In a 2-1 decision, the San Antonio Court of Appeals has upheld a $500,000 mental anguish damage award in a case involving a cemetery’s alleged mishandling of the cremains of a family member.
MP II, Inc. v. Kollars (No. 04-25-00453-CV; September 30, 2026) arose from a lawsuit against a San Antonio cemetery (Mission Park) that allegedly opened the wrong grave for the inurnment of father’s ashes. Father wished to be placed in the same grave as his previously deceased wife. Plaintiffs arranged for an inurnment ceremony at the gravesite, but when they arrived, they discovered that the cemetery had dug up a neighboring grave and placed chairs and a tent over mother’s. About an hour later, a Mission Park crew appeared with a backhoe and started the job over the family’s objections. A former Mission Park funeral director testified that the cemetery’s gravedigger always used a backhoe, even when unearthing urns, because “he’s unbelievably lazy.” Sure enough, the gravedigger broke the urn, scattering mother’s ashes everywhere.
The director showed up an hour later with Solo cups, which the family used to retrieve the ashes as best they could. To make matters worse, it started to rain. After they collected as much as they could (together with a good deal of dirt/mud), they put it in a new urn and replaced mother’s ashes next to father’s. They also took a top layer of soil where the ashes fell and put it as close to the urn as possible. The unhappy family sued, alleging common-law negligence and DTPA violations (which Plaintiffs later nonsuited). They went to trial on the negligence claim, seeking mental anguish damages. Defendant joined the City of San Antonio as an RPT on the basis that the city’s records misidentified the precise location of mother’s urn and that but-for the city’s negligence, the cemetery wouldn’t have made the mistake.
The case went to the jury on the negligence claim against the cemetery, the trial court having sustained the City’s objection to its RTP designation. The jury found the cemetery negligent and awarded damages for past and future mental anguish. The trial court signed the judgment. At this point, things got wonky. The date stamped on the written judgment was February 19, 2025. The cemetery argued that the trial court actually signed the judgment on April 14, 2025. The trial court corrected the final judgment in an order signed on June 23, 2025. Based on that correction, the trial court found that Defendant’s motion for new trial and motion to modify the judgment, filed on May 13, 2025, were timely filed. Those motions were overruled by operation of law. Defendant filed a notice of appeal on June 11, 2025. Plaintiffs filed a cross-appeal.
In an opinion by Justice Valenzuela, the court rendered judgment for Defendant as to the claims of two of the siblings, but remanded that of a third sibling for a new trial. Plaintiffs argued that Defendant’s May motions were untimely, thus rendering their notice of appeal untimely as well. The court disagreed. First, a trial court order correcting the date of signing constituted a clerical error that may be corrected by a judgment nunc pro tunc, as it was here. Second, the trial court retained authority to make a factual finding that the date stamp on the judgment was incorrect. It followed from the trial court’s determination of the correct date that Defendant’s May motions were timely filed. And so was its notice of appeal.
Turning to Defendant’s appeal, the court first addressed whether Defendant owed Plaintiffs any legal duty regarding mother’s remains, which were interred long before Mission Park leased the cemetery from the City. Defendant further argued that because it had no special relationship with Plaintiffs, it couldn’t be liable for mental anguish damages. The court wouldn’t go this far. Citing SCOTX authority, the court determined that even in the absence of a contractual relationship between the parties, Defendant could be liable for mishandling mother’s remains because it knew that it had to find them first. By this reasoning, the court overcame SCOTX’s rule that the duty only applied to “a person disposing of a decedent’s remains …” Additionally, the court observed that the cemetery had control of the grave location records and the gravedigger who caused the harm. The court held that Defendant had the required special relationship and the concomitant legal duty to handle mother’s remains in a non-negligent fashion.
Defendant next challenged the sufficiency of the evidence. It argued that since it relied on the City’s records, it exercised ordinary care, and that was that. But, as the court observed, Defendant opened the wrong grave to begin with, set up chairs and a tent over the correct grave, and fouled up its attempt to set things straight by way of the blundering gravedigger (who didn’t check any maps before cranking up his backhoe when the industry standard was to use a shovel). The court ruled that a reasonable jury could conclude that the cemetery breached the duty of ordinary care under these circumstances.
The court reached the same conclusion as to causation. The cemetery knew where mother’s urn was, but not only opened the wrong grave initially, but used a backhoe to dig up a grave containing cremated remains with no urn vault to protect them. Plaintiffs’ expert testified that using a shovel instead of a backhoe would likely have prevented the resulting mess. The court thus found more than a scintilla of evidence of both cause-in-fact and foreseeability.
Now for the mental anguish damages. SCOTX has previously held that a jury may not “infer the existence of compensable mental anguish from ‘particularly disturbing and upsetting’ events like ‘the mishandling of a corpse.’” And as we know, there has to direct evidence to justify the amount awarded, not just a number the jury pulls out of thin air, and a rational connection between the amount sought and the evidence.
The court considered each sibling’s claim individually. The first sibling testified that when she takes a shower she thinks of the rain falling on her when collecting mother’s ashes. This produced “difficulties trying to take a shower every day.” Her shower problem, she testified, led to grief counseling, which seems not to have helped much. The court accepted this evidence as more than a scintilla, and ruled that the jury “could rationally infer that her mental anguish would likely continue into the future.” As to the amount, the jury awarded $500,000, $300,000 for past mental anguish and the rest for the future. Plaintiffs calculated this by multiplying $245 (20% of the sibling’s share of Defendant’s fee) by 1,221 days between the events at the grave and the time of trial. They likewise based the future damages on $164 per day. The court accepted this methodology as well and found that the sibling’s damages were reasonable and rationally connected to the evidence.
The second sibling participated personally in collecting the ashes, apparently the only sibling to do that while the others presumably watched. This made her anxious and stressed (as well it should), and she wondered whether she should wash mother’s ashes off her hands. She testified that after the occurrence, she moved away from her siblings and frequently attended religious services (including a pilgrimage to India). Unlike the prior sibling, this one didn’t claim any disruptions in her employment or daily life, didn’t seek professional care, and didn’t have depression or anxiety. The court determined that although this sibling suffered a “uniquely painful and emotional experience,” it didn’t rise to the level of “a substantial disruption of [her] daily routine or a high degree of mental pain and distress.” This sibling also failed to present evidence of the nature, duration, and severity of the anguish. The court reversed the jury’s finding that the sibling suffered legally compensable mental anguish.
The third sibling first saw the cremains and parts of mother’s urn falling from the bucket of the backhoe. He testified that this sight reopened his grief over the death of his mother, who suffered from cancer and spent the last weeks of her life in a coma (she was ultimately taken off life support). He didn’t seek counseling (although his employer offered it), though he testified that it has taken a lot of time to return to the gravesite. He also didn’t miss any work and worked through his trauma with some degree of resilience. This wasn’t enough to show nature, duration, or severity or a substantial disruption of his daily routine. The evidence was legally insufficient to support the jury’s finding, so the court reversed and rendered judgment for Defendant on this claim.
Finally, the court took up the RTP issue. Plaintiffs argued that the City’s conduct “merely furnished a condition that made the injury possible and therefore cannot have been a substantial factor in causing the harm.” Defendant, however, presented more than a scintilla of evidence that it relied on the City’s records to locate mother’s urn and decide where to dig. “Based on that evidence,” the court stated, “reasonable people could disagree about whether the City’s records were a but-for-cause and/or a substantial factor in the shattering of [mother’s] urn.” The jury could also have differed over whether the occurrence was a foreseeable consequence of the City’s botched records. Based on this record, the court concluded that a “reasonable jury could have found that the City was at least partially responsible for this incident.” The trial court abused its discretion by refusing to submit the City as an RTP. The court thus remanded the first sibling’s claim for new trial.
Justice Spears dissented. He would have ruled that Defendant did not have a special relationship with Plaintiffs “based on its discovery of an urn that had allegedly been improperly buried through the work of a third party before [Defendant’s] involvement.” Consequently, Defendant didn’t owe a duty. Justice Spears disagreed with the majority’s reading of SCOTX authority to extend Defendant’s duty “to prior work performed by a party unrelated to and under no supervision or control of [Defendant].” Since Defendant never directly assumed responsibility for mother’s remains and “the next-of-kin’s recognized quasi-property right to control disposition of those remains.” The majority’s reasoning, however, “effectively creates a new and expansive duty under Texas law that would require a funeral home or cemetery operator to assume responsibility not only for its own work, but also for the accuracy of burial workers and work performed by prior owners and operators.” In other words, he argued, the ruling will make subsequent operators responsible for the mistakes of their predecessors. He would hold that the evidence was legally insufficient to establish a special relationship.
This decision is ripe for a PFR. It deals directly with an interpretation of SCOTX authority and an intermediate appellate court’s difference of opinion over that interpretation. The majority’s ruling on the first sibling’s noneconomic damages should also be reviewed. Even if Plaintiffs had produced sufficient evidence of a compensable injury (which is questionable), Plaintiffs’ formula for calculating damages appears to us as completely arbitrary.
