Affirmed in Part and Reversed and Rendered in Part and Memorandum
Opinion filed March 14, 2019.




                                     In The

                     Fourteenth Court of Appeals

                             NO. 14-17-00954-CV

                    IN THE INTEREST OF T.A.Q., A CHILD


               On Appeal from the County Court at Law No. 2
                         Galveston County, Texas
                    Trial Court Cause No. 05-FD-0444

                    MEMORANDUM OPINION

      This appeal involves jury findings in favor of T.A.Q.’s mother on a civil
conspiracy claim in an order modifying the parent-child relationship. In seven
issues, T.A.Q.’s father and paternal grandmother complain that the evidence is
legally and factually insufficient to support the jury’s findings, the trial court
committed evidentiary error and charge errors, and exemplary damages were
awarded based on a non-unanimous jury verdict. For the reasons explained below,
we reverse the order in part and render in favor of T.A.Q.’s mother on the
conspiracy claim.
                                  I. BACKGROUND

      In July 2015, the trial court signed an order in a suit to modify the parent-
child relationship appointing Elyse Grubb (“Mother”) and James Christopher
Quebe (“Father”) joint managing conservators of their teenage daughter, T.A.Q.
Father was given the exclusive right to determine T.A.Q.’s primary residence.
Mother was given possession of T.A.Q. at the times and under the terms and
conditions recommended by T.A.Q.’s counselor. Although T.A.Q. periodically
stayed with Father, she lived with Father’s parents, Mary Katherine Quebe
(“Grandmother”) and John Quebe (“Grandfather”) and attended high school in the
Santa Fe school district. Mother lived in Houston.

      In November 2015, Father was arrested on a motion to revoke probation
from a felony offense in 2011. As soon as Mother found out about the arrest, she
moved to modify the July 2015 order, requesting, among other things, that she be
appointed as the person with the right to designate T.A.Q.’s primary residence.
Mother also requested that Father be denied access to T.A.Q. or, alternatively, that
Father’s periods of visitation be supervised.

      Within days, Grandmother and Grandfather intervened in the suit.
Grandmother and Grandfather requested that the July 2015 order be modified to
appoint them as sole managing conservators of T.A.Q.; to give them the exclusive
right to establish T.A.Q.’s primary residence and to make all educational decisions;
to appoint Mother and Father as possessory conservators; and to require that
Mother’s possession of and access to T.A.Q. be supervised.

      The legal dispute among the parties over custody and possession of T.A.Q.
quickly became contentious. The trial court held numerous hearings and signed
several temporary and interim orders. Mother eventually amended her petition for
modification to include civil tort claims against Father, Grandmother, and
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Grandfather, alleging that Father, Grandmother, and Grandfather engaged in
unlawful actions to keep T.A.Q. away from her and to alienate T.A.Q from her.
Mother asserted claims of civil conspiracy, abuse of process, and intentional
infliction of emotional distress, and sought actual and exemplary damages.

      A jury trial on the parties’ competing claims concerning modification of the
parent-child relationship and Mother’s tort claims was held over several days in
July 2017. Because Grandfather had passed away in October 2016, Mother
proceeded with her tort claims against Father and Grandmother only.

      The jury found that there had been a substantial change as to the
circumstances of T.A.Q. and that it was in the best interest of T.A.Q. that Father be
appointed the child’s sole managing conservator.1 As to Mother’s tort claims, the
jury found that Grandmother engaged in a civil conspiracy against Mother and
awarded Mother $200,000.00 in past mental anguish damages and $300,000.00 in
exemplary damages. The jury did not find that Father engaged in a civil
conspiracy. The jury also did not find that either Grandmother or Father committed
an abuse of process. Mother did not submit a jury question on intentional infliction
of emotional distress.

      On September 21, 2017, the trial court signed an “Order in Suit to Modify
Parent-Child Relationship” appointing Father sole managing conservator of T.A.Q.
and appointing Mother possessory conservator. The order incorporated the jury’s
findings on liability, damages, and attorney’s fees awards. Grandmother and Father
filed several post-judgment motions, all of which were denied by written order.

                                     II. ISSUES ON APPEAL

      Grandmother and Father (together, “appellants”), raise seven issues on

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          The parties do not appeal the trial court’s modifications of the parents’ rights and duties.

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appeal: (1) the trial court abused its discretion by denying admission of all of the
temporary and interim orders issued by the court between July 2, 2015 and the trial
date of July 17, 2017, as exhibits; (2) the jury charge was fundamentally defective
for failing to instruct the jury that the burden of proof for civil conspiracy was by
“clear and convincing evidence”; (3) the evidence is legally and factually
insufficient to support the jury’s finding that Grandmother engaged in civil
conspiracy; (4) the jury charge was fundamentally defective for failing to define
“past mental anguish” properly; (5) the evidence is legally and factually
insufficient to support the jury’s finding that Mother suffered past mental anguish
damages of $200,000.00; (6) the evidence is legally and factually insufficient to
support the jury’s finding that Mother was entitled to receive $300,000.00 in
exemplary damages; and (7) the verdict awarding Mother exemplary damages was
not unanimous.

      Because we conclude that the evidence is legally insufficient to support the
jury’s findings of liability and damages against Grandmother for conspiracy, we
sustain issues three, five, and six, and do not reach the remaining issues.

                              III. CIVIL CONSPIRACY

      In their third issue, appellants contend that the evidence is legally
insufficient to support the jury’s finding that Grandmother engaged in a civil
conspiracy. In their fourth and fifth issues, appellants contend that the evidence is
legally insufficient to support the jury’s findings of past mental anguish damages
of $200,000.00 and exemplary damages of $300.000.00.

A.    Legal Sufficiency Standard of Review

      The test for legal sufficiency is whether the evidence at trial would enable
reasonable and fair-minded people to reach the verdict under review. City of Keller


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v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We view the evidence in the light
most favorable to the fact finding, indulging every reasonable inference that would
support it and disregarding contrary evidence unless a reasonable factfinder could
not. Id. at 822. Evidence is legally insufficient to support a disputed fact finding
when (1) evidence of a vital fact is absent, (2) rules of law or evidence bar the
court from giving weight to the only evidence offered to prove a vital fact, (3) the
evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the
evidence conclusively establishes the opposite of the vital fact. Id. at 810.

B.    Evidence of Liability for Conspiracy

      In their third issue, appellants contend that Mother presented no evidence to
support any of the elements of a conspiracy. Among other things, appellants argue
that there was no evidence that Grandmother or anyone else conspired to, or
committed, any unlawful act, and no evidence of any unlawful act. We agree.

      Civil conspiracy is a combination by two or more persons to accomplish an
unlawful purpose or to accomplish a lawful purpose by unlawful means. Massey v.
Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). The elements of civil
conspiracy are (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 as a proximate result. Tri v. J.T.T., 162 S.W.3d 552,
556 (Tex. 2005).

      Civil conspiracy “is not a freestanding tort cause of action.” Guardian
Transfer & Storage Inc. v. Behrndt, No. 14-14-00635-CV, 2016 WL 1267911, at
*5 (Tex. App.—Houston [14th Dist.] Mar. 31, 2016, no pet.) (mem. op.) (citing
Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 668 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied)). Conspiracy is considered a
“derivative tort” because “a defendant’s liability for conspiracy depends on
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participation in some underlying tort for which the plaintiff seeks to hold at least
one of the named defendants liable.” Tilton v. Marshall, 925 S.W.2d 672, 681
(Tex. 1996); Behrndt, 2016 WL 1267911, at *5; Hong Kong Dev., Inc. v. Nguyen,
229 S.W.3d 415, 448 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (op. on
reh’g). Thus, to prevail on a civil conspiracy claim, the plaintiff must show the
defendant was liable for some underlying tort. Four Bros., 217 S.W.3d at 668.

      The jury was instructed on the elements of conspiracy listed above,
including the requirement of “one or more unlawful, overt acts,” and asked
whether Grandmother engaged in a conspiracy against Mother. The question was
not predicated on a jury finding of any other tort claim. Thus, the jury’s affirmative
finding on the conspiracy claim could support the judgment only if evidence
existed of another unlawful act found by the jury. See Chu v. Hong, 249 S.W.3d
441, 444 & n.4 (Tex. 2008) (explaining that conspiracy question not conditioned
on any other tort finding could support the judgment “if there was some evidence
of a conspiracy to commit any of the three other torts in the charge”); Behrndt,
2016 WL 1267911, at *5 (holding that plaintiff could not prevail on jury’s civil
conspiracy finding when the question was not conditioned on any other tort finding
and other submitted tort claims were either rejected by jury or failed as a matter of
law); Hong Kong Dev., 229 S.W.3d at 447–49 (holding that plaintiff could not
recover on jury’s finding of a conspiracy involving “a common objective or course
of action that resulted in damages” to plaintiff when the evidence was legally
insufficient to support the only other tort claim submitted to the jury).

      Here, the only other tort claim Mother submitted for the jury’s consideration
was abuse of process, but the jury found no abuse of process and awarded no
damages on that claim. Mother does not challenge this finding. Absent an
underlying unlawful act found by the jury, Mother cannot prevail on her

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conspiracy claim. See Tilton, 925 S.W.2d at 681; Behrndt, 2016 WL 1267911, at
*5; Hong Kong Dev., 229 S.W.3d at 447–48. Because the evidence is legally
insufficient to support the jury’s conspiracy finding, we sustain appellants’ third
issue.

C.       Actual and Exemplary Damages

         In their fifth and sixth issues, appellants argue that the evidence is legally
insufficient to support the jury’s findings that Mother suffered past mental anguish
damages of $200,000.00 and was entitled to exemplary damages of $300,000.00.

         The jury’s findings of actual and exemplary damages were expressly
conditioned on the jury’s finding that Grandmother engaged in a civil conspiracy.
As we have explained, Mother’s civil conspiracy claim fails because there is no
evidence to support it. Because there is no evidence of a conspiracy, Mother is not
entitled to an award of actual damages. See Hong Kong Dev., 229 S.W.3d at 449–
50 (holding that plaintiff was not entitled to award of mental anguish damages
expressly predicated on finding of tortious interference when evidence was legally
insufficient to support that finding). And, because recovery of actual damages is a
prerequisite to the receipt of exemplary damages, Mother is not entitled to recover
exemplary damages. See Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793
S.W.2d 660, 667 (Tex. 1990); Hong Kong Dev., 229 S.W.3d at 451. Accordingly,
we sustain appellants’ fifth and sixth issues.

                                   IV. CONCLUSION

         We sustain appellants’ third, fifth, and sixth issues. We do not reach the
remaining issues. We reverse that portion of the order finding that Mary Katherine
Quebe engaged in a civil conspiracy against Elyse Grubb and awarding



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actual and exemplary damages against Mary Katherine Quebe, and render a take-
nothing judgment against Elyse Grubb.




                                     /s/       Ken Wise
                                               Justice



Panel consists of Justices Wise, Zimmerer, and Spain.




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