Dueitt v. Dueitt

• Decision Date: 03 January 1991
• Docket Number: No. 01-90-00568-CV,01-90-00568-CV
• Citation: 802 S.W.2d 859
• Parties: Jerry O. DUEITT, Co-Independent Executor of the Estate of John P. Dueitt, Deceased, Appellant, v. Ina Mae (June) DUEITT and Earthman's, Inc., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 859

802 S.W.2d 859

Jerry O. DUEITT, Co-Independent Executor of the Estate of John P. Dueitt, Deceased, Appellant, v. Ina Mae (June) DUEITT and Earthman's, Inc., Appellees.

No. 01-90-00568-CV.

Court of Appeals of Texas Houston (1st Dist.).

Jan. 3, 1991.

Phillip W. Mintz, Houston, for appellant.

Thomas W. Long, Fleming T. de Graffenried, III, Houston, for appellees.

Before EVANS, C.J., and HUGHES and SCHNEIDER, JJ.

OPINION

EVANS, Chief Justice.

This appeal concerns the right of a surviving spouse to control the disposition of the body of the deceased spouse after interment.

The decedent, John P. Dueitt, died on June 6, 1988, and his widow, appellee, Ina Mae (June) Dueitt, caused his body to be buried in Rest Haven Memorial Park, a cemetery operated by appellee, Earthman's, Inc. Because Earthman's regulations did not permit Mrs. Dueitt to place a memorial over her husband's grave site, she, acting upon Earthman's suggestion, caused her husband's body to be moved and reinterred in another section of the same cemetery. Thereafter, appellant, as co-independent executor of the decedent's estate, sued both appellees, Mrs. Dueitt and Earthman's, to recover damages for wrongful disinterment and for an order requiring them to return Mr. Dueitt's remains to their original resting place. Earthman's moved for summary judgment on the basis that Mrs. Dueitt, as the surviving spouse, had statutory authority to control the disposition of Mr. Dueitt's body. Mrs. Dueitt moved for summary judgment on the same basis, and also asserting her status as co-independent executrix under Mr. Dueitt's will. Appellant then filed a motion for summary judgment, asking the trial court to construe the statute in question and to judicially declare that appellees had no right to remove the decedent's interred remains. The trial court denied appellant's motion and granted appellees' motions for summary judgment.

We are faced with the threshold question of whether the summary judgment record reflects a fundamental error that could and should be noticed by this Court. The issue is whether the trial court proceeded to judgment against a plaintiff that is not, under the law, a legal entity.

The plaintiff's petition is brought in the name of "the Estate of John P. Dueitt, Deceased," and is signed only by the attorney for the Estate. There is attached to the petition, however, an affidavit executed by Jerry O. Dueitt, co-executor of the Estate of John P. Dueitt, deceased, which recites, among other things, that he is "Co-Executor of the Estate of John P. Dueitt, Deceased, Plaintiff, in the above-entitled and numbered cause in which this Affidavit is being filed," and that he has "personal knowledge of the facts stated therein, and they are all true and correct." The plaintiff's motion for declaratory judgment and the plaintiff's response to the defendants' motions for summary judgment also purport to be filed by and on behalf of the decedent's estate. Neither pleading affirmatively recites that the personal representative is the real party plaintiff. The response, however, does bear an affidavit similar to that attached to the petition, which recites that Jerry O. Dueitt is the co-independent executor of the Estate of John P. Dueitt, deceased, and that the allegations contained in the response are true and correct.

An estate of a deceased person is not a legal entity and cannot sue or be sued as such. Henson v. Estate of Bruce L. Crow, 734 S.W.2d 648, 649 (Tex.1987); Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex.1975); Camellia Diced Cream Company v. Chance, 339 S.W.2d 558, 560-61 (Tex.Civ.App.--Houston 1960, no writ). The failure to join a jurisdictionally indispensable party constitutes fundamental error, which an appellate court is bound to notice if the error is apparent from the face of the record. Love v. Woerndell, 737 S.W.2d 50, 52 (Tex.App.--San Antonio, 1987, writ denied); Minga v. Perales, 603 S.W.2d 240, 241 (Tex.Civ.App.--Corpus Christi 1980, no writ). A court's jurisdiction over an indispensable party is as essential to the court's right and power to proceed to judgment as is jurisdiction of the subject matter. Petroleum Anchor Equip., Inc. v. Tyra, 406 S.W.2d 891, 892 (Tex.1966); Love, 737 S.W.2d at 52. Thus, a suit on behalf of a decedent's estate is a nullity, unless the estate's personal representative appears in or participates in the suit. Price, 522 S.W.2d at 691.

We conclude that Jerry O. Dueitt, co-independent executor of the estate of John P. Dueitt, deceased, did actively appear in his representative capacity on behalf of the party plaintiff in the case. By his action in verifying the allegations of the plaintiff's petition and plaintiff's response to the defendant's motion for summary judgment, the personal representative indicated his adoption of the plaintiff's position in the suit. Although this is not technically a misnomer case, the purpose of the suit and the nature of the claim asserted by the plaintiff are clearly reflected by the pleadings, which the personal representative effectively adopted. See Price, 522 S.W.2d at 692. Neither of the defendants in the suit raised the issue of the plaintiff's capacity to sue, either in the trial court or in this Court. Thus, although the issue is one of jurisdiction, neither defendant is in a position to challenge the trial court's judgment on the ground that the personal representative was not named a party plaintiff in the suit. See King v. King, 242 S.W.2d 925, 929 (Tex.Civ.App.--Amarillo 1951), rev'd on other grounds, 150 Tex. 662, 244 S.W.2d 660 (1951).

After this Court raised the issue on oral submission, appellant filed a motion for leave to substitute Jerry O. Dueitt, co-independent executor of the estate of John P. Dueitt, deceased as plaintiff/appellant in the case. Neither of the appellees have filed a contest to this motion. We conclude, because of the personal representative's active participation on behalf of the plaintiff in the trial court, that the trial court's judgment is not a nullity, and that this Court has jurisdiction over the appeal. We grant the appellant's motion and direct the judgment be reformed to properly reflect the designation of Jerry O. Dueitt, co-independent executor of the estate of John P. Dueitt, deceased, as the real party plaintiff in the suit.

We proceed to a consideration of the plaintiff's first point of error, in which he contends the trial court erred in granting a summary judgment, because it is contrary to established law that an interred body may not be removed without first obtaining the permission of a court of competent jurisdiction.

The plaintiff's petition alleged that the two defendants, the cemetery association and the surviving spouse, acting without court approval, disintered the decedent's remains, and reinterred such remains at another location in the cemetery, outside the decedent's family burial plot. The plaintiff's petition alleged the defendants' actions violated the decedent's intent and the "Estate's" rights, and asserted a right to both damages and injunctive relief. Both defendants filed motions for summary judgment asserting, in essence, that the right to control the disposition of the body of a deceased person after interment was vested in and devolved upon the surviving spouse of the decedent. The motion filed by Mrs. Dueitt suggested that her husband's remains were moved so that a suitable memorial could be placed over his burial plot. The plaintiff filed a verified response to the defendants' motions, asserting the decedent's will was silent regarding the issue of the removal of decedent's body, and because the will gave no express authority for such removal, the defendants were not authorized to remove the body without obtaining a court order.

In their briefs, and on oral submission, both sides agree that article 912a-1 of the Texas Revised Civil Statutes Annotated, expresses the legislature's intent with respect to the disposition of the body of a deceased person.

Article 912a-20, ¹ entitled, "Duty of Interring and Right to Control Disposition of Remains," provides in pertinent part:

The right to control the disposition of the body of a deceased person, unless other directions shall have been made therefor by the deceased, ... shall devolve upon, his or her surviving wife or husband....

Article 912a-22, ² entitled "Removals," provides in pertinent part:

The remains of a deceased person interred in a plot in a cemetery may be removed therefrom with the consent of the cemetery association and the written consent of the surviving wife or husband, or if there is no surviving husband or wife, then of the children; or if there is no surviving husband or wife nor children, then of the parents of the deceased; or should there be no surviving husband or wife nor children nor parent, then of the brothers and/or sisters of the deceased. If the consent of any such person or of the association cannot be obtained, permission by the county court of the county where the cemetery is situated shall be sufficient.... This provision shall not apply to or prohibit the removal of any remains from one plot to another in the same cemetery or the removal of remains by the cemetery association from a plot for which the purchase price is past due and unpaid, to some other suitable place. Neither shall this provision apply to the disinterment of remains upon order of Court or coroner.

Under the express provisions of these statutes, Mrs. Dueitt, as the surviving spouse of her deceased husband, and the defendant, Earthman's, Inc., acting with her written consent, had the paramount authority, (absent some contrary direction in the decedent's will) to remove the remains of the decedent from one plot in the cemetery and to reinter the remains in another cemetery plot. The plaintiff contends, however, that, notwithstanding these statutes, the defendants were required by law to obtain court...