*1 67 (Tenn.Ct.App.2005) (quoting aware of all of the facts and failed to take Industrial that that v. Han steps City he now asserts Wife Dev. Bd. Tullahoma of event, cock, any 382, should have taken. are (Tenn.Ct.App. we 385 S.W.2d 1995)). discretion, unpersuaded argument Exercising Husband’s that we de our failure to parties’ property appeal include cline to hold this frivolous. interest in an MDA Trial deprives the Conclusion subject jurisdiction.
Court matter This issue is without merit. of the Trial is af- judgment Court firmed, and this cause is remanded to the
We next consider the Trial be- Trial for collection of the costs Court erred in that determining Husband appeal are assessed low. The costs jury could not tell the that he claimed an against Appellants, Hampton Carole interest in equitable the House. Husband Braddy Casey Kenyon Hampton, was free to intervene in Wife’s lawsuit surety. their against Braddy Ms. and assert that he had an interest in the House. Husband chose chosе,
not to do so. Husband for whatever
reason, not to intervene the House law
suit so as not to claim equitable inter Braddy,
est in the House Ms.
mother. As Husband party was never lawsuit,
the House Husband has no stand ing jury’s to contest the verdict and the AKERS, Rondal et al. Court’s on that verdict in v. that Braddy’s lawsuit. As Ms. interest ENTERPRISES, House, jury awarded her what BUCKNER-RUSH INC., they be, et al. found her interest in the House to Braddy grounds argue Ms. has no $0. Tennessee, Appeals Court of Husband, a non-party to the lawsuit Section, Eastern at Knoxville. who chose not to participate intervene and actually part House owned a 13, Aug. 2007 Session. of the interest awarded to Wife. Ms. Brad- 21, Nov. 2007. dy’s interest in the House itself as found Appeal Permission to Denied $0, jury, remains the regard same 7, Supreme April 2008. $99,200 less of iswho entitled to the Court, equity in the House. The Trial Rehearing Petition for Denied therefore, by refusing did not err to allow May Husband, party who chose not to be a House, concerning
the lawsuit to as an during
sert interest in the House jury.
trial before the Finally, regard we consider issue Wife’s “
ing whether this is a frivolous ‘A appeal
frivolous is one that is ‘devoid
merit,’ pros or one which there is little
pect appeal] can [an ever succeed.’” Morton,
Morton v. S.W.3d *2 Brown, Cleveland, Tennessee,
William J. Rondal and Lucinda Appellants, for the and Susan Harden, Fo- Harden, Ricky Sandra Doyle Denton, and Elaine Waldron. Mollie gle, C. James, Chattanooga, Tennes- F. Stuart Marsh, see, Ray T. Brent Appellees for the Marsh, Tri-State Crema- Lashae Rhames Inc. Crematory, tory, and Tri-State Harwell, Jr., G. Har- Ronald Aubrey B. Nashville, Cate, III, ris, George H. Tennessee, Buckner- Appellees, for the Inc., Prime Succession Enterprises, Rush Inc., Tennessee, and Prime Succession Inc. Holding, OPINION operational years. and had not been though accept A Marsh continued to bod- SWINEY, J., D. MICHAEL delivered cremation, ies for simply burying he court, opinion in which dumping the bodies on the Tri-State FRANKS, P.J., joined. P. HERSCHEL *3 premises. Marsh would return to the fam- SUSANO, JR., J., D. CHARLES filed a ily purported members what to be the separate opinion in concurring part and deceased, ashes of a but the ashes dissenting part. in were not the remains of their loved one. Over an appeal This is from three consolidat- 300 un-cremated bodies were discovered against ed T. Ray lawsuits Brent premises. on the Tri-State Local authori- Marsh, business, Marsh’s former Tri-State identify ties able to approximately were Crematory, and Buckner-Rush Enterpris- charges of those bodies. Criminal es, plaintiffs Inc. The are relatives and a brought against were Marsh in Georgia girlfriend of three deceased individuals and Tennessee. Marsh 12-year received a bodies by whose were sent Buckner-Rush prison sentence in Georgia 9-year and a Funeral Crematоry Home to Tri-State for prison in sentence Tennessee. The sen- cremation. The bodies were not cremated tences are being concurrently. See served and either dumped were or buried Floyd, 2297810, *2, 2007 WL at 3. Marsh on premises. the Tri-State The Trial Court dismissed all three lawsuits Numerous civil lawsuits filed in after holding did not by family several states members of the bring any tort, have deceased individuals who were not or were contract, or statutory claims at issue. We believed not to have been cremated. The affirm part, in in part, vacate and remand against lawsuits were filed various defen- for further proceedings consistent with Marsh, including dants Tri-State Cremato- opinion. ry, and the funeral homes. in depth As discussed much more in our
Background
opinion, a class action lawsuit
Crawford
This is the third appeal from numerous
Georgia.
filed in
was
The United States
civil
Ray
lawsuits filed
T.
Brent
District Court for the Northern District of
(“Marsh”)
Marsh
and various other defen
Georgia certified class action status and
dants. The underlying facts are set forth
members of the
permitted
class were
depth
opinions,
our other
Floyd v.
opt-out. The class action
set-
lawsuit was
TN,
Prime Succession
No. E2006-
tled.
01085-COA-R9-CV,
Marsh Crematory negligent Tri-State and intentional infliction of emo- Noble, Georgia. distress, it was tional mishandling discovered intentional of a the crematory operational was not corpse, and fraud. Ml three of these law- opinion Avery Bryan contemporaneously opinion. v. with this J. Crawford Home, Inc., 253 S.W.3d is filed R. lawsuit. William 2. The Bums for filed in the Circuit Court
suits were 19, 1999. Mr. Burns on March The Trial Burns died County, Tennessee. Bradley wife, Linda Burns. they because was survived the cases consolidated death, daughter, Mr. Burns’ times, Following his at identical similar involved necessary funeral made the in the three All the defendants issues. Home. the Funeral arrangements with filed motions for lawsuits con- genеral both the Donna Burns plaintiffs lacked claiming that ment and the crema- tract for funeral services their claims. pursue Mr. authorization. issue, in tion and at least Resolution sent to Tri-State Burns’ of the famil- an examination part, involves *4 or bur- dumped and either was to their cremation plaintiffs relationship ial Mr. Burns’ premises. the Tri-State familial ied on one. The basic loved deceased and returned later were identified remains are as relationships follows: filed Bums was family. lawsuit D. Ak- Rondal Akers lawsuit. 1.The Burns. Af- by Linda and Donna originally 23, 2001. At ers, III, died on November filed, Linda Burns ter the lawsuit was death, the decedent was the time of his Georgia in the class participate decided remarried, and had divorced, had never ultimately settled and she action child, daughter twelve-year old one class action lawsuit. claims in the all of her ar- D. Akers. Funeral Lindsey named Burns claims of Linda Accordingly, the the Buckner- made with rangеments were voluntarily now before us were the lawsuit Cleveland, Ten- Home2 Rush Funeral only re- Donna Burns is dismissed. father, D. Rondal The decedent’s nessee. Bums lawsuit. maining plaintiff for funeral Akers, Jr., the contract signed Lloyd Nolan lawsuit. 3. The Hall Home. Both the Funeral services 18, 2000. At the April wife, Harden died on Akers, his Jr. and Rondal D. death, not decedent was Akers, his signed time of mother, Lucinda decedent’s However, girl- he did have married. titled “Cremation page three document Waldrоn, pregnant friend, was Elaine The dece- Disposition Authorization.” and only child. The dece- the decedent’s to Tri-State with body then was taken dent’s and six by his mother survived dent was the crematorium Because for cremation. sisters, of the decedent’s siblings. One assume safely can operational, not we was for funeral the contract cremat- Susan not was decedent’s However, the Funeral Home. to the services with happened is unclear what ed. It signed the siblings of the decedent’s all six not one body as it was decedent’s authorization. cremation The decedent’s identified. later bodies Hall, Doyle Susan siblings are: These six bod- of the unidentified body either is one Harden, Fogle, Sandra Harden, Ricky The Akers ies, be found. yet has Denton, Harden.3 The Donnie Mollie par- filed the decedent’s lawsuit to Tri- transported body was Jr., decedent’s and Lucinda ents, D. Rondal the other As with for cremation. State Akers. voluntarily dismissed Harden 3. Donnie arrangements all three of the The funeral Buck- sib- with the the decedent’s were made The other five of cases lawsuit. consolidated Cleveland, Ten- girlfriend Home ner-Rush Funeral lings, well as the as opinion, of this the remainder nessee. For Waldron, appellants comprise the six Elaine will be referred Home Funeral Buckner-Rush in the Hall case. "Funeral Home.” to as the as the otherwise right from their not tiffs bodies, remains werе the decedent’s 2002, the dece- next of kin.... In August cremated. Tri- on the body was discovered dent’s argu- essentially two make Plaintiffs re- The remains were premises.
State are their claims First is that ments. cremat- family properly turned therefore, kin- contractually by the present ed. The lawsuit was is This not an issue. status is ship siblings girlfriend. and his case; re- the contractual not the simply familial relation- examining After the Plaintiffs any, if between lationship, to their deceased ships by the limited appears Defendants members, granted by stating contract itself language of the motions for the defendants’ simply a release author- is the document finding after ment in all three cases .... ization The Trial standing. lacked deci- its 2006 court follow will [T]his states in the Akers case dismissal Court’s forth in rationale set sion and Crawford as follows: Home, Inc. Avery Bryan v. J. of Rondal The Plaintiffs are the bar, the in the case at Crawford, *5 III, Akers who died Novem- Douglas mеmber brought by action was 2001, 23, remains were ber and whose limitations on meet the Hill did not Crematory, in and to Tri-State delivered standing.... Buckner-Rush, crema- through in the motions [the tion. ... The issue at the core raised All other issues Defendants’ motions for the decision with pretermitted are the Plaintiffs Plaintiffs is whether respect ment] to the standing to maintain lawsuit [have] in this case.... Ten- claim these Defendants. dismissing the Bums orders only the relative with
nessee law allows virtually identical Hall cases were bring arising title claims superior The Tid- dismissing the Akers case. order Su- mishandling corpse. of a from the the dece- in Bums that al concluded Court in 1926 perior title was defined Burns, the sole wife, Linda dent’s v. of Tennessee in Hill Supreme Court the claims at bring person with Co., 1097, 294 1098 Traveler’s Ins. S.W. Linda Burns case. Because issue (Tenn.1926), surviving spouse as the remaining right, superior had the such, the deceased in the absence daughter, the decedent’s brought by claims kin. the next of the Trial dismissed were Hall, the standing. In for lack of Court case, to the Hill the Plain- Analogous dece- that it was the Trial concluded Court action, though tiffs’ claim this even superior right had the dent’s mother who overtones, contractual written with the exclusion of bring body. mutilation of arises from the girlfriend. siblings and his may kin in the of a next of Only absence claiming appeal, All of the Lindsey Dom- parents bring action. dismissing their erred the Trial Court of the dece- daughter inica as the are issues Although several any, if to lawsuits. dent, right, the sole holds sur- raised, appeal issues on dispositive Her on the decedent’s behalf. bring suit correctly the Trial Court round before this and claims are not actions after claims plaintiffs’ dismissed all court, the Plain- yet precludes her status 72
determining that none of them had
begin by briefly summarizing
holding
stand-
our
ing.
companion
case of
v. J.
Crawford
Home, Inc.,
Avery Bryan Funeral
253
Discussion
2007).
(Tenn.Ct.App.
S.W.3d 149
In
In
v. Republic Parking Sys
Teter
dеcedent,
Crawford, the
Robert H. Craw
tem, Inc.,
(Tenn.2005),
A. The tort claims prop- claims and Tri-State. These erly standing....4 dismissed for lack of address the We first will various (footnote omitted) plaintiffs. tort claims filed We opinion, Judge partially opinion, of Susano dissented In footnotе 6 the Crawford holding. Judge majority from this Susano concluded of this Court further held pursue apply claims that Teri Crawford had also would to tort conclusion reckless, upon negligent, upon negligent intentional inflic- tort claims based and/or separate infliction of emotional distress of distress. In a and intentional tion emotional (4) decedent; Crawford, Consistent with must children of the we now Adult determine the Trial cor- (5) decedent; of the Parents rectly plain- determined that none of the (6) decedent; siblings Adult tiffs in the three consolidated cases now (7) of the dece- grandchildren Adult disposi- before this had control over dent; tion of there- body their loved ones’ fore, (8) decedent; proceed lacked Grandparents with tort claims. have been to lo- We unable directly authority cate Tennessee on Given nature of the lawsuits point which discusses who has over control case, priority the order of with present body of a when is no there regard establishing standing to sue However, surviving spouse. Tenn.Code surviving spouse, begin must with the 68-30-109(a) §
Ann.
very
comes
close.
Co.,
Ins.
required
Hill v. Travelers’
particular
This
statute
the order
addresses
(1927)
Tenn.
(2) An agent5; judgment regard in this Court’s is (3) decedent; spouse The vacated. defendants, power by attorney as to Marsh and the Tri-State but behalf for health care directive; (B) not as to the funeral home. Expressly or an advance gift to make an authorized anatomical on the 68-30-102(2) §
5. Tenn.Code Ann.
defines
by
principal's
behalf
other record
"(A)
"agent” as an individual:
Authorized to
by
principal.”
make
principal’s
healthcare decisions on the
which, among oth-
originally position
The Bums lawsuit was filed
Authorization”
wife,
things,
Linda
and
how the cremation
by the decedent’s
er
discussed
daughter, Donna Burns.
This second document also
process
the decedent’s
works.
However,
eventually settled
Linda Burns
Funeral Home to release
authorized the
Georgia
action law-
body
her claims
class
to
These two docu-
Tri-State.
all of her claims in the
and dismissed
plaintiffs’
suit
form the basis of the
ments
only remaining
The
claims
present case.
claims
their
of contract
and
claims
breach
Be-
daughter.
are those
the decedent’s
Con-
brought pursuant
to
Tennessee
(the
cause the
wife had exclusive
“TCPA”),
Act
Tenn.
sumer Protection
body, only
over
47-18-101,
control
§
et seq.6
Ann.
Code
tort
standing
bring
had
the various
she
emphasize
preсise
important
It is
that the
Accordingly,
claims.
we conclude
us
The issue before
is
issue
Donna
correctly
Trial Court
dismissed
correctly deter-
the Trial Court
lack
tort
based on her
Burns’
claims
did not have
plaintiffs
mined
standing.
The
of the Trial
of contract
bring
breach
by
dismissing the tort claims
wheth-
The issue is not
and TCPA claims.
Burns is affirmed.
a Tenn. R.
er the
could survive
dece-
The Hall
was filed
lawsuit
or a Tenn.
P. 12.02 motion
dismiss
Civ.
At
his
siblings
girlfriend.
five
and
dent’s
P.
R.
56 motion
Civ.
death, he was
the time of the decedent’s
par-
the merits of those
challenging
ment
married
had no adult children.
not
simple
The issue
as
ticular claims.
is
was, however,
The decedent
survived
into a
person
does a
who enters
this:
mother,
not and
has been
who is
never
with a funeral home
agreement
contractual
Therefore, we
party
to this lawsuit.
have the
for funeral services
mother was
conclude that the decedent’s
bring
breach
cremated have
vari-
person
alleged
upon
an
of contract claim
judg-
The Trial
ous tort claims.
Court’s
obligation?
breach of that contractual
brought
tort
dismissing
ment
claims
yes.
same result holds true
answer is
is
siblings
girlfriend
the decedent’s
predicated
claims which are
for the TCPA
affirmed.
committed
alleged deceptive acts
upon
signing
members
upon the
when
statutory
claims
B. The contract
the Funeral Home.
documents with
were
arrangements
the funeral
When
that the
ac
Home,
We hold
therе
made with the
*8
general
or both the
tually signed
either
and
presented
documents
two
the crema
services or
docu-
contract
funeral
members. The first
various
authorization have
disposition
docu-
tion and
standard form
two-page,
ment was
bring
breach of contract and
detailing
standing
Funeral Home
ment used
upon
breaches
fami-
claims based
claimed
by the
TCPA
services chosen
particular
etc.)
burial, cremation,
alleged deсep
(i.e.,
of those documents
and
ly
casket
and/or
signing
with the
tive acts connected
ser-
the costs associated with those
and
absolutely
express
documents. We
a three-
those
document was
vices.
second
the merits of those claims.
opinion
Dis- no
on
and
document titled “Cremation
page
challenged
alleged
claims is
statutory
in
not
violations were
6. Other
complaint,
of those
but
dismissal
lawsuit,
Conclusion
general
In the Akers
cоn-
signed by
tract for funeral services was
Trial
is af-
Judgment
Akers, Jr.,
D.
plaintiff Rondal
and
re-
part,
part,
in
vacated in
and
firmed
disposition
cremation and
authorization
consistent
proceedings
manded for further
D.
signed by
plaintiff
both
Rondal
was
opinion
and for collection
with
Akers, Jr.,
plaintiff
and
Lucinda Akers.
discretion,
Exercising our
costs below.
(1)
Akers,
Rondal D.
Jr. has stand-
Thus:
appeal
costs on
are taxed one-half
ing
bring
breach of contract and TCPA
Marsh, Rhamеs
Appellees,
Ray
T.
Brent
upon
general
claims based
contract for
Marsh,
Crematory,
Tri-State
and
Lashae
(2)
services,
Akers,
funeral
Rondal D.
Inc.,
Crematory,
and one-half to
Tri-State
Jr.,
standing
and Lucinda Akers have
Appellees,
Enterprises,
Buckner-Rush
bring breach of contract and TCPA claims
Tennessee, Inc.,
Inc., Prime Succession of
upon
disposition
based
the cremation and
Inc.
Holding,
and Prime Succession
To
authorization.
the extent inсonsistent
foregoing,
SUSANO, JR., J., filed a
D.
CHARLES
is vacated.
in
separate opinion concurring
part
in
dissenting
part.
lawsuit,
In the Bums
general
both the
contract for funeral
and the cre-
services
SUSANO, JR., J.,
D.
CHARLES
and disposition
mation
authorization were
dissenting
part.
in
concurring
part
Thus,
signed by plaintiff Donna Burns.
in my separate
For the reasons stated
bring
Donna Burns has
breach
dissenting
opinion, concurring
part and
of contract
upon
and TCPA claims based
Crawford,
part,
the cаse of Robert H.
either or both of these documents. To the
Avery Bryan
et
Sr.
al. v. J.
extent
foregoing,
inconsistent with the
(Tenn.
Home,
at.,
Inc. et
In the Hall as majority opinion the contract for from so much of the signed by complaints funeral services was affirms the dismissal of the plaintiff Akers, Jr., Susan Hall. The Rondal D. Lucinda disposition cremation and Hall, Doyle authorization Susan signed by plaintiffs Su- Harden, Harden, Dоyle Harden, Harden, Ricky Fogle, san Sandra Ricky Denton, Waldron, Fogle, Sandra and Mollie Denton. and Elaine Thus: Mollie C. (1) directly bring Susan Hall has the individuals and entities of Tri-State operation breach of contract and associated with the TCPA claims Crematory, to the claims in those com upon general contract for funeral ser- (2) vices, Hall, Doyle plaints alleging outrageous Susan conduct/inflic Harden, Harden, In all other Ricky Fogle, Sandra and tion of emotional distress. respects, majority opinion. Mollie Denton I concur in the have breach of contract and TCPA claims based
upon the cremation and author-
ization. To extent inconsistent with *9 foregoing, of the Trial vacated.
Court is remaining
All are pretermitted. issues