## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

__ __ _______________________ No. 02

- 18

- 0038 9

- CV

___________________________

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

- 303940

- 18
Before Sudderth, C.J.; Bassel and Woma ck , JJ. Opinio n by Chief Justice Sudderth 

### P.C. AS NEXT FRIEND OF 

### C.C., A 

### M INOR 

### , Appellant

V


### . E.C. , Appellee2 OPINION Appellant P.C. (Mother) sued Appellee E.C. (Gr andmother) 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, chal leng ing the suf

ficiency 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 o bject or course of action , (4) one or more unlawful, overt acts , and (5 ) da mages 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 m otion, Mother incorporated portions of Grandmother’s depositio n an d T.C.’s deposition into the fa ctual recit ation of her response, and she attached to her response G randmother’s September 6, 2017 deposition , a copy of a September 17, 2013 letter from the D epartment of Family and
Protective Service s (D FPS), and T. C.’s July 2 3, 2018 dep osition, in which T.C. pleaded the Fifth Amendment in re s ponse to multiple questions about the child , Grandmother, and the alleged sexual assault

. In her deposition, Grandmoth er said
that T.C. had b een arrested in 2014 for sexual assault b ut that a g rand jury had n o
billed the sexual assault allegations against him

. Grandmother did not refuse to answer any questions on the basis of the Fifth Amendment.3

Grandmother objec ted to Mother’s summary judgment evidence, co mplaining , among other things, that an adverse inference could not be drawn from T.C.’s assertion of his Fifth Amendment privilege against self

- incrimination. A t the summary judgment hearing, the tr ial court sustaine d Grandmother’s objection t o the
DFPS letter and overruled Grandmother’s objections to the deposition excerpts. The trial court granted Grandmother’s no

- evidence motion and, i n its summary judgment order, the trial court sustained in p art and denied in pa rt Grandmother’s evid entiary obj ections wit hout 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, mak ing the summary judgment fi nal
as of that date. 1 On November 29

— th ree days af ter the tri al court’s plenary power had expired

— t he trial court sig ned a written order on its evidentiary rulings

. 2 In its

1 Because of the role of the Fi fth Amendment in this case , th e parties could have reques t ed a permissive appeal under civil prac tice and remedies code section 51.014(d) as an alternative to severance

. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (stating that on a party’s motion or sua spon te, a trial court in a civil action may, by writ ten order, permit an appeal from an orde r th at is not otherwise appealable if the order to be appealed involves a controlling qu estion of law as to which there is a substantial ground for difference of opinio n and an immediat e app eal from the order may mat eria lly advance the ultimate termination of the litigation).

2 At first blush the order appear ed to have been dated November 24, 2018, the last day of t he trial court’s plenary power. But on further examination , the order mus t hav e been signed on November 29

— the loop on the num ber 9 was not comp lete ly closed , giving it the initial appearance of being a 4

— because the record reflects that Grandmother’s co unsel did not sub mit the draft order until November 27, 2018

. T he trial cou rt ’ s docket entry reflects that the order was signed on Nove mber 29, 2018

.4

written order, the trial court sustained Gr andm other’s objection to the excerpts of T.C.’s deposition “consisting of the questions p ropounded b y plaintiff’s counsel
because an adverse inference cannot be drawn from his assertion of his Fifth Amendment privilege against self

- incrimination” and overr uled Grandmother’s objection to the DF PS letter. Whether this writ ten order i s 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 th at i s as brief as practicable but
that addresses every issue raised and necess ary to the appeal’s fi nal 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 tria l co urt’s plenary power had expired
was not a “ti mely ruling”). In a single issue, Mother asks us to determine whether nonparty T.C.’s invoking his Fifth Amendment privileg e g a ve rise to an adverse presumption under
rule of evidence 513 sufficient to defea t Gr andmother’s no

- evidence motion for summary ju dgment , arguing that “the summary judgment record c ontains 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,

3 Mother does not argue that the trial court erred by excl uding the DFPS letter.5

(a) Comment or Inference Not Permitted. Except as permitt ed 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 factfin der may not draw an inference from the claim. (b) Claiming Privil ege Without the J ury ’ s Knowledge. To the extent practicable, the court must conduct a jury trial so that t he making of a privilege claim is not sugge sted to the jury by any means. (c) Claim of Privilege Against Self

- Incrimination in a Civil Case. Subdivis ions (a) and (b) do not apply to a party’s claim, in the present civil case, of the privilege against self

- incrimination.

. . . . Tex. R. Evid. 513 (emphasis added). Thus, a s set out in subs ection (c) above , in a civil case, a factfinder may draw negat ive inferences fr om a party ’s invo cation of the Fifth Amendment privilege against
self

- incrimination. Wil

z v. Flournoy , 228 S.W.3d 674, 677 (Tex. 20 07) ; Webb v.
Maldonado , 331 S.W.3d 879, 8 83 ( Tex. App.

— Dallas 2011, pet. denied). Subsection (c) provides a narrow exceptio n to the general rule stated in rule 513(a), which prohibits drawing any inference from a claim of privilege. See Tex. R. Evid. 513 (a) , (c) ; Romero v. KPH Consol., Inc. , 16 6 S. W.3d 212, 215 (Tex. 2005) (referencing rule 513(a) in the

cont ext of malice in the s urgeon credential ing process). The idea behind this narrow exception is that a party in a civil case who uses the privilege to prot ect relevant
information , instead of to avoid subjecting himself to criminal responsibility, converts

4 Rule 504(b)(2) states that in a crim inal case, if oth er evidence indicates that an accus ed’s spou se c ould testify to relevant ma tters, the accused’s failure to call the spouse to testify is a proper subject of comment by counsel. Tex. R. Evid. 504(b)(2).6

the Fifth Amendment pr ivilege from shie ld to sword against the other party who
needs that information

. See T ex . Dep’t of Public Safety Officers Ass’n v. Denton , 897 S.W.2d 757, 760

– 61 (Tex. 199 5).
But ordinarily the adverse inference goes into effect whe n a party in a civil

a ction refuses “‘t o testify in response to probative evidence offered against [ him ] .’” Webb , 331
S.W.3 d at 883 (quoting Baxter v. Palm igiano , 425 U.S. 308, 318, 96 S. Ct. 155 1, 1558 (1976)) ; see also In re A.H. , No. 02

- 17

- 00222

- CV, 20 17 WL 5180785, at *4 (Te x. App.

— Fort Wort h Nov. 9, 2017, pet. denied) ( per curiam) (mem. op.) (referencing
Baxter for the proposition tha t the Fifth Amendment does not f orbid adverse inferences against par ties to civil actions when they refuse to testify i n response to
p robative evidence offe red against t h em)

. And a claim of privilege will not substitute
for relevant evidence. We bb , 331 S.W.3d at 883 (“Without some prob ative evidence as
to the elements of the Webbs’ claims, any negative inference that mig ht be drawn
fro m Maldonado’s invocati on of his privile ge against self

- incrimination cannot rise beyond mere suspicion.”).
A ltho ugh Mother acknowledges that the federal rules of evidence do not
contain the equ ivalent of Texas Rules of Evidence 503

– 513 , she nevertheless r efers us to federal pr ecedent to constr ue the application of rule 513 in the case before us , citing Brink’s, Inc. v. New York , 717 F.2d 700, 708 (2d Cir. 1983), 5 United States v. 4003

-

5 In Brink’s

, t he City of New York c ontracted with Br ink’s to collect parking meter coin s bu t can cell ed the contract after some of the Brink’s employees stole the7

4005 5 th A ve. , 55 F.3d 78, 83

– 84 (2d Cir. 1995), 6 Wehling v. Columbia Br oadcast ing System , 608 F. 2d 1084, 1086

– 8 7 (5th Cir. 1979) (holding that it was constitutionally impermissible to dis miss with prejudice libel action of plain tiff under investigation by grand ju ry j ust because he exercised his privilege again st self

- incrimi nation in his deposition) , FDIC v. Fid. & Deposit Co. , 45 F.3d 969, 978 (5th Cir. 1995), 7 and LiButti

funds . 717 F.2d at 702. Brink’s sued the City for money due under the contract, the City counterclaimed for breach and negligen t hiring and supe rvision, and Brink’s served a third

- par ty co mpla int on some of its employee s that had been arrested, charged, and c onvicted of theft of the parking meter fun ds. Id. Those employees

— parties to the case

—

i nvoked their Fifth Amendment privil ege against self

incrimination at trial. Id. at 707 . T he co urt held that the employees’ cl aims of privilege were admissible and co mpetent evidence under the case’s circumst ances given that there was “no constitutional mandate [ under ] Baxter . . . against t heir admission.” Id. at 710.

6 In 5th Ave. , a civil forf

eit ure case, the party opposing fo rfeiture , who had been convicted of posses sing and conspiring to distribute heroin a nd cocaine, attempted to withdraw his invocations of his Fifth Amendment privilege against self

- inc rimination from earlier in the forf

eitu re case , but the district court di d not allow him to do so and ruled that he could not submit any material previously asserted to be within the privilege. 55 F.3d at 80

– 81. The court held that while a prior assertio n of the Fifth Amendment would not prec lud e a litigant’s later attempt to submit evidence, the district court did n ot exceed its discretion when it barred th e defendant from testifying to matters covered by his prior Fifth Amendment claim. Id. at 80. In its discussion of the Fifth Amendme nt p riv ileg e’s use in civil cases, the court observed that an invocation of the privilege is not a substitute for relevant evidence and that the party who asserts the privilege must bear the consequence o f lack of evidenc e. Id. at 83.

7 After the FDIC took rec eiv ersh ip of a bank that failed af ter its guarantor refused to pay its claim under a fidelity bond, it stepped into th e bank’s place in the three

- week jury trial on the fidelity bond. 45 F.3d at 973. The bond compan y argued, among other things, that the dis tric t court improperly instruct ed the jury that it could draw an inferenc e from an invocation of the Fifth Amendmen t by nonparties

. H owever, the district court instructed the jury not to find liability base d solely upon8

v. United Stat

es , 178 F.3d 114, 119

– 20 (2d Cir. 1999) ( holding district court did not
abuse its discretion in assessing the weight it accor ded to the adve rse inference when
its ru ling did not rest solely upon the adverse inference)

. Mother a lso relies upon Wil

- Roye Investment Co. I

I v. Washington Mutual Bank, FA , 142 S.W .3d 393 (Tex. App.

— El Paso 2004, no pet.), to support her argument that nonparty T.C .’ s assertion of the Fifth Amendment privilege against self

- incrimination
constitutes suffi cient evidence to defeat the no

- evidence summary judgment on her conspiracy c laim

. In Wil

- Roye , the El Paso court held that the evidence establishe d
th at because no np arty Steve Holder

— who exercised his Fifth Amendment right during his dep osition and who settled with the appellan ts

— had acted as the appellants’ agen t , t he appellants would have obtained an unfair advantage if they had been able to prese nt f

avorable port

io ns of his deposition testimony while precluding

cross

- examination on the unfavorable, privileged portions that di rectly related to the appellee bank’ s de fense. Id. at 403, 407. The court also held that even if the trial
court had erred by drawing adver se inferences from Holder’s privilege claim, other
evidence established th at Holder was involved in the fraudulent transaction such that
the trial cour t co uld have concluded, independent of the privilege claim, that Holder
lacked credibili ty. Id. Mother as ks us to construe “party” under rule 513 in the

an adverse inference from a witness’s in vo cat ion of the Fifth Amendment, and the fifth circuit court refused “to adopt a rule that w ould categorically bar a party from callin g, as a witness, a non

- party who had no special relationship to the party, for the purpose of havin g that witness exercise his Fifth A mend men t right.” Id. at 977

– 78.9

manner that the El Paso court did in Wil

- Roye using rule 801. See id. at 406

– 07 (“ [W]e conclude that the rationale for allowing introduction of an agent’s admissions agai nst the principal unde r Texas Rule of Evidence 801(d)(2)(D) also justifies admission of
evi dence showing that the agent/witness has exercised his Fifth Amendment privil ege at least where the questions substantially relate to a party’s claim or defense.”).
Mother also ref

ers u s to Ward v. Da llas Texas National Title Co. , 735 S.W.2d 919 (Tex. Ap p.

— Dallas 1987, writ ref’d n.r.e.), to su pport her argument that “[p]roviding
gre ater protections to a non

- party who faces no civil liability than would be provided to a party facing such liability is i nconsistent with basic concepts of fairness and level playing fields.” Wa rd was a traditional summary judgmen t ca se in which two alleged

co
- conspirators invoked the Fifth Amendment privilege agains t testifying. Id

. at 920

– 22. In that case the court held that the summary judgment record raised fact questions with regard to whe ther a conspiracy existed, whether e ach appellee was a member, and the damages for any real loss of value of the property in a real

- estate fl ipping scheme. Id. at 920

– 22 & n.6 (noti ng that the defendants’ “self

- ser ving denials are not readily controvertib le and thus not proper summary judgm ent evidence”).
Because two of the defendants’ assertions of their Fifth Amendment priv ilege against
sel f

- incrimination “raise[d] a material ques tion of fact as to the existence and constituency of the alleged conspirac y , ” t he court concluded that summary jud gment was not appropriate

. Id. at 921

– 22. The court also based its conclusion on t he nature10

of the plaintiffs’ claims and the defendants’ re liance upon the interested witness testimony that was not readily controvertible. Id. We note ab initio that

— other t han Supreme Court precedent on questions of
federal law

— we are not bound by federal prec edent. See P idge on v. Turner

, 538 S.W.3d 73, 83 (Tex.) , c

ert. denied , 138 S. Ct. 505 (2017 ) ; Fort Worth ISD v. Palazzolo , No. 02

- 18

- 00205

- CV, 2019 WL 2454866, at *16 ( Tex. App.

— Fort Worth June 13, 2019, no pet. h.) (mem. op.); Barstow v. State , 742 S.W.2d 495, 500

– 01 & n.2 ( Tex. App.

—

Austi n 1987, writ denied)

. Lik ewise, while we respect our siste r courts’ decisions, we are not bound by their precedent either. See Palazzo lo , 2 019 WL 2454866, at *14 ; Raymax Mgmt., L.P. v. SBC Tower Holdings LLC , No. 02

- 16

- 000 13

- CV, 2017 WL 38 21897, at *1

n. 4 (Tex. App.

— Fort Worth Au g. 31, 2017, pet. denied) (mem. o p. on reh’g). In her deposition, Grandmot her testified that T.C. was investig ated by Child Protective Services (CPS) with regard to Granddaughter’s 2006 sexual assau lt allegations ag ainst an u nknow n male but that they did n ot find out that T.C. had been

a subject of CPS’s investigation until 2013

. She stated that she did not recall CPS ’s asking T.C. any questions about anything related to allegations of the sexual assaul t of Granddaughter in 2 006 , but she did recall that i n 2006, CPS told Gran dmother that they “ didn ’ t have a reason t o believe” that T.C. had sexually as saul ted Granddaughter
and that they could resume their regular visitation with the child

. Gran dmother testified that between 2 006 a nd 2013, she could not rem ember any specifi c time when the children were left alone with T.C. or Granddaughter’s11

s ayin g anything about being scared to be alone with T.C. or T.C.’s having hurt her.
Grandmother said that she first heard about allegatio ns ag ainst T.C. for sexually

as sault ing Granddaughter in August 2013, when the Fort Worth police came to their
hou se with a search warrant. The police took the computer, T.C.’s cell phone, a video

camera, ano ther camera, and all of the computer disks and jump drives, including the
file s that she needed for her job at a sc hool. After the police le ft, T.C. told Grandmother that Granddaughter had accused him of sexually assaulting her. Although T.C. was arrested in 2014, a grand jury no

- billed his case.
D u ring T.C.’s deposition, T.C. ga ve varia tions of the following statement

—

“ Ba sed on the advice of Counsel, I assert my Fifth Amendment rights under the
United States Constitution an d Texas Constitution and choose to remain silent ”

— i n response to :

• whether he had e ver been arrested,

• whethe r Grandmo ther had ever attempted to obtain l egal custody of or secure visitation rights to Granddaughter,

• whether he told Grandmoth er that CPS was i nvestigating him for Granddaughter’s sexual abuse allegation,

• whether Gra ndmot her had told anyone that h e had sex ually abused Granddaughter,

• wheth er G randmother should have notified law enforcement if she had reason to know that he had sexually abused Granddaughter,

• whether he and Grandmother had a meeting of the minds rega rding a plan to cover up his se xual abus e of Granddaughter,12

• whether Grand moth er had ever seen or heard anything or locked Granddaughter in a closet as punishment for reporting sex ual abuse, and

• whether he had attempted to gain legal custody or secure v isita tion rights with Granddaug

hter “for purposes of having access to her f or s ex , ” among others.
Because T.C. had been charged with a crime, h e had reason to i nvoke his Fifth Amendment right against self

- incrimination with regard to these questions

— to prote ct himself, not G randmothe r, from criminal prosecuti on . Grandmother never invoked the Fifth Amendment during her deposition, and T.C. was no t a party to the civil lawsuit brought by Mother against Grandmother. Nor is there an y evidence indicating th at Gr andmother had act ed as T.C .’s agent. Cf. Wil

- Roye I nv . , 142 S.W.3d

at 403, 407.
On these facts, we decline to extend rule 513 to allow the d rawing of an
adve rse inference against Grandmother from T.C.’s assertion of his Fifth Amendment privilege. Ac cordi ngly, w e conclude that the trial court did not err b y gr anting Grandmother’s no

- evidence motion for summary judgment when nonparty T.C.’s
Fif th Amendment invo cation did not give rise to an adverse inference against her

. See
Tex. R. Civ. P. 166a(i) (p rovid ing that a fter an adequate time for discovery, a par ty, without presenting summary judgment evidence, may move for summary judgment on the gr ound that “there is no evidence of one or more essential elements of a claim
or defense on which an adverse pa rty w ould have the bur den of pr oof at trial” and
that the tri al court must grant the motion unless the nonmovant provides summary13

judgment evidenc e raising a genui ne issue of material fact); see also Dyer v. Accredited Home Lenders, Inc. , No. 02

- 11

- 00046

- C V, 20 12 WL 335858, at *3

– 5 (Tex . App.

— Fort Worth Feb. 2, 2012 , pet. denied) (mem. op.) (explaining that when filing a no

evidence motion, the mova nt’s burden is to produce a legally sufficient motion and then the nonmovant has the burden to prod uce summary judg ment evidence rai sing a
ge nuine issue of material fa ct )

. Because Mother’s summary judgment evidence was insufficient to show one or
more of the elements of a civil conspiracy , including that two or more person s had sought to accomplish an unlawful c ourse of action , the t rial cour t did not err by granting Gran dmother’s motion for summary judgment

. See Tri , 162 S.W.3d at 556 ; Webb , 331 S.W.3d at 882, 884 (hold ing that by relying solely on Maldonado’s deposition excerpts in which he asserted his Fifth Amend ment right agains t self

in crimination to all questio ns b esides his name, the Webbs failed to present the trial
court with more than a scintil la of probative e vidence to raise a fact issue on any of the challenge d elements in Maldonado’s motion for no

- evide nce summary judgm ent).
We overrule Mother’s sole is sue. Having overruled Mother’s sole issue , we affirm the trial court’s judgment.

/s/ Bonnie Sudderth Bonni e Sudderth Chief Justice Delivered: August 26, 201914