CROSSOVER: No-Evidence Defeat Does Not Equal Frivolous Filing: Rule 13 Sanctions Require Separate Proof in Family-Related Litigation

Berman v. Rogan, 04-25-00697-CV, October 07, 2026.

On appeal from 216th Judicial District Court, Gillespie County, Texas

Synopsis

A no-evidence summary judgment does not, standing alone, establish that the losing party’s pleading was groundless when filed or brought in bad faith or for harassment under Texas Rule of Civil Procedure 13. Because the trial court based its attorney’s-fee award solely on the plaintiff’s asserted lack of evidence, the Fourth Court of Appeals reversed the award and remanded while separately resolving the merits of the challenged tort claims.

Relevance to Family Law

The distinction between merits failure and sanctionable pleading is particularly important in divorce, conservatorship, possession, enforcement, and property litigation, where disputed events often depend on party testimony, credibility determinations, incomplete records, or evidence developed after filing. A family-law claim or counterclaim may fail at summary judgment, trial, or an evidentiary hearing without having been groundless when filed. Counsel seeking Rule 13 sanctions must separately prove the rule’s requirements, while counsel opposing sanctions should insist that the court evaluate the pleading based on the circumstances existing when it was filed—not merely the eventual disposition of the claim.

Case Summary

Fact Summary

Michael Berman sued Brooke Rogan for assault by offensive contact and intentional infliction of emotional distress arising from an encounter at a Fredericksburg bar. Berman alleged that Rogan kissed and touched him without consent. After approximately seven months of litigation, Rogan filed a no-evidence motion for summary judgment challenging the elements of both claims.

Berman responded with his affidavit describing the encounter and a physician’s chart note concerning treatment he sought afterward. Rogan objected that portions of the evidence were conclusory and that the chart note was hearsay, but the trial court did not expressly rule on those objections. The court granted no-evidence summary judgment on both claims.

Rogan then requested $17,167.50 in attorney’s fees on the ground that the suit was frivolous. Her counsel acknowledged that the underlying tort claims did not independently authorize a fee award and relied instead on Rule 13. Although the trial court observed during the hearing that a no-evidence summary judgment did not necessarily establish frivolousness, its final order deemed the suit frivolous “based on Plaintiff having no evidence to sustain his cause of action” and awarded the requested fees.

Berman also moved for reconsideration and submitted affidavits from additional witnesses. The trial court denied reconsideration, and Berman appealed the summary judgment, the reconsideration ruling, and the attorney’s-fee award.

Issues Decided

• Whether Berman preserved a complaint that the no-evidence motion was heard before an adequate time for discovery.
• Whether Berman produced more than a scintilla of evidence supporting his assault-by-offensive-contact claim.
• Whether Berman produced sufficient evidence supporting his intentional-infliction-of-emotional-distress claim.
• Whether the trial court erred in its treatment of Berman’s motion for reconsideration.
• Whether Rule 13 supported an attorney’s-fee sanction based solely on the plaintiff’s failure to produce sufficient evidence to defeat no-evidence summary judgment.
• Whether evidentiary objections to Berman’s summary-judgment proof were preserved or could be considered on appeal.

Rules Applied

Under former Rule 166a(i), a party moving for no-evidence summary judgment must identify the challenged elements of the nonmovant’s claims. The nonmovant must then produce more than a scintilla of evidence raising a genuine issue of material fact on each challenged element. Appellate review is de novo, with the reviewing court taking the nonmovant’s evidence as true and drawing reasonable inferences 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).

A party contending that a no-evidence motion was heard before an adequate time for discovery must ordinarily file a verified motion for continuance or a Rule 166a(g) affidavit explaining the evidence sought, its materiality, and the diligence used to obtain it. Merely raising the issue in a response or at the hearing does not satisfy that preservation requirement. Tenneco Inc. v. Enterprise Products Co., 925 S.W.2d 640, 647 (Tex. 1996).

Defects in the form of summary-judgment evidence—including hearsay objections—generally require an objection and an express or implicit ruling. Substantive defects, such as a contention that an affidavit is conclusory, may be raised on appeal. A recital that the trial court reviewed the pleadings and evidence does not itself constitute a ruling on evidentiary objections. Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 164–66 (Tex. 2018) (per curiam).

Assault by offensive contact requires intentional physical contact that the actor knows or reasonably should believe the other person will regard as offensive or provocative. The required mental state may be established through circumstantial evidence. See City of Watauga v. Gordon, 434 S.W.3d 586, 589–90 (Tex. 2014); Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012).

Rule 13 authorizes sanctions when a pleading, motion, or other paper is both groundless and brought in bad faith or for the purpose of harassment. “Groundless” is evaluated objectively according to the facts and law reasonably available when the challenged paper was filed. Pleadings are presumed to have been filed in good faith, and the party seeking sanctions bears the burden of overcoming that presumption. A later loss on the merits does not, without additional evidence and findings, establish Rule 13’s separate elements.

Application

Berman did not file a verified motion for continuance or a Rule 166a(g) affidavit identifying the discovery he still needed, explaining why it was material, and showing diligence. His counsel also announced ready at the summary-judgment hearing. The court therefore concluded that he had not preserved his adequate-time-for-discovery complaint.

On the assault claim, Berman’s affidavit described the alleged physical contact in specific factual terms. The affidavit was based on personal knowledge and was capable of being controverted. It was therefore not substantively conclusory merely because Berman was an interested witness. Any conflict between his account and Rogan’s position implicated credibility, which could not be resolved through no-evidence summary judgment.

Rogan’s hearsay objection to the physician’s note concerned a defect of form. Because the trial court did not rule on the objection and Rogan did not obtain a ruling, that objection was not preserved. The court accordingly evaluated the summary-judgment record under the governing preservation rules rather than treating every objection raised in a reply or at the hearing as sustained.

Taking Berman’s affidavit as true, a reasonable factfinder could infer that the alleged contact was intentional and that Rogan knew or reasonably should have known it would be regarded as offensive. The affidavit therefore supplied more than a scintilla of evidence on the assault-by-offensive-contact claim. The court reached a different conclusion as to intentional infliction of emotional distress and affirmed summary judgment on that cause of action.

The attorney’s-fee award presented a separate inquiry. The trial court’s order tied frivolousness to Berman’s purported lack of evidence to sustain his causes of action. That reasoning improperly converted a merits determination under Rule 166a into a Rule 13 sanctions finding.

Rule 13 focuses on the pleading’s legal and factual basis when filed and additionally requires proof of bad faith or a purpose to harass. The failure to marshal sufficient summary-judgment evidence months later does not itself prove either that the original pleading was groundless when filed or that the pleading was filed with the state of mind required by Rule 13. Because the fee award rested solely on the perceived evidentiary deficiency, it could not stand.

Holding

The court affirmed the rejection of Berman’s adequate-time-for-discovery argument because he did not preserve it through a verified continuance motion or Rule 166a(g) affidavit.

The court reversed the no-evidence summary judgment on assault by offensive contact. Berman’s fact-specific affidavit constituted more than a scintilla of evidence, and credibility disputes could not be resolved against him at the summary-judgment stage.

The court affirmed the summary judgment on intentional infliction of emotional distress, concluding that the summary-judgment record did not require reversal of the disposition of that claim.

The court rejected the appellate challenge concerning denial of reconsideration and left the trial court’s ruling intact, subject to the court’s separate reversal of summary judgment on the assault claim.

The court reversed the $17,167.50 attorney’s-fee award. A no-evidence summary judgment does not, by itself, prove that a pleading was groundless when filed or that it was brought in bad faith or for harassment as required by Rule 13. The sanctions issue was remanded for further proceedings consistent with the opinion.

Practical Application

In family-law litigation, a Rule 13 request should not be presented as an automatic consequence of prevailing on a dispositive motion. The sanctions record must address what information was reasonably available when the challenged pleading was filed, why that information left the pleading without a legal or factual basis, and what admissible evidence satisfies Rule 13’s additional requirement of bad faith or harassment.

The same distinction applies when a court rejects allegations supporting a modification, enforcement action, reimbursement claim, separate-property theory, fraud claim, or request for a disproportionate division. Failure of proof may support judgment against the proponent, but it does not automatically support attorney’s fees under Rule 13.

Counsel defending against sanctions should separate the merits record from the sanctions record. Emphasize the presumption of good faith, the filing-date perspective, the absence of evidence addressing Rule 13’s mental-state component, and any failure by the movant to identify the particular pleading or statement challenged.

This case also reinforces summary-judgment preservation rules. A family-law litigant who needs discovery to respond to a no-evidence motion should not rely on an argument embedded in the response. File the required verified motion or affidavit, identify the specific discovery needed, explain its materiality, document diligence, and obtain a ruling.

Finally, evidentiary objections require disciplined handling. Objections to form ordinarily must be presented and ruled upon. Counsel should obtain a written ruling or a clear ruling on the record rather than assuming the summary-judgment order implicitly resolved every objection.

Checklists

Seeking Rule 13 Sanctions

• Identify the exact pleading, motion, or paper challenged.
• Establish why the challenged filing was groundless under the facts and law reasonably available when it was filed.
• Present evidence separate from the ultimate merits disposition.
• Address the presumption that pleadings are filed in good faith.
• Prove bad faith or a purpose to harass; do not rely solely on failure of proof.
• Provide fair notice of the specific sanctionable conduct and the legal basis for sanctions.
• Request an evidentiary hearing when disputed facts bear on the Rule 13 inquiry.
• Ask the court to state the particulars supporting any sanction in its order.
• Segregate sanction-related fees from fees incurred on claims for which fees are unavailable.
• Confirm that the sanction imposed is directly related to the conduct established in the sanctions record.

Opposing Rule 13 Sanctions

• Object if the movant equates an adverse ruling with a groundless filing.
• Focus the court on the information available when the challenged pleading was signed and filed.
• Identify the factual investigation and legal authorities supporting the pleading at filing.
• Invoke Rule 13’s presumption of good faith.
• Challenge the absence of evidence proving bad faith or a purpose to harass.
• Require the movant to identify the particular paper and statements allegedly subject to sanctions.
• Object to conclusory testimony or argument offered as proof.
• Preserve due-process objections concerning notice and an opportunity to respond.
• Request findings specifying the conduct and evidence supporting each Rule 13 element.
• Challenge any fee affidavit that fails to establish necessity, reasonableness, causation, or segregation.

Responding to a No-Evidence Motion

• Confirm that adequate time for discovery has passed.
• If additional discovery is needed, file a verified continuance motion or the affidavit required by the applicable version of Rule 166a.
• Identify the specific discovery sought and the challenged element it addresses.
• Explain why the discovery is material.
• Document prior discovery efforts and diligence.
• Respond separately to every challenged element.
• Use specific, admissible facts rather than legal conclusions.
• Ensure affidavits demonstrate personal knowledge and witness competence.
• Obtain rulings on objections to the opponent’s summary-judgment evidence.
• Do not announce ready without considering the effect on an inadequate-time-for-discovery complaint.

Preserving Summary-Judgment Evidence Issues

• Distinguish defects of form from defects of substance.
• Make form objections clearly and specifically.
• Secure a written or on-the-record ruling on each form objection.
• Object to the trial court’s failure to rule when necessary.
• Do not assume a statement that the court “reviewed the evidence” resolves objections.
• Confirm that affidavits contain underlying facts rather than unsupported conclusions.
• Preserve the complete motion, response, reply, exhibits, objections, and rulings in the appellate record.

Citation

Berman v. Rogan, No. 04-25-00697-CV, ___ S.W.3d ___, slip op. (Tex. App.—San Antonio Oct. 7, 2026, no pet. h.).

Full Opinion

Read the full opinion

Family Law Crossover

The crossover rule is procedural: a merits ruling under Rule 166a and a sanctions ruling under Rule 13 require different proof and answer different questions. A no-evidence summary judgment asks whether the nonmovant produced evidence raising a genuine issue of material fact on the challenged claim elements. Rule 13 asks whether a particular pleading or paper was groundless based on the circumstances existing when it was filed and whether it was also brought in bad faith or for harassment.

That distinction can arise when a party seeks summary judgment against a family-law-related tort, property, reimbursement, enforcement, or post-divorce claim and then requests attorney’s fees as sanctions. The court must conduct the Rule 13 analysis independently, afford appropriate notice and an opportunity to be heard, evaluate the challenged filing from the filing-date perspective, and make findings supported by a sanctions record. The failure to defeat a no-evidence motion may resolve the claim, but it cannot substitute for proof of Rule 13’s additional requirements.

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