     Case: 19-40148      Document: 00515227255         Page: 1    Date Filed: 12/06/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 19-40148                       December 6, 2019
                                                                           Lyle W. Cayce
LYDIA TUMMEL; HAROLD K. TUMMEL,                                                 Clerk


              Plaintiffs - Appellants

v.

ROBERT MILANE; ROADRUNNER TRANSPORTATION SERVICES,
INCORPORATED; ROADRUNNER TRANSPORTATION SYSTEMS,
INCORPORATED,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:18-CV-339


Before KING, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiffs allege that defendants conspired to violate certain criminal
statutes. Although plaintiffs concede that none of these statutes creates a
private right of action, they seek to recover by asserting civil-conspiracy claims
under Texas law. Because civil conspiracy is not an independent cause of
action, we affirm the district court’s decision to dismiss plaintiffs’ complaint.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 19-40148
                                        I.
      During state-court litigation against Lydia Tummel and Harold
Tummel, Roadrunner Transportation Systems (RR Systems) moved for
summary judgment and filed a supporting declaration signed by Robert
Milane. According to the Tummels, this declaration contained perjury. The
state court granted summary judgment to RR Systems, and the Tummels were
unable to obtain reversal on appeal.
      The Tummels then filed suit in federal court against Milane, RR
Systems, and a subsidiary of RR Systems, alleging that they conspired to
commit fraud and perjury and to fabricate evidence, in violation of state and
federal criminal law. The district court dismissed the complaint with prejudice,
ruling that it failed to state a claim for civil conspiracy under Texas law. This
appeal followed.
                                       II.
      The district court had diversity jurisdiction, see 28 U.S.C. § 1332(a), and
we have jurisdiction under 28 U.S.C. § 1291. We review the district court’s
decision to dismiss the complaint de novo. Meadows v. Hartford Life Ins. Co.,
492 F.3d 634, 638 (5th Cir. 2007). In resolving questions of Texas law, we rely
on the authoritative decisions of the Texas Supreme Court. See Lawyers Title
Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 856 (5th Cir. 2014).
                                       III.
      Under the common law of Texas, civil conspiracy is a theory of liability
that allows an injured party to recover from a tortfeasor’s coconspirators. See
Agar Corp. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 140-42 (Tex. 2019).
As the Supreme Court of Texas has recently clarified, “civil conspiracy is a
theory of vicarious liability and not an independent tort.” Id. at 142.
Consequently, it “requires an underlying tort that has caused damages.” Id.
(citing Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996)). Following that
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                                  No. 19-40148
principle, we have ruled that when plaintiffs fail to state a claim for any
underlying tort, their claims for civil conspiracy likewise fail. See Walker v.
Beaumont Indep. Sch. Dist., 938 F.3d 724, 752 (5th Cir. 2019); Meadows, 492
F.3d at 640. Here, the Tummels do not allege that any underlying tort was
committed, and they concede that none of the criminal statutes at issue creates
a private right of action. The district court was therefore correct to dismiss
their complaint.
      The Tummels’ sole argument on appeal is that a civil-conspiracy claim
does not require the existence of an underlying tort but can be premised on any
“illegal act”—including the defendants’ alleged crimes. For support, the
Tummels point to the Texas Supreme Court’s statement that it “ha[s]
repeatedly called civil conspiracy a ‘derivative tort,’ meaning it depends on
some underlying tort or other illegal act,” Agar, 580 S.W.3d at 140-41
(emphasis added) (citing Chu v. Hong, 249 S.W.3d 441, 444 (Tex. 2008)).
Though elsewhere in Agar the Texas Supreme Court repeatedly refers
exclusively to “underlying torts,” the Tummels argue that that language “is
merely short-hand for unlawful or wrongful conduct or action.”
      Even if the Tummels are correct that civil conspiracy need not rely on an
underlying tort, their argument still fails. They identify no authority, and we
are aware of none, suggesting that civil conspiracy can be premised on the
violation of statutes that do not provide a private right of action.
      The reasoning of Agar supports this conclusion. There, the Texas
Supreme Court held that “a civil conspiracy claim should share both accrual
and the limitations period of the underlying wrong.” Id. at 144. The court
rejected the argument that the limitations period for a civil-conspiracy claim
should be independent of the limitations period for the underlying tort,
observing that it would be “bizarre” for coconspirators who did not themselves
commit a tort to be potentially “subject to suit for a longer period than the
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                                       No. 19-40148
primary tortfeasor upon whom their liability is premised.” Id. at 142.
Similarly, it would also be illogical to allow a civil action to be brought against
a person who partakes in a conspiracy to commit a crime when suit cannot be
brought against someone who actually commits that same crime.
       In short, civil conspiracy under Texas law extends liability for a
preexisting cause of action. See id. If there is no underlying cause of action—
for a tort or otherwise—there can be no claim for civil conspiracy. See id. at
141. Here, the Tummels concede that they have no underlying cause of action.
That is enough to dispose of their case. 1
                                              IV.
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




       1  Because we affirm the district court’s ruling that the Tummels failed to state a claim
for civil conspiracy, we need not address, and express no opinion on, defendants’ alternative
argument that the district court erred in ruling that the Tummels’ suit was not precluded
under the principles of collateral estoppel.
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