service-corporation-international-management-corporation-dbamemorial ( 2001 )

NUMBER 13-99-468-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________

SERVICE CORPORATION INTERNATIONAL

MANAGEMENT CORPORATION AND SERVICE

CORPORATION INTERNATIONAL TEXAS

FUNERAL SERVICES, INC. D/B/A BUENA VISTA

BURIAL PARK, Appellants,

v.

ANGEL S. GALVAN, MARIA GUADALUPE

GALVAN AND ANGELITA S. BENAVIDEZ, Appellees.

____________________________________________________________

On appeal from the 103rd District Court of Cameron County, Texas.

____________________________________________________________

OPINION

Before Justices Hinojosa, Yañez, and Chavez⁽¹⁾ Opinion by Justice Chavez

A jury found that appellants Service Corporation International Management Corporation and Service Corporation International Texas Funeral Services, Inc. ("SCI") made negligent representations to appellees Angel S. Galvan, Maria Guadalupe Galvan and Angelita S. Benavides about the availability of cemetery plots for sale, and that SCI made a fraudulent representation to Angel S. Galvan and Maria Guadalupe Galvan about the location of their son's burial plot. SCI raises eleven points of error. We affirm the judgment of the trial court.

Because appellants attack the legal and factual sufficiency of the evidence, and the facts to this case are somewhat complicated, we will address the facts in some detail. In 1989, Angel S. Galvan and Maria Guadalupe Galvan ("the Galvans") purchased two cemetery plots from SCI. In 1994, their grandson Marc died and was buried in one of these two plots. After Marc was buried, SCI offered to sell Angelita S. Benavides ("Benavides"), mother of Marc and daughter of the Galvans, seven additional plots close to where Marc was buried. Benavides contracted for three of the plots, her sister Maria Anita Reyna contracted for two plots, and the Galvans contracted for two plots.

According to SCI's records, when SCI contracted to sell these seven plots, each plot was already owned by Noelia DeLeon.⁽²⁾ Benavides and her sister both lost their plots when each was unable to maintain regular payments on the plots. On September 19, 1997, Benavides again purchased two of the three plots that, according to SCI's records and DeLeon, were already sold to DeLeon. Again, Benavides was unable to maintain consistent payments and lost ownership rights to the cemetery plots.

In 1995, Benavides purchased a separate plot, next to her son Marc's grave, but lost it because she could not pay for it. In February 1997, Benavides again purchased this plot.

On September 2, 1997 Jose Angel Galvan, the Galvans' son, and Benavides's brother, died. According to the testimony at trial, Yolanda Galvan, Jose Angel Galvan's widow, sent her father-in-law, appellee Angel Galvan, as her agent to handle the arrangements with SCI. Angel Galvan testified that an SCI employee told him that his plots (which were actually owned by DeLeon) were a few feet away from his grandson Marc. Based on this information, Angel Galvan instructed SCI to bury Jose Angel Galvan in one of his plots. In order to do this, SCI required that the Galvans transfer their ownership rights in another plot because SCI requires that payment be made in full before interment, and the Galvans had not completed payments on the plot where Jose Angel was to be buried.

According to the testimony of Yolanda Galvan, that same day the same SCI sales representative asked Yolanda where she wanted Jose Angel Galvan buried. Yolanda had allowed Angel to make all of the arrangements, but then, because she wanted her husband to be buried where she could later be buried next to him, allowed the SCI sales representative to sell her another plot. Angel testified that he was not present at this time, having left to buy a suit for his son to be buried in.

Soon thereafter, the Galvans signed a quit-claim deed to transfer ownership of the plot where Jose Angel was going to be buried to Yolanda . SCI provided the deed for their signature after having made different representations to the Galvans and Yolanda as to where Jose Angel would be buried. The Galvans did not know that their son was going to be buried in a different location than had been represented to them before they signed the deed. The deed showed that the cemetery plot was actually much further from Marc than the Galvans understood it to be. The Galvans first realized this when they arrived at the cemetery for the burial. Jose Angel was buried in the spot farther away from Marc, but, after being informed of this misunderstanding, SCI agreed to reinter Jose Angel next to Marc. Only after Jose Angel was reinterred, did SCI notify anyone that the plot was actually owned by DeLeon. Jose Angel was then buried a third time.

In its first issue, SCI argues that the trial court did not have jurisdiction to hear this case without Yolanda as an indispensable party to the suit, because, as Jose Angel's surviving spouse, only she can bring a claim for the wrongful burial, disinterment or exhumation of Jose Angel's body. See Tex. Health & Safety Code Ann. §§ 711.002(a),(d), 711.004(a),(b) (Vernon Supp. 2001). SCI raises this issue for the first time on appeal. SCI did not plead that the decedent's wife was a necessary party as required by the rules of civil procedure. See Tex. R. Civ. P. 39.

Prior to the amendment of rule 39 in 1971, a failure to include an indispensable party was fundamental error which could be raised to attack the court's jurisdiction on appeal. See e.g., Petroleum Anchor Equip., Inc. v. Tyra, 406 S.W.2d 891, 893 (Tex. 1965); Sharpe v. Landowners Oil Ass'n, 92 S.W.2d 435, 436 (Tex. 1936). The amendment to rule 39 in 1971 rendered inoperative most of the potential for fundamental error due to failure to include an indispensable party. McBurnett v. Gordon, 534 S.W.2d 370, 372 (Tex. Civ. App.--Beaumont 1976, pet ref'd n.r.e.).

"Under the provisions of our present Rule 39 it would be rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined." Cooper v. Texas Gulf Indus., Inc., 513 S.W.2d 200, 203 (Tex. 1974); see Cox v. Johnson, 638 S.W.2d 867, 867-68 (Tex. 1982) (supreme court "disapproved" of this Court's holding that failure to join a necessary party was fundamental error, but denied the writ of error because of other meritorious issues in the appeal). Fundamental error survives today only in those rare instances where the record shows on its face that the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes and constitution of this state. Pirtle v. Gregory, 629 S.W.2d 919, 919 (Tex. 1982); see e.g. Eddows v. Oswald, 621 S.W.2d 843, 846 (Tex. App.--Fort Worth 1981, no writ) (brother of alleged assassin Lee Harvey Oswald not allowed to get injunction preventing wife of deceased from exhuming body to perform autopsy when wife had not delegated any of her authority to anyone and clearly wanted the body disinterred).

The supreme court in Cooper explained, "Contrary to our emphasis under Rule 39 before it was amended, today's concern is less that of the jurisdiction of a court to proceed and more a question of whether the court ought to proceed with those who are present." Cooper, 513 S.W.2d at 204. If the trial court had the opportunity to rule on the joinder of decedent's spouse, it could have determined "whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person [decedent's spouse] being thus regarded as indispensable." Tex. R. Civ. P. 39(b).

One of the practical factors an appellate court can take into consideration in holding that an absent party was not jurisdictionally indispensable is whether or not the case "had actually been tried as to those parties who were present and there was no objection at the trial level concerning the nonjoinder of a party. . . . [A]t the appellate stage there is reason not to throw away a judgment just because it did not theoretically settle the whole controversy." Cooper, 513 S.W.2d at 204 (emphasis added). Since SCI did not object at the trial level to the nonjoinder of Yolanda Galvan, it has waived the issue of joinder of the decedent's wife.

The absence of the decedent's wife did not deprive the trial court of jurisdiction between the parties before it. The Galvans do not argue that SCI made negligent representations and committed fraud towards decedent's wife; therefore she is not a necessary party to that part of the suit. In regard to the other issues, the trial court resolved the dispute between the parties before it even if "it did not theoretically settle the whole controversy." Cooper, 513 S.W.2d at 204. We overrule SCI's first issue.

As part of its second, fourth, fifth and sixth issues, SCI argues that the trial court erred by allowing the submission of a single damage question for each plaintiff for multiple theories of recovery. The jury was charged as SCI requested it to be charged. The charge did not include the submission of a single damage question for each plaintiff for multiple theories of recovery. SCI did not object to the charge. Error in the charge must be preserved by distinctly designating the error and the grounds for objection. Tex. R. Civ. P. 274; Cosgrove v. Grimes, 774 S.W.2d 662, 665-66 (Tex. 1989); Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex. 1987); Lanphier Constr. Co. v. Fowco Constr. Co., 523 S.W.2d 29, 34 (Tex. Civ. App.--Corpus Christi 1975, writ ref'd n.r.e.). Any possible error in the organization of the damages question submitted by SCI is therefore not preserved for our review.

In its second issue, SCI claims that it owed no duty with respect to the location of the decedent's interment or his disinterment and that the evidence is both legally and factually insufficient to support the jury's finding that SCI was negligent with respect to the location of the decedent's interment or his disinterment.

When reviewing challenges to the legal sufficiency of the evidence, we consider all the evidence and inferences in the record in a light most favorable to the party in whose favor the verdict has been rendered and indulge every reasonable inference in that party's favor. See Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). We overrule such points if the findings are supported by more than a scintilla of evidence. Id. In contrast, factual sufficiency challenges require that we consider and balance all the evidence. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We overrule factual insufficiency points of error unless the evidence supporting a finding is so weak that the finding is against the great weight and preponderance of the evidence and clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

SCI had a statutory duty to the decedent's spouse. Tex. Health & Safety Code Ann. §§ 711.002(a),(d), 711.004(a),(b) (Vernon Supp. 2001). But when SCI represented to the Galvans that their son would be buried at a certain location, and accepted the transfer of the plot the Galvans had paid for, SCI assumed a duty to the Galvans to act with due care. Herman Hosp. v. National Standard Ins. Co., 776 S.W.2d 249, 253 (Tex. App.--Houston [1st Dist.] 1989, writ denied) ("It is well settled that even though one does not have a duty to act, if one acts voluntarily, he must do so with due care and is generally liable for negligence"). Appellees alleged, and the jury concluded, that SCI breached its duty in providing this service. When SCI acted in response to the Galvans' request to reinter Jose Angel, it likewise assumed a duty of due care. Id.

The jury heard evidence that Yolanda had agreed to let her father-in-law make the arrangements for her husband's burial, that Angel told SCI that he was making the arrangements, and that SCI's sales representative understood that he was making the arrangements. SCI completed a transaction with Angel for the burial of his son and then contracted with Yolanda to bury him elsewhere.

At least five times SCI represented to the Galvans and Benavides that it could sell cemetery plots which, at the time SCI made the representations, it did not own. If, while in the course of a business transaction, a party supplies false information for the guidance of others in their business transactions, the party supplying the false information is subject to liability for pecuniary loss caused to the misguided parties by their justifiable reliance upon the information if the supplying party fails to exercise reasonable care or competence in obtaining or communicating the information. McCamish, Martin, Brown & Loeffler v. Appling, 991 S.W.2d 787, 791 (Tex. 1999).

The evidence in support of the jury's finding is more than the scintilla of evidence required by law. See Browning-Ferris, 865 S.W.2d at 928. The jury's finding is not against the great weight and preponderance of the evidence; nor is it clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772. We overrule SCI's second issue.

In its third issue, SCI argues that the trial court erred in refusing to allow it to present evidence of appellees' failure to accept a settlement offer. Appellate review of a trial judge's decision to admit evidence is governed by an abuse of discretion standard. Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex. 1983); Jones v. Jones, 890 S.W.2d 471, 474 (Tex. App.--Corpus Christi 1994 writ denied). The Texas Rules of Evidence provide that:

[e]vidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount.

Tex. R. Evid. 408. If SCI had offered to release the contractual requirement to make payments without compromise, condition, or settlement, such evidence would not be prohibited by rule 408. Gunn Infinity, Inc. v. O'Bryne, 996 S.W.2d 854, 859 (Tex. 1999) ("If a defendant is truly offering to mitigate, the offer cannot implicitly or explicitly seek a release of the plaintiff's claims. It must be an unconditional offer to mitigate."). Appellees' choice not to accept the settlement offer neither negates their contractual obligation to make payments on the plots nor makes the compromise offer rebuttal to counsel's comment that SCI continued to accept such payments. We see no abuse of discretion, and overrule SCI's third issue.

In its fourth issue, SCI argues that there was no evidence, or in the alternative, legally and factually insufficient evidence of any DTPA violations. The jury found that SCI had violated sections 17.46(b)(5),(7) and (12) of the DTPA.⁽³⁾ There was evidence presented to the jury that SCI made affirmative representations that it would bury Jose Angel at a location and that it then did not do so. SCI made affirmative representations that it could reinter Jose Angel at a location where it could not because they did not own the location. SCI made affirmative representations orally and by written agreement that it could convey title to plots which it did not own. See Smith v. Herco, Inc., 900 S.W.2d 852, 858 (Tex. App.--Corpus Christi 1995) (finding of DTPA violations where real estate agency made oral and written affirmative representation of ability to convey clear title, when unknown to the agency, it could not). The evidence supporting the jury's finding is more than the scintilla of evidence required by law. See Formosa Plastics, 960 S.W.2d at 48. The jury's finding is not against the great weight and preponderance of the evidence; nor is it clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772. We overrule SCI's fourth issue.

In its fifth issue, SCI argues that the evidence is legally and factually insufficient to support the jury's finding that SCI engaged in an unconscionable course of action that was a producing cause of damages to the plaintiffs.⁽⁴⁾ Violation of a consumer's trust by a professional in the course of business is a DTPA violation.⁽⁵⁾ See Latham v. Castillo, 972 S.W.2d 66, 69 (Tex. 1988). The evidence described above shows more than a scintilla of evidence that appellees trusted SCI to provide a professional service, and that SCI violated that trust. See Formosa Plastics, 960 S.W.2d at 48. The jury finding is supported by the record, and not against the great weight and preponderance of the evidence. See Ortiz, 917 S.W.2d at 772. We overrule SCI's fifth issue.

In its sixth issue, SCI argues that there is legally and factually insufficient evidence to support the jury's judgment that it committed fraud against appellees. The elements of common-law fraud are that (1) a material representation was made; (2) the representation was false; (3) when the representation was made the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the representation was made with the intention that it be acted upon by the other party; (5) the party acted in reliance upon the representation; and (6) the party suffered injury. Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 692 S.W.2d 507, 524 (Tex. 1998).

The jury received testimony from Angel that SCI had no intention of burying Jose Angel in close proximity to Marc's grave. The jury also heard testimony from the cemetery's office manager that the saleswoman who sold the separate plots for the same burial, first to the Galvans, then to their daughter-in-law, stood to earn a commission from each sale. The jury could have believed that when SCI reinterred Jose Angel in a plot close to the Galvans' other, partially-paid plots, that SCI recklessly represented that it could bury him there without any knowledge of the truth, while making positive assertions that their son was buried in an unencumbered space in the cemetery.

The record contains more than a scintilla of evidence that SCI committed fraud. See Formosa Plastics, 960 S.W.2d at 48. The jury finding of fraud is not against the great weight and preponderance of the evidence. See Ortiz, 917 S.W.2d at 772. We overrule SCI's sixth issue.

In its seventh issue, SCI argues that the testimony of Dr. William Valverde should have been admitted with a limiting instruction. Dr. Valverde testified about mental anguish damages. "A successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted." City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). The jury instruction did not segregate particular theories of recovery, and there was no objection to this non-segregation of theories at trial. Since the jury instruction did not segregate particular theories of recovery, the judgment does not turn on this particular evidence, and therefore there would be no point in limiting this testimony. We overrule appellant's seventh point of error.

In it eighth, ninth and tenth issues, SCI argues that there was no evidence, or in the alternative, legally and factually insufficient evidence, of mental anguish suffered by the Galvans, and that the jury erred by awarding any damages to Angelita Benavides. Proof of mental anguish damages requires direct evidence of the nature, duration or severity of one's anguish resulting in a substantial disruption in the plaintiff's daily routine. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). In order to recover for mental anguish, a party must establish more than worry, anxiety, vexation, embarrassment or anger. Id. Courts are to closely scrutinize awards of mental anguish damages. Id.

The evidence of Angel Galvan's mental anguish heard by the jury included the testimony of a psychiatrist, his daughters Maria and Angelita, his wife, and Angel Galvan himself. The jury also heard evidence of Mrs. Galvan's mental anguish, including testimony of a psychiatrist, the testimony of her daughter Maria, and her own testimony.

We have closely reviewed the evidence described above and determined that there is more than a scintilla of evidence that the Galvans suffered mental anguish and that SCI failed to exercise reasonable care or competence in obtaining or communicating information when selling the cemetery plot to Benavides. See Browning-Ferris, 865 S.W.2d at 928. The jury finding that the Galvans suffered mental anguish and that SCI failed to exercise reasonable care or competence in obtaining or communicating information when selling the cemetery plot to Benavides is not against the great weight and preponderance of the evidence. See Ortiz, 917 S.W.2d at 772.

SCI argues that the jury erred by awarding any damages to Angelita Benavides because there is no evidence, or insufficient evidence of a gross disparity in consideration paid and the value received by Ms. Benavides. The jury question did not require the jury to find a "gross disparity," and SCI has directed this court to no law that requires a "gross disparity" between consideration paid and value received in order to be awarded damages. SCI sold Benavides property which it did not own. The jury heard her testimony that she justifiably relied upon SCI's false claims of ownership and suffered a pecuniary loss as a result of this reliance. See Appling, 991 S.W.2d at 791 (Tex. 1999). We overrule SCI's eighth, ninth and tenth issues.

In its eleventh issue, SCI argues that the trial court erred by granting appellees' motion for judgment notwithstanding the verdict awarding attorneys fees in the event of appeal because the trial court's jurisdiction had expired. Judgment in this case was signed on April 23, 1999. SCI's motion for new trial was denied on July 1, 1999. Fourteen days later, on July 15, 1999, appellees filed a motion for judgment notwithstanding the verdict. This motion was granted on August 2, 1999, 32 days after appellant's motion for new trial was denied.

A motion for judgment notwithstanding the verdict may be filed after a judgment has been entered but before it becomes final. Needsville Indep. Sch. Dist. v. S.P.J.S.T. Rest Home, 566 S.W.2d 40, 42 (Tex. App.--Beaumont 1978, no writ). The trial court retained jurisdiction over this case until thirty days after SCI's motion for new trial was overruled. Tex. R. Civ. P. 329b(e). At this time the judgment became final. Id. Here, the thirtieth day fell on a weekend, and the order granting judgment notwithstanding the verdict was signed the following Monday. When the last day of a court's plenary period falls on a weekend the period runs until the end of the next day which is not a Saturday, Sunday or a legal holiday. Tex. R. Civ. P. 4. The court therefore had the power to rule on the motion. See McClelland v. Partida, 818 S.W.2d 453, 455 n.2 (Tex. App.--Corpus Christi 1991, writ dism. w.o.j.). We overrule SCI's eleventh issue.

We AFFIRM the judgment of the trial court.

MELCHOR CHAVEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 18th day of January, 2001.

1. Retired Justice Chavez assigned to this court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1988).

2. Ms. DeLeon is not involved in this suit.

3. These alleged DTPA violations are as follows: (b)(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have; (b)(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; and (b)(12) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law. Tex. Bus. & Com. Code Ann. § 17.46(b)(5),(7),(12) (Vernon Supp. 2001).

4. "Unconscionable action or course of action means an act or practice which to a consumer's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree." Tex. Bus. & Com. Code Ann. § 17.45(5) (Vernon Supp. 2001).

5. In 1995 the DTPA was amended to preclude causes of actions arising from the sale of services. See Tex. Bus. & Com. Code Ann. § 17.49(c) (Vernon Supp. 2001). However this exemption provides exceptions under the following circumstances:

(1) an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion;

(2) a failure to disclose information in violation of § 17.46(b)(23);

(3) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion; or

(4) breach of express warranty that cannot be characterized as advice, judgment or opinion.

Id. Appellants' cause of action falls into each of these exceptions.