Allan Roy Manka and the Law Offices of Allan R. Manka, P.C. v. Michelle Teresa Acosta

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-25-00089-CV

Allan Roy MANKA and The Law Offices of Allan R. Manka, P.C.,
Appellants

v.

Michelle Teresa ACOSTA,
Appellee

From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2021CI11794
Honorable Tina Torres, Judge Presiding

Opinion by: Lori I. Valenzuela, Justice

Sitting: Irene Rios, Justice
Lori I. Valenzuela, Justice
H. Todd McCray, Justice

Delivered and Filed: May 13, 2026

AFFIRMED

In five issues, appellants Allan Roy Manka and The Law Offices of Allan R. Manka, P.C.

(collectively, “Manka”) challenge a final judgment rendered after a jury verdict in favor of

appellant Michelle Teresa Acosta. We overrule Manka’s appellate issues and affirm the judgment.

BACKGROUND

Both Manka and Acosta are attorneys. On June 13, 2019, they appeared at a hearing in a

family law dispute in Wilson County District Court. The hearing was the first time Acosta
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presented argument in court, and she and Manka had never met each other before that day. Acosta

represented her brother, Keith, and Manka represented Keith’s ex-wife, Cindy. Acosta’s and

Keith’s father, Hipolito, attended the hearing to support both of his children.

At some point during the proceedings, Keith and Cindy decided that they wanted to try to

work out their differences on their own. While they conferred privately, their attorneys and

Hipolito waited in the courthouse lobby. Both Acosta and Hipolito testified that during that time,

Manka told them that when he represents women in family law matters, he likes to put his arms

around his clients to make his opposing counsel and his clients’ husbands or ex-husbands

uncomfortable.

Security camera footage from the courthouse lobby showed that while they were waiting

for their clients to return, Manka moved next to Acosta and slid his hand across her lower back

and around her waist. He then walked away from her. A few minutes later, he returned to her side,

touched her hair, and put his arm around her shoulder.

Keith and Cindy eventually rejoined their attorneys in the lobby and announced that they

had reached an agreement. Before the parties left the courthouse, Manka moved to stand next to

Acosta once again. Acosta extended her hand toward him, but instead of taking her hand, he leaned

into her personal space. Acosta testified that he then grabbed her buttocks and squeezed it. She

slapped his chest, and he left the courthouse. Acosta reported the grabbing incident to the Wilson

County Sheriff’s Department the next day, and a deputy filed a misdemeanor charge of assault by

contact against Manka. 1

1
The clerk’s record shows that Manka pleaded no contest to the criminal charge. In a civil trial, a no contest plea is
not admissible against the defendant who made the plea. TEX. R. EVID. 410(a)(2). The jury in this case was not
informed of Manka’s plea.

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In June 2021, Acosta sued Manka for assault by offensive physical contact and intentional

infliction of emotional distress. In August 2021, Manka filed a counterpetition alleging

defamation, business disparagement, and tortious interference with contract. Acosta filed motions

to dismiss Manka’s counterclaims under the Texas Citizen’s Participation Act (“TCPA”) and Rule

91a of the Texas Rules of Civil Procedure. The trial court denied Acosta’s TCPA motion, but it

granted her Rule 91a motion. When Manka re-filed his counterclaims in March 2023, Acosta filed

a second Rule 91a motion, which the trial court granted.

The parties tried Acosta’s claims to a Bexar County jury in September 2024. At that time,

Acosta’s live pleading was her fourth amended petition. After hearing the evidence, the jury found

in Acosta’s favor on her assault and intentional infliction claims and awarded her $3 million in

past mental anguish damages and $2 million in future mental anguish. The jury rejected Acosta’s

request for punitive damages.

After the verdict, Acosta sought, and the trial court granted, leave to file a fifth amended

petition to conform the pleaded amount of damages to the jury’s verdict. The trial court then signed

a final judgment consistent with the jury’s verdict. After his post-trial motions were overruled by

operation of law, Manka filed this appeal.

ANALYSIS

Legal and Factual Sufficiency

In his first, second, and fourth issues, Manka challenges the legal and factual sufficiency

of the evidence supporting the jury’s verdict.

Standard of Review

When an appellant challenges the legal sufficiency of the evidence supporting an adverse

finding on which he did not bear the burden of proof at trial, he must establish that no evidence

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supports the finding. See In re Marriage of Thrash, 605 S.W.3d 224, 230 (Tex. App.—San Antonio

2020, pet. denied). We view the evidence in the light most favorable to the verdict, crediting the

evidence that supports the challenged finding if a reasonable factfinder could and disregarding

contrary evidence unless a reasonable factfinder could not. See id. If more than a scintilla of

evidence supports the finding, we must reject the legal sufficiency challenge. See Tex. Outfitters

Ltd., LLC v. Nicholson, 572 S.W.3d 647, 653 (Tex. 2019). More than a scintilla of evidence exists

if reasonable and fair-minded people could differ in their conclusions. See, e.g., Ojeda v. Wal-Mart

Stores, Inc., 956 S.W.2d 704, 708 (Tex. App.—San Antonio 1997, pet. denied).

In a factual sufficiency review, we conduct a neutral review of the evidence and consider

the entire record, including evidence contrary to the challenged finding. See Vast Constr., LLC v.

CTC Contractors, LLC, 526 S.W.3d 709, 723 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

To prevail, the appellant must show the challenged finding is so against the great weight and

preponderance of the evidence as to be clearly wrong and unjust. See Abrams v. Salinas, 467

S.W.3d 606, 614 (Tex. App.—San Antonio 2015, no pet.) (citations omitted).

“In either a legal or factual sufficiency review, issues of credibility and reconciling

conflicts within the evidence are for the jury.” 4922 Holdings, LLC v. Rivera, 625 S.W.3d 316,

328 (Tex. App.—Houston [14th Dist.] 2021, pet. denied). We may not substitute our own

judgment for the jury’s, even if the evidence might support a different result. See United Parcel

Serv., Inc. v. Rankin, 468 S.W.3d 609, 615 (Tex. App.—San Antonio 2015, pet. denied).

Assault

In his first issue, Manka challenges the finding in Acosta’s favor on her assault claim. “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.

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denied). Because “[t]he elements of a civil assault mirror those of a criminal assault,” a person can

be civilly liable for assault if he intentionally or knowingly caused physical contact with another

person when he knew or reasonably should have believed the other person would consider the

contact offensive or provocative. See Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012);

Sanchez v. Striever, 614 S.W.3d 233, 239 (Tex. App.—Houston [14th Dist.] 2020, no pet.); see

also TEX. PENAL CODE § 22.01(a)(3). Manka argues the evidence does not support the jury’s

assault finding because Acosta did not make a claim of bodily injury and there is no “objectively

verifiable evidence” that he knew or reasonably should have believed that she would find his

contact offensive or provocative.

While a showing of bodily injury can support a claim of assault, it is not required where,

as here, the plaintiff alleges assault by offensive contact. See TEX. PENAL CODE § 22.01(a)(3);

Hockman v. Rogers, No. 12-09-00441-CV, 2010 WL 2784435, at *3 (Tex. App.—Tyler, July 14,

2010, no pet.) (mem. op.); Moore v. Aqrawi, No. 01-03-00917-CV, 2007 WL 2743494, at *3 (Tex.

App.—Houston [1st Dist.] Sept. 20, 2007, no pet.) (mem. op.). Consequently, the only question

before us is whether the evidence would permit the jury to find that Manka’s mental state—i.e.,

what he knew or reasonably should have believed at the relevant time—supported Acosta’s assault

claim.

“A plaintiff may establish the defendant’s mental state by circumstantial evidence.” La.-

Pac. Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex. 1999). Here, it was undisputed that Acosta and

Manka had never met each other before the day at issue. Acosta testified that on that day, Manka

grabbed her buttocks with “a huge handful that got a lot of my rear end in it and squeezed it.” She

also presented video from the courthouse security cameras that showed the alleged incident. While

the video did not clearly show Manka grabbing Acosta’s buttocks, it showed him moving to stand

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next to her and then leaning into her personal space. A moment after he leaned in, she slapped him

on the chest and he walked away. As he walked away, she said something to him while gesturing

toward her buttocks. The video did not have sound, but Acosta testified that she yelled, “I bet

you’ve been waiting to do that all day.” Acosta also testified that earlier that day, before he touched

her the first time, Manka told her that he would “kind of do like this thing where [he] get[s] close

to, you know, [his] clients and make[s] the other party or the ex-husbands or soon-to-be ex-

husbands or opposing counsel uncomfortable.”

Acosta’s brother, Keith, was present during the alleged grabbing incident. He testified that

Manka “ran off as he was laughing” immediately after that incident and that after he left, Acosta

“said something like, Dude, he just grabbed my butt.” While Keith did not directly observe Manka

grabbing Acosta’s buttocks, he saw Manka “touch[] her in a way that startled her . . . on the lower

back area closer to the buttocks area.”

Acosta’s father, Hipolito, was not present during the grabbing incident, but he witnessed

two earlier instances of Manka touching Acosta. He told the jury that when Manka touched Acosta

the first time, he considered “either confronting [Manka] or saying something,” but he chose not

to do so because he “knew how [his intervention] would impact [Acosta] at that particular time”

and he “did not want to overreact.” He also testified that he heard Manka say that “when he

represented females, to intimidate or make their spouses angry, he would put his arm around them.”

Hipolito described those statements as “very unprofessional. It was very uncomfortable.” He

testified that he was a law enforcement officer who had appeared in court many times and that he

“had never seen any type of such behavior or anybody make the kind of statement that [Manka]

did.”

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Manka testified that he was born in 1949, that he once worked in the district attorney’s

office, and that at the time of trial, he had been practicing law for 50 years. He testified that he did

not grab Acosta’s buttocks and that he had no way of knowing she would consider his actions

offensive or provocative. He did not deny, however, that he slid his hand around Acosta’s lower

back and waist or that he moved her hair off her shoulder, and the jury saw video showing that he

did. He also testified that grabbing another attorney’s buttocks is “not professional. It’s not

appropriate at all.”

The jury was free to credit Acosta’s version of events over Manka’s. See City of Keller v.

Wilson, 168 S.W.3d 802, 819 (Tex. 2005); Fayette v. Reyes, No. 04-18-00317-CV, 2019 WL

3937280, at *3 (Tex. App.—San Antonio Aug. 21, 2019, no pet.) (mem. op.). When viewed in the

light most favorable to Acosta, the evidence described above would permit reasonable people to

conclude that Manka grabbed and squeezed Acosta’s buttocks without her consent; that he knew

his actions were “not professional” and “not appropriate at all”; and that he deliberately engaged

in such actions because she was his opposing counsel and he wanted to make her uncomfortable.

See Ojeda, 956 S.W.2d at 708. Furthermore, the evidence to the contrary is not so overwhelming

as to render the jury’s verdict clearly wrong or unjust. See Abrams, 467 S.W.3d at 614. The

evidence is therefore both legally and factually sufficient to support the jury’s finding that Manka

intentionally or knowingly touched Acosta in a way that he knew or reasonably should have known

she would find offensive or provocative. See Striever, 614 S.W.3d at 239 (identifying elements of

civil assault).

We overrule Manka’s first issue.

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Intentional Infliction of Emotional Distress

In his second issue, Manka argues the evidence is legally and factually insufficient to

support the jury’s finding on Acosta’s intentional infliction of emotional distress claim. He

contends there is no evidence that his conduct was extreme or outrageous or that he consciously

disregarded a high probability of inflicting severe emotional distress. He also argues that

intentional infliction is a “gap-filler” tort that is not available where the gravamen of a plaintiff’s

claim is really another tort—here, civil assault. Acosta responds that we need not reach this issue

because Manka has not shown he was harmed by this purported error. TEX. R. APP. P. 44.1(a).

We agree with Acosta. As the appellant, Manka bore the burden to establish that the trial

court erred and that the error requires a reversal of the trial court’s judgment. See id.; see also

Schneider v. Quintana Energy Servs., LLC, 691 S.W.3d 738, 753 (Tex. App.—Houston [14th

Dist.] 2024, no pet.). Manka argues that the trial court should have refused to submit the liability

question on the intentional infliction claim to the jury. But he has not presented any argument or

authority establishing that any error in submitting that question probably led to the rendition of an

improper judgment or prevented him from making his appellate arguments to this court. TEX. R.

APP. P. 44.1(a). He has not, for example, raised any appellate challenges to the wording or

submission of the damages question, which asked the jury to determine an appropriate amount of

compensation for Acosta if it found Manka liable for either of her claims. The jury found in

Acosta’s favor on both of her claims, and we have already affirmed its finding on her assault claim.

Manka has not argued that the jury’s findings on the assault and/or damages questions were

“significantly influenced by” the purportedly erroneous submission of the intentional infliction

theory. See Horton v. Kan. City S. Ry. Co., 692 S.W.3d 112, 141–42 (Tex. 2024). Nor has he

argued that this is a situation where we must presume harm because a potentially invalid claim

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could have formed the sole basis for the jury’s findings. Cf. Crown Life Ins. Co. v. Casteel, 22

S.W.3d 378, 389 (Tex. 2000).

For these reasons, Manka has not established that any error in submitting the intentional

infliction claim requires us to reverse the trial court’s judgment. We therefore overrule his second

issue.

Mental Anguish Damages

In his fourth issue, Manka argues the evidence is legally and factually insufficient to

support the jury’s award of past and future mental anguish damages. Compensable mental anguish

“implies a relatively high degree of mental pain and distress. It is more than mere disappointment,

anger, resentment or embarrassment, although it may include all of these.” Parkway Co. v.

Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (citation omitted). A plaintiff must present “evidence

of the nature, duration, and severity of [his] mental anguish . . . to establish the existence of mental

anguish damages.” Gregory v. Chohan, 670 S.W.3d 546, 554 (Tex. 2023) (plurality op.) (internal

quotation marks omitted); Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011).

If the plaintiff establishes the existence of compensable mental anguish, “[t]here must also

be some evidence to justify the amount awarded.” Saenz v. Fid. & Guar. Ins. Underwriters, 925

S.W.2d 607, 614 (Tex. 1996). “‘There must be evidence that the amount found is fair and

reasonable compensation, just as there must be evidence to support any other jury finding.’”

Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex. 2002) (quoting Saenz, 925 S.W.2d at 614). “In short,

‘[j]uries cannot simply pick a number and put it in the blank.’” Gregory, 670 S.W.3d at 554

(quoting Saenz, 925 S.W.2d at 614).

Manka does not contend that Acosta failed to show compensable mental anguish. He

argues only that the evidence was legally and factually insufficient to support the amount awarded

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for past and future mental anguish. As support for this assertion, he relies almost entirely on the

Texas Supreme Court’s opinion in Gregory. See id. As we have previously noted, Gregory “‘is a

plurality opinion lacking precedential value[.]’” Elizondo v. Reyna, No. 04-24-00284-CV, 2025

WL 2462764, at *9 (Tex. App.—San Antonio Aug. 27, 2025, no pet.) (mem. op.) (quoting Kelly

Custom Homes, LLC v. Hopper, No. 14-23-00793-CV, 2024 WL 3765393, at *8–9 (Tex. App.—

Houston [14th Dist.] Aug. 13, 2024, pet. denied) (mem. op.)). “Under these circumstances, the

holding of the Court—to the extent that there is a holding—consists of the position taken by those

justices who concurred on the narrowest grounds.” City of Baytown v. Fernandes, 674 S.W.3d

718, 727 (Tex. App.—Houston [1st Dist.] 2023, no pet.).

In Gregory, a majority of the justices rejected what the plurality and Justice Devine’s

concurring opinion referred to as “unsubstantiated anchoring,” or tying the amount of mental

anguish damages “to objects or values with no rational connection to the facts of the case.”

Gregory, 670 S.W.3d at 557–60 (plurality op.); id. at 569–70 (Devine, J., concurring). Both the

plurality and Justice Devine’s concurrence also explained that a mental anguish award “cannot be

based on mere passion, prejudice, or improper motive,” such as a desire to punish the tortfeasor.

See id. at 570 (Devine, J., concurring); id. at 558 (plurality op.).

Manka does not expressly contend that this case involves the kind of unsubstantiated

anchoring the Texas Supreme Court considered in Gregory. He argues, however, that Acosta’s

trial counsel improperly asked the jury to “punish” him. It is true that Acosta’s trial counsel

suggested a $25 million award as an appropriate “punishment” for Manka’s actions. Because the

court’s charge asked the jury to consider an award of punitive damages, that line of argument was

not inherently improper.

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However, Acosta’s trial counsel also told the jurors that if they could not reach a unanimous

verdict on whether to award punitive damages, they should “put the 25 million in mental anguish.

That only takes ten [votes].” Manka did not object to these statements below, and he does not argue

on appeal that they amounted to incurable jury argument. See Living Ctrs. of Tex., Inc. v. Penalver,

256 S.W.3d 678, 680–81 (Tex. 2008) (per curiam). As a result, to the extent that he contends that

these statements independently constituted reversible error, he has waived that argument. See

Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 794 (Tex.

App.—Houston [1st Dist.] 2011, no pet.).

That leaves us with the issue of whether trial counsel’s “punishment” statements call the

mental anguish damages into question. The Gregory plurality explained that “if the reasons offered

in justification of the amount awarded are rational and do not partake of prohibited motives, courts

should defer to the jury’s verdict.” Gregory, 670 S.W.3d at 562.

Unlike the facts of Gregory, the record in this case does not mandate a conclusion that the

jury “part[oo]k of prohibited motives” or otherwise heeded Acosta’s call to use the mental anguish

award to punish Manka. Cf. id. First, and most obviously, while Acosta’s counsel suggested $25

million as an appropriate “punishment,” the jury awarded Acosta only a fraction of that amount.

More importantly, however, the amounts the jury settled on were rationally connected to both the

evidence presented at trial and the unchallenged portions of Acosta’s closing argument.

The jury heard Acosta’s testimony that as a result of the assault, she had difficulty sleeping

and suffered panic attacks because she “felt like [her] person, [her] space, [her] protective space

had been violated.” She “felt sick to [her] stomach, [she] was nauseous” and she “felt like throwing

up.” She testified that the assault re-triggered the post-traumatic stress disorder that she had

previously suffered after an unknown assailant slashed her throat when she was in college. She

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also explained that when Manka slid his hand around her waist, the feeling was similar to “where

that knife was going around the front of [her] neck.” She told the jury that after Manka’s assault,

her PTSD:

would flare up whenever I would be around male attorneys that I didn’t really know,
opposing counsel especially, which—it occurred every time I’d go to the bar with
my husband, if he wasn’t standing next to me, whether or not a man was going to
touch me inappropriately. And it made it hard for me to be in a professional setting
for awhile. . . . I would say up until almost 2001—’21, sorry, ’21.

Similarly, Hipolito testified that “[i]t took a long time [after the incident with Manka] for [his

daughter] to start building [her confidence] up again.” The jury could have rationally determined

that this evidence, which showed that the assault triggered memories of the prior violent attack

and affected Acosta’s ability to engage in her chosen profession, was relevant to the amount

required to compensate her for her past mental anguish. See Elizondo, 2025 WL 2462764, at *9;

see also Garza v. Escamilla, 712 S.W.3d 718, 731 (Tex. App.—Houston [14th Dist.] 2025, no

pet.) (“[T]here is a market to avoid pain, and a constitutional prohibition against inflicting it

unnecessarily—which shows that pain is both expensive and intolerable, themes that have a

rational connection to a claimant in a personal injury case.”).

To deal with the issues described above, Acosta sought out mental health treatment and

began taking a new medication for anxiety and depression. She did not take that medication before

the incident with Manka. In addition to her testimony, Acosta submitted some of her treating

providers’ records into evidence. Those records, which contained documentation of several mental

health appointments in 2021 and 2022, showed that she reported suffering from panic attacks,

depression, anxiety, excessive worrying, and a lack of interest in intimacy. One document showed

that Acosta suffered a panic attack on New Year’s Eve of 2021 that required treatment in the

emergency room.

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Acosta testified that at one point, she was paying $300 an hour for her mental health

treatment. During closing argument, her trial counsel reminded the jury of the $300 an hour amount

and stated:

I calculated 29 minutes, 1740 seconds of time that [Manka] spent with [Acosta] that
day, between the time that he touched her the first time and the last. $300 an hour
is what she was willing to pay a psychiatrist to try to help her get through this. The
$300 of the 1740 seconds that she will never get back that he took from her, what
is that? Since then, 167 billion seconds, 2,700,000 minutes, 46,000 hours, 1933
days since this happened.

Acosta’s trial counsel then suggested that the jurors consider “how much would you give in a day

to not go through this reminder in this situation.” See Elizondo, 2025 WL 2462764, at *9 (affirming

a “per day” calculation of mental anguish damages); Garza, 712 S.W.3d at 727–31 (same); Kelly

Custom Homes, 2024 WL 3765393, at *8 (same).

The Gregory plurality explained that the necessary rational basis for the dollar amount of

an award of mental anguish damages “may be revealed by lawyer argument rationally connecting

the amount sought—or on appeal, the amount awarded—to the evidence.” Gregory, 670 S.W.3d

at 561. In her appellate briefing, Acosta notes that the jury’s award of $3 million for past mental

anguish is roughly equivalent to $1,500 a day—the cost of five hours of therapy—for each of the

1,933 days since the assault. While Manka’s reply brief correctly notes that Acosta’s trial counsel

did not explicitly perform this calculation for the jury, that sum can be rationally deduced from the

numerical “anchors” Acosta’s trial counsel asked the jury to consider. We therefore reject Manka’s

suggestion that this calculation is simply a post-hoc appellate justification for an award that is

unsupported by the trial record. Cf. id.

We do not suggest that the evidence showed Acosta actually attended therapy for 5 hours

a day on each of the 1,933 days between the assault and the jury’s verdict. If she had, that amount

would be compensable as medical expenses, rather than as non-economic mental anguish damages.

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See Finley v. P.G., 428 S.W.3d 229, 233–34 (Tex. App.—Houston [1st Dist.] 2014, no pet.)

(considering cost of mental health treatment in evaluating award of future medical expenses). But

after reviewing the evidence in the light most favorable to the judgment, we conclude that the

number of days between the assault and the jury’s verdict and the cost of one hour of therapy were

appropriate anchors, substantiated by the evidence, that the jurors could rely on to decide what

they “would give in a day to not go through this reminder in this situation.” See Elizondo, 2025

WL 2462764, at *9. We therefore disagree with Manka’s contention that Gregory requires reversal

of the award for past mental anguish. Cf. Gregory, 670 S.W.3d at 563 (“Crucially, plaintiffs’

counsel at no point in these proceedings has attempted to proffer a rational argument justifying

either the amount sought or the amount awarded.”).

Acosta also presented evidence demonstrating “a reasonable probability that [s]he would

suffer compensable mental anguish in the future.” Zoanni v. Hogan, 715 S.W.3d 47, 90 (Tex.

App.—Houston [1st Dist.] 2024, pet. denied). She testified that she was still experiencing mental

anguish symptoms at the time of trial in 2024, more than five years after the assault. She

specifically noted that she sometimes “still ha[s] issues with men being around [her]” if she does

not “know what their intentions are and whether or not they are going to get—think that [she]

want[s] it or might enjoy it as Mr. Manka said in his testimony yesterday.” She also testified that

she “[a]t times” still struggled with anxiety attacks and trouble sleeping. Additionally, Keith

testified:

I think that her being assaulted in that way, you know, with that disrespect really
affected her—her outlook on her profession, her professionalism with her peers
and, you know, it hardened her for—for a long time. And I think it still hardens her
today.

Keith further testified that the depression and lack of confidence he saw in Acosta after the assault

is “still around. It’s still apparent. She gets anxiety attacks sometimes.” Based on this testimony,

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the jury could have rationally determined that Acosta’s mental anguish had not resolved in the five

years since the assault and would likely continue in the future. See, e.g., PNS Stores, Inc. v.

Munguia, 484 S.W.3d 503, 518 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (substitute op.).

After reviewing the record, we conclude it does not show that Acosta’s closing arguments

“destroyed any rational connection the verdict has to the mental anguish evidence presented.”

Gregory, 670 S.W.3d at 577 (Bland, J., concurring). The jury’s verdict, while certainly large, has

a rational connection to the evidence presented below and therefore does not run afoul of Gregory.

We overrule Manka’s fourth issue.

Dismissal of Manka’s Counterclaims

In his third issue, Manka argues the trial court erred by granting Acosta’s motion to dismiss

his counterclaims for defamation and business disparagement under Texas Rule of Civil Procedure

91a.

Standard of Review and Applicable Law

Texas Rule of Civil Procedure 91a provides that “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. “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.” Id. “A cause of action has no basis in fact if

no reasonable person could believe the facts pleaded.” Id.

We review a trial court’s ruling on a Rule 91a motion de novo. See Bethel v. Quilling,

Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020). “If an order granting

a Rule 91a motion does not specify the grounds for dismissal, a party appealing the order must

challenge every ground upon which the trial court could have granted the motion.” In re Est. of

Savana, 529 S.W.3d 587, 592 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

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Application

Acosta filed two Rule 91a motions: the first on November 1, 2021, when she sought the

dismissal of Manka’s original counterpetition, and the second on May 12, 2023, when she sought

the dismissal of Manka’s second amended counterpetition. In both motions, she argued that

Manka’s pleadings established that his counterclaims were barred by the statute of limitations. See

Bethel, 595 S.W.3d at 656 (Rule 91a permits dismissal on an affirmative defense if the defense is

conclusively established by the facts in plaintiff’s petition). She also separately argued that

Manka’s counterclaims had no basis in law or fact. TEX. R. CIV. P. 91a.1. The trial court granted

Acosta’s first Rule 91a motion on December 17, 2021, and it granted her second motion on June

30, 2023.

Neither the December 17, 2021 order nor the June 30, 2023 order states any reasons for the

trial court’s decision to grant Acosta’s Rule 91a motions. Manka argues, however, that the trial

court’s December 13, 2021 judge’s notes show that it granted Acosta’s first motion because it

accepted her argument that Manka’s counterclaims were barred by the statute of limitations. He

contends that he timely filed his counterclaims and the trial court therefore erred by granting the

Rule 91a motions.

There are two problems with this argument. First, even if we accept Manka’s description

of what is stated in the December 2021 judge’s notes, 2 we have repeatedly held that judge’s notes

are solely for the trial court’s convenience and do not qualify as an order. See, e.g., In re A.K.P.,

No. 04-20-00305-CV, 2020 WL 5027398, at *1 (Tex. App.—San Antonio Aug. 26, 2020, no pet.)

(per curiam) (mem. op.). In re L.H., No. 04-13-00174-CV, 2013 WL 3804585, at *1 (Tex. App.—

San Antonio July 17, 2013, no pet.) (per curiam) (mem. op.). Second, Manka has not explained

2
Other than the trial judge’s name, the cause number, the parties’ names, and the phrase “SLAPP does not apply,” the
copy of the judge’s notes in our record is largely illegible.

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why the December 2021 judge’s notes have any relevance to our review of the second Rule 91a

order, which the trial court signed nearly two years later.

Because the trial court’s orders do not state the reasons for the rulings, Manka bore the

burden on appeal to defeat each of the grounds Acosta raised in her Rule 91a motions. See In re

Est. of Savana, 529 S.W.3d at 592; Parkhurst v. Off. of Att’y Gen. of Tex., 481 S.W.3d 400, 402

(Tex. App.—Amarillo 2015, no pet.). While Manka’s appellate briefing contends that he filed his

counterclaims within the applicable statutes of limitations, he does not address any of the other

arguments Acosta raised. We will not make those arguments for him. See, e.g., Sonat Expl. Co. v.

Cudd Pressure Control, Inc., 271 S.W.3d 228, 236 (Tex. 2008) (“[A]n appellate court cannot

reverse on a ground an appellant has never raised.”); In re Est. of Marley, 390 S.W.3d 421, 425

(Tex. App.—El Paso 2012, pet. denied) (“We have no duty—or even right—to perform an

independent review of the record and applicable law to determine whether there was reversible

error because, by doing so, we would abandon our role as neutral adjudicators and become an

advocate.”). Because Manka did not establish “that no ground urged within the motion to dismiss

supported the trial court’s decision,” we overrule his third issue. See Parkhurst, 481 S.W.3d at

403.

Acosta’s Pleading Amendments

In his fifth issue, Manka argues that the trial court abused its discretion by allowing Acosta

to amend her pleadings to conform to the jury’s verdict.

Standard of Review and Applicable Law

The Texas Rules of Civil Procedure provide that parties may amend their pleadings “at

such time as not to operate as a surprise to the opposite party[.]” TEX. R. CIV. P. 63; see also TEX.

R. CIV. P. 66. Any amendments made “within seven days of the date of trial or thereafter . . . shall

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be filed only after leave of the judge is obtained,” and the trial court shall grant leave to amend

“unless there is a showing that such filing will operate as a surprise to the opposite party.” TEX. R.

CIV. P. 63.

A trial court may permit a party to amend its pleadings after the verdict, but before the

judgment, to conform to the jury’s verdict. See Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d

938, 940 (Tex. 1990); see also TEX. R. CIV. P. 66. The trial court may not deny leave unless: (1)

“the opposing party presents evidence of surprise or prejudice” or (2) “the amendment asserts a

new cause of action or defense, and thus is prejudicial on its face, and the opposing party objects

to the amendment.” Greenhalgh, 787 S.W.2d at 939 (internal citations omitted). “The burden of

showing prejudice or surprise rests on the party resisting the amendment.” Id. “An amended

pleading that changes only the amount of damages sought does not automatically operate as

surprise within the contemplation of Rule 63.” Id. at 940.

A trial court has broad discretion to permit pleading amendments. See Benavidez v. Isles

Constr. Co., 726 S.W.2d 23, 25 (Tex. 1987). A trial court does not abuse its discretion unless its

decision is arbitrary, unreasonable, or made without reference to guiding rules or principles. See

Murphy v. Arcos, 615 S.W.3d 676, 696 (Tex. App.—Dallas 2020, pet. denied).

Application

After the jury rendered its verdict, Acosta sought leave to amend her petition on the grounds

that it “sought damages of less than $250,000[.]” But Acosta’s live petition at the beginning of

trial stated that she sought “monetary relief of over $250,000 or less, including damages of any

kind, penalties, court costs, expenses, prejudgment interest, and attorney fees.” (emphasis added).

While this phrasing is not a model of clarity, Manka did not specially except to it and thus waived

any argument that it did not satisfy Texas’s fair-notice pleading standard. See TEX. R. CIV. P. 90.

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Moreover, Manka himself testified at trial that Acosta was “asking for a million dollars[.]” For

these reasons alone, the trial court could have reasonably determined that Manka was not surprised

or prejudiced by the requested amendment.

But even if the trial court agreed that Acosta’s petition did support the jury’s verdict, it

could have reasonably determined that Manka failed to establish surprise or prejudice. In his

response opposing the pleading amendment, Manka argued only that he “understood [his] liability

exposure to be capped at $250,000.00.” See Greenhalgh, 787 S.W.2d at 940. He appeared to

suggest that “altering [that] premise” might have changed his defensive strategies at trial, and he

complained that he was “denied an opportunity to make [his] argument opposing the trial

amendment prior to submission of the jury charge.” But he did not argue that the proposed

amendment raised any new substantive matters. See, e.g., Am. Med. Int’l, Inc. v. Giurintano, 821

S.W.2d 331, 334–35 (Tex. App.—Houston [14th Dist.] 1991, no writ) (op. on reh’g). Nor did he

explain how he would have changed his trial strategy, what other evidence he might have sought

out or presented, or what additional or different arguments he would have made. See id. Finally,

he did not present any evidence to support his claims of surprise or prejudice. See Murphy, 615

S.W.3d at 697–98.

For these reasons, the trial court did not abuse its discretion by permitting Acosta to amend

her pleadings to conform to the jury’s verdict. We overrule Manka’s fifth issue.

CONCLUSION

Having overruled each of Manka’s appellate issues, we affirm the trial court’s judgment.

Lori I. Valenzuela, Justice

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