Holleman v. Elmwood Cemetery Corp.

• Citation: 295 Ala. 267,327 So.2d 716
• Parties: Charlotte Statum HOLLEMAN v. The ELMWOOD CEMETERY CORPORATION, a corporation, et al. SC 1209.
• Decision Date: 22 January 1976
• Court: Supreme Court of Alabama

Page 716

327 So.2d 716

295 Ala. 267

Charlotte Statum HOLLEMAN v. The ELMWOOD CEMETERY CORPORATION, a corporation, et al.

SC 1209.

Supreme Court of Alabama.

Jan. 22, 1976.

John D. Prince, Jr., Birmingham, for appellant.

Spain, Gillon, Riley, Tate & Etheredge and H. H. Grooms, Jr., Birmingham, for Elmwood Cemetery Corp. and Harry W. Mueller, Jr.

Huie, Fernambucq, Stewart & Smith, Birmingham, for Elmwood Cemetery Corp.

Rogers, Howard, Redden & Mills and William N. Clark, Birmingham, for appellees Ruby Statum Perkins, H. T. Statum, Jr., Betty Joyce Hodges, Ruth Gibson, John P. Gibson, Jr., Pauline Jones, and Mrs. Mabel Lewis.

MERRILL, Justice.

This case arose out of a family dispute over the placement of a cemetery monument in the walkway easement between two cemetery lots. The trial court found for defendants and we affirm.

Appellant, Charlotte Statum Holleman, filed a suit in equity on June 19, 1973, requesting that appellees be enjoined from the maintenance and retention of a monument within the five-foot easement separating the North 1/2 of Lot 129 and Lot 137, Block 10, Elmwood Cemetery, City of Birmingham, and damages, costs and fees in this regard. The complaint was later amended to include a count against appellees alleging grave desecration.

Appellant is owner of the North 1/2 of Lot 129 (hereinafter Lot 129). Appellees, Dorothy Sexton Lambert, Ruth Statum Perkins, H. T. Statum, Jr., Betty Joyce Hodges, Ruth Gibson, John P. Gibson, Jr., Pauline Jones and Mrs. Mabel Lewis, own Lot 137. Each of the aforementioned appellees (hereinafter relatives) is related to the appellant in some degree.

Lot 137 is due north of Lot 129. The lots are separated by the easement on which the monument is situated.

Appellee, Elmwood Cemetery Corporation (hereinafter Elmwood), is the owner of the cemetery in which Lots 129 and 137 are located. Appellee, Harry Mueller, is president and general manager of Elmwood.

Relatives originally purchased Lot 137 as an eighteen-grave lot. In order to erect a monument on the lot commemorating the families to be buried within, a number of graves would have to be sacrificed. Relatives consulted with Mueller, who allowed them to erect a monument in the easement between Lot 137 and Lot 129. (The monument is currently situated even with and parallel to the southern boundary of relatives' lot, as a result of realignment of the monument on December 5, 1974, by Mueller. Prior to that date, the monument was three inches out of line.) This monument, including the base, is six feet six inches long, three feet eight inches high, and two feet wide, and extends two feet into the easement toward and parallel to the northern boundary of Lot 129, allowing a three-foot passageway between relatives' lot and appellant's lot.

The inscription on the monument reads: 'Gibson-Statum.' Gibson is the married name of one of appellant's sisters. Statum is the appellant's maiden name.

The interments in Lot 137 are appellant's relatives, Dr. and Mrs. H. N. Statum, her father and mother, Reverend H. T. Statum, her brother, a niece, a nephew and two brothers-in-law.

In her bill of complaint, appellant alleged a conspiracy between all named appellees whereby they placed a monument in the easement, which reduced the easement to appellant's lot on the north side to three feet rather than the original and usual five feet; that appellees planted shrubs and plants around the monument which limited the access even more; that Mueller told appellant he would remove the shrubs and plants, but failed to do so; that relatives' monument obstructed the view of appellant's lot. Appellant claimed that she experienced emotional and physical damages as a result of these actions of appellees, especially at the interment of her grandson on July 27, 1970, when the pallbearers appeared to have difficulty in placing the coffin over the grave (in Lot 129). She complained that due to the monument, all of her grandson's floral sprays had to be placed on Lot 137 behind the monument, which obstructed the view of the sprays. Appellant claims that the emotional and physical damages alleged have continued since the date of her grandson's interment.

The cause came to trial on December 6, 1973. On December 21, 1973, after the close of testimony, but prior to the trial court's ruling on the matter, appellant moved to reopen the case and to amend her complaint. She alleged that one day prior to the trial, or December 5, Mueller had moved the monument slightly, in an effort to align the north side of the monument precisely on the southern boundary of Lot 137. This movement, appellant contended, resulted in the desecration of the grave of appellant's aunt, Lora B. Gleason, who is buried in Lot 129.

On January 14, 1974, the trial court entered the first of four orders from which this appeal is brought: FINAL ORDER DISMISSING CAUSE AS TO SOME DEFENDANTS/ORDER SETTING ASIDE SUBMISSION AS TO SOME DEFENDANTS. As to relatives, the decree stated as follows:

'ONE: Plaintiff has failed to reasonably prove to the satisfaction of the Court the material allegations of her Bill as against the following Defendants: (relatives listed) and, as to these said Defendants, * * * this cause is dismissed.'

The trial judge continued the case against Elmwood and Mueller for the purpose stated in appellant's motion to reopen. Elmwood and Mueller delayed in answering appellant's amended complaint, and were found in default on April 23, 1974.

On May 1, 1974, Elmwood and Mueller moved to set aside default, which the trial judge so ordered. (This is the second decree which appellant challenges.) Elmwood and Mueller then moved for a hearing on the merits of the amended complaint. It was so ordered. The hearing began on May 6, 1974, on what the trial judge termed an 'emergency matter'--the need to cure the desecration of Lora B. Gleason's grave. The trial judge concluded the hearing as follows:

'* * * let the record show that at this hearing the sole question was whether or not Elmwood Cemetery would be willing, without any admission of liability, to erect some type of curative structure or wall which would alleviate the hole in the ground which exists, and that would be done forthwith, that is within a reasonable time. * * *'

On October 9, 1974, Elmwood and Mueller moved to sever the original cause from the amended complaint under Rule 21, ARCP, and for summary judgment on the original complaint pursuant to Rule 56, ARCP.

On March 3, 1975, Elmwood and Mueller moved for summary judgment as to the amended complaint. That motion was set for hearing on March 7, 1975. On that date, the trial judge entered a decree which granted summary judgment on the amended complaint in favor of Elmwood and Mueller. (This is the third decree from which appellant appeals.)

On March 26, 1975, appellant appealed from the three orders or decrees previously listed. On April 22, 1975, the trial judge entered the final decree on the original complaint in favor of Elmwood and Mueller and against appellant. (This decree is the fourth of four orders being appealed.) The court found:

'Plaintiff has adequate ingress and egress to her lot. She has not been denied free and reasonable access. Elmwood has not interfered with Plaintiff's right to use her lot for burial and visitation purposes. The monument's movement was a reasonable and legitimate attempt to accommodate the owner of Lot 137, in making the burial of those persons interred within the lot, including the parents and relatives of the Plaintiff.

'There was no conspiracy...