MP II INC v. KOLLARS (2026)

CONCURRING AND DISSENTING OPINION

I agree with the majority's holding 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. However, I respectfully disagree with the majority's holding that Mission Park had a special relationship with the decedent's family based on its discovery of an urn that had allegedly been improperly buried through the work of a third party before Mission Park's involvement. Because I would hold that the evidence is legally insufficient to show that Mission Park owed a legal duty to Deidre Kollars, Peter Moreno, and Yvonne Rigal (collectively, “the Siblings”), I would reverse the trial court's judgment and render judgment that the Siblings take nothing on their negligence claims against Mission Park.

In reaching the conclusion that Mission Park owed the Siblings a legal duty, the majority relies on SCI Texas Funeral Services, Inc. v. Nelson, 540 S.W.3d 539 (Tex. 2018). While the majority argues that Mission Park reads Nelson too narrowly, I agree with Mission Park that Nelson does not extend to prior work performed by a party unrelated to and under no supervision or control of Mission Park.

The undisputed evidence shows that Mission Park played no role in Diana Moreno's cremation, funeral services, or original inurnment, and Diana's remains were never entrusted to Mission Park for disposition. “Texas common law requires a special relationship, though not necessarily a contractual one, as the basis for mental anguish damages when the defendant has negligently mishandled a corpse.” See id. at 547-48. In Nelson, the supreme court grounded the special relationship in the funeral home's direct assumption of responsibility over the decedent's remains and the next of kin's recognized quasi-property right to control disposition of those remains. See id. at 545-48. The special relationship arose precisely because the funeral home assumed responsibility for disposing of those specific remains. See id. The supreme court has not, however, recognized a special relationship between a funeral home and next of kin when the funeral-services provider or operator merely encounters the remains of a decedent or must account for the location of those remains. The court should not create such a duty here.

In my opinion, the majority's reasoning 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 records and work performed by prior owners and operators. Such a duty would impose an extraordinary burden. A subsequent operator must be able to rely on existing records and cannot reasonably be expected to independently verify that every prior burial, excavation, or placement of remains was performed correctly, much less confirm the accuracy of every historical record before undertaking work at a burial site. The majority's holding essentially exposes Mission Park to liability for its predecessors' errors whenever it performs work at an existing burial site. In other words, each time Mission Park opens a grave, conducts an inurnment, or performs other services, it assumes the risk that every prior owner properly performed its work and accurately documented the location and disposition of the remains. An undiscovered mistake by a predecessor could thus become Mission Park's responsibility merely because Mission Park later performed work at the site.

The undisputed evidence in this case shows that Mission Park did not create the prior condition, perform the earlier work, prepare the underlying records, or exercise control over the conduct of its predecessors. Yet, under the majority's reasoning, Mission Park must nevertheless bear the consequences of those predecessors' mistakes. In my opinion, Texas law should not impose such an open-ended obligation merely because a subsequent operator relies on existing burial records or performs work at a previously used burial site, or any burial site for that matter. I would therefore hold that the evidence is legally insufficient to show a special relationship between Mission Park and the Siblings with respect to Diana's remains. Because Mission Park played no role in Diana's cremation, funeral, or inurnment, it never assumed responsibility for her remains, and no special relationship was formed with respect to Diana's family. For these reasons, I concur in the portion of the judgment that renders a take-nothing judgment for Mission Park on Peter Moreno's and Deidre Kollars's negligence claims, and respectfully dissent to the portion of the judgment that remands Yvonne Rigal's negligence claim for a new trial. I would render judgment that Yvonne should take nothing on her negligence claim against Mission Park.

Adrian A. Spears II, Justice