CAUSE NO. MALCOMB THOMAS, KORRIE HICKS, IN THE DISTRICT COURT OF LA TASHA MORRIS, & ROSHUNDA JOHNSON, PLAINTIFFS VS. HARRISON COUNTY, TEXAS

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1 CAUSE NO. Filed 12/4/2015 2:01:39 PM Sherry Griffis District Clerk Harrison County, Texas Mary Durham Deputy MALCOMB THOMAS, KORRIE HICKS, IN THE DISTRICT COURT OF LA TASHA MORRIS, & ROSHUNDA JOHNSON, PLAINTIFFS VS. HARRISON COUNTY, TEXAS JAMES W. REEVES, & LEWIS FUNERAL HOME, INC. DEFENDANTS 71 ST JUDICIAL DISTRICT TO THE HONORABLE JUDGE OF SAID COURT: Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON complain of Defendants JAMES W. REEVES & LEWIS FUNERAL HOME, INC., and for causes of action would show: 1. DISCOVERY CONTROL PLAN 1.1. Plaintiffs intend to conduct discovery under Level 3 of the TEXAS RULE OF CIVIL PROCEDURE and affirmatively plead that this suit is not governed by the expedited actions process in TEXAS RULE OF CIVIL PROCEDURE 169 because Plaintiffs seek monetary relief over $100,000. IN THE 71 st DISTRICT COURT OF HARRISON COUNTY, TEXAS Page 1 of 13

2 1.2. Plaintiffs request that the Court enter a tailored discovery control plan. 2. PARTIES 2.1. Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON are the surviving children of John Alfred Thomas, deceased Defendant JAMES W. REEVES is an individual and manager of LEWIS FUNERAL HOME, INC. located at 508 East Bowie Street in the City of Marshall, Harrison County, Texas Defendant LEWIS FUNERAL HOME, INC., is a domestic for-profit corporation doing business in Texas in the City of Marshall. 3. SERVICE 3.1. Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON request service of process on: Defendant JAMES W. REEVES at 508 East Bowie Street, Marshall, Texas Defendant LEWIS FUNERAL HOME, INC. by serving its registered agent for service, Eddie Richardson, at 508 East Bowie Street, Marshall, Texas. IN THE 71 st DISTRICT COURT OF HARRISON COUNTY, TEXAS Page 2 of 13

3 3.2. Undersigned counsel for Plaintiffs will accept service of all pleadings and discovery at the addresses listed below. 4. JURISDICTION 4.1. All of the parties are residents of the State of Texas The events that are the subject of this suit occurred in the State of Texas District Courts in the State of Texas have subject matter jurisdiction over the causes of action stated in this suit Monetary damages claimed by Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON exceed the minimum jurisdictional requirements for District Courts in the State of Texas. 5. VENUE 5.1. Venue is proper in Harrison County, pursuant to TEXAS CIVIL PRACTICES & REMEDIES CODE section (a)(3), because it is the county of residence for the individual defendant and county of principal office for the corporate defendant, and, 5.2. Pursuant to TEXAS CIVIL PRACTICES & REMEDIES CODE (a)(1), because it is the county in which the injuries, the IN THE 71 st DISTRICT COURT OF HARRISON COUNTY, TEXAS Page 3 of 13

4 causative events, and certain negligent acts and/or omissions giving rise to Plaintiffs claims occurred. 6. BACKGROUND FACTS 6.1. John Alfred Thomas died on July 16, 2015 in the nursing home in which he resided during his final illness On July 16, 2015, at approximately 5:00 a.m., Defendants JAMES W. REEVES & LEWIS FUNERAL HOME, INC. picked-up the decedent s body to transport it to their funeral home facility for embalming and burial preparation The decedent had made pre-need arrangements for his funeral and burial that included the services of Defendants JAMES W. REEVES & LEWIS FUNERAL HOME, INC During the evening hours of July 16, 2015, Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON went to the funeral home premises at 508 East Bowie Street in Marshall, Texas to review the funeral arrangements for their father With the agreement of all parties, including Defendants JAMES W. REEVES & LEWIS FUNERAL HOME, INC, the funeral for John Alfred Thomas was scheduled for July 25, 2015, in order to allow the decedent s many family members and friends an opportunity to travel to Marshall, Texas. IN THE 71 st DISTRICT COURT OF HARRISON COUNTY, TEXAS Page 4 of 13

5 6.6. The delay between the date of embalming, July 16, 2015, and the date of the funeral, July 25, 2015, clearly mandated and necessitated that the decedent s body be kept in a refrigerated condition to avoid decomposition The necessity for this refrigerated care was well known to Defendants JAMES W. REEVES & LEWIS FUNERAL HOME, INC., and was a fundamental duty and responsibility of any ordinarily careful funeral home and funeral home staff On July 24, 2015, Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON went to the funeral home in question to view their father s supposedly embalmed, preserved, and prepared body Defendant JAMES W. REEVES, as manager of LEWIS FUNERAL HOME, INC., led Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON to a viewing room where their father s body was located At that time and place, Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON observed numerous maggots crawling out of their father s nose and mouth Observing the acute distress this spectacle was inflicting on Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON, Defendant JAMES W. REEVES, in the presence IN THE 71 st DISTRICT COURT OF HARRISON COUNTY, TEXAS Page 5 of 13

6 of the plaintiffs, wiped away the maggots with a tissue, and sprayed a substance into the nose and mouth of the decedent The efforts of Defendant JAMES W. REEVES were ineffective, and maggots continued to crawl and squirm out of the mouth and nose of the decedent Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON vigorously protested and complained about the condition of their father s body Defendant JAMES W. REEVES then directed another employee of LEWIS FUNERAL HOME, INC., embalmer Harold C. Lovely, to remove the body of John Alfred Thomas to an embalming room to attempt to correct the condition The plaintiffs were in profound grief at the time, and they were terrified, upset, shocked, and confused by the spectacle of white maggots crawling and squirming across the face of their father, an African-American man This event caused Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON to experience great emotional and physical distress and prevented them from having a best last memory, the goal of a funeral service, and interrupted and prolonged the normal grieving process. IN THE 71 st DISTRICT COURT OF HARRISON COUNTY, TEXAS Page 6 of 13

7 6.17. Since the viewing service on July 24, 2015, Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON have been plagued by the memory of this experience, have suffered extreme physical and emotional distress and mental anguish, with a variety of physical manifestations including: initial physical shock that involved dizziness, near fainting, and nausea, continuing mood swings and erratic behavior noticed by family and friends, shunning social interactions and situations, memory problems including denial of memory, chronic tiredness and lack of energy, obsessions and repetitive thoughts full of worry and anxiety, difficulty in controlling temper and managing anger, headaches, stomach aches, and neck and back pain, weight loss and loss of appetite and interest in food or food preparation, annoying eyelid twitching and muscle spasms, sleep disturbances almost every night, hair loss, and IN THE 71 st DISTRICT COURT OF HARRISON COUNTY, TEXAS Page 7 of 13

8 constipation, diarrhea, nausea, and vomiting along with lower bowel distress The shock and emotional distress and physical effects of that shock and distress and upset have tremendously affected the normal grieving process in a highly negative manner and prevented Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON from having a best last memory of their efforts to honor an love their father with a beautiful and respectful funeral. 7. NEGLIGENCE AND CAUSATION 7.1. Plaintiffs incorporate herein by reference all allegations contained above The manager, funeral directors, embalmers, and other employees of Defendant LEWIS FUNERAL HOME, INC. owed Plaintiffs the duty to exercise that degree of care a reasonably prudent funeral home personnel would have exercised in the same or similar circumstances, with respect to matters incidental to the professional services provided by Defendant LEWIS FUNERAL HOME, INC The manager, funeral directors, embalmers, and other employees of Defendant LEWIS FUNERAL HOME, INC. breached this duty by failing to properly preserve and protect the body of John IN THE 71 st DISTRICT COURT OF HARRISON COUNTY, TEXAS Page 8 of 13

9 Alfred Thomas, the natural father of Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON The failure of the manager, funeral directors, embalmers, and other employees of Defendant LEWIS FUNERAL HOME, INC. to exercise the aforementioned duty of care proximately caused Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON severe personal injury damages that will persist long into the future Defendants JAMES W. REEVES & LEWIS FUNERAL HOME, INC. owed Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON the duty to exercise the degree of care a reasonable funeral home would have exercised in the same or similar circumstances. 8. NEGLIGENT PERFORMANCE OF CONTRACTUAL DUTIES 8.1. Plaintiffs incorporate herein by reference all allegations contained above Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON and Defendants JAMES W. REEVES & LEWIS FUNERAL HOME, INC. had a valid, enforceable contract for which the decedent paid valuable consideration. IN THE 71 st DISTRICT COURT OF HARRISON COUNTY, TEXAS Page 9 of 13

10 8.3. Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON and Defendants JAMES W. REEVES & LEWIS FUNERAL HOME, INC. had a contract, which was implied-in-fact, implied-in-law, or both, which contract provided that Defendant LEWIS FUNERAL HOME would provide professional services in connection with the handling of the remains of John Alfred Thomas. See TEX. HEALTH & SAFETY CODE (a) The manager, funeral directors, embalmers, and other employees of Defendant LEWIS FUNERAL HOME, INC. had a duty imposed by common law to perform its contractual obligations with that degree of care a reasonably prudent person would have exercised in the same or similar circumstances The manager, funeral directors, embalmers, and other employees of Defendant LEWIS FUNERAL HOME, INC. breached this duty by causing or allowing the decedent s body to begin advanced decomposition to the extent that maggots were escaping the body The failure of the funeral directors of Defendant LEWIS FUNERAL HOME, INC. to exercise the aforementioned duty of care proximately caused Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON severe personal injury damages. 9. DAMAGES IN THE 71 st DISTRICT COURT OF HARRISON COUNTY, TEXAS Page 10 of 13

11 9.1. At all relevant times, Defendants occupied a special relationship with Plaintiffs because Defendants handled the remains of their loved one There was a contractual relationship between Defendants and Plaintiffs, implied-in-fact, implied-in-law, or both In their grief, Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON were particularly susceptible to emotional distress, and Defendants had knowledge of Plaintiffs particular susceptibility to emotional distress based on the circumstances For the aforementioned tortious conduct, Plaintiffs seek actual damages within the jurisdictional limits of the court in an amount to exceed $1,000, together with a refund of all monies paid by the decedent and Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON for the embalming, shipment, and funeral in question Such damages include, but are not limited to, damages for mental and emotional distress and anguish and physical injuries suffered in the past and the same or similar types of damages that Plaintiffs MALCOMB THOMAS, KORRIE HICKS, LA TASHA MORRIS & ROSHUNDA JOHNSON will, in all probability, suffer in the future. IN THE 71 st DISTRICT COURT OF HARRISON COUNTY, TEXAS Page 11 of 13

12 9.6. Plaintiffs also seek court costs, pre-judgment interest, and post judgment interest. 10. RESPONDEAT SUPERIOR At all relevant times, the employees, agents, or representatives of Defendant LEWIS FUNERAL HOME, INC. were acting within the course and scope of their employment with LEWIS FUNERAL HOME, INC The employers of such employees and servants are vicariously liable for their acts and omissions constituting negligence. 11. JURY DEMAND Plaintiffs hereby demand a trial by jury and tender the appropriate fee. 12. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that the Court award Plaintiffs: actual damages, refund of all money paid to defendants, court costs, pre-judgment interest, IN THE 71 st DISTRICT COURT OF HARRISON COUNTY, TEXAS Page 12 of 13

13 post-judgment interest, attorneys fees to the extent allowed by law, and such other relief to which they may be entitled under law or equity. Respectfully submitted, Mike Millsap (Lead Counsel) Attorney and Counselor at Law State Bar Number Broadway, Suite A Lubbock, Texas Voice: Fax: mikemillsap@msn.com And WARE SHAY & GARCIA, PLLC Travis S. Ware SBN: Suzie D. Shay SBN: Benjamin P. Garcia SBN: WARE, SHAY, & GARCIA 1915 Broadway Lubbock, Texas Voice Fax tswarelawoffice@aol.com IN THE 71 st DISTRICT COURT OF HARRISON COUNTY, TEXAS Page 13 of 13