Walser v. Resthaven Memorial Gardens, Inc.

• Decision Date: 01 September 1993
• Docket Number: No. 181,181
• Citation: 98 Md.App. 371,633 A.2d 466
• Parties: Dorothy Mae WALSER, et al. v. RESTHAVEN MEMORIAL GARDENS, INC., et al. ,
• Court: Court of Special Appeals of Maryland

Page 371

98 Md.App. 371

633 A.2d 466

Dorothy Mae WALSER, et al. v. RESTHAVEN MEMORIAL GARDENS, INC., et al.

No. 181, Sept. Term, 1993.

Court of Special Appeals of Maryland.

Dec. 2, 1993.

Certiorari Denied March 23, 1994.

G. Randall Whittenberger (Miles & Stockbridge, on the brief), Frederick, for appellants.

M. Brooke Murdock (Robert L. Ferguson, Jr. and Thieblot, Ryan, Martin & Ferguson, on the brief for appellee, Babylon), Baltimore, James H. Scott (Stern & Kresslein, on the brief for appellees, Resthaven and Cody), Frederick, Paul M. Finamore (Larry J. Albert and Niles, Barton & Wilmer, on the brief for appellee, Sally Walser), Baltimore, for appellees.

Argued before WILNER, C.J., and FISCHER and MOTZ, JJ.

WILNER, Chief Judge.

Appellants are aggrieved by an order of the Circuit Court for Frederick County dismissing their multi-count complaint against Sally Walser, Resthaven Memorial Gardens, Inc., Richard Cody, and Babylon Vault Company. The complaint arose from what appellants regard as the wrongful disinterment of Billy J. Walser, the son of appellant Dorothy Mae Walser and the brother of the other appellants.

I. Underlying Facts

Dorothy Mae and Billy F. Walser (Billy F.) were once married. That union produced four children--Billy J. Walser (Billy J.) and the three other appellants. Eventually, Dorothy Mae and Billy F. divorced; Dorothy Mae moved to North Carolina and Billy J. remained in Maryland with his father. The other three children, it appears, also remained in, or returned to, Maryland. Billy F. later married Sally and, by her, had another son, Chris Walser. At some point before 1981, Billy F. and Sally purchased a burial plot at the Resthaven cemetery. The plot contained four adjacent spaces.

In 1981, Billy J., then in his 20's, was killed and was buried in space number 3. Billy F. was the next to die, although when is not clear from the record before us. He was buried in space number 1. In 1991, Chris died and was buried in space number 4, leaving space number 2 reserved for Sally. Not long after Chris's death, Sally decided that she wanted to be buried next to her natural son, Chris, and therefore requested Resthaven to have the remains of Billy J. and Chris, who were buried next to each other, switched. Upon that request, Resthaven prepared two Disinterment Agreements, under which it agreed to arrange for the switch. In those agreements, Sally (1) asserted that she was, or represented, all of the next of kin of Billy J. and Chris, (2) requested the disinterment of those two persons, and (3) also requested Babylon Vault Company to furnish the necessary personnel and equipment to accomplish the disinterments. She agreed to hold Resthaven harmless with respect to any claims or damage arising from any action taken by Resthaven and also appointed Resthaven as her agent to procure all permits required by law to complete the disinterment.

Pursuant to an agreement with Resthaven and after obtaining the disinterment agreements, Babylon completed the switch in October, 1991. It removed Chris's casket from space number 4, slid Billy J.'s casket from space number 3 into space number 4 without actually removing it from the ground, and then replaced Chris's casket in space number 3. Following that operation, the two headstones were switched. When, at some later point, appellants visited Billy J.'s gravesite, they discovered the switch and filed this lawsuit. They had not been previously notified of the contemplated, or actual, disinterment of Billy J.

The complaint contained 13 counts, as follows: Count I (Gross Negligence); Count II (Negligence); Count III (Intentional Infliction of Emotional Distress); Count IV (Wrongful Disinterment); Count V (Trover); Count VI (Trespass); Count VII (Constructive Fraud); Count VIII (Fraudulent Concealment); Count IX (Breach of Confidence); Count X (Public Nuisance); Count XI (Invasion of Privacy); Count XII (Conspiracy); and Count XIII (Injunction). The court dismissed the first 12 counts as failing to state claims upon which relief could be granted. The parties then stipulated to injunctive relief, whereupon this appeal was filed. Appellants contend that the court erred in dismissing each of the 12 counts. Although not clearly stated therein, the gravamen of their complaint seems to be that, in arranging for and carrying out the disinterment of Billy J., the appellees never contacted them or obtained their approval and never obtained prior authorization from the State's Attorney for Frederick County. Approval of the State's Attorney, they say, is required by Md.Code art. 27, § 265; their approval is required both by that statute and by common law.

II. Motion To Dismiss

Before proceeding to discuss the merits of appellants' complaint, we need to consider Sally's motion to dismiss the appeal. That motion is based on the fact that, in dismissing Counts I through XII, the court stated, in the concluding sentence of its amended order, that "[t]he Plaintiffs shall have thirty days from the date of this Order to file for leave to amend the Complaint." Sally treats this statement as though it granted leave to amend, thereby making the order non-appealable. That is not, however, the case.

Md.Rule 2-322(c), dealing with motions to dismiss a complaint, provides, in relevant part, that:

"If the court orders dismissal, an amended complaint may be filed only if the court expressly grants leave to amend. The amended complaint shall be filed within 30 days after entry of the order or within such other time as the court may fix. If leave to amend is granted and the plaintiff fails to file an amended complaint within the time prescribed, the court, on motion, may enter an order dismissing the action."

(Emphasis added).

In conformity with this Rule, the Court of Appeals has held on a number of occasions that, where an order dismissing a complaint or granting summary judgment expressly grants leave to file an amended complaint, that order is not immediately appealable. See Makovi v. Sherwin-Williams Co., 311 Md. 278, 533 A.2d 1303 (1987); National Glass v. J.C. Penney, 329 Md. 300, 619 A.2d 528 (1993). Unlike those situations (in Makovi, for example, the order stated that "[t]he plaintiff is granted thirty (30) days in which to file an amended complaint"), no such leave was granted by the order here. Indeed, the court was careful to reserve judgment on whether it would allow an amended complaint to be filed, stating only that the plaintiff had 30 days to file "for leave to amend the Complaint." Had appellants filed an amended complaint without obtaining such leave, it would have been a nullity, for the Rule very clearly states that an amended complaint may be filed "only if the court expressly grants leave to amend."

Why the court included the language that it did is not clear. Perhaps it wanted to see what kind of amended complaint would be offered before deciding whether to allow it. Whatever may have been the court's reason, it is evident that leave was not expressly given, and so the amended order entered on January 7, 1992, was final and appealable. The motion to dismiss is denied.

III. Sufficiency Of The Complaint

A. Introduction

In Counts I and II, appellants allege that appellees owed them a duty of care, which was breached by their actions. They do not state, however, what that duty of care was or how it was breached. In some of the introductory paragraphs in the complaint, appellants aver that the disinterment of Billy J. was arranged and carried out without appellants' permission or approval, but it is not until Count VIII, charging fraudulent concealment, that we find an allegation that appellees "were under a duty to disclose their anticipated actions prior to undertaking them, so that authorization could be sought and a decision could properly be made" and that "[n]o authorization or permission was sought nor obtained from Plaintiffs."

In their response to appellee Babylon's motion to dismiss, appellants, for the first time, made clear that the duty underlying the action in general was to request their permission for the disinterment of Billy J. and that it was breached by appellees' failure to ascertain appellants' whereabouts and obtain that permission. They argued to the circuit court, and argue to us, that that duty emanates both from the common law and from Md.Code art. 27, § 265.

In examining the sufficiency of the 12 counts at issue, we shall assume that each rests on the assertion that appellees had a duty to inform the appellants of their anticipated removal of Billy J. from his grave and to obtain their permission, and that appellees' failure to satisfy that obligation is what gives rise to the various causes of action pled. We note, in that regard, that although there is an allegation that Sally was aware of appellants' whereabouts, there is no such allegation with respect to the other appellees. There is no averment that those appellees knew, or should have known, that Sally was not the sole next-of-kin of Billy J. and Chris, as she represented.

B. General Discussion--Common Law

The underpinnings and development of the common law of sepulture are well set out in Annotation, Removal and [R]einterment of [R]emains, 21 A.L.R.2d 472 (1952). Further expositions of that law, in some of its more particular manifestations, are examined in later A.L.R. annotations. See Civil Liability of Undertaker in Connection with Transportation, Burial, or Safeguarding of Body, 53 A.L.R.4th 360 (1987); Disinterment in Criminal Cases, 63 A.L.R.3d 1294 (1975); Liability for Desecration of Graves and Tombstones, 77 A.L.R.4th 108 (1990). At least three broad principles emerge from these works: (1) the normal treatment of a corpse, once it is decently buried, is to let it lie (21 A.L.R.2d at 476); (2) respectful disinterments have been looked upon as private concerns of the deceased's family and the cemetery, if they all agree (21 A.L.R.2d at 481); and (3) if...