                            NUMBER 13-10-00498-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

SERVICE CORPORATION INTERNATIONAL AND
SCI TEXAS FUNERAL SERVICES, INC.,                                         Appellants,

                                           v.

LETICIA LEAL, ET AL.,                                                      Appellees.


                   On appeal from the 370th District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION
                Before Justices Benavides, Vela, and Perkes
                   Memorandum Opinion by Justice Vela
      This is an appeal from a trial court judgment entered in favor of appellees, Leticia

Leal, Frank Garza, Beatriz Cavazos, Noe Cavazos, and Maria Elena Cisneros ("the

Garzas") Catherine E. Rogers, Evelyn Rogers, and Gerald A. Rogers ("the Rogers")

against appellants, Service Corporation International ("SCI International") and SCI Texas
Funeral Services, Inc. ("SCI Texas") for actual and exemplary damages.             The jury

determined that appellants committed fraud against appellees and awarded each

appellee $10,000 for mental anguish, $10,000 in exemplary damages against SCI

International, and $20,000 in exemplary damages against SCI Texas. By five issues,

appellants urge that: (1) the trial court erred in disregarding the jury’s finding concerning

limitations and in entering judgment for the appellees, other than Leticia Leal, despite the

limitations bar; (2) there is no evidence that appellees, other than Catherine Rogers,

relied on the alleged fraud; (3) there is no evidence to support the jury’s damage findings;

(4) there is no evidence to support recovery from appellant SCI International; and (5)

absent recoverable compensatory damages, punitive damages must also be reversed.

We reverse and render judgment in favor of appellants.

                                     I. BACKGROUND

         This suit was brought by the family members of two individuals who were buried at

Highland Memorial Park Cemetery, which was owned at the time of trial by SCI Texas.

The Garzas asserted claims with respect to the interment of their family member, Rodolfo

Garza.     Leticia Leal and Frank Garza are the children of Rodolfo Garza.           Beatriz

Cavazos and Maria Elena Cisneros are the siblings of Rodolfo Garza. Noe Cavazos is

Rodolfo Garza’s brother-in-law.     The other group of appellees, the Rogers, alleged

claims with respect to the interment of Charles Rogers. Catherine Rogers is Charles

Rogers’s widow, and Evelyn and Gerald are his children.

         The issues in this case concern spaces 1-8, Lot 143, Section J of Highland

cemetery. In 1976, spaces 2-4 were purchased by Petra Lopez, who arbitrated her


                                             2
claims against appellants and is not a party to this appeal. Rodolfo Garza was buried at

Highland in 1977. The parties disagreed about where exactly Mr. Garza was initially

buried. The disagreement is at the crux of this lawsuit. The Garzas claimed that he was

buried in space 4 and alleged that, at some point, he was moved to space 5. Appellants

urged that Rodolfo Garza was originally buried in space 5.

      In 1982, Charles and Catherine Rogers purchased spaces 5-8 of Lot 143, Section

J of Highland cemetery. Thus, the Rogers were either sold a lot that was previously sold

and was the burial plot of Rodolfo Garza, or at some point, Rodolfo Garza’s remains were

moved to space 5.

      In 1997, Petra Lopez’s mother died, and she requested that her mother be buried

in space 4. The evidence about what Lopez was told at this time was conflicting. Ms.

Lopez testified that she was told that someone had been buried in space 4 and the body

would need to be moved so her mother could be buried there. The witnesses who

testified for SCI Texas disagreed that Lopez had been told that. Maria Santillan, an SCI

Texas employee, testified that while the cemetery records reflected that someone was

buried in space 4, when she went to the gravesite, there was a headstone on space 5 and

that the maintenance person used a probe to determine that space 4 was clear.

      Charles Rogers died in 2002. He was buried in space 8, which was owned by the

Rogers’ family.   Rodolfo Garza’s headstone was removed from space 5 sometime

around the time of Charles Rogers’ funeral. There was testimony offered by appellees

that the headstone was removed to deceive the Rogers family so that they would not

learn that Mr. Garza was buried in a space owned by the Rogers family.


                                           3
       In 2003, Noe Cavazos, Rodolfo Garza’s brother-in-law, went to Rodolfo Garza's

gravesite, but he could not locate the headstone. He later located the headstone in a

maintenance shed. Cavazos went home and told his wife, Beatriz, and also notified

Rodolfo Garza’s children. The headstone was later replaced on the grave.

       In 2008, the Garza plaintiffs and Petra Lopez opened the graves in spaces 4 and 5.

Rodolfo Garza’s remains were in space 5 and Ms. Lopez’s mother was buried in space 4.

The Garzas made the decision to move the remains of Rodolfo Garza to a different

cemetery. He was disinterred and moved to a veteran’s cemetery.

       Leticia Leal had previously filed suit in 2004, alleging that she believed that in 2003

her father’s remains had been moved, without her knowledge, from space 4 to space 5.

The other appellees did not file suit until 2008.

       The jury was asked if the appellants were negligent, intentionally inflicted

emotional distress upon the appellees, committed fraud, or trespassed. The jury found

that appellants committed fraud against the appellees and determined that SCI Texas

was 75% responsible for the injuries caused and SCI International was 25% responsible.

The jury also found that the appellees, other than Leticia Leal, failed to file suit within four

years of the time that appellees should have discovered their claims. The trial court,

however, disregarded the jury’s finding with respect to limitations and entered judgment

for the appellees.




                                               4
                                 II.   STATUTE OF LIMITATIONS

       Appellants argue in their first issue that the trial court erred in disregarding the

jury’s finding with respect to the statute of limitations. In response to question thirteen,

the jury found that appellees, with the exception of Leticia Leal, failed to file suit within four

years of the date that they should have discovered the fraud, exercising reasonable

diligence.

A. Applicable Law

       A trial court may disregard a finding by the jury only when the answer has no

support in the evidence or the question is immaterial. TEX. R. CIV. P. 301; Spencer v.

Eagle Star Inc. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). This Court must view the

evidence in a light that tends to support the jury’s finding and disregard all evidence and

inferences to the contrary.      Excel Corp. v. McDonald, 223 S.W.3d 506, 508 (Tex.

App.—Amarillo 2006, pet. denied). Where some evidence supports the disregarded

finding, the reviewing court must reverse and render a judgment on the verdict. Star

Food Processing, Inc. v. Killian, 954 S.W.2d 124, 126 (Tex. App.—San Antonio 1997, pet.

denied); Basin Operating Co., Ltd. v. Valley Steel Prods. Co., 620 S.W.2d 773, 776 (Tex.

Civ. App.—Dallas 1981, writ ref’d n.r.e.).

       Appellees secured relief only upon their fraud claims, which are governed by a four

year statute of limitations. TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)(4) (West

2002); Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 217 (Tex. 2011); Williams

v. Khalaf, 802 S.W.2d 651, 654–58 (Tex. 1990). Leticia Leal initially filed her lawsuit in

June 2004. The other appellees did not join until May 13, 2008.


                                                5
       Appellees argue on appeal that the limitations issue was immaterial because the

injury in this case was inherently undiscoverable. They claim that if an injury is inherently

undiscoverable, there is no duty upon “the victim to discover the undiscoverable.” The

appellees’ theory of the case seems to have shifted from their trial pleadings and

arguments that Rodolfo Garza was initially buried in space 4 and was moved to space 5 in

1997 to their position on appeal, wherein they urge that Rodolfo Garza was buried in

space 5 and the plot was sold twice, a second time to the Rogers family in 1982.

       Statutes of limitation operate to prevent the litigation of stale claims; they “afford

plaintiffs what the legislature deems a reasonable time to present their claims and protect

defendants and the courts from having to deal with cases in which the search for truth

may be seriously impaired by the loss of evidence, whether by death or disappearance of

witnesses, fading memories, disappearance of documents or otherwise. The purpose of

a statute of limitations is to establish a point of repose. . . .” S.V. v. R.V., 933 S.W.2d 1, 3

(Tex. 1996) (quoting Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.

1990)).

       Appellees pleaded both fraudulent concealment and the discovery rule as

affirmative defenses to appellants' limitations claim.         The fraudulent concealment

doctrine is an affirmative defense to the statute of limitations. See KPMG Peat Marwick

v. Harrison Cty. Housing Fin. Corp., 988 S.W.2d 746, 749 (Tex. 1999); Ponder v. Brice &

Mankoff, 889 S.W.2d 637, 645 (Tex. App.—Houston [14th Dist.] 1994, writ denied).

Fraudulent concealment is based upon the principle of estoppel; a defendant should not


                                               6
be permitted to avoid liability for its actions by deceitfully concealing wrongdoing until

limitations has run. Markwardt v. Texas Indus., Inc., 325 S.W.3d 876, 894–95 (Tex.

App.—Houston [14th Dist.] 2010, no pet.); see S.V., 933 S.W.2d at 6; Vial v. Gas

Solutions, Ltd., 187 S.W.3d 220, 229 (Tex. App.—Texarkana 2006, no pet.). When the

doctrine applies, the statute of limitations is tolled until the injured party, using reasonable

diligence, discovered or should have discovered the injury. KPMG Peat Marwick, 988

S.W.2d at 750.

       The elements of fraudulent concealment are: (1) existence of the underlying tort,

(2) the defendant's knowledge of the tort, (3) the defendant's use of deception to conceal

the tort, and (4) the plaintiff’s reasonable reliance on the deception. Vial, 187 S.W.3d at

229; Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 439 (Tex. App.—Fort Worth 1997,

writ denied). A defendant's fraudulent concealment of wrongdoing may toll the running

of limitations. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). Fraudulent concealment

will not, however, bar limitations when the plaintiff discovers the wrong or could have

discovered it through the exercise of reasonable diligence. Id.; Velsicol Chem. Corp. v.

Winograd, 956 S.W.2d 529, 531 (Tex. 1997); Nichols v. Smith, 507 S.W.2d 518, 519

(Tex. 1974).

       The discovery rule is “a very limited exception to statutes of limitations” and applies

“only when the nature of the plaintiff's injury is both inherently undiscoverable and

objectively verifiable.” Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex.

2001). “[W]hen the discovery rule applies, accrual is tolled until a claimant discovers or

in the exercise of reasonable diligence should have discovered the injury and that it was


                                               7
likely caused by the wrongful acts of another.” Childs v. Haussecker, 974 S.W.2d 31, 40

(Tex. 1998).

B. Evidence Before the Jury with Respect to Limitations

       The Rogers' claims were based upon Rodolfo Garza’s burial in a space purchased

by Charles and Catherine Rogers. They asserted that appellants concealed that Mr.

Garza was buried in space 5. Because of the standard of review previously stated with

respect to motions to disregard jury findings, we look only to whether there was some

evidence to support the jury’s finding that the Rogers should have filed suit within four

years of the date that they discovered or should have discovered the alleged fraud.

       At trial, appellees did not object to the manner the limitations issue was worded.

The trial court overruled appellants’ objection, in which they urged that appellees should

have been asked to identify the date that the plaintiff should have discovered their claims.

The evidence is viewed from the charge that was submitted. Bradford v. Vento, 48

S.W.3d 749, 754 (Tex. 2001).

       None of the appellees proved conclusively that they could not have discovered the

alleged fraud less than four years prior to suit. For instance, Leticia Leal, Rodolfo

Garza’s daughter, testified that she learned that her father’s gravestone had been

allegedly moved in May 2003. She learned that when Noe Cavazos, another appellee,

told her. She did not keep it a secret from Noe Cavazos, Frank Garza, Beatriz Cavazos,

or Maria Elena Cisneros that she had filed a lawsuit based upon the facts she knew in

May 2003.




                                             8
       Frank Garza, Rodolfo Garza’s son, testified that his sister told him “something that

was mentioned about his being moved or something like that.” He agreed that it was

about May of 2003. Beatriz Cavazos, Rodolfo Garza’s sister, testified at her deposition

that she had a thought or a belief in 2003 when her husband first told her about the

headstone being moved, that Rodolfo’s remains might have been moved. Maria Elena

Cisneros testified that Noe Cavazos called her around May 2003 to tell her about the

missing headstone.

       Noe Cavazos was the individual who discovered the headstone was missing in

May 2003. At that time, he notified his wife, the sisters, Leticia, and Frank that his belief

was that Rodolfo had been moved.

       With respect to the Rogers family, if Mr. Garza was buried in space 5 in 1997, there

was evidence from which the jury could have concluded that the presence of Garza’s

headstone would have provided notice to the Rogers in 1982, when they made their

purchase. It was within the province of the jury to have determined that the parties could

have discovered their claims at least by May 2003.

       The appellees point to contrary evidence that is in the record, including evidence

from appellants that the relatives were never told that Rodolfo Garza was buried in a

space belonging to another family.         It was, however, the appellees’ burden to

demonstrate that limitations were tolled. The trial court could disregard the jury’s finding

only if the evidence conclusively established that the jury’s finding was wrong. There

was evidence before the jury to answer the limitations questions as it did. We sustain

issue number one with respect to all appellees, except Leticia Leal.


                                             9
                             III. MENTAL ANGUISH DAMAGES

       By issue three, appellants urge that there is no evidence to support the jury’s

award of damages for mental anguish. Mental anguish damages were the only actual

damages the jury awarded.         Even though we have determined that the statute of

limitations barred all claims, except for those of Leticia Leal, we nevertheless address

issue three with respect to each appellee in the interest of justice.

A. Nature of Evidence Required

       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. Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex. 2002). Evidence of the

nature, duration, and severity of the mental anguish is required, even when an

occurrence is of the type for which mental anguish damages are recoverable. See id. at

606.

       In Service Corporation International v. Guerra, the supreme court reviewed the

evidence required to recover mental anguish damages in a case very similar to this one.

348 S.W.3d 221 (Tex. 2011).          In fact, the appellants in this case were also the

defendants in the Guerra case. See id. In Guerra, the testimony regarding mental

anguish included a statement by one family member that she had trouble sleeping, the

situation they were encountering was very difficult; and she was frustrated and in agony.

Id. at 232. Another witness testified that she would not accept what had happened and

another testified that she was always "wondering." Id. Third parties, who testified in


                                              10
Guerra, stated that the family had been really hurt by what had happened and there was a

level of devastation. Id.

       The supreme court held that none of the witnesses identified a high degree of

mental pain and distress or a substantial disruption of any particular family member’s

daily routine except for Mrs. Guerra, the decedent's widow. Id. The court concluded

“the witnesses agreed with the Guerras’ attorney that the family generally suffered

‘devastation,’ but generalized, conclusory descriptions of how an event affected a person

are insufficient evidence on which to base mental anguish damages.” Id. The court

opined that the testimony of the daughters, even when combined with testimony of other

witnesses, did not support the jury finding that the events caused a disruption of their daily

routine or a high degree of mental pain and distress. Id.

       With respect to the wife of the decedent, in Guerra, however, the court concluded

there was some evidence to support mental anguish damages.                 Id. at 233.    Her

testimony was that when she found that her late husband’s grave had been disturbed she

could not sleep at night, suffered burning in her stomach due to the stress, and sought

medical treatment for the symptoms. Id. She had headaches and confirmed to take

medication. She worried and feared about what might be done to her when she died.

Id.

       Thus, we will use Guerra as a road map in determining if the evidence in this case

supported the jury’s verdict on mental anguish.




                                             11
B. Standard of Review

         A no-evidence challenge will be sustained when “(a) there is a complete absence

of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove

a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes

the opposite of the vital fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003).     Evidence is more than a scintilla if it “rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.”          Ford Mtr. Co. v.

Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). If, however, the evidence does no more

than create a mere surmise or suspicion and is so slight as to necessarily make any

inference a guess, then it is no evidence.         Id.   We presume that jurors made all

inferences in favor of the verdict, but only if reasonable minds could do so. Jurors may

not simply speculate that a particular inference arises from the evidence. See City of

Keller v. Wilson, 168 S.W.3d 802, 821 (Tex. 2005).

C. The Testimony

         Because the jury awarded damages for mental anguish for each appellee,

individually, we will review the testimony of all of the appellees as it pertains to mental

anguish.

         1. Leticia Leal

         Leticia Leal, Rodolfo Garza’s daughter, testified that she still goes back to 1977

when her father died because of what has happened. She works for a church and

attends many funerals. She thinks about her father because he was not resting in


                                              12
peace. She indicated that she began seeing a psychologist recently, but that from 2003,

until recently, she had not seen any doctor or healthcare provider for anything concerning

the lawsuit. Leal did not state that she was seeing a psychologist because of the events

made the basis of this lawsuit. She continues to perform her work duties and takes care

for her family. Leal also testified that going through a second burial did some damage to

her, but did not elaborate on what that damage involved. She said she is in good health.

She described her family as “normal.”

         The testimony that Leal is seeing a psychologist, by itself, is not enough. First,

she does not relate it to any act by appellants. Second, while Leal stated that attending

the disinterment of her father did “some damage,” there is no direct evidence of the

nature, duration, or severity of her mental distress as required by Guerra to obtain

damages for mental anguish. Under the analysis reiterated recently by the supreme

court, in Guerra, there was legally insufficient evidence to support the jury’s award of

mental anguish with respect to Leticia Leal's claim.

         2. Frank Garza

         Frank Garza, Rodolfo’s son, described the disinterment process as something that

is not supposed to happen. He hoped that no one would disturb his father’s body again.

There was no evidence offered of the nature, duration, and severity of the mental anguish

suffered by Frank Garza as set forth in Guerra. Thus, there was legally insufficient

evidence to support the jury's award of mental anguish with respect to the claim of Frank

Garza.




                                             13
       3. Beatriz Cavazos

       Beatriz Cavazos, Rodolfo’s sister, testified that it was heartbreaking and caused

her family much grief, sleepless nights, and crying spells. She testified: “sometimes I

just sit down and just daze, look down at the floor for minutes, you know, then I just come

back and try to snap out of it.” This is similar to the daughter’s testimony in Guerra in

which she testified that she had lots of nights that she didn’t sleep because she was

thinking and it had been very difficult. Guerra, 348 S.W.3d at 232. The supreme court

decided that none of the witnesses in Guerra identified a specific high degree of mental

pain and distress or a substantial disruption of any particular family member’s daily

routine to warrant mental anguish damages. Likewise, the evidence with respect to

Beatriz Cavazos is legally insufficient to support the finding that she suffered

compensable mental anguish damages.

       4. Noe Cavazos

       Noe Cavazos, Rodolfo’s brother-in-law, testified that the two were very close.

According to Cavazos, the events that occurred left scars that you cannot get over. He

could not describe his feelings. He does not take medication for depression, anxiety, or

sleep problems and has not seen a physician for such things. He described himself as a

happy person.    We hold that the evidence with respect to Noe Cavazos is legally

insufficient to support the finding that he suffered compensable mental anguish damages.

       5. Maria Elena Cisneros

       Maria Elena Cisneros, Rodolfo’s sister, testified that she and her brother were very

close. She was devastated to learn that her brother might have to be moved because it


                                            14
was a sacred place. She cannot sleep, thinking about the injustice that has been done.

On cross-examination she testified that she has had sleep issues for many years and

takes no medication for sleeplessness. Cisneros described her family as a happy one.

Her testimony is similar to that found legally insufficient in Guerra. Thus, we hold it

legally insufficient to support the mental anguish damage award here.

       6. Evelyn Rogers

       Evelyn, Catherine Roger's daughter, testified that she found it hard to watch others

at the disinterment. She is taking Wellbutrin because of “everything that had gone on

with the disinterment,” as well as the situation with her mother and the deposition. Her

testimony, similar to the widow in Guerra, is sufficient under the supreme court’s holding

in Guerra to support an award of mental anguish.

       7. Gerald A. Rogers

       Gerald Rogers, Catherine Roger's son, testified that he has trouble sleeping. He

worries about what his mother is doing. He has to stay up with her at night. Gerald is

feeling stress but is not seeing a psychologist, psychiatrist, mental health professional,

nor is he taking any medication for stress. His testimony is legally insufficient to support

the award of mental anguish.

       8. Catherine E. Rogers

       Catherine Rogers was the widow of Charles Rogers. She did not testify at trial.

However, her son, Gerald Rogers, testified that she became worried after finding out

about the burial plots. She would be up all night. She began having an irregular heart

beat and had trouble walking. She had a pacemaker put in prior to Mr. Rogers’ death.


                                            15
Her daughter, Evelyn, testified that Catherine was devastated because she felt she had

failed her husband. Right after they told her of the problems at the cemetery, Catherine

started having more heart problems.

      The testimony of Rogers’s children with respect to Catherine Rogers’s condition is

similar to testimony that the supreme court found to be some evidence of mental anguish

in Guerra with respect to the testimony of Mrs. Guerra. In Guerra, Mrs. Guerra sought

medical treatment for the problems that she traced to the tampering with her husband’s

grave. She took medication for anxiety and depression relating to the situation involving

her husband’s burial. Here, the Rogers children testified that their mother became

worried after she learned about the burial plots. She began having additional heart

problems after they told her about the situation at the cemetery. The testimony with

respect to Catherine Rogers is legally and factually sufficient to support the award of

mental anguish damages in her favor.

      We sustain issue three with respect to all appellees except for Catherine and

Evelyn Rogers.

                                 IV. PUNITIVE DAMAGES

      In appellants’ fifth issue, they argue that the exemplary damages awarded must be

reversed in the absence of compensatory damages. Section 41.004 of the Texas Civil

Practice and Remedies Code allows exemplary damages to be awarded only if damages,

other than nominal damages, are awarded.         TEX. CIV. PRAC. & REM. CODE ANN. §

41.004(a) (West 2008). The only damages awarded here were for mental anguish,

which we have found to be supported by legally insufficient evidence, except for


                                           16
Catherine and Evelyn Rogers. However, we have also determined that the case is

barred by limitations except for the claims of Leticia Leal. Therefore, there is no basis for

an award of compensatory damages in this case. Where there is no support for actual

damages, exemplary damages also fail. Wheelways Ins. Co. v. Hodges, 872 S.W.2d

776, 783 (Tex. App.—Texarkana 1994, no writ). Appellants’ fifth issue is sustained.

            V. FRAUD CLAIMS AGAINST SERVICE CORPORATION INTERNATIONAL

       By appellants’ fourth issue, they claim that there is no legal or evidentiary basis for

recovery against appellant SCI International.       The jury found that SCI International

committed fraud against the appellees, determining that the percentage of responsibility

of SCI International was 25% and assessing punitive damages against SCI International

of $10,000 for each appellee.

A. Standard of Review

       We follow the same evidentiary standard of review iterated previously under the

mental anguish section of this opinion.

B. The Evidence

       William O’Brien, president of SCI Texas, testified that it acquired Highland

cemetery in 1995. According to O’Brien, the employees at Highland are employed by

SCI Texas.     He testified that SCI International is the parent company.          It has no

employees. According to O’Brien, all of the people in the Rio Grande Valley who worked

for any cemeteries that are associated with any type of SCI entity all work for SCI Texas.

       There was contrary testimony offered by Susano Garza who served as a family

service counselor for Highland, who testified as follows:


                                             17
       Q.     You said you worked for Service Corporation International. Actually, did
              you work for SCI Funeral Services, Inc., which is a Texas corporation?

       A.     No, no. The cemetery portion only.

       Q.     You made, as close as you can come to, the exact name or your
              employer?

       A.     Service Corporation International, SCI.

       Thus, whether he was correct or not, Susano Garza testified that SCI International

was his employer. But, the question remains whether, even assuming Susano Garza

was an employee of SCI International, his employment status was sufficient to sustain

exemplary damages against SCI International. We hold that it is not.

       The liability of SCI International was also addressed to a certain extent in Guerra.

Id. at 230–31. The Guerras introduced the same testimony of Susano Garza that we just

iterated. The supreme court did not, however, address the propriety of this testimony

except to say that it did not affect the employment status of the individuals at Mont Meta

cemetery, the cemetery at issue in Guerra. Id. The court ultimately concluded that the

evidence was legally insufficient to support the liability findings against SCI International,

primarily based upon the testimony of William O’Brien that the Mont Meta workers were

employees of SCI Texas, not SCI International. Id. at 230. Similarly, in this case,

O’Brien testified that the Highland workers, who included Susano Garza, were SCI Texas'

employees.

       Assuming Susano Garza was an employee of SCI International, however, there is

no evidence to show that he was acting in a managerial capacity to subject SCI

International to exemplary damages. See Fisher v. Carrousel Motor Hotel, Inc., 424


                                             18
S.W.2d 627, 630 (Tex. 1967). Further, the charge limits malice to the specific intent of

Ray McManness, John Hudson, Rey Rosas, or Minerva Hernandez. Thus, whether or

not Susano Garza is an employee of SCI International is of no import. The only direct

evidence offered at trial was that the other workers at Highland, including those

specifically named in the court’s charge, were employees of SCI Texas. We sustain

issue four.

                                     VI. CONCLUSION

       With respect to all appellees, except Leticia Leal, we have determined that the trial

court erred in disregarding the jury’s answer with respect to limitations as there was some

evidence before the jury to support its answer to the limitations question. Thus, as to all

appellees, other than Leticia Leal, we conclude that their causes of action were barred by

limitations. There was also legally insufficient evidence of mental anguish to support the

jury’s award of mental anguish to all appellees, except Catherine and Evelyn Rogers.

Because there was legally insufficient evidence to support an award of actual damages,

the jury’s award of exemplary damages must also be reversed and rendered. For the

foregoing reasons the judgment of the trial court is reversed and rendered as to all

appellees.



                                                 ROSE VELA
                                                 Justice

Dissenting Memorandum Opinion
By Justice Benavides

Delivered and filed the
11th day of October, 2012.

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