance fees was created in the purchаse agreement, any claim by The Spires should have been brought in the previous litigation. We disagree. The default on the promissory nоte, which resulted in foreclosure, is not sufficiently related in time, space, or motivation to appellant’s failure to pay the maintenance fees he owed The Spires. Also, the issues of the two claims against Gaughan are distinct and, as such, would not form a сonvenient trial. See Barr,
Accordingly, we overrule appellant’s point of error.
Frivolous Appeals
The Spires contend that this appeal was taken for delay and without sufficient cause, and therefore requеst sanctions pursuant to rule 84 of the Texas Rules of Appellate Procedure in the form of an additional 10 percent of the amount in dispute as damages.
Although appellant has filed three motions for extension of time with this Court, such conduct does not, in and of itself, necessitate invoking rule 84 sanctions. It is also true that appellant’s brief was struck once it was filed due to its failure to conform to briefing requirements, but appellant refiled and attempted to correct any deficiencies. Accordingly, sanctions are not in order.
We overrule appellee’s cross-point.
The trial court’s judgment is affirmed.