Coon v. Southwestern Vermont Medical Center et al

Filing 164

OPINION AND ORDER: Plaintiff's 105 MOTION for Judgment as a Matter of Law is DENIED and 116 MOTION for Court to Reassess is DENIED as moot. Signed by Judge John M. Conroy on 7/16/2014. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Donald J. Coon,
Plaintiff,
v.

Civil Action No. 2:13-cv-182

Southwestern Vermont Medical Center,
Shea Family Funeral Homes,
Lon McClintock, Esq.,
Defendants.

OPINION AND ORDER
(Docs. 105, 116)
On June 25, 2013, Plaintiff Donald J. Coon, proceeding pro se, commenced this
action against several Defendants, including Defendant Shea Family Funeral Homes
(“Shea”). Mr. Coon’s claims stem from the death of his mother, Joan Marie Hunt, while
Ms. Hunt was a patient at the Southwestern Vermont Medical Center (“SVMC”); from
Shea’s actions following Ms. Hunt’s death; and from Attorney Lon McClintock’s alleged
breach of duties he owed to Mr. Coon during an investigation into Ms. Hunt’s death.
Motions to dismiss SVMC and Attorney McClintock as Defendants were granted by a
prior Opinion and Order and familiarity with that Opinion and Order is presumed. (See
Doc. 72.)
The remaining claims in this matter are against Shea only. They are: (1) commonlaw conversion by repossession of a grave stone installed by Shea; (2) intentional

infliction of emotional distress for grave desecration and the removal of the grave stone;
and (3) breach of contract for overcharging for professional funeral services. Mr. Coon
has filed a Motion for Summary Judgment, asserting that “no single issue is in dispute”
and that he is entitled to money damages in the amount of $2.5 million as a matter of law.
(See Doc. 105-1 at 20–21.) Shea opposes the Motion, arguing that it has been prejudiced
by Mr. Coon’s failure to comply with his discovery obligations, and that Mr. Coon
cannot meet his burden of proof for each claim. (See Doc. 119 at 1.) Mr. Coon filed a
Reply on June 4, 2014 (Doc. 127), and a “Final Respon[s]e” on June 5, 2014 (Doc. 128).
All parties have consented to direct assignment to the undersigned Magistrate
Judge. (Docs. 4, 10, 11, 48.) For the reasons that follow, Mr. Coon’s Motion for
Summary Judgment (Doc. 105) is DENIED. Mr. Coon’s “Motion to Reassess” (Doc.
116) addresses one of the issues raised in the Summary Judgment Motion and is DENIED
as moot.
Background
The following facts are material to Mr. Coon’s claims against Shea, and are
undisputed except where noted.1 In 2009, Mr. Coon and his mother Joan M. Hunt went
to Ackley’s Funeral Home in Cambridge, New York and made arrangements for their
own cremations and burials. (Doc. 105-22 at 1.) It is undisputed that, on or about
1

Ascertaining the material facts is complicated in this case because Mr. Coon’s “Statement of
Material Facts” (Doc. 105-1) contains numerous arguments and legal conclusions interspersed with
assertions of fact, lacks citations to the record for some factual assertions, and in other cases the evidence
cited does not support the assertion. Accordingly, Shea’s Response to Mr. Coon’s Statement of Material
Facts (Doc. 119-1) disputes each paragraph in Mr. Coon’s Statement on those (and other) grounds. The
Court has assembled the following statement with reference to the materials cited by both parties,
including Mr. Coon’s “Statement of Material Facts,” at least some of which appears to be sworn before a
notary (see Doc. 105-1 at 10).

2

January 30, 2010, Ms. Hunt died while she was a patient at SVMC. Mr. Coon claims that
his half-sister Joanne Becker murdered Ms. Hunt at the hospital. After Ms. Hunt’s death,
Mark Shea received a call from SVMC, and subsequently transported the body from the
hospital to Shea’s funeral home. (Doc. 119-5 at 1, ¶¶ 3–4.) Mr. Coon claims that Ms.
Becker hired Shea to cremate Ms. Hunt’s remains before any autopsy could be
performed.
Ms. Becker completed forms to arrange for funerary services with Shea. (Doc.
119-6 at 1, ¶ 2.) She completed a “Cremation and Disposition Authorization” in which
she identified herself as Ms. Hunt’s daughter. (Doc. 119-5 at 1, ¶ 6.) Also in that
document, Ms. Becker certified that she did not have “actual knowledge of any living
person who has a superior right to act as the Authorizing Agent.” (Doc. 58-5 at 1.)
According to Mark Shea, “Ms. Becker was listed as the hospital contact person for the
decedent, was the beneficiary of her life insurance policy, and it was my understanding
that she lived with the decedent as well.” (Doc. 119-5 at 1, ¶ 7.) Mr. Coon insists that
Ms. Becker had no “legal right to start or mainta[i]n any contract” on behalf of Ms. Hunt
or her estate. (E.g., Doc. 127-3 at 3; see also Doc. 17 at 3 (“Joanne M Becker had and
has no right to speak for our family then or now.”).) Mark Shea asserts that, at the time
he carried out Ms. Becker’s instructions, he was “not aware that Mr. Coon existed,” or
that there was any “request that the hospital perform an autopsy for the decedent.” (Doc.
119-5 at 1, ¶ 5.)

3

Shea arranged for a cremation, a granite monument, and for a graveside service,
among other things. (See Doc. 105-2 at 2.) Specifically, Shea billed for the following
items and services:
Basic Services of Director & Staff
Graveside Service
Transfer of Remains
Service/Utility Vehicle
Casket-Pine
Urn-Arlington
Medical Examiner Fees
Crematory Charges
Clergy Honorarium
Paid Death Notices-Troy Record and Bennington Banner
Paid Death Notices-Rutland [H]erald
Death Certificates
Burial Permit Fees
Grey Granite Monument
Grave Opening & Closing
Sales Tax

$1850.00
325.00
360.00
100.00
260.00
425.00
25.00
300.00
100.00
477.28
15.00
50.00
5.00
495.28
350.00
29.72

(Id.) The total charges for all of Shea’s services came to $5,167.28. (Id.)
Ms. Becker assigned the $5,000 in proceeds from Ms. Hunt’s life insurance policy
towards that bill, leaving $167.28 due. (See Doc. 105-1 at 2; Doc. 119-5 at 2, ¶ 8; Doc.
119-6 at 1, ¶ 4.) According to Shea, the unpaid balance of $167.28 was attributable to the
grave marker. (Doc. 119-5 at 2, ¶ 9; Doc. 119-6 at 1, ¶ 4.) Mark Shea believed that,
because the grave marker had not been paid for in full, he still owned it. (Doc. 119-5 at
2, ¶ 9.) He says that he nevertheless permitted it to remain on Ms. Hunt’s grave during
the service “as a gesture of good faith.” (Id.)
It is undisputed that Mr. Coon gave Shea a check dated April 5, 2010 in the
amount of $167 to cover the unpaid balance. (See Doc. 105-3 at 1; Doc. 119-5 at 2,

4

¶ 10.) On April 14, 2010, Shea’s bank informed Shea that the check was written on a
closed account, and charged Shea additional fees. (See Doc. 105-3 at 1; Doc. 105-18;
Doc. 119-5 at 2, ¶ 12.) As a result of the bank fees, Shea increased the unpaid balance to
$192. (Doc. 119-5 at 2, ¶¶ 13–14; Doc. 119-6 at 1, ¶ 4.)
Mr. Coon claims that on April 23, 2010 he sent Shea a $100 postal money order,
and that on May 2, 2010 he sent a $98 money order to cover the unpaid balance. (Doc.
105-1 at 2, 20.) Mr. Coon also claims that Ms. Hunt’s estate paid an additional $95
toward the outstanding balance. (Id. at 2–3.) Shea disputes that Mr. Coon ever sent Shea
money orders, asserting that he has no records of receiving them. (See Doc. 119-6 at 2,
¶ 8.) Mark Shea states that on November 2, 2010, he told Ms. Becker that if she did not
pay the remaining balance by December 1, 2010, Shea would remove the unpaid-for
grave marker. (Doc. 119-5 at 2, ¶ 15; Doc. 119-6 at 1, ¶ 5.)
According to Shea, the balance remained unpaid on December 1, 2010, and within
a “reasonable time” after that date, Mark Shea removed the grave marker from the
Buskirk, New York cemetery. (Doc. 119-6 at 2, ¶ 6.) Mark Shea asserts that he handcarried the marker from the grave site to his vehicle, and that he did not disturb any of the
adjoining graves or remove or damage any items on any of the adjoining graves. (Id. at
2, ¶ 7.)
In contrast, Mr. Coon asserts that Shea came to the cemetery on May 7, 2012
(shortly before Memorial Day) (see Doc. 17 at 5; Doc. 105-1 at 13), and that while there,
Shea removed Ms. Hunt’s marker, disturbed the grass and earth, left tire tracks, and
damaged other monuments as well as irreplaceable photos and a flag holder. (See Doc.
5

105-1 at 7–8, 17–18.) According to Mr. Coon, Shea’s desecration caused him emotional
distress and lost sleep, lost weight, and severe gastric illness, among other ill effects.
(See Doc. 105-1 at 9.)2
It is undisputed that on or about May 12, 2011, Mr. Coon’s uncle, Walter
Harwood, paid Shea $102.32 towards the allegedly outstanding monument fees. (See
Doc. 105-7 at 2; Doc. 105-9 at 1; Doc. 119-6 at 2, ¶ 9.) Shea asserts that it wrote off the
remaining $92 as a loss. (See Doc. 119-5 at 3, ¶ 17; Doc. 119-6 at 2, ¶ 9.) It is
undisputed that Shea returned the headstone to Ms. Hunt’s grave, although it is unclear
precisely when that occurred. (See Doc. 105-7 at 2 (“The headstone was returned to
Joan[’]s resting place that week [apparently in May 2012].”); see also Doc. 119-6 at 2,
¶ 10 (“I placed the grave marker on the grave site within a week of receiving partial
payment on Ms. Becker’s delinquent account, which would have been in mid-May of
2011.”).)
Analysis
I.

Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is

appropriate “if the pleadings, the discovery and the disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether there is a genuine issue of
2

The allegations in this paragraph appear in Mr. Coon’s Statement of Material Facts (Doc. 1051). In support of his claims regarding his emotional distress, Mr. Coon has attached what appear to be
copies of numerous documents pertaining to his medical health. (See Doc. 105-19.) Whether there is
admissible evidence in support of causation and the alleged damages is discussed below.

6

material fact, the Court must “interpret all ambiguities and draw all factual inferences in
favor of the nonmoving party.” Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006).
The burden of demonstrating the absence of a genuine issue of material fact rests upon
the party seeking summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970). Once a properly supported motion for summary judgment has been made, the
burden shifts to the nonmoving party to set out specific facts showing a genuine issue for
trial. See Fed. R. Civ. P. 56(2). The rules require that a nonmoving party set forth
specific facts in the affidavits, depositions, answers to interrogatories, or admissions,
showing that a genuine issue exists for trial. Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51
(2d Cir. 1996) (citing Celotex, 477 U.S. at 324).
II.

Discovery and Rule 56(d)
Shea argues that Mr. Coon has failed to comply with his discovery obligations,

and that Shea has been prejudiced by that failure. In support of its position, Shea has
supplied an affidavit pursuant to Fed. R. Civ. P. 56(d). (Doc. 119-2.) The Second Circuit
has explained that when a party facing a motion for summary judgment “reasonably
advises the court that it needs discovery to be able to present facts needed to defend the
motion, the court should defer decision of the motion until the party has had the
opportunity to take discovery and rebut the motion.” Commercial Cleaning Servs.,
L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 386 (2d Cir. 2001). Here, as described
below, the Court concludes that Mr. Coon’s Motion for Summary Judgment should be
denied. Accordingly, Shea’s Rule 56(d) argument is moot. See Yedigaryan v. Penske
Truck Leasing Corp., No. 1:09-cv-1009 (GLS/GHL), 2012 WL 430618, at *3 n.5
7

(N.D.N.Y. Feb. 10, 2012) (denying as moot Rule 56(d) motion made by party opposing
summary judgment because the court denied the summary judgment motion).3
III.

Grave-Desecration / Emotional-Distress Claim
The Court begins with Mr. Coon’s grave-desecration claim. This claim, as the

Court previously concluded, is governed by New York law. (See Doc. 72 at 35.) Shea
asserts that Mr. Coon’s grave-desecration claim is not actionable because it is akin to a
claim for wrongful disinterment of a body, which is not recognized in New York. See
Orlin v. Torf, 513 N.Y.S.2d 870, 872 (N.Y. App. Div. 1987) (“In light of the existence of
Not-For-Profit Corporation Law § 1510(e) and the fact that [the] Supreme Court is
without jurisdiction to order a disinterment in the absence of specific statutory authority,
it is apparent that this claimed common-law cause of action does not exist at this time in
this State.” (citation omitted)). Mr. Coon’s claim is not, however, a wrongfuldisinterment claim—he does not claim that Shea removed any human remains from the
grave. Rather, Mr. Coon alleges that Shea desecrated the grave by damaging the surface
and objects placed there, and by removing the grave stone. New York recognizes a cause
of action for desecration of a grave. See Gostkowski v. Roman Catholic Church of the
Sacred Hearts of Jesus & Mary, 186 N.E. 798, 800 (N.Y. 1933).
Shea asserts that Mr. Coon has failed to cite any admissible evidence that Shea did
anything other than remove the grave marker. (See Doc. 119-1 at 4.) The Court need not
reach that issue because, apart from any questions about the admissibility of Mr. Coon’s
evidence, Shea has presented admissible evidence that puts Mr. Coon’s assertions in
3

Of course, Mr. Coon’s discovery obligations are not made moot by this conclusion.

8

dispute, thereby precluding summary judgment in Mr. Coon’s favor with respect to the
alleged damage to the graves (other than the removal of the grave marker). In his
affidavit, Mark Shea asserts that he hand-carried the marker when he removed it and
when he returned it, and that he did not disturb any of the adjoining graves or remove or
damage any items on any of the adjoining graves. (Doc. 119-6 at 2–3, ¶¶ 7, 10.)
Summary judgment in favor of Mr. Coon with respect to the alleged damages to the
graves (other than the removal of the grave marker) is therefore clearly not appropriate.
Mr. Coon alleges that Shea’s removal of the grave marker itself caused him
emotional distress. (See Doc. 105 at 4.) Under New York law:
[T]he heirs of a decedent, at whose grave a monument has been erected, or
the person who rightfully erected it, can recover damages from one who
wrongfully injures or removes it, or by an injunction may restrain one who
without right threatens to injure or remove it, and this, though the title to
the ground wherein the grave is be not in the plaintiff, but in another.
Mitchell v. Thorne, 32 N.E. 10 (N.Y. 1892). Here, it is undisputed that Shea removed the
grave marker. Shea’s position is that removal was not wrongful because, after repeated
requests for payment, the marker had still not been paid for in full.
As noted above and discussed more fully below, Mr. Coon asserts that payment
was made in full before Shea removed the grave marker. However, even assuming that
payment was not made, Shea has cited no authority authorizing self-help repossession.
New York law provides that:
A person furnishing or placing in a cemetery or burial ground, a monument,
gravestone, inclosure or other structure, has a lien thereon for the agreed
price thereof or the part remaining unpaid, with interest from the time the
amount was due, upon filing with the superintendent or person in charge of
such cemetery or burial ground, a notice of lien as provided in this article.
9

N.Y. Lien Law § 120. Here, there are no facts as to whether Shea filed the requisite
notice to obtain a lien. More importantly, however, New York law does not authorize
self-help to enforce such a lien. Rather, the lienor must bring an action and obtain a
judgment, and, after doing so, must follow specific statutory procedures regarding notice
and sale. See id. § 122.
The Court nevertheless concludes that summary judgment in favor of Mr. Coon on
this issue is not appropriate. The factual record is insufficient to determine as a matter of
law that Shea’s removal of the grave marker caused the emotional distress that Mr. Coon
claims. Mr. Coon has supplied numerous pages of medical documentation (Doc. 10519), but he has introduced no evidence that the medical issues recounted in that
documentation were caused by Shea’s removal of the grave marker.
IV.

Conversion of the Grave Marker
As the Court previously noted, New York law applies to Mr. Coon’s conversion

claim. (See Doc. 72 at 37.) In New York, “[a] conversion takes place when someone,
intentionally and without authority, assumes or exercises control over personal property
belonging to someone else, interfering with that person’s right of possession.” Colavito
v. N.Y. Organ Donor Network, Inc., 860 N.E.2d 713, 717 (N.Y. 2006). “Two key
elements of conversion are (1) plaintiff’s possessory right or interest in the property and
(2) defendant’s dominion over the property or interference with it, in derogation of
plaintiff’s rights.” Pappas v. Tzolis, 982 N.E.2d 576, 580 (N.Y. 2012) (quoting Colavito,
860 N.E.2d at 717). Shea argues that Mr. Coon’s conversion claim fails “because (a)

10

Plaintiff did not have legal ownership or superior possession of the grave marker, (b)
Shea did not engage in unauthorized dominion over the grave marker to the alteration of
the marker or exclusion of Plaintiff’s rights, and (c) Plaintiff’s claim sounds in contract,
not tort.” (Doc. 119 at 5–6.) The Court discusses each of Shea’s arguments in turn.
In New York, “[c]onversion is concerned with possession, not with title.” State v.
Seventh Regiment Fund, Inc., 774 N.E.2d 702, 711 (N.Y. 2002) (internal quotation marks
and citation omitted). Thus, it is irrelevant whether the grave marker was fully paid for.
Once the marker was erected, Mr. Coon obtained a right to recover for injury to or
removal of the marker under Mitchell. The Court concludes that that is a sufficient
interest for a conversion claim.
Shea asserts that, because he gave Ms. Becker notice that he would remove the
marker if it was not paid for by December 1, 2010, and because payment was not made
by that date, Ms. Becker had tacitly authorized removal of the marker. That argument,
however, ignores the requirements of New York lien law as discussed above. To remove
the marker, Shea would have had to comply with N.Y. Lien Law §§ 120–124. Shea’s
argument, if adopted, would dispense with the protections afforded by New York law.
Finally, Shea argues that Mr. Coon’s conversion claim is really an attempt to
repudiate a contract between Ms. Becker and Shea. In support, Shea cites cases for the
proposition that in New York “a breach[-]of[-]contract claim may not be recast as a
conversion claim.” Wells Fargo Bank, N.A. v. Nat’l Gasoline, Inc., No. 10-CV-1762

11

(RER), 2013 WL 696651, at *5 (E.D.N.Y. Feb. 26, 2013).4 It is true that Mr. Coon seeks
to repudiate the contract with Shea. See infra. But that is different than a claim for
breach of contract. Moreover, the contract claim that Mr. Coon is bringing—for
overcharging or mischarging for services—is distinct from Mr. Coon’s conversion
claim.5
If it were to be assumed that Mr. Coon can prove liability for conversion, the
question becomes one of damages. In New York, “[t]he usual measure of damages for
conversion is the value of the property at the time and place of conversion, plus interest.”
Fantis Foods, Inc. v. Standard Importing Co., 402 N.E.2d 122, 125 (N.Y. 1980). Here, it
is undisputed that the stone was returned; that fact therefore works to mitigate any
damages. Ordinarily, a nominal damage award might be appropriate. However, since
Mr. Coon is alleging emotional distress arising from the removal of the grave marker, and
since the factual predicate for that claim is identical to Mr. Coon’s conversion claim, the
Court concludes that the best course of action is to deny summary judgment on the
conversion claim and resolve together all damages questions on all claims stemming from
the removal of the stone.

4

Shea’s argument is perhaps a species of argument based on New York’s economic loss rule,
which “bars recovery in negligence for economic damage absent personal injury or property damage.”
532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 750 N.E.2d 1097, 1101 (N.Y. 2001).
5

Mr. Coon is apparently simultaneously claiming that there was no contract, and that the
contract was breached.

12

V.

Contract Claims (Overcharging or Mischarging for Shea’s Services)
Mr. Coon’s final claim is that Shea overcharged or mischarged for the funeral

services that it provided. The Court applies Vermont law to Mr. Coon’s contract claims.
(See Doc. 72 at 29.)
First, Mr. Coon claims that Shea failed to credit the account with payments he says
he made by money order on April 23, 2010 ($100) and May 2, 2010 ($98), and with a
$95 payment allegedly made by Ms. Hunt’s estate. On this claim, there is a dispute of
fact that precludes summary judgment. Mr. Coon says that he (or Ms. Hunt’s estate) sent
the payments. Shea maintains that it never received those payments. It is inappropriate
in the present procedural context to resolve questions about whether those payments were
in fact sent by Mr. Coon or received by Shea.
Second, Mr. Coon claims that Shea charged for some services or items that were
not actually used at the funeral. (See Doc. 128-10 at 2.) However, Mr. Coon does not
explain how he has personal knowledge as to that allegation. In fact, Mr. Coon alleges
that he was not able to attend the funeral. (See Doc. 17 at 6, ¶ F.)
Third, Mr. Coon claims that the final Shea bill exceeded an original contract price
of $3,325. In support, Mr. Coon has supplied a “Statement of Funeral Goods and
Services Selected” dated January 30, 2010 and apparently signed by Ms. Becker. (Doc.
128-2.) The “summary of charges” in that document does in fact indicate a “balance
due” of $3,325. (Id.) However, the document also states as follows: “I also understand
that additional disbursements which are incurred but not included here will be listed on
the final statement. Where fees have been estimated adjustments will be reflected on the
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final statement.” (Id.) It is therefore clear that the document upon which Mr. Coon relies
is not a contract for a fixed price of $3,325, and cannot support a contract claim that any
charges over $3,325 constituted a breach.
Mr. Coon also claims that Shea’s prices exceeded the prices at other funeral
homes. In support, Mr. Coon has supplied documents purporting to show that funeral
services at the New Comer-Cannon Funeral Home, Ackley’s Funeral Home, and the
Scott & Barbieri Family Funeral Home would have been on the order of $3,000. (See
Doc. 105-15.) Shea attacks Mr. Coon’s documentation as being inadmissible and “of
unknown provenance and authenticity.” (Doc. 119 at 6.) The Court has reviewed Mr.
Coon’s documentation and agrees that there are serious issues with its admissibility.
Even putting that problem aside, Mr. Coon’s documentation does not prove that the
quoted prices encompass the same services that Shea provided. And, as Shea points out,
there is no legal obligation for a business to be the cheapest provider of services.
Mr. Coon asserts that he is entitled to a refund of all amounts paid to Shea because
Ms. Hunt’s prior arrangement with Ackely’s renders void any contract with Shea, and
because Ms. Becker lacked authority. (See Doc. 105 at 4; Doc. 127 at 1, 17, 21.)6 Mr.
Coon has cited no authority for the proposition that a contract voids all subsequent
contracts relating to the same subject matter. If that were true, business would grind to a

6

Mr. Coon raised this issue in a separate “Request for Clarification of Question Repeatedly
Asked and Never Answered.” (Doc. 109.) The Court denied that request, ruling that, to the extent Mr.
Coon sought to have Shea’s contract with the estate declared void, that question “relates to the ultimate
merits of Coon’s breach of contract claim and is not properly resolved in the context of a vague and
conclusory ‘motion for clarification.’” (Doc. 112 at 5.) Mr. Coon subsequently filed what appears to be a
motion to reconsider. (See Doc. 116.) The Court DENIES the reconsideration motion as moot, given that
the Court is addressing the issue presented in the summary judgment context.

14

halt because contracting parties could never be sure that there was not some prior contract
in place that voided the contract under consideration. See Restatement (Second) of
Contracts § 180 illus. 1 (“A and B make an agreement under which B promises to deliver
to A goods. B already has a contract to deliver the goods to C, but A neither knows nor
has reason to know this. On learning of B’s contract with C, A refuses to take the goods
or pay the price. Enforcement of B’s promise to deliver the goods to A is not precluded
on grounds of public policy and A has a claim against B for damages.”).
The Court rejects Mr. Coon’s assertion that the contract with Shea is void because
Ms. Becker misrepresented her authority. In Vermont, “a party induced into a contract
by fraud or misrepresentation can rescind the contract and avoid liability for any breach
thereon.” Sarvis v. Vt. State Colleges, 172 Vt. 76, 81, 772 A.2d 494, 498 (2001). That is
the rule articulated in the Restatement (Second) of Contracts § 164(1): “If a party’s
manifestation of assent is induced by either a fraudulent or a material misrepresentation
by the other party upon which the recipient is justified in relying, the contract is voidable
by the recipient.” Notably, the contract in such circumstances is only voidable; it is not
void ab initio. See Restatement (Second) of Contracts § 7; see also id. § 163 cmt. c.7
Moreover, “[u]sually the power to avoid is confined to one party to the contract.” Id. § 7
cmt. b.

7

A contract may be void from the start—i.e., never formed in the first place—when there has
been a misrepresentation “as to the character or essential terms of a proposed contract.” Id. § 163. Here,
Mr. Coon is not claiming that Ms. Becker misrepresented the character or terms of the contract; he is
alleging that she made a misrepresentation (concerning her authority) that induced Shea to enter into the
contract.

15

Here, assuming that Ms. Becker misrepresented her authority to make decisions
about Ms. Hunt’s remains and funeral, the effect would have been to vest Shea with a
power of avoidance. Mr. Coon cannot exercise that power. Moreover, even if Ms.
Becker was not actually authorized to make the decisions that she did, that does not mean
that there was no contract. Giving Shea the benefit of all reasonable facts and inferences,
Ms. Becker could be said to have had apparent authority to enter into the contract with
Shea on behalf of Ms. Hunt’s estate. See New England Educ. Training Serv., Inc. v.
Silver St. P’Ship, 148 Vt. 99, 105, 528 A.2d 1117, 1120 (1987) (under doctrine of
apparent authority, agent binds principal when third party reasonably relies on
representations that agent acting within scope of authority).
Finally, Mr. Coon asserts that the contract is void because it was entered into for
illegal purposes: to facilitate thefts by Ms. Becker, and to obstruct justice, namely by
preventing an autopsy and destroying any evidence that such a procedure might have
produced regarding the cause of Ms. Hunt’s death. (See Doc. 128 at 1.) It is true that, in
Vermont, “[a] contract whose formation or performance is illegal may be held void and
unenforceable.” My Sister’s Place v. City of Burlington, 139 Vt. 602, 613, 433 A.2d 275,
282 (1981). Vermont courts weigh a variety of factors in order to determine whether a
promise should not be enforced on public-policy grounds, including the directness of the
connection between the misconduct at the contract term. See Lang McLaughry Spera
Real Estate, LLC v. Hinsdale, 2011 VT 29, ¶ 26, 35 A.3d 100, 109 (citing Restatement
(Second) of Contracts § 178). Here, none of the contract terms were themselves illegal—
they involved cremation and funeral services for the decedent. Mr. Coon has offered
16

only speculation that Shea knew that the services contracted for were designed to
facilitate theft or obstruct justice. That is insufficient to support summary judgment on
Mr. Coon’s claim that the contract was void or unenforceable on public-policy grounds.
Conclusion
For the reasons stated above, Mr. Coon’s Motion for Summary Judgment (Doc.
105) is DENIED, and his “Motion to Reassess” (Doc. 116) is DENIED as moot.
Dated at Burlington, in the District of Vermont, this 16th day of July, 2014.

/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

17