Affirmed in Part, Reversed and Remanded in Part, and Majority Op inion 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 IN SURANCE 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 , Appellee2 On Appeal fr om the 405th District Court Galveston County, Te xas Trial Court Cause No. 16 -CV- 0524

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N

I join section II of the majority opinion , but I am unable to join section I . I

concur in the judg m en t with respect to the issues d is cus sed in section I (A), and I di ssent from the judgment with respect to the issues discussed in section I(B). 1 Summary J udgment I ssues
One of Rosenberger ’ s claims against the Association is for a declarat ion that his O OT R agreement is valid and enforceab le. T he Association filed a m otion fo r

s ummary judgment to defeat this claim on two ground s: ( 1) res judicata, and (2) Rosenberger ’s OOTR agreement is void because there was no vote to approve it

. T he t rial court granted su mmary judgment in the Associat ion ’ s favor. Rosenberger challenges both summary

- judgment grounds in his first issue

. Agreeing that neither ground was proven , t he majority reverses the judgment. I

concur with the majority but write separately beca use my reasoning differs

. A. Res Judi cata Res judicata prevents parties and their privies from relitigating a cause of action that has been finally adjudicated by a competent tribunal. 2 The doctrine a lso bars claims or defenses that, through d il igen ce, should have been litigated in the

1 The majority o pinion does not say so, but the court has o n its own motion decide d these two appeals toget her. See In re Polybutylene Plum b ing Litig

. , 23 S.W.3d 428 (Tex. App.

— Houston [1st Dist.] 2000, pet. dism’d) (deciding multiple appeals toge ther).

2 Ingersoll-Rand Co. v. V alero Energy Co rp. , 997 S.W.2d 203, 206

- 07 (Tex. 1999) , disagreed with on other grounds by In re J.B. Hunt Transp., I nc. , 492 S.W.3d 287, 292 & n. 5 (Tex. 2016) ; Barr v. Resolution Tr. Corp. , 837 S.W.2d 627, 630 (Tex. 199 2).3 prio r suit but were not. 3 The doctrine is intended to promot e judicial economy by

ensur ing consisten cy and stability of court decisions , among other salutary goals

. 4 While res judicata encompasses the sepa rate co nce p ts of clai m precl usion and issue preclusio n, 5 only claim preclusion is before us here. It requires proof of the following elements: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in pr iv ity with them; and (3 ) a second action based o n the same claims as were raised or could have been raised in the first action. 6 It may seem at fi rst impression that these elements , as traditionally stated,

are met. T he Associa tion presented summary

- judgment p roof t hat a final j udg ment was rendered in the 2013 lawsuit by a court with jurisdiction. T he Association and Rose nberger were parties to the 2013 lawsuit and are parties here

. 7 And the prior judgment declared void OOTR agreements identical to the one Ro se nberger inconsi st ent ly seeks to declare valid in this second action

. It is undisputed that a ll OOTR agreement s have the same terms and all the property owners who held or hold such agreements are members of the Association

. Barring Rosenberger ’ s declar atory judg ment cl ai m i s thus quite consi st ent with res jud icata ’ s purpose because R osenberger ’ s desired judgment wou ld permit him to hold an OOTR agreement that is valid, while the prior judgment declared void the OOTR

3 Ingersoll

- Rand Co. , 9 97 S.W.2 d at 20 7

. 4 S ee id. ; Barr , 837 S.W. 2d at 629.

5 See Taylor v. Sturgell , 553 U.S . 880, 892 (2008).

6 Rosetta Res

. Oper ating , L P v. Martin , 645 S.W.3d 212, 225 (Tex. 2022); Ams tadt v. U.S. Brass Corp. , 919 S.W.2d 644, 652 (Tex. 1996)

. 7 When the par ties in the sec ond action were also parties in the first action , then the identity

- of

- pa r ties element is met

. See Eagle O il & Ga s Co. v. T RO

- X, L .P. , 619 S.W. 3 d 699, 706 n.7 (Tex. 2021) ; Lancaster v. St. Yves , N o . 01

- 17

- 00250

- CV , 2018 WL 61 75311, a t *6

- 7 (Tex. App.

— Hous ton [1st Dist.] No v. 27, 2018, pet . denied) ( mem. op.) ( w hen one of the p arties in t he second action was an inter v e nor in the first acti on , the identity

- of

- parties element is met )

.4 agreement s of all owner s, includin g t hose ident ically si tua ted to him and (like him) also part ies to the 2013 lawsuit

. T he doctrine of res judicata exists in la rge measure to prevent results such as this

. R es judicata , however, will appl y t o and bar only a claim the party in the first ac tion was r equired to assert in that action

. 8 If a party has d iscretion not to assert a claim in litigation , then a decision to ref rain from doing so does not operate a s a bar in later litigation. T he Fifth Circui t recently applie d this re asoning to hold that an in terveno r w ho was not required to assert a claim in a law suit was not barred by res jud icat a from asserting the claim in a second suit

. 9
Based on the record presented , the Association did not prove in its summary

judgment motion that R ose nberger ’ s declara tory ju dgm ent claim a gainst the Association was compul sory in the 2013 lawsuit

. T he Association (as def endant) and Rose nberger ( as intervenor) were parties to that action , but their inte rests were aligned initially

. G e ne rally , co
- parties with a ligned int erests are not re quired to

asser t cross
- claims or counterclaims against each other , 10 and neither of them did. H ad the Association asserted a claim against Rosenberger in the 2013 law suit , then Rose n berg er would have been required to assert his d eclaratory judgme nt claim at that time if it arose from the same transaction or occurrence that was the subject matter of the Associa tion ’ s claim against him

. 11 Similarly, had Rose nberger chose n to assert a claim against the Association in the 2013 lawsuit , he would have

8 Inger soll

- Rand Co

. , 997 S.W.2d at 207 ( “ Res judicat a , however, does not b ar a former defendant who assert ed no affirmative claim for relief in an earlier action from stating a claim in
a l ate r action that coul d have been filed as a cross

- claim or counterclaim in the earlier action, unless the cl aim was com pulsory in the earlier action. ” )

. 9 Matter of 3 Star Props., L.L.C. , 6 F.4th 595, 60 7 (5th Ci r. 2021) (citing Ingersoll

- Rand Co. , 997 S .W. 2d at 207 ).

10 See Tex. R. Civ. P. 97(e) (cross

- claim aga inst co

- par ty is permi ssive) ; State & C ty

. Mut. Fire I ns. Co . v. Miller , 52 S.W.3d 693, 696 (Tex. 2001).

11 See Te x. R. Civ. P. 97(a) ; Miller , 52 S.W.3d a t 696

.5 b een required by res judic at a to assert in that a ction all of his claims against the Association arising from the subject matter of the cross

- claim

. 12 But bec ause there were no claims asserted between them in the 201 3 lawsuit , Rosenberger w as not
req uired t o a ssert his declaratory judgment c laim then , and res judic at a does not bar it now.
The rec ord shows that the alignment of interests between the Association and Rosenberger change d during the pend en cy of the 2013 lawsuit due to the Associa tion ’ s N ov ember 2 014 change in directorshi p

. To be sure, a change in directorship of an association that is a party to litigation can result in a change in legal strategy , and that appears to have occurred here

. Clearly, the Associ ation no longer desi red to stand behind the OOTR agreement s afte r November 2 014 , as ref lected by the agreed judgment in the 2013 lawsuit declaring th e agreements void

. Although the alignment of interests be tween R ose n berger and the Association may have ended after Nove m b er 2014 , there is no sum mar y - judgment evidence th at the Associa tion or Rose nberger asserted a claim against the other before judgment. For that reason, Rose nberger ’ s declaratory judgment claim against the Association was not compulsory in the 2013 la wsuit. I ag ree with t he majo rity that res jud icat a wi ll not support the summary judgment.

B. OOTR Agreement
Wh en ruling on a motion for summary judgment, the court considers among other things the “ pleadings ” and “ admissions ” on file at the tim e of the hea ring. 13
J udicial adm issions in an oppo sing party ’ s p leadings may be relied on to support a

12 See Gett y Oil Co. v. Ins. Co. of N. A m , 845 S.W.2d 794, 800 (Tex. 1992)

. 13 See Tex. R. Civ. P. 166a(c).6 summary
- judgment motion. 14 F or summary
- judgment purposes, a movant may
treat the non

- movant ’ s pleaded allegations as truthful judicial admissions

. 15
In his second a mended answer and co unterclaim , Ro senb erger alleged that he prepared the OOTR agreements . He also described the ir basic nature as allow ing owners to “ pre
- pay ” their month ly assessments. According to Ro senberger, u nder the OOTR ’ s terms, “ an owner who prepai d assessments the n

o wes the Associ atio n reduced as sessments or no assessments until the owner is fully reimbursed, with interest. ” Rosenberger alleged that he “ entered into an OOTR with the Association using precisely the same terms and con diti ons as wer e offere d to other ow ners. ” Rosenberger also filed an a ffidavit in response to the Association ’ s summary
- judgment motion. In his affidavit , he restated under oath many of the assertions cont ained in his pleading, such as that an owner who made repairs i n rel iance on the OOTR was prepaying assessments and thus owed reduced ass essments until fully reimbursed . He a verred that he executed an OOTR for his own un it on “ identical terms to all the other OOTR s. ” T he Association was entitled to rely on th ese ass e rtions for summar y - ju dgment purposes , and the trial court was entitled to consider them in ruling on the summary

- ju dgment motion. As its second ground for summary judgment , the Association argued that the OOT R agree ment is void be cause i ts terms affecte d owners ’ monthly asse ssment ob ligations and thus re quired approv al in acco rdance with the Association ’ s condominium declaration (the “ Declaration ” ) , but no approval was obtained

. Rosenberger disp utes these propositions. First, he argu es that it was not

neces sary to amend t h e D eclaration for the Asso ciat ion and owners to e xecute a

14 See Weekley Homes, LLC v. Paniagua , 6 46 S.W.3 d 821, 82 8 (Tex. 2022)

. 15 Regency Field Servs., LL C v. Swift Energy Operating, LLC , 622 S.W. 3d 807, 81 9 (Tex. 2021)

.7 v alid OOTR. I disagree. T he Association attached to its motion certified copies of relev ant ex cerpts of the governin g D e claration

. 16 Article 8.1 (a) state s :
8.1 A MENDMENTS TO DECLARATION; APPROVA L OF OWNERS AND MORTGAGEES.

a. The consent of th e O wn ers of Units to which at least sixty

- sev en percent (67%) of the votes in the Association are allocated and the approval of F irst Mortgagees hol ding mortgages on U nit s which have a t least fifty

- one per ce n t (51%) of the votes of Units
s ubject to mortgages shal l be required to add or amend any provision to this Declaration, including those provisions which provide for, govern or r egul ate an y of the following :

. . . (2) Assessments , assessment liens or su b o rdination of such liens ;

. . . . ( E mphasis added). 17 Further, Article 8.1(e) states :

e. A ny amendment to t he Declaration must be approved by the requisite percentages of o wnership interest at a meeting called b y the Associa tion , so long as such meeti n g is required by law. Should the meeting requirement no t be mandated by law, an amend ment may be effected with the certification by the Secretary of the Association that the n ec e ssary O wner approv al was obtained , o r by o btaining the signatures of the O wn e r s who hold the requi site perc entage ownerships

.

16 Relev ant excerpt s of the D eclaration a re sufficie nt to shift the summary

- judgme nt burde n; it was not necessary for the As sociati on to at tach the entire docume nt. See Wal

- Mart Stores, Inc . v. Xerox State & Loc. Sols., Inc. , 663 S .W.3d 569, 583 (Tex. 2023) ( “ We hold that
s ubmitting the entire c ontract was not necessary to shift the burden to Wal

- Mart to identify other contract langu age, if any, that is necessary to explain, complete, or con textua lize the passages Xerox relied on to support its motion. ” ).

17 T he Property Code also provides that a condominium decl aration may not be amended except at a meeting of the apartment owners at which th e amendment is approve d by the holders of at least 67 percent of the ownersh ip interests. Te x. Prop. Code § 81.111.8 W e interpret declarations governing condominiums in accordance with contract interpretation rules

. 18 Those rules are well

- est abl ished , so I do not repeat them

. The material OOTR terms at issue , as R o se nber ger him self has described the m in his pleadings and under oath , unquestionably purport to add or am end
terms “ providing for, governing, or r egulating ” the owners ’ obligations to pay

assessmen ts

. The refore, ap pro val of those terms in accordance with the As socia tion ’ s D eclaration was r equired.

T he Association contends that approval was not obtained. T h e only
summary
- judgment evidence offered in support of this factual assertion is the verifi ed peti ti on of Ger aldine G. Martis ek , who was a plaintiff i n the 2 013 laws uit. In that pleadin g , Martisek alleged t hat she owns a unit in the Wald en Pond condominium development and is a m ember of the Association . Martisek alleged facts pertain ing direc tly to th e OOTR agre ement s and the absence of appr o val for them . S he stated that s ome or all of the d efendants reportedly ha d entered into
ag reements w ith the Association , which purport to relieve the respective owners of the duty to p ay some or all asses sments

. Further, she asserted that the Associa tio n

“ has not held e ither a meeting of the member s or of the Board o f Directors of [the] Association to approve or authorize any such agreements , and any such agreem ents are contrary to the governing docum ents of th e A ssociation. ” In the verificati o n at the end of the pleadi ng , Martisek swore that she i s an owner of a unit in the condominium development, that she has served on the board of directors, that she has read the p etition , and that every factual st at ement contained in it is wi thin her
perso n al knowledge and is true a n d correct

. Martisek signed the verification before a nota ry public.

18 AMI Ass ’ n Mgmt., I nc. v. Sprecher , No. 01

- 15

- 00791

- CV, 2017 WL 3526762, at *4 (Tex. App.

— Houston [1st Dist.] Aug. 17, 2017, no pe t.) (mem . op.) ; Aghili v. Bank s , 63 S.W.3d 812, 816 (Tex. A pp.

— Houston [14th Dist.] 2001, pet. denied ).9 Although Marti sek ’ s pleading verifies all the f a cts stated within it, the
supreme co urt h as been clear that even ver if i ed pleadings ge nerally are not competen t summary
- judgment evidence. 19 I would urge the su preme c ourt to revisit these cases. In my view, a verified pleading meeting the requirements of an affidavit and rule 166a should be prope rly co nsidered as summary

- j udgmen t evidence . Marti sek ’ s pleading meets all t he requirements of rule 166a. Substantively, m oreover, it is no differen t from an affidavit to the extent i t states facts . Were its factual contents copie d and pasted into a new docum ent a nd sworn before a notary public using the s a me verification language , it would
unque stionably be proper summary
- j udgment proof. We should not deny it legal effectiveness as summary

- j udgment evidence merely because of its title. I question the pract ical utility of requir ing summary
- judgment m ovant s to spend time and resources creating ne w evidence dup lic at ing exist i ng evid ence that already satisf i es summary judgment and evidentiary sta ndard s

. But for the holding s of Hidalgo and L aidlaw Waste Systems , I conclude that the Association

con clusively established that no approval was obtained f or the OOTR agreement in

acco rdance with the D eclaration

. F urther, R o senberger failed to create a genuine and material fact issue on this point. In his summary

- ju dgment response, he asserted that the only other serving board mem ber at the tim e , Susan Ki nder, “ approved the basic con cept of the OOT R

. ” Rose nber ger interpreted his convers ation with Kinder as a meeting of the board. In his affidavit, Rose nberger state d further that Kinder expressly authorized him to p roceed with the OOTR. P resuming the tru th of the se assertions, the e vents and conversations Rosenbe r ger describes do not comply with A rticle 8.1(a) and (e) for amending or adding declaration terms and dut ies regarding

19 Laidlaw Waste Sys., (Dall.), Inc. v. C i ty of Wilmer , 904 S.W .2d 656, 66 0 (Te x. 1995) ; Hidalgo v. Surety Sav. & Loan Ass ’ n , 462 S.W.2d 540, 545 (Tex. 1 971)

.10 mont hly assessments

. Ro sen berger also contended that the OO TR terms were
aut ho rized under the Association ’ s by laws , but the record does n ot show that he attach ed any relevant excerpts of the by laws to his response. Excluding consideratio n of Marti sek ’ s verified pleading, the Association did
not pr esent evidenc e to support it s assertion that the OOTR agr ee ments wer e not approved in acco r dance with the D eclaration. Therefore, the summary judgment cannot rest on this alternative ground.

Ro se n berger ’ s Breach of Fiduciary Duty C ounterc laim
In his second and th ird issues, Rosenbe rger contends the trial court e rred by refusing to sub mit to t he jury his breach of fiduciary duty counter claim in which he

sou ght da mages from the Association for its failure to “ deal with ” alleged water penetration damage to his un it in 2012. Rose nb erge r says the trial court

erro neo u sly ruled that his c ounter c laim was barred by the statute of limitations

. T he majori ty susta in s this issue . I would overrule it because the trial cour t ’ s limitations ruling is correct on the merits

. A four

- year limi tatio ns p er iod applies to a breac h o f fiduciary duty c laim. 20
T he limitations period be gins to run when the cause of action acc rues. 21 A claim for breach of fiduciary du ty accrues when the claimant know s or by or dinary diligence should know of the wrongful act and th e resulting injury. 22
In his live pleading , Rosenberger asserted a counter claim against the Association for breach of fiduciary duty. Rosenberger alleged that, under the Association ’ s by laws, the Association had a fi duciary duty to “ deal with ”

20 Tex. Civ. Prac. & Rem . Code § 16.004( a ) (5)

. 21 Id

. 22 Berry v. Berry , 646 S.W.3d 516, 523

- 24 (Tex. 2022) ; Williard Law Firm, L.P. v. S

e well , 464 S.W.3d 747, 752 (Tex. App.

— Houston [14th Dist.] 2015, no pet.)

.11 Rose n berger ’ s condominium unit “ upon his un it s uffering damage. ” 23 According to Rose n berger, this claim is based on the fa cts that his unit suffered water penetra t ion damage in May 2012, and the Association informed him at that time that it would not or co uld not pay for any rep airs beca use it did not have t he mo ney and it lacked insuranc e

. Assuming this is true, Rosenberger in reasonable dil igence wo uld have or s h ould have known of his injury in May 2012 because he would have known at that time of the phy s ical damage to his unit and of the Asso ciation ’ s lack of insurance or refusal to “ d eal with ” the damage

. Rose nberger did not assert his counter c laim until , at the earliest, July 20, 2016 , more than four
y e ars from the date it accrued. 24 Th us, his fiducia ry du ty counter claim based on al leged May 2012 water pen etration damages is time

- barre d.

Ro senberger argue s alter natively that his counter clai m should be con si dered timely filed under Ci vi l Practice and R e medies Code se ction 16.069. That sectio n provides : (a) If a c o unterclaim or cross claim arises out of the same transaction or occurrence that is the basis of an action, a party to the action m ay file the counterclaim or cross claim even tho ugh as a separate action it would be barred by limitati on on the d a te the par t y’s answer is requir ed. (b) The counterclaim or cross claim must be filed not later than the 30th day after the date on which the party’s answer is required. 25

23 Article XI , section 11 of the by la ws state s that , as part of an ow ner ’ s obligations, each
owner “ irrevocably appo int [s] the Association such person ’ s attorney

- in

- fact to deal with the Own er ’ s Condominium Unit upon its damage , destruction or obsolescen ce or in a pos sible emerge ncy situation

. ” The by laws do not define the phrase “ deal with. ”

24 In his July 20, 2 016 pleadi ng , Rosenberger d id not spec i fically asse rt a “ bre ach of fiduciary duty ” counter claim, but he did c omplai n of water damage and of the Association ’ s alleged failure to prov id e insu rance. His amended c ounterclaim, filed Au gust 18, 2017, assert e d
a coun tercl aim for breach of fid uciary duty.

25 Tex. Civ. P rac. & Rem. Code § 16.069.12 He contends that his counterclaim arose out o f the s ame t ransaction as the Association ’ s claim against him and that he filed his counterclaim w ithin th irty days of the As sociation ’ s suit

. I agree he filed his c ounter claim within the th irty

day window , but I di sagree that his breach of fid uciary duty counter claim ar ose out

o f the same transaction or occurrence that is the basis of the Association ’ s claim agains t him

. Texas courts use a “ logical relationship” test to det ermine whether a counterclaim arise s out of the same transaction or occurrence as an earlier action

. 26 “When the same facts .

. . are significant and l ogically relevant to the various causes of action, the ‘logical relationsh ip’ test is satisfied.” 27 Applyi ng t hi s test here demonstrates that Rosenberger ’ s untimely counterclaim is not sa ved by section 16

. 069. T he Association s ued Rose nberger for breachi ng the cond ominium D eclaration by fail in g to pay his monthly

assessmen ts from 2012 forward

. Facts e ssenti al to this claim are that the D eclaration re q uires all owners to pay assessments and that Rosenberger failed to do so beginning in 2012

. In contrast, Rose nberge r ’ s counter claim against t he Association is for breach of fidu ciary duty

. The source of the al leged duty is A r ticle XI, section 11 of the by laws, which purportedly burdens t he As sociation with a fiduc iary duty to “ deal with ” property dam age to an owner ’ s un it. Facts

e ssent ial to this counterclaim are tha t Rose nber ger suffered water penetration da mages in May 20 12 and that the Associ ation failed to “ deal with ” those damages.

26 See Allen Drilling Acquisition Co. v. Crimson Expl. Oper ating Inc. , 558 S .W.3d 761, 77 5 (Tex. App.

— Waco 2018, pet. denied) ; Commint Tech. S ervs., I nc. v. Quickel , 314 S .W.3d 646, 65 3 (Tex. App.

— Hou ston [14th Dist.] 2010, no pet.) ; Williams v. Nat ’ l Mor tgage Co. , 903 S.W.2d 398, 404 (Tex. App.

— Dallas 1995, writ denied).

27 Will iams , 903 S.W.2d at 404 ; Jack H. Brown & Co. v. Nw. Sign Co. , 718 S.W.2d 3 97, 400 (Tex. App.

— Da llas 1986, writ ref ’ d n.r.e.)

.13 The fact that Rosenberger stop ped paying monthly assessments in 201 2 is

no t rele vant to prove his counterclaim that the Association allegedly failed in its duty to re pair or “ de al with ” water penetration damages to Rosenberger ’ s un it

. Nor is the fact that the Association allegedly failed in its duty to re pair or “ de al wi th ” wat er pen etration damages to Rosenberger ’ s un it in May 2012 relevant to
prove the Association ’ s claim t hat Rosenberger br eached the D ecla ration by failing to pay assessments from 20 12 t o 2 021. These respective facts are not s igni fica ntly and logically releva nt to both claims

. In this circumstance, I conclude the logical relationship test fails. Therefor e, Rosenberger ’ s breach of fiducia ry duty counterclaim does not arise out of th e sa me transaction or occurrence that is the basis of the Association ’ s c laim.
Th e only matter to which all of these facts are relevan t is Rose nberger ’ s affirmative defense of excuse

. A ccording to Rosenberger, h is failure to pay

a ssessments was exc u sed becau se he w as told by the Ass ociation ’ s then

- property
manager that the Association lacked the funds or insurance to cover his dam ages and that he should instead make the repa irs himself and then credit those costs against his a ssess ments. 28 Rosenberger ’ s May 2012 pr o perty damage is relevant to his breach of fiduciary duty cl aim and to his excuse defense ; but it is not significantly or logically relevant to the Association ’ s claim that he breached the D ecla ration by failing to pay as sessments from 20 12 to 202 1. I n rever sing th e judgment , t he majority improperly merges Rose nbe rger ’ s counterclaim w ith his aff irmative defense rather than respecting their distinctiveness

. 29 But under section 16.069 the question is not whether Rose nberger ’ s countercl aim coupled with his

28 Rosenberger s ubmitted h is excuse defense to the jury in question two, but the jury found that his failure to pay assessments was not excused.

29 See I zen v. Laine , 614 S.W.3d 775, 790

- 91 (Tex. A pp.

— Hous ton [14th Dist.] 2020 , pet. denied) ( discussing di ff er ences between claims fo r re lief and affirmative defenses).14 affirmative d efe nse s t ogether arise from the same transaction as the Association ’ s original claim. T he only relevant question is whether Rosenber ger ’ s count erclaim arises out of the same transaction as the Associati on ’ s cl aim against hi m. It do es not

. T he text of section 16.069 will not ac c om m o date a countercl ai m ant ’ s rel iance

on affirmative defense s to save an otherwise expired counterclaim

. Therefore, sectio n 16. 069 is not s atisfied and does not apply

. For these

reas ons, Ros enberger ’ s b rea ch of fiduciary duty counte r claim is barred by limi tations

. I therefore dissent from the maj ority ’ s contrary holding

. 30
I would overrule Rosenberger ’ s second an d third issues and hold that his breach of fiduciary duty counter claim to recover for 201 2 w ater damage cannot be a part of any proceedings on remand.

/s/ K evin Jewell Ju stice

Panel consists of Ju stices Jewell, Bourliot, and Zimmerer (Bourliot, J., majority)

.

30 While a motion in limine is not the correct procedur al mechanism to d ecide an affirmati ve defense such as limi tations, see Barra za v. Koliba , 933 S.W. 2d 164, 166 (Tex. App.

— San An t onio 1996, writ denie d ) (op. on reh ’ g) (discussing court of appeals ’ prior ruling that trial court erred in rul ing on affirmative defense of limitations duri ng motion in limine hearing withou t having a proper pre
- tria l motion before it or requiring proof ) , Rosenberge r raises
n o complaint about proce dure in his brief. He challenges the mer its of the ruling , and the parties do not ap pear to contend that any fac tual dispute s exist

.