## NUMBER 13 -23-00297-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

MPII, INC. D/B/A MISSION PARK

FUNERAL CHAPELS AND

CEMETERIES, Appellant,

v.

MARY LOU HIDALGO, ROSEMARY

JIMENEZ, GENARO SALINAS JR.,

GERARDO SALINAS, AND

GEORGE SALINAS, Appellee s.

On appeal from the 224th District Court

of Bexar C ounty, Texas.



## MEMORANDUM OPINION

Before Justices Longoria, Silva, and Peña

Memorandum Opinion by Justice Silva

Appellant MPII, Inc

. d/b/a Mission Park Funeral Chapels and Cemeteries, appeal s2 an order denying its motion to compel arbitration and stay litigation pending arbitration. 1

By what we construe as a single issue, appellant argues the trial court abused its

discretion in denying its motion to compel because there exists an enforceable arbitration

agreement, and appellee s Mary Lou Hidalgo, Rosemary Jimenez, Genaro Salinas Jr.,

Gerardo Salinas

, and George Salinas

, children of the decedent Mary Lou Salinas

, 2 are

bound to the arbitration agreement under the doctrines of direct

- benefits estoppel and

agency . We affirm.

I. B ACKGROUND

The decedent passed away on November 21, 2020 . A ppellees , along with their

sister, Maria Garzes, contacted appellant to effectuate their mother’s existing “ Prepaid

Funeral Service Purchase Agreement ” (Preneed Agreement)

. 3 The following day, Maria

signed a contract with appellant for embalmment and visitation services (2020

Agreement)

. On December 7, 2020, when the family arrived for the scheduled viewing

,

they discovered that the body in the coffin was not their mother and that their mother had

been accidentally buried five days prior

. The decedent’s body was later disinterred, and

after engaging t he services of another funeral home

, they buried their mothe r.

A ppellees and Maria sued appellant assert ing claims of negligence and gross

negligence , alleging that appellant :

1 This appeal was transferred from the Fourth Court of Appeals in San Antonio pursuant to an order

issued by the Supreme Court of Texas. See T EX

. G OV ’ T C ODE A NN . § 73.001.

2 Mary Lou Salinas had six children

— only five of which are parties to this appeal.

3 Prior to her passing, the decedent and her husband Genaro Salinas executed a “Prepaid Funeral

Service Purchase Agreement” in 1973 with appellant, authorizing appellant to “take possession of the

remains of the decedent for the purposes of preparing the same and conducting and handling said funeral

service including interment.” The Preneed Agreement did not contain an arbitration provision.3 1. Without authority or consent, remov [ed] [the decedent’s] remains from

Mission Park South on or before November 24, 2020;

2. Without authority or consent, bur [ied] [the decedent’s] remains in a

stranger ’s grave without her family present or their knowledge at Chapel

Hill Cemetery on November 24, 2020;

3. Without authority or family consent, disinterr[ed] [the decedent’s]

decayed remains from the Chapel Hill Cemetery and t [ook] them back

to Mission Park South on December 8, 2020.

Each of the above acts, by [appellant] and its employees, agents,

and representatives constitutes negligence and were, individually or in

combination, the proximate cause of the incident made the basis of this suit

and of the injuries and damages suffered by [appellees]

. These injuries and

damages include mental anguish as a result of the deprived right of

sepulture, which is defined under Texas common [l]aw, as the right of next

of kin to control the disposition of a loved ones ’ remains. [A ppellant]

committed professional negligence in taking above unauthorized actions of

burial/disposition and disinterment of [the decedent]

. [Appellant] had an

independent legal duty to not mishandle the loved one ’s remains and thus

interfere with putting her to rest, and breach of this duty made it liable for

mental anguish damages. [Appellees’] claims [sic] under the tort laws of the

State of Texas, specifically, [appellees’] loss of right of sepulture.

Appellant filed a motion to compel arbitration and to stay the suit pending

arbitration. Appellant urged that Maria had signed a funeral services agreement

containing an arbitration agreement and appellee s, though no n- signatories

, were bound

by this agreement. Appellant further asserted that the arbitration clause applied because

appellees ’ negligence and gross negligence claims are based on appellant ’s alleged

handling of their mother ’s remains, which occurred “ because of and in connection with

the [f]uneral [s]ervices [a]greement. ” Appellant supported its motion to compel arbitration

with a copy of the 2020 Agreement

, which contained “ Terms and Provisions ” language

as follows:

1. ANY CLAIM, DISPUTE, OR CONTROVERSY BASED ON, ARISING4 OUT OF, OR RELATING TO THIS AGREEMENT OR ITS

ENFORCEMENT OR INTERPRETATION (EACH, A “D IS PUTE ”)

SHALL BE SUBMITTED TO BINDING ARBITRATION IN SAN

ANTONIO, TEXAS BEFORE A SINGLE ARBITRATOR PURSUANT TO

THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION

THEN IN EFFECT. SELLER AND PURCHASER IRREVOCABLY

CONSENT TO SUCH ARBITRATION OF DISPUTES.

. . .

. . . .

7. This Agreement is binding on and shall inure to the benefit of the parties

hereto and their respective heirs, legal representatives, family

members, administrators, executors, successors and permitted

assigns

.

Additionally, appellant attached exhibits indicating that although

, due to COVID

- 19

restrictions, appellant had only met in person with Maria and Genero Jr. to execute the

funeral services agreement

— Mary Lou, Rosemary, Gerardo, and George participated in

the meeting via cell phone. As further evidence of appellees ’ individual involvement in the

creation of the 2020 Agreement and the existence of apparent authority extended to Maria

by appellees

, appellant attached deposition statements and interrogatories, wherein

appellees acquiesce to having been a part of the discussion of the services provided for

by the 2020 Agreement.

Appellees filed a response

, asserting in relevant part that they have not brought a

claim regarding any services or merchandise that are the subject of the 2020 Agreement

.

Rather, appellees’ claim is “ for negligence and gross negligence stemming from

[appellant ’s] mishandling of [the decedent’s ] remains, subjecting [the decedent ] to be

buried in a stranger ’s grave, and then disinterring her remains without legal or related

judicial authority and without the family ’s consent. ” Appellees additionally contend that

even if Maria individually agreed to arbitrate her claims, appellees cannot be compelled5 to arbitrat e as none were signatories to the 2020 Agreement nor do the doctrines of direct

benefits estoppel or agency apply. As to direct

- benefits estoppel, appellees argue that

they received no benefit from the 2020 Agreement as the contracted funeral services

never transpired

. With respect to appellant ’s agency contention, appellees argue there is

“ no evidence to show Maria ’s siblings had the requisite control to establish [ the ] principal

agent relationship. ”

A ppellees additionally attached written declarations from each appellee, asserting

that they : did not authorize or intend to authorize Maria to act as their “ agent in connection

with procuring additional funeral services and merchandise ” for their mother ’s funeral; “ did

not receive any actual benefit from the 2020 Agreement ”; “ did not sign the 2020

Agreement [;] and did not have an opportunity to review the 2020 Agreement until after

the lawsuit was filed. ” A declaration signed by Maria was also filed, wherein she swore

she signed the 2020 Agreement “ in [her] sole individual capacity and not as an agent of

[her] siblings

, ” she was not “ authorized to sign any documents on behalf of [her] siblings

, ”

“ nor did [she] intend to act as [ an ] agent for any of [her] siblings. ”

Following a hearing on appellant ’s motion to compel arbitration, the trial court

granted appellant ’s motion only as to Maria, ordered Maria ’s causes of action to be

severed

, and ordered appellant’s motion otherwise denied as to appellees. This

accelerated appeal followed. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. §§ 51.016

,

171.098(a)(1).6 II. D ISCUSSION

Appellant assert s that appellees ’ claims fall within the scope of the 2020

Agreement arbitration provision

, and appellees are therefore bound to arbitration under

the doctrines of direct

- benefits estoppel or agency

.

A. Standard of Review and Applicable Law

“ [A] party seeking to compel arbitration must establish the existence of a valid

arbitration agreement and the existence of a dispute within the scope of the agreement. ”

Lennar Homes of Tex. Land & Constr., Ltd. v. Whiteley

, 672 S.W.3d 367, 376 (Tex. 2023)

(quoting Baby Dolls Topless Saloons, Inc. v. Sotero

, 642 S.W.3d 583, 585

– 86 (Tex. 2022)

(per curiam) ). “[O] nce it is established that a valid arbitration agreement exists and that

the claims in question are within the scope of the agreement , a presumption arises in

favor of arbitrating those claims and the party opposing arbitration has the burden to prove

a defense to arbitration

. ” Royston, Rayzor, Vickery, & Williams, LLP v. Lopez , 467 S.W.3d

494, 499

– 500 (Tex. 2015) . Because the presumption in favor of arbitration is so

compelling, “a court should not deny arbitration unless it can be said with positive

assurance that an arbitration clause is not susceptible of an interpretation which would

cover the dispute at issue.” Henry v. Cash Biz, LP , 551 S.W.3d 111, 115 (Tex. 2018)

(cleaned up).

While we review a trial court ’s order denying a motion to compel arbitration for

abuse of discretion, Henry

, 551 S.W.3d at 115, questions of whether a valid arbitration

agreement exists and whether an arbitration agreement is binding on a nonparty are

reviewed de novo. Whiteley

, 672 S.W.3d at 376. A trial court abuses its discretion if it7 “ acted without reference to guiding rules or principles or in an arbitrary or unreasonable

manner. ” In re Copart, Inc.

, 619 S.W.3d 710, 713 (Tex. 2021) (orig. proceeding) (per

curiam) (cleaned up).

“ Who is bound by an arbitration agreement is normally a function of the parties ’

intent, as expressed in the agreement ’s terms. ” Jody James Farms, JV v. Altman Grp.

,

547 S.W.3d 624, 633 (Tex. 2018). “ But sometimes a person who is not a party to the

agreement can compel arbitration with one who is, and vice versa. ” Whiteley

, 672 S.W.3d

at 376 (quoting Meyer v. WMCO

- GP, LLC

, 211 S.W.3d 302, 305 (Tex. 2006)). “ Courts

have recognized six theories, arising out of common principles of contract and agency

law, that may bind non[

- ]signatories to arbitration agreements: (1) incorporation by

reference; (2) assumption; (3) agency; (4) alter ego; (5) equitable estoppel; and (6) third

party beneficiary. ” Id. (cleaned up). Specifically, appellant contends appellees are bound

by the doctrines of direct

- benefits estoppel and agency.

B. Analysis

Although the arbitration provision here is more limiting than the provision analyzed

by the supreme court in Henry

, its language is nonetheless broad, encompassing “ ANY

CLAIM, DISPUTE, OR CONTROVERSY BASED ON, ARISING OUT OF, OR RELATING

TO THIS AGREEMENT OR ITS ENFORCEMENT OR INTERPRETATION.” Cf. Henry

,

551 S.W.3d at 116 (“Here, the arbitration agreement applies to ‘all disputes’ and specifies

that ‘“dispute” and “disputes” are given the broadest possible meaning and include,

without limitation

. . . all claims, disputes, or controversies arising from or relating directly

or indirectly to the signing of this Arbitration Provision.’”)

. Such language has been8 previously held by this Court and our sister courts to embrace some tort claims. See

Amateur Athletic Union of the United States, Inc. v. Bray , 499 S.W.3d 96, 105 (Tex.

App.

— San Antonio 2016, no pet.); see also SCI Tex. Funeral Servs

., LLC v. Gonzalez

,

No. 13

- 21

- 00453

- CV, 2023 WL 3637979, at *5 (Tex. App.

— Corpus Christi

– Edinburg May

25, 2023, no pet.) (mem. op.) ; Storm Water Sols., LLC v. Live Oak Rail Partners, LLC

,

No. 13

- 17

- 00492

- CV, 2019 WL 613300, at *5 (Tex. App.

— Corpus Christi

– Edinburg Feb.

14, 2019, no pet.) (mem. op.)

. Whether or not a tort claim falls within the scope of an

arbitration agreement , however, is determined by a review of the facts alleged in support

of the claim

. See Bray , 499 S.W.3d at 105; see also Gonzalez , 2023 WL 3637979, at *5.

Thus, the question we must first address is whether the facts alleged by appellees “ have

a ‘significant relationship’ to or are ‘factually intertwined’ with the contract that is subject

to the arbitration agreement .” See Bray , 499 S.W.3d at 105; see also Gonzalez , 2023 WL

3637979, at *5. “If the facts alleged stand alone and are completely independent of the

contract, the claim is not subject to arbitration .” Bray , 499 S.W.3d at 105.

A ppellees frame their pleaded common law negligence claim as a violation of their

“right of sepulture”

— which appellees define as “ the right of next of kin to control the

disposition of a loved ones’ remains.” We remain uncertain of whether an invocation of

“right of sepulture” is the appropriate claim, and note that the advancement of “right of

sepulture” claims have historically been in a different legal context, 4 including: a grave

4 Additionally, pursuant to the Texas Health and Safety Code, a cemetery organization, such as

appellant, is permitted to “sell and convey the exclusive right of sepulture in a plot” for interment (i.e., burial).

T EX

. H EALTH & S AFETY C ODE A NN

. §§ 711.038(a), 711.001 (21) (defining “interment” as “the permanent

disposition of remains by entombment, burial, or placement in a niche”). Though the “right of sepulture” is

not defined in the code, a “plot owner” is defined as “a person”9 plot encroachment claim, where the headstone of the decedent was allegedly

encroaching upon another burial plot, Talley v. Rocky Creek Cemetery Ass’n , No. 11

- 22

-

00104

- CV, 2023 WL 8631479, at *1 (Tex. App.

— Eastland Dec. 14, 2023, no pet. h.)

(mem. op.); a breach of a contract claim, “whereby defendant had undertaken to afford

plaintiff ‘ Right of Sepulture ’ in a specified lot of its cemetery,” Rice v. Sioux City Mem’l

Park Cemetery , 349 U.S. 70, 71 (1955); and a probate claim where a will provision

included a dedication of a private graveyard for next of kin in perpetuity, Bockel v. Fid.

Dev. Co. , 101 S.W.2d 628, 630 (Tex. App.

— Galveston 1937, no writ)

. See Katherine

Calderon, The World of the Dead, the Right of Sepulcher, and the Power of Information

Court of Appeals of New York , 32 Touro L. Rev. 785, 804 (2016) (noting that the “right of

sepulture” is often intertwined with the “right of interment,” which concerns burial); see

also Sepulture

, M ERRIAM -W EBSTER ’ S D ICTIONARY (11th ed. 2020) (a “ sepulture ” is a

burial). Because we fo cus on appellees’ factual allegations

— which appertain to

appellant’s mishandling of the decedent’s remains by interring her into and then

disinterring her from the wrong burial plot

— to the extent it is necessary, we utilize the

mishandling of appellees’ loved one’s remains as the “duty” which underscores appellees’

negligence claim. See In re Weekley Homes, L.P. , 180 S.W.3d at 131

– 32 (providing that

(A) in whose name a plot is listed in a cemetery organization’s office as the owner of the

exclusive right of sepulture; or

(B) who holds, from a cemetery organization, a certificate of ownership or other instrument

of conveyance of the exclusive right of sepulture in a particular plot in the

organization’s cemetery.

Id. § 71 1.001(32)(A), (B); see Oakland Cemetery Co. v. People’s Cemetery Ass’n , 57 S.W. 27, 28 (Tex.

1900) (observing that the object of a cemetery business “was to make a profit by the sale of lots for sepultu re

in said cemetery”)

.10 it is the substance of the pleadings rather than the stated claim which informs our “within

the scope” analysis) ; see also Evanston Ins. Co. v. Legacy of Life, Inc. , 370 S.W.3d 377,

383 (Tex. 2012) (noting that the bodies of deceased persons have held a unique status

in the law as “a sort of quasi property, in which certain persons have rights therein and

have duties to perform” (citing Regina v. Price

, 12 Q.B.D. 247 , 252

– 54 (1884) (Eng.)));

see generally Elephant Ins. Co., LLC v. Kenyon , 644 S.W.3d 137, 144 (Tex. 2022) (setting

forth the elements for c ommon

- law negligence: “(1) a legal duty; (2) a breach of that duty;

and (3) damages proximately resulting from the br each”)

.

Appellant counters that even absent appellees ’ invocation of the 2020 Agreement

in its pleading

, the contracted

- for services did include th e handling of the decedent ’s

remains . Specifically, the 2020 Agreement contained a provision en titled “ SERVICES

AND MERCHANDISE ,” which afforded appellant the responsibility of embalming

,

dressing, and casketing the decedent in preparation for funeral services

. The 2020

Agreement also provided for appellant’s transportation of the decedent from the funeral

home to the burial plot

. T he 2020 Agreement , however, does not encompass the

interment or disinterment of the decedent 5

— which serve as the crux of appellees’ claim

.

See generally In re Champion Indus. Sales, LLC , 398 S.W.3d 812, 823 (Tex. App.

—

5 To appellant ’s contention that the Preneed Agreement does contract for appellant’s interment

services

, thereby binding appellees, while it is “well

- established law that instruments pertaining to the same

transaction may be read together to ascertain the parties’ intent, even if the parties executed the

instruments at different times and the instruments do not expressly refer to each other ,” see Fort Worth

Indep. Sch. Dist. v. City of Fort Worth , 22 S.W.3d 831, 840 (Tex. 2000)

, it is undisputed that appellees here

were n either signatory parties to the Preneed Agreement executed in 1973 n or to the 2020 Agreement ; the

Preneed Agreement contained no arbitration provision; and the 2020 Agreement contained both an

arbitration provision and an “ENTIRE AGREEMENT” provision providing that it “contains all the terms which

have been agreed upon .” Thus, this is not the instance wherein we may construe the contracts as a single,

unified instrument. See id. ; Wells v. Wells , 621 S.W.3d 362, 367 (Tex. App.

— Houston [14th Dist.] 2021, no

pet.)

.11 Corpus Christi

– Edinburg 2012, orig. proceeding.) (“[It] is well established that plaintiffs

are the masters of their suit regarding the claims .

. . they choose to pursue.” (quoting

Heard v. Moore , 101 S.W.3d 726, 728 (Tex. App.

— Texarkana 2003, pet. denied))). That

the 2020 Agreement and appellees’ factual allegations both touch on app ellant’s handling

of the dece dent’s remains is not controlling in and of itself when the contracted handling

of the decedent in the 2020 Agreement included neither interment nor disinterment

services. T o the extent there exists a ny association between the substance of appellees’

claim and the 2020 Agreement , that appellees’ claim arises from common law and may

exist wholly independent from the contract informs our analysis and disposition

. See Bray

,

499 S.W.3d at 105.

“[I]f the facts alleged in support of the claim stand alone, are completely

independent of the contract, and the claim could be maintained without reference to the

contract, the claim is not subject to arbitration.” Pennzoil Co. v. Arnold Oil Co., Inc. , 30

S.W.3d 494, 498 (Tex. App.

— San Antonio 2000, no pet.)

. As discussed supra , appellees

allege facts concerning appellant’s mishandl ing of their mother’s corpse during interment

(and disinterment)

. Moreover, t here exists an independent duty under Texas law not to

negligently mishandle a corpse during interment

. SCI Tex. Funeral Servs., Inc. v. Nelson

,

540 S.W.3d 539, 547

– 48 (Tex. 2018) (observing that “[t]he relationship between a person

disposing of a decedent’s remains and the next of kin is special, even without a contract.”);

Rader Funeral Home, Inc. v. Chavira

, 553 S.W.3d 10, 17 (Tex. App.

— El Paso 2018, no

pet.) (“ [A] contractual relationship is not required if the defendant breaches an

independent legal duty; that is, the duty to not negligently mishandle a corpse.” ); see also12 SCI Tex. Funeral Servs

., L.L.C. v. Montoya

, No. 13

- 19

- 00088

- CV, 2020 WL 5582367, at

*7 (Tex. App.

— Corpus Christi

– Edinburg Sept. 17, 2020, no pet.) (mem. op.) (observing

the legal duty to not negligently mishandle a corpse ); SIG

- TX Assets, LLC v. Serrato

, No.

05

- 18

- 00462

- CV, 2019 WL 1771301, at *4 (Tex. App.

— Dallas Apr. 23, 2019, no pet.)

(mem. op.) (same). Because the facts alleged in support of appellees’ claim stand alone

and c ould be maintained without reference to the contract, appellees’ claim is not subject

to arbitration. See Pennzoil Co. , 30 S.W.3d at 498 ; see also San Antonio Eye Ctr., P.A.

v. Vision Assocs. of S. Tex. P.A. , No. 04

- 22

- 00078

- CV, 2022 WL 3908843, at *4 (Tex.

App.

— San Antonio Aug. 31, 2022, pet. denied) (mem. op.) (holding a claim was not

subject to arbitration where the claim “could certainly be brought independently without

reference to the [Agreement] at all ”); SIG

- TX Assets

, 2019 WL 1771301, at *4 (affirming

trial court’s denial of SIG

- TX’s motion to compel arbitration where “although SIG

- TX’s

duty to prepare and inter [the decedent’s] body arose from the contracts, there is an

independent duty under Texas tort law to immediate family members not to negligently

mishandle a corpse”).

Appellant, as movant, bore the burden of establishing the existence of a dispute

within the scope of the agreement. S ee Whiteley

, 672 S.W.3d at 376

. We can say with

positive assurance that the 2020 Agreement arbitration language , however broad, is not

susceptible to an interpretation which would cover a claim on the interment or

disinterment of the decedent. See id. ; Henry , 551 S.W.3d at 115

. Having determined that

appellees’ claim s fall outside the scope of the agreement, we do not address whether13 appellees are bound to the arbitration agreement under the doctrines of direct

- benefits

estoppel and agency

. See T EX

. R. A PP

. P. 47.4

. We overrule appellant ’s sole issue.

III. C ONCLUSION

We affirm the trial court ’s judgment.

CLARISSA SILVA

Justice

Delivered and filed on the

21st day of March

, 202 4.