PLAINTIFFS ORIGINAL PETITION PAGE 1 OF 9

CAUSE NO. _________________

EVA E. KIRBY, CLARENCE I. DEASON, IN THE DISTRICT COURT OF
EMANUAL DEASON, JR AND DONALD
DEASON
Plaintiffs

V. HARRIS COUNTY, TEXAS

MIDTOWN MORTUARY CORPORATION
D/B/A MABRIE MEMORIAL MORTUARY
Defendant ______ JUDICIAL DISTRICT

PLAINTIFFS ORIGINAL PETITION

TO THE HONORABLE J UDGE OF SAID COURT:
COMES NOW Plaintiffs, Eva E. Kirby, Clarence I. Deason, Emanuel Deason, J r. and
Donald Deason ("Plaintiffs"), complaining of Midtown Mortuary Corporation d/b/a Mabrie
Memorial Mortuary, and would respectfully show as follows:
I
DISCOVERY CONTROL PLAN

Based upon this Petition, this case should be controlled by discovery control plan Level 2
pursuant to the Texas Rules of Civil Procedure, Rule 190.3.
II
PARTIES
Plaintiff, Eva E. Kirby, is a resident of Harris County, Texas.
Plaintiff, Clarence I. Deason is a resident of Harris County, Texas.
Plaintiff, Emanuel Deason, J r. is a resident of Harris County, Texas.
Plaintiff, Donald Deason, is a resident of Harris County, Texas.
Defendant, Midtown Mortuary Corporation d/b/a Mabrie Memorial Mortuary, is a Texas
Corporation that owns, operates and/or controls the Mabrie Memorial Mortuary, a funeral home
located in Houston, Harris County, Texas. Service of process may be effected upon Defendant
10/13/2014 11:14:21 PM
Chris Daniel - District Clerk Harris County
Envelope No. 2816995
By: Sherryl Dewalt
Filed: 10/13/2014 11:14:21 PM
10/17/2014 12:37:09 PM
Chris Daniel - District Clerk Harris County
Envelope No. 2868642
By: Adiliani Solis
Filed: 10/17/2014 12:37:09 PM
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2014-59701
281st
PLAINTIFFS ORIGINAL PETITION PAGE 2 OF 9

by serving its registered agent: Herman J ames Mabrie III, 815 Walker, Suite 1035, Houston,
Texas 77002. Service on Defendant as described above can be effected by personal delivery.
III
JURISDICTION AND VENUE

This Court has subject matter jurisdiction over the controversy because the claims
asserted in this Petition arose, in whole or in part, in Harris County, Texas and the amount in
controversy exceeds the minimal jurisdictional limits of the court.
This Court has personal jurisdiction over the Defendant because the acts and omissions
complained of herein occurred in Texas and Defendant does business in the State of Texas.
Venue is properly laid in the Harris County, Texas because Defendant resides in or has a
principle office located in Harris County, Texas and all or a substantial part of Plaintiff's cause of
action arose in Harris County, Texas. See TEX. CIV. PRAC. & REM. CODE 15.002(a).
IV
INTRODUCTION

This is a suit against a funeral home, Mabrie Memorial Mortuary, for damages sustained
by the Plaintiffs incident to the funeral of their mother. The Plaintiffs claim damages based on
the failure of the defendant funeral home to properly perform its contractual obligation to handle
the body of their deceased mother in a good and workmanlike manner, and the negligence and
gross negligence of the defendant funeral home in presenting the body of their deceased mother
at the wrong funeral service and burying the body of their deceased mother in the wrong
cemetery plot which required the body to be exhumed.
V
FACTS

Plaintiffs mother, Pearlie J ean Deason passed away on J uly 22, 2014. Plaintiffs mother
was 89 years old when she died. Mabrie Memorial Mortuary, the defendant funeral home, was
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PLAINTIFFS ORIGINAL PETITION PAGE 3 OF 9

contracted by the family to take the body and be in charge of those matters which attend funeral
preparations, handling of the body during funeral services, transporting the body to the burial
site, and then the actual burial of the body in the cemetery plot.
On J uly 31, 2014, prior to the scheduled funeral services, the defendant funeral home
contacted the Plaintiffs and informed them that, two days earlier, the funeral home mistakenly
placed the body of their deceased mother in the casket of another deceased woman and then
buried their mothers body in the other womans cemetery plot at the Veterans Memorial
Cemetery. After receiving this emotionally devastating information, each Plaintiff immediately
became ill, suffered extreme emotional distress and extreme mental anguish.
The defendant funeral home then informed Plaintiffs that they had to sign a release form
so the funeral home could request the removal of their mothers body from the Veterans
Memorial Cemetery. After the Plaintiffs signed the release form, the defendant funeral home
had the body exhumed from the burial site at the Veterans Memorial Cemetery and transported
back to the funeral home. The Plaintiffs were then required to come to the funeral home and
identify their deceased mothers body. Because the body had been in the grave and exposed to
the elements for over two days, it had severely decayed and decomposed. The Plaintiffs were
then forced to hold funeral services for their mother with a body which was decayed and
decomposed.
The negligent conduct of the defendant funeral home caused Plaintiffs to endure the
aggravating emotional pain of: (1) going through the devastating experience of having their
deceased mother buried in another womans cemetery plot without proper last respects, (2) being
required to go through the devastating experience of retrieving their deceased mothers decayed
and decomposed body from the burial site after being there for over two days; and (3) being
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PLAINTIFFS ORIGINAL PETITION PAGE 4 OF 9

forced to go through the devastating experience of having their mothers funeral with a body
which was decayed and decomposed. As a result, Plaintiffs have suffered and will continue to
suffer severe emotional anguish caused by the defendant funeral homes mishandling of their
mothers deceased body.
VI
STATEMENT OF CLAIMS
A. BREACH OF CONTRACT
Plaintiffs incorporate the facts set forth above as if recited herein verbatim. In addition to
the allegations above, the following constitutes breach of contract:
Plaintiffs entered into a valid contract with defendant funeral home to handle the funeral
services and burial of their deceased mother. Plaintiffs fulfilled their obligation by making their
mothers deceased body available and defendant funeral home retrieved the body. The defendant
funeral home breached its duty to perform its services in a good and workmanlike manner by
mishandling the body of Plaintiffs deceased mother. As a result, Plaintiffs have suffered and
will continue to suffer severe emotional distress and extreme mental anguish caused by the
defendant funeral homes mishandling of their mothers deceased body.
B. NEGLIGENCE
Plaintiffs incorporate the facts set forth above as if recited herein verbatim. The
defendant funeral home had a duty to perform its services in a good and workmanlike manner.
In addition to the allegations above, the following errors and/or omissions by Defendant
constitutes negligence:

1. Failure to properly monitor the location of the deceased body.

2. Failure to inform the family the wrong body was placed in casket.
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PLAINTIFFS ORIGINAL PETITION PAGE 5 OF 9


3. Failure to properly keep track of the deceased body.

4. Presenting the deceased body during the wrong funeral services.

5. Presenting the deceased body for the wrong burial.

6. Failure to handle the deceased body in a good and workmanlike manner.

7. Failure to provide necessary and proper procedures and measures for
handling the deceased body.

8. Failure to take prompt action to investigate the location and identity of the
deceased body at the other funeral service.

9. Failure to provide competent personnel to handle the deceased body.

10. Failure to enforce reasonable guidelines to ensure the correct body was
presented at the other funeral service.

11. Such other and further acts of negligence as may be supplemented as a
result of discovery performed in this suit.

Plaintiffs would show that the incident made the basis of this suit, their injuries, and
damages arose from the negligent conduct of the Defendant herein. These acts were performed
with an unreasonable risk of harm which gave rise to a cause of action for negligence, which was
a proximate cause of the occurrence in question and that resulted in Plaintiffs injuries and
damages.
C. GROSS NEGLIGENCE
Plaintiffs incorporate the facts set forth above as if recited herein verbatim. In addition to
the allegations above, the following acts of malfeasance constitutes gross negligence.
Defendants acts or omissions involved an extreme degree of risk to Plaintiffs. Defendant had
actual, subjective awareness of the risk but proceeded anyway with a conscious indifference to
the rights, safety, or welfare of Plaintiffs. Specifically, Defendant was grossly negligent because
its acts or omissions in failing to ensure the correct body was presented at the prior funeral,
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PLAINTIFFS ORIGINAL PETITION PAGE 6 OF 9

particularly after being questioned about the body, when viewed objectively from the standpoint
of a reasonable prudent funeral home, involved an extreme degree of risk that the body of
Plaintiffs deceased mother was mishandled, considering the probability and magnitude of the
potential harm to Plaintiffs. Moreover, the Defendant, who advertise to be seasoned in handling
funerals, had actual, subjective awareness of the risk, but nevertheless proceeded with conscious
indifference to the emotional well-being of Plaintiffs under the circumstances.The factor which
lifts ordinary negligence into gross negligence is the mental attitude of the defendant. . . .
Rhodes v. Batilla, 848 S.W.2d 833, 844 (Tex. App.Houston [14th Dist.] 1993, writ denied).
D. RESPONDENT SUPERIOR AND/OR VICARIOUS LIABILITY
Plaintiffs incorporate the facts set forth above as if recited herein verbatim. At all times
material hereto, all of the agents, servants, and/or employees for Defendant, who were connected
with the occurrence made the subject of this suit, were acting within the course and scope of their
employment or official duties and in furtherance of the duties of their office or employment or in
a managerial capacity. Therefore, Defendant is further liable for the negligent acts and
omissions of its employees and agents under the doctrines of respondent superior and/or
vicarious liability.
E. EXEMPLARY DAMAGES
The conduct of Defendant constitutes gross negligence, which entitles Plaintiffs to
exemplary damages under Texas Constitution article 16, section 26. The Defendants conduct
exceeds mere thoughtlessness or negligence. It indicates a conscious indifference and needless
disregard for the rights of the Plaintiffs, as well as malice. Defendant had actual awareness of
the unreasonable risk that the course of action could result in catastrophic harm to the Plaintiffs.
Defendant consciously disregarded that risk. Defendant should therefore be required to pay
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PLAINTIFFS ORIGINAL PETITION PAGE 7 OF 9

punitive damages to Plaintiffs in an amount sufficient to discourage such conduct in this
community in the future. As described herein, Plaintiffs injuries resulted from Defendants
gross negligence and/or malice, which entitle Plaintiffs to exemplary damages.

VII
DAMAGES
As a direct and proximate result of the occurrence made the basis of this lawsuit, and
Defendants acts as described herein, Plaintiffs have suffered damages, and has been forced to
endure anxiety, pain, and injury and has incurred the following damages:
a. Actual damages;
b. Pecuniary losses;
c. Expenses for psychological treatment in the past and future;
d. Funeral expenses;
e. Medical expenses in the past and future;
f. Pain and suffering;
g. Mental anguish in the past and future;
h. Exemplary damages;
i. Court costs;
j. Pre-judgment and post-judgment interest;
k. Direct and consequential damages; and
l. Other actual damages as described herein
By reason of the above, Plaintiffs have suffered losses and damages in a sum within the
jurisdictional limits of the Court and for which this lawsuit is brought.


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PLAINTIFFS ORIGINAL PETITION PAGE 8 OF 9

VIII
CONDITIONS PRECEDENT

All conditions precedents to the bringing of this action have been satisfied, waived or
have otherwise occurred.
IX
JURY DEMAND

Plaintiffs desire to have a jury decide this case and make this formal request pursuant to
Texas Rule of Civil Procedure 216.
X
REQUEST FOR DISCLOSURE
Under Texas Rule of Civil Procedure 194, Plaintiffs request that Defendant disclose,
within 30 days of the service of this request, the information or material described in Rule 194.2
if they have not already.
XI
PRAYER

WHEREFORE, Plaintiffs pray that after trial herein, that judgment be entered against
Defendant as prayed for, that costs of court be taxed against Defendant, that Plaintiffs have
prejudgment as well as post-judgment interest, and for such other and further relief, at law and in
equity to which Plaintiffs may show themselves to be justly entitled, to which the Court believes
Plaintiffs to be deserving, and for which Plaintiffs will ever pray.
Respectfully submitted,
/ s / Shannon B. Baldwin
SHANNON B. BALDWIN
SHANNON B.BALDWIN & ASSOCIATES, PLLC
Texas State Bar No. 24034314
attorneysbaldwin@gmail.com



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PLAINTIFFS ORIGINAL PETITION PAGE 9 OF 9

1776 Yorktown, Suite 350
Houston, Texas 77056
t.713.664.6800
f.281.404.9021

OF COUNSEL:
MELVIN HOUSTON
Melvin Houston & Associates, P.C.
Texas State Bar No. 00793987
mhouston@gotellmel.com
1776 Yorktown, Suite 350
Houston, Texas 77056
t.713.212.0600
f.713.212.0290

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