© 2015 The Texas Lawbook.
By Kerry Curry
(July 20) – A dispute over a landowner’s actions at an historic African-American cemetery south of Dallas remains unresolved after a judge ruled the case a mistrial on Friday.
An Ellis County jury was unable to agree whether a landowner and his company were negligent in their actions at St. Mary Cemetery located in rural Ellis County, south of Dallas.
The cemetery is believed to be about 150 years old and is situated on land that was once the Tarrant plantation. Its graves date to the late 1880s and include some of the county’s early inhabitants, including slaves owned by Edward H. Tarrant, the namesake of Tarrant County. One unmarked grave is believed to be that of Willoughby Rankin, a slave of Frederick Harrison Rankin, who was one of Stephen F. Austin’s old 300 colonists. In addition, the grandmother of George Brown, the first African-American mayor of Waxahachie, is buried at the cemetery.
The 2014 lawsuit pitted Irving-based Creek Land and Cattle and its owner, Blair Dance, against the St. Mary Cemetery Association, which represents the descendants of people buried at the cemetery. Elmerine Bell, a resident of Italy, Texas and a retired Dallas schoolteacher, acted as lead plaintiff for the cemetery association.
“Of course I’m disappointed, but I feel we did the best we could,” Bell said. “We had overwhelming evidence. Our attorney did a phenomenal job. I think the judge was fair in letting in the majority of the testimony that we wanted.”
Bell said one of the jurors contacted her after the trial and expressed a desire to tour the cemetery, and Bell accompanied her to St. Mary Cemetery over the weekend.
“She was appalled that the jury didn’t come back with a verdict in our favor,” Bell said.
The cemetery association alleged that Dance and his company removed undergrowth on the cemetery grounds, leveled land where unmarked graves were located and adjusted the boundaries of the cemetery with a new chain-link fence that they allege encroaches onto cemetery property—resulting in unmarked graves outside the fence and underneath land that is being farmed.
Dance’s company bought 293 acres of land in rural Ellis County, which included the cemetery, in 2010. The alleged damage occurred in March 2012.
Adam Sanderson, one of the defense attorneys and a partner with Dallas business litigation firm Reese Gordon Marketos, was surprised by the hung jury.
“He is a landowner who saw the need to replace an old barbed wire fence around a cemetery and that is what he did, but I’m not surprised (on the mistrial) in the sense that the jury couldn’t agree on awarding any damages to the plaintiff. I don’t think we’ll ever go back to trial again on this matter.”
The defendants were also represented by Joel Reese of the same firm; Frank Boyles of Irving and Clay Hinds of Waxahachie.
Craig Albert, a partner in the Dallas law firm of Cherry Petersen Landry Albert, represented the plaintiffs.
The jury charge did not allow the jury to address the dispute over the boundary line, nor did it allow for the awarding of attorney’s fees.
The three jurors who didn’t agree on negligence felt like they didn’t have enough evidence to prove negligence, Albert said.
The case will be reset for trial for early 2016, but it’s possible the two sides will re-enter settlement talks, Albert said.
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