Psalms Funeral Home LLC v. Aqilla Hogan-Rogers

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-19-00269-CV
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PSALMS FUNERAL HOME LLC, Appellant
V.
AQILLA HOGAN-ROGERS, Appellee
__________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 17-07-08613-CV
__________________________________________________________________
MEMORANDUM OPINION
Appellant Psalms Funeral Home LLC (“Psalms”) argues that the evidence is
legally insufficient to support the trial court’s finding that Psalms breached a contract
with appellee Aqilla Hogan-Rogers (“Hogan-Rogers”), because she was not a party
to the contract, which was signed by her husband, who was not a named party in the
lawsuit. Psalms also argues that the trial court abused its discretion by awarding
damages for emotional distress and treble damages pursuant to the Texas Deceptive
Trade Practices Act (“DTPA”), because the evidence is legally insufficient to
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support a finding of intentional infliction of emotional distress and a finding that
Psalms knowingly or intentionally violated the DTPA. We affirm the trial court’s
judgment.
Background
In July 2017, Hogan-Rogers filed suit against Psalms, alleging causes of
action for breach of contract, common-law fraud, violation of the DTPA, intentional
infliction of emotional distress, and negligence. Hogan-Rogers alleged that she
contracted with Psalms to bury her newborn daughter, A.R., and that Psalms
breached the contract by embalming A.R. and burying A.R. in a “food cooler
wrapped closed with duct tape, instead of a child’s casket.” Hogan-Rogers alleged
that Psalms committed common-law fraud by leading her to believe that A.R. would
be buried in a traditional casket, and that Psalms violated the DTPA by failing to
disclose that it intended to bury A.R. in a cooler. According to Hogan-Rogers, she
was entitled to recover mental anguish damages because Psalms acted knowingly
when it represented that A.R. would be buried in a casket. Hogan-Rogers further
alleged that Psalms’s conduct in disregarding her explicit requests regarding A.R.’s
burial was “reckless, if not intentional[,]” and Psalms’s conduct was extreme and
outrageous, causing her severe emotional distress. Hogan-Rogers also alleged that
Psalms negligently embalmed A.R. despite her specific instruction not to do so.
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Psalms filed a general denial, affirmative defenses, and a motion for special
exceptions claiming that Hogan-Rogers failed to specify those acts or omissions that
Psalms allegedly committed that would support an award of exemplary damages.
Psalms also filed a counterclaim, alleging that it had suffered damages and incurred
attorney’s fees as a direct and proximate result of the occurrence made the basis of
the lawsuit. Hogan-Rogers filed a general denial and affirmative defenses to
Psalms’s counterclaim.
The trial court conducted a bench trial, during which Hogan-Rogers testified
that on January 14, 2016, she gave birth to A.R., who lived less than fifteen hours.
Hogan-Rogers testified that her husband, Brandon Rogers, was A.R.’s father, and
she explained that in 2015, they had lost a son, who was stillborn. According to
Hogan-Rogers, her mother-in-law, Carolyn Rogers, contacted Psalms the day A.R.
passed away, and Hogan-Rogers, Brandon, and Carolyn went to Psalms the
following day and spoke with William McLean, who told them that they could not
see A.R. because Alice Harper had embalmed A.R. the night of January 14. Hogan-
Rogers explained that when she spoke with Alice Harper on January 14, she
requested that A.R. not be embalmed, and the record contains a document indicating
that the family refused embalming. According to Hogan-Rogers, after she told
McLean that A.R. was not supposed to be embalmed, McLean added language to
the contract stating that the reason for embalming was for “viewing purposes[.]”
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Hogan-Rogers testified that on January 15, she discussed the funeral service
with McLean, and Brandon filled out and signed a contract with McLean. Hogan-
Rogers testified that the contract indicates that a casket would be provided, and the
record contains the funeral purchase agreement which shows that the merchandise
included a casket. According to Hogan-Rogers, McLean did not provide them with
a catalog of caskets to choose from and he did not know what color the casket would
be, but she expected the casket to be a regular infant casket. Hogan-Rogers testified
that Harper never told her that she was going to build the casket. Hogan-Rogers
explained that Harper told her that the funeral would cost $500, and that is how much
was paid.
Hogan-Rogers testified that the next contact with Psalms was on January 17,
the day of A.R.’s graveside burial. Hogan-Rogers testified that when she went to
A.R.’s burial site, she expected to see a casket, but she saw a Styrofoam box with
duct tape. Hogan-Rogers explained that she “just stood there, kind of . . . blacked
out[,]” and felt like she “was in a twilight zone[.]” The record includes a picture of
the box with duct tape that Hogan-Rogers took at the funeral, and she testified that
she took the picture because she “couldn’t believe it.” Hogan-Rogers described the
“contraption[]” as covered with pink material that was “duct tape wrapped around a
Styrofoam Igloo cooler.” Hogan-Rogers testified that it was horrible and disgusting,
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and she did not think that Psalms acted in a professional manner. According to
Hogan-Rogers, Psalms acted recklessly and its conduct was outrageous.
Hogan-Rogers testified that for several months she has had trouble sleeping,
nightmares of A.R. being dug up by animals, and deep depression, and she attempted
suicide twice. Hogan-Rogers testified that the grave was very shallow, and she had
seen animals buried in better conditions. Hogan-Rogers explained that she was
traumatized and it took about a year of being on medication for her to stabilize and
be able to work and provide for her family. According to Hogan-Rogers, she was in
a weakened state for “a good while[]” and her condition affected her family
relationships.
Brandon testified that he signed the contract with Psalms and understood that
the services he contracted for included a casket, and he expected the casket to be
similar to the one in which his son was buried. According to Brandon, he was
shocked when he saw that A.R. was not buried in a casket, but in something that was
covered in pink fabric and secured with duct tape. Brandon also testified that the
funeral service was not professional and the manner in which A.R. was buried was
extreme and outrageous. According to Brandon, if he had known Psalms intended to
bury A.R. in a Styrofoam box, he would have gone to another funeral home. Brandon
testified that after A.R.’s burial, Hogan-Rogers became very depressed and
distraught and began taking medication.
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Carolyn testified that she was at the hospital when she first spoke with Harper
on the telephone about A.R.’s funeral, and Carolyn told Harper that they did not
want A.R. to be embalmed. Carolyn explained that the following day, they met
McLean at Psalms, and McLean did not tell her that Psalms intended to build the
casket. According to Carolyn, she would not have done business with Psalms had
she known that Harper intended to build the casket out of a Styrofoam box. Carolyn
testified that she paid Psalms $500 for the funeral, and Hogan-Rogers and Brandon
reimbursed her. Carolyn explained that after the funeral, Hogan-Rogers needed a lot
of help and support.
Harper testified that Psalms has been in the funeral home business since 1989.
Harper agreed that A.R. was buried in a Styrofoam enclosure that she prepared, and
that, depending on the size of the baby, she “always do[es] my babies that way.”
Harper explained that she had duct tape on the casket in case the family wanted to
see A.R. According to Harper, it is not her practice to state in the contract her
intention to build the casket. Harper explained that she has made thirty or forty
caskets, and she makes her caskets the same way the manufacturers do. According
to Harper, she has never received a complaint about her caskets.
Harper testified that neither she nor McLean ever disclosed that she was going
to build a casket or that A.R. was going to be buried in a Styrofoam enclosure. Harper
further testified that McLean did not tell the family that Psalms would get a casket
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from its other location. Harper also testified that she did not embalm A.R. Harper
explained that she dug the hole for the casket, because the family did not have the
money for a gravedigger. According to Harper, she did not make any money from
A.R.’s funeral, and she was just trying to give A.R. a decent burial. Harper testified
that she was shocked by the lawsuit, because she did not do anything wrong.
McLean testified that he has been employed with Psalms for fifteen years, and
McLean explained that he went over the funeral contract with Brandon. According
to McLean, he did not tell Brandon, Hogan-Rogers, or Carolyn that the casket was
going to be made from a Styrofoam box; he just told them that a casket would be
provided. McLean testified that A.R. was not embalmed, and he never told Brandon
that A.R. had been embalmed. McLean explained that the contract lists the price of
embalming but does not indicate that A.R. was embalmed. McLean testified that
A.R.’s service was nice and that Hogan-Rogers thanked Psalms after the service.
The trial court found that there was sufficient evidence to support Hogan-
Rogers’s claims for breach of contract, intentional infliction of emotional distress,
and violation of the DTPA in the form of nondisclosure. The trial court awarded
Hogan-Rogers $500 in actual damages for breach of contract, $45,000 in
compensatory damages for emotional distress and mental anguish, and $90,000 for
knowingly and intentionally violating the DTPA. The trial court also ordered that
Psalms would take nothing on its counterclaims.
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The trial court issued findings of fact and conclusions of law. The trial court
found, among other things, that a contract existed between Hogan-Rogers and
Psalms, which Hogan-Rogers performed by paying for the contract and which
Psalms breached by not providing a casket as promised; Psalms acted intentionally,
or at least recklessly, in its manner of A.R.’s burial, and Psalms’s conduct was
extreme, outrageous, and the cause of Hogan-Rogers’s severe emotional distress;
and that Hogan-Rogers was a consumer and Psalms failed to disclose information
concerning the goods (casket) and services (manner of burial) which it knew when
it contracted with Hogan-Rogers, intending to induce Hogan-Rogers into a
transaction into which she would not have entered had the concealed information
been disclosed.
Analysis
In issue one, Psalms argues that the evidence is legally insufficient to support
the trial court’s finding that Psalms breached a contract with Hogan-Rogers because
she was not a party to the contract, which was signed by her husband, who was not
a named party in the lawsuit. Hogan-Rogers argues that because Psalms failed to
raise this challenge before trial, it has waived this issue for appellate review.
“[A] challenge to a party’s privity of contract is a challenge to capacity, not
standing, and requires compliance with [R]ule 93 of the Texas Rules of Civil
Procedure.” John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645, 651
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(Tex. App.—Dallas 2013, pet. denied); see also Tex. R. Civ. P. 93(1) (providing that
a pleading challenging a plaintiff’s legal capacity to sue shall be verified by
affidavit). Based on our review of the record, Psalms did not challenge Hogan-
Rogers’s capacity in its pleadings. Psalms first mentioned this argument in its
proposed amended findings of fact and conclusions of law, which Psalms filed seven
days after trial. We conclude that because Psalms failed to challenge Hogan-
Rogers’s capacity to sue in a verified pleading prior to trial, Psalms has waived this
issue for our review. See Nine Greenway Ltd. v. Heard, Goggan, Blair & Williams,
875 S.W.2d 784, 787 (Tex. App.—Houston [1st Dist.] 1994, writ denied). We
overrule issue one.
In issues two and three, Psalms argues that the trial court abused its discretion
by awarding damages for emotional distress and treble damages pursuant to the
DTPA, because the evidence is legally insufficient to support a finding of intentional
infliction of emotional distress and a finding that Psalms knowingly or intentionally
violated the DTPA. Findings of fact are reviewable for legal or factual sufficiency
under the same standards applied to a jury’s answers. BMC Software Belgium, N.V.
v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Catalina v. Blasdel, 881 S.W.2d 295,
297 (Tex. 1994). When a party attacks the legal sufficiency of an adverse finding on
which the party did not have the burden of proof, the party must demonstrate on
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appeal that no evidence supports the finding. Graham Cent. Station, Inc. v. Peña,
442 S.W.3d 261, 263 (Tex. 2014).
Evidence is legally sufficient if it “would enable reasonable and fair-minded
people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). The factfinder is the sole judge of the credibility of the witnesses
and is responsible for resolving any conflicts in the evidence, weighing the evidence,
and drawing reasonable inferences from basic facts to ultimate facts. Id. at 819-21;
Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004). When evaluating legal
sufficiency, we review the evidence in the light most favorable to the verdict and
indulge every reasonable inference that would support it, and when there is
conflicting evidence, we presume the factfinder resolved the conflicting evidence in
favor of the prevailing party and disregard that evidence in our review. City of Keller,
168 S.W.3d at 810, 820-21. We credit favorable evidence if a reasonable factfinder
could, and disregard contrary evidence unless a reasonable factfinder could not. Id.
at 827. A trial court abuses its discretion if it acts arbitrarily, without reference to
any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241-42 (Tex. 1985). The mere fact that a trial court may decide an issue within
its discretionary authority in a manner different than what an appellate judge would
decide in a similar circumstance does not demonstrate that the trial court has abused
its discretion. Sw. Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965).
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Psalms contends that the evidence is legally insufficient to support a finding
that its conduct was extreme and outrageous and that it intentionally caused Hogan-
Rogers emotional distress. While Psalms also complains that Hogan-Rogers failed
to produce evidence that she had been treated for emotional distress, Psalms has
failed to cite to any caselaw requiring the admission of medical records or medical
bills to support damages for intentional infliction of emotional distress. See
Higginbotham v. Allwaste, Inc., 889 S.W.2d 411, 417 (Tex. App.—Houston [14th
Dist.] 1994, writ denied) (providing that proof of visiting a doctor is not the only or
exclusive method of proving severe emotional distress). The trial court found,
among other things, that Psalms acted intentionally in its manner of A.R.’s burial,
that conduct being extreme, outrageous, and the cause of Hogan-Rogers’s severe
emotional distress. The trial court awarded Hogan-Rogers $45,000 for emotional
distress and mental anguish.
A cause of action for intentional infliction of emotional distress has four
elements: (1) the defendant acted intentionally or recklessly; (2) its conduct was
extreme and outrageous; (3) its actions caused the plaintiff emotional distress; and
(4) the emotional distress was severe. Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex.
2017). For conduct to be extreme and outrageous, it must be “‘so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized community.’”
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GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999) (quoting Natividad
Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994)). Emotional distress includes highly
unpleasant mental reactions such as embarrassment, horror, grief, and worry, and
severe emotional distress is distress that is so severe that no reasonable person could
be expected to endure it. Id. at 618. A finding of intentional infliction of emotional
distress can be upheld when a plaintiff has become so worried that she considers
taking her own life. Gaspard v. Beadle, 36 S.W.3d 229, 238 (Tex. App.—Houston
[1st Dist.] 2001, pet. denied).
Intentional infliction of emotional distress requires that the actor either intend
to cause severe emotional distress or that severe emotional distress is the primary
risk created by the actor’s reckless conduct. Standard Fruit & Vegetable Co. v.
Johnson, 985 S.W.2d 62, 63 (Tex. 1998). “Intentional conduct requires a showing
that the actor desired the consequences of her act.” Behringer v. Behringer, 884
S.W.2d 839, 842 (Tex. App.—Fort Worth 1994, writ denied). An actor is reckless
when she knows or has reason to know of facts that create a high degree of risk of
harm to another and deliberately proceeds to act in conscious disregard of, or
indifference to, that risk. Clayton v. Wisener, 190 S.W.3d 685, 695 (Tex. App.—
Tyler 2005, pet. denied). Intent may be inferred from the circumstances and the
defendant’s conduct, and a factfinder is free to discredit the defendant’s protestations
that no harm was intended and to draw necessary inferences to establish intent. Id.
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 The trial court heard testimony that as a result of A.R. being buried in a
Styrofoam cooler with duct tape, Hogan-Rogers experienced emotional problems for
several months, including deep depression, trouble sleeping, nightmares of A.R.
being dug up by animals, and that Hogan-Rogers had attempted suicide twice. The
trial court heard that Hogan-Rogers was traumatized and that it took approximately
a year of being on medication for her to stabilize and be able to work. The trial record
included a photograph that Hogan-Rogers took at the funeral and she described the
“contraption” that A.R. was buried in as being covered with pink material that was
“duct tape wrapped around a Styrofoam Igloo cooler.” The trial court heard
testimony that the manner in which Psalms buried A.R. was extreme and outrageous,
and that Hogan-Rogers felt like she “was in a twilight zone” when she saw A.R.’s
burial site. The trial court also heard Harper testify that she had always intended to
bury A.R. in a Styrofoam enclosure that she would build, which she did not disclose
to Hogan-Rogers, and that the duct tape was necessary to “hold the bottom part to
keep it from falling off.”
The trial court also heard testimony that the contract provided that the funeral
service included a casket, but it was not Psalms’s practice to state that Harper would
build the casket. The trial court considered testimony that Harper dug the grave,
which was described as very shallow, and the trial court found that the photograph
of the cooler in the grave was so unlike a usual burial site that Psalms’s attorney
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accused Hogan-Rogers of digging up the cooler to take the photograph. The trial
court’s findings indicated that it believed the testimony that McLean told the family
that A.R. had been embalmed, which the trial court found to be both highly alarming
and highly relevant as to the intentional conduct causing mental anguish and
emotional distress in this case.
After crediting all the favorable evidence a reasonable factfinder could, and
disregarding all contrary evidence unless a reasonable factfinder could not, we
conclude that the evidence would enable a reasonable and fair-minded person to
conclude that Psalms acted intentionally or at least recklessly in its manner of A.R.’s
burial; its conduct was extreme and outrageous; and there is legally sufficient
evidence proving that its conduct caused Hogan-Rogers severe emotional distress.
See Hersh, 526 S.W.3d at 468; City of Keller, 168 S.W.3d at 827; Bruce, 998 S.W.2d
at 618; Johnson, 985 S.W.2d at 63; Gaspard, 36 S.W.3d at 238. Accordingly,
because the evidence is legally sufficient to support a finding of intentional infliction
of emotional distress, we conclude that the trial court did not abuse its discretion by
awarding Hogan-Rogers damages for emotional distress. See Downer, 701 S.W.2d
at 241-42. We overrule issue two.
In issue three, Psalms argues that the trial court abused its discretion by
awarding treble damages pursuant to the DTPA because the evidence is legally
insufficient to support a finding that Psalms knowingly or intentionally violated the
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DTPA. Our review of Psalms’s brief shows that the briefing on this issue contains
no citations to any legal authority. See Tex. R. App. P. 38.1(i) Because Psalms’s
brief fails to provide appropriate citations to authorities in support of its argument,
we overrule Psalms’s third issue as inadequately briefed. See id. Having overruled
each of Psalms’s issues, we affirm the trial court’s judgment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on August 5, 2020
Opinion Delivered December 30, 2020
Before McKeithen, C.J., Horton and Johnson, J.J.
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