Cedar Crest Funeral Home, Inc. v. Lashley, 05-93-00003-CV

Decision Date29 November 1993
Docket NumberNo. 05-93-00003-CV,05-93-00003-CV
Citation889 S.W.2d 325
PartiesCEDAR CREST FUNERAL HOME, INC., et al., Appellants, v. Daniel LASHLEY, et al., Appellees.
CourtTexas Court of Appeals

Hubert A. Crouch, III, James M. Carlson, Crouch & Hallett, L.L.P., Roy L. Stacy, Michael C. Wright, Calhoun, Gump, Spillman & Stacy, Dallas, Ronald C. Lewis, Baker & Botts, L.L.P., Houston, Kenneth B. Tomlinson, Kenneth R. Stein, Matthews, Carlton & Stein, Ken Stone, Scott W. MacLaren, Gwinn & Roby, Barry H. Fanning, Fanning, Harper & Martinson, Stephen C. Scoettmer, Thompson & Knight, Calvin A. Barker, Jr., Barker, Block & Muscat, B. Prater Monning, III, Paul S. Leslie, Gardere & Wynne, Dallas, James P. Keenan, Buck, Rouner, Golden & Keenan, L.L.P., Houston, Richard Harrison, Henderson, Bryant & Wolfe, Sherman, Timothy M. Fults, Fults, Francis & Goodman, Dallas, Charles E. Webb, Fort Worth, Minor E. Pounds, Lancaster, Lynn Fielder, Fisk & Fielder, P.C., Rustin Polk, DeHay & Elliston, L.L.P., Kenneth R. Stein, Matthews, Carlton & Stein, L.L.P., Gary D. Elliston, DeHay & Elliston, L.L.P., Kenneth B. Tomlinson, Baker & Botts, Dallas, for appellants.

Dale B. Tillery, Tillery & Tillery, Dallas, David Stagner, Stagner & Stagner, Roger Sanders, Sanders & Mumm, P.C., Sherman, for appellees.

Before McGARRY, C.J., and BAKER and ROSENBERG, JJ.


McGARRY, Chief Justice.

This is an interlocutory appeal from an order certifying a class action under rule 42 of the Texas Rules of Civil Procedure. TEX.R.CIV.P. 42. Appellants complain that the trial court abused its discretion in certifying the plaintiff-class because it does not meet the requirements of rule 42. Appellant Christian Mortuary Service further complains that the trial court abused its discretion in certifying the class because the named plaintiffs do not have individual standing to sue it. We reverse the order.

The plaintiffs' suit alleges that a number of funeral homes arranged for dead bodies to be embalmed as part of the instructional program of Pierce Mortuary College 1 without the knowledge or consent of the decedents' families. They assert causes of action for deceptive trade practices, fraud, gross negligence, negligence, intentional infliction of emotional distress, unjust enrichment and breach of contract. They seek both monetary damages and injunctive relief on behalf of a class comprised of all the families involved.

When an action is brought as a class action, the trial court must conduct a hearing as soon as practicable to determine whether the suit may be maintained as a class action. TEX.R.CIV.P. 42(c)(1). At the hearing in this case, the parties stipulated that:

1. Dallas Institute [Pierce Mortuary College] records reflect the identity of some individuals embalmed with participation by the institute's clinical program;

2. students participated in varying degrees in embalmings done in connection with the clinical program;

3. each named plaintiff only dealt or communicated with the funeral home that handled that plaintiff's relative;

4. the specific representations of each funeral home may vary from case to case;

5. the terms of contracts between named plaintiffs and individual funeral homes may vary;

6. the cost of each funeral may vary;

7. contracts, if any, between unnamed class members and individual funeral homes may vary;

8. the cost of funerals paid by unnamed class members may vary;

9. no named plaintiff or proposed class member dealt or communicated directly with defendant Shaw or any mortuary service defendant or Mortuary College defendant, or with individual defendants doing business as a mortuary service or mortuary college; and

10. each named plaintiff and proposed class member may claim similar types of damages; however, the amount of damages, if any, may vary.

The trial court also heard testimony about Pierce's clinical instruction program, including the fact that the program uses approximately 1500 bodies per year for instructional purposes. Several of the named plaintiffs testified that the funeral home they used did not tell them that their deceased relative might be used for instructional purposes. However, several plaintiffs also testified that if their suits were to be brought individually, they would not be inconvenienced or harmed.

At the conclusion of the hearing, the trial court entered an order certifying a class of plaintiffs comprised of "the surviving spouse; children; the next of kin; other personal representatives; other heirs at law; or other persons who arranged or paid for the funeral services of any deceased person who was used for instructional embalming purposes by Pierce Mortuary Colleges, Inc., d/b/a Dallas Institute of Funeral Service, without the permission of the deceased or the personal representative of the deceased or the most immediate family member determined pursuant to the laws of descent and distribution of the State of Texas."

Our review of a certification order under rule 42 is limited to determining whether the trial court abused its discretion. Wiggins v. Enserch Exploration, Inc., 743 S.W.2d 332, 334 (Tex.App.--Dallas 1987, writ dism'd w.o.j.); RSR Corp. v. Hayes, 673 S.W.2d 928, 930 (Tex.App.--Dallas 1984, writ dism'd). A trial court does not abuse its discretion if it bases its decision on conflicting evidence. RSR Corp., 673 S.W.2d at 930. However, a trial court abuses its discretion when it does not properly apply the law to the undisputed facts. Wiggins, 743 S.W.2d at 334; RSR Corp., 673 S.W.2d at 930. The trial court also abuses its discretion when it acts arbitrarily or unreasonably, Angeles/Quinoco Sec. Corp. v. Collison, 841 S.W.2d 511, 513 (Tex.App.--Houston [14th Dist.] 1992, no writ), or when it certifies a class based upon factual assertions not supported by competent evidence. Mahoney v. Cupp, 638 S.W.2d 257, 261 (Tex.App.--Waco 1982, no writ). Rule 42 of the Texas Rules of Civil Procedure is patterned after corresponding rule 23 of the Federal Rules of Civil Procedure, and the decisions interpreting the federal rule are persuasive authority. RSR Corp., 673 S.W.2d at 931-32; Huddleston v. Western Nat'l Bank, 577 S.W.2d 778, 780 (Tex.Civ.App.--Amarillo 1979, writ ref'd n.r.e.).


In its first point of error, Christian Mortuary Service claims that the trial court abused its discretion in certifying the class because the named plaintiffs do not have standing to sue it. The other appellants have not raised the issue of standing as a point of error. However, standing is a component of subject matter jurisdiction. Either the parties or the court may raise the issue of standing for the first time on appeal. Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.1993). Consequently, on our own motion we consider whether the named plaintiffs have standing to sue. We conclude that they do.

Class and nonclass actions raise discrete problems of standing which the courts have generally failed to distinguish. See generally, Note, Class Standing and the Class Representative, 94 HARV.L.REV. 1637 (1981). In nonclass actions, standing consists of some interest peculiar to the person individually and not as a member of the general public. Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984). A person has standing to sue if: (1) he has sustained, or is immediately in danger of sustaining, some direct injury as a result of the wrongful act of which he complains; (2) he has a direct relationship between the alleged injury and the claim sought to be adjudicated; (3) he has a personal stake in the controversy; (4) the challenged action has caused the plaintiff some injury in fact, either economic, recreational, environmental, or otherwise; or (5) he is an appropriate party to assert the public's interest in the matter, as well as his own. Rodgers v. RAB Inv., Ltd., 816 S.W.2d 543, 546 (Tex.App.--Dallas 1991, no writ); Precision Sheet Metal Mfg. v. Yates, 794 S.W.2d 545, 551-52 (Tex.App.--Dallas 1990, writ denied).

In class actions the requirement that the named representative plaintiff have a personal stake in the form of a direct injury is less compelling on jurisdictional grounds. In such cases, the class itself is the real party in interest. If the unnamed members of the class satisfy the requirements of standing, then a real controversy exists between the class and the defendant, which should be sufficient to invoke the court's jurisdiction. See Franks v. Bowman Transp. Co., 424 U.S. 747, 755-56, 96 S.Ct. 1251, 1259-60, 47 L.Ed.2d 444 (1976) (class action is constitutionally moot only if no controversy exists between unnamed class members and defendant). In more traditional representative actions involving fiduciaries, trustees or "next friends," the stake of the person or entity represented determines standing, not the stake of the representative. See Brady v. Doe, 598 S.W.2d 338, 339 (Tex.Civ.App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.), cert. denied, 449 U.S. 1081, 101 S.Ct. 864, 66 L.Ed.2d 805 (1981); see also McGinnis v. McGinnis, 267 S.W.2d 432, 435 (Tex.Civ.App.--San Antonio 1954, no writ). Logically, jurisdictional requirements imposed upon class representatives should be no more onerous.

The notion that a class representative must have individual standing to sue more appropriately resides in rule 42's requirement that "one or more members of a class may sue ... as representative parties ... only if ... the claims ... of the representative parties are typical." TEX.R.CIV.P. 42(a) (emphasis added). Thus, in federal cases, Professor Moore speaks of "Rule 23 standing" as distinct from constitutional standing. 3B MOORE'S FEDERAL PRACTICE p 23.04 (2d. ed. 1993).

Nevertheless, the courts continue to confuse the concepts of jurisdictional standing and the "standing" of a party to represent a class under rule 42, by requiring the representative plaintiff to have individual standing. Thus, it is by now well...

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