Savannah Cemetery Group Inc. v. Depue–wilbert Vault Co.

• Court: Georgia Court of Appeals
• Writing for the Court: PHIPPS, Presiding Judge.
• Citation: Savannah Cemetery Group Inc. v. Depue–wilbert Vault Co., 307 Ga.App. 206, 704 S.E.2d 858, 2010 Daily Journal D.A.R. 3933 (Ga. App. 2010)
• Decision Date: 01 December 2010
• Docket Number: No. A10A1152.,A10A1152.
• Parties: SAVANNAH CEMETERY GROUP, INC. et al.v.DEPUE–WILBERT VAULT COMPANY et al.

307 Ga.App. 206

704 S.E.2d 858

2010 Daily Journal D.A.R. 3933

SAVANNAH CEMETERY GROUP, INC. et al.

v.DEPUE–WILBERT VAULT COMPANY et al.

No. A10A1152.

Court of Appeals of Georgia.

Dec. 1, 2010.

Chilivis, Cochran, Larkins & Bever, Anthony L. Cochran, Atlanta, Zipperer, Lorberbaum & Beauvais, Eric Raymond Gotwalt, Savannah, for appellants.Ingles, Falligant, Horne, Courington & Chisholm, Owen C. Murphy, Savannah, Carrie H. Bacon, for appellees.PHIPPS, Presiding Judge.

This is an appeal from an order permanently enjoining the enforcement of a rule established by a private cemetery owner to prohibit the use of concrete vaults in its cemeteries. For the reasons that follow, we affirm.

In 2008, the Savannah Cemetery Group, Inc., which owned five private cemeteries in the Savannah, Chatham County area (the “cemetery group”) established a rule prohibiting the use of concrete burial vaults in its cemeteries, requiring instead steel or polymer vaults. The cemetery group notified local funeral homes of the rule.

Several businesses in the Savannah, Chatham County area, namely a concrete burial vault manufacturer, a concrete burial vault distributor and six funeral homes (collectively, the “vault/funeral group”) filed an action to enjoin the cemetery group from implementing the rule, alleging that the rule violated the Georgia Cemetery and Funeral Services Act of 2000 ¹ (the “Cemetery Act”), and asserting that implementing the rule would interfere with the vault/funeral group's contractual and/or business relations with third parties. Following a nonjury trial, the trial court found that the vault rule was unreasonable and prohibited by the Cemetery Act, and entered an order permanently enjoining the cemetery group from banning the use of concrete vaults in its cemeteries. The cemetery group appeals.

1. The cemetery group contends that the trial court erred in finding that its rule banning concrete vaults in its cemeteries was unreasonable and prohibited by the Cemetery Act. We disagree.

We apply a de novo standard of review to any questions of law decided by the trial court; factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.² The clearly erroneous test is in effect the same standard as the any evidence rule, and we will not disturb fact findings by the trial court if there is any evidence to sustain them.³

OCGA § 10–14–16(b) provides, in relevant part, that “[t]he owner of every cemetery shall have the ... right to establish reasonable rules and regulations regarding the type, material, design, composition, finish, and specifications of any and all merchandise to be used or installed in the cemetery.” OCGA § 10–14–16(a) provides that no such cemetery shall have the power to adopt any rule or regulation in conflict with any of the provisions of the Cemetery Act or in the derogation of the contract rights of lot owners or owners of burial rights. OCGA § 10–14–2(b) provides that “every competent adult has the right to control the decisions relating to his or her own funeral arrangements.”

Pursuant to the Cemetery Act, a cemetery owner has the right to establish reasonable rules regarding the type of material and composition of merchandise to be used or installed in the cemetery.⁴ At issue, therefore, is what “reasonable” means within the context of OCGA § 10–14–16(b).

“[I]n construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry.” ⁵ Moreover, statutory construction must square with common sense and reasoning.⁶ Also, the meaning of a statutory clause depends upon the intention with which it is used as manifested by its context and considered with reference to the subject matter to which it relates.⁷ And, statutes are to be construed in accordance with their real intent and meaning and not so strictly as to defeat the legislative purpose.⁸

The Cemetery Act is intended to protect consumers and the public interest. For instance, the Cemetery Act provides that it is necessary, in the interest of the public welfare, to regulate preneed dealers ⁹ and cemetery companies, “to the extent necessary to protect the public from significant or discernible harm or damage and not in a manner which will unreasonably affect the competitive market.” ¹⁰ It also requires the establishment of perpetual care cemetery trust funds to assure the reasonable care and maintenance of cemeteries to prevent significant emotional distress caused by poorly maintained cemetery grounds, and the establishment of preneed escrow accounts to protect preneed consumers from serious economic harm.¹¹ As stated above, it recognizes the right of competent adults to control the decisions relating to their own funeral arrangements,¹² and prohibits cemeteries to which its provisions apply from adopting rules in conflict with any of its provisions or in derogation of the contract rights of lot owners or owners of burial rights.¹³ Moreover, the Cemetery Act provides, in relevant part, that whenever it appears to the Secretary of State that any person has engaged in, is engaging in, or is about to engage in any act, practice or transaction which is prohibited by OCGA § 10–14–1 et seq., the Secretary of State may issue an order if he or she deems it to be appropriate in the public interest or for the protection of consumers, prohibiting the continuation of such act, practice or transaction.¹⁴

The evidence presented during the bench trial included the following. The cemetery group owned and operated five cemeteries in Chatham County; Lawrence Nikola, Jr., who owned the cemetery group cemeteries, “guess[ed]” that the cemetery group properties comprised all the private cemeteries in Chatham County, though there was also evidence suggesting that there were other cemeteries in the area; approximately 50 percent of the burials conducted by the three local funeral home operators who testified occurred in the cemetery group's cemeteries; concrete vault sales accounted for approximately 95–99 percent of the vault sales in the area-families were “accustomed to [concrete] and they have faith in it and they believe in it,” and even when other types of vaults were offered, concrete vaults were the most popular; the cost of installed concrete vaults was less than the cost of installed polymer or steel vaults; concrete vaults were more suitable than polymer or steel vaults given the soil composition in the area; concrete vault sales were predominantly made by the DePue–Wilbert Vault Company and Harry Reita; the funeral home appellees were parties to hundreds of outstanding preneed contracts in which individuals with burial rights in the cemetery group cemeteries had selected and purchased concrete vaults for interment therein; and enforcement of the rule would disrupt or destroy business relationships between the funeral home appellees and the vault distributor appellees, disrupt or damage goodwill, trust and the relationships between the funeral home appellees and their clients by forcing clients to buy vaults the funeral home appellees had previously represented as inferior, and place the funeral home appellees in breach of preneed contracts wherein their clients had already selected and paid for concrete vaults. There was also evidence that Nikola, the cemetery group's owner, was the exclusive retailer in Chatham County of steel and polymer burial vaults; that Nikola had stated that he intended to put Charles DePue (of DePue–Wilbert Vault Company) out of business; that damage Nikola claimed was being caused to the cemetery grounds by the transport of heavy concrete vaults could be prevented through the placement of plywood planks; and that Nikola had acted in bad faith.

The trial court's findings of fact, which included some though not all of this evidence, were supported by the record and were not clearly erroneous. In light of the legislative intent underlying OCGA § 10–14–16(b), the trial court did not err in finding the rule banning concrete vaults in the cemetery group cemeteries unreasonable.

Citing Cobb County–Kennestone Hosp. Auth. v. Prince ¹⁵ and Albany Surgical v. Dept. of Community Health,¹⁶ the cemetery group argues that the court was required to uphold the rule if the cemetery group presented any evidence to show that the rule was reasonable, and there was such evidence (e.g., transporting the heavier concrete vaults caused more damage to cemetery grounds than transporting polymer and steel vaults, and the cemetery group would raise more revenue selling polymer and steel vaults). The cemetery group's reliance on those cases is misplaced because those cases involve rules or regulations promulgated by administrative agencies or entities performing non-profit governmental functions; ¹⁷ in contrast, the cemetery group is composed of private for-profit businesses. The cemetery group cites no authority, and we have found none, providing that rules established by private entities such as the cemetery group carry a presumption of validity and that we must uphold those rules if there is any evidence of reasonableness. Under the circumstances presented here, and in light of the legislative intent of the Cemetery Act, we hold that the cemetery group's rule was not entitled to the deference afforded a rule promulgated by administrative agencies or governmental entities.

2. The cemetery group contends that the court erred in granting the permanent injunction because there was no evidence to support the judgment. We disagree.

Entry of a permanent injunction is appropriate only in clear and urgent cases where there is a vital necessity to prevent a party from being damaged and left without an adequate remedy at...