In re Disinterment of Glass
Rendered on the 7th day of January, 2022.
ROBERT H. HOLLENCAMP, Atty. Reg. No. 0084370 and ANTHONY V. GRABER, Atty. Reg. No. 0095691, 130 West Second Street, Suite 1500, Dayton, Ohio 45402 Attorneys for Appellant The Calvary Cemetery Association of Dayton, Ohio
JULIA B. MEISTER, Atty. Reg. No. 0065575 and AARON M. HERZIG, Atty. Reg. No. 0079371, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202 and ROBERT T. DUNLEVEY, JR., Atty. Reg. No. 0011154 and CHRISTOPHER M. WOLCOTT, Atty. Reg. No. 0099696, 40 North Main Street, Suite 1700, Dayton, Ohio 45423 Attorneys for Appellees Roger Glass and Carol Pollock
RICHARD A. TALDA, Atty. Reg. No. 0023395 and JOSHUA R. LOUNSBURY, Atty. Reg. No. 0078175, 33 West First Street, Suite 200, Dayton, Ohio 45402 Attorneys for Appellee Kathleen Glass
{¶ 1} These consolidated cases are before the court on the appeal of The Calvary Cemetery Association of Dayton, Ohio (“Calvary“) from probate court orders denying Calvary‘s motion to quash a subpoena and notice to take
{¶ 2} After considering Calvary‘s arguments, we find them to be without merit. These cases involve applications for disinterment, which were brought under
{¶ 3} Furthermore, even if
{¶ 4} Finally, the probate court did not abuse its discretion when it found that Calvary had failed to establish that the subpoena imposed an undue burden. Calvary‘s sole assignment of error, therefore, will be overruled.
{¶ 5} On December 14, 2020, Appellee Roger Glass filed two applications for an order to disinter remains. One application (designated as Montgomery P.C. No. 2020-MSC-00382) concerned the remains of Rоger‘s father, Marion J. Glass, who died in March 2006. The other (designated as Montgomery P.C. No. 2020-MSC-00383) concerned the remains of Roger‘s mother, Irene J. Glass, who died in January 2000.1 In an attachment to the applications, Roger listed the next of kin, who were himself and his sisters, Carol Pollock (an Illinois resident) and Kathy Glass (a Florida resident). While Carol consented to the applications, Kathy objected.
{¶ 6} On April 22, 2021, the probate court consolidated the two cases. Subsequently, Calvary entered the cases as a nonparty in order to file motions to quash a subpoena and notice to take
{¶ 7} In response to the subpoenas, Calvary had produced its entire file regarding Irene and Marion but had opposed any participation in depositions. Calvary contended that the proposed depositions subjected it to undue burden and sought privileged information, for which Kathy could not show a substantial need. Motion to Quash Subpoena (Apr. 23, 2021), p. 4. Calvary further argued that it had no duty to comply with
{¶ 8} On May 6, 2021, the case was referred to mediation. The following day, Kathy filed a response to the motions to quash, contending that she sought only limited deposition information on five topics from Calvary, which had been refused. These topics concerned four Glass family crypt spaces, the rights to those spaces (two of which were empty), Roger‘s plans to construct a new mausoleum at Calvary, designs for the mausoleum, and Roger‘s purchase of ground at Calvary for the mausoleum and associated sales documents. Memorandum in Opposition to Motion to Quash (May 7, 2021), p. 5. On May 14, 2021, Calvary filed a reply in support of its motions to quash.
{¶ 9} The probate court denied the motions to quash on May 17, 2021. In its decision, the court distinguished between disputed final dispositions under
{¶ 10} Furthermore, the court found that Calvary had failed to establish that the depositions would be an undue burden or that the information in question was privileged.
{¶ 11} On June 18, 2021, Appellees Roger and Carol filed a motion to dismiss the appeals based on lack of jurisdiction due to the alleged lack of a final appealable order. On August 25, 2021, Kathy filed a motion for expedition of the appeals, and Calvary opposed the expedition motion on August 31, 2021. We then consolidated the appeals on our own motion. See In re Disinterment of Marion J. Glass, Deceased, and In re Disinterment of Irene J. Glass, 2d Dist. Montgomery Nos. 29160 and 29161 (Order, Oct. 28, 2021).
{¶ 12} Previously, when Roger and Carol filed their appellate brief, they argued that we lacked jurisdiction over the appeals, based on the absence of a final appealable order. We addressed both expedition and the final appealable order issue by granting expedition and declining to dismiss the appeal. See In re Disinterment of Marion J. Glass, Deceased and In re Disinterment of Irene J. Glass, 2d Dist. Montgomery Nos. 29160 and 29161 (Decision & Entry, Nov. 2, 2021), p. 2. While we were not convinced that the entry on appeal resulted from a special proceeding as outlined in
{¶ 13} We further held that the probate court‘s order determined the provisional remedy because it required Calvary‘s representative to sit for a deposition. Id. at p. 14. And while we found satisfaction of the third prong (denial of a meaningful remedy absent
{¶ 14} With this background in mind, we will consider Calvary‘s sole assignment of error.
II. Relationship between R.C. Chap. 2108 and Disinterment Statutes
{¶ 15} Calvary‘s sole assignment of error states that:
The Probate Court Erred in Denying Calvary‘s Motion to Quash Because
R.C. 2108.83 Afforded Calvary, as a Cemetery Organization, Discretion Whether to Assist Regarding the Glass Family Dispute Concerning the Final Disposition for Irene and Marion Glass, as the Disinterment Applications underR.C. 517.23 andR.C. 517.24 Concern a Matter of Final Disposition Under Chapter 2108 of the Ohio Revised Code.
{¶ 16} Under this assignment of error, Calvary argues that the probate court erred in overruling its motion, as a nonparty, to quash discovery. Specifically, Calvary contends that R.C. Chap. 517 and R.C. Chap. 2108 should be applied harmoniously, and that under
{¶ 17} Roger and Carol‘s brief only discusses jurisdiction, and we have already disposed of that issue. However, Kathy contends that an abuse of discretion standard applies, that Calvary waived discovery arguments by providing discovery in the probate court, and that
A. Standards of Review
{¶ 18} As a general rule, “discovery orders are reviewed under an abuse-of discretion standard.” Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13. “However, where a trial court‘s order is based on an erroneous standard or a misconstruction of the law, it is not appropriate for a reviewing court to use an abuse of discretion standard. In determining a pure question of law, an appellate court may properly substitute its judgment for that of the trial court, since an important function of appellate courts is to resolve disputed propositions of law.” Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership, 78 Ohio App.3d 340, 346, 604 N.E.2d 808 (2d Dist.1992).
{¶ 19} In the case before us, the probate court‘s decision was initially based on whether a particular statute applied to a discovery matter. This was not a factual decision, but involved questions of law. Consequently, de novo review is appropriate. Conversely, the court‘s decision on undue burden does not involve legal questions, and an abuse of discretion analysis should be applied.
B. Application of R.C. Chap. 2108
{¶ 21}
In the event of a dispute regarding the right of disposition, a funeral home, funeral director, crematory operator, cemetery operator, cemetery organization, or other person asked to assist with a declarant‘s or deceased person‘s funeral, burial, cremation, or other manner of final disposition shall not be liable for damages of any kind for refusing to accept the remains, refusing to inter, cremate, or otherwise dispose of the remains, or refusing to complete funeral or other arrangements pertaining to final disposition until such funeral home, funeral director, crematory operator, cemetery operator, cemetery organization, or other person receives a court order or a written document that is executed by a person that the funeral home, funeral director, crematory operator, cemetery operator, cemetery organization, or other person reasonably believes has the right of disposition and that clearly expresses how the right of disposition is to be exercised.
{¶ 22} There is no case law in Ohio addressing in detail the relationship between this section and
{¶ 23}
An adult who is of sound mind may execute at any time a written declaration assigning to a representative one or more of the following rights:
(1) The right to direct the disposition, after death, of the declarant‘s body or any part of the declarant‘s body that becomes separated from the body before death. This right includes the right to determine the location, manner, and conditions of the disposition of the declarant‘s bodily remains.
(2) The right to make arrangements and purchase goods and services for the declarant‘s funeral. This right includes the right to determine the location, manner, and condition of the declarant‘s funeral.
(3) The right to make arrangements and purchase goods and services for the declarant‘s burial, cremation, or other manner of final disposition. This right includes the right to determine the location, manner, and condition of the declarant‘s burial, cremation, or other manner of final disposition.
{¶ 24} A “declarant” is defined as “an adult who has executed a written declaration.”
{¶ 25} In two situations,
{¶ 26} The priority list begins with the decedent‘s surviving spouse and then descends to the sole surviving child, or if more than one child exists, to the children collectively. The right then further descends to the decedent‘s surviving parents, and so forth, ending with public officers or employees responsible for arranging for disposition of indigent persons. See
{¶ 27}
{¶ 28} Certain individuals are statutorily disqualified from serving as representatives or successor representatives. These include declared incompetents;
{¶ 29} As noted, in the event of disputes about disposition,
{¶ 30} And finally, the other statute Calvary mentions,
{¶ 31} “Where the language of a statute is plain and unambiguous and conveys a
{¶ 32} We also note that R.C. Chap. 2108 does not define final disposition. However, R.C. Chap. 4717 (located in Title 47 of the Ohio Revised Code relating to occupations and professions) does contain a definition. R.C. Chap. 4717 covers embalmers, funeral directors, and crematory facility operators. The definitions for that chapter define “final disposition” as having “the same meaning as in division (J) of section 3705.01 of the Revised Code.”
{¶ 33} In view of the preceding discussion, any rights that
{¶ 34} Unlike the above statutes on disposition,
{¶ 35} Under
{¶ 36} The second situation is involved here. Under
{¶ 37} After a hearing, the probate court may issue a disinterment order if good cause is shown.
{¶ 38} In contrast to the statutes involved in the original disposition of a body,
{¶ 39} The probate court would also decide cases involving a cemetery association‘s refusal to disinter or grant permission to a surviving spouse who has applied for disinterment. See
{¶ 40} In view of the separate legislative treatment of disinterment situations and the lack of ambiguity in any of these statutes, we agree with the probate court that
{¶ 41} As indicated, Calvary argues that the statues for disposition should be read in harmony. As support, Calvary cites a dissenting opinion in Albrecht v. Treon, 118 Ohio St.3d 348, 2008-Ohio-2617, 889 N.E.2d 120. Appellant‘s Brief, p. 6, and 7, citing
{¶ 42} In Albrecht, the Supreme Court of Ohio considered a question certified by a federal court on “whether the next of kin of a decedent upon whom an autopsy has been performed have a protected right under Ohio law in the decedent‘s tissues, organs, blood, or other body parts that have been removed and retained by the coroner for forensic examination and testing.” Id. at ¶ 1. In that case, the coroner had released a son‘s body to his parents but had retained the brain for further examination to decide the cause of death. Id. at ¶ 5. The court concluded that “the next of kin of a decedent upon whom an autopsy has been performed do not have a protected right under Ohio law in the decedent‘s tissues, organs, blood, or other body parts that have been removed and retained by the corner for forensic examination and testing.” Id. at ¶ 43.
{¶ 43} In its opinion, the court commented that while
{¶ 44} In his dissent, Justice Pfeifer focused on the fact that the rights in the case should be decided on law existing before
{¶ 45} As noted by Calvary, Justice Pfeifer further stated that “[a]ll together, Ohio statutes grant next of kin important rights regarding the remains of a family member – the rights to possess, to control the disposition of, and to prevent the disposition of the remains.” Id. at ¶ 64. There is no doubt that Ohio statues grant disposition rights to the next of kin. However, this was a general statement and obviously referred to the рarticular statutes involved in Albrecht.
{¶ 46} Furthermore, for the reasons previously mentioned, Albrecht and Justice Pfeifer‘s dissent are irrelevant. First, the provisions for anatomical gifts are found in R.C. Chap. 2108, not R.C. Chap. 517. See
{¶ 47} Calvary also relies on Swing, 2014-Ohio-5454, 26 N.E.3d 827, as support for the fact that
{¶ 48} Swing involved an application by a decedent‘s son, who sought to disinter his father‘s cremains. These cremains were originally given to the grandparents and had later been placed inside the grandmother‘s casket when she was buried. Id. at ¶ 3-5. This was done without the son‘s knowledge and in contravention of cemetery policy. Id. at ¶ 5-6. After the probate court granted the disinterment, the grandfather and an uncle appealed. Id. at ¶ 6-8.
{¶ 49} The first assignment of error concerned the probate court‘s alleged failure “to apply the equitable factor-based test” that the Sixth District Court of Appeals had previously adopted in Frobose, 163 Ohio App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249. Id. at ¶ 13. After discussing each factor, the court of appeals found no abuse of discretion in the probate court‘s decision to allow disinterment. Id. at ¶ 14-25.
{¶ 50} The second assignment of error concerned the appellants’ argument “that under
{¶ 51} In resolving the matter, the court of appeals made the following cоmments:
Appellee, for his part, acknowledges that Jean and Swing, Sr. were entitled to dispose of Swing, Jr.‘s body after his death under
R.C. 2108.81 . However, appellee argues thatR.C. 2108.81 is inapplicable to this proceeding because the right was exercised when Jean and Swing, Sr. decided to cremate Swing, Jr. Appellee contends that the right of disposition was extinguished at that moment, and suggests that any other interpretation of the statute would involve expanding the right of disposition into a right of perpetual redisposition. Further, appellee asserts that disinterment would not encroach upon the surviving parents’ right of disposition, because it was Michael [the uncle] who placed the cremains into the casket, not Jean or Swing, Sr.Whether a person‘s right of disposition under
R.C. 2108.81 precludes a prоbate court from granting a third party‘s application for disinterment underR.C. 517.23 appears to be a matter of first impression in Ohio. However, our decision in Frobose is helpful in resolving this question. In Frobose, a case that predates the enactment ofR.C. 2108.81 , we concluded that a surviving spouse‘s right of disposition with regard to burial
of her husband did not automatically entitle her to have her husband‘s remains disinterred. Specifically, we stated that a surviving spouse‘s right of disposition, for purposes of burial, “is not absolute, but is subject to judicial control.” Frobose, 163 Ohio App.3d 739, 2005-Ohio-5025, 840 N.E.2d 249 at ¶ 15. We went on to examine the merits of the surviving spouse‘s request for disinterment through the use of several equitable factors. Ultimately, we found that the probate court did not abuse its discretion when it denied the surviving spouse‘s application for disinterment. Id. at ¶ 26.
In light of our statements in Frobose, we conclude that the right of disposition under
R.C. 2108.81 does not preclude a probate court from granting an application for disinterment where the equities weigh in favor of doing so. While we recognize that our decision in Frobose did not involve an examination of a right of disposition underR.C. 2108.81 (which had not yet been enacted), we are not persuaded thatR.C. 2108.81 nullifies the equitable standard embodied in the decision. Accordingly, appellants’ second assignment of error is not well-taken.
Swing, 2014-Ohio-5454, 26 N.E.3d 827, at ¶ 29-31. Swing is the only Ohio case discussing this point at all, and, as we indicated, the discussion is not very detailed.
{¶ 52}
{¶ 53} When the above statutes were enacted in 2006,
[G.C. 3467] is a mandatory statute, but its operation depends upon the scope of the words ‘next of kin.’ These words have been variously construed by different courts, some holding that ‘next of kin’ means only the blood relatives, while others hold that the term is broad enough to include the husband or wife of a decedent. We are of opinion that the courts of this state adopt the broader meaning and include within the term the husband, or wife, as well as the blood relatives, in cases where there are no children.
Id. at 439.
{¶ 54} In the case before us, our decision on whether a final appealable order existed also noted that a May 14, 1894 statute was substantially similar to G.C. 3467, and appeared “to be the genesis point of a statutory action for disinterment in Ohio.” Glass, 2d Dist. Montgomery Nos. 29160 and 29161 (Decision & Entry, Nov. 2, 2021), at p. 4-5, citing 91 Ohio Laws 231. We further remarked that, before 1894, “disinterment was still
{¶ 55} The point here is that statutory provisions allowing disinterment existed long before
{¶ 56} The concept is well-established that “the legislature is presumed to be aware of existing statutes and to know the status of the law relating to the subjects with which it is dealing.” Harris v. J.A. Schultz & Son, Inc., 6th Dist. Wood No. WD-86-81, 1987 WL 14229, *3 (July 17, 1987), citing In re Tonsic‘s Estate, 13 Ohio App.2d 195, 197, 235 N.E.2d 239 (9th Dist.1968), and State ex rel. Cromwell v. Myers, 80 Ohio App. 357, 368, 73 N.E.2d 218 (2d Dist.1947). Thus, the legislature would have been aware of existing law concerning disinterment. If the legislature intended to restrict or change the disinterment law by enacting new sections
C. Legal Responsibility to “Assist” with Litigation
{¶ 57} While the preceding discussion resolves the issue of whether
{¶ 58} Even if
{¶ 59} More importantly, nonparties are routinely subjected to discovery.
{¶ 60}
{¶ 61} Consequently, even if the immunity provisions in
D. Burden and Need for discovery
{¶ 62} Calvary‘s final argument relates to the merits of the probate court‘s order. On this issue, we do apply an abuse of discretion standard, because the arguments are not merely issues of law. Trick v. Scherker, 2d Dist. Montgomery No. 14CV3077, 2015-Ohio-2972, ¶ 8. An abuse of discretion ” ‘implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.’ ” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “[M]ost instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision is unreasonable if there is no sound reasoning process” to support it. Id.
{¶ 63} Here, Calvary‘s first argument is that because it is protected by immunity, it has no legal obligation to assist; providing discovery, therefore, is an undue burden. For the reasons previously stated, we reject that argument.
{¶ 64} Calvary further argues that Kathy does not need testimony from its representatives because Calvary has already produced its entire file and testimony would simply be duplicative. In its decision, the probate court did not address the issue of need because it found no undue burden on Calvary since Kathy had agreed to limit depositions
{¶ 65} As indicated, after being served with a subpoena, a nonparty may move to quash or modify it based on several grounds, including “undue burden.”
{¶ 66} After reviewing the record, there is no indication that the limited type of inquiry to which Kathy agreed would excessively burden Calvary. Accordingly, the probate court did not abuse its discretion in denying Calvary‘s motion to quash.
{¶ 67} Based on the preceding discussion, Calvary‘s sole assignment of error is overruled.
III. Conclusion
{¶ 68} Calvary‘s sole assignment of error having been overruled, the judgment of the probate court is affirmed in each of the two cases.
TUCKER, P.J. and EPLEY, J., concur.
Copies sent to:
Robert H. Hollencamp
Julia B. Meister
Aaron M. Herzig
Robert T. Dunlevey, Jr.
Christopher M. Wolcott
Richard A. Talda
Joshua R. Lounsbury
Hon. David Brannon