Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00453-CV
MP II, INC. d/b/a Mission Park Funeral Chapels and Cemeteries,
Appellant/Cross-Appellee
v.
Deidre KOLLARS, Peter Moreno, and Yvonne Rigal,
Appellees/Cross-Appellants
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2021-CI-25849
Honorable Antonia Arteaga, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Concurring and Dissenting Opinion by: Adrian A. Spears II, Justice
Sitting: Lori I. Valenzuela, Justice
Adrian A. Spears II, Justice
H. Todd McCray, Justice
Delivered and Filed: September 30, 2026
REVERSED AND REMANDED IN PART; REVERSED AND RENDERED IN PART
In five issues, appellant/cross-appellee MPII, Inc., d/b/a Mission Park Funeral Chapels and
Cemeteries, challenges a final judgment after a jury verdict in favor of appellees/cross-appellants
Deidre Kollars, Peter Moreno, and Yvonne Rigal (collectively, “the Siblings”). In their crossappeal, the Siblings contend that Mission Park did not timely file its notice of appeal.
04-25-00453-CV
We conclude that Mission Park’s notice of appeal was timely filed. We reverse the trial
court’s judgment, remand for a new trial on Yvonne’s claims, and render judgment for Mission
Park on Deidre’s and Peter’s claims.
FACTUAL BACKGROUND
The Siblings are the adult children of Diana and Pedro Moreno. After Diana died in 2005,
she was cremated. In 2009, Pedro agreed to bury, or “inurn,” Diana’s urn in a grave in San Jose
Burial Park. At that time, the City of San Antonio owned and operated San Jose and maintained
records of burials in that cemetery. Mission Park did not have any role in Diana’s cremation,
funeral, or inurnment.
In 2011, the City leased San Jose to Mission Park and authorized it to operate the cemetery
as the City’s tenant. The lease provided that Mission Park would maintain the City’s records of
burials at San Jose and that it would “be responsible for assisting citizens with inquiries regarding
the location of existing graves[.]”
Pedro died in 2021, and like his wife, he was cremated. Because Pedro wanted to be “laid
in the grave with [Diana],” the Siblings arranged to inurn him at San Jose. Mission Park maintains
that it reviewed the City’s records of San Jose burials and that those records showed Diana’s urn
was in the top one-third of the grave, near the headstone. Mission Park also maintains that it relied
on those records in deciding where to place Pedro’s urn. Yvonne and Mission Park signed a
contract for Pedro’s inurnment, and Yvonne signed a document authorizing Mission Park to inurn
Pedro in the middle of the grave.
When the Siblings and other family members arrived at San Jose for Pedro’s inurnment,
they discovered that Mission Park’s employees had placed chairs and a tent on top of Diana’s
grave and opened the grave next to hers. The Siblings notified a Mission Park employee, Liz
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Sanchez, that Mission Park had opened the wrong grave. Sanchez initially tried to convince them
to “reschedule the burial of [Pedro]” and let her hold Pedro’s urn overnight because Mission Park’s
“crew was out, busy for the rest of the day, and they wouldn’t have time to come back and do it
immediately, to re-dig up the correct plot.” But “at that point, [the Siblings] didn’t trust to leave
[Pedro] with anyone else” because they did not “know what’s going to happen after the fact when
the wrong grave was opened already.” The Siblings chose to wait for the crew to return and dig
the correct grave so they could inurn Pedro that day.
Mission Park’s crew, which arrived after “about an hour,” brought a backhoe to open the
grave. Peter “remember[ed] questioning if they were going to use the backhoe to dig” because
“they know Mom’s in there. Why are they using a backhoe? Like, they’re not even checking.”
Peter testified that he did not see the gravedigger, Andy Campa, do anything to determine where
Diana’s urn was before he began digging: “He just squared the backhoe up and started setting up,
putting the legs down.”
Campa testified that he always uses a backhoe to open graves, including graves for urns.
A former Mission Park funeral director, Jeremy Cameron, testified that Campa is the only person
who digs graves for Mission Park, and that he always uses a backhoe because “he’s unbelievably
lazy[.]” Cameron further testified that a grave for an urn “is very small. It should have not been
more than 20-by-20, 2 feet deep, and that’s done with a shovel industry-wide.”
After Campa began digging, Peter watched the backhoe’s “claws coming up off the
ground” and then saw ashes “disperse and fall.” When Peter shouted for Campa to stop, Yvonne
and Deidre turned to see what was happening. Deidre saw “[t]he cremains scatter,” and Yvonne
“saw the bucket of the backhoe lifting the plastic bag [holding cremains inside] the urn.” The
Siblings then saw “broken, shattered remains of the urn and the ashes thrown everywhere in the
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dirt.” Neither Campa nor Sanchez, who was also present, said anything to the Siblings after it
became clear what had happened.
Cameron, who arrived approximately an hour later, helped the family use Solo cups to
collect the scattered cremains “and sift remains from the dirt as best we could.” Cameron testified
that during this process, he told the family “that this is a really difficult thing. There’s no way,
really, to get human remains from dirt and soil. We’re just going to do the best we can with the
visible differences. Obviously, the grass and dirt are brown and green; the human remains are
concrete gray.” Cameron testified that “[t]here is no way” to confirm that they had collected all of
the scattered cremains. It eventually began to rain, and the family “kept on during the rain until
[they] felt enough had been picked up, enough had been collected.”
Cameron and the family “placed as much as [they] could inside of a new urn” before they
placed the new urn inside a vault alongside Pedro’s urn. They then took “the very top layer of the
piles where the remains were scattered” and placed that layer “nearest to the urn vault so that
[Diana’s] remains are as closely intact and in one spot as possible and not just scattered.” Yvonne
testified, “Anything we collected, anything loose, other particles, dirt, broken urn, everything was
kind of placed into a new vault. Nothing was really complete or whole.” The Siblings and other
family members then stayed for the now-joint inurnment of Pedro and Diana. However, Yvonne
testified:
[W]e still don’t know if [Diana is] whole, if she’s one entity still. We don’t know
if she’s complete, and it’s hard to grieve her not knowing. And that prevented the
process of us trying to grieve [Pedro] as well, as we’re trying to grieve two people
at once all over again when we already had some closure on [Diana’s] passing in
2005. So all those memories just resurfaced.
All three Siblings testified that the incident at the grave had re-opened wounds from their mother’s
death and made it difficult to properly grieve their father.
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PROCEDURAL BACKGROUND
The Siblings sued Mission Park, alleging common-law negligence and violations of the
Texas Deceptive Trade Practices Act. The Siblings eventually nonsuited their DTPA claims and
proceeded to trial on their negligence claims, for which they sought only mental anguish damages.
Before trial, Mission Park sought and obtained leave to designate the City as a responsible
third party (“RTP”). In its motion to designate the City as an RTP, Mission Park argued, inter alia,
that the City’s records “reflect that [Diana] was buried adjacent to the headstone and not in the
middle of the grave” and that but-for the City’s negligence in noting the location of Diana’s urn,
“the event giving rise to this lawsuit would not have occurred.”
The parties tried the Siblings’ claims to a Bexar County jury in January of 2025. During
the trial, the jury saw pictures of the backhoe, the open grave and broken urn, and Cameron and
the family collecting the scattered cremains.
At trial, Mission Park suggested that the broken urn may not have been Diana’s at all, but
may have instead been a different urn placed by unknown individuals at an unknown time. Under
questioning from the Siblings, Cameron testified that it is “widely accepted” that some graves in
San Jose have unknown cremains buried in them, explaining: “San Jose Burial Park is in a vastly
underserved area of San Antonio. It is very expensive to pay for the opening and closing of the
grave, and it’s also very easy to show up at 8:00 in the evening with a shovel and bury your loved
one for free.”
During the charge conference, the Siblings objected to the City’s submission to the jury as
an RTP. The trial court sustained the objection, and the court’s charge only asked the jury to
determine whether Mission Park was negligent.
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After considering the evidence, the jury found in favor of the Siblings and awarded them
damages for past and future mental anguish. Mission Park filed a motion for judgment
notwithstanding the verdict, but the trial court signed a judgment consistent with the jury’s verdict.
The date stamped on the written judgment is February 19, 2025. Mission Park argued
below that the date was incorrect because the trial court actually rendered and signed the judgment
on April 14, 2025. The trial court agreed, and signed a June 23, 2025 Order Correcting Final
Judgment Nunc Pro Tunc that found: (1) the court did not sign or otherwise render a judgment on
February 19, 2025; (2) “the date stamped onto the Final Judgment signed in this proceeding is
incorrect”; and (3) “the date the Court actually rendered and signed the Final Judgment is April
14, 2025.” Because the trial court found that it did not render judgment until April 14, 2025, it also
found that Mission Park’s motion for new trial and motion to modify the judgment, both of which
it filed on May 13, 2025, were timely filed.
Mission Park’s motion for new trial and motion to modify the judgment were overruled by
operation of law. Mission Park filed a notice of appeal on July 11, 2025, and the Siblings filed a
notice of cross-appeal.
ANALYSIS
The Siblings’ Cross-Appeal
In their cross-appeal, the Siblings argue that Mission Park’s May 13, 2025 plenary-powerextending motions and July 11, 2025 notice of appeal were untimely. Because “[a] timely notice
of appeal is necessary to invoke this court’s jurisdiction,” we will address this issue first. See, e.g.,
Biyoudi v. Zitha, No. 04-24-00129-CV, 2024 WL 1748055, at *1 (Tex. App.—San Antonio Apr.
24, 2024, no pet.) (per curiam) (mem. op.).
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A. Applicable Law and Standard of Review
A trial court has authority to sign a judgment nunc pro tunc to correct a clerical error made
in entering in a judgment, even after its plenary power expires. See Escobar v. Escobar, 711
S.W.2d 230, 231 (Tex. 1986). “This power of the trial court is not by reason of its continued
jurisdiction over the subject matter, but by virtue of its continuing power over its records.”
Williams v. Pitts, 251 S.W.2d 148, 149 (Tex. 1952). “A clerical error is a discrepancy between the
entry of a judgment in the record and the judgment that was actually rendered.” In re Marriage of
Bowe & Perry, Nos. 14-16-00551-CV & 14-16-00557-CV, 2017 WL 6102779, at *4 (Tex. App.—
Houston [14th Dist.] Dec. 7, 2017, no pet.) (mem. op.).
Whether an error in a judgment is clerical or judicial is a question of law. See Escobar, 711
S.W.2d at 232. However, before a trial court considers the nature of an error, it must first “make a
factual determination regarding whether it previously rendered judgment and the judgment’s
contents.” In re A.M.C., 491 S.W.3d 62, 67 (Tex. App.—Houston [14th Dist.] 2016, no pet.)
(emphasis added). We review a trial court’s determination on whether a judgment has been
rendered for legal and factual sufficiency. See id.
B. Application
The Siblings have not challenged the legal and factual sufficiency of the evidence
supporting the trial court’s findings on the date of the judgment. See id. Instead, they argue: (1)
the date correction was a judicial change rather than a clerical one; and (2) Mission Park did not
follow the procedures necessary to obtain relief on this issue.
We reject the Siblings’ assertion that the date of the judgment is a judicial error. The Texas
Supreme Court referred to the correction of a judgment date as a “clerical error” as far back as
1978. See Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978). Both before and since then,
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multiple courts of appeals—including this one—have held that “a judgment nunc pro tunc may be
issued to correct the date an order was signed if the original date is shown to have been incorrect.”
In re Taylor, 113 S.W.3d 385, 393 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding);
Traylor Bros., Inc. v. Garcia, 949 S.W.2d 368, 369–70 (Tex. App.—San Antonio 1997, no writ);
see also Pletcher v. Hanson, Nos. 01-09-00516-CV & 01-10-00845-CV, 2011 WL 1631811, at *7
(Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.) (mem. op.) (“The correction of the date
of signing is the type of mistake, a clerical error, that may be corrected by a judgment nunc pro
tunc.”); Mahaley v. Jenkins, 369 S.W.2d 846, 847 (Tex. App.—Waco 1963, no writ) (“The trial
court had the right to correct its judgment to show the true date of its entry.”); Hays v. Hughes,
106 S.W.2d 724, 724 (Tex. App.—Austin 1937, writ ref’d) (“[T]he date recited in the judgment
as drawn was but a clerical error. . . . It is now settled law that the court has full power to correct
such clerical errors[.]”).
We also reject the Siblings’ argument that Mission Park did not show it was entitled to a
corrected judgment and/or that the trial court lacked authority to correct the judgment. The
Siblings’ primary argument on these points turns on whether Mission Park followed the procedures
required by Texas Rule of Civil Procedure 306a. See TEX. R. CIV. P. 306a. But Mission Park’s
motion also expressly sought relief under Texas Rule of Civil Procedure 316:
Clerical mistakes in the record of any judgment may be corrected by the judge in
open court according to the truth or justice of the case after notice of the motion
therefor has been given to the parties interested in such judgment, as provided in
Rule 21a, and thereafter the execution shall conform to the judgment as amended.
TEX. R. CIV. P. 316. The Siblings have not argued that they did not receive proper notice of Mission
Park’s motion or that Mission Park failed to comply with Rule 316’s procedural requirements. See
id. We therefore need not decide whether Mission Park complied with Rule 306a.
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As noted above, in response to Mission Park’s request for a corrected judgment under Rule
316, the trial court explicitly found that it did not sign the written judgment or otherwise render
judgment on February 19, 2025, and that April 14, 2025 was the correct date of the judgment. The
trial court’s finding on when it rendered and signed the judgment presents a question of fact, and
we must defer to that finding “if some probative evidence supports it.” In re A.M.C., 491 S.W.3d
at 67–68 (internal quotation marks omitted). Furthermore, because the judge who signed this order
was the same one who signed the judgment, we must presume that her “personal recollection
supports the finding of clerical error.” See id. at 67. Both the trial court’s personal recollection and
the exhibits attached to Mission Park’s motion to correct the judgment 1 support a finding that the
trial court did not sign or render a judgment until April 14, 2025. See id.
The Siblings’ cited authority does not support their position that the trial court lacked
authority to make this finding. For example, the Siblings rely on case law noting that “[t]he district
court may not enter a judgment that simply affirms a former judgment and thereby enlarge the
period for perfecting an appeal.” Nolan v. Bettis, 562 S.W.2d 520, 522 (Tex. App.—Austin 1978,
no writ). But the trial court in this case did not “simply affirm[] a former judgment”; instead, it
made a factual finding about when it signed its one and only judgment.
The Siblings’ reliance on Texas Rule of Civil Procedure 329b(h) is similarly unavailing.
That rule provides that “if a correction is made pursuant to Rule 316 after expiration of the period
of plenary power provided by this rule, no complaint shall be heard on appeal that could have been
presented in an appeal from the original judgment[.]” TEX. R. CIV. P. 329b(h) (emphasis added).
However, because the trial court’s finding that it did not sign the final judgment until April 14,
1
The clerk’s record shows that on April 15, 2025, Mission Park’s counsel emailed the trial court clerk to request “the court’s file-stamped notice to parties that the judgment was signed[.]” The trial court clerk responded, “Notices didn’t get sent out yesterday because she [the trial court judge] signed it just yesterday, due to an error. I can send them out now if you would like me to.”
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2025 is supported by some probative evidence, that finding mandates a conclusion that: (1)
Mission Park’s May 13, 2025 motions for new trial and to modify the judgment were timely filed;
and (2) the trial court’s plenary power did not expire until July 28, 2025. See id. R. 329b(c), (e).
Because the trial court signed the June 23, 2025 Order Correcting Final Judgment Nunc Pro Tunc
within its plenary power, Rule 329b(h) does not apply here. See id. R. 329b(h).
Finally, our sister court’s analysis in In re Texas Wall & Landscape does not compel a
different outcome. See generally No. 14-25-00096-CV, 2025 WL 1936565 (Tex. App.—Houston
[14th Dist.] July 15, 2025, orig. proceeding) (per curiam). In Texas Wall, it was undisputed that
the trial court actually signed the judgment on the date stamped on the judgment, even though it
had not intended to do so. Id. at *2. The court of appeals concluded that by actually signing the
judgment, the trial court rendered judgment on that date. Id. at *3. Here, in contrast, the trial court
found that it did not sign the judgment on February 19, 2025, and, as explained above, the record
contains probative evidence to support that finding. This case is therefore factually distinguishable
from Texas Wall.
For these reasons, we hold that Mission Park’s May 13, 2025 motions for new trial and to
modify the final judgment and its July 21, 2025 notice of appeal were all timely filed. See TEX. R.
CIV. P. 329b(a); TEX. R. APP. P. 26.1(a). We overrule the sole issue presented by the Siblings’
cross-appeal and retain jurisdiction over Mission Park’s appeal.
Mission Park’s Appeal
Mission Park’s appeal presents five issues. “[W]hen multiple grounds for reversal of a trial
court’s judgment are presented, courts of appeals should first address issues that would require
rendition and thus should consider those issues before ordering a remand.” FieldTurf USA, Inc. v.
Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 836 (Tex. 2022) (internal quotation marks
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omitted). “This order of operations is mandatory.” Valk v. Copper Creek Distribs., Inc., 733
S.W.3d 9, 13 (Tex. 2026).
The Siblings’ negligence claim required them to prove that Mission Park owed them a legal
duty, it breached that duty, and its breach proximately caused their damages. See, e.g., Doe v. Boys
Clubs of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex. 1995). Mission Park’s first, second, fourth,
and fifth issues contend that there is no evidence to support these elements and would, if successful,
require rendition of judgment for Mission Park. We will therefore address those issues first.
Legal Duty
In its first issue, Mission Park contends it did not owe the Siblings any legal duty regarding
the disposition of Diana’s remains. Specifically, it argues there is no evidence that it had a “special
relationship” with the Siblings that would support an award of mental anguish damages.
A. Standard of Review and Applicable Law
“[T]he existence, scope, and elements of a legal duty are legal questions subject to de novo
review[.]” Elephant Ins. Co., LLC v. Kenyon, 644 S.W.3d 137, 147 (Tex. 2022). In deciding
whether a legal duty exists, we “weigh the social, economic, and political questions and their
application to the facts at hand[.]” Id. at 145 (internal quotation marks omitted). Relevant
considerations “include the risk, foreseeability, and likelihood of injury [weighed] against the
social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury,
and the consequences of placing the burden on the defendant,” as well as “whether one party would
generally have superior knowledge of the risk or a right to control the actor who caused the harm.”
Id. (internal quotation marks omitted).
“Although mental anguish is a real and serious harm . . . courts are not willing to recognize
it as a compensable element of damages in every case where it occurs.” City of Tyler v. Likes, 962
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S.W.2d 489, 494–95 (Tex. 1997). This is because “Texas does not recognize a general legal duty
not to negligently inflict mental anguish damages[.]” Robinson v. Univ. of Tex. Med. Branch at
Galveston, 171 S.W.3d 365, 369–70 (Tex. App.—Houston [14th Dist.] 2005, no pet.). However,
Texas courts will recognize mental anguish “as the foreseeable result of a breach of duty arising
out of certain special relationships.” Likes, 962 S.W.2d at 496. “[N]egligent mishandling of a
corpse is one such legal duty where mental anguish damages may be available,” even if there is no
contractual relationship between the plaintiff and defendant. SCI Tex. Funeral Servs., Inc. v.
Nelson, 540 S.W.3d 539, 541, 546 (Tex. 2018).
B. Application
Mission Park argues that no special relationship exists here because it did not play any role
in Diana’s cremation, funeral, or inurnment. It contends that the “negligent mishandling of a
corpse” duty the Texas Supreme Court recognized in Nelson applies only to the remains that were
directly entrusted to it—Pedro’s. See id. at 546–47. As support for this position, it emphasizes
Nelson’s discussion of “[t]he relationship between a person disposing of a decedent’s remains and
the next of kin[.]” See id. at 547.
Mission Park reads Nelson too narrowly. It essentially asks us to hold that it owed no legal
duty to the Siblings regarding Diana’s remains because it did not have a contractual relationship
with them regarding those remains. But the Nelson court explicitly held that no contractual
relationship is necessary “before mental anguish damages can be recovered for mishandling a
corpse.” Id. at 541.
It is true that the Nelson court referred to the duty that applies to “a person disposing of a
decedent’s remains[.]” See id. at 547. It is also true that Mission Park did not directly dispose of
Diana’s remains. Nonetheless, it is undisputed that under these unique circumstances, Mission
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Park’s disposition of Pedro required it to consider Diana’s location. Both when Mission Park
agreed to inurn Pedro and when it subsequently undertook to do so, it knew Diana was already
inurned in the grave. Mission Park also emphasizes that it consulted the existing burial records
when deciding where to inurn Pedro. In other words, Mission Park always knew that its task
involved the handling of—or, at a bare minimum, the consideration of—both Pedro and Diana.
Accordingly, we decline to hold that Nelson’s referral to “disposing of a decedent’s remains”
requires rendition of judgment in Mission Park’s favor.
It is further undisputed that Mission Park had control of both the records purportedly
showing the location of Diana’s urn and at least some of the actors—most notably, Campa—who
caused the harm. See Kenyon, 644 S.W.3d at 145. And because Mission Park knew Diana was
inurned in the very grave it was charged with opening, we reject the suggestion in its reply brief
that imposing a duty here subjects it to liability “based on the possibility that remains could exist
on every inch of the property[.]” We conclude that the risk and likelihood of injury caused by
breaking Diana’s urn and scattering her cremated remains in the presence of her children and
grandchildren outweighs both any burden Mission Park faced in guarding against that injury and
the consequences of placing that burden on Mission Park. Cf. id.; see also id. at 149 (identifying
the “relevant risk of harm” at issue in Kenyon as “a car running over a pedestrian standing adjacent
to a roadway taking pictures of an accident scene”).
For these reasons, we reject Mission Park’s argument that it owed no legal duty to the
Siblings. We hold that when Mission Park agreed to bury Pedro, with knowledge that Diana’s
remains were already located in that grave, protecting those remains was necessarily part of
performing Pedro’s burial with reasonable care. Here, the “special relationship” arose because
Mission Park agreed to bury Pedro in the same grave as Diana. We do not believe that our holding
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on this point creates any new legal duties or extends the Texas Supreme Court’s holding in Nelson,
and it should not be interpreted as doing so.
We overrule Mission Park’s first issue.
Mission Park’s Remaining Legal Sufficiency Arguments
In its second, fourth, and fifth issues, Mission Park argues the evidence is legally
insufficient to support the jury’s breach, causation, and damages findings.
A. Standard of Review
When a party raises a legal sufficiency challenge to a finding on which it did not have the
burden of proof, it must show there is no evidence to support the finding. Graham Cent. Station,
Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam). We view the evidence in the light
most favorable to the verdict, “credit[ing] favorable evidence if reasonable jurors could, and
disregard[ing] contrary evidence unless reasonable jurors could not.” In re Est. of Matthews, 510
S.W.3d 106, 117 (Tex. App.—San Antonio 2016, pet. denied) (internal quotation marks omitted,
alterations in original). We will sustain a legal sufficiency challenge only if: (1) the record shows
the complete absence of a vital fact; (2) we are barred by rules of law or evidence from crediting
the only evidence supporting a vital fact; (3) the vital fact is supported by no more than a scintilla
of evidence; or (4) the evidence conclusively establishes the opposite of the vital fact. City of
Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). “If there is more than a scintilla of evidence
to support the finding, the legal sufficiency challenge must fail.” Mass Mktg., Inc. v. Gaines, 70
S.W.3d 261, 264 (Tex. App.—San Antonio 2001, pet. denied).
“The final test for legal sufficiency must always be whether the evidence at trial would
enable reasonable and fair-minded people to reach the verdict under review.” City of Keller, 168
S.W.3d at 827. “If the evidence at trial would enable reasonable and fair-minded people to differ
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in their conclusions, then jurors must be allowed to do so, and we may not substitute our judgment
for” the jury’s. Est. of Matthews, 510 S.W.3d at 117 (internal quotation marks omitted).
B. Breach of Ordinary Care
In its second issue, Mission Park argues that even if it owed the Siblings a legal duty, it did
not breach that duty. The court’s charge instructed the jury to consider whether Mission Park failed
to use ordinary care, and it defined ordinary care as “that degree of care that would be used by a
person of ordinary prudence under the same or similar circumstances.” See Osterberg v. Peca, 12
S.W.3d 31, 55 (Tex. 2000) (“[I]t is the court’s charge, not some other unidentified law, that
measures the sufficiency of the evidence when the opposing party fails to object to the charge.”). 2
On appeal, Mission Park argues that its duty to use ordinary care “must be assessed in light
of the surrounding circumstances” and cannot be “measured by ‘knowing that there’s an urn
somewhere in that grave.’” It contends that the evidence shows it used reasonable care because a
City employee testified that a “tick mark” on the City’s record indicated Diana’s urn was located
in the top one-third of the grave. It argues it relied on that tick mark to decide that Pedro’s urn
should be placed in the middle third of the grave. It further notes that while the Siblings’ witnesses
testified that Mission Park should have used a shovel instead of a backhoe to open the grave, those
same witnesses also testified about their unfamiliarity with the City’s burial records.
Mission Park appears to contend that its reliance on the City’s burial records to locate
Diana’s urn conclusively establishes that it exercised ordinary care. See City of Keller, 168 S.W.3d
at 810. However, reasonable people could have disagreed with that position for several reasons.
See Est. of Matthews, 510 S.W.3d at 117. First, it is undisputed that Mission Park initially opened
the wrong grave and set up the burial site as if Pedro was to be inurned in that grave, rather than
2
While Mission Park objected to the submission of the negligence question on legal sufficiency grounds, it did not object to the charge’s definition of ordinary care.
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Diana’s. Mission Park’s uncontroverted mistake in identifying the correct grave is inconsistent
with its appellate contention that there is no evidence of its failure to use ordinary care to locate
Diana. See City of Keller, 168 S.W.3d at 816 (“Evidence is conclusive only if reasonable people
could not differ in their conclusions[.]”).
Second, while Campa testified that he “go[es] by [his] paper” to decide where to dig, Peter
testified that Campa did not consult any maps or paperwork before he started digging. As the sole
judge of the witnesses’ credibility, the jury was free to believe Peter over Campa. See Sw. Tex.
Coors, Inc. v. Morales, 948 S.W.2d 948, 950 (Tex. App.—San Antonio 1997, no writ).
Furthermore, while Campa testified that neither he nor his crew participated in the opening of the
wrong grave, both he and Cameron testified that Mission Park always uses a backhoe to open
graves and that Campa is the only person who operates the backhoe and digs graves for Mission
Park. Cameron added that “for every open and close, [Campa] and his crew have to be there.” The
jury could properly consider this conflicting testimony in evaluating Campa’s credibility. See
Laredo Tex. Hosp. Co., L.P. v. Cabrera, No. 04-24-00028-CV, 2024 WL 5065557, at *7 (Tex.
App.—San Antonio Dec. 11, 2024, pet. denied) (mem. op.).
Finally, one of the Siblings’ witnesses who testified about his unfamiliarity with the City’s
burial records was Mission Park’s own former funeral director, Cameron. Cameron testified that
he did not “ever remember seeing” a Mission Park document that divided a grave into thirds, and
he agreed that he was not aware of whether the City-owned cemeteries’ burial records used a “onethird, one-third, one-third rule.” Cameron testified that the mark on the City’s burial records that
Mission Park cited as proof of Diana’s location did not indicate to him that the urn was buried in
that spot. Based on this evidence, the jury could have rationally inferred that Mission Park did not
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train Cameron—and, by extension, did not train its other employees—to interpret the City’s burial
records.
The evidence described above would have permitted reasonable and fair-minded people to
find that Mission Park’s employees either did not have the requisite knowledge to correctly
interpret the City’s burial records, or that they did not rely on those records to decide where and
how to open Diana’s grave. See Est. of Matthews, 510 S.W.3d at 117. Either way, the jury heard
more than a scintilla of evidence that Mission Park did not use ordinary care to find Diana.
But even if the jury believed that Mission Park initially used ordinary care to try to locate
Diana, it heard evidence upon which it could have concluded that Mission Park’s use of a backhoe,
rather than a shovel, was a separate failure to use ordinary care. Cameron testified that even if
Campa “would not have reason to suspect” that Diana’s urn was in the middle one-third of the
grave, “it still does not make it standard industry-wide protocol to dig a cremated remain grave
with a tractor.” A funeral-industry expert, James Walker, testified that he had never used a backhoe
to dig a grave for an urn, but had instead always used a shovel or a post-hole digger. He told the
jury that it was industry standard to use a shovel, “especially with there already be[ing] an urn
there,” adding:
[I]f we were going out to a cemetery and there was nothing buried in that spot,
that’s one thing. But in this case, we knew in advance there was an urn already
buried in that space. So by using a shovel, you can kind of discern where it is and
protect it from getting broken.
Based on Walker’s testimony, the jury could have rationally found that Mission Park failed to use
ordinary care in opening the grave.
Mission Park alternatively argues that the evidence in this case required the jury “to guess
as to whether [Mission Park] breached any duty to the Siblings” because there was some evidence
upon which the jury could have found that the scattered cremains belonged to an unknown
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individual “placed in [Diana’s grave] by a rogue burial.” Mission Park notes, for example, that
none of the Siblings saw where Diana’s urn was originally buried, that they presented conflicting
testimony about the color of Diana’s urn, and that all three testified they did not see an
identification disc that would have confirmed whether the urn contained Diana’s remains.
We reject this alternative argument. Yvonne testified that she knew Diana’s urn was blue
because “[b]lue was her favorite color.” Peter testified that Diana’s urn was blue and white, and
so did Yvonne’s daughter, Sydnie. Pictures of the broken urn were admitted into evidence, and
Mission Park’s own trial counsel noted that those pictures showed the urn “to be blue and white
or black and white[.]” This was more than a scintilla of evidence to permit the jury to determine
that the broken urn was Diana’s. See Mass Mktg., 70 S.W.3d at 264.
We overrule the legal sufficiency argument of Mission Park’s second issue.
C. Causation
In its fourth issue, Mission Park argues the evidence is legally insufficient to support a
finding that its actions proximately caused the Siblings’ mental anguish. Proximate cause consists
of two prongs: cause in fact and foreseeability. See Werner Enters., Inc. v. Blake, 719 S.W.3d 525,
532 (Tex. 2025). Cause-in-fact consists of but-for causation and substantial-factor causation. Id.
The defendant’s negligence is the but-for cause of the plaintiff’s injury if the harm would not have
occurred without that act or omission. Id. The substantial-factor inquiry asks “whether, given the
nature of the defendant’s causal connection to the accident, it is reasonable to conclude that he is
actually responsible for the ultimate harm.” Id. at 532–33 (internal quotation marks omitted). “An
injury is foreseeable if its general character . . . might reasonably have been anticipated.” Bush v.
Columbia Med. Ctr. of Arlington Subsidiary, L.P., 714 S.W.3d 536, 544 (Tex. 2025) (internal
quotation marks omitted, alteration in original).
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Mission Park first argues that its mistake in opening the wrong grave does not support a
finding that it caused any mental anguish damages. But this argument ignores that the evidence
shows Mission Park opened the wrong grave—and, presumably, that it intended to open Diana’s
grave—before the Siblings arrived for Pedro’s inurnment. The jury could have rationally inferred
that if Mission Park had not initially opened the wrong grave, then the Siblings would not have
been present at the gravesite when Diana’s urn was shattered. We thus cannot say that the record
is devoid of evidence that this error caused or contributed to the Siblings’ harm.
But even if we focus only on the opening of Diana’s grave, Mission Park knew Diana’s
urn was in that grave. It also knew that at the time of Diana’s inurnment, the City did not require
the use of urn vaults to protect buried urns, and its records showed that Diana’s urn “was not in an
urn vault.” Walker testified that because Mission Park knew Diana’s urn was not protected by an
urn vault, it should have used additional care when opening her grave.
Walker further testified that the shattering of Diana’s urn could “[a]bsolutely” have been
prevented if Mission Park had used shovels instead of a backhoe to open the grave. While he
recognized that “even with a shovel, the urn could have been broken,” he also testified that
“whoever was using the shovel probably could have recognized at that point and kept the bag [that
contained the cremains inside the urn] from being torn and the cremated remains scattered around.”
Similarly, Cameron testified that someone using a shovel “would have heard [the urn] break” and
“possibly, would have punctured the bag and made some mess, maybe . . . scattered some of the
remains, maybe, but it would not have turned into this.”
Moreover, Deidre testified that when she looked at the diagrams and photos of the grave,
“from how [Mission Park’s trial counsel was] describing the space and how it’s divided . . . that
actually looks like one-eighth, not a third. Because you’re speaking about the upper third being a
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very small portion compared to what you’re actually saying is the middle. . . . [T]he middle is,
like, this much, and in the photo, you’re saying this much is the upper third.” Photographs that
were admitted into evidence appear to support Diedre’s testimony that the opened area of the grave
extended into the top one-third, close to the headstone. Based on this evidence, the jury could have
found that Mission Park’s digging was not limited to the middle third of the grave.
When viewed in the light most favorable to the judgment, this evidence would permit
reasonable people to find that the “general character” of the Siblings’ injury “might reasonably
have been anticipated” by Mission Park. See id. The jury also could have found that Mission Park’s
conduct was both the but-for cause of and a substantial factor in causing the Siblings’ harm. See
Werner, 719 S.W.3d at 532–33. We therefore overrule the legal sufficiency challenge of Mission
Park’s fourth issue.
D. Mental Anguish
In its fifth issue, Mission Park argues the evidence is legally insufficient to support the
jury’s findings that Deidre and Peter suffered compensable mental anguish. It also contends that
none of the Siblings presented legally sufficient evidence of future mental anguish and that the
amount of damages awarded by the jury was not rationally connected to the evidence.
“Generally, an award of mental anguish damages must be supported by direct evidence that
the nature, duration, and severity of mental anguish was sufficient to cause, and caused, either a
substantial disruption in the plaintiff’s daily routine or a high degree of mental pain and distress.”
Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011). Compensable mental anguish
“implies a relatively high degree of mental pain and distress. It is more than mere disappointment,
anger, resentment or embarrassment, although it may include all of these.” Parkway Co. v.
Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (citation omitted). Even where a plaintiff asserts a
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claim where mental anguish damages are theoretically available, he must present “evidence of the
nature, duration, and severity of [his] mental anguish . . . to establish the existence of mental
anguish damages.” Gregory v. Chohan, 670 S.W.3d 546, 554 (Tex. 2023) (plurality op.). The
Texas Supreme Court has previously refused to permit a jury to infer the existence of compensable
mental anguish from “particularly disturbing and upsetting” events like “the mishandling of a
corpse.” Guerra, 348 S.W.3d at 231.
If the plaintiff establishes the existence of compensable mental anguish, “[t]here must also
be some evidence to justify the amount awarded.” Saenz v. Fid. & Guar. Ins. Underwriters, 925
S.W.2d 607, 614 (Tex. 1996). “There must be evidence that the amount found is fair and
reasonable compensation, just as there must be evidence to support any other jury finding.” Bentley
v. Bunton, 94 S.W.3d 561, 606 (Tex. 2002) (quoting Saenz, 925 S.W.2d at 614). “In short, ‘[j]uries
cannot simply pick a number and put it in the blank.’” Gregory, 670 S.W.3d at 554 (quoting Saenz,
925 S.W.2d at 614). The Gregory plurality specifically noted that the necessary rational basis for
an award of mental anguish damages “may be revealed by lawyer argument rationally connecting
the amount sought—or on appeal, the amount awarded—to the evidence.” Id. at 561 (emphasis
added).
In reviewing this issue, we will consider the evidence presented by and the amounts
awarded to each of the Siblings separately.
A. Yvonne
Yvonne testified that she has “trigger moments” that cause “breakdowns” in the shower.
She told the jury that water falling on her in the shower makes her think back to the cemetery and
rain falling on her family as they were collecting cremains. She explained that as a result, she “was
having difficulties trying to take a shower every day.” Yvonne also testified that she had begun
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seeing a grief counselor because “as the years went on, it was just getting harder and harder, and
[she] was having more triggering with [her] showers, and [she] couldn’t handle having the
breakdowns as [she is] trying to shower.” See Boxer Prop. Mgmt. Corp. v. Dehnel, No. 02-22-00336-CV, 2024 WL 3282541, at *29 (Tex. App.—Fort Worth July 3, 2024, pet. denied) (mem.
op.) (“[R]ecovery is warranted when the plaintiff’s mental pain has risen to such a level that it has
rendered her incapable of dealing with certain everyday activities like eating, sleeping, working,
and socially interacting.”).
Yvonne’s grief counselor, Michelle Collins, testified that Yvonne had “a lot of tears; a lot
of crying; a lot of anxiety, depression.” Collins also testified that when Yvonne took a shower,
“she would just start crying profusely, and she couldn’t identify why. And that was troubling for
her because she can’t find reasons, so there’s no closure to it. It just keeps continuing.” Yvonne
told Collins “that every day was a challenge[.]” Similarly, Yvonne’s daughter Sydnie testified that
“there’s been zero coping” for Yvonne and that “[y]ou can’t bring up [Diana], the memory of
[Diana] or [Pedro] without it causing severe anguish to [Yvonne] to where she’ll start crying.” See
Anderson v. Durant, 550 S.W.3d 605, 620 (Tex. 2018) (evidence that plaintiff’s “wife and
daughter noticed an alteration in his demeanor and treated him differently in response” was some
evidence of compensable mental anguish).
Mission Park does not dispute that Yvonne suffered compensable mental anguish in the
past in connection with the breaking of Diana’s urn. 3 It contends, however, that she did not present
legally sufficient evidence of future mental anguish. We disagree. The testimony described above
is more than a scintilla of evidence that Yvonne’s mental anguish had not abated—and had in fact
3
Mission Park briefly argues that none of the Siblings have established compensable mental anguish “regarding the handling of Pedro’s remains.” As explained above, however, we have already held that under these circumstances, Mission Park’s duty to handle Pedro’s remains included a duty to avoid disrupting Diana’s urn.
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gotten worse—between the time of the incident and the time of trial. Based on that evidence, the
jury could rationally infer that her mental anguish would likely continue into the future. See Manka
v. Acosta, No. 04-25-00089-CV, 2026 WL 1326508, at *7–8 (Tex. App.—San Antonio May 13,
2026, pet. filed) (mem. op.). That evidence was sufficient to support an award of future mental
anguish damages. See id.
Mission Park also argues that the evidence is legally insufficient to support the amount
awarded to Yvonne. Tracking the jury’s findings, the judgment awarded Yvonne $300,000 for past
mental anguish and $200,000 for future mental anguish. As the Siblings note in their briefing, the
amount of past damages represents approximately $245—or roughly 20% of the $1,095 internment
fee Yvonne paid to Mission Park—for each of the 1,221 days between the events at the gravesite
and the time of trial. 4 Similarly, the future damages amount is approximately $164 per day, or
about 15% of the internment fee. While Mission Park argues that this kind of per diem measure
“yields an arbitrary total number,” both this court and our sister court in Houston have recently
affirmed similar measures of mental anguish damages. See Manka, 2026 WL 1326508, at *7;
Elizondo v. Reyna, No. 04-24-00284-CV, 2025 WL 2462764, at *9 (Tex. App.—San Antonio Aug.
27, 2025, no pet.) (mem. op.); Garza v. Escamilla, 712 S.W.3d 718, 727–31 (Tex. App.—Houston
[14th Dist.] 2025, no pet.); Kelly Custom Homes, LLC v. Hopper, No. 14-23-00793-CV, 2024 WL
3765393, at *8–9 (Tex. App.—Houston [14th Dist.] Aug. 13, 2024, pet. denied) (mem. op.). After
reviewing the record in the light most favorable to the judgment, we conclude the damages
awarded to Yvonne “are both reasonable and rationally connected to the evidence.” See Elizondo,
2025 WL 2462764, at *9.
4
The Siblings’ briefing points out that it was Mission Park’s trial counsel, rather than the Siblings themselves, who specifically identified for the jury how many days had passed between the incident and the trial.
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B. Deidre
Deidre testified that she personally participated in collecting the scattered cremains, and
the record appears to show that she was the only one of the Siblings who did so. 5 She testified that
while the family was collecting the cremains, she was “fighting back tears” and “really, really
stressed out.” She “remember[ed] just being so anxious” and said “everything was a blur” that day.
She also described realizing that “this is [her] mother’s cremains on [her] hands” and “trying to
see if it was dirt or bone or what.” She testified that on the day of the incident, the shock of the
situation “hit [her] kind of later than everyone” because she found herself thinking, “Should I wash
my hands or should I not wash my hands?”
Deidre testified that after the incident, she was “not as close to [her] siblings as [she] used
to be because [she had] had to focus more spiritually on [herself] and to find closure[.]” As part of
her search for closure, she “moved countries” so she could “feel more peaceful.” She also started
attending temple “two to three times a week,” praying “a lot,” and seeking out “a religious path,”
which included “a pilgrimage to do a special ceremony” in India.
Unlike Yvonne, Deidre did not testify about any disruptions in her employment or activities
of daily living. While Deidre testified that she “moved countries” after this incident, she also
testified that she lived overseas before Pedro died. She denied having sought out any psychological
or psychiatric care, and she said she had not been diagnosed with depression or anxiety or
prescribed medication for those conditions. She also testified, however, that she was told she could
not see a counselor via telemedicine while she was living in India.
Deidre’s testimony, particularly her testimony about having to decide whether to wash her
mother’s cremains off her hands, unquestionably established that she suffered a uniquely painful
5
Yvonne’s son and daughter also helped collect the cremains.
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and emotional experience. Her description of the distress and sorrow that she experienced at Diana
and Pedro’s gravesite was obviously compelling for the jury, and we do not doubt the sincerity of
her testimony. But as an intermediate appellate court, we are bound by the Texas Supreme Court’s
holdings that an award of mental anguish damages must be supported by evidence that the nature,
duration, and severity of the claimant’s mental anguish caused “a substantial disruption of [her]
daily routine or a high degree of mental pain and distress.” See Guerra, 348 S.W.3d at 231–32;
Parkway, 901 S.W.2d at 444–45. And, as noted above, the Texas Supreme Court has also rejected
the notion that the occurrence of a “particularly disturbing and upsetting” event will permit a jury
to infer legally compensable mental anguish without evidence of the nature, duration, and severity
of that anguish. See Guerra, 348 S.W.3d at 231–32. On this record, we must conclude that even
when viewed in the light most favorable to the judgment, the evidence regarding Deidre did not
rise to the level required by the applicable law and was therefore legally insufficient to support the
jury’s finding that she suffered legally compensable mental anguish. See id. at 231–32; Parkway,
901 S.W.2d at 444–45. As a result, we have no choice but to reverse the trial court’s judgment as
to her negligence claim and render judgment for Mission Park on that claim. See Guerra, 348
S.W.3d at 232, 239.
C. Peter
The record appears to show that Peter was the person who first saw cremains and parts of
the urn falling from the bucket of the backhoe. He testified that the loss of his father “reopened the
grief from [his] mother” and that “seeing the ashes” reminded him of “the month-and-a-half-long
medical coma that [Diana] was in during her cancer” and the family’s decision to remove Diana
from life support. He further testified that he often thinks about this incident and that his thoughts
of his father always go “back to his burial, to the ashes being scattered, to [Diana] being in the
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hospital.” He added, “That’s the cycle that I get to live through, and how we deal with it, at first,
was harder than—where I’ve been able to adjust.” He also told the jury that this incident
“interrupted [his] grieving for [his] father” and that he was “dealing with guilt that [he] can’t even
grieve [his] father because [he is] being overwhelmed by [his] mother.” He testified that it took a
long time for him “to build up to go” back to the gravesite and that he would never lose the memory
of what happened there, “just like [Diana’s] death or [his] father’s death.”
Peter also testified, however, that he did not seek out a counselor after the incident because
he “felt comfortable with [his] experience, with [his] dealing with trauma, with [his] dealing with
others.” 6 He testified that he did not use the psychological care resources offered by his employer
because he “did not feel [he] needed it.” He also reported that other than the time devoted to his
deposition, the mediation, and the trial, he had not missed any work as a result of these events.
Peter further testified that he also felt comfortable “with [his] understanding of [his]
triggers of [his] own personal dealings with trauma and things like that” because he “had a support
system.” He told the jury that “these are the coping things that [he] was able to discuss with” his
wife and family, and he stated that he “knew how [he] wanted to deal with it” and “kind of knew
what [he] felt like [he] needed to do to move on.” He described himself as having “pretty good
resilience with just life events and the things [he has] been through. Just education or the training
or whatever you want to call it to deal with it to learn to cope.” He added that “this is a life cycle
that [he has] to continue with from now on. . . . trying to move on to where [he] can remember the
good times with [his] father, rather than burying [his] father and then having [his] sister picking
up [his] mother’s ashes.”
6
Peter later testified that he eventually sought counseling from a “Ms. Becho,” but he told the jury “[t]here was a lot of issues trying to coordinate it” and that he “was trying to find something more accommodating to [his] schedule.” Mission Park objected that this information was not disclosed to it in discovery, the trial court sustained the objection, and Peter did not offer any further testimony on this point.
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Like Deidre, Peter described an undoubtedly traumatic experience that the jury plainly
found compelling. But as was the case with Deidre’s testimony, Peter’s testimony did not establish
that the nature, duration, and severity of his mental anguish caused “a substantial disruption of
[his] daily routine or a high degree of mental pain and distress.” See id. at 231–32. Indeed, Peter
himself told the jury, “I believe I am able to cope and do my job.” On this record, we are bound
by the applicable law to conclude that the evidence presented below was legally insufficient to
support the jury’s finding that Peter suffered legally compensable mental anguish. We therefore
reverse the trial court’s judgment as to his negligence claim and render judgment for Mission Park
on that claim. See id. at 232, 239.
For these reasons, we overrule the legal sufficiency argument of Mission Park’s fifth issue
as to Yvonne’s claim and sustain it as to Deidre’s and Peter’s claims.
Responsible Third Party
In its third issue, Mission Park contends that the trial court erred by refusing to permit the
jury to consider the City as an RTP.
A. Standard of Review and Applicable Law
“A defendant may seek to designate a person as a responsible third party.” TEX. CIV. PRAC.
& REM. CODE § 33.004(a). “The trier of fact, as to each cause of action asserted, shall determine
the percentage of responsibility” for, inter alia, “each responsible third party who has been
designated under Section 33.004.” Id. § 33.003(a)(4). When a defendant obtains an RTP
designation, it is entitled to ask the jury to determine the RTP’s negligence and proportionate
responsibility if the evidence would “permit[] a reasonable jury to assign partial responsibility”
for the plaintiff’s injury to the RTP. See Gregory, 670 S.W.3d at 566–67. Stated differently, a party
seeking to submit an RTP’s responsibility need only present evidence that raises a fact issue on
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that question. See In re E. Tex. Med. Ctr. Athens, 712 S.W.3d 88, 98–99 (Tex. 2025) (orig.
proceeding); cf. TEX. CIV. PRAC. & REM. CODE § 33.003(b) (“This section does not allow a
submission to the jury of a question regarding conduct by any person without sufficient evidence
to support the submission.”).
We review claims of jury charge error, including claims that a trial court erred by refusing
to submit an RTP’s negligence and proportionate responsibility, for abuse of discretion. See Tex.
Dep’t of Pub. Safety v. Boswell, No. 13-06-00327-CV, 2007 WL 2471447, at *1–2 (Tex. App.—
Corpus Christi–Edinburg Aug. 31, 2007, no pet.) (mem. op.). A trial court abuses its discretion if
its decision was arbitrary, unreasonable, or without reference to guiding rules or principles. See In
re Est. of Johnson, 340 S.W.3d 769, 787 (Tex. App.—San Antonio 2011, pet. denied). A trial
court’s erroneous refusal to submit an RTP’s negligence and proportionate responsibility to the
jury is harmful error. See Boswell, 2007 WL 2471447, at *5.
B. Application
The Siblings argue 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. See
Werner, 719 S.W.3d at 528. We disagree.
It is undisputed that the City exclusively controlled San Jose and its burial records at the
time of Diana’s inurnment. Furthermore, Mission Park presented more than a scintilla of evidence
that it relied on the City’s burial records to locate Diana’s urn and to decide where to dig. Based
on that evidence, reasonable people could disagree about whether the City’s records were a butfor cause and/or a substantial factor in the shattering of Diana’s urn. See id. at 532–33. Reasonable
people could also disagree about whether that occurrence was a foreseeable consequence of the
City’s records. See Bush, 714 S.W.3d at 544. Moreover, because it is undisputed that the City
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owned and operated San Jose and maintained that cemetery’s burial records at the time of Diana’s
inurnment, we disagree with the Siblings’ assertion that the City had no “special relationship” with
the Siblings.
While we have already held that Mission Park’s reliance on the City’s records did not
conclusively establish that it used ordinary care, this record does not support a conclusion that no
reasonable jury could have found that the City was at least partially responsible for this incident.
See TEX. CIV. PRAC. & REM. CODE § 33.003, 33.004(l); Gregory, 670 S.W.3d at 568 (“The mere
fact that one person’s behavior is a but-for cause of an injury does not mean that another’s behavior
is not also a substantial factor in causing the same injury.”). As a result, the trial court abused its
discretion by refusing to submit the City as an RTP. We therefore sustain Mission Park’s third
issue and remand this matter for a new trial on Yvonne’s negligence claim. See Boswell, 2007 WL
2471447, at *5.
Because we have concluded that Mission Park is entitled to a new trial on the RTP issue,
we need not consider its remaining issues regarding the factual sufficiency of the evidence. TEX.
R. APP. P. 47.1.
CONCLUSION
We reverse the trial court’s judgment. We render judgment for Mission Park as to Deidre’s
and Peter’s negligence claims, and we remand this matter to the trial court for a new trial on
Yvonne’s negligence claim.
Lori I. Valenzuela, Justice
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