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P.C. v. E.C.

Court of Appeals of Texas, Second District, Fort Worth

August 26, 2019

P.C. as next friend of C.C., a Minor, Appellant
v.
E.C., Appellee

          On Appeal from the 352nd District Court Tarrant County, Texas Trial Court No. 352-303940-18

          Before Sudderth, C.J.; Bassel and Womack, JJ.

          OPINION

          BONNIE SUDDERTH CHIEF JUSTICE

         Appellant P.C. (Mother) sued Appellee E.C. (Grandmother) for negligence and civil conspiracy related to the alleged sexual assault of C.C. (Granddaughter) by T.C., Grandmother's spouse. Grandmother filed a no-evidence motion for partial summary judgment on the civil conspiracy claim, challenging the sufficiency of the evidence to support each of the claim's discrete elements: (1) two or more persons, (2) an object to be accomplished, (3) a meeting of the minds on the object or course of action, (4) one or more unlawful, overt acts, and (5) damages occurring as a proximate result. See Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005) (setting out elements of civil conspiracy).

         In her response to Grandmother's no-evidence motion, Mother incorporated portions of Grandmother's deposition and T.C.'s deposition into the factual recitation of her response, and she attached to her response Grandmother's September 6, 2017 deposition, a copy of a September 17, 2013 letter from the Department of Family and Protective Services (DFPS), and T.C.'s July 23, 2018 deposition, in which T.C. pleaded the Fifth Amendment in response to multiple questions about the child, Grandmother, and the alleged sexual assault. In her deposition, Grandmother said that T.C. had been arrested in 2014 for sexual assault but that a grand jury had no-billed the sexual assault allegations against him. Grandmother did not refuse to answer any questions on the basis of the Fifth Amendment.

         Grandmother objected to Mother's summary judgment evidence, complaining, among other things, that an adverse inference could not be drawn from T.C.'s assertion of his Fifth Amendment privilege against self-incrimination. At the summary judgment hearing, the trial court sustained Grandmother's objection to the DFPS letter and overruled Grandmother's objections to the deposition excerpts. The trial court granted Grandmother's no-evidence motion and, in its summary judgment order, the trial court sustained in part and denied in part Grandmother's evidentiary objections without identifying a specific ruling as to each objection.

         The trial court signed an order granting Mother's unopposed motion to sever her civil conspiracy claim on October 25, 2018, making the summary judgment final as of that date.[1] On November 29-three days after the trial court's plenary power had expired-the trial court signed a written order on its evidentiary rulings.[2] In its written order, the trial court sustained Grandmother's objection to the excerpts of T.C.'s deposition "consisting of the questions propounded by plaintiff's counsel because an adverse inference cannot be drawn from his assertion of his Fifth Amendment privilege against self-incrimination" and overruled Grandmother's objection to the DFPS letter. Whether this written order is valid or void is irrelevant to our disposition below, so we do not address it here.[3] See Tex. R. App. P. 47.1 (requiring the court to hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to the appeal's final disposition). But see Rankin v. Union Pac. R. Co., 319 S.W.3d 58, 65 (Tex. App.-San Antonio 2010, no pet.) (holding that an order signed after the trial court's plenary power had expired was not a "timely ruling").

         In a single issue, Mother asks us to determine whether nonparty T.C.'s invoking his Fifth Amendment privilege gave rise to an adverse presumption under rule of evidence 513 sufficient to defeat Grandmother's no-evidence motion for summary judgment, arguing that "the summary judgment record contains ample evidence to raise a genuine issue of material fact on all challenged elements through the application of an adverse presumption."

         Texas Rule of Evidence 513 states,

(a) Comment or Inference Not Permitted. Except as permitted in Rule 504(b)(2), [4] neither the court nor counsel may comment on a privilege claim-whether made in the present proceeding or previously-and the factfinder may not draw an inference from the claim.
(b) Claiming Privilege Without the Jury's Knowledge. To the extent practicable, the court must conduct a jury trial so that the making of a privilege claim is not suggested to the jury by any means.
(c) Claim of Privilege Against Self-Incrimination in a Civil Case. Subdivisions (a) and (b) do not apply to a party's claim, in the present civil case, of the privilege against sef-incrimination.
. . . .

Tex. R. Evid. 513 (emphasis ...


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