Capps et al v. Cremation Options, Inc et al (TV2)
Filing
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MEMORANDUM OPINION AND ORDER denying defendants' 20 Motion for Summary Judgment. The parties shall jointly file a report indicating their respective positions regarding whether this matter is suitable for mediation. Signed by Chief District Judge Thomas A Varlan on 3/3/14. (ADA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
SHERRY J. CAPPS,
CHARLOTTE P. DELGAICCO, and
BRIAN D. PIERCE,
Plaintiffs,
v.
RHONDA L. BARNES,
JAMES R. BARNES,
JOSEPH A. CRUMLEY,
STEVEN R. CRUMLEY, and
PAULINE RHODES,
Defendants.
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No.: 3:12-CV-545-TAV-HBG
MEMORANDUM OPINION AND ORDER
This civil action is before the Court on the motion for summary judgment filed by
defendants Rhonda L. Barnes, James R. Barnes, Joseph A. Crumley, Steven R. Crumley,
and Pauline Rhodes (“defendants”) [Doc. 20].1 Plaintiffs responded in opposition to this
motion and requested that the Court defer or deny the motion pursuant to Federal Rule of
Civil Procedure 56(d) to allow plaintiffs to obtain affidavits and conduct discovery
essential to justify plaintiff’s opposition to the motion [Doc. 29].
The Court granted plaintiffs’ Rule 56(d) motion [Doc. 52], permitting them until
January 28, 2014—two weeks after the scheduled close of discovery—to file a
supplemental brief in opposition to defendants’ motion. The Court noted, however, that
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Angela Crumley was listed as a defendant in the original complaint and this motion, but
she was not included in the amended complaint [Doc. 46], and the parties’ joint status report
[Doc. 53] represents that plaintiffs have dismissed Angela Crumley as a defendant.
if plaintiffs failed to file a supplemental brief, the Court would rule upon defendants’
motion based upon the present record. Plaintiffs did not file a supplemental brief by
January 28, 2014. The Court has thoroughly considered the arguments of the parties, the
relevant documents and exhibits, and the controlling law. For the reasons set forth
herein, defendants’ motion is denied.
I.
Background
Plaintiffs are the biological children of Richard A. Pierce, Jr. (“the decedent”),
who died on October 23, 2011, in Sevier County, Tennessee [Doc. 38 p. 1]. Defendants
Rhonda Barnes, Joseph Crumley, and Steven Crumley are stepchildren of the decedent,
defendant James Barnes is the husband of Rhonda Barnes, and defendant Pauline Rhodes
is the decedent’s sister [Doc. 46 ¶ 17]. Defendants allege that after being admitted to
LeConte Medical Center on October 13, 2011, the decedent executed “Appointment of
Health Care Agent” and “Advance Care Plan” forms, which were provided by social
worker Elizabeth Robinson [Doc. 23 ¶ 6]. On these forms, Rhonda Barnes is listed as the
person designated by the decedent to make health care decisions on his behalf once he is
unable to do so, and the forms were purportedly signed by the decedent on October 13,
2011 [Doc. 26 pp. 3–5]. These forms were notarized by Robinson and, according to an
affidavit from a medical center employee, were “prepared by personnel of Covenant
Health, staff, physicians, or persons acting under the control of either” [Id.]. According
to defendants, the decedent reviewed these forms and discussed his intentions with
Rhonda Barnes and Pauline Rhodes before signing them [Docs. 23 ¶ 6, 24 ¶ 4].
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On the Advance Care Plan form, under the section entitled “[o]ther instructions,
such as burial arrangements, hospice care, etc.,” the word “creamation” [sic] is written
without further instruction [Doc. 26 p. 4]. Plaintiffs Sherry J. Capps and Charlotte P.
DelGaicco aver that, based on their familiarity with the decedent’s handwriting, he did
not write “creamation” [Doc. 33 ¶ 3; Doc. 35 ¶ 3]. Moreover, they submit that the
decedent never indicated to them his desire to be cremated [Doc. 33 ¶ 4; Doc. 35 ¶ 7].
On October 21, 2013, Rhonda Barnes signed a form in place of the decedent, who
was apparently unable to do so, using her maiden name, Rhonda Crumley, and
identifying herself as the decedent’s “daughter” [Doc. 34 pp. 2–3]. This form indicated
that the decedent did not have an “Advance Directive” [Id. at 2]. On the day after the
decedent’s death, an employee of LeConte Medical Center told Sherry Capps that there
was no advance care directive on file for the decedent [Doc. 35 ¶ 8].
Yet, the
aforementioned forms were later produced from the records of LeConte Medical Center
[Doc. 26 pp. 3–4].
Following the decedent’s death, Cremation Options, Inc. (“Cremation Options”),
who has been dismissed as a defendant in this action, was contacted regarding the
cremation of the decedent [Doc. 37-1 ¶ 3].
On October 24, 2011, Jarrett Vance
(“Vance”), who was then an employee of Cremation Options, was dispatched to an
address in Sevier County, Tennessee, where he met with Rhonda Barnes, Steven
Crumley, and Joseph Crumley [Doc. 37-6 ¶¶ 2–3]. Vance avers that during this meeting,
Rhonda Barnes told him that she was the decedent’s daughter, and Steven and Joseph
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Crumley told him that they were the decedent’s sons [Id. ¶ 4]. Further, when Vance
inquired as to whether there were any other siblings, Rhonda Barnes, Steven Crumley,
and Joseph Crumley replied that there were not [Id.].
During this meeting with Vance, Rhonda Barnes, Steven Crumley, and Joseph
Crumley signed two documents authorizing Cremation Options to arrange for the
cremation of the decedent [Id. ¶ 5; Doc. 37-2]. In the first document, titled “Cremation
and Disposition Authorization,” these three defendants averred that: (1) they “are legally
authorized to arrange for the cremation, processing, and final disposition of the remains
of [the decedent],” (2) “all of the Decedent’s other adult children have been notified of
the decedent’s death and none of them have expressed an objection to the cremation,” (3)
“I/We are aware of no objection to this cremation by any . . . child . . . or any person in
the next degree of kinship to the Decedent,” (4) “I/We . . . certify that I/We have the legal
right to make [the cremation] authorization and agrees to hold Cremation Options, Inc. . .
. harmless . . . from any liability on account of said authorization, cremation,
identification, and final disposition,” and (5) the obligations of Cremations Options shall
be fulfilled when the decedent’s remains are delivered to Rhonda Barnes [Doc. 37-2].
Plaintiffs were not present when this document was signed, and the president of
Cremation Options, James Safewright, was not aware of their existence at that time [Doc.
37-1 ¶ 5]. After the cremation had been completed, Cremation Options was to deliver the
decedent’s remains to Rhonda Barnes in accordance with the Cremation and Disposition
Authorization [Doc. 37-4 p. 4].
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On October 24, 2011, the decedent was cremated [Doc. 37-1 ¶ 9]. The following
day, James Barnes executed one of the decedent’s checks to Cremation Options in the
amount of $1,542.79, presumably as payment for the decedent’s cremation [Doc. 34 p.
5]. Then, as authorized by Charlotte DelGaicco and Rhonda Barnes on October 25, 2011,
Cremation Options released half of the decedent’s cremated remains to each of them
[Doc. 37-1 ¶ 10; Doc. 37-5]. Both Charlotte DelGaicco and Rhonda Barnes signed forms
acknowledging this release on that same day [Doc. 37-5].
Plaintiffs allege that defendants are liable under Tennessee law for intentional
infliction of emotional distress, negligent infliction of emotional distress, trespass upon
the right to possess a body for decent burial, and conversion of cremated remains [Doc.
46]. Defendants argue that the Appointment of Health Care Agent and Advance Care
Plan designated cremation as the decedent’s preferred method of disposal of his body and
granted Rhonda Barnes the right to control the decedent’s disposition, as well as a
durable power of attorney for health care pursuant to Tenn. Code Ann. § 34-6-204 [Doc.
21 pp. 2–4]. And, because she acted in accordance with the decedent’s wishes and with
the authority granted to her by the decedent, defendants submit that they are entitled to
summary judgment [Id.]. James R. Barnes and Pauline Rhodes add that they are also
entitled to summary judgment because they did not sign any agreement or contract for the
decedent’s cremation [Id. at 4–5].
Meanwhile, plaintiffs submit that genuine issues of material fact exist as to the
genuineness and validity of the documents allegedly executed by the decedent that
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indicate his desire that his body be cremated [Doc. 30 p. 3]. More specifically, plaintiffs
submit that “the observable dissimilarity in handwriting of the word ‘creamation’ [sic]
and the handwritten portions of the other parts of the Advance Care Plan raises a genuine
issue of material fact” as to whether the decedent completed that portion of the form [Id.].
Along these lines, plaintiffs add that this handwriting does not match that of the decedent
[Doc. 33 ¶ 3; Doc. 35 ¶ 3]. Plaintiffs further aver that the decedent never indicated to
them his desire to be cremated [Doc. 30 p. 3]. In addition, they note both Rhonda Barnes
and LeConte Medical Center denied the existence of an advance care directive after the
forms at issue had purportedly been executed, though LeConte later produced these forms
from its records [Id.; Doc. 26 pp. 3–4].
Moreover, plaintiffs contend that the fact that neither James Barnes nor Pauline
Rhodes signed any agreement or contract concerning the decedent’s cremation is not
determinative of their allegations against these two defendants [Id. at 2]. To this end,
these defendants may have conspired orally to cremate the decedent’s remains and,
notably, James Barnes signed the check to Cremation Options, and Pauline Rhodes was
with the decedent when he purportedly executed the forms and avers that she discussed
his intentions before he did so [Doc. 24 ¶ 5; Doc. 25 ¶ 6].
II.
Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is
proper “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
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moving party bears the burden of establishing that no genuine issues of material fact
exist. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Phillip Morris
Cos., Inc., 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn
therefrom must be viewed in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Burchett v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002).
Yet, “[o]nce the moving party presents evidence sufficient to support a motion
under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of
allegations.” Curtis Through Curtis v. Universal Match Corp., Inc., 778 F. Supp. 1421,
1423 (E.D. Tenn. 1991) (citing Celotex, 477 U.S. at 317). To establish a genuine issue as
to the existence of a particular element, the nonmoving party must point to evidence in
the record upon which a reasonable finder of fact could find in its favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material;
that is, it must involve facts that might affect the outcome of the suit under the governing
law. Id.
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper
question for the factfinder. Id. at 250. The Court does not weigh the evidence or
determine the truth of the matter. Id. at 249. Nor does the Court search the record “to
establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). Thus, “the inquiry performed is the
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threshold inquiry of determining whether there is a need for a trial—whether, in other
words, there are any genuine factual issues that properly can be resolved only by a finder
of fact because they may reasonably be resolved in favor of either party.” Anderson, 477
U.S. at 250.
III.
Analysis
Plaintiffs bring four causes of action against defendants under Tennessee law: (1)
intentional infliction of emotional distress; (2) negligent infliction of emotional distress;
(3) trespass upon the right to possess a body for decent burial; and (4) conversion of
cremated remains.
Yet, defendants’ motion implicates an antecedent issue as they
essentially argue that plaintiffs have no right to bring their claims because the forms at
issue granted Rhonda Barnes the right to control the disposition of the decedent’s body.
“[I]n Tennessee, any tort claims for negligent, reckless or intentional interference
with a dead body and the like can be brought only by the person or persons who have the
right to control disposition of the body.” Crawford v. J. Avery Bryan Funeral Home,
Inc., 253 S.W.3d 149, 159–60 (Tenn. Ct. App. 2007). A footnote to this sentence adds:
“This would also include tort claims such as negligent and/or intentional infliction of
emotional distress.” Id. at 160 n.6.2
In 2010, the Tennessee Supreme Court considered a certified question from a
federal district court that asked: “Who has the legal control over the disposition of the
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The Crawford court retreated slightly by noting that it would not go so far as to say that
a family member within the right to control disposition could never bring such a claim, using the
example of a case in which the deceased’s remains were mutilated in front of the family. Id. at
160.
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remains of a decedent when there is no surviving spouse?” Seals v. H & F, Inc., 301
S.W.3d 237, 240 (Tenn. 2010). Noting that a decedent possesses primary authority over
the method of his or her disposition, the Court held:
Until our General Assembly provides more explicit guidance on the
subject, we adopt the following order of priority as to the right to
dispose of a dead body: (1) the decedent, pre-mortem, including
through any party designated in writing by the decedent to make the
decision post-mortem; (2) the spouse of the decedent; (3) adult
children of the decedent; (4) parents of the decedent; (5) adult
siblings of the decedent; (6) adult grandchildren of the decedent; (7)
grandparents of the decedent; and (8) an adult who exhibited special
care and concern for the decedent.
Id. at 246.
The Tennessee General Assembly soon provided such guidance.
In 2012, it
enacted statutes addressing the aforementioned question posed to the Tennessee Supreme
Court in Seals. See Tenn. Code Ann. § 62-5-701, et seq. Yet, under the Tennessee
Constitution, “[s]tatutes are presumed to operate prospectively unless the legislature
clearly indicates otherwise.” Nutt v. Champion Int’l Corp., 980 S.W.2d 365, 368 (Tenn.
1998) (citing Tenn. Const. art. 1, § 20 (stating “[t]hat no retrospective law, or law
impairing the obligations of contracts, shall be made”)). Because this legislation does not
clearly indicate that it applies retroactively, and in light of the fact that the events at issue
occurred in October 2011, the Court finds that this legislation does not apply here. Thus,
the Tennessee Supreme Court’s holding in Seals governs.
The “Appointment of Health Care Agent” and “Advance Care Plan” forms
purportedly represent the decedent’s wishes that (1) Rhonda Barnes make any health care
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decisions on his behalf upon his inability to do so and (2) that his remains be cremated.3
Yet, even assuming that these forms constitute a valid, pre-mortem declaration of the
decedent’s wishes, they fail to specify whom the decedent wanted to control the
disposition of his remains or possess his remains following his cremation. Plaintiffs note
as much in their response, arguing that “none of the defendants’ submissions support the
right of any defendant to direct the ultimate disposition of the cremated remains” [Doc.
29 p. 2 (emphasis in original)]. Consequently, on the present record, the Court cannot
conclude as a matter of law that Rhonda Barnes had the right to control the disposition of
the decedent’s remains, and the Court must therefore deny defendants’ motion for
summary judgment.
Regarding defendants’ argument that James Barnes and Pauline Rhodes should be
dismissed as defendants because they did not sign an agreement or contract for the
3
Of note, though defendants submit that these forms constituted a durable power of
attorney for health care, Tenn. Code Ann. § 34-6-201(1) defines a durable power of attorney for
health care as “a durable power of attorney to the extent that it authorizes an attorney in fact to
make health care decisions for the principal.” And:
A durable power of attorney is a power of attorney by which a principal
designates another as the principal’s attorney in fact in writing and the
writing contains the words “This power of attorney shall not be affected
by subsequent disability or incapacity of the principal,” or “This power of
attorney shall become effective upon the disability or incapacity of the
principal,” or similar words showing the intent of the principal that the
authority conferred shall be exercisable, notwithstanding the principal’s
subsequent disability or incapacity.
Tenn. Code Ann. § 34-6-102. Here, the forms do not designate Rhonda Barnes as the decedent’s
attorney in fact and instead simply grant her the authority to make health care decisions. Thus,
they are akin to an advance directive for health care executed pursuant to Tenn. Code Ann. § 6811-1803(b), rather than a durable power of attorney.
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decedent’s cremation [Doc. 20 p. 2; Doc. 21 p. 4], defendants fail to cite any authority
supporting the proposition that these defendants are entitled to judgment as a matter of
law because they did not sign the cremation contract. Moreover, both James Barnes and
Rhodes were admittedly involved to some degree in the events at issue as Barnes paid the
bill for the cremation and Rhodes was present and a part of the conversation when the
decedent purportedly executed the forms [Doc. 24 ¶ 5; Doc. 25 ¶ 6]. Accordingly, in
light of the foregoing, the Court declines to grant summary judgment to James Barnes
and Pauline Rhodes on this basis.
IV.
Conclusion
For the reasons explained herein, defendants’ motion for summary judgment [Doc.
20] is hereby DENIED. The parties shall jointly file a report indicating their respective
positions regarding whether this matter is suitable for mediation, as defined by Local
Rule 16.4, within ten (10) days of the entry of this order.
IT IS SO ORDERED.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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