2005 Ohio 6785 | Ohio Ct. App. | 2005
{¶ 3} On February 7, 2003, Wayne Snell funded his prepaid cremation at the local funeral home in Woodsfield, Ohio. The cost was $1,200 and did not include a casket or a memorial service. Ms. Kilburn states that on February 10, Wayne Snell instructed her to carry out his plans for cremation.
{¶ 4} In March 2003, Rosa Mehler died naming Wayne Snell as her executor and leaving him her entire estate. Wayne Snell had reciprocated by naming Rosa as the executor of his estate and his durable health care power of attorney. His alternate for both documents was Ms. Kilburn.
{¶ 5} On May 17, 2003, after Wayne Snell failed to meet his neighbor as planned, the neighbor went next door to Ms. Kilburn's mother's house. He and Ms. Kilburn then called police to gain entry and check on Wayne. However, Wayne Snell [hereinafter the decedent] was immediately pronounced dead, at age seventy-two.
{¶ 6} The deputy coroner, Raymond Williams, came to the scene to determine if an autopsy was required. After considering the scene, the decedent's age, and his medical problems, revealed through reading his prescription pill bottles and by asking Ms. Kilburn, an autopsy was found to be unnecessary. The deputy coroner asked Ms. Kilburn about the decedent's next of kin, and she advised that he had no children.
{¶ 7} It was later revealed that the decedent in fact had a son, Lanny Snell, appellant herein. Ms. Kilburn testified in her deposition that she never knew the decedent had a child until hearing rumors after his cremation. The neighbor also advised the deputy coroner that the decedent had no children. The decedent had worked for the city water department and thus knew the police officers and emergency technicians who arrived at the scene. None of these people were aware that the decedent had a son.
{¶ 8} The body was then released to the funeral home. The cause of death on the death certificate was said to be unknown. In following the instructions given to her by the decedent in February, Ms. Kilburn went to the funeral home and signed papers authorizing the decedent's cremation, which he had already funded. He was cremated on May 20, 2003.
{¶ 9} In January 2004, appellant Lanny Snell filed a complaint in the Monroe County Common Pleas Court against Ms. Kilburn and the coroner. The complaint was entitled, "Theft of a Corpse." He alleged that the coroner violated his statutory duty by failing to ascertain the cause of death prior to disposing of the corpse. He then alleged that Ms. Kilburn knowingly and falsely stated to the coroner that the decedent had no children and that he was in bad health. He claimed that she deceived the coroner in order to cremate the decedent and receive the estate property from his and Rosa's estate as soon as possible. He also alleged that Ms. Kilburn and the coroner delivered the body to be cremated despite the fact that the body was his property. He concluded by stating that he was wrongfully denied notice of death, custody of the corpse, and the right to know the cause of death. He then stated that he suffered severe emotional distress. He sought $250,000 in compensatory damages from each plus $500,000 in punitive damages from Ms. Kilburn.
{¶ 10} Ms. Kilburn answered by denying the claims and by claiming that only the personal representative of the decedent has standing to bring suit for unlawful possession of a corpse under R.C.
{¶ 11} In March 2004, Ms. Kilburn filed a motion for summary judgment. She again asserted that appellant lacked standing under R.C.
{¶ 12} In June 2004, the coroner filed a motion for summary judgment. The coroner also mentioned the issue of standing. But, he mainly relied on statutory sovereign immunity under R.C.
{¶ 13} Appellant filed memoranda in opposition to the two summary judgment motions. As to Ms. Kilburn's motion, appellant focused on the deputy coroner's mistaken belief that Ms. Kilburn was the decedent's long-time girlfriend. He also emphasized Ms. Kilburn's admission that she heard a rumor about a son. (Actually, her admission specifically stated that she did not hear this rumor until after the death and cremation). Appellant also made much of the fact that Ms. Kilburn was an alternate executor and health care power of attorney rather than the first choice.
{¶ 14} As for her defense of statutory authorization to order cremation, appellant argued that the forms signed by the decedent to fund his cremation did not meet the antemortem cremation authorization required by R.C.
{¶ 15} Appellant then responded to the coroner's motion for summary judgment. There, he stated that wrongful denial of a corpse sounds in both statutory violation and constitutional violation by way of a due process denial. He revealed that his claim was brought under
{¶ 16} The coroner responded by pointing out that appellant failed to plead a claim under
{¶ 17} Appellant countered that the case relied upon by the coroner to support his argument that the pleading was insufficient is a federal case which utilized the Federal Rules of Civil Procedure. He then pointed out that the Federal Rules require more than Ohio's mere notice pleading.
{¶ 18} On September 24, 2004, the trial court granted summary judgment for both defendants. First, the court opined that appellant failed to set forth a claim for intentional infliction of emotional distress. Second, the court stated that Ms. Kilburn had no duty to notify the next of kin. Third, the court found that Ms. Kilburn had statutory authority to consent to cremation under Chapter 4717, also concluding that performance of an action one is legally entitled to perform precludes liability for intentional infliction of emotional distress. Fourth, the court held that appellant failed to plead a claim involving
{¶ 20} "THE COURT BELOW ERRED AS A MATTER OF LAW, BY DISMISSING PLAINTIFF'S ACTION FOR FAILURE TO CITE THE CONSTITUTION OR THE FEDERAL CODE."
{¶ 21} Initially, we note that appellant does not take issue with the trial court's decision on immunity under state law. The only issue on appeal regarding the coroner's liability deals only with appellant's alleged federal civil rights claim. We also note that any federal immunity was never ruled upon because the coroner was not aware of this allegation when moving for summary judgment.
{¶ 22} We must determine whether appellant's complaint sufficiently pled a civil rights action under
{¶ 23} "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress * * *."
{¶ 24} Pursuant to Civ.R. 8(A), a pleading that sets forth a claim for relief shall contain (1) a short and plain statement of the claim showing that the party is entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled. Such Ohio rule encompasses what is known as notice pleading.
{¶ 25} In responding to appellant's claim that summary judgment is improper because he still has a federal civil rights claim, the coroner urged that appellant never pled a civil rights claim. As aforementioned, the coroner cited a federal case requiring the plaintiff to plead that he was deprived of a federal right and that the one who deprived him acted under color of state law. Appellant replied that the Federal Rules of Civil Procedure require more than Ohio's mere notice pleading.
{¶ 26} However, Ohio courts also consistently hold that a complaint alleging an action under
{¶ 27} Thus, a plaintiff who is asserting a federal civil rights action under
{¶ 28} Here, appellant's complaint did not cite
{¶ 29} The complaint did not place the coroner on notice of the claim showing entitlement to relief as per Civ.R. 8(A). The complaint only placed the coroner on notice that there were state law claims against him. Consequently, the coroner only moved for summary judgment on state immunity grounds. Appellant cannot avoid the within summary judgment by raising for the first time in his response potential liability under the federal statute of
{¶ 30} Appellant urges in the alternative that the trial court should have allowed him to amend his complaint under Civ.R. 15(A). This rule states that a complaint can only be amended after the answer is filed with leave of court or written consent of the opponent. The rule does state that leave shall be freely given when justice so requires. However, appellant never sought leave to amend.
{¶ 31} Appellant was required to seek leave to amend the complaint by written motion or orally at a hearing. See Tullohv. Goodyear Atomic Corp. (1994),
{¶ 32} Where a request for leave to amend was not presented to the trial court, there is nothing for the appellate court to review regarding amendment. Coulter Pontiac v. Pontiac MotorDiv. (1981),
{¶ 34} "THE COURT BELOW ERRED AS A MATTER OF LAW, BY RULING THAT DEFENDANT KILBURN HAD STATUTORY AUTHORITY TO CONSENT TO THE CREMATION OF WAYNE SNELL'S BODY."
{¶ 35} Ms. Kilburn argued in her summary judgment motion that she was statutorily authorized to consent to cremation under R.C.
{¶ 36} R.C.
{¶ 37} A crematory in possession of the executed form, the decedent's body, and payment or assurance thereof shall cremate the decedent and dispose of the remains in accordance with the instructions unless a person entitled to act as the authorizing agent for cremation under R.C.
{¶ 38} Thereafter, R.C.
{¶ 39} "(1) The spouse of the decedent at the time of the decedent's death;
{¶ 40} "(2) Any person acting on the instructions of a decedent who authorized the decedent's own cremation by executing an antemortem cremation authorization form in accordance with section
{¶ 41} "(3) A person serving as the executor or legal representative of the decedent's estate who is acting in accordance with the decedent's written instructions for the final disposition of the decedent's body;
{¶ 42} "(4) The decedent's surviving adult children * * * [if] none of them have expressed an objection to the cremation * * *."
{¶ 43} As aforementioned, appellee Kilburn argues that she was authorized to consent to cremation under both R.C.
{¶ 44} Here, appellee Kilburn incorporated various documents into the affidavit attached to her summary judgment motion. To support her contention of an antemortem cremation authorization form she included four documents as exhibit B. The first document is an insurance enrollment form with a $1,200 one-time premium to fund $1,200 worth of services by the funeral home. This form was signed on February 7, 2003 by the decedent and the insurance agent/funeral home director.
{¶ 45} The next form is an irrevocable assignment of ownership of the policy to the funeral home. It was signed on February 7, 2003 by the decedent and the funeral home director. There is no mention of cremation in the first two documents.
{¶ 46} The third document is entitled, "Guaranteed Funeral Goods and Services," and is signed by only the funeral director. This form establishes a price of $1,200, lists cremation as the disposition, rules out a casket, provides a cremation container, and provides for transportation to the crematory. The decedent is listed as the funeral recipient; however, his signature does not appear on this form.
{¶ 47} The above three described documents were all provided by the insurance company. They establish that a copy is sent to the insurer, a copy is kept by the funeral home, and a copy is given to the person. There is no indication that the crematory received a copy.
{¶ 48} The fourth document is on funeral home letterhead and appears to constitute a receipt for payment of $1,200 by the decedent for cremation, cremation container, transportation to the crematory, and professional services for cremation. It is signed by the funeral director, but is not signed by the decedent.
{¶ 49} Individually, none of these documents meet the requirements for an antemortem cremation authorization form. Most importantly, none of the documents contain both a witnessed signature and a cremation request on the same page. One could argue that the first three documents could be read collectively since they appear to be one packet provided by the insurer and presented to the decedent simultaneously as one item. Collectively, the most important elements of a witnessed signature and request for cremation would then exist. Still, the statutorily required element of providing a copy to the crematory is not clearly satisfied unless the funeral home is found to be the crematory's agent since they are responsible for arranging the cremation. Also, the element of specifying the final disposition of the cremated remains is questionable since the documents only state to place them in the purchased urn without saying where they will actually go. In any event, appellant's actions can be authorized under the next statutory provision.
{¶ 50} As set forth above, R.C.
{¶ 51} Appellee Kilburn was the executor of the decedent's estate. She incorporated letters of appointment into her affidavit attached to her summary judgment motion. These letters establish that she was given authority to administer the decedent's estate on May 30, 2003.
{¶ 52} In response, appellant first makes much of the fact that appellee Kilburn's aunt was named the executor and appellee Kilburn was only named the alternate or successor executor. However, this distinction is irrelevant where appellee Kilburn's aunt predeceased the decedent.
{¶ 53} We next move to the issue of whether there were written instructions for cremation. Appellee Kilburn states that she was given verbal instructions by the decedent on February 10, 2003 to follow the written instructions for cremation he left at the funeral home three days before. Regardless of whether the documents held by the funeral home can be categorized as a statutory antemortem cremation authorization, the documents can be categorized as written instructions under R.C.
{¶ 54} Appellant then contends that appellee Kilburn was not "serving as the executor" on May 17, 2003, the day she ordered cremation, because she was not given her letters by the probate court until May 30. Pursuant to R.C.
{¶ 55} R.C.
{¶ 56} Still, appellant contends that appellee did not know she was the executor at the time so she could not now be considered to have been serving as the executor. However, his brief fails to cite this court to the portion of the record where this fact is apparent. See Appellant's Brief at 6. See, also, App. R. 16(A)(7).
{¶ 57} In any event, liability is not established merely because someone who was statutorily authorized to act did not know exactly why they were so authorized. If one believes they are authorized due to an antemortem authorization, but it turns out there is a stronger statutory reason for their authorization, their act is not invalid.
{¶ 58} Appellee believed she was authorized. Her belief was instilled by the decedent and later reinforced by the funeral home and even by the crematory. If it turns out that the funeral home was wrong in releasing the body based upon an antemortem cremation authorization, there is no reason why appellee cannot fall back upon the next valid authorization if she happens to fit that category. If she had later discovered she was the decedent's child, would she then be liable to her siblings because she did not know she was his child at the time of cremation?
{¶ 59} Furthermore, we point out that the same funeral home that sold the decedent the prepaid funeral insurance for cremation a few months before allowed appellee to order cremation of the body they held even in the absence of an exact statutory antemortem authorization or letters of appointment. This funeral home is also the county holding facility for dead bodies as the county has no morgue. There is no evidence that she lied about her status to any person to obtain release of the body. Appellant does not clearly establish how an individual's belief that they are authorized to order cremation is actionable where that person was permitted to order cremation by the authority holding the body who assisted the decedent in funding his own cremation. Finally, we point to the next assignment of error, which reveals an important trial court holding that appellant failed to contest on appeal and which also holds that she was not shown to have a notification duty.
{¶ 61} "THE COURT BELOW ERRED AS A MATTER OF LAW, BY DISMISSING THE CAUSE OF ACTION AGAINST SHARON KILBURN BASED UPON THE STATUTORY DUTY OF THE CORONER."
{¶ 62} The court granted summary judgment for appellee Kilburn for many reasons. For example, the court found that she could not be liable for cremation because she was statutorily authorized, as analyzed in the prior assignment of error. Moreover, appellee Kilburn's summary judgment motion claimed that there was no genuine issue of material fact as to appellant's claim of intentional infliction of emotional distress. She claimed there was no intent and that there were no allegationsof extreme and outrageous conduct beyond all bounds of decency.
Appellant did not respond to this assertion. The trial court's very first holding agreed that appellant failed to set forth a claim for intentional infliction of emotional distress under the Supreme Court's holding in Yeager v. Local Union 20 (1983),
{¶ 63} This assignment of error deals with the portion of the trial court's opinion that the coroner has the duty to notify next of kin and thus there is no cause of action against Ms. Kilburn for failing to notify appellant of his father's death. Appellant acknowledges that the coroner has the duty to identify and notify next of kin. However, he claims that this does not shield appellee Kilburn from her act of telling the deputy coroner that the decedent had no children.
{¶ 64} R.C.
{¶ 65} "The coroner shall notify any known relatives of a deceased person who meets death in the manner described by section
{¶ 66} R.C.
{¶ 67} "(A) When any person dies as a result of criminal or other violent means, by casualty, by suicide, or in any suspicious or unusual manner, when any person, including a child under two years of age, dies suddenly when in apparent good health, or when any mentally retarded person or developmentally disabled person dies regardless of the circumstances, the physician called in attendance, or any member of an ambulance service, emergency squad, or law enforcement agency who obtains knowledge thereof arising from the person's duties, shall immediately notify the office of the coroner of the known facts concerning the time, place, manner, and circumstances of the death, and any other information that is required pursuant to sections
{¶ 68} Initially, we note that appellant states that the coroner should not have relied on appellee Kilburn's statement. And, he acknowledged in deposition that he was not surprised that no one in that generation knew the decedent had a child. Appellee Kilburn claims that in the thirty-five years she knew the decedent, she never knew he had a child. Yet, any genuine issue as to her intent or knowledge has not been shown to be relevant to the crux of the issue.
{¶ 69} As the trial court held, if any duty of identification and notification of next of kin arose, it was statutorily placed upon the coroner rather than appellee Kilburn. Appellant did not establish any genuine issue of material fact regarding how such tasks could have been appellee Kilburn's duty prior to cremation. In either case, R.C.
{¶ 70} Appellant claims the decedent was relatively young and healthy; however, the decedent was a seventy-two year old male whom the coroner determined to be suffering from conditions such as diabetes and hypertension. Contrary to appellant's complaint that appellee Kilburn falsely told the coroner that the decedent was in poor health, the only evidence at the summary judgment stage consisted of the deputy coroner stating that he received his medical information about the decedent's poor health from the various prescription bottles taken by the decedent daily. The trial court did not err in holding that appellee Kilburn had no duty to notify next of kin prior to cremation.
{¶ 71} Appellant then urges that the trial court should not have used appellee's lack of duty to notify next of kin as a shield for her actual lies. He claims that appellee Kilburn should be liable because she committed fraud when she told the deputy the decedent had no children. However, fraud must be pled with specificity. Civ. R. 9(B).
{¶ 72} We also note that fraud is not legally defined as misstating facts. Fraud has various elements: (1) a representation (or concealment of a fact when there is a duty to disclose); (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (4) with intent of misleading another into relying upon it; (5) justifiable reliance; and (6) resulting injury proximately caused by the reliance. Burr v. Board of Cty.Commrs. of Stark Cty. (1986),
{¶ 73} The representation at issue was made by various individuals at the scene of death, including appellee Kilburn. There was no transaction at hand when she answered the deputy coroner's question at the scene of death. Although there may be issues as to knowledge and intent, appellant did not rely on her statement to his detriment. The statement was not even made to the complainant here.
{¶ 74} The movant met her initial burden to establish that she had no duty that could be alleged to be breached at the moment of her statement to the deputy coroner in regards to any claims of negligence. Appellant does not meet his reciprocal burden to establish a genuine issue of material fact concerning appellee Kilburn's purported duty surrounding her representation that the decedent had no children.
{¶ 75} In fact, his response to appellee Kilburn's motion for summary judgment complains about the coroner's actions and merely blames appellee Kilburn for contributing to the coroner's mistakes as a "nothing more than a passerby." Other than repeatedly stating that appellee Kilburn is an "officious busybody" and "interloper," he makes no relevant claims as to her duty to him.
{¶ 76} Appellant's complaint combined with his responses to the summary judgment motions make for a confusing conglomeration of allegations. His complaint begins with only one title, "Theft of a Corpse." Yet, the complaint concludes by implying that his claims revolve around the tort of intentional infliction of emotional distress, the rejection of which he does not appeal on one of the two alternative grounds.
{¶ 77} Additionally, appellant's response to appellee Kilburn's motion for summary judgment announces, "The purpose of the complaint is not an action for wrongful cremation. The complaint is an action for wrongful detention of a corpse." This acts to further muddy the water. If the action is unrelated to wrongful cremation, then his arguments under the second assignment of error would seemingly be inapplicable.
{¶ 78} We also note appellee's argument that appellant lacked standing because he was not the personal representative of the estate, which the trial court did not find it necessary to rule on. She cited R.C.
{¶ 79} For the foregoing reasons, the judgment of the trial court is hereby affirmed.
Donofrio, P.J., concurs.
Waite, J., concurs.