Sanchez v. Striever

• Decision Date: 22 September 2020
• Docket Number: NO. 14-19-00449-CV,14-19-00449-CV
• Parties: Orlando SANCHEZ, Appellant v. Steve STRIEVER, Appellee
• Court: Texas Court of Appeals

614 S.W.3d 233

Orlando SANCHEZ, Appellant

v.Steve STRIEVER, Appellee

NO. 14-19-00449-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed September 22, 2020

Kevin Jewell, Justice

Appellant Orlando Sanchez appeals a final order dismissing his claim for "assault by offensive physical contact" under Texas Rule of Civil Procedure 91a and the Texas Citizens Participation Act ("TCPA").¹ Sanchez asserts that dismissal based on rule 91a was error because his claim has a basis in law and fact. Separately, Sanchez challenges dismissal under the TCPA because the act does not apply to his claim. In a third issue, Sanchez conditionally asks us to reverse the attorney-fee award in appellee's favor.

We reverse and remand.

Background

Appellee Steve Striever poured water on Sanchez's head while Sanchez addressed the media and others during a press conference. Sanchez sued Striever, asserting a single cause of action for "assault by offensive physical contact." Sanchez sought "all damages recognizable by law," including mental anguish and exemplary damages.

Striever filed a motion to dismiss under the TCPA. He later amended the motion to add a request to dismiss under rule 91a. Striever argued that dismissal under rule 91a was proper because Sanchez's assault claim had no basis in law or fact. Additionally, he argued that the TCPA required dismissal because Sanchez's assault claim was based on, related to, or in response to Striever's exercise of his rights of free speech and association, and that Sanchez could not present prima facie proof of each essential element of his claim.

Sanchez filed a response, in which he urged among other things that the TCPA is inapplicable because the lawsuit seeks redress for assault, and Striever did not show that Sanchez's assault claim is "based on, relate[d] to, or is in response to" Striever's exercise of the rights to speak or associate freely. Sanchez's response did not mention rule 91a. Neither Striever nor Sanchez filed any affidavits with the amended motion to dismiss or the response.

The trial court held a hearing on Striever's amended motion to dismiss, but only on the TCPA ground.² Neither party submitted evidence at the hearing, which concluded without a ruling; however, the trial court invited supplemental briefing from both parties addressing how Sanchez's suit implicated Striever's First Amendment rights relative to the TCPA and how Sanchez's claim for "assault by offensive physical contact" is distinct from physical assault. The court stated that it would rule without an additional hearing after receiving supplement briefs.

Both Striever and Sanchez filed supplemental briefs. In relevant part, Striever argued that the act of pouring water on Sanchez was an exercise of his right of free speech and his right to associate with a group of protesters. He further contended that Sanchez had failed to establish by clear and specific evidence a prima facie case for each essential element of his claim. Sanchez in turn filed a supplemental brief, in which he reiterated that Striever's act of pouring water was not protected by the First Amendment and, alternatively, that prima facie evidence supported his claim, assuming the TCPA applies. Sanchez attached a video of the incident, which he contended established the elements of his assault claim. Striever did not object to the video and filed a supplemental reply citing it. A copy of the video is contained in our record.

The video is approximately twenty-four seconds long. It begins by showing Sanchez addressing several people, including reporters, though it is difficult to discern what he is saying. While Sanchez speaks, Striever approaches, extends his arm while holding a bottle of water, and pours the water on Sanchez's head. Striever immediately flees and is chased by onlookers. It does not appear from the video that Striever said anything before, during, or after pouring water on Sanchez.

Striever's supplemental brief also referenced a link to a news article about the lawsuit and the underlying incident. Based on the article, and according to Striever's supplemental brief, Sanchez, then Harris County Treasurer, held a press conference advocating for the State of Texas to "take over" Houston public schools. Striever said that he was present to protest.³

The trial court signed a final order granting Striever's motion to dismiss on both TCPA and rule 91a grounds. The court also awarded attorney's fees to Striever. In the order, the court stated:

First, as to Chapter 27 of the CPRC, the Court finds and concludes that the act of pouring water over Mr. Sanchez constitutes protected speech, and that the suit by Mr. Sanchez also otherwise implicates protected First Amendment rights of the Defendant.... Once the burden shifted, Plaintiff failed to adduce clear and specific evidence of a prima facie case of his claims. Specifically, Plaintiff did not adduce any evidence of any injury whatsoever, even if he could allegedly recover mental anguish damages under the circumstances.

Second, the Court also hereby DISMISSES this suit pursuant to TRCP 91a, and hereby awards the attorney's fees and costs listed above as a one time award for both the CPRC Ch. 27 Motion and TRCP 91a Motion, and not as a duplicate award.

Sanchez timely appealed.

Analysis

Sanchez contends that neither rule 91a nor the TCPA supports the trial court's order dismissing the lawsuit. He also requests that we vacate the attorney's fee award.

A. Rule 91a discussion

Sanchez argues in his first issue that the trial court erroneously granted Striever's motion to dismiss under rule 91a because his claim of assault by offensive physical contact has a basis in law and fact.

Under Texas Rule of Civil Procedure 91a, "a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact." Tex. R. Civ. P. 91a.1; Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C. , 595 S.W.3d 651, 654 (Tex. 2020). "A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Tex. R. Civ. P. 91a.1. "A cause of action has no basis in fact if no reasonable person could believe the facts pleaded." Id. A court "may not consider evidence ... and must decide the motion based solely on the pleading of the cause of action." Tex. R. Civ. P. 91a.6.

"We review the merits of a Rule 91a motion de novo because the availability of a remedy under the facts alleged is a question of law and the rule's factual-plausibility standard is akin to a legal-sufficiency review." City of Dallas v. Sanchez , 494 S.W.3d 722, 724 (Tex. 2016) (per curiam) ; In re Union Pac. R.R. Co. , 582 S.W.3d 548, 550 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding). In conducting our review, we must construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the factual allegations in the pleadings to determine whether the cause of action has a basis in law or fact. In re Union Pac. R.R. Co. , 582 S.W.3d at 550.

In his petition, Sanchez asserted a claim for "assault by offensive physical contact." In support, he alleged:

On December 28, 2018, Defendant Steve Striever acted intentionally and/or knowingly when he committed an assault by offensive physical contact against Orlando Sanchez during a press conference by pouring water on his head. Defendant Striever knew or reasonably should have believed that Orlando Sanchez would regard the contact as offensive or provocative. As a result of the collision caused by Defendant Steve Striever, Orlando Sanchez suffered injuries and damages.

Sanchez sought all damages recognizable by law, including but not limited to past and future mental anguish.⁴

"In Texas, an assault is both an offense against the peace and dignity of the State, as well as an invasion of private rights." Foye v. Montes , 9 S.W.3d 436, 441 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). The elements of a civil assault thus mirror those of a criminal assault. Loaisiga v. Cerda , 379 S.W.3d 248, 256 (Tex. 2012) ; Flanagan v. Womack & Perry , 54 Tex. 45 (1880). As relevant here, a person commits criminal assault under the Texas Penal Code if the person intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Penal Code § 22.01(a)(3) ; Loaisiga , 379 S.W.3d at 256. Thus, proof of these elements can support a claim of civil assault.

Construing Sanchez's petition liberally, we conclude his claim for assault by offensive physical contact has a basis in law and fact. First, Sanchez's claim has a basis in law because the "allegations, taken as true, together with inferences reasonably drawn from them," would entitle him to the relief sought. See Tex. R. Civ. P. 91a.1. Sanchez pleaded each element of a claim under Penal Code section 22.01(a)(3) by alleging that Striever intentionally and/or knowingly caused physical contact with Sanchez by pouring water on his head, and that Striever knew or reasonably should have believed that Sanchez would regard the contact as offensive or provocative. These allegations, if true, would establish the required elements under section 22.01(a)(3). See Tex. Penal Code § 22.01(a)(3) ; Loaisiga , 379 S.W.3d at 256.

Striever insists that dismissal was appropriate under rule 91a because Sanchez has no personal injury to redress and no recoverable damages. A civil assault claim under section 22.01(a)(3), however, does not require personal injury. See Foye , 9 S.W.3d at 441 ; Tex. Penal Code § 22.01(a)(3). As offensive physical contact is the gravamen of the claim, the defendant is liable for contacts that are offensive and provocative regardless whether they cause physical harm. See City of Watauga v. Gordon , 434 S.W.3d 586, 590 (Tex. 2014) ; Fisher v. Carrousel Motor Hotel, Inc. , 424 S.W.2d...