State ex rel. Chevra Kadisha Cemetery Ass'n v. Reno
2017 Mo. App. LEXIS 793
| Mo. Ct. App. | 2017Background
- Gregoriy Bozenson contracted for cremation in 2012; heirs expected cremains shipped to Ukraine for burial.
- After his death in 2012 the mortuary did not cremate him; instead he was buried in a pauper’s grave at Chevra Kadisha Cemetery without heirs’ knowledge or consent.
- Heirs and Jay Umansky sued the mortuary for breach of contract and obtained an order (March 5, 2015) granting them the right of sepulcher and directing disinterment and transfer to Ukraine.
- The circuit court issued writs of execution (2015, 2016) directing the cemetery to make remains available; the cemetery refused to allow disinterment.
- The circuit court held the cemetery in contempt (July 7, 2017) and imposed a daily fine until compliance; the cemetery sought a writ of prohibition and this court issued a preliminary writ and later made it permanent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the circuit court could hold the cemetery in contempt for failing to comply with the disinterment order | Heirs: the court’s disinterment order should be enforced and contempt is appropriate to compel compliance | Cemetery: it was not a party to the disinterment order and thus not bound or subject to contempt | Court: cemetery was not a party or in privity; contempt lacked jurisdiction; prohibition warranted and made permanent |
| Whether the cemetery was bound by the March 5, 2015 order (privity/due process) | Heirs: order binds parties necessary to effect disinterment; contempt arises from failure to obey | Cemetery: due process prevents binding a nonparty; no privity or concerted action with parties | Court: judgments bind only parties or privies; no privity shown; binding a nonparty would violate due process |
Key Cases Cited
- State ex rel. Merrell v. Carter, 518 S.W.3d 798 (Mo. banc 2017) (court’s authority to issue original remedial writs)
- State ex rel. Strauser v. Martinez, 416 S.W.3d 798 (Mo. banc 2014) (standards for issuing writs of prohibition)
- Green v. Fred Weber, Inc., 254 S.W.3d 874 (Mo. banc 2008) (judgments bind only parties and those in privity)
- Parklane Hosiery Co. v. Shore, 439 U.S. 322 (U.S. 1979) (due process prohibits binding nonparties who lacked opportunity to be heard)
- Pauli v. Spicer, 445 S.W.3d 667 (Mo. App. E.D. 2014) (trial court judgments do not bind nonparties)