Reported / Citable
Background
Michael Berman sued Brooke Rogan over an encounter at a Fredericksburg bar in January 2024. He alleged that Rogan kissed him without consent, grabbed his belt, put her hand down his pants, and groped him after he pushed her away. He asserted assault by offensive contact and intentional infliction of emotional distress.
Rogan moved for no-evidence summary judgment on both claims. Berman responded with his affidavit describing the encounter and a physician’s note concerning anxiety, emotional distress, and depression. The trial court granted summary judgment, later deemed the lawsuit frivolous, and awarded Rogan $17,167.50 in attorney’s fees under Texas Rule of Civil Procedure 13.
The Court’s Holding
The court affirmed dismissal of the intentional-infliction-of-emotional-distress claim. That tort is a gap-filler available only when no other recognized claim provides redress. Berman’s claimed distress arose from the same conduct underlying his assault claim, so assault supplied an alternative theory of recovery.
But the court reversed summary judgment on assault by offensive contact. Berman’s detailed affidavit was competent evidence, and a factfinder could infer from the alleged uninvited contact and Rogan’s escalation after Berman pushed her away that she knew or should have known the contact was offensive. Physical injury is not an element of that tort. The court also reversed the fee award because the Rule 13 order did not find bad faith or harassment and treated the lack of evidence alone as establishing frivolity.
Key Takeaways
- A plaintiff’s firsthand, fact-specific affidavit can create a fact issue on offensive-contact assault.
- Offensive-contact assault protects personal dignity; physical injury is not required.
- Rule 13 sanctions require written findings of groundlessness plus bad faith or harassment; losing a no-evidence summary judgment is not enough.
Why It Matters
The decision reinforces that credibility disputes over alleged unwanted touching generally belong to the factfinder, not summary judgment. It also underscores the narrow role of intentional infliction of emotional distress when a conventional tort addresses the same conduct.
For sanctions practice, the opinion emphasizes that a court must make the findings Rule 13 requires and cannot equate an unsuccessful claim with a frivolous pleading.