Stacey Dorfman Kivowitz, Samuel Grant Dorfman, SCI Texas Funeral Services, LLC D/B/A Sparkman/Hillcrest Funeral Home and D/B/A Hillcrest Mausoleum and Memorial Park v. Louis Dorfman, Sr. ( 2022 )

Reverse and Render and Opinion Filed October 21, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00101-CV
STACEY DORFMAN KIVOWITZ, SAMUEL GRANT DORFMAN,
AND SCI TEXAS FUNERAL SERVICES, LLC
D/B/A SPARKMAN/HILLCREST FUNERAL HOME
AND D/B/A HILLCREST MAUSOLEUM AND MEMORIAL PARK,
Appellants
V.
LOUIS DORFMAN, SR., Appellee
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-13563
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Smith
Opinion by Justice Osborne
This case arises from appellee Louis Dorfman, Sr.’s request to SCI Texas
Funeral Services, LLC d/b/a Sparkman/Hillcrest Funeral Home and d/b/a Hillcrest
Mausoleum and Memorial Park (“Hillcrest”) to remove his deceased parents’
remains from mausoleum crypts on Hillcrest’s property. The trial court rendered
judgment for appellee in his suit for declaratory relief and awarded him $191,254.95
in attorney’s fees from Hillcrest. In two issues, Hillcrest contends the trial court’s
judgment contravenes Chapter 711 of the Texas Health and Safety Code and the
attorney’s fees award is not equitable or just. Appellants Stacey Dorfman Kivowitz
and Samuel Grant Dorfman, third-party defendants in the trial court, also assert six
issues challenging the trial court’s judgment.
For the reasons that follow, we sustain Hillcrest’s first issue. We also sustain
Stacey Dorfman Kivowitz and Samuel Grant Dorfman’s first issue, concluding that
a release agreement in a previous lawsuit bars appellee Louis Dorfman Sr.’s claims
here. We pretermit discussion of other issues unnecessary to our disposition. We
reverse the trial court’s judgment and render judgment that appellee take nothing on
his claims.
BACKGROUND
Louis1 is the only living child of decedents Samuel Yandell Dorfman, Sr. and
his wife Elizabeth F. Dorfman (“Decedents”). Stacey and Grant are the adult
children of Louis’s deceased brother, Samuel Yandell Dorfman, Jr. and the
grandchildren of Decedents.
After their father’s death in September 2014, Stacey and Grant purchased a
mausoleum crypt at Hillcrest for his interment. Around the same time, they
purchased interment rights for the Decedents to be interred in mausoleum crypts at
Hillcrest next to their father’s. They made arrangements to transfer the Decedents’
1
We refer to Dorfman family members by their first names for clarity.
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remains from their then-existing resting place at Restland Funeral Home and
Cemetery. In the process, Stacey represented to Hillcrest that she had the rights of
interment with respect to Decedents’ remains. She signed two interment orders and
authorization documents in which she represented to Hillcrest that she was the
Decedents’ legal next-of-kin and had the full legal authority to direct the interment
of their remains.
In accordance with Stacey’s authorization, the Decedents’ remains were
transferred to Hillcrest in September 2015. It is not disputed that at the time of the
transfer, Hillcrest was not aware that Louis was Decedents’ sole surviving adult
child and statutory next-of-kin with respect to the disposition of Decedents’ remains.
Louis contends he learned of the transfer in January 2017; Stacey and Grant
contend they discussed the transfer with Louis after Samuel, Jr.’s death in 2014. It
is not disputed, however, that Louis was aware of the transfer before he signed a
settlement agreement in a previous lawsuit in which he was plaintiff and Grant and
Stacey were defendants (“the 2017 Lawsuit”).
In the 2017 Lawsuit, Louis pleaded:
The Re-interment
21. Without Louis’s knowledge or consent, Grant and Stacey arranged
by deceit and misrepresentations to disinter the remains of Louis’s
parents from Restland Memorial Park and transfer them to the
Sparkman-Hillcrest Memorial Park. Because only the next-of-kin can
authorize such a transfer and they did not wish to alert Louis that his
parents’ remains were being transferred, Grant and Stacey signed forms
that falsely represented to Restland and the Texas Department of Health
that there were no living relatives, including Louis, who preceded them
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in degree of kindred. When they signed those forms, they knew they
would be sent to state authorities and relied upon to obtain permits for
Louis’s parents’ disinterment, transfer, and reinterment. Grant and
Stacey also knew that the statements they had made were false. They
obviously knew that Louis was his parents’ only living child and,
therefore, their next of kin.
22. Grant and Stacey also re-interred Louis’s parents with Sam in
between them, defying their wishes to be buried together. This
configuration also willfully defied Sam’s wishes, as expressed in his
Will, to have his longtime girlfriend buried next to him.
23. In September 2015, shortly after Louis’s parents were transferred
from Restland to Sparkman-Hillcrest, a process that took roughly a year
to complete, Grant and Stacey held a ceremony to commemorate the
one-year anniversary of Sam’s death and to recognize the re-burial of
Louis’s parents next to Sam. Grant and Stacey never informed Louis
that this ceremony was taking place and Louis did not learn about it
until long after it occurred.
24. In January 2017, Louis’s son, Mark, notified Louis that his parents’
remains had been transferred from Restland to Sparkman-Hillcrest,
which came as shocking news to Louis and caused him to suffer great
emotional distress and anguish.
Based on these facts, Louis pleaded causes of action in the 2017 Lawsuit for
wrongful disinterment and intentional infliction of emotional distress, relying on
sections 711.004 and 711.052 of the Texas Health and Safety Code.
The parties settled the 2017 Lawsuit by a March 23, 2018 “Settlement
Agreement and Mutual Release” (the “Release”). The Release was signed by Louis,
Stacey, Grant, and others, and it included provisions regarding Stacey’s and Grant’s
transfer of their grandparents’ remains:
WHEREAS, Louis contended in the Lawsuit, among other things, that
Grant and Stacey arranged to transfer the remains of his parents to a
different cemetery in Dallas and Louis also alleged that this transfer
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took place without his knowledge, consent, or approval, which caused
him to suffer emotional distress;
WHEREAS, the Parties agreed to settle their claims and the Lawsuit
and to fully resolve, settle, and dispose of all claims, litigation, and
disputes between them (whether known or unknown) . . . .
NOW, THEREFORE, . . . the Parties . . . do hereby agree to
compromise and settle their disputes as follows: . . .
8. Release by Louis. . . . Louis . . . does hereby compromise, settle, quit
claim, waive, fully release, and forever discharge, Grant, Stacey [and
others] . . . of and from all claims, demands, controversies, actions,
debts, damages, obligations, liabilities, costs, fees and/or causes of
action of any kind that Louis has asserted or could have asserted in the
Lawsuit . . . . This release is therefore a full, final release and discharge
by Louis of the Lawsuit, including but not limited to a release of all
claims he could have filed in the Lawsuit against Grant, Stacey, [and
others], relating in any way to . . . (iv) the transfer, disposition, or
handing of the remains of Louis’ parents. This release is intended to
include a release of all claims, whether known or unknown by Louis at
the time of settlement against Grant, Stacey [or others], whether these
claims are fixed or contingent, liquidated or unliquidated, accrued or
unaccrued, asserted or unasserted, past, present and future, and which
Louis has, or ever had, owned or assigned. Louis hereby further
covenants not to sue Grant, Stacey [or named others] . . . for any and
all claims, causes of action, debts, or other demands that are released
by the terms of this Settlement Agreement. . . . [Emphasis added]
The Release was mutual; it included Stacey’s and Grant’s release of all claims
against Louis “relating in any way” to “the transfer, disposition or handling of the
remains of Louis’ parents.”
Next, Louis filed suit in June 2018 against Restland for the improper transfer
of Decedents’ remains. That lawsuit was ultimately settled and dismissed in May
2019 after a jury awarded Louis $200,000 in mental anguish damages from Restland.
Although Stacey and Grant were not parties to the lawsuit, they were included in the
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jury charge, and the jury found that they were negligent and committed fraud against
Louis. The jury made only a negligence finding against Restland.
Louis then filed this lawsuit against Hillcrest in August, 2019. Complaining
that Hillcrest, despite Louis’s demands, “still requires a court order declaring that
[Louis] has the right to remove his parents’ remains from the mausoleum and crypts
where they are buried notwithstanding his niece and nephew’s refusal to consent to
that removal,” Louis sought declarations that:
a. “he has the absolute legal right to control the disposition of his parents’
remains” and “must be permitted to remove and transfer those remains”
“notwithstanding any objections” by Stacey or Grant, and
b. all contracts between Sparkman and Stacey and/or Grant regarding
Decedents’ remains are void.
Louis also pleaded for “attorneys’ fees, damages, and court costs.”
Hillcrest answered and sought a declaratory judgment “as to the individual(s)
who have the right to control the location of Decedents’ remains under the applicable
documents and Texas statutory law.” Asserting a counterclaim against Louis and a
third party claim against Stacey and Grant, Hillcrest alleged that the parties had
competing claims to the remains and Hillcrest could not comply with them both.
Hillcrest contended it could not follow Stacey and Grant’s direction to leave
Decedents’ remains in their current location “without being sued by” Louis, the next-
of-kin “who has the right to control” disposition of the remains. But “[a]t the same
time, [Hillcrest] cannot abide by [Louis’s] requests for removal of Decedents’
remains without [Stacey and Grant’s] consent under Texas statutory law requiring
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the plot owner’s consent for such action.” Hillcrest concluded, “This state of affairs,
occasioned solely by a family dispute over which [Hillcrest] has no control, and
which [Hillcrest] cannot resolve, is untenable and inequitable to [Hillcrest].”
Both Louis and Hillcrest moved for summary judgment, and Stacey and Grant
responded. The trial court granted summary judgment for Louis and subsequently
awarded attorney’s fees against Hillcrest.
In its Amended Final Judgment rendered on January 12, 2021, the trial court
granted declaratory relief to Louis:
a. voiding Hillcrest’s contract with Stacey and Grant2 to the extent it
dispossessed Louis of his rights regarding his parents’ remains,
b. declaring that Louis “has the absolute legal right to control the
disposition of his parents’ remains” and “must be permitted to remove
and transfer those remains” “notwithstanding any objections [Stacey
and Grant] have made to that removal and transfer,” and
c. declaring that none of Louis’s parents’ relatives or descendants shall be
permitted to remove Louis’s parents’ remains after Louis re-inters
them.
The trial court also awarded additional attorney’s fees against Hillcrest for
amounts Louis incurred responding to Stacey and Grant’s plea to the jurisdiction and
motion to reconsider the summary judgment order. In its final judgment, the trial
court awarded Louis a total of $191,254.95 in attorney’s fees from Hillcrest
2
The Amended Final Judgment recites that Hillcrest, Stacey, and Grant reached a settlement in October
2020 that resolved all of Hillcrest’s claims against Stacey and Grant.
–7–
“incurred in pursuit of the declaratory relief granted him” and an additional $75,000
in conditional appellate fees. This appeal followed.
In two issues, Hillcrest contends the trial court erred by rendering judgment
for Louis because (1) Louis’s declaratory judgment action circumvented the
applicable health and safety code provisions, and (2) the award of attorney’s fees is
not equitable and just where Hillcrest’s actions were in strict accordance with section
711.004 of the health and safety code.
In six issues, Stacey and Grant contend (1) the trial court’s summary judgment
was error because Louis released his claim in a previous lawsuit and filed his claim
after limitations expired, (2) the trial court lacked subject matter jurisdiction, (3) the
trial court’s declarations grant more relief than Louis requested as well as violating
the rule against perpetuities and the health and safety code, (4) the trial court erred
by granting summary judgment, (5) the trial court erred by awarding attorney’s fees
when the summary judgment should not have been granted and the fees awarded
were not equitable and just, and (6) the trial court erred by ruling that Stacey and
Grant lacked standing to seek reconsideration of the interlocutory summary
judgment order and to pursue their plea to the jurisdiction.
STANDARDS OF REVIEW
We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When reviewing a traditional summary
judgment motion, we must determine whether the movant met its burden to establish
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that (1) no genuine issue of material fact exists, and (2) the movant is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). If the movant carries this burden,
the burden shifts to the nonmovant to raise a genuine issue of material fact
precluding summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex.
2018). We take evidence favorable to the nonmovant as true, and we indulge every
reasonable inference and resolve every doubt in the nonmovant’s favor. Ortiz v. State
Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019).
When both parties move for summary judgment, an appellate court is to
review the summary judgment evidence of both parties, determine all questions
presented, and either render the judgment that the trial court should have rendered
or remand if neither party met its summary judgment burden. See FM Props.
Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Learners Online,
Inc. v. Dallas Indep. Sch. Dist., 333 S.W.3d 636, 640–41 (Tex. App.—Dallas 2009,
no pet.).
We review the trial court’s decision to award attorney’s fees under the
Declaratory Judgments Act for abuse of discretion, “subject to the requirements that
any fees awarded be reasonable and necessary, which are matters of fact, and to the
additional requirements that fees be equitable and just, which are matters of law.”
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). “It is an abuse of discretion for
a trial court to rule arbitrarily, unreasonably, or without regard to guiding legal
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principles, or to rule without supporting evidence.” Id. (citations omitted). In
reviewing an award of attorney’s fees under the Declaratory Judgments Act, we
“must determine whether the trial court abused its discretion by awarding fees when
there was insufficient evidence that fees were reasonable and necessary, or when the
award was inequitable or unjust.” Id. “Unreasonable fees cannot be awarded, even
if the court believed them just, but the court may conclude that it is not equitable or
just to award even reasonable and necessary fees.” Id.APPLICABLE LAW
Section 711.004 of the Texas Health and Safety Code governs removal of
interred remains from a cemetery plot. Interred remains may be removed from a
crypt only with the written consent of both the owner of the interment rights in the
crypt and the individuals listed in the priority set forth in the statute. TEX. HEALTH
& SAFETY CODE § 711.004. Subsection (a) provides:
(a) Remains interred in a cemetery may be removed from a plot in
the cemetery with the written consent of the cemetery
organization operating the cemetery and the written consent of
the current plot owner or owners and the following persons, in
the priority listed:
(1) the decedent’s surviving spouse;
(2) the decedent’s surviving adult children;
(3) the decedent’s surviving parents;
(4) the decedent’s adult siblings; or
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(5) the adult person in the next degree of kinship in the order
named by law to inherit the estate of the decedent.
TEX. HEALTH & SAFETY CODE § 711.004(a).
“If the consent required by Subsection (a) cannot be obtained, the remains
may be removed by permission of a county court of the county in which the cemetery
is located.” Id. § 711.004(c). Before applying to the court, however, “notice must be
given to” (1) the cemetery organization operating the cemetery where the remains
are interred, (2) “each person whose consent is required for the removal of the
remains under Subsection (a),” and (3) “any other person or entity that the court
subsequently requires to be served.” Id.
In his original petition, Louis cited health and safety code section 711.002 to
support his contention that “[a]s his parents’ only surviving adult child, he has the
absolute authority to control the disposition of their remains under Texas law.” That
section, entitled “Disposition of Remains; Duty to Inter,” grants specified persons
the right to control the disposition of a decedent’s remains but also imposes a
corresponding obligation to pay the reasonable cost of interment. TEX. HEALTH &
SAFETY CODE § 711.002(a). As relevant here, subsection (a) provides that “the
following persons, in the priority listed, have the right to control the disposition,
including cremation, of the decedent’s remains, shall inter the remains, and . . . are
liable for the reasonable cost of interment: . . . (3) any one of the decedent’s
surviving adult children; . . . (7) any adult person in the next degree of kinship in
the order named by law to inherit the estate of the decedent.” Id.
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At the time Louis filed his petition, subsection (k) of section 711.002 provided
that “[a]ny dispute among any of the persons listed in Subsection (a) concerning
their right to control the disposition, including cremation, of a decedent’s remains
shall be resolved by a court of competent jurisdiction.”3 Subsection (k) also provides,
“A cemetery organization or funeral establishment shall not be liable for refusing to
accept the decedent’s remains, or to inter or otherwise dispose of the decedent’s
remains, until it receives a court order or other suitable confirmation that the dispute
has been resolved or settled.” Id. § 711.002(k).
Sections 711.002 and 711.004 do not include any provisions regarding
attorney’s fees. See id. §§ 711.002, 711.004.
Section 711.052 provides criminal penalties for certain violations of Chapter
711’s provisions. Id. § 711.052. Subsection 711.052(a)(6) provides that a “person”4
who “removes remains from a plot in a cemetery operated by a cemetery
organization without complying with Section 711.004” commits an offense. An
offense under subsection 711.052(a)(6) is a felony of the second degree. Id.
§ 711.052(d).
3
The first sentence of subsection (k) was amended in 2019 to provide that disputes shall be resolved
by a court “with jurisdiction over probate proceedings for the decedent, regardless of whether a probate
proceeding has been initiated.” Because Louis filed his petition the day before amendment’s effective date,
the former language applies. See Act of May 25, 2019, 86th Leg., R.S., ch. 807, § 1, 2019 Tex. Gen. Laws
2266 (current version at TEX. HEALTH & SAFETY CODE § 711.002(k)).
4
“Person” is defined in subsection 711.052(a) as “an individual, firm, association, corporation, or
municipality, or an officer, agent, or employee of an individual, firm, association, corporation, or
municipality.” TEX. HEALTH & SAFETY CODE § 711.052(a).
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DISCUSSION
We first consider the trial court’s award of attorney’s fees against Hillcrest
before turning to the court’s declarations regarding the Decedents’ remains. Caught
between competing demands and mindful of its statutory and contractual
obligations, Hillcrest filed a counterclaim and third-party claim5 seeking “a
declaratory judgment and determination as to the individual(s) who have the right to
control the location of Decedents’ remains, under the applicable documents and
Texas statutory law, and to instruct and direct [Hillcrest] and other third parties with
respect thereto.” Hillcrest took no position regarding appropriate disposition of the
Decedents’ remains.
No party alleged or offered summary judgment evidence that Hillcrest
engaged in any wrongful conduct itself or was aware of any wrongful conduct by
any of the parties at the time Hillcrest accepted the transfer of Decedents’ remains.
The trial court’s judgment, however, recites that “equity and justice require” that
Louis recover $191,254.95 in “reasonable and necessary” attorneys’ fees against
Hillcrest.
5
We note that, contrary to Louis’s contention, Hillcrest was not required to file suit in the first instance.
Neither section 711.002 nor 711.004 requires a cemetery organization to initiate suit. And each section
contemplates notice to the cemetery organization when other parties initiate suit or obtain a court order.
See, e.g., TEX. HEALTH & SAFETY CODE §§ 711.002(k); 711.004(c)(1). As a practical matter, decisions
when and how to request judicial determinations of family disputes in such highly sensitive matters are
often best left to the families themselves, as the statute permits.
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1. Attorney’s fees award under Declaratory Judgments Act
In its first issue, Hillcrest contends a party may not “circumvent the statutory
limitations of Section 711 of the Texas Health and Safety Code through a declaratory
judgment action” to obtain attorney’s fees and argues that the trial court erred by
granting summary judgment for Louis on this ground. There is no provision for
attorney’s fees in either section 711.002 or section 711.004.
Hillcrest cites MBM Financial Corp. v. Woodlands Operating Co., L.P., 292
S.W.3d 660 (Tex. 2009), in support of its argument. In that case, the supreme court
held that “a party cannot use the [Declaratory Judgments] Act as a vehicle to obtain
otherwise impermissible attorney’s fees.” Id. at 669. The court first concluded that
there was no evidence to support the nominal damages awarded by the trial court
and rendered a take-nothing judgment on the plaintiff’s breach of contract claim. Id.
at 666. Without an award of actual damages, attorney’s fees were not available under
Chapter 38 of the civil practice and remedies code. Id. at 670; see TEX. CIV. PRAC.
& REM. CODE § 38.001(b)(8) (party may recover reasonable attorney’s fees in
addition to amount of valid claim and costs if claim is for oral or written contract).
The court then considered whether attorney’s fees were nevertheless available under
the Declaratory Judgments Act in Chapter 37. See TEX. CIV. PRAC. & REM. CODE
§ 37.009 (court may award “reasonable and necessary attorney’s fees as are
equitable and just”).
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The court concluded that even though declaratory relief was proper, it did not
support the fees awarded by the trial court. MBM Fin. Corp., 292 S.W.3d at 667–70.
The court explained,
Yet while declaratory relief may be obtained under the Act in . . . these
circumstances, that does not mean attorney’s fees can too. Texas has
long followed the “American Rule” prohibiting fee awards unless
specifically provided by contract or statute. By contrast, the Declaratory
Judgments Act allows fee awards to either party in all cases. If
repleading a claim as a declaratory judgment could justify a fee award,
attorney’s fees would be available for all parties in all cases. That would
repeal not only the American Rule but also the limits imposed on fee
awards in other statutes. Accordingly, the rule is that a party cannot use
the Act as a vehicle to obtain otherwise impermissible attorney’s fees.
Id. at 669 (footnotes omitted). The court further explained that “granting fees under
Chapter 37 when they are not permitted under the specific common-law or statutory
claims involved would violate the rule that specific provisions should prevail over
general ones.” Id. at 670. The court concluded that where the plaintiff could not
recover attorney’s fees under Chapter 38, it could not recover the same fees under
Chapter 37. Id. “Allowing [plaintiff] to recover the same fees under Chapter 37
would frustrate the provisions and limitations of the neighboring chapter in the same
code.” Id.
Quoting MBM Financial Corp., the court in Etan Industries, Inc. v. Lehmann
explained, “[w]e have held that simply repleading a claim as one for a declaratory
judgment cannot serve as a basis for attorney’s fees, since such a maneuver would
abolish the American Rule and make fees ‘available for all parties in all cases.’”
Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 624 (Tex. 2011) (per curiam)
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(quoting MBM Fin. Corp., 292 S.W.3d at 669). The court continued, “[w]hen a claim
for declaratory relief is merely ‘tacked onto’ statutory or common-law claims that
do not permit fees, allowing the UDJA to serve as a basis for fees ‘would violate the
rule that specific provisions should prevail over general ones.’” Id. (quoting MBM
Fin. Corp., 292 S.W.3d at 670). “The declaratory judgment claim must do more
‘than merely duplicate the issues litigated’” under other claims. See id. (quoting
MBM Fin. Corp., 292 S.W.3d at 670).
Louis distinguishes MBM Financial Corp. on the ground that he filed this
lawsuit as a declaratory judgment action from the outset, seeking the two
declarations in his original petition we have discussed. Nonetheless, Louis’s right to
control the disposition of his parents’ remains is controlled by health and safety code
section 711.002, as he recognized in his original petition against Hillcrest. Citing
section 711.002,6 Louis pleaded that “[a]s his parents’ only surviving adult child, he
has the absolute authority to control the disposition of their remains under Texas
law.” He argues in his appellate brief that he “assert[ed] just one, narrow claim for
declaratory judgment” in this lawsuit “as the next-of-kin with the ‘exclusive’ and
‘absolute authority to control the disposition of [Decedents’] remains under Texas
law’—specifically, Section 711.002 of the Texas Health and Safety Code.”
6
Although Louis cited civil practice and remedies code section 711.002 in his petition, it is clear from
the context that he was relying on the health and safety code. The civil practice and remedies code has no
section 711.002.
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Further, section 711.004 sets forth the written consents that are required
before interred remains may be removed from a cemetery plot, as Louis seeks to do.
Louis argues that section 711.004 does not apply here because it “necessarily
presumes that the remains were legally placed in that plot to begin with.” He argues
that applying section 711.004 would confer “legally cognizable rights” on “grave
robber[s].” Section 711.004’s written consent requirements, however, protect and
enforce the rights and obligations of three parties: the cemetery organization, the
current plot owner, and the decedent’s family members in the listed priority. See
TEX. HEALTH & SAFETY CODE § 711.004(a). If the required written consent cannot
be obtained, the statute provides that remains may be removed by permission of a
court. Id. § 711.004(c). Contrary to Louis’s contention, section 711.004’s
requirements protect family members in his position from unfounded claims.
The trial court’s judgment provides that “the Court’s issuance of declaratory
relief to Plaintiff also mooted any relief Plaintiff might seek under any alternative
cause of action under TEX. HEALTH & SAFETY CODE § 711.004(c).” Here, however,
section 711.004 was not an “alternative cause of action”; it was the specific statutory
provision governing the subject of Louis’s claims, that is, his right to remove interred
remains from a cemetery plot. See id. § 711.104; see also id. § 711.102(k) (any
dispute among persons listed in subsection (a) “concerning their right to control the
disposition” of a decedent’s remains shall be resolved by a court of competent
jurisdiction; cemetery organization “shall not be liable” for refusing to inter, accept,
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or otherwise dispose of remains “until it receives a court order or other suitable
confirmation that the dispute has been resolved or settled”).
We conclude that Louis cannot recover attorney’s fees against Hillcrest under
the Declaratory Judgments Act,7 see MBM Fin. Corp., 292 S.W.3d at 670, and the
trial court erred by ruling otherwise. See FM Props. Operating Co., 22 S.W.3d at
872. We sustain Hillcrest’s first issue. Given this disposition, we need not address
Hillcrest’s second issue contending that the trial court’s award of attorney’s fees was
not equitable or just under civil practice and remedies code section 37.009.
2. Release of claims against Stacey and Grant
In their first issue, Stacey and Grant argue that the trial court erred by granting
summary judgment on Louis’s declaratory judgment claim despite summary
judgment evidence establishing that Louis has released “all claims, litigation, and
disputes . . . (whether known or unknown),” against Stacey and Grant “relating in
any way to . . . (iv) the transfer, disposition, or handing of the remains of Louis’
parents.” In response, Louis argues (1) Stacey and Grant lack standing to appeal the
trial court’s judgment against Hillcrest, (2) Stacey and Grant failed to plead release
as an affirmative defense to Louis’s claims, (3) Hillcrest was not a party to the
Release, and (4) the Release was not broad enough to encompass Louis’s claims in
7
Louis argues that Hillcrest, too, pleaded for its attorney’s fees under both Chapter 37 and Chapter 38.
But the availability of fees here is not determined by the parties’ pleadings, and in any event, the trial court
did not award any fees to Hillcrest.
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this lawsuit for a declaration of his right to control the disposition of his parents’
remains. We disagree with each of these contentions.
Louis argues that Stacey and Grant lack standing to appeal the trial court’s
judgment “on a claim that is not against them.”8 Because the judgment prejudices
Stacey’s and Grant’s interests, however, they have standing to appeal it. See
NXCESS Motor Cars, Inc. v. JPMorgan Chase Bank, N.A., 317 S.W.3d 462, 465–
66 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (appellant had standing to
appeal where judgment effectively voided appellant’s contracts with other parties,
even though appellant was not a party to the summary judgment proceedings). In
addition, the Declaratory Judgments Act requires that “[w]hen declaratory relief is
sought, all persons who have or claim any interest that would be affected by the
declaration must be made parties.” TEX. CIV. PRAC. & REM. CODE § 37.006(a).
The trial court’s judgment expressly declares that any contracts between
Hillcrest, Stacey, and Grant “are void and/or invalid” insofar as “they dispossessed
[Louis] of his rights to control the disposition and final resting place of his parents’
remains or purport to allow [Stacey and Grant] to have any rights to exercise control
or the withholding of consent to the transfer of those remains as directed by [Louis].”
The trial court’s judgment also expressly declares that Louis “has the absolute legal
right to control the disposition of his parents’ remains and final resting place”
8
Before briefing or submission of this appeal, Louis filed a motion to dismiss Stacey and Grant’s appeal
on the ground that they lacked standing. We denied this motion by order of June 29, 2021.
–19–
“notwithstanding any objections” by Stacey or Grant to that removal and transfer.
Further, Stacey and Grant, as the Decedents’ “relatives or descendants,” are
prohibited from removing Decedents’ remains from the location chosen by Louis.
We conclude the trial court’s order prejudiced Stacey’s and Grant’s interests.
Accordingly, they have standing to appeal. See NXCESS Motor Cars, Inc., 317
S.W.3d at 466.9
Louis next responds that release is an affirmative defense that must be pleaded
by a defendant “in answer to the petition asserting the claim it seeks to defeat/avoid
via release.” Louis argues that Hillcrest, the defendant, did not plead release. He
contends that Stacey and Grant were not “defendants” and did not plead release in
response to any of Louis’s claims. He contends that Stacey’s and Grant’s pleadings
only raised the defense as to Hillcrest’s claims against them, and those claims were
settled before the trial court rendered its final judgment.
9
In the cases Louis cites in support of his argument that Stacey and Grant lack standing, no appellant
complained of a ruling specifically prejudicing its interests. See, e.g., Humeniuk v. Tex. Health Res., No.
05-08-00912-CV, 2010 WL 1136499, at *2 (Tex. App.—Dallas Mar. 26, 2010, no pet.) (mem. op.) (no
standing where appellants had not suffered any legal injury from the errors alleged on appeal); Henderson
Edwards Wilson, L.L.P. v. Toledo, 244 S.W.3d 851, 855 (Tex. App.—Dallas 2008, no pet.) (potential
settlement credit in separate lawsuit did not create justiciable interest in suit on contract to which appellant
was not a party); Qaddura v. Indo-Euro. Foods, Inc., 141 S.W.3d 882, 893 (Tex. App.—Dallas 2004, pet.
denied) (dismissal of party who was not served did not affect appellant’s rights). In Gore Family Ltd. P’ship,
Ltd. v. Gore, No. 01-17-00165-CV, 2018 WL 3384554, at *2 (Tex. App.—Houston [1st Dist.] July 12,
2018, no pet.) (mem. op.), also relied on by Louis, the court distinguished its opinion in NXCESS Motor
Cars, Inc. that we have cited above. In Gore, the appellant was no longer a party of record at the time the
trial court rendered final judgment, and “any conceivable concern of prejudice” was alleviated by the
Declaratory Judgment Act’s provision that a declaratory judgment does not prejudice nonparties. Id. (citing
TEX. CIV. PRAC. & REM. CODE § 37.006(a)). Here, in contrast, Stacey and Grant’s interests are expressly
addressed in and adjudicated by the trial court’s judgment despite their settlement with Hillcrest.
–20–
Stacey and Grant, however, both pleaded the affirmative defense of release.
Their summary judgment response and evidence made clear that they were relying
on the Release to bar Louis’s claims—and hence Hillcrest’s claims, to the extent
Hillcrest pleaded that Louis has the right to control disposition of Decedents’
remains—in this lawsuit. Stacey and Grant opposed Louis’s summary judgment
motion on the ground that Louis’s “claim is barred by release,” filing a copy of the
Release with their response. Louis replied, specifically arguing that the Release “did
not release Louis’s declaratory-judgment action against Hillcrest and cannot be used
as a defense to that action.” We conclude that Stacey’s and Grant’s pleadings were
sufficient to raise the issue that Louis’s Release barred his claims in this lawsuit. See
Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 18–19 (Tex. App.—San
Antonio 1998, no pet.) (employer’s pleading of release sufficiently raised the issue
for employees who pleaded they were acting in course and scope of employment).
Louis next argues that the Release does not bar his claims against Hillcrest
because Hillcrest is not a party to the Release. Louis sought relief only against
Hillcrest in his original petition. But in order to grant Louis the relief he sought from
the trial court—in part, “a declaration that any contracts between [Hillcrest], on the
one hand, and Stacey Kivowitz and/or Grant Dorfman, on the other . . . are void”—
the trial court was required to adjudicate claims that Louis had released in 2018. See
TEX. CIV. PRAC. & REM. CODE § 37.006(a) (when declaratory relief is sought, all
–21–
persons who have or claim any interest that would be affected by the declaration
must be made parties).
Louis released Stacey and Grant from “all claims, demands, controversies,
actions, debts, damages, obligations, liabilities, costs, fees and/or causes of action of
any kind that Louis has asserted or could have asserted in the [2017] Lawsuit,
whether directly or derivatively,” “relating in any way to . . . the transfer,
disposition, or handling of the remains of Louis’s parents.” Louis’s claim against
Hillcrest is wholly dependent on claims against Stacey and Grant that he has
released. See Vera, 989 S.W.2d at 18–19 (son’s claims against car dealership that
were wholly dependent on his father’s released claims were barred by father’s
release).
We also conclude that the Release encompasses Louis’s claims in this lawsuit.
Louis argues the 2017 Lawsuit was “primarily a dispute regarding Appellee’s,
Stacey’s and Grant’s respective ownership of mineral interests,” and accordingly,
the “key terms of the settlement” addressed those matters. He argues that the Release
addressed only his emotional distress caused by the removal and transfer of
Decedents’ remains without his permission, not his “right to control the disposition
of his parents’ remains” or “Hillcrest’s obligation to follow his dis- or reinterment
instructions.” The Release, however, is not limited to Louis’s emotional distress. We
have quoted its broad language releasing “all claims” “relating in any way” to the
“transfer, disposition, or handling” of his parents’ remains. See Schomburg v. TRW
–22–
Vehicle Safety Sys., Inc., 242 S.W. 3d 911, 913 (Tex. App.—Dallas 2008, pet.
denied) (“A release is a complete bar to any later action based upon matters covered
in the release.”).
As the trial court’s summary judgment orders and final judgment recognize,
Louis cannot obtain the relief he seeks—a declaration of his “absolute legal right to
control the disposition of his parents’ remains”—without also obtaining relief
against Stacey and Grant. That relief requires voiding their contracts with Hillcrest
and enjoining them from exercising any future rights regarding their grandparents’
interment. Louis, however, already sought and obtained relief against Stacey and
Grant and signed mutual releases of all claims relating to “the transfer, disposition,
or handling of the remains of Louis’ parents.” This is the same relief he requested
and obtained in this lawsuit; the trial court’s judgment declares that Louis “has the
absolute legal right to control the disposition of his parents’ remains and final resting
place and therefore must be permitted to remove and transfer those remains . . .
notwithstanding any objections [Stacey and Grant] have made to that removal and
transfer.” Although Louis attempted to plead his claim only against Hillcrest, the
relief he sought and obtained here was against Stacey and Grant.
Accordingly, we sustain the portion of Stacey and Grant’s first issue
challenging the trial court’s judgment on the ground that Louis has released the
claims he has asserted in this lawsuit. Given this disposition, we pretermit discussion
of Stacey and Grant’s remaining issues. See TEX. R. APP. P. 47.4. We render
–23–
judgment that Louis’s claims for relief are denied. See FM Props. Operating Co., 22
S.W.3d at 872.
CONCLUSION
We reverse the trial court’s judgment and render judgment that appellee’s
claims for relief are denied. See TEX. R. APP. P. 43.3.10
/Leslie Osborne//
210101f.p05 LESLIE OSBORNE
JUSTICE
10
“When reversing a trial court’s judgment, the court must render the judgment the trial court should
have rendered” except when remand is necessary for further proceedings or for a new trial in the interests
of justice. TEX. R. APP. P. 43.3.
–24–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
STACEY DORFMAN KIVOWITZ, On Appeal from the 14th Judicial
SAMUEL GRANT DORFMAN, District Court, Dallas County, Texas
AND SCI TEXAS FUNERAL Trial Court Cause No. DC-19-13563.
SERVICES, LLC D/B/A Opinion delivered by Justice
SPARKMAN/HILLCREST Osborne. Justices Schenck and Smith
FUNERAL HOME AND D/B/A participating.
HILLCREST MAUSOLEUM AND
MEMORIAL PARK, Appellants
No. 05-21-00101-CV V.
LOUIS DORFMAN, SR., Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and judgment is RENDERED that:
Appellee Louis Dorfman, Sr.’s requests for declaratory relief and
attorney’s fees are denied, and appellee Louis Dorfman, Sr. shall take
nothing on his claims in this lawsuit.
It is ORDERED that appellants Stacey Dorfman Kivowitz, Samuel Grant
Dorfman, and SCI Texas Funeral Services, LLC d/b/a Sparkman/Hillcrest Funeral
Home and d/b/a Hillcrest Mausoleum and Memorial Park recover their costs of this
appeal from appellee Louis Dorfman, Sr.
Judgment entered this 21st day of October, 2022.
–25–