C.A.B. v. Perpich

• Docket Number: ED111188
• Decision Date: 16 January 2024
• Parties: C.A.B., JR., S.C.B., AND S.M.S. BY AND THROUGH THEIR NEXT FRIEND G.W.B., Respondents, v. KENDRA PERPICH, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KAITLIN N. BOSTER, Appellant.
• Court: Missouri Court of Appeals

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C.A.B., JR., S.C.B., AND S.M.S. BY AND THROUGH THEIR NEXT FRIEND G.W.B., Respondents,
v.
KENDRA PERPICH, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KAITLIN N. BOSTER, Appellant.

No. ED111188

Court of Appeals of Missouri, Eastern District, Second Division

January 16, 2024

Appeal from the Circuit Court of St. Louis County Honorable John N. Borbonus

MICHAEL E. GARDNER, JUDGE

Introduction

This appeal arises from a dispute over who is entitled to the cremated remains of Kaitlin Boster ("Decedent"). Her three minor children, through their next friend, G.W.B., (collectively, "Petitioners") brought this declaratory judgment action alleging that the children were entitled to Decedent's remains and asserting that a health care power of attorney purporting to give Decedent's mother, Kendra Perpich, the right to control disposition of Decedent's remains was invalid, ineffective, or inapplicable. The trial court entered summary judgment in favor of Petitioners and ordered the funeral home in possession of Decedent's remains to deliver them to Petitioners. The petition also alleged the children were entitled to the personal property of Decedent that was in the funeral home's possession. Perpich attempted to intervene in her capacity

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as the personal representative of Decedent's estate in order to protect that property. In its judgment, the trial court ordered the property to be delivered to the estate via the personal representative. The trial court denied the motion to intervene.

Perpich appeals, claiming the trial court erred in entering summary judgment in favor of Petitioners and in denying the motion to intervene. Because Petitioners did not demonstrate they were entitled to judgment as a matter of law declaring the children's right to Decedent's remains, we reverse and remand for further proceedings. We also conclude the intervention issue is moot because there is no longer a justiciable controversy involving Decedent's personal property.

Factual and Procedural Background

Decedent died in January 2021 in Missouri. She was unmarried and was survived by her parents and her three minor children. After her death, her father, G.W.B., had Decedent's body delivered to a funeral home for cremation. G.W.B. believed that Decedent's children had the right of sepulcher, meaning "the right to choose and control the burial, cremation, or other final disposition of" Decedent's body, pursuant to section 194.119.1.^[1] That statute prioritizes the sepulcher rights of a decedent's next-of-kin, but gives first priority to "[a]n attorney in fact designated in a durable power of attorney wherein the deceased specifically granted the right of sepulcher over his or her body to such attorney in fact." Section 194.119.2(1). Surviving children are further down the statute's priority list. Section 194.119.2(4). Perpich asserted that she was Decedent's attorney in fact-and her rights trumped those of the children-because she was granted the right of sepulcher by a durable health care power of attorney ("HCPA") executed by Decedent in July 2019 in Arizona.^[2]

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The HCPA, which was explicitly made under section 36-3221 of the Arizona Revised Statutes, designated Perpich as Decedent's agent "for all matters relating to [her] health care, including, without limitation, full power to give or refuse consent to all medical, surgical, hospital and related health care, including the provision of life-sustaining treatment and artificially administered food and fluids." The HCPA provided that the power of attorney was effective upon Decedent's "inability to make or communicate health care decisions." It also granted Perpich the authority to carry out Decedent's funeral and burial disposition wishes-specifically, that her body be cremated and her remains put into the ocean-"in accordance with this power of attorney, which is effective upon my death." The HCPA was signed by "Kaitlin Boster" and also contained the signature of a witness who stated he was "present when Kaitlin Boster signed" the HCPA and that she appeared at that time to be of sound mind and under no duress.

The funeral home cremated Decedent's remains in March 2021. Petitioners then filed this lawsuit, naming the funeral home and Perpich as defendants and seeking a declaration of the parties' rights. The petition challenged the validity of the HCPA, alleging that Decedent's signature was "spurious" and asserting that the HCPA contained "questionable items"- specifically, that the state abbreviation for Perpich's address was incorrect, there was no street address for Decedent, and the witness's address was inconsistent with the address listed in Decedent's will, which he also witnessed the same day. Petitioners further alleged that the HCPA never became effective because, prior to her death, Decedent was not unable to make or communicate health care decisions. Petitioners sought a judgment ordering the funeral home to deliver to the children Decedent's remains and her personal property in its possession.

Petitioners filed a motion for summary judgment. They contended that, "assuming arguendo" that the HCPA was valid, it never became effective and, even if it was valid and

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effective, the HCPA was created pursuant to an Arizona statute that applied only to Arizona funeral homes with regard to cremation. After the summary judgment record was complete, the trial court entered an order granting the motion for summary judgment without explanation. Perpich filed a motion to vacate or modify that order, claiming that it was wrongly decided and also that it lacked a necessary party, namely Perpich in her capacity as the personal representative of Decedent's estate.^[3] Perpich contemporaneously filed a motion to intervene in that capacity as a matter of right pursuant to Rule 52.12(a),^[4] alleging that the personal representative had an interest in protecting the property of the estate that was the subject of the litigation and in having the HCPA declared valid. Following a hearing, the trial court entered summary judgment in favor of Petitioners and ordered the funeral home to deliver Decedent's remains to the children via their next friend. The judgment also ordered the funeral home to deliver Decedent's personal property to "the estate of the decedent via its personal representative." In a separate order and judgment entered a few weeks later, the trial court denied Perpich's motion to vacate or modify and her motion to intervene. This appeal follows.

Discussion Point I - Summary Judgment as to the Disposition of Decedent's Remains

In her first point on appeal, Perpich challenges the trial court's entry of summary judgment in favor of Petitioners, asserting that they failed to show they were entitled to judgment as a matter of law as to the disposition of Decedent's remains because the HCPA granted Perpich the authority to carry out Decedent's wish that her remains be put into the ocean. Perpich also contends that,

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even if Petitioners "controverted the legitimacy of [the HCPA,] that controversy concerning a material fact precluded the entry of summary judgment."

Appellate review of a summary judgment is de novo. ITT Com. Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We "review the record in the light most favorable to the party against whom summary judgment was entered." Id. (citations omitted). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. at 380. A claimant can establish a right to summary judgment by showing there is no genuine dispute as to those material facts upon which the claimant would have the burden of persuasion at trial. Id. at 381.

Here, as claimants, Petitioners sought a declaration that the children were entitled to Decedent's remains under the right-of-sepulcher statute because no one had a superior right. To succeed and prove entitlement to judgment as a matter of law, they had to defeat the existence of Perpich's claimed superior right as attorney in fact under the HCPA. Petitioners attempted to do so by showing that the undisputed facts demonstrated the HCPA was invalid, ineffective, or inapplicable. We agree with Perpich that Petitioners failed to meet this burden and that the trial court erred in entering summary judgment in their favor.

Validity of the HCPA

In their appellate brief, Petitioners contend summary judgment was appropriate because the HCPA was not valid. As noted, however, Petitioners' motion for summary judgment did not itself challenge the validity of the HCPA; rather, the motion contended that, "assuming arguendo" the HCPA was valid, it never became effective and was otherwise inapplicable. Although Petitioners' statement of uncontroverted material facts referred to the HCPA as a "purported" power of attorney, it did not cite anything in support of its alleged invalidity. In fact, the only

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assertions regarding the validity of the HCPA in the summary judgment record were contained in Petitioners' response to Perpich's additional material facts in which Petitioners denied the validity of the HCPA and listed the "questionable items" alleged in the petition, but did not include supporting references to discovery, exhibits, or affidavits as required by Rule 74.04(c)(3).

Some of the allegedly questionable aspects of the HCPA are evident on the face of that document or other material that was part of the summary...