Kay Talley and Ed Talley v. Rocky Creek Cemetery Association, Its General Manager, Lewis Lehman, the Rocky Creek Perpetual Care Cemetery Association, and Jose Luis Estrada ( 2023 )

Opinion filed December 14, 2023
In The
Eleventh Court of Appeals
__________
No. 11-22-00104-CV
__________
KAY TALLEY AND ED TALLEY, Appellants
V.
ROCKY CREEK CEMETERY ASSOCIATION, ITS GENERAL
MANAGER, LEWIS LEHMAN, THE ROCKY CREEK
PERPETUAL CARE CEMETERY ASSOCIATION, AND JOSE
LUIS ESTRADA, Appellees
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV1809404
MEMORANDUM OPINION
This case relates to a claim of grave plot encroachment, where the headstone
of the deceased wife of Appellee Jose Estrada allegedly encroaches upon another
burial plot, that of the deceased parents of Appellant Kay Talley. Kay Ward Talley
and Guy Edward “Ed” Talley, Appellants, appeal the judgment of the trial court that
dismissed all of their claims against Rocky Creek Cemetery Association, Lewis
Lehman, and the Rocky Creek Perpetual Care Cemetery Association (collectively
the “Rocky Creek Defendants” or “Rocky Creek Appellees”), and Jose Luis
Estrada.1 Appellants argue on appeal that the trial court erred in granting judgment
in favor of Appellee Estrada because fact issues exist. Appellants also argue that
there were four erroneous legal conclusions made by the trial court concerning
elements of trespass as to all Appellees. We affirm the judgment of the trial court.
Factual and Procedural History
On September 28, 2018, Appellants filed a petition alleging that the placement
of Appellee Estrada’s wife’s headstone was encroaching on the plot where H.B.
Ward, Kay’s father, is buried. Ed testified that he was informed by a cemetery
representative (Lehman) that the plots were all approximately five feet by ten feet;
however, when Ed measured from the back of H.B. Ward’s headstone to the back of
the Estrada headstone, it was eight feet, three inches on one corner and eight feet,
four inches on the other. A depiction of the plots at issue is below: 2
1
The claims against the remaining defendant, Rocky Creek Baptist Church, were previously settled
and dismissed before the trial court entered the final judgment. Appellants do not appeal the dismissal of
its claims against Rocky Creek Baptist Church.
2
This diagram is used for illustrative purposes only and was originally part of Plaintiff’s Exhibit
No. 25. It is not to scale, and we only include the diagram to demonstrate how the plots at issue in this
appeal are geographically related to one another. All headstones appear—from other exhibits—to be located
on the western side of the plots and facing east.
2
H.B. and Lois Ward, Kay’s parents, purchased two cemetery plots in Rocky
Creek Cemetery in 1992 (plots 512 and 513, respectively). The plots were purchased
before Lehman became the cemetery association representative in 1994. H.B.
passed away in 1996 and Lois passed away in 2010. H.B. and Lois are honored with
the placement of a large joint headstone. Ed testified that the two plots where H.B.
and Lois are buried were marked at the corners with square (six inch by six inch)
“W” markers, and that, at the foot of H.B.’s grave, there is also a military service
placard. Ed indicated that the markers were placed by someone in the family after
H.B. was buried and that he discovered that it appeared that the markers had been
moved after the large, combined headstone was placed to honor the Estrada couple.
Kay similarly testified that she also noticed that the markers had been moved in
September 2016—even though she had not measured her father’s plot and placement
of the markers before the Estrada joint headstone was placed. Ultimately, Appellants
did not identify who placed the corner markers, nor exactly when or where the
markers were originally placed.
Appellee Estrada purchased the two cemetery plots (plots 584 and 585) east
of the Ward plots after his wife died on August 25, 2015. The Estrada adjoining
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plots are bordered on their east side (at the deceased’s feet) by Keller Drive, an
unpaved road. In 2016, after Appellants discovered that the two plots east of Kay’s
parents had been purchased, they purchased the two plots north (plots 586 and 587)
of the Estrada plots. During the bench trial, Kay testified that the only “trespass”
was upon the surface of her father’s plot (plot 512), that his body had not been
disturbed, and that Appellee Estrada’s wife was buried in the proper burial plot
(though the headstone was encroaching).
The trial court heard testimony about the layout of the cemetery. The
headstones did not all appear to be precisely “in line” with one another, and Ed
admitted that he only assumed that H.B. and Lois’ double headstone was placed at
the west most boundary of their plot. Kay’s sister Vera was buried directly north
of—next to—their mother Lois (plot 514). One of the plots purchased by the
Appellants in 2016 was directly east of Vera’s plot—next to the Estrada plots—and
Appellants buried their nephew, Vera’s son, there (plot 586). The distance between
Appellants’ nephew’s headstone and the back of Vera’s headstone was measured to
be eight feet, eight inches, and Ed explained that he did that because the [unpaved]
road bordering the foot of the plot (Keller Drive) was “too close.”
Ed testified that the alleged encroachment on H.B. Ward’s grave by the
Estrada headstone was causing great emotional distress to his wife. Additionally,
Appellants claimed at trial that the Rocky Creek Defendants committed fraud in two
ways: first, in allegedly allowing the Estradas to move the corner markers and
military markers from H.B. Ward’s plot, and second, in representing the
approximate size of the plots to be five feet by ten feet, yet the distance between
headstones amounted to less than ten feet.
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After Plaintiffs’ case in chief, both Defendants made a motion for judgment.3
The trial court granted judgment in favor of Appellee Estrada as to the trespass claim,
granted judgment in favor of Defendant Lehman as to the fraud claim, and denied
the motion as to the Rocky Creek Defendants as to the claims for trespass. Following
closing arguments, the trial court found that the Plaintiffs did not prove, by clear and
convincing evidence, their claims for fraud or gross negligence. Plaintiffs appealed.
On appeal, Appellants only challenge the decision of the trial court as to trespass and
do not appeal the judgment as to their fraud or gross negligence claims. Because
our analysis on Appellants’ second issue substantially affects our analysis of their
first issue, we first address the specific trial court findings of facts and conclusions
Appellants complain of, then we discuss Appellants’ first issue regarding the grant
of Appellee Estrada’s motion for judgment.
Issue Two: Appellants Contest the Sufficiency of the Evidence Supporting
Conclusions of Law
A. Standard of Review
The trial court’s findings of fact following a bench trial have the same weight
as a jury verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.
1991). An appellate court will review the trial court’s findings for legal and factual
sufficiency of the evidence under the same standards as are applied to review of jury
verdicts. Id.As the plaintiffs, Appellants had the burden of proof to establish their claim
of trespass by competent evidence. See Mobile, Inc. v. Cone, 457 S.W.2d 175, 176
3
Appellees both moved for directed verdicts, but a motion for directed verdict applies to jury trials.
Instead, when a party moves for a “directed verdict” in a bench trial, it is construed as a motion for judgment.
See Matheus v. Sasser, 164 S.W.3d 453, 457 (Tex. App.—Fort Worth 2005, no pet.); see also Grounds v.
Tolar Indep. Sch. Dist., 856 S.W.2d 417, 422 n.4 (Tex. 1993) (Gonzalez, J., concurring) (“Technically, the
use of the term ‘directed verdict’ in a bench trial is incorrect because there is no jury to direct. In this
situation, the correct procedure is for the defendant, at the close of the plaintiff’s evidence, to make a
‘motion for judgment.’”). Therefore, even though denominated otherwise by the parties, as to this bench
trial, we construe each motion as a motion for judgment and apply applicable law as such.
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(Tex. App.—Tyler 1970, writ ref’d n.r.e.). When a party challenges the legal
sufficiency of the evidence supporting an adverse finding on an issue on which he
had the burden of proof, he must show that the evidence establishes as a matter of
law all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d
237, 241 (Tex. 2001). When a party attacks the factual sufficiency of an adverse
finding on an issue on which he had the burden of proof, he must demonstrate on
appeal that the adverse finding is against the great weight and preponderance of the
evidence. Id. at 242.
We defer to unchallenged findings of fact that are supported by some
evidence, but the trial court has no discretion to determine what the law is or in
applying it to the facts. Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437
S.W.3d 518, 523 (Tex. 2014). As such, we review the trial court’s conclusions of
law de novo. Id.; BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794
(Tex. 2002). We will uphold the trial court’s judgment, even if we determine a
conclusion of law is erroneous, so long as the judgment may be sustained on any
legal theory supported by the evidence. Marchand, 83 S.W.3d at 794.
B. The Four Contested Conclusions of Law
Appellants claim that four of the trial court’s conclusions of law—all related
to the trespass claim—were not supported by the evidence, which resulted in an
improper judgment.4 The conclusions of law at issue are in the following four
paragraphs:
4
Since Appellants had the burden of proof on their trespass claim, their contention that the trial
court’s findings were not supported by the evidence is technically inappropriate. See Middleton v. Palmer,
601 S.W.2d 759, 765 (Tex. App.—Dallas 1980, writ ref’d n.r.e.) (citing Keystone-Fleming Transports,
Inc. v. City of Tahoka, 315 S.W.2d 656 (Tex. App.—Amarillo 1958, writ ref’d n.r.e.)). However, we may
review their evidentiary complaints to determine if the findings are manifestly unjust. Id. (citing In re Kings
Estate, 244 S.W.2d 660 (Tex. 1951)).
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9. The Plaintiffs failed to meet any of these requirements.
Although the evidence showed that Kay Talley was a beneficiary
of the Decedents’ estate, the Plaintiffs did not have a lawful right
of possession in the burial lots. The evidence presented showed
that the burial plots were not sold be [sic] deed of [sic] other
similar conveyance that would convey a fee simple estate, but
rather were a mere right to be buried in the cemetery at the given
location. This right to be buried in the lot belonged to the
Decedents, not to the Plaintiffs Ed and Kay Talley. If the
Decedents had not been buried there, then perhaps [the] right to
be buried in the burial plots could have been bequeathed to the
Plaintiffs. But the Decedents were buried there, and thus, the
right of occupancy belonged to the Decedents alone.
10. More importantly, however, the Plaintiffs failed to show any
encroachment upon the Decedents’ burial plot. Again, the
pictures admitted into evidence showed the tombstones at the
cemetery were not all in a straight line. In fact, there were
substantial deviations, even on the row where the Decedents’
[sic] were buried. Plaintiffs admitted that it could not verify the
boundaries of the Decedent’s burial plot by any means other than
the placement of the Decedents’ tombstone, but admitted that
they did not know who set the tombstone or how the boundaries
would have been determined at that time. The Court did not find
this testimony credible to establish the boundaries of the burial
plots, particularly not with the type of certainty that would be
required for the Court to find an encroachment of a mere 20
inches.
11. Even if there had been evidence of an encroachment, there
was no evidence presented as to who placed the tombstone in
question. This omission precludes any finding of a trespass,
particularly with regard to Defendant Lewis Lehman and the
cemetery association defendants who were not shown to have
any connection to the placement of the allegedly offending
tombstone. Finding otherwise, would make the cemetery
association strictly liable for the placement of every tombstone
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in the cemetery, and the court finds no law to support this
contention.
12. In fact, while there was no direct evidence that Defendant
Lewis Lehman or the cemetery association defendants were
responsible for the placement of the headstone in question, there
was evidence to the contrary. When placing other tombstones
within the cemetery, the Plaintiffs inquired of the cemetery
association’s president and ask [sic] whether a representative
needed to be present. They were then told that if they knew
where the burial plot was located, there was no need for a
cemetery association representative to be present or to assist.
The court found this as credible evidence that the cemetery
association did not undertake to determine where tombstones
were to be placed.
Appellants do not challenge any of the trial court’s findings of fact in paragraphs
one through seven, nor do Appellants challenge the conclusions of law related to the
alleged fraud and gross negligence claims.
We review the challenges to the trial court’s conclusions of law in paragraphs
nine through twelve de novo. See Tenaska Energy, 437 S.W.3d at 523. To recover
on a claim for trespass to real property, the plaintiff has the burden to prove that
“(1) the plaintiff owns or has a lawful right to possess real property, (2) the defendant
entered the plaintiff’s land and the entry was physical, intentional, and voluntary,
and (3) the defendant’s trespass caused injury to the plaintiff.” Wilen v. Falkenstein,
191 S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet. denied).
C. Analysis
1. Cemeteries and Crematories: Chapter 711 of the Texas Health and
Safety Code
Cemeteries and crematories are governed by Chapter 711 of the Texas Health
and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. §§ 711.001, .038, .039
(West 2017 & West Supp. 2023). “A cemetery organization may sell and convey
the exclusive right of sepulture in a plot.” Id. § 711.038(a); see Sepulture, MERRIAM-
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WEBSTER’S DICTIONARY (11th ed. 2020) (a “sepulture” is a burial). A “plot” is a
space in a cemetery that is “used or intended to be used for interment,” and a “plot
owner” is a person with the “exclusive right of sepulture,” or the exclusive right of
burial. HEALTH & SAFETY §§ 711.001(31), (32). The right of interment under the
code is the “right to inter the remains of one decedent in a plot.” Id. § 711.001(22).
The right of interment in a plot is the exclusive right of the person named as grantee
in the certificate of ownership or other instrument of conveyance. Id. § 711.039(a).
This exclusive right of sepulture in an unused grave may be conveyed only by
express reference to the plot in the owner’s will or by written declaration of the plot
owner filed and recorded with the cemetery organization or by a surviving spouse or
heirs-at-law of the owner. Id. § 711.039(g). If a deceased plot owner—who has the
exclusive right of sepulture—is not interred in the plot, and has not made specific
disposition of the plot, the exclusive right of sepulture may vest on the death of the
owner in the owner’s heirs-at-law. Id. § 711.039(h).
2. Trial Court’s Conclusions of Law - Paragraph 9
Appellants argue that Paragraph 9 of the trial court’s conclusions of law is not
supported by law. In Paragraph 9, the trial court concluded that Kay’s mother
possessed the exclusive right of sepulture, she was buried in her plot, and did not
have ownership in fee simple of the plot; thus, Kay, even as a beneficiary of her
mother’s will, did not have any right to the plot. Appellants claim that the plots
owned by Kay’s parents were community property, and therefore, were conveyed to
Kay through her mother’s will. Appellants rely on the decision in Calhoun v.
Calhoun, where the court determined that—in the absence of any certificate of
ownership—two burial plots were presumed to be community property according to
Section 3.003(a) of the Texas Family Code. Calhoun v. Calhoun, No. 12-17-00032-
CV, 2017 WL 4801042, at *2 (Tex. App.—Tyler Oct. 25, 2017, no pet.) (mem. op.).
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Calhoun differs from this case in at least one obvious and significant way:
there is nothing in Calhoun that shows that anyone had been interred in either of the
burial plots purchased by the ex-wife. Id. According to the Texas Health and Safety
Code, once a person has been interred in a plot where they have the exclusive right
of sepulture, the certificate of ownership has been fulfilled and that exclusive right
may not be bequeathed to another. See HEALTH & SAFETY §§ 711.001, .038, .039.
Here, Kay’s parents were each interred in the plots they had exclusive right of
sepulture for. Because that right was fulfilled, there was nothing to “pass” to Kay
in her mother’s will following her death.
The will was also silent as to the plots, with no express statement bequeathing
any cemetery plot to Kay. See HEALTH & SAFETY §§ 711.039(g), (h). Further, even
if we assumed, which we do not, that Kay’s mother’s will conveyed the exclusive
right of sepulture in her own plot, she could not have conveyed the exclusive right
of sepulture for the second plot, as her husband, H.B. Ward was buried there
following his death in 1996, more than fourteen years before Lois Ward’s will was
probated. As the plot at issue in this case is H.B. Ward’s, not Lois’s, the finding of
fact supporting the trial court’s conclusion in Paragraph 9 is not against the great
weight and preponderance of the evidence.
3. Trial Court’s Conclusions of Law- Paragraph 10
Appellants also argue that the trial court’s conclusion in Paragraph 10 is not
supported by law. The trial court, in Paragraph 10, concluded that Appellants failed
to show any encroachment on the Decedents’ burial plot because, among other
reasons, the testimony indicated that the Plaintiffs did not know the exact boundaries
of that plot. Appellants—without any reference to legal authority—claim that
because Ed measured from the back of the Ward’s headstone to the back of the
Estrada’s headstone and found the distance to be less than ten feet, there was
encroachment upon their designated plot. Importantly, Appellant has not challenged
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any findings of fact made by the trial court, specifically Paragraphs 6 and 7, in which
the trial court found that there was no evidence of any survey or permanent markers
to determine the rows in the cemetery, nor was there any evidence presented to
support that the Ward headstone was placed precisely on the “boundary” of the Ward
plots. The testimony was that Ed “assumes” that the Ward headstone was placed on
the boundary of their plots, but that he was not present for the placement of the
headstone, and he has no evidence to support this assumption. Appellant presented
no legal support on appeal that encroachment can occur where there is no
determination of what property is owned. Trespass requires such a determination.
See Wilen, 191 S.W.3d at 798 (plaintiff must show that they own or have the lawful
right to possess the real property at issue).
The sale of a cemetery plot only carries with it the exclusive right of burial
and does not result in a fee simple ownership of the plot that may be passed on to
future generations if the holder of the right is in fact interred in the plot. See
HEALTH & SAFETY §§ 711.039(a), (g), (h). We decline to expand such rights beyond
what the legislature has allowed for the purpose of this case—particularly when the
evidence does not conclusively support that anyone involved has documentary
evidence and/or personal knowledge regarding the bounds of any of the plots at
issue. Appellants also claim that because there were corner markers on the Wards’
plots for almost thirty years, the boundary had been clearly established. However,
Appellants supply no legal principle to support this assertion, and the argument is
predicated on Appellants’ flawed belief that H.B. and Lois Ward owned their
cemetery plots in fee simple and had an interest above and beyond the exclusive
right of sepulture. We conclude that the evidence is sufficient to support the trial
court’s conclusion in Paragraph 10.
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4. Trial Court’s Conclusions of Law - Paragraphs 11 and 12
Appellants further argue that Paragraphs 11 and 12 are not supported by law.
In Paragraphs 11 and 12, the trial court concluded that there was no credible evidence
presented that the Rocky Creek Defendants had any connection to the marking and
placement of the Estrada headstone, thereby precluding any finding of trespass
against these defendants. On appeal, Appellants raise a series of rhetorical
questions, again without legal support, asking who would be responsible if the
placement of headstones was not the responsibility of the cemetery association or
Lehman.
Although there was testimony that the cemetery association would mark a
gravesite or plot, there were no details presented regarding the marking of and
determination of headstone location or how that conferred any right other than as
provided by Chapter 711. There was, however, testimony from Ed that he made the
determination about where his nephew’s headstone was set, and that it was not made
by someone involved with or related to the association. Appellants did not present
any evidence that it was the practice of the cemetery association or that they had a
duty to mark and oversee the placement of headstones, even if the cemetery
association had marked the grave locations.
Furthermore, even if there was a duty on the part of Lehman or the cemetery
association to mark placement of headstones, because we determined the legal
conclusion in Paragraph 10 was correct—and there is no evidence of encroachment
or trespass—we need not determine if Lehman or the association were the
parties responsible for marking where the Estrada headstone was placed. TEX. R.
APP. P. 47.1 Therefore, even if the conclusions in Paragraphs 11 and 12 were
erroneous, which we conclude they are not, and the Rocky Creek Defendants were
responsible for the placement of the Estrada headstone, there is nothing in the record
to support the argument by Appellants that the placement of the Estrada headstone
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was a legal trespass on H.B. Ward’s plot. In addition, the trial court’s conclusions
in Paragraphs 11 and 12 do not upset the conclusion of the trial court that there was
no evidence of trespass on the part of the Rocky Creek Defendants.
Accordingly, we overrule Appellants’ second issue.
Issue One: Appellee Estrada’s Motion for Judgment
As we have stated, Appellee Estrada’s motion for directed verdict is, in fact,
a motion for judgment and we review it as such. See Qantel Bus. Sys., Inc. v. Custom
Controls Co., 761 S.W.2d 302, 303 (Tex. 1988); Matheus, 164 S.W.3d at 457.
“Thus, the court’s factual rulings will stand unless there is legally or factually
insufficient evidence to support them.” Hatch v. Williams, 110 S.W.3d 516, 521
(Tex. App.—Waco 2003, no pet.); see Qantel, 761 S.W.2d at 304. We view the
evidence in the light most favorable to Appellants as the party against whom the
motion for judgment was granted—disregarding all contrary inferences—to
determine whether there is any probative evidence raising a material fact issue.
Matheus, 164 S.W.3d at 458 (citing Qantel, 761 S.W.2d at 303; White v. S.W. Bell
Tel. Co., 651 S.W.2d 260, 262 (Tex. 1983)).
The pivotal issue before the trial court in Appellee Estrada’s motion for
judgment was whether the Estrada headstone placement constitutes trespass on the
grave of H.B. Ward. Appellant was required to prove that “(1) the plaintiff owns or
has a lawful right to possess real property, (2) the defendant entered the plaintiff’s
land and the entry was physical, intentional, and voluntary, and (3) the defendant’s
trespass caused injury to the plaintiff.” Wilen, 191 S.W.3d at 798. The trial court as
the factfinder determined that there was “zero evidence” that Appellee Estrada
“caused himself or a person or a thing to enter or remain on or in the property of
another.” This determination encompasses the first and second required elements of
trespass and was fatal to Appellants’ claim.
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Appellants argued to the trial court that because there was no evidence that
Appellee Estrada exercised due diligence to ensure that his wife’s headstone would
not be trespassing, his inaction and failure to rebut by Appellee Estrada supported
their trespass claim. But all of Appellants’ evidence of the elements of trespass are
assumptions rather than evidence. In this regard, Ed’s testimony was based on mere
observation and raw measurement coupled with compounding assumptions: first,
that H.B. Ward’s headstone was in the proper place, and second, that Kay was willed
an interest to the plots in her mother’s will. On appeal, Appellants do not point to
any evidence that would clarify whether H.B. Ward’s headstone was properly
placed, or evidence that a boundary of H.B. Ward’s plot (plot 512) was lined up with
the back of his headstone; nor was there support given as to the significance thereof
as it relates to Chapter 711. The headstone placed for Ed and Kay’s nephew (on plot
586) was also less than ten feet from the back of the headstone in the corresponding
place as H.B. Ward’s (Vera’s plot 514); eight feet, eight inches, as opposed to the
distance of eight feet, four inches between the double headstone of H.B and Lois and
that of the Estrada couple. The trial court, as the factfinder in this matter concluded
that not all plots appeared to be uniform, and we see no authoritative explanation for
the lack of uniformity. The absence of uniformity, by itself, is not evidence of
Appellee’s trespass or liability.
Additionally, it was only the right of sepulture that was sold, and that right
was fulfilled when H.B. Ward was buried in the plot. See HEALTH & SAFETY
§§ 711.039(g), (h). Appellants did not provide evidence that defined the boundaries
of the plots; as a result, Appellants did not prove that the Estrada headstone
encroached on H.B. Ward’s plot.
On appeal, Appellants contend that they only had to prove that Appellee
Estrada purchased the plot and directed a monument company to place the
headstone—each of these actions leading to the trespass—and that they were not
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required to prove that Appellee Estrada intended for the gravestone to encroach on
the Ward’s plots. This argument ignores that, as we have discussed above, no
evidence was offered to prove the elements of their trespass claim. The trial court’s
ultimate determination of summary dismissal was correct given Appellants failure
to prove that the Estrada headstone is “on the property of another.” Moreover, even
if the trial court had accepted the evidence that the plots were each required to be
five feet by ten feet, the Appellants still failed to meet their burden to prove each
element of their trespass claim. Because Appellants failed to present evidence
regarding the location of the plot boundaries at the time of the trespass or that the
Estrada headstone was actually located on any plot except for the Estrada plot, no
probative evidence was presented to raise a material fact issue. As a result, the trial
court properly rendered judgment in favor of Appellees. We overrule Appellants’
first issue.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
December 14, 2023
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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