Roy v. Howard-Glendale Funeral Home

• Decision Date: 03 October 1991
• Docket Number: No. 01-90-00321-CV,HOWARD-GLENDALE,01-90-00321-CV
• Citation: 820 S.W.2d 844
• Parties: Lavon ROY and Robert E. Roy, Appellants, v.FUNERAL HOME, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 844

820 S.W.2d 844

Lavon ROY and Robert E. Roy, Appellants, v. HOWARD-GLENDALE FUNERAL HOME, Appellee.

No. 01-90-00321-CV.

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

Oct. 3, 1991.

Rehearing Denied Nov. 14, 1991.

William J. Eggleston, Houston, for appellants.

Jack McKinley, Kathleen Walsh Beirne, Houston, Michael Miller, Galveston, for appellee.

Before DUGGAN, MIRABAL and O'CONNOR, JJ.

OPINION

MIRABAL, Justice.

The Court's opinion of September 26, 1991, is withdrawn, and the following is substituted therefor.

Lavon Roy and her husband, Robert E. Roy ("the Roys"), appeal a take-nothing judgment in a suit for damages arising out of the purchase of a burial vault and funeral services from appellee, Howard-Glendale Funeral Home ("Howard-Glendale").

Bertha Carson died in 1971. Her only child, Lavon Roy, contacted Howard-Glendale and made arrangements for the funeral and burial services. Lavon and her husband, Robert Roy, purchased a white, pearlized, "permaseal" casket, plus a burial vault, as her mother's final resting place. Lavon made it known to the Howard-Glendale personnel that she wanted a waterproof casket and vault.

The burial was conducted without incident. In 1987, however, a problem developed involving the cemetery where Lavon's mother and, later, her father were buried. As a result, Lavon wanted her parents' remains moved to another cemetery. She contacted Howard-Glendale to assist her in the disinterment and reburial. The disinterment resulted in the discovery of the failure of the vault containing Lavon's mother's remains. When the cemetery crew attempted to remove the vault from the ground, the lid came off, revealing a vault full of water. The casket interior was checked and appeared to be dry, even though the entire exterior of the casket was stained from the water. Mrs. Roy's mother's vault was replaced with a new one; the vault manufacturing company provided the replacement vault to the Roys at no charge. The remains of Mrs. Roy's parents were reburied at another cemetery.

The Roys sued Howard-Glendale and its parent corporation, Service Corporation International, (SCI) alleging breach of contract, breach of the duty of good faith and fair dealing, and breach of warranty, as well as negligence, fraud, misrepresentation, and violations of the Texas Deceptive Trade Practices--Consumer Protection Act. The suit sought recovery of $3.5 million in actual damages, plus at least $20 million in exemplary damages, and attorney's fees.

The trial judge granted a directed verdict for SCI, and a partial directed verdict for Howard-Glendale on the claims of breach of fiduciary duty and breach of the duty of good faith and fair dealing. Jury questions were submitted on the remainder of the case against Howard-Glendale. Following are the jury's unanimous answers to the relevant questions:

1. In 1971, did Howard-Glendale Funeral Home make any express warranty about the outside container for Bertha Carson's grave?

Answer: NO

4. In providing services for Bertha Carson's funeral, was Howard-Glendale Funeral Home negligent?

Answer: NO

6. In 1971, did Howard-Glendale Funeral Home commit fraud on Lavon Roy?

Answer: NO

8. In 1987, did Howard-Glendale Funeral Home make any misrepresentation that was a producing cause of damage to Lavon Roy?

Answer: NO

Based on these jury findings, the trial court signed a take-nothing judgment on December 19, 1989.

In point of error one, the Roys assert the trial court erred in refusing to submit the Roys' requested jury questions regarding breach of contract. The instructions and questions the Roys requested were the following:

Question Number 37

You are instructed that a breach of contract is an unjustified failure of one of the parties to the agreement to perform all or any part of what is promised in the agreement. You are further instructed that you must find that the breach was material. A breach of contract is material if the breach is of sufficient significance that a reasonable person would attach importance to it in considering whether a party has substantially performed its obligation under the contract.

Did Howard-Glendale Funeral Home commit a material breach of the contract which caused damages to Lavon Roy and/or Robert E. Roy?

ANSWER: YES ___.

NO ___.

Question Number 38

If you answered "Yes" to Question Number 37, answer the following and if your answer was "No" to Question Number 37, do not answer the following.

What sum of money, if paid now in cash, would fairly and reasonably compensate Lavon Roy and/or Robert E. Roy for their damages, if any, caused by a breach of the contract?

Answer in dollars and cents, if any, for each of the parties listed below.

(a) Lavon Roy: $_____.

(b) Robert E. Roy: $_____.

A trial court has broad discretion in submitting jury questions. Mobil Chemical v. Bell, 517 S.W.2d 245, 256 (Tex.1974). This discretion is subject only to the requirement that disputed issues must be fairly submitted to the jury for determination. Baker Marine Corp. v. Moseley, 645 S.W.2d 486, 489 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.); TEX.R.CIV.P. 277. The trial court's refusal to submit a requested issue is error if there is any probative evidence to support an affirmative finding on the issue. Brown v. Goldstein, 685 S.W.2d 640, 641 (Tex.1985); Southwestern Bell Tel. Co. v. Thomas, 554 S.W.2d 672, 674 (Tex.1977); 4M Linen & Uniform v. W.P. Ballard & Co., 793 S.W.2d 320, 326 (Tex.App.--Houston [1st Dist.] 1990, writ denied). Even if the evidence is insufficient to sustain an affirmative finding, the trial court is obligated to submit the question if the evidence amounts to more than a scintilla. Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965); Essex Crane Rental Corp. v. Striland Constr. Co., 753 S.W.2d 751, 755 (Tex.App.--Dallas 1988, writ denied).

To determine if a trial court has abused its discretion in refusing to submit requested questions, the reviewing court looks at the evidence as if the trial court had instructed a verdict. Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex.App.--El Paso 1984, no writ). The evidence is considered in favor of the party whose questions were refused, and if there is conflicting probative evidence in the record, the questions are for determination by the jury. Id.

Howard-Glendale contends the question submitted by the trial court on express warranty encompassed the Roys' contract question, and submission of the contract question separately would have been superfluous or confusing to the jury.

In their last-filed amended petition, the Roys described the five causes of action they were asserting: (1) misrepresentation; (2) breach of warranty and breach of contract; (3) breach of fiduciary duty and negligence; (4) breach of the duty of good faith and fair dealing; and (5) violation of the deceptive trade practices act. The Roys set out their cause of action for "breach of warranty and breach of contract" as follows:

Breach of Warranty and

Breach of Contract

18. Plaintiffs hereby incorporate paragraphs 2 through 14 above.

19. In addition to the foregoing, Plaintiffs allege that Defendants expressly warranted orally, in writing, and impliedly that the funeral services for Bertha Carson which Defendants would provide would include a top of the line, waterproof Doric vault with a fiberglass lining, that the vault would be fit for the purposes intended and would remain so for fifty (50) years. Pursuant thereto, the attached written contract was executed.

20. Plaintiffs would show that these warranties were breached in that the container and the services actually provided were not as warranted, but were of substantially lesser quality, in that the outside container was not a top of the line waterproof Doric vault, contained no fiberglass whatsoever and was full of water approximately sixteen (16) years after burial.

21. Despite Plaintiffs' full performance, Defendants violated the above referenced obligations and promises under the contract, thereby breaching said contract and proximately causing the damages hereinafter alleged.

Under its pleadings, the Roys clearly alleged that Howard-Glendale breached its contract because it breached its warranties that:

1. The vault would be a top of the line, waterproof Doric vault;

2. the vault would contain a fiberglass lining; and

3. the vault would remain fit for the purposes intended for 50 years.

The written contract between the Roys and Howard-Glendale, introduced into evidence, describes the agreed on vault as: "Outside enclosure, Inv. # 307." Its cost was $220. The burial card check list identifies the ordered outside container with the words "C vault-Doric--Gold with Eastern Star Emblem." There is no dispute that the letter "C" meant "concrete" to everyone involved. There was a major dispute, however, about the meaning of "Doric." There are "Doric" companies and "Doric" products. The record shows that "a Doric" could be any container, vault or box manufactured by the local Doric company. It could also mean the unique "waterproof," fiberglass-lined, tongue-in-groove vault manufactured by a local franchisee of the National Doric company, the vault that the Roys insist they paid for ("the Doric-Doric"). There was also evidence indicating that "outside enclosure, Inv. # 307" meant the Sentry vault manufactured by the Doric Company. The Sentry vault was sprayed with asphalt on the inside and had a tongue-in-groove lid; it was the next-best quality vault after the "Doric-Doric," and was considered a "middle range" vault.

The original vault, removed from the ground at the time of the disinterment, was destroyed. There was some question raised about whether the chips and remnants the Roys offered as exhibits during trial were actually from the original container.

It is undisputed a vault was contracted for, paid for, and used as an outer enclosure for Mrs. Roy's mother's casket. There is substantial conflict in the...