Moore v. Lovein Funeral Home, Inc.

• Decision Date: 21 December 2020
• Docket Number: A20A1632
• Citation: 358 Ga.App. 10,852 S.E.2d 876
• Parties: MOORE v. LOVEIN FUNERAL HOME, INC. et al.
• Court: Georgia Court of Appeals

358 Ga.App. 10

852 S.E.2d 876

MOORE

v.LOVEIN FUNERAL HOME, INC. et al.

A20A1632

Court of Appeals of Georgia.

December 21, 2020

Cotton Law Firm, John C. Cotton, Tiffany L. Donohue ; Patrick W. Kerns, for appellant.

Young Thagard Hoffman, James B. Thagard, W. Justin Purvis; Mitchell O. Moore, for appellees.

Gobeil, Judge.

Darrell Ken Moore filed suit against Robert S. Lovein, Jr. ("Lovein") and Lovein Funeral Home, Inc. (the "Funeral Home")¹ (collectively, the "Defendants"), alleging in relevant part that he never authorized the Defendants to send part of his late wife's, Pauline Moore's ("Pauline") cremated remains to Kenneth Howard.² The Defendants moved for summary judgment, which the trial court granted. In the instant appeal, Moore argues that the trial court erred in granting the Defendants’ motion for summary judgment, as he put forth sufficient evidence to support his claims for: (1) breach of contract, (2) tortious interference with burial rights, (3) intentional infliction of emotional distress, (4) fraud, and (5) negligent misrepresentation. For the reasons that follow, we affirm the trial court's grant of summary judgment to the Defendants on Moore's claims for intentional infliction of emotional distress, fraud, and negligent misrepresentation, but we reverse the grant of summary judgment on his claims for breach of contract and tortious interference with burial rights.

Summary judgment is appropriate if the pleadings and evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.

Forsyth County v. Waterscape Svcs. , 303 Ga. App. 623, 623-624, 694 S.E.2d 102 (2010) (citation and punctuation omitted). So viewed, the record shows that Pauline died on February 19, 2015. Moore's sisters contacted the Funeral Home on his behalf to arrange crematory and memorial services for Pauline. The Funeral Home collected Pauline's body from her residence for transport to its place of business. On the date of his wife's death, February 19, Moore signed a contract with the Funeral Home, in which he agreed to pay $1,500 for a "direct cremation." The Funeral Home provided Moore a discount from the usual cremation fee of $3,075 because Moore was having a "hard time," and he had used the Funeral Home in the past for other family members.

Two days after Pauline's death, the Funeral Home held a viewing for Pauline. After the viewing, Moore met with Lovein at the Funeral Home for an "arrangement conference."³ Moore recalled that he told everyone present that he wanted Pauline to be cremated in keeping with her wishes. At the meeting, Lovein asked Moore what he wanted to do with the ashes after the cremation, to which Moore replied: "For the time being they all come to me." Because he was still so upset about Pauline's death, Moore had yet to decide what he was going to do with the ashes.

During the "arrangement conference," Moore signed a separate agreement with the crematory, South Georgia Crematory, LLC (the "Crematory"), titled "Authorization for Cremation and Disposition." The Funeral Home co-owns the Crematory with several other funeral homes. Lovein presented the contract with the Crematory to Moore for execution in his office at the Funeral Home, and went over each provision in the document with Moore. As relevant here, Moore initialed the provision in the agreement that gave the Crematory permission to release Pauline's cremated remains to the Funeral Home. Lovein also signed the contract with the Crematory in his capacity as director of the Funeral Home.

After the cremation on February 23, Moore authorized his sister to collect Pauline's ashes from the Funeral Home and bring them to his house. Shortly thereafter, Howard's wife, Vicki Howard, called Moore and told him that Howard had received some of Pauline's ashes. This was when Moore first learned that the Funeral Home had not given him all of his late wife's ashes. In a phone call with Moore, Lovein admitted that he had mailed approximately one "teaspoon" of Pauline's ashes to Howard. Howard in turn spread the ashes over the graves of Pauline's parents and the Suwannee River, which he contended was in accordance with Pauline's wishes. Howard alleged that he was unaware that Moore did not want him to have any of his late mother's ashes.

In February 2017, Moore filed suit against the Defendants, raising claims for breach of contract, tortious interference with burial rights, intentional infliction of emotional distress, fraud, and negligent misrepresentation.⁴ The Defendants moved for summary judgment, which the trial court granted on all of Moore's claims.⁵ The court certified its order as final under OCGA § 9-11-54 (b), and the instant appeal followed.

1. Moore argues that the trial court erred in granting summary judgment to the Defendants on his breach of contract claim because genuine issues of material fact remain as to whether the Funeral Home's failure to release to Moore all of Pauline's cremated remains constitutes a breach of the written agreements between the parties.

The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken. A breach occurs if a contracting party repudiates or renounces liability under the contract; fails to perform the engagement as specified in the contract; or does some act that renders performance impossible.

UWork.com, Inc. v. Paragon Technologies , 321 Ga. App. 584, 590 (1), 740 S.E.2d 887 (2013) (citations and punctuation omitted).

As relevant here, Moore entered into two contracts: the general contract in which he agreed to pay the Funeral Home $1,500 for a "direct cremation." This contract did not include any details as to the Funeral Home's duties and obligations regarding the disposition of Pauline's cremated remains. Moore also signed a second agreement with the Crematory, titled "Authorization for Cremation and Disposition," with respect to the cremation and disposition of Pauline's ashes.

On appeal, Moore does not contend that the Crematory breached the terms of the crematory contract in the manner in which the cremation was performed or the delivery of the ashes to the Funeral Home. Rather, Moore argues that the Funeral Home exceeded the scope of its authority under the crematory contract when it took possession of Pauline's ashes from the Crematory and subsequently gave Howard a portion of her cremated remains without Moore's authorization.

The interpretation of a contract is a question of law, unless the contract language presents an ambiguity that cannot be resolved by the rules of construction. The cardinal rule of construction is to ascertain the intent of the parties. Where the contract terms are clear and unambiguous, the court will look to that alone to find the true intent of the parties.... Where ambiguities exist, the court may look outside the written terms of the contract and consider all the surrounding circumstances to determine the parties’ intent. Parol evidence may not be considered unless the written instrument is ambiguous.

Greenberg Farrow Architecture v. JMLS 1422, LLC , 339 Ga. App. 325, 329 (1), 791 S.E.2d 635 (2016) (citation and punctuation omitted). Importantly, the crematory contract did not specify whether the Defendants had the authority to give Howard some of Pauline's ashes upon receipt from the Crematory. Because the contract is ambiguous, we turn to parol evidence to ascertain the intent of the parties.

In his deposition, Lovein conceded that the crematory contract did not include any provisions "about allowing someone else to take [Pauline's cremated remains] or authorizing the mailing" of her ashes. In fact, Lovein testified that it was his understanding that the crematory contract required that he give Pauline's ashes to Moore following the cremation. Specifically, under a section titled "Order for Disposition," Moore authorized the Crematory to release the cremated remains to the "possession and custody of the Funeral Home." Additionally, under a section titled "Crematory Requirements, Procedures, and Policies," the agreement stated: "The cremation, processing, and disposition of the remains of [Pauline] authorized herein shall be performed in accordance with all governing laws, and the requirements, procedures, and policies of the Crematory and the designated Funeral Home." See OCGA § 31-21-7 (b) (3) ("the right to control the disposition of the remains of a deceased person; the location, manner, and conditions of disposition; and arrangements for funeral goods and services to be provided vests in ... [t]he surviving spouse of the decedent"). Lovein acknowledged that "once the cremation has been completed ... the cremains are dispersed to the next of kin. That's the law."

Indeed, Lovein specifically confirmed that Moore was the next of kin in this case.⁶

Moore maintains that he never authorized Lovein to deliver a portion of Pauline's ashes to Howard. In fact, Moore asserts that he clearly told Lovein that he wanted all of the ashes. By contrast, Lovein described that Howard approached Lovein and asked for a small portion of his mother's ashes. During his meeting with Moore on the day of the viewing, Lovein recalled that, although Moore initially told Lovein that he did not want to give any ashes to Howard, Moore eventually relented after Lovein reminded him that Howard was Pauline's son. Specifically, Lovein alleged that Moore told him, "Fine, just don't ... I just don't want to know. Don't tell me." Although the crematory contract does not include this "authorization,"⁷ Lovein explained that it was not uncommon for him to distribute ashes to multiple family members without written approval.

Based on the...