NUMBER 13-10-00498-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

SERVICE CORPORATION INTERNATIONAL AND

SCI TEXAS FUNERAL SERVICES, INC., Appellants,

v.

LETICIA LEAL, ET AL., Appellees.

 

On appeal from the 370th District Court

of Hidalgo County, Texas.

 

DISSENTING MEMORANDUM OPINION

Before Justices Benavides, Vela, and Perkes

Dissenting Memorandum Opinion by Justice Benavides
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Eternal rest, grant unto them, O Lord

And let perpetual light shine upon them.

May they rest in peace. Amen.

The highly unusual facts of this case, coupled with the jury’s affirmative finding of 

fraud by SCI International and SCI Texas, allows me to conclude that Rodolfo Garza and 

Charles Rogers, tragically, did not rest in peace after their respective interments. As a 

result, I would hold that the Garza and Rogers families are entitled to recover mental 

anguish damages.

I. LIMITATIONS AND FRAUD CLAIMS

A. Limitations 

First, I concur with the majority’s limitation analysis and disposition with regard to 

the claims asserted by Leticia Leal, Frank Garza, Beatriz Cavazos, Maria Elena 

Cisneros, and Noe Cavazos. The evidence shows that at or around May 2003, Leticia 

Leal learned from her uncle Noe about the moving of her father’s gravestone. At that 

time, this information was also relayed to Frank, Beatriz, and Maria Elena. I agree with 

the majority that the jury was within its province to find that Frank, Beatriz, Maria Elena, 

and Noe did not assert their claims within the four-year statute of limitations for fraud in 

May 2008, and were thereby barred by the statute of limitations. See TEX. CIV. PRAC. &

REM. CODE ANN. § 16.004(a)(4) (West 2002). Therefore, Leticia is the only member of 

the Garza family who asserted her claim within the limitations period in 2004. 

With regard to the Rogers family, the majority asserts that the trial court erred by 

disregarding the jury’s findings on the limitations issue because it was within the province 

of the jury to have determined that the parties could have discovered their claims by at 

least May 2003 because when the Rogers purchased the plots in 1982, the presence of 
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Garza’s headstone would have provided them notice of the over-sale by SCI Texas. 

After reviewing the evidence, I disagree. 

Evelyn Rogers testified that she was not made aware of the situation involving the 

concealment of the Garza grave until May 2008, when the other family members joined 

Leticia’s lawsuit against SCI International and SCI Texas. According to Evelyn, she first 

learned of the allegations against SCI by her employer, attorney Tony James in 2008. 

James explained the allegations to Evelyn and recommended that she speak with the 

Garza family’s attorney. Additionally, Evelyn testified that in 1988, her parents showed 

her and her brother Gerald the four plots originally purchased in 1982 for the family’s 

benefit. On the witness stand, Evelyn described the scene as she remembered it in 

1988:

[. . .] I just saw an expanse of grass. But if there had been 

anything—believe me, my parents were [sic] attention to detail. They knew 

exactly where those plots were. They would have said something. So, no, I 

don't think that there was anybody there at the time.

This testimony runs counter to the jury’s finding that the Rogers family did not file 

suit within four years of the date that they, exercising reasonable diligence, should have 

discovered the fraud.1Therefore, because I would conclude that the jury’s finding has 

no support in the evidence, I would uphold the trial court’s disregard for the jury’s findings 

with respect to Catherine, Evelyn, and Gerald Rogers’s limitations bar. See TEX. R. CIV.

P. 301; Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). 

 

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I recognize that SCI International and SCI Texas contend that an individual by the name of “Ray 

Rosas” notified the Rogers family of the burial mix-up. However, Evelyn testified that at the time of her 

father’s burial in 2002, no one from SCI International or SCI Texas notified her or her mother of the burial 

issue. Evelyn testified that prior to this lawsuit, she had never heard of anyone by the name of “Ray 

Rosas” and that she was the first to notify her mother, Catherine, of the situation after learning about the 

situation in 2008. 
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B. Fraud 

Next, I would uphold the jury’s finding that SCI International and SCI Texas 

committed fraud against Leticia Leal and the Rogers Family.

1. Leticia Leal

Sufficient evidence supports the jury’s finding of fraud by SCI International and 

SCI Texas against Leticia. Corporate representatives from both defendants testified 

that an effort was made to conceal the burial mix-up and headstone hiding from the 

Garza family. Susano Garza, a one-time employee of SCI International, entered into 

the following colloquy with the Garza family’s attorney during a videotape deposition:

COUNSEL: And would you agree that you never informed 

Rodolfo Garza's family that the cemetery had 

removed Mr. Garza's headstone or that his lot that he 

was buried in was actually sold to somebody else?

SUSANO GARZA: No, I did not.

Additionally, SCI2corporate representative, Eduvijes Treviño, testified to the 

following during a videotaped deposition offered by plaintiffs’ counsel and admitted into 

evidence at trial:

COUNSEL: Do you admit as SCI's corporate representative that 

SCI in fact actively concealed from the Rogers family 

that someone was buried in one of their spaces by 

removing Rodolfo Garza's headstone and hiding it 

behind a shed?

TREVIÑO: Yes, sir.

COUNSEL: Do you admit as SCI's corporate representative that 

SCI never told the relatives of Rodolfo Garza that Mr. 

Garza was buried in a space that belonged to another 

family?

 

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The record is unclear whether Treviño served as a corporate representative for SCI International 

or SCI Texas. 
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TREVIÑO: Yes, sir.

The decision to disinter Rodolfo’s body and relocate his grave to a veteran’s 

cemetery was done at the behest of Rodolfo’s family after details of the controversy 

surrounding his grave came to light and the Garza family lost trust in SCI International 

and SCI Texas. 

The jury was within its province to infer—supported by the evidence—that SCI 

International and SCI Texas failed to disclose, and purposefully concealed, the 

headstone removal and burial mix-up from the Garza family so that they would refrain 

from disinterring Rodolfo’s body sooner. See City of Keller v. Wilson, 168 S.W.3d 802, 

821 (Tex. 2005). As a result, the Garza family left Rodolfo’s body in place. Here, I 

would hold that some evidence exists to uphold the jury’s finding of fraud by SCI 

International and SCI Texas against Leticia.

2. The Rogers Family

I also believe that sufficient evidence supports a finding of fraud by SCI 

International and SCI Texas against the Rogers family. 

Susano Garza confirmed that his manager instructed him to not discuss any 

problems with the overselling of plots belonging to the Rogers family at the time of 

Charles Rogers’s death. Treviño also testified about SCI International and SCI Texas’s 

active concealment of details regarding the oversold burial plots to the Rogers when 

asked by plaintiffs’ counsel by videotaped deposition:

COUNSEL: Do you admit as SCI's corporate representative that 

SCI never told the Rogers family that someone was 

buried in one of their spaces?

TREVIÑO: Not to—not to my knowledge.
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COUNSEL: Not to your knowledge were they ever told?

TREVIÑO: Right.

COUNSEL: Do you admit as SCI's corporate representative that 

SCI in fact actively concealed from the Rogers family 

that someone was buried in one of their spaces by 

removing Rodolfo Garza's headstone and hiding it 

behind a shed?

TREVIÑO: Yes, sir.

SCI employee John Davis Hudson also testified to the following concealment 

toward the Rogers family by videotaped deposition, conducted by plaintiffs’ counsel:

COUNSEL: Okay. And then here comes the Rogers family that's 

shown and known by you to own 5, and they come to 

bury their father in space 8. And before that burial, 

these questions of who's in 4 or 5 were known by your 

company, but you did not inform the Rogers that a 

space that they owned and previously bought as far 

back as 1982, that your company had knowledge it 

had a body there, right?

HUDSON: Right.

COUNSEL: You didn't tell them, right?

HUDSON: No, I didn't.

COUNSEL: You did not, as the general manager of the Highland 

Memorial Park, call up the Rogers family and before 

they buried their father and offered them four other lots 

to avoid this situation that we now find ourselves in,

right?

HUDSON: I did not.

During further examination, Hudson admitted that he knew of the problems 

surrounding the graves since June 2002, but he never notified the families involved. 

During her testimony, Evelyn testified that had SCI International and SCI Texas 
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notified her or her family about the issues surrounding her family’s burial plots, they 

would have moved to another location to find four connected plots elsewhere in the 

cemetery because the Rogers family would never have requested for Rodolfo’s body to 

be disturbed through disinterment. Gerald testified that his mother, Catherine,

considered having herself cremated and buried on top of Charles’s grave to remove any 

reason to disinter Rodolfo’s body. Based on this record, I would affirm the jury’s finding 

of fraud committed by SCI International and SCI Texas against Catherine, Evelyn, and 

Gerald. 

II. MENTAL ANGUISH DAMAGES

The Texas Supreme Court’s Parkway standard for recovery of mental anguish 

damages requires a plaintiff to introduce “direct evidence of the nature, duration, and 

severity of their mental anguish, thus establishing a substantial disruption in the plaintiffs' 

daily routine.” Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854, 860 (Tex. 1999) (citing 

Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (1995)). The Texas Supreme Court has 

acknowledged Parkway’s flaws because it may “merely encourage exaggeration and 

penalize those who deal constructively with life's vicissitudes,” but nonetheless, the high 

court continues to uphold and utilize the Parkway standard “because the law has not yet 

discovered a satisfactory empirical test for what is by definition a subjective injury.” City 

of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex. 1997). The supreme court indicated that 

recovery for mental anguish is permitted “in only a few types of cases involving injuries of 

such a shocking and disturbing nature that mental anguish is a highly foreseeable result.” 

Id. at 496. 

In this case, I would conclude that the fraudulently concealed disruption of a
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spouse or parent’s resting place is the type of situation which involves events of “such a 

shocking and disturbing nature that mental anguish is a highly foreseeable result.” Id. 

Common sense and societal values support the proposition that surviving family 

members must trust that a family member will rest in peace following his or her interment. 

Here, a cloud was hung over Rodolfo and Charles’s grave sites due to SCI International 

and SCI Texas’s intentional actions. The mental anguish that flows from these actions, 

as described by Leticia, Evelyn, and Gerald, are natural and highly foreseeable, not only 

because the jury found them to be as such, but also through SCI’s own admissions.

Ray McManness, vice president of SCI, testified: (1) that he was not proud of the 

work done in this case; (2) that he knows the impact that it has on families; and (3) that 

such actions can devastate families such as the Garza and Roger families. Additionally, 

corporate representative Treviño also admitted in testimony that secretly moving bodies, 

making double sales of burial plots without disclosing them to the families involved, and 

moving headstones without telling the surviving family members would cause them 

“severe emotional distress.” This testimony allows me to conclude and further 

demonstrates that SCI International and SCI Texas knew that the actions and 

controversies which took place with regard to Rodolfo and Charles’s graves would cause 

mental anguish for their respective family members. 

The courts of appeals are authorized to determine whether damage awards are 

supported by insufficient evidence—that is, whether they are excessive or unreasonable. 

Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex. 2002). “Not only must there be evidence of 

the existence of compensable mental anguish, there must also be some evidence to 

justify the amount awarded.” Id. Jurors must “find an amount that, in the standard 
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language of the jury charge, ‘would fairly and reasonably compensate’ for the loss.” Id.

Compensation for mental anguish can only exist if plaintiffs show a substantial disruption 

of their daily routines, or any evidence of “a high degree of mental pain and distress” that 

is “more than mere worry, anxiety, vexation, embarrassment, or anger.” See Parkway, 

901 S.W.2d at 444; Bentley, 94 S.W.3d at 606. 

Based on this record, I believe that the Parkway standard is met because (1) the 

facts surrounding this case are of such a shocking and disturbing nature to cause a high 

degree of mental pain and distress toward Leticia and the Rogers family; and (2) SCI 

representatives admitted that these actions would cause a surviving family member 

severe emotional distress. Furthermore, the record sufficiently supports that the jury’s 

award of $10,000 to each family member for mental anguish is fair and reasonable, in 

light of the highly unusual facts of this case, and should be affirmed. See Bentley, 94 

S.W.3d at 606; Parkway, 901 S.W.2d at 444. 

III. CONCLUSION

Accordingly, I concur, in part, and respectfully dissent, in part. 

GINA M. BENAVIDES,

Justice

Delivered and filed the

11th day of October, 2012.