AFFIRMED and Opinion Filed March 22, 2022 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-19-01550-CV JOHN GUANDOLO AND SAINT GEORGE’S ALLIES, INC. D/B/A UNDERSTANDING THE THREAT, Appellant V. RICHARD STANEK, Appellee On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-14892 MEMORANDUM OPINION Before Justices Molberg, Nowell, and Goldstein Opinion by Justice Goldstein This is an appeal from a final judgment in a jury trial involving cross-claims for assault and associated torts. In a pre-tr ial ruling, the trial c ourt partially granted appellee’s no-evidence motion for summary judgment. In one issue, appellants complain that the trial court erred in entering summary judgment against them on their affirmative defenses of self-defense and justification and thereby failing to–2– submit jury questions on those defenses. 1 We affirm. Because all issues in this appeal are settled in law, we issue this memorandum opinion. T EX
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. P. 47.4. BACKGROUND Appellee Stanek was at all relevant tim es the elected sheriff of Hennepin County, Minnesota, the county seat of whic h is Minneapolis. Stanek was also an executive board member of the National Sher iff’s Association (N SA). In late-June 2017, Stanek attended the semiannual meeti ng of the NSA in Re no, Nevada. Also present at the NSA meeting was appellant Guandolo, a former Marine and FBI agent. Guandolo is the founder and president of appella nt Saint George’s Allies, Inc. d/b/a Understanding the Th reat (UTT), a Texas corporation. UTT provides law enforcement trai ning and engages in public a dvocacy related to Islamic terrorism. UTT’s advocacy is, according to Stanek, controversia l and incendiary. A few months before the NSA meeting, Guandolo published an article on the UTT website titled “In this War Minnesota’s Twin Cities are Lost ,” which contained allegedly defamatory statements about Stanek. On June 20, 2017, Stanek met with Gu andolo to discuss the article. Also present were Chris Gaubatz and Stephanie Ameiss, bot h UTT employees, and Peter

1 Appellants requested and we have received a partia l reporter’s record of the proceedings below. In their request, appellants included a statement of issues they intended to raise on appeal. We presume the record before us constitutes the entire record for purposes of the issues rais ed and omitted evidence presumed irrelevant to this appeal. See T EX

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. P. 34.5, 34.6(c); Furr’s Supermarkets, Inc. v. Bethune , 53 S.W.3d 375, 377 (Tex. 2001).–3– Dietzman, a major at the Hennepin Count y Sheriff’s office. The conversation became heated, and an altercation en sued, memorialized by video and audio recordings of the incident. 2 Appellee initiated this lawsuit agai nst appellants on October 30, 2017, asserting claims for assault, assault by offensive contact , battery, and intentional infliction of emotional distress. Stan ek alleged Guandolo was acting on UTT’s behalf, contending that UTT was vicariously liable under the doctrine of respondeat superior. Appellants answered the lawsu it and filed counterclaims for assault, battery, and tortious interference with pros pective business relations. Appellants also asserted several affirmative defenses, in cluding justification and self-defense. On July 1, 2019, Stanek filed a no-ev idence motion for summary judgment, asserting appellants had no evidence to supp ort the elements of several of their claims and affirmative defenses. Relevant here, the trial court partially granted the motion against appellants on their affirmativ e defenses of justification and selfdefense. The jury trial commenced on September 9, 2019. On Septem ber 17, appellants filed their proposed jury instructions , which included a question of whether Guandolo acted in self-defense. The next da y, appellants filed a motion to reconsider

2 Ameiss recorded audio of the meeting and a hot el surveillance camera captured video. Our record contains a digital file in which the surveillance foot age has been overlaid with the audio recording. The recordings were admitted into eviden ce for the jury’s consideration.–4– summary judgment on their affirmative defens es. At the formal charge conference, the trial court denied the motion to rec onsider and refused the question as to Guandolo’s self-defense. The charge subm itted to the jury thus included assault questions as to both parties but a self-d efense question only as to Stanek. On September 20, the jury returned its verdict in favor of Stanek. The jury found that Guandolo assaulted Stanek, Stanek did not assault Guandolo, and Stanek was acting in self-defense. The jury also found Guandolo 51% responsible of causing or contributing to the cause of the altercati on and awarded damages to Stanek. The trial court entered judgment in Stanek’s favor, and this appeal followed. DISCUSSION
I. S TANDARD OF R EVIEW We review an order granting summary judgment de novo. JLB Builders, L.L.C. v. Hernandez , 622 S.W.3d 860, 864 (Tex. 2021). No-evidence summary judgments are reviewed under the same le gal sufficiency standard as directed verdicts. Arana v. Figueroa , 559 S.W.3d 623, 627 (Tex. App.—Dallas 2018, no pet.). The non-movant must pr esent evidence that raises a genuine issue of material fact on the challenged elements of the claim. See id. (citing T EX
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. P. 166a(i); S.W. Elec. Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex. 2002)). A no-evidence challenge will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight–5– to the only evidence offered to prove a vita l fact, (c) the eviden ce offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conc lusively establishes the opposite of the vital fact. Id. (citing Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013)).
II. A NALYSIS Appellants contend that th e trial court erred in gr anting no-evidence summary judgment against them on their affirmative defe nses of self-defense and justification. Appellee counters that summary judgment wa s proper because appellants’ response to the motion was deficient for failing to connect the evidence to the specific elements of their affirmative defenses. Appe llee further argues that, to the extent the trial court erred in granti ng summary judgment, we must affirm because the error was harmless and appella nts failed to meet their burden to show harm. In their reply brief, appellants argue that they were harmed by the trial court’s failure to include questions regarding self-defense and ju stifications in the jury charge. A. Justification Appellants contend the trial court e rred in granting summary judgment on their affirmative defense of justification. We disagree. “Justification” is not in itself an affirmative defense, but rather an um brella term for a cat egory of defenses. See Alonzo v. State , 353 S.W.3d 778, 781 (Tex. Crim. App. 2011) (“Chapter 9 of the Penal Code recognizes certain justifications that, under Section 2.03, are defenses to–6– prosecution.”). Included among these defens es are self-defense, defense of third person, and protection of one’s own property. See T EX
. P ENAL C ODE A NN . §§ 9.31, 9.33, 9.41. We have been ci ted no Texas cases, nor have we found any, recognizing justification as a stand-alone affirmative defense, let alone identifying the elements thereof. A trial court does not err in granting summary judgment on a claim or defense that is not rec ognized under Texas law. See Methodist Hosp. v. Zurich Am. Ins. Co. , 329 S.W.3d 510, 526 (Tex. App.—Houston [14th Dist.] 2009, pet. denied); Cerda v. RJL Entm’t, Inc. , 443 S.W.3d 221, 233 (Tex. A pp.—Corpus Christi 2013, pet. denied). Accordingly, we conclude the trial court did not err in granting summary judgment on appellants’ affirm ative defense of justification. B. Self-defense Appellants also contend th e trial court erred in granting summary judgment as to the claimed self-defense . Self-defense is an affirma tive defense to a civil assault claim. See Gibbins v. Berlin , 162 S.W.3d 335, 340 (Tex. App.—Fort Worth 2005, no pet.) (citing Price v. Short , 931 S.W.2d 677, 687 (Tex. App.—Dallas 1996, no writ)). The elements of self-defense ar e the same in civil and criminal cases. See id. at 340. With certain exceptions not applicable here, “a pe rson is justified in using force against another when and to the de gree the actor reasonably believes the force is immediately necessary to protect the acto r against the other’s use or attempted use of unlawful force.” T EX
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. § 9.31(a). The Penal Code defines–7– “unlawful” as “criminal or tortious or bot h and includes what w ould be criminal or tortious but for a defense not amounting to justification or privilege.” See id. § 1.07(a)(48). The “criminal or tortious” conduct which justifies the use of force includes assault, which a person commits by, among other things, “intentionally, knowingly, or recklessly caus[ing] bodily injury to another” or “intentionally or knowingly caus[ing] physical contact with a nother when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.” See id. § 22.01(a)(1), (3). The “reasonably believes” language of the self-defense statute “contains subjective and objective components.” Lozano v. State , 636 S.W.3d 25, 32 (Tex. Crim. App. 2021). “A defendant must subjec tively believe that another person used or attempted to use unlawful force . . . ag ainst the defendant and that the defendant’s use of unlawful or deadly force in response was immediately necessary.” Id. Additionally, the defendant’s subjective belief must be objectively reasonable. Id. A reasonable belief is one held by an “o rdinary and prudent man in the same circumstances as the actor.” Id. (quoting T EX
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. § 1.07(a)(42)). Here, appellee moved for no-evidence summary judgment on both appellants’ claim of assault and their a ffirmative defense of self-defense. With respect to selfdefense, appellee asserted there was no evid ence that: (1) appellee used or attempted to use force, (2) appellee’s use of force wa s unlawful, (3) appellants believed the use–8– of force was immediately necessary to avoi d imminent harm, or (4) appellants’ belief was reasonable. 3 In their response to the motion, appellants discussed their assault claim and their affirmative defense of sel f-defense under one heading. That section of the response states, in full: Plaintiff’s verbally and physica lly aggressive behavior toward Guandolo is more than sufficient to sustain Defendants’ assault and battery claims, as well as the affirm ative defenses of self-defense and justification. A person commits an assa ult under Nevada law 4 by “(1) [u]nlawfully attempting to use physical force against another person; or (2) Intentionally placing another person in reasonable apprehension of immediate bodily harm.” A battery is any willful and unlawful use of force or violence upon the person of another. Here, Plaintiff repeatedly cursed at Guandolo, mocked his service record, moved into Guandolo’s pers onal space while verbally urging a fight, bumped chests with Guandolo, and then grabbed Guandolo’s tie so tight it was strangling Guandolo. Itwas only after all of these things

3 Although the first, third, and fourth elements id entified by Stanek are correct, the second is not. As the Court explained in Lozano , self-defense does not require that the pl aintiff’s use of force be unlawful, but rather that the defendant reas onably believe it to be unlawful. See Lozano , 636 S.W.3d at 32. Thus, lawfulness of Stanek’s conduct could not have formed the basis of the trial court’s summary judgment on appellants’ affirmative defense of self-defense. See IE.Com, Ltd. v. Peeler , No. 05-19-00496-CV, 2020 WL 3424913, at *3 (Tex. App.—Dallas June 23, 2020, no pet.) (mem. op.) (no-evidence summary judgment improper where based on elements identified by the mova nt that are not elements of the non-movant’s claim). We therefore limit our analysis to the remaining elements identified by Stanek. See Merriman , 407 S.W.3d at 248 (where trial court does not state the b asis of its summary-judgment ruling, appellate court must affirm on any valid ground raised in the motion).
4 The trial court’s docket sheet reflects that on Sept ember 5, 2019, two days after filing this summaryjudgment response, appellants filed an opposed motion ur ging the trial court to apply Nevada law. The trial court entered an order on September 9. Our record do es not include the motion, a ppellee’s response, or the trial court’s order. Appellee asserts in his brief that th e trial court denied the moti on, but that is not evident from the record. Nevertheless, appellants do not raise any conflicts of law in this appeal. In the absence of a contention that another state’s laws differ from Texas la w, we presume the laws of that state “are the same as ours.” Coca-Cola Co. v. Harmar Bottling Co. , 218 S.W.3d 671, 679 (Tex. 2006).–9– that Guandolo attempted to defend himself and hit Plaintiff in the face once. There is no dispute that Plain tiff “touched” Guandolo during the Altercation by grabbing his tie. Gr abbing an individual by the tie and twisting it so tightly that it is strangling a person most certainly qualifies as “offensive.” Furthermore, Gua ndolo’s response to Plaintiff’s aggression, i.e. one punch to the f ace, was reasonable in order to avoid imminent harm by Plaintiff and certainly justified to protect his life. Accordingly, the Court should dism iss Plaintiffs no evidence motion for summary judgment because Defenda nts have produced more than a scintilla of evidence supporting their assault and battery claims, as well as the defenses of justification and self-defense. Stanek argues this response was insuff icient to raise a genuine issue of material fact on every challenged element of self-defense because it fails to connect the evidence to the individual elements of self-defense. We agree. When a party files a proper no-evidence motion for summary judgment, the burden shifts to the opposing party to “sufficiently respond” by producing more than a scintilla of evidence on each challenged elem ent of the claim or defense. See T EX
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. P. 166a(i); De La Cruz v. Kailer , 526 S.W.3d 588, 593 (Tex . App.—Dallas 2017, pet. denied). To meet that burden, the non- movant “must do more than itemize the evidence and then, in a section totally se parate from the recitation of the evidence, offer general conclusions that the above ev idence creates a genuin e issue of material fact.” See De La Cruz , 526 S.W.3d at 593. Rather, the non-movant must “point out with specificity where in his filings ther e was evidence on each of the challenged elements of his claims.” Id. ; see also Chambers v. Allstate Ins. Co. , No. 05-15-–10– 01076-CV, 2016 WL 3208710, at *12 (Tex. App. —Dallas June 9, 2016, pet. denied) (mem. op.) (“The issue is whether the trial court must search through all of the nonmovant’s evidence to determine if a fact issue exists without any guidance concerning what evidence creates an issue on a particular element.”). The Rules of Civil Procedure require that “the party seek ing to avoid the effects of a well-pleaded no-evidence motion for summary judgmen t bears the burden to file a written response that raises issues preventing summary judgment, and that points to evidence supporting those issues.” Chambers , 2016 WL 3208710, at *12. The trial court is not required to supply the defici ency, but instead must grant the motion where the non-movant fails to meet that burden. Id. Appellants’ summary judgment response c ontained neither references to, nor arguments regarding, the mental-state elem ents of self-defense. Appellants argue in their reply brief that they met their burde n by including footnote references to the summary judgment record and to the facts section of th e response, which further included citations to the summary judgment evidence, such as Guandolo’s affidavit, the video of the altercation, witness statements, deposition testimony from Stanek and other witnesses, and police reports. 5 We disagree. The issue is not whether there is something in this list of evidence that cr eates a fact issue on the elements of self5 We note that appellants’ response was twelve pag es in length with 268 pages of exhibits comprised primarily of deposition transcripts.–11– defense, but rather whethe r appellants sufficiently explained how the evidence supports each element. See Chambers , 2016 WL 3208710, at *12; De La Cruz , 526 S.W.3d at 593. The response shows they di d not. There is no mention of Guandolo’s subjective belief that use of force was immediately necessary or the objective reasonableness of that belief, 6 let alone a citation to a ny evidence supporting either element. Appellants argue that they presented mo re than a scintilla of evidence of Guandolo’s reasonable belief of harm th rough Guandolo’s a ffidavit. Appellee counters that the affidavit is not properly be fore us. In an orde r dated September 18, 2019, the trial court sustained Stanek’s obj ection to, and struck, Guandolo’s affidavit on hearsay grounds. Appellants did not challe nge that order on a ppeal. After appellee identified the order in his response brief, appellants argued for th e first time in reply that the affidavit was properl y before the trial court beca use the order striking it was signed nine days after the order granting summary judgment, which expressly stated that the trial court considered the respons es and evidence on file. A party may not raise a new issue for the first time in a reply brief. See Private Mini Storage Realty,

6 Appellants argue they addressed the reasonablen ess element with this sentence: “Furthermore, Guandolo’s response to Plaintiff’s aggression, i.e. one punch to the face, was reasonable in order to avoid imminent harm by Plaintiff and certainly justified to pr otect his life.” We disagree. There is no footnote or record citation following this sente nce. Moreover, the sentence miscons trues the reasonableness element of self-defense by arguing that Guandolo’s conduct—“one punch to the face”—was reasonable. The objective element of self-defense, however, requires evid ence of the reasonableness of the defendant’s belief , not his conduct. See T EX

. P ENAL C ODE A NN . § 9.31(a).–12– L.P. v. Larry F. Smith, Inc. , 304 S.W.3d 854, 859 (Tex. A pp.—Dallas 2010, no pet.). We determine this issue is not properly before us. We conclude the trial court did not err in granting summary judgment on appellants’ affirmative de fense of self-defense. CONCLUSION We conclude that the trial court did not err in granting no-evidence summary judgment on appellants’ affirm ative defenses of justifi cation and self-defense. We overrule appellants’ sole issue. Accordingl y, we do not reach the parties’ arguments regarding whether appellants were harmed by the granti ng of summary judgment in not submitting the question to the jury. See T EX
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. P. 47.1. We affirm the trial court’s judgment.

191550F.P05 /Bonnie Lee Goldstein / BONNIE LEE GOLDSTEIN JUSTICE–13– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOHN GUANDOLO AND SAINT GEORGE’S ALLIES, INC. D/B/A UNDERSTANDING THE THREAT, Appellants
No. 05-19-01550-CV V. RICHARD STANEK, Appellee On Appeal from the 162nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-17-14892. Opinion delivered by Justice Goldstein. Justices Molberg and Nowell participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee RICHARD STANEK recover his costs of this appeal from appellants JOHN GUAN DOLO AND SAINT GEORGE’S ALLIES, INC. D/B/A UNDERS TANDING THE THREAT.
Judgment entered March 22, 2022.