Court of Appeals of Texas, Second District, Fort Worth
P.C. as next friend of C.C., a Minor, Appellant
Appeal from the 352nd District Court Tarrant County, Texas
Trial Court No. 352-303940-18
Sudderth, C.J.; Bassel and Womack, JJ.
SUDDERTH CHIEF JUSTICE
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).
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.
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
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. 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. 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. 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").
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."
Rule of Evidence 513 states,
(a) Comment or Inference Not Permitted. Except as permitted
in Rule 504(b)(2),  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 ...