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Wofford v. M.J. Edwards & Sons Funeral Home Inc.

Court of Appeals of Tennessee, Jackson

March 29, 2017


          Session February 15, 2017

         Appeal from the Chancery Court for Shelby County No. CH140197 Jim Kyle, Chancellor

         This 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Case Remanded

          Thomas P. Cassidy, R. Scott Vincent, and, Steve N. Snyder, Memphis, Tennessee, for the appellant, N.H. Owens & Son Funeral Home, Inc.

          John 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.

          Andrew H. Owens, Memphis, Tennessee, for the appellant, Millington Funeral Home, Inc.

          David J. Cocke, Memphis, Tennessee, for the appellant, N.J. Ford and Sons Funeral Home, Inc.

          Albert 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. Lofties.

          Garrett M. Estep, Memphis, Tennessee, and, Jason A. Lee, Nashville, Tennessee, for the appellant, Harrison's Funeral Home, Inc.

          Dawn 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.

          Robert 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.

          D. Michael Swiney, C.J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.




         Plaintiffs 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.

         Plaintiffs 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.

         In November 2015, following a hearing, the Trial Court entered a detailed order granting class certification, stating as follows, in relevant part:


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[1] of any decedent delivered to Galilee for burial from January 1, 2011 through January 31, 2014; and
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 families.


         The Court finds that this case meets the requirements for class certification under Rule 23.01 and Rule 23.02.

         I. NUMEROSITY

         Under 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)).

         Galilee's 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.

         The 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.


         Tenn. 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.

         Defendants 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 Defendants;
the uniform elements of the common law tort of mishandling of remains; and
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 Shun Newbern:
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 ...

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