AKILAH LOUISE WOFFORD, ET AL.
M.J. EDWARDS & SONS FUNERAL HOME INC., ET AL.
Session February 15, 2017
from the Chancery Court for Shelby County No. CH140197 Jim
appeal arises from the certification of a class. Numerous
individuals ("Plaintiffs"), some next of
kin and some who had contracted for funerals of loved ones,
filed suit against certain funeral homes
("Defendants") in the Chancery Court for Shelby
County ("the Trial Court"). Plaintiffs alleged that
the funeral homes abandoned human remains to an unlicensed
cemetery, Galilee Memorial Gardens ("Galilee"),
where the remains were disposed of improperly. Plaintiffs
sought to bring their claims, which include breach of
contract and a request for equitable relief, as a class.
After a hearing, the Trial Court granted class certification.
Defendants appeal to this Court. We find and hold, inter
alia, that the Trial Court did not abuse its discretion,
and we find no error by the Trial Court in granting class
certification. We affirm the judgment of the Trial Court.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed; Case Remanded
P. Cassidy, R. Scott Vincent, and, Steve N. Snyder, Memphis,
Tennessee, for the appellant, N.H. Owens & Son Funeral
R. Branson and Jacob A. Dickerson, Memphis, Tennessee, for
the appellants, M.J. Edwards & Sons Funeral Home, Inc.,
M.J. Edwards-Whitehaven Chapel, Inc. d/b/a M.J. Edwards
Whitehaven Funeral Chapel, and M.J. Edwards Hillside Chapel,
Inc. d/b/a M.J. Edwards Funeral Home Stage Road Chapel.
H. Owens, Memphis, Tennessee, for the appellant, Millington
Funeral Home, Inc.
J. Cocke, Memphis, Tennessee, for the appellant, N.J. Ford
and Sons Funeral Home, Inc.
G. McLean and Kevin D. Bernstein, Memphis, Tennessee, for the
appellant, Christian Funeral Directors, Inc.
Richard Sorin and R. Scott McCullough, Memphis, Tennessee,
for the appellants, James E. Herndon, III individually and
d/b/a J.E. Herndon Funeral Home, LLC; R.S. Lewis & Sons
Funeral Home, LLC and J.A. Lofties Funeral Home and James F.
Garrett M. Estep, Memphis, Tennessee, and, Jason A. Lee,
Nashville, Tennessee, for the appellant, Harrison's
Funeral Home, Inc.
Davis Carson, Russell B. Jordan, and, Hal S. (Hank) Spragins,
Jr., Memphis, Tennessee, for the appellant, SLS, LLC d/b/a
Superior Funeral Home Hollywood Chapel.
A. Talley, Memphis, Tennessee, for the appellants, Preston
Jefferson, Individually and d/b/a Jefferson Mortuary.
Kathryn E. Barnett, Nashville, Tennessee, for the appellee,
Akilah Louise Wofford.
Michael Swiney, C.J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin,
MICHAEL SWINEY, CHIEF JUDGE
filed suit against Defendants alleging that the defendant
funeral homes wrongly abandoned the remains of
Plaintiffs' loved ones at an unlicensed cemetery,
Galilee, through a period from 2011 to 2014. The purported
number of burials during the relevant period is 1, 288.
Galilee is alleged to have used improper methods in disposing
of human remains, including burying multiple bodies in a
single grave and crushing caskets with a backhoe in order to
make room for more burials in a grave. A receiver was
appointed for Galilee.
filed their first class action complaint in February 2014 in
the Trial Court. There are two categories of Plaintiffs:
those who signed contracts with the funeral homes and next of
kin who did not sign a contract. Plaintiffs filed a series of
amended complaints, ultimately stating a number of specific
causes of action including breach of contract, breach of
fiduciary duty, reckless and negligent mishandling of
remains, and a request for equitable relief in the form of
location and identification of the loved one's remains.
Defendants argued throughout that they are separate entities
from Galilee, that they conduct funerals not burials, and
that they have no additional duty either contractual or
otherwise beyond entrusting the remains to the cemetery,
after which the remains become the cemetery's
responsibility. Plaintiffs' theory, on the other hand,
rests upon an argument that Defendants did have a duty to
ensure a proper burial after the remains had been handed over
to the cemetery. This appeal is not dispositive of the merits
as it concerns only the questions of jurisdiction, standing,
and whether class certification was appropriate.
November 2015, following a hearing, the Trial Court entered a
detailed order granting class certification, stating as
follows, in relevant part:
PROPOSED CLASS DEFINITION
The named Plaintiffs moved this Court for certification
pursuant to Tenn. R. Civ. P. 23 of a class of families
affected by the events at Galilee, defined as:
All those who are or were next of kin of any decedent delivered to
Galilee for burial from January 1, 2011 through January 31,
all persons or entities who were parties to any contract with
any defendant regarding funeral arrangements for a decedent
who was delivered to Galilee for burial from January 1, 2011
through January 31, 2014.
The class is defined to exclude any class member who timely
elects to be excluded from the class, and any class member
who has obtained other legal representation and has commenced
a separate lawsuit as of the date of certification. However,
any potential class member who is participating in a separate
lawsuit may elect to join the class. The class excludes the
defendants, including any parent, subsidiary, affiliate or
controlled person of these entities and their officers,
directors, agents, employees and members of their immediate
families; and the judicial officers to whom this case is
assigned, their staff, and the members of their immediate
THE COURT'S FINDINGS
Court finds that this case meets the requirements for class
certification under Rule 23.01 and Rule 23.02.
Tenn. R. Civ. P. 23.01, class certification is appropriate
where the class is so numerous that joinder of all members is
impractical. When class size reaches substantial proportions,
the impracticability of joinder requirement is usually
satisfied by the number alone. In re Am. Med. Sys.
Inc., 75 F.3d 1069, 1079 (6th Cir.1996), see also
Isabel v. Velsicol Chem. Corp., 2006 WL 1745053, at *3-4
(W.D. Tenn. 2006) (Hon. Bernice Donald). Thus, when the
number of class members exceeds forty, the numerosity
requirement is generally deemed satisfied, Ham. v. Swift
Transp. Co., Inc., 275 F.R.D. 475 (W.D.Tenn. 2011)
(citations omitted). Other factors to consider include the
need to avoid a multiplicity of actions and the interests of
judicial economy. Id. Plaintiffs have the burden of
establishing the number of the members of the class and also
that joinder is not practicable. Albriton v. Hartsville
Gas Co., 655 S.W.2d 153, 155 (Tenn. Ct. app. 1983)
(citing Cash v. Swifion Land Corp., 434 F.2d 569,
571 (6th Cir. 1970)).
records indicate that, from January 1, 2011 through November
2, 2013, some 1, 288 decedents were buried at Galilee. In
total, this case's class includes the next of kin of
hundreds of decedents who were to be buried at Galilee
between January 1, 2011 through January 31, 2014, as well as
the individuals who contracted for the funeral services for
those decedents. Defendants deny that joinder is impractical,
arguing that a very large percentage of potential Plaintiffs
have already been named and successfully joined in both this
case and the related matters of the Chancery Court Part III
Stevens case and the Circuit Court Anderson
case. Defendants further argue that Plaintiffs have failed to
meet their burden of providing specific, identifiable
evidence or proof to show that joinder is impracticable.
Court finds that Plaintiffs have effectively met their burden
of providing specific, identifiable evidence or proof to show
that joinder is impracticable. It is undisputed that there
are at least 1, 288 deceased individuals in the purported
class, some of whom are part of this lawsuit and some of whom
are not. Therefore, the Court finds the Plaintiffs'
argument that the class is too numerous for practicable
joinder to be well-taken.
R. Civ. P. 23.01(2) requires that, for certification of a
class, there must be questions of law or fact that are common
to the class; the commonality test is qualitative rather than
quantitative. Robinson v. EMI Music Distribution
Inc., 1996 WL 49551, at *1 (Circuit Court of Tennessee,
2015). Where a common course of wrongful conduct is alleged,
commonality is most easily demonstrated. Sterling v.
Velsicol Chemical Corp., 855 F.2d 1188, 1197 (6th
Cir.1988), see also Newberg on Class Actions, §
3.10 ("When the party opposing the class has engaged in
some course of conduct that affects a group of persons and
gives rise to a cause of action, one or more elements of that
cause of action will be common to all of the persons affected
. . . ."). A common nucleus of facts is usually enough
to satisfy the commonality requirement of Rule 23.01(2).
Robinson, 1996 WL 495551, at *2. Finally, separate
issues of law and fact regarding damages do not negate class
action certification. Meighan, 924 S.W.2d at 637.
argue that the commonality bar is not met by Plaintiffs
because each claim of the proposed class representatives will
require extensive, individualized proof. However, in this
case, regardless of whether it was Plaintiff family member or
some other authorized person on Plaintiffs' behalf who
contacted and met with the Defendant funeral home, all
Plaintiffs came away with the same basic understanding that
the Defendant would provide appropriate funeral services.
Furthermore, all members of the proposed class have been
victims of a common course of conduct: they suffered the
death of a loved one, they entrusted their loved one's
remains with a funeral home Defendant for the purpose of
providing a respectful and lawful final disposition by burial
at Galilee, and they relied upon contracts they entered with
the funeral homes based upon:
the uniform contractual duties owed by the funeral home
Defendants; the uniform fiduciary duties owed by the
Defendants to these families; the uniform standard of care
applicable to the funeral homes and to the Galilee
the uniform elements of the common law tort of mishandling of
the uniform conduct on the part of the funeral home
Defendants of abandoning the remains at Galilee.
Plaintiffs' breach of contract claims present numerous
common questions, questions that lie at the heart of each of
the claims. Regardless of any differences between the
agreements made between the various Plaintiffs and various
Defendants (whether these agreements were written, oral, or
"handshake" in nature), the respective Plaintiffs
came away from meeting the respective Defendant funeral homes
with the understanding that there would be a proper
disposition of the decedent remains. While the exact duty of
the Defendant funeral homes and whether such duty was
breached is disputed, there is no dispute that the contracts
between the funeral home Defendants and each and every class
representative and class member included a federally-required
line item for "Basic Services of a Funeral
Director." Therefore, central to the breach of contract
claims of each and every class representative and the class
member is the common question of whether "Basic Services
of a Funeral Director and Staff" includes the
supervision and ensuring of the proper, lawful final
disposition of the remains. It is clear that, at the
beginning of the process, pursuant to the Tenn. Code Ann.
§ 62-5-101(6) (A), the funeral home takes possession of
the remains, and then, at some point in time, the duty to
provide a proper burial shifts to the cemetery. Tennessee law
further mandates that, "no employee or member of any
firm or corporation shall engage in the care, preparation,
disposal or burial of dead bodies ... unless the employee or
member is a licensed funeral director." Tenn. Code. Ann
§ 62-5-313(a). In fact, the Board of Funeral Directors
has issued civil penalties for funeral homes that
"conducted committal and internment service of the
decedent without employing the services of a funeral director
licensed to conduct services in Tennessee, " and
"conduct[ing] committal and interment services in
Tennessee without a Tennessee funeral director present and in
charge of the services." Ex. 3, Civil Penalties.
The common question of what obligations, if any, federal and
state regulations impose on funeral directors regarding the
burial of remains must be answered for each and every class
member and class representative.
Therefore, the Court finds that the requirement of
commonality is met in that each Plaintiff had the same common
expectation for what was going to happen with the deceased,
and that expectation was that the body would be, with
certainty, properly managed. Certainty is the very thing
these Plaintiff families contracted for with these
Defendants. As set forth in the expert witness disclosure for
It is recognized in the profession that learning that there
is any uncertainty about the treatment of or final resting
place of a loved one's remains reasonably and expectedly
disrupts the grief process and causes serious emotional
distress. The foundation of a funeral professional's
services is providing families with certainty that they have
entrusted their loved one's remains to professionals who
will care for, protect and ultimately provide for the
disposition of the remains in a lawful, dignified,
appropriate manner. In the case of a traditional casketed
burial, this includes ensuring the remains are laid to rest
in a meaningful place permanently, for the family and for
future generations. Learning that the location of the remains
is uncertain or unknown, losing the certainty that a loved
one's remains were treated at all times with the utmost
dignity and/or learning that those who came into contact with
the remains demonstrated disrespect and disregard for the
remains is devastating, leading to expected and reasonable
emotions of violation and betrayal, as well as guilt, worry,
disappointment, inadequacy and failure.
Ex. 4, at 8. Likewise, licensed funeral director Charles
Crawford's disclosure explains:
The loss of certainty about the honor, dignity and respect a
loved one's remains were provided and the loss of
certainty about the final resting place of a loved one's
remains are serious emotional harms. Certainty and respect
are exactly what the bereaved seek when entrusting the
remains of their loved one to a ...