Crawford v. J. Avery Bryan Funeral Home

• Decision Date: 21 November 2007
• Docket Number: No. E2006-00987-COA-R3-CV.,E2006-00987-COA-R3-CV.
• Citation: 253 S.W.3d 149
• Parties: Robert H. CRAWFORD, Sr., et al. v. J. AVERY BRYAN FUNERAL HOME, INC., et al.
• Court: Tennessee Court of Appeals

253 S.W.3d 149

Robert H. CRAWFORD, Sr., et al. v. J. AVERY BRYAN FUNERAL HOME, INC., et al.

No. E2006-00987-COA-R3-CV.

Court of Appeals of Tennessee, Eastern Section, at Knoxville.

August 13, 2007 Session.

November 21, 2007.

Permission to Appeal Denied by Supreme Court April 7, 2008.

Teri Crawford, pro se Appellant.

John J. Britton and Chris W. McCarty, Knoxville, Tennessee, for the Appellee, J. Avery Bryan Funeral Home.

Stuart F. James, Chattanooga, Tennessee, for the Appellees, T. Ray Brent Marsh, Rhames Lashae Marsh, Tri-State Crematory, and Tri-State Crematory, Inc.

OPINION

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., joined. CHARLES D. SUSANO, JR., J., filed a separate opinion concurring in part and dissenting in part.

This appeal involves one of numerous civil lawsuits filed against T. Ray Brent Marsh and his former business, Tri-State Crematory, Inc., and others. The plaintiffs in this case are the parents and siblings of Robert H. Crawford, Jr., whose body was sent to the Tri-State Crematory for cremation. The body, however, was not cremated and to this day the plaintiffs do not know what happened to their loved ones' body. The Trial Court dismissed the lawsuit after finding that the decedent's surviving spouse was the only person with standing to bring the various tort claims asserted by the plaintiffs. The decedent's sister, Teri Crawford, appeals that determination. We affirm.

I. Background

This is the second occasion this Court has had to consider an appeal from the many lawsuits arising from the actions of T. Ray Brent Marsh ("Marsh"), related to his operation of Tri-State Crematory, Inc. ("Tri-State") located in Noble, Georgia. Marsh currently is serving a twelve-year prison sentence in the State of Georgia for his actions.

In Floyd v. Prime Succession of TN, No. E2006-01085-COA-R9-CV, 2007 WL 2297810 (Tenn.Ct.App. Aug.13, 2007), no appl. perm. appeal filed, we discussed some of the general background information giving rise to these various lawsuits.¹ The lawsuit in Floyd was filed by several relatives of Gail Lavan Floyd, who died in March of 2000. According to Floyd:

The relevant underlying facts and procedural history are essentially undisputed. Gail Lavan Floyd died on March 21, 2000. Buckner-Rush Funeral Home in Cleveland agreed to handle the funeral arrangements and agreed to have Mrs. Floyd's remains cremated. Her body was to be cremated at Tri-State, located in Noble, Georgia, a business that provided cremation services for funeral homes in Tennessee, Georgia, and Alabama. Marsh had been operating Tri-State since 1996.

This lawsuit was filed in July 2002. The plaintiffs sued various defendants, including the funeral home, Tri-State, and Marsh. According to the complaint,

[t]he [p]laintiffs placed the body of their loved one in the care of ... [the funeral home] with the specific expectation that the body would be handled in the manner and method described and with appropriate care and dignity as had been represented to them. The funeral was held and the body was placed in the possession of the ... [funeral home] for cremation with the full expectation and promise that their loved one's's [sic] remains would be returned to them after it was properly cremated. On or about April 4, 2000, the plaintiffs were advised that their loved one's's [sic] remains were at the funeral home and they could pick them up. This they did and received a black box which was represented to them by representatives of the ... [funeral home] as being the remains of their loved one's [sic] and a copy of a death certificate that recites that cremation of the body was performed at the defendant Tri-State Crematory....

On or about, February 25, 2002, the plaintiffs became aware through the media that bodies had been discovered on the grounds of the "Crematory" and that an investigation was proceeding. Plaintiffs have taken the box that was given to them by the ... [funeral home] and have been advised that the contents are adulterated materials and that therefore it could not be the remains of their loved one. To date, they have not been advised by the ... [funeral home], the "Crematory" or the Georgia Bureau of Investigation where the body was disposed of or the manner it was disposed of.

Plaintiffs have since discovered that Tri-State Crematory was an [unlicensed] facility that was in a substantial state of disrepair.... Instead of the bodies being disposed of consistent with the "Cremation and Disposition Authorization" attached as Exhibit B, bodies that were taken to the "Crematory" were buried in pits or mass graves on the property or placed in burial vaults or just dumped on the ground.

Floyd, 2007 WL 2297810, at *1, *2 (footnote omitted)

In Floyd, we also discussed what happened to Marsh as a result of his actions described above. We noted that a Georgia grand jury returned 787 criminal indictments against Marsh pertaining to the over 200 bodies that had been identified. The indictments did not cover the roughly 110 bodies that were not or were unable to be identified. Id. at *2. Marsh eventually plead guilty to numerous counts in Georgia. The plea agreement accepted by the Walker County Superior Court provided as follows:

[The State of Georgia] would recommend in this case that the defendant be sentenced to serve twelve years in prison, that he shall also be given a concurrent term of probation of 75 years and that as a condition of probation that he pay a fine of 20 thousand dollars and that the payment of the fine commence within one year after his release from incarceration and that he pay the fine and attendant costs at the rate of one thousand dollars per year under the supervision of the probation officer and we would request that the defendant be directed to hand-write a letter of apology to be delivered to a designated representative for each of the identified remains in this case. The letters would be turned over to the probation office for mailing to their ultimate destinations. We would ask the court to direct the defendant to write a general letter of apology. These would not be due until six months after the commencement of the sentence itself.

The defendant would pay restitution to the State of Georgia in the sum of eight million dollars in the event that the defendant shall either directly or indirectly attempt to profit or benefit in any manner from any transaction arising out of the sale of his story, so to speak, regarding these events.

The defendant shall be on unsupervised probation after the final payment of any and all fines and court costs and the sentence shall be concurrent with any other sentence he may receive in the State of Tennessee arising out of this and the period of incarceration shall begin sometime after January 1st of 2005.

Floyd, 2007 WL 2297810, at *3.

Following Marsh's guilty plea in Georgia, he pled guilty to numerous criminal charges brought against him by the State of Tennessee. Marsh received a total sentence of nine years in the Tennessee criminal cases. Floyd, 2007 WL 2297810, at *3. The nine-year sentence in Tennessee was to be served concurrently with the twelve-year sentence in Georgia.

II. The Present Lawsuit

Robert H. Crawford, Jr., ("the decedent") died on February 26, 2001. At the time of his death, the decedent was married to Beverly Crawford ("Wife"). Wife made funeral arrangements with defendant J. Avery Bryan Funeral Home (the "Funeral Home") in Chattanooga, Tennessee. A contract for funeral services was entered into between Wife and the Funeral Home. In addition, Wife signed a document titled "Authorization for Cremation and Disposition." Among other things, this document contained Wife's authorization for the Funeral Home to release the decedent's body to Tri-State for cremation. These documents were signed only by Wife and a Funeral Home representative.

The decedent's body was transported to Tri-State Crematory for cremation. It is unknown what happened to the decedent's body after it arrived at Tri-State. The crematorium was non-operational at that time even though Marsh continued to accept bodies for cremation. For purposes of this appeal, we will assume that the decedent's body was not cremated and that the decedent's remains are one of the unidentified bodies found on Tri-State's premises, or that the decedent's body has yet to be found.

The present lawsuit was filed by Robert H. Crawford, Sr., Betty Davis, Teri Crawford, and Frank C. Crawford ("Plaintiffs"), the parents and siblings of the decedent. Wife is not a party to this lawsuit. Plaintiffs sued Tri-State Crematory, Inc., T. Ray Brent Marsh, Tommy R. Marsh, Clara C. Marsh, and Rhames L. Marsh, individually and doing business as Tri-State Crematory and/or Marsh Vault & Grave Service.² They also sued SCI Georgia Funeral Services, Inc., f/d/b/a J. Avery Bryan Funeral Home, Inc. According to the complaint:

At all times material to this action ... [Tri-State] was hired, engaged and retained by J. Avery Bryan Funeral Home to effectuate, as its agent, ostensible agent, servant, employee, representative, joint venturer, and associate, the process of cremating the remains of [Robert H. Crawford, Jr....] At all material times, Defendants ... [were] acting within the course and scope of that authority and with the knowledge, authorization, consent, permission or ratification of each other. J. Avery Bryan owed a contractual duty to ensure that the human remains entrusted to its care for cremation were cremated and that the cremation was handled in accordance with all legal obligations. J. Avery Bryan breached that duty, and thus is vicariously liable for the actions of [Tri-State].... All defendants were charged to carry out Plaintiffs' wishes fully, specifically, and respectfully, and the intentional, willful, knowing and reckless acts of Defendants Tri-State are imputed to J. Avery Bryan so as to make all Defendants...