Akers v. Prime Succession of Tenn., Inc.

• Decision Date: 21 September 2012
• Docket Number: No. E2009–02203–SC–R11–CV.,E2009–02203–SC–R11–CV.
• Citation: 387 S.W.3d 495
• Parties: Rondal AKERS et al. v. PRIME SUCCESSION OF TENNESSEE, INC. et al.
• Court: Tennessee Supreme Court

387 S.W.3d 495

Rondal AKERS et al.

v.PRIME SUCCESSION OF TENNESSEE, INC. et al.

No. E2009–02203–SC–R11–CV.

Supreme Court of Tennessee, at Knoxville.

May 8, 2012 Session.

Sept. 21, 2012.

William J. Brown, Cleveland, Tennessee, for the appellants, Rondal Akers, Jr. and Lucinda Akers.

Stuart F. James, Chattanooga, Tennessee, for the appellee, T. Ray Brent Marsh.

OPINION

SHARON G. LEE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, GARY R. WADE, and WILLIAM C. KOCH, JR., JJ., joined.

SHARON G. LEE, J.

I. Factual and Procedural Background

Dr. Rondal D. Akers, Jr. and Lucinda Akers sued T. Ray Brent Marsh for the alleged mishandling of their deceased son's body, which had been sent to Mr. Marsh's crematorium for cremation. Following a jury verdict for the Akerses, the trial court entered judgment against Mr. Marsh based on the intentional infliction of emotional distress claim but granted his motion for a judgment notwithstanding the verdict on the Akerses' Tennessee Consumer Protection Act (“TCPA”) and bailment claims. The Court of Appeals affirmed. We hold the trial court did not err in (1) holding Mr. Marsh liable for intentional infliction of emotional distress in the amount of the jury verdict; (2) instructing the jury that they were permitted to draw a negative inference resulting from Mr. Marsh's invocation of his Fifth Amendment privilege during questioning; and (3) dismissing the TCPA and bailment claims. The judgments of the trial court and the Court of Appeals are affirmed.

Rondal Douglas Akers III (the “Deceased”) died at the age of thirty-four on November 23, 2001, following a brief illness. His parents, Dr. Rondal D. Akers, Jr., and Lucinda Akers, made funeral arrangements with Buckner–Rush Funeral Home in Cleveland, Tennessee. Although Dr. and Mrs. Akers were opposed to having their son's body cremated, they authorized and arranged for the cremation in accordance with his expressed wishes. After their son's funeral service, his body was transported to Tri–State Crematory in Noble, Georgia, for cremation. Later, the Akerses received what was purported to be their son's cremains (the “Cremains”).

Subsequently, it was discovered that Mr. Marsh had not been cremating bodies that were sent to Tri–State for cremation, but rather burying or dumping the bodies in various places on the Tri–State property. The Georgia Bureau of Investigation (“GBI”) began an investigation in February 2002. The investigation soon turned into a massive search and recovery effort by the GBI and numerous other governmental agencies that lasted roughly three months. Agent Greg Ramey, the lead criminal investigator for the GBI, testified that about 100 GBI agents from around the state were assigned to work on the Tri–State case in rotating shifts and that approximately fifteen other agencies assisted in the search and recovery effort.

From the Tri–State property, authorities recovered bodies and body parts of over 320 persons, in widely varying stages of decay. Some were buried in shallow graves. Some had been dumped in surface trash pits. Human remains and bodies were found in virtually every building on the property. A body was found in a hearse, another in a van, and a partially mummified corpse of a man in a suit was discovered in a box. Some of the bodies recovered had been partially cremated, some were without arms and legs, and some had their extremities burned away. An unburned corpse was laying in the crematory's retort.¹

The GBI's efforts to find all the bodies at Tri–State were extensive. All of the trees on the roughly sixteen-acre property were cut down, and bulldozers were used to remove the top two or three inches of soil. A lake on the property was drained and the bottom dredged with heavy machinery. Agent Ramey testified that “every inch” of the property was carefully searched. Other property that was nearby or adjacent to Tri–State property was also inspected. Agent Ramey testified that he was absolutely confident that all of the bodies that were on the Tri–State property had been recovered. Deceased's body was never found, and the GBI's search and recovery effort yielded no clue as to what actually happened to his body.

After the Akerses learned about the problems at Tri–State, they took the box containing their son's “cremains” to the GBI and were told that the box contained potting soil and cement. The Akerses suffered under this misconception from 2002 until September 2008 when they learned that the box contained human cremains.²

The Tri–State Crematory investigation produced criminal and civil litigation in Tennessee and Georgia. Mr. Marsh was indicted and pleaded guilty to multiple criminal charges in Georgia and Tennessee stemming from his operation of Tri–State. He was incarcerated in Georgia at the time of trial of this action.³ The investigation also spawned civil litigation against Tri–State, Mr. Marsh, and other parties.⁴

On July 26, 2002, the Akerses sued Mr. Marsh.⁵ The complaint alleged causes of action for “breach of bailment responsibility”; violations of the TCPA; “outrageous conduct”; fraud and/or negligent misrepresentation; and “intentional/negligent infliction of emotional distress.” The case against Mr. Marsh proceeded to trial before a jury.

Dr. Hugh E. Berryman, a board-certified forensic anthropologist, testified as an expert witness for Mr. Marsh. Dr. Berryman, who examined and analyzed the Cremains, testified that several foreign metal items were found in the Cremains. One of the items was a metal stud bearing the inscription “Backyard Blue” from a pair of denim blue jeans. Deceased, however, was not wearing blue jeans when he was sent to Tri–State for cremation. There were also several pieces of fine wire that appeared to be from a mechanical device or a surgical procedure, and that Dr. Berryman characterized as “sternal chest wire” that was “very likely fron a surgery.” Deceased did not have wire from a mechanical device or a surgical procedure on or in his body. When asked whether he found “commingling in the Akers reported cremains,” Dr. Berryman replied, “from what I know of Rondal Akers, I found some things in those cremains that didn't belong there.” Dr. Berryman testified that no scientific test exists to determine whether the Cremians delivered to the Akerses are those of Deceased or of someone else.

Dr. Berryman also closely examined the retort at Tri–State and testified that it was in such bad condition that he was surprised that it was operational. He described the floor of the retort as “in really bad shape,” stating that “it had pockets, it had [fissures] running through it, and some of the [fissures] were two inches deep. It was ... just amazing, the floor, it was in terrible shape.” Dr. Berryman testified that the tools used at Tri–State to remove the cremains “look[ed] very primitive;” one was “like a hoe” with an eight-foot handle. Dr. Berryman further stated:

I remember ... looking at all the fissures and dips and holes and things that are in that retort floor and all the bones that were left behind and other metal and materials that were left in there, and I remember just making the comment ... I don't see how you take one set of cremains out of there without leaving part of it behind and without mixing some of the others that had been there before with that one.

He spent several days inside the retort, excavating it like an archaeological site, because he “wanted to see how much material and where it is, how much material is left behind. And the thing that was shocking to me is how much actually was left behind.” The retort floor was stratified. On the top layer of loose dust and sand that Dr. Berryman could move with a brush, he found sixty-nine items on the surface, including teeth, bone fragments, and metal items. Beneath the layer of loose material, Dr. Berryman found a moist layer that he could move with a trowel. He testified that this layer “had a lot of moisture in it, and it was ... basically from body fat over the years.” When Dr. Berryman was asked how many peoples' remains had been left in the retort, he replied, “I couldn't tell you how many individuals are there. I can tell you there's a minimum number of two, but could be a lot more than that, and I suspect there are.”

As a part of his work on the case, Dr. Berryman visited the East Tennessee Crematorium Company in Maryville, Tennessee, to see how a quality crematorium was operated so he could compare it with Tri–State's operation. At the East Tennessee Crematorium, the floor of the retort was smooth and solid. The floor was swept clean of the cremains after a cremation, and Dr. Berryman did not see any commingling of materials with the cremains.

Following the close of proof and deliberations, the jury returned its verdict on the written verdict form, answering “YES” to the following questions: “(1) Did Brent Marsh intentionally inflict emotional distress or outrageous conduct upon the plaintiffs? (2) Did Brent Marsh violate the Tennessee Consumer Protection Act? (3) Did Brent Marsh violate a bailment responsibility with the plaintiffs?” The jury awarded Dr. Akers compensatory damages in the amount of $275,000, and Mrs. Akers compensatory damages in the amount of $475,000. The trial court entered judgment on the jury verdict.

Mr. Marsh filed a post-trial motion for judgment notwithstanding the verdict (“JNOV”) or for a new trial. The Akerses filed a motion requesting the trial court to award treble damages and attorney's fees under the TCPA. After a hearing, the trial court granted Mr. Marsh a partial JNOV on the bailment and TCPA claims, dismissed those claims, and denied Mr. Marsh's motion for a JNOV or for a new trial on the intentional infliction of emotional distress claim. The Court of Appeals affirmed the trial court's judgment. Akers, 2011 WL 4908396, at *1.

Both Mr. Marsh and the Akerses filed applications for permission to appeal....