Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-25-00697-CV
Michael BERMAN,
Appellant
v.
Brooke ROGAN,
Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 24-17883
Honorable Albert D. Pattillo, III, Judge Presiding
Opinion by: Velia J. Meza, Justice
Sitting: Lori I. Valenzuela, Justice
Adrian A. Spears II, Justice
Velia J. Meza, Justice
Delivered and Filed: October 7, 2026
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
Michael Berman sued Brooke Rogan for assault by offensive contact and intentional
infliction of emotional distress based on conduct that Berman alleges occurred at a Fredericksburg
bar in January 2024. After seven months of litigation, Rogan moved for no-evidence summary
judgment. The trial court granted the motion, later awarded Rogan attorney’s fees, and denied
Berman’s motion for reconsideration. Berman raises three issues on appeal: whether summary
judgment was proper, whether the trial court erred by denying his motion for reconsideration
04-25-00697-CV
without a hearing, and whether the attorney’s fee award can stand. We affirm the summary
judgment on the intentional-infliction claim, reverse the summary judgment on the assault claim,
reverse the attorney’s fee award, and remand for further proceedings.
BACKGROUND
Berman and Rogan met at the Velvet Lounge in Fredericksburg on January 7, 2024.
Berman alleges that during their encounter Rogan kissed him without consent, grabbed his belt,
and placed her hand down his pants, and that he pushed her away and left the bar. In July 2024, he
sued Rogan asserting claims for assault by offensive contact and intentional infliction of emotional
distress. Rogan filed a general denial in October 2024.
On February 20, 2025, Rogan filed a no-evidence motion for summary judgment
challenging every element Berman’s assault and intentional-infliction of emotional distress claims.
Berman responded on March 6, 2025. His response included his own affidavit and a chart note
from Dr. Mark Eden, a Fredericksburg physician whom Berman consulted after the incident. The
affidavit tracks the pleaded facts and also states that he consulted Dr. Eden to address anxiety,
emotional distress, and depression which he attributes to Rogan’s conduct. Rogan filed a reply on
May 5, 2025, objecting to portions of the affidavit and to Dr. Eden’s note.
The trial court heard the motion on May 6, 2025. The following day, the court signed an
order granting the motion. The order recites that the court “reviewed the pleadings and evidence”
and concludes that there is “no evidence” of “one or more essential elements” of Berman’s causes
of action. Rogan then moved for attorney’s fees, seeking $17,167.50 “based on a frivolous filing
of the lawsuit.”
Berman’s original trial counsel withdrew on May 22, 2025, and new counsel appeared on
May 29, 2025. On May 30, 2025, Berman filed a motion for reconsideration of the summary-2-04-25-00697-CV
judgment ruling, supported by affidavits from three additional witnesses describing similar past
conduct by Rogan. The trial court heard the fee motion the same day. At the hearing, Rogan’s
counsel testified without being sworn; when opposing counsel raised the point, the trial court
advised that officers of the court “don’t need to be sworn.” Rogan’s fee affidavit was admitted as
Respondent’s Exhibit A. Rogan’s counsel conceded on the record that “this underlying tort doesn’t
give me statutory grounds for attorney’s fees” and argued Rule 13 sanctions as the basis for the
award. The trial court itself observed on the record that granting a no-evidence summary judgment
“does not necessitate a finding of frivolity.” Nevertheless, the court signed a final order deeming
Berman’s lawsuit frivolous “based on Plaintiff having no evidence to sustain his cause of action”
and awarded Rogan $17,167.50. The court also denied Berman’s reconsideration motion. This
appeal followed.
DISCUSSION
1 Adequate time for discovery
Berman first argues that the trial court should not have entertained Rogan’s no-evidence
motion because he had not had an adequate time for discovery.
A party who claims that a no-evidence summary judgment was heard before an adequate
time for discovery must file either a verified motion for continuance or an affidavit under Rule
166a(g) describing the evidence sought, its materiality, and the diligence used to obtain it. TEX. R.
CIV. P. 166a(g); 1 Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). Berman
filed neither; instead, his counsel announced “ready” when the trial court called the motion.
1
Rule 166a was recently rewritten. See Final Approval of Amendments to Rule 166a of the Texas Rules of Civil Procedure, Misc. Docket No. 26-9012 (Tex. Feb. 27, 2026). These amendments apply only to motions for summary judgment filed on or after March 1, 2026. Id. 3. The rewrite is not intended to substantively change the law, but the new rule has a different paragraph structure. Because Rogan’s motion for summary judgment was filed prior to March 1, 2026, all citations in this opinion are to the paragraph structure of the prior rule.
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Berman raised the adequate-time question in the body of his written response and again at the
summary-judgment hearing, but he did not file anything—in the form the rule requires—showing
what evidence he needed additional time to obtain, why it mattered, or why he could not have
obtained the evidence sought through diligence. See Tenneco, 925 S.W.2d at 647. Berman failed
to preserve error. We therefore overrule his first issue in part.
2 Summary judgment on assault and intentional-infliction claims
Berman’s first issue also challenges the merits of the summary judgment. We review a noevidence summary judgment de novo, taking the nonmovant’s evidence as true and drawing every
reasonable inference in the nonmovant’s favor. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600–
01 (Tex. 2004); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). The trial
court must grant the motion unless the nonmovant produces more than a scintilla of evidence
raising a genuine issue of material fact on each challenged element. TEX. R. CIV. P. 166a(i); King
Ranch, 118 S.W.3d at 751. More than a scintilla exists when the evidence would enable reasonable
and fair-minded people to differ in their conclusions. Ridgway, 135 S.W.3d at 601.
2.1 Assault by offensive contact
Assault by offensive contact is a form of common-law battery. 2 City of Watauga v. Gordon,
434 S.W.3d 586, 589–90 (Tex. 2014). A defendant is liable when she intentionally causes physical
contact with another that she knows or should reasonably believe the other will regard as offensive
2
Under the Penal Code, the common-law actions of assault and battery are addressed simply as assault, and the elements are the same in civil and criminal cases. TEX. PENAL CODE § 22.01(a)(1), (3); Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012); Baribeau v. Gustafson, 107 S.W.3d 52, 60–61 (Tex. App.—San Antonio 2003, pet. denied). We use “assault by offensive contact” to describe the cause of action Berman pleaded. See Manka v. Acosta, No. 04-25-00089-CV, 2026 WL 1326508, at *2 (Tex. App.—San Antonio May 13, 2026, pet. filed) (mem. op.).
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or provocative—that is, contact that offends a reasonable sense of personal dignity. Id. at 590;
Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex. 1967); RESTATEMENT (SECOND)
OF TORTS §§ 13, 18 (A.L.I. 1965). Rogan’s motion challenged every element.
According to Berman’s affidavit, he and Rogan were at the Velvet Lounge. Without
warning, Rogan approached his table, sat on his lap, kissed him on the neck and lips, and shoved
her tongue into his mouth. In response, Berman pushed her away; however, Rogan grabbed him
by the belt, pulled him toward her, put her hand down the front of his pants, and groped him. He
pushed her away a second time and left the bar. The experience, Berman says, caused him anxiety,
disrupted his sleep, and led him to seek treatment.
Rogan argues we should disregard Berman’s account. Berman’s affidavit, she argues, is
conclusory, and Dr. Eden’s note is inadmissible hearsay. Both objections were raised in her
summary-judgment reply and again orally at the hearing, but the trial court never ruled on either.
While the order granting summary judgment recites only that the court “reviewed the pleadings
and evidence.” A recitation that the trial court reviewed the evidence is not a ruling on objections
to it. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 165–66 (Tex. 2018) (per curiam). Whether the
absence of a ruling waives Rogan’s objections turns on the distinction between form and substance.
Id. at 164, 166. A party who complains that summary-judgment evidence is defective in form must
object and obtain a written ruling. Id. at 165–66; Well Sols., Inc. v. Stafford, 32 S.W.3d 313, 317
(Tex. App.—San Antonio 2000, no pet.). An objection to the substance of summary-judgment
evidence—that the evidence is legally incompetent, not merely improperly presented—may be
raised for the first time on appeal. Seim, 551 S.W.3d at 164.
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Hearsay is a defect of form. See id. at 164; Well Sols., 32 S.W.3d at 317. Rogan objected
to Dr. Eden’s note as hearsay, obtained no ruling, and did not except to the failure to rule. Her
hearsay objection was, therefore, waived. Seim, 551 S.W.3d at 166.
An objection that an affidavit is conclusory, by contrast, goes to substance. A summaryjudgment affidavit must be made on personal knowledge, must set forth facts that would be
admissible in evidence, and must show that the affiant is competent to testify. TEX. R. CIV. P.
166a(f). An affidavit from an interested witness satisfies Rule 166a(c) when it is “clear, positive
and direct, otherwise credible and free from contradictions and inconsistencies, and could have
been readily controverted.” TEX. R. CIV. P. 166a(c). Conclusory statements—those unsupported
by underlying facts—do not qualify. Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)
(per curiam).
Berman’s affidavit is not conclusory. He speaks from personal knowledge and describes
his interaction with Rogan in specific, factual terms. Rogan may readily controvert each factual
assertion. Whether Berman’s word should be believed over Rogan’s is a credibility determination
that cannot be adjudicated on summary judgment and is instead reserved for the trier of fact. State
v. Durham, 860 S.W.2d 63, 66 (Tex. 1993).
The operative question, then, is whether Berman’s evidence raises a fact issue on the
challenged elements of common-law assault. Rogan’s briefing focuses on scienter and injury:
whether she knew or reasonably should have known the contact would be offensive, and whether
there is any evidence that Berman was harmed. We address each in turn.
Scienter
Assault by offensive contact requires that the defendant intentionally or knowingly make
physical contact with the plaintiff when the defendant knew or reasonably should have believed
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the plaintiff would regard the contact as offensive or provocative. TEX. PENAL CODE § 22.01(a)(3);
Watauga, 434 S.W.3d at 590; Loaisiga, 379 S.W.3d at 256. A plaintiff may establish the
defendant’s mental state by circumstantial evidence. La.-Pac. Corp. v. Andrade, 19 S.W.3d 245,
246–47 (Tex. 1999); Manka, 2026 WL 1326508, at *3.
According to Berman’s affidavit, Rogan approached his table without invitation, kissed
him, and after being pushed away, put her hand down his pants. A reasonable factfinder could infer
the contact was unwelcome and could further infer from Rogan’s escalation after that push—in a
public bar, no less—that Rogan knew or reasonably should have known the further contact would
be regarded as offensive or provocative. See Manka, 2026 WL 1326508, at *3–4 (concluding that
circumstantial evidence, including the circumstances surrounding the touching, supported the
jury’s finding on scienter). Berman therefore raised a fact issue on scienter.
Injury
Rogan’s injury argument misstates the essential elements of assault by offensive contact.
The tort protects personal dignity, and the offensive touching itself is the wrong. Fisher, 424
S.W.2d at 630. Proof of physical injury is not an element. Watauga, 434 S.W.3d at 590. Rogan’s
no-evidence motion therefore attacked something Berman never had to prove. See Hockman v.
Rogers, No. 12-09-00441-CV, 2010 WL 2784435, at *3 (Tex. App.—Tyler July 14, 2010, no pet.)
(mem. op.) (holding that “injury or damages is not an essential element of . . . assault by offensive
contact” and reversing a no-evidence summary judgment granted on that ground). 3
3
Nominal damages would be available even had the touching caused Berman no discernible harm at all. Flanagan v. Womack, 54 Tex. 45, 51 (1880) (“It is a general rule, that for every unlawful trespass the injured party is entitled to at least nominal damages.”); see also Hockman, 2010 WL 2784435, at *3 (applying this principle to a modern claim for assault by offensive contact); see generally W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 6, at 30 (5th ed. 1984) (explaining that the common-law writ of trespass historically encompassed the intentional torts of battery, assault, and false imprisonment).
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Fisher rejected an argument much like Rogan’s. Emmit Fisher, a NASA mathematician,
attended a professional luncheon at a Houston hotel club. Fisher, 424 S.W.2d at 628. As Fisher
stood in the buffet line, the club’s manager snatched the plate from his hand and shouted that Fisher
could not be served in the club because he was (in the manager’s words) “a Negro.” Id. at 628–29.
Fisher was not physically touched and testified to no fear or apprehension of physical injury; he
testified only that the manager’s conduct humiliated him in the presence of his colleagues. Id. at
629. The Supreme Court of Texas held that grabbing Fisher’s plate in an offensive manner was a
battery, and that Fisher could recover damages for mental suffering—even in the absence of any
physical injury—because “the basis of [common-law battery] is the unpermitted and intentional
invasion of the plaintiff’s person and not the actual harm done to the plaintiff’s body.” Id. at 630.
Like Mr. Fisher, Berman did not point to evidence of any physical injury. Instead, he
attested that Rogan’s offensive contact caused him anxiety, disrupted his sleep, and led him to
consult Dr. Eden. This is more than a scintilla of evidence of harm. See King Ranch, 118 S.W.3d
at 751. The severity of that harm and what compensation may be due are questions reserved for
the factfinder.
We conclude Berman produced more than a scintilla of evidence on each challenged
element of assault by offensive contact. The trial court therefore erred by granting summary
judgment on the assault claim. We sustain Berman’s first issue as to that claim.
2.2 Intentional infliction of emotional distress
The intentional-infliction claim is a different matter. Rogan’s motion challenged every
element, and the trial court’s order granting it does not specify the ground on which it relied. We
must therefore affirm on any ground Rogan raised that is meritorious. Provident Life & Accident
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Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); FM Props. Operating Co. v. City of Austin,
22 S.W.3d 868, 872 (Tex. 2000).
Intentional infliction of emotional distress is available only where the defendant
intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other
recognized theory of redress. Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex.
2004); Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998). Where the
gravamen of the plaintiff’s complaint sounds in another tort, the intentional-infliction claim cannot
lie—even if the plaintiff cannot ultimately recover on the alternative theory. Zeltwanger, 144
S.W.3d at 447–48; Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005). The
availability of another remedy is fatal. Creditwatch, 157 S.W.3d at 816.
Rogan’s no-evidence motion squarely challenged the no-alternative-cause-of-action
element. Berman’s response addressed the extreme-and-outrageous and severe-distress elements
at length but offered no evidence that his intentional-infliction claim rests on conduct distinct from
the contacts that support his assault claim. His own affidavit ties the emotional distress directly to
the same conduct that supports the assault. Because the gravamen of Berman’s complaint sounds
in assault, he cannot show that he has no other recognized theory of redress. Creditwatch, 157
S.W.3d at 816. Our reversal of summary judgment on the assault claim only confirms the point:
the emotional distress Berman describes is compensable as another recognized tort. The trial court
correctly granted summary judgment dismissing this claim. We overrule the remainder of
Berman’s first issue.
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3 Attorney’s fees
Berman’s third issue attacks the $17,167.50 in attorney’s fees awarded by the trial court.
We review an award of Rule 13 sanctions for abuse of discretion. Nath v. Tex. Children’s Hosp.,
446 S.W.3d 355, 361 (Tex. 2014) (citing Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007)). A trial
court abuses its discretion when it acts without reference to guiding rules or principles or when the
record contains no evidence to support its findings. Low, 221 S.W.3d at 614.
Rule 13 was the only ground Rogan asserted for the recovery of attorney’s fees. This rule
authorizes sanctions only where the trial court, after notice and hearing, finds that the challenged
pleading is both (1) groundless and (2) either brought in bad faith or brought for the purpose of
harassment. TEX. R. CIV. P. 13; Nath, 446 S.W.3d at 362–63. The rule further requires that “[n]o
sanctions under this rule may be imposed except for good cause, the particulars of which must be
stated in the sanction order.” TEX. R. CIV. P. 13. These particulars enable appellate courts to review
the order for an abuse of discretion. Rudisell v. Paquette, 89 S.W.3d 233, 237 (Tex. App.—Corpus
Christi–Edinburg 2002, no pet.).
Here, the trial court’s sanctions order supplies none of what Rule 13 requires. It states that
Berman’s suit was frivolous “based on Plaintiff having no evidence to sustain his cause of action.”
Rule 13 defines a groundless pleading as one with “no basis in law or fact and not warranted by
good faith argument for the extension, modification, or reversal of existing law.” TEX. R. CIV. P.
13. Losing a no-evidence summary judgment is not, without more, groundless under Rule 13. A
plaintiff whose evidence turns out to fall short of raising a fact issue has not necessarily filed a
pleading with no basis in law or fact. The trial court itself said as much on the record: granting a
no-evidence summary judgment “does not necessitate a finding of frivolity.” The order gives no
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other explanation for the groundlessness finding. The order also contains no finding that Berman
brought his suit in bad faith or for the purpose of harassment.
Rule 13 requires specific findings to appear in the written order. GTE Commc’ns Sys. Corp.
v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993); Alejandro v. Robstown Indep. Sch. Dist., 131 S.W.3d
663, 670 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.). Because the sanctions order lacks
the necessary findings, we conclude the trial court abused its discretion by awarding Rule 13
sanctions. 4 Low, 221 S.W.3d at 614. We sustain Berman’s third issue. 5
CONCLUSION
We affirm the trial court’s summary judgment on Berman’s intentional-infliction-ofemotional-distress claim. We reverse the trial court’s summary judgment on Berman’s assault
claim and the trial court’s award of attorney’s fees. We remand for further proceedings consistent
with this opinion.
Velia J. Meza, Justice
4
Rogan does not defend the award as an exercise of the trial court’s inherent power to sanction. However, inherentpower sanctions similarly require a finding of bad faith and thus such a sanction would constitute an abuse of discretion in the exact same manner. Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 717 (Tex. 2020). 5
We need not reach Berman’s second issue—that the trial court erred by denying his motion for reconsideration without a hearing. See TEX. R. APP. P. 47.1. Sustaining that issue would afford Berman no greater relief on the assault claim or the fee award, both of which we reverse. And even if we sustained the issue and considered the additional evidence attached to his motion, the affidavits go to the extreme-and-outrageous element of the intentional-infliction claim, not to the element on which that claim fails as a matter of law: the unavailability of redress through another recognized tort.
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