X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:SCI Texas Funeral Services, Inc., Professional Funeral Associates, Inc., SCIT Holdings, Inc., SCI Funeral Services, Inc., and Service Corporation International (collectively “SCI”) appeal from a class certification order. David Hijar, Lupe Wiebel, and Patricia Villegas each purchased goods and services from SCI-affiliated funeral homes in El Paso. Hijar filed suit alleging state law claims on behalf of himself and a class for fraud, negligent misrepresentation, deceptive trade practices, and civil conspiracy. These allegations were based on SCI’s violation of the state and federal Funeral Rule. Wiebel and Villegas later joined the suit and the plaintiffs added a cause of action based upon violations of the Texas Occupations Code. SCI sought summary judgment, contending that the Funeral Rule only applies to cash advance items and does not apply to all goods and services obtained from third parties. In his fifth amended petition, Hijar abandoned the fraud, negligent misrepresentation and deceptive trade causes of action. He added a cause of action for breach of contract arising from SCI’s violation of the Funeral Rule. In that petition, he sought injunctive relief and damages. Hijar also filed a motion for summary judgment. The trial court denied SCI’s motion and granted partial summary judgment in favor of Hijar. Following the entry of the partial summary judgment, Hijar filed a sixth amended petition which added a cause of action for restitution based on an illegal contract. On Jan. 21, 2005, the trial court entered the findings against SCI for discovery violations. Wiebel and Villegas were subsequently added as plaintiffs in a seventh amended petition, but the causes of action remained the same as in the sixth. Following a hearing, the trial court entered an order certifying the class. HOLDING:The court reverses the certification order and renders judgment dismissing the breach of contract, illegal contract and civil conspiracy claims; the only cause of action remaining in the trial court is the appellees’ petition for injunctive relief. The trial court certified four causes of action: breach of contract, illegal contract, civil conspiracy, and violations of the Texas Occupations Code. Each is based upon SCI’s purported violation of the Funeral Rule. On Sept. 24, 1982, the Federal Trade Commission promulgated the Funeral Rule, which prohibits certain unfair and deceptive practices in the funeral service industry. Customers who contract for funeral goods and services must be given a separate purchase agreement that lists retail prices for all goods and services selected, lists the actual or estimated prices for “cash advance items,” and lists a total cost. A “cash advance item” is any item of service or merchandise described to a purchaser as a “cash advance,” “accommodation,” “cash disbursement” or similar term. It includes any item obtained from a third party and paid for by the funeral provider on the purchaser’s behalf. The court concludes that appellees do not have a private right of action. Because their breach of contract, illegal contract, and civil conspiracy claims are based on a violation of the FTC Funeral Rule, they do not have standing to assert these claims on behalf of themselves or the class. Appellees have also pled a separate cause of action for violations of Texas Occupations Code Chapter 651. Their breach of contract, illegal contract and civil conspiracy claims are based on the state version of the Funeral Rule. While the Texas Occupations Code provides for the assessment of monetary administrative penalties by the Texas Funeral Service Commission, it does not provide for a private cause of action to recover damages. The only relief which may be sought by a private party is injunctive relief against a funeral establishment, an embalmer, or a funeral director who violates Chapter 651 or a rule adopted under that chapter. The appellees suggest that they have standing to maintain their state claim since their petition seeks injunctive relief as permitted by �651.601. But the trial court did not certify an injunction class and this does not serve as a basis for affirming the certification order. Other than injunctive relief, there is no private right of action for violation of the provisions found in Chapter 651 or a rule adopted under that chapter. OPINION:McClure, J.; Barajas, C.J., McClure, and Chew, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.