Texas SC halts trial against cemetery accused of desecrating remains

Steve Korris Feb. 18, 2009, 4:58pm

Texas Supreme Court

AUSTIN – On the day Hidalgo County District Judge Noe Gonzalez planned to start a trial about cemetery owners who sold a plot twice and dug up a corpse to cover the mistake, the Supreme Court of Texas halted the proceedings.

On Feb. 17, the justices stayed the trial and expedited an appeal that would shift the case from civil court to arbitration.

Five days earlier, 13th District appeals judges in Corpus Christi had given the trial a green light by rejecting arbitration.

Nine individuals from three families seek damages from Highland Memorial Park owner SCI Texas Funeral Services, alleging fraud and desecration of remains.

Plaintiff Petra Lopez bought four plots in 1976. In 1977, SCI sold one of her plots to relatives of Rodolfo Garza and buried him.

In 1982, SCI sold four nearby plots to Catherine, Evelyn and Gerald Rogers.

In 1997, Lopez's mother died and Lopez prepared to bury her in one of her plots.

SCI told Lopez it mistakenly buried someone else there. Court documents say SCI hastily disinterred Garza and buried him in the next plot, which belonged to the Rogers family.

In 2002, Charles Rogers died and his family arranged to view their plots.

SCI scrambled to keep them from noticing a stranger in one of their plots. Instead of moving Garza again, they simply threw away his headstone, court papers claim.

Also in 2002, Lopez's husband, Valentin Lopez, died. She picked a plot and signed a contract to purchase "interment rights, merchandise and services."

The Garza family discovered what happened to Rodolfo Garza's remains and sued SCI in 2004. Lopez and the Rogers family later joined the suit.

Last year, SCI moved to compel arbitration under the contract Lopez signed in 2002.

SCI sought to compel all plaintiffs to arbitrate or to compel arbitration for Lopez and stay proceedings for the others.

Judge Gonzalez held a hearing last June and denied arbitration this Jan. 13.

SCI appealed to the 13th District on Jan. 30. On Feb. 3, SCI petitioned for temporary relief, expedited consideration and a writ of mandamus to stop the trial.

SCI obtained fast action, but not in its favor. The appeals judges shredded the arbitration clause in Lopez's contract.

"Lopez contends that the agreement to arbitrate is illusory because it lacks mutuality," they wrote in an unsigned opinion.

"We do not see a 'mutual' agreement to arbitrate," they wrote.

SCI retained its rights to sue Lopez or void the contract at its discretion, they wrote.

Even if they had enforced arbitration for Lopez, they would have denied it for the Garza and Rogers families.

They quoted a Texas Supreme Court opinion holding that "arbitration is a matter of consent, not coercion."

They quoted from the same opinion that "arbitration is not required merely because two claims arise from the same transaction."

The 13th District decision apparently allowed Gonzalez to start trial on Feb. 17, but SCI filed a mandamus petition at the Supreme Court and achieved a reprieve.

The justices set a Feb. 27 deadline for responses to SCI's petition.

Charles Murray and Lisa Powell represent SCI.

Richard Roth and Scott McLain represent all nine plaintiffs.

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