TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00670-CV
Viet Tran, Individually and a/n/f for B.T.; Nham Vo; Paulina Binh Dang; Huu Maui Tri; Thuy Bich Dang; and James Dang, Appellants
v.
David Ritter, Appellee
FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-22-003267, THE HONORABLE JESSICA MANGRUM, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants Viet Tran, Individually and as next friend for B.T.; Nham Vo; Paulina
Binh Dang; Huu Maui Tri; Thuy Bich Dang; and James Dang (collectively, “the Dang
Relatives”) appeal from a summary judgment granted in favor of appellee David Ritter. We will
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Lien Dang died February 8, 2021. After her death, Ritter directed Affordable
Burial and Cremation Services, LLC, regarding the disposition of her remains.1 On March 18,
2021, Viet Tran, Dang’s son, filed an application for a temporary restraining order and
temporary injunction in Travis County District Court. Tran alleged that on February 13, 2021,
1 Ritter and Dang had been in a relationship for approximately ten years when she died, and Ritter represented to Affordable Burial that he was Dang’s spouse. Ritter told him that Dang had died February 8th. Tran alleged that Ritter and Dang were
romantically involved, that Dang had been living with Ritter, and that Ritter had, since informing
him of Dang’s death, prevented Tran and Dang’s other relatives from seeing her body. Tran
alleged that Ritter had “allowed [Dang’s] remains to decompose in his home and ha[d] refused to
cooperate with [Dang’s] family in coordinating a funeral” consistent with Dang’s religious
practices. Tran asserted that he sought the court’s intervention so that Dang could “be buried
in a humane and tasteful manner according to the religious practices of their family.” Tran
requested that the court issue a temporary restraining order to prevent Ritter from “taking any
action that might alter, damage, move, bury, cremate or destroy, in any way” Dang’s remains.
Tran asserted that any “further decomposition and mishandling of [Dang’s] corpse would cause
unnecessary emotional distress on her family.” Tran also sought a temporary injunction ordering
Ritter to deliver Dang’s remains to Tran.
The application filed in district court was supported by the affidavit of Adeline
Bui, office manager of the Dang Law Group, in which she attested that:
On February 13, 2021, Mr. Tran received a phone call from Mr. Ritter stating that Ms. Dang died on February 8, 2021. Mr. Tran was distraught and asked where Ms. Dang’s body was. Mr. Ritter said she is at a hospital in Houston. Mr. Ritter would not tell Mr. Tran which hospital Ms. Dang was at. Mr. Tran’s family tried calling every hospital in Houston looking for Ms. Dang. Mr. Ritter consistently provided Mr. Tran with false information regarding where Ms. Dang’s body was.
Nearly four weeks after Ms. Dang had passed, Mr. Ritter told Ms. Dang’s oldest sister, Sister Binh Dang that he would allow her to see Ms. Dang. Sister Dang believed that her sister was still in Houston as Mr. Ritter indicated to Sister Dang. Mr. Ritter told Sister Dang that her sister is currently at his home and that Sister Dang could come by herself and see her sister.
Sister Dang [] stated that she saw her sister laying [sic] on a table inside Mr. Ritter’s home. Sister Dang begged Mr. Ritter to let her family take Ms. Dang’s body to be buried as they are devoted Catholics. Mr. Ritter refused Sister Dang’s request.
2 A few days later, Mr. Ritter allowed Ms. Dang’s daughter to see her body. Mr. Ritter also allowed Ms. Dang’s Aunt and Uncle from Arlington to see her body. Mr. Ritter refused to allow Mr. Tran to see Ms. Dang. He made excuses that he was busy or not available. Since Ms. Dang’s death in early February, Mr. Tran never saw his mother.
On Sunday, March 14, 2021, the family had a service with Father Francis from the Vietnamese Holy Church without the body. Mr. Ritter found out about the services and called everyone in Ms. Dang’s family yelling at them for doing the service without his permission. Mr. Tran fears for his and his family’s safety as Mr. Ritter had threatened to hurt his family over the memorial service.
At Ritter’s house [on March 16, 2021] the police and Sheriff informed us of what had occurred within the last five weeks from Mr. Ritter’s version. Ms. Dang died in the hospital in Houston on February 8, 2021. Mr. Ritter requested for her body to be released to Affordable Funeral and Cremation in Austin to pick up her body. Due to the snow and ice storm in the middle of February Ms. Dang was not picked up until 10 days after she died. Mr. Ritter asked the Funeral home to leave Ms. Dang’s body, un-embalmed at his house. Two days after the delivery of the body to Mr. Ritter’s home, the Funeral home told Mr. Ritter the body needed to be embalmed otherwise it would decompose at a faster rate due to the weather warming up. Mr. Ritter allowed the embalming, 12 days after Ms. Dang passed away.
Mr. Ritter claimed that he is working to get Ms. Dang’s funeral arrangement. He claimed that Ms. Dang was going to be buried next to her father in the family cemetery plot that one of the relatives is supposed to be buried at Cook-Walden Capital Park. Ms. Dang’s father is still alive and Mr. Ritter has not made any contact or had any conversation with the plot owner regarding Ms. Dang being buried in the family plot.
Mr. Ritter has lied and misled Ms. Dang’s family on several occasions and has prolonged way too long to have Ms. Dang properly buried.
On March 31, 2021, Tran filed a notice of nonsuit without prejudice of his Texas Health and
Safety Code claims, stating that “[a]ccording to the Texas Health and Safety Code 711.002, the
proper jurisdiction for these types of requests concerning remains of deceased family members
are in Probate Court and [Tran], along with the rest of [Dang’s] family have decided to pursue
their requests there.” On April 5, 2021, Tran filed a notice of nonsuit with prejudice of any
remaining claims, stating that “[t]his is final and disposes of this action for injunctive relief
3 against David Ritter.” Thus, having nonsuited, without prejudice, the claims brought under the
Texas Health and Safety Code, Tran then nonsuited, with prejudice, the remaining claims against
Ritter arising out of his handling of Dang’s remains.
On March 31, 2021, the Dang Relatives filed another application for temporary
restraining order and for temporary injunction, this time in Travis County Probate Court. The
Dang Relatives alleged that Ritter told Tran that Dang died on February 8, 2021; that Ritter “had
produced a document known as an ‘Appointment of Agent of Disposition’ to have the legal
rights to dispose of” Dang’s remains; that the document was invalid and not sufficient to deny
the Dang Relatives’ right of disposition of Dang’s remains; and that even if the document was
valid, Ritter’s rights would have been automatically terminated pursuant to the provisions of
Texas Health and Safety Code section 711.002. The Dang relatives asserted that Ritter had
prevented them from hiring their own funeral home and having a burial consistent with Dang’s
religious practices and had concealed the circumstances of Dang’s death and the location of
her remains. The Dang Relatives alleged that they had not seen a death certificate or received
information regarding the location of Dang’s remains. They asserted that although they had been
told by Affordable Burial and by Ritter’s attorney that a burial had taken place at an undisclosed
location, they “doubt[ed] whether or not a burial did in fact take place.” The Dang Relatives
alleged that Ritter had allowed Dang’s remains to decompose and that injunctive relief was
necessary to permit the Dang Relatives to bury Dang “according to their wishes, her religious
beliefs and rights.” The Dang Relatives alleged that the document that Ritter used to take control
of the disposition of Dang’s remains was invalid on its face and, even if it was valid, Ritter’s
right to control disposition of Dang’s remains terminated pursuant to Texas Health and Safety
Code section 711.002(a-1). (providing that right to control disposition is terminated if person
4 fails to make final arrangements before earlier of sixth day after receiving notice of decedent’s
death or tenth day after date of decedent’s death). On April 5, 2021, the Dang Relatives filed a
notice of nonsuit with prejudice of the probate court proceedings.
In July 2022, the Dang Relatives sued Ritter for the third time, now in Travis
County District Court. The Dang Relatives alleged that Dang died in Houston on February 8,
2021, and that Ritter, who claimed to be her boyfriend or common law husband, was with her at
the time of her death. The Dang relatives alleged that because Ritter failed to make final
arrangements for the disposition of Dang’s remains within six days of being notified of her
death, his right to control the disposition of Dang’s remains had terminated. See Tex. Health &
Safety Code § 711.002(a-1).
The Dang Relatives further alleged that in the days following Dang’s death, they
had requested that Ritter disclose the date and place of her death and provide information to them
regarding the arrangements for disposition of her remains. The Dang Relatives asserted that
Ritter refused to disclose any of that information to them. The Dang Relatives alleged that
Ritter, without their knowledge or consent, instructed Affordable Burial to embalm and prepare
Dang’s remains for entombment and directed Affordable Burial to deliver her remains to Ritter’s
residence and “to deposit [Dang’s] remains on a makeshift altar which he had arranged on his
dining room table.” The Dang Relatives asserted that they were not aware of and did not consent
to Ritter’s treatment of Dang’s remains and “would not have consented to Ritter’s disturbing
actions had they been aware.” The Dang Relatives alleged:
Although his right to control the disposition of [Dang’s] remains had long terminated as a matter of law, Ritter refused to relinquish possession of [Dang’s] remains to her next [of] kin, and instead allowed her remains to decompose on his dining room table for over three (3) weeks.
5 On March 14, 2021, [the Dang Relatives] were forced to hold a funeral service for [Dang] at a Vietnamese Catholic Church in Austin, without [Dang’s] remains present at the ceremony.
Ritter unexpectedly appeared at the service. Going beyond all possible bounds of decency, Ritter disrupted the service by shouting and cursing at [the Dang Relatives] in the house of worship where they had sought comfort and peace. Ritter intentionally inflicted severe emotional distress on [the Dang Relatives] at a time and place when he knew they were grieving, distraught, and most vulnerable.
The Dang Relatives alleged that they hired lawyers, moved for a temporary restraining order in
district court and in probate court, and requested intervention by law enforcement. The Dang
Relatives alleged that on March 16, 2021, Travis County Sheriff’s Office personnel entered
Ritter’s residence and observed Dang’s remains, and on March 17, 2021, Ritter instructed
Affordable Burial to transport Dang’s remains back to its facility. The Dang Relatives alleged
that on March 19, 2021, without their knowledge or consent, Ritter instructed Affordable Burial
to entomb Dang’s remains at Onion Creek Memorial Park in Austin, and that the entombment
was done without the Dang Relatives’ knowledge, consent, presence, or participation. Based on
these events, the Dang Relatives requested actual damages to compensate them for their severe
emotional distress proximately caused by Ritter’s conduct as well as exemplary damages.
Ritter filed a combined partial plea to the jurisdiction and motion for summary
judgment. Ritter argued that he was entitled to summary judgment on all claims because they
were barred by res judicata. Ritter also argued that, to the extent the Dang Relatives were
asserting a claim for intentional infliction of emotional distress arising out of Ritter’s behavior at
the funeral service, such a claim failed as a matter of law because, taking the Dang Relatives’
allegations as true, his conduct was not sufficiently extreme or outrageous to support a claim of
intentional infliction of emotional distress. In his plea to the jurisdiction, Ritter argued that the
court did not have subject matter jurisdiction over the Dang Relatives’ claims brought pursuant
6 to Texas Health and Safety Code section 711.002 because those claims fell within the probate
court’s exclusive jurisdiction. See Tex. Health & Safety Code § 711.002(k) (providing that any
dispute concerning the right to control disposition of decedent’s remains “shall be resolved by
a court with jurisdiction over probate proceedings for the decedent”). The Dang Relatives
countered, in relevant part, that their claims were not barred by res judicata because they had not
previously made a claim for damages in their suits in the Travis County District Court and
Probate Court but, rather, had only sought injunctive relief; that the Dang Relatives were not
aware of certain facts underlying their claims when they filed suit in Travis County District
Court and Probate Court because Ritter and his counsel had concealed them and had “attempted
to intimidate and threaten plaintiff’s counsel”; and that the Dang Relatives’ claims against Ritter
were not ripe until, during discovery in a September 2021 suit against Affordable Burial, they
discovered facts they alleged proved that Ritter did not have the authority to direct the
disposition of Dang’s remains.
After a hearing, the trial court signed an order granting Ritter’s combined partial
plea to the jurisdiction and motion for summary judgment and dismissed all the claims against
Ritter. This appeal followed.
DISCUSSION
We review the granting of a motion for summary judgment de novo.2 Buck v.
Palmer, 381 S.W.3d 525, 527 (Tex. 2012). When the trial court does not specify the grounds for
2 The standards for reviewing a summary judgment are well established and undisputed on appeal. See, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); see also Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Ford Motor Co. v. Ridgway,
7 its ruling, summary judgment must be affirmed if any of the grounds on which the judgment
was sought are meritorious. State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No
Cents ($90,235) in U.S. Currency, 390 S.W.3d 289, 292 (Tex. 2013). A defendant moving for
summary judgment on an affirmative defense has the burden to conclusively establish each
element of that defense. Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021);
see Tex. R. Civ. P. 94 (identifying res judicata as affirmative defense). Because it is dispositive,
we first address whether Dang Relatives’ claims against Ritter were barred by res judicata.
Res judicata, broadly speaking, is the generic name for a group of related concepts
concerning the preclusive effect of prior judgments. Barr v. Resolution Tr. Corp. ex rel. Sunbelt
Fed. Savs., 837 S.W.2d 627, 628 (Tex. 1992). “Res judicata, or claims preclusion, prevents the
relitigation of a claim or cause of action that has been finally adjudicated, as well as related
matters that, with the use of diligence, should have been litigated in the prior suit.” Id.;
American Int’l Indus. v. Scott, 355 S.W.3d 155, 160 (Tex. App.—Houston [1st Dist.] 2011,
no pet.). For res judicata to apply, the following elements must be present: (1) a prior final
judgment on the merits by a court of competent jurisdiction; (2) the same parties in each action;
and (3) a second action based on the same claims as were raised or could have been raised in the
first action. Citizens Ins. Co. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). This doctrine
prohibits splitting a cause of action to “bring all litigation to an end, prevent vexatious litigation,
maintain stability of court decisions, promote judicial economy, and prevent double recovery.”
Barr, 837 S.W.2d at 628. “The judgment in the first suit precludes a second action by the parties
and their privies on matters actually litigated and on causes of action or defenses arising out of
135 S.W.3d 598, 600 (Tex. 2004); see also Tex. R. Civ. P. 166a(c), (i). Accordingly, we need not repeat them here.
8 the same subject matter that might have been litigated in the first suit.” Travelers Ins. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010) (citing Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517,
519 (Tex. 1984)).
Texas courts apply the transactional approach to res judicata, which requires that
claims arising out of the same subject matter be litigated in a single lawsuit. Hallco Tex., Inc. v.
McMullen County, 221 S.W.3d 50, 58 (Tex. 2006) (citing Barr, 837 S.W.2d at 631). Under this
approach, we examine the factual bases, not the legal theories, presented in the cases to
determine whether the cases share the same set of operative facts. Samuel v. Federal Home Loan
Mortg. Corp., 434 S.W.3d 230, 234 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing
Pinebrook Props., Ltd. v. Brookhaven Lake Prop. Owners Ass’n, 77 S.W.3d 487, 496 (Tex.
App.—Texarkana 2002, pet. denied)). In determining whether the facts arose out of a single
transaction, we consider whether the facts are related in time, space, origin, or motivation and
whether they form a convenient unit for trial. Id. (citing Barr, 837 S.W.2d at 631).
Earlier final judgment on the merits
The Probate Court’s dismissal with prejudice of all pending claims in the Probate
Court constituted a final judgment on the merits of the Dang Relatives’ claims under section
711.002 of the Texas Health and Safety Code by a court of competent jurisdiction. See Epps v.
Fowler, 351 S.W.3d 862, 864 (Tex. 2011) (nonsuit with prejudice immediately alters legal
relationship between parties by its res judicata effect); Mossler v. Shields, 818 S.W.2d 752, 754
(Tex. 1991) (“[I]t is well established that a dismissal with prejudice functions as a final
determination on the merits.”); Christensen v. Chase Bank USA, N.A., 304 S.W.3d 548, 553
(Tex. App.—Dallas 2009, pet denied). The District Court’s dismissal with prejudice of the
9 remaining claims asserted against Ritter arising out of his handling of Dang’s remains
constituted a final judgment on the merits of claims that were or could have been raised in that
court, including a claim for damages in addition to injunctive relief. See In re J.G.W., 54 S.W.3d
826, 832 (Tex. App.—Texarkana 2001, no pet.) (judgment of dismissal is conclusive on matters
actually raised and litigated and on every other matter that could have been litigated and decided
as an incident to or essentially connected with subject matter of prior litigation).
Identity of parties
The second element, identity of parties, does not require that the parties in both
lawsuits be identical if the parties named in the subsequent action are in privity with a party to
the prior judgment—that is, a party who is so connected with a party to the prior judgment that
the party represented the same legal right. See Benson v. Wanda Petroleum Co., 468 S.W.2d
261, 363 (Tex. 1971). Here, the plaintiffs and the defendant in the Probate Court case and the
present case are the same individuals, thereby satisfying the identity of parties element of res
judicata with regard to the claims brought under the Texas Health and Safety Code. Regarding
the District Court case, although Tran was the only named plaintiff in that case, we conclude that
the remaining plaintiffs in the underlying case, all relatives of Dang asserting the same injury
arising out of the same facts and relationship to her, were in privity with Tran such that he
represented their interest. See Traweek v. Larkin, 708 S.W.2d 942, 945 (Tex. App.—Tyler 1986,
writ ref’d n.r.e.) (determination of privity requires an examination of circumstances of each case
to determine whether party to prior action represented party’s interest).
10 Second action based on claims that were, or could have been, raised in first action
As previously described, the Dang Relatives’ claims in the underlying proceeding
are based on the same allegations and events that were made in both the Probate Court case and
the District Court case, namely that Ritter directed the disposition of Dang’s remains without
authority; in disregard of her religious practices; and unbeknownst to her family members and in
a manner that they objected to, causing them emotional distress. The claims that the Dang
Relatives have brought against Ritter in this suit could have been raised and litigated in either the
Probate Court case or the District Court case. Although they claim to have learned additional
facts in subsequent litigation with Affordable Burial, the allegations and supporting affidavits
demonstrate that they were aware of the facts underlying their present claims. Moreover, the
fact that their previous suits were limited to injunctive relief is not germane to the res judicata
analysis, which directs us to examine the factual bases, not the legal theories, presented in the
cases to determine whether they share the same set of operative facts. See Samuel, 434 S.W.3d
at 234. Here, they plainly do. The principles underlying the doctrine of res judicata are
consistent with precluding this subsequent suit against Ritter and concerning the same subject
matter and claims that were, or could have been, raised in the Probate Court case and the District
Court case. See Barr, 837 S.W.2d at 628 (doctrine of res judicata not only prevents relitigation
of claims that have been finally adjudicated, but also of related matters that should have been
adjudicated in the first proceeding because they are part of same claim or cause of action).
CONCLUSION
For the foregoing reasons, we conclude that Ritter established the elements of his
affirmative defense of res judicata and that the trial court properly granted summary judgment on
11 all claims against him on that ground. We therefore affirm the trial court’s order dismissing the
Dang Relatives’ claims against Ritter without considering the propriety of summary judgment on
any other basis. See Tex. R. App. P. 47.1.
__________________________________________ Thomas J. Baker, Justice
Before Justices Baker, Kelly, and Smith
Affirmed
Filed: June 21, 2024