Wilson v. Ours, No. M2006-02703-COA-R3-CV (Tenn. App. 9/3/2008), M2006-02703-COA-R3-CV.
| Decision Date | 03 September 2008 |
| Docket Number | No. M2006-02703-COA-R3-CV.,M2006-02703-COA-R3-CV. |
| Parties | WILMA WILSON, ET AL. v. HARRY OURS, ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Wilson County; No. 12492; John D. Wootten, Jr., Judge.
Judgment of the Circuit Court Reversed in Part; Affirmed in Part.
Mary Byrd Ferrara and J. Russell Farrar, Lebanon, Tennessee, for the appellant, City of Lebanon.
Michael R. Jennings, Lebanon, Tennessee, for the appellees, Wilma Wilson, Dianne Martin, John B. Wilson, Jr., individually and as natural parent of Joseph Lee Wilson, age 12, and Jacob Daniel Wilson, age 10, Nancy J. Wilson, individually and as parent of Joseph Lee Wilson, age 12, and Jacob Daniel Wilson, age 10, Joseph Lee Wilson and Jacob Daniel Wilson.
Patricia J. Cottrell, P.J., M.S., not participating.
OPINION
This action arises from the owner of a cemetery mistakenly selling burial lots to members of the plaintiffs' family that belonged to others, the resulting burial of two members of the plaintiffs' family in plots that belonged to others, and the resulting disinterment and re-interment of one of the two decedents. The plaintiffs, six surviving family members of the two decedents, filed this action against the owner of the cemetery, the City of Lebanon, and several of its employees in which they asserted claims for trespass, negligence, nuisance, and outrageous conduct. Prior to trial, the trial court dismissed all but two claims. The only claims that went to trial were a claim for general negligence and a claim for nuisance. Following a bench trial, the trial court dismissed the nuisance claims of all plaintiffs and dismissed the claims by three of the six plaintiffs for negligence. The trial court awarded three of the plaintiffs damages totaling $45,000 for the negligent burial of the decedents. The plaintiffs and the City of Lebanon appeal. We have determined that the trial court did not err by dismissing the plaintiffs' claims for nuisance. As for the plaintiffs' claims of negligence, we have determined that the trial court erred by awarding any of the plaintiffs damages. This is because the plaintiffs' claims for infliction of emotional distress were dismissed prior to trial, and the dismissal of those claims was not appealed. Further, the plaintiffs presented no proof of physical or personal injuries associated with the emotional damages alleged and they presented no proof of property damage. The only proof of damages presented by the plaintiffs pertained to emotional suffering related to the news that their loved ones would be disinterred and re-interred. Accordingly, we reverse the trial court's award of damages to three of the plaintiffs. We affirm the trial court in all other respects.
The claims at issue arise out of two separate purchases of cemetery plots by the plaintiffs or their relatives from Cedar Grove Cemetery, which is owned and operated by the City of Lebanon (the "City"). The admitted errors by the City were the direct cause of two decedents being buried in cemetery plots that were owned by others, which necessitated the disinterment and re-interment of one of the decedents.
The cemetery plots at issue were purchased nine months apart. The first plots were purchased after John B. Wilson, Jr., and his wife, Nancy Wilson went to Cedar Grove Cemetery on November 6, 2000, to purchase a cemetery plot for their beloved son, James B. Wilson, who had died the previous day. Upon their arrival, the Wilsons met with Harry Ours, an employee of the "Street Department" who was unfamiliar with the role of selling cemetery plots.1 However, because the employee responsible for selling such plots was on vacation, Harry Ours undertook that role himself. After speaking with Mr. Ours, John and Nancy Wilson purchased three grave sites, one for their deceased son, James, and two for themselves.2 On November 7, 2000, the Wilsons buried their son in the cemetery plot that had been purchased for him.
Nine months later, John Wilson, Jr., returned to the Cedar Grove Cemetery with his sister, Dianne Martin, and their mother, Wilma Wilson, to assist in the purchase of two additional cemetery plots. Those plots were intended for Wilma Wilson and her husband, Bruff Wilson, who was terminally ill. As before, Mr. Ours greeted the family and assisted them with the arrangements. The Wilsons informed Mr. Ours that they desired to purchase two additional plots near James B. Wilson's grave site, and Mr. Ours directed the family to two nearby plots, which Mrs. Wilma Wilson purchased. Two days later, Bruff Wilson died. He was buried on August 24, 2001, in the plot his wife had purchased for him.
Three months later, Mrs. Wilma Wilson received a telephone call from Charles Brown, who worked for the City at Cedar Grove Cemetery. Mr. Brown informed Mrs. Wilma Wilson that the two plots she purchased for her husband and herself were, in fact, owned by the Gillihan family and therefore the City was going to disinter and re-inter her husband. Mrs. Wilma Wilson was "shocked and horrified that something like that could happen," became very emotional, and informed Mr. Brown that she thought she was having a heart attack.
After receiving the phone call from Mr. Brown, Mrs. Wilma Wilson immediately called her daughter, Dianne Martin, to explain the situation. Thereafter, Dianne Martin called her brother, John Wilson, Jr., to discuss the situation. Following the phone call, John Wilson, Jr., left work immediately to be with his mother. Upon arrival, he found his mother crying and "just torn up." Subsequently, after visiting with his mother, John Wilson, Jr., went to the cemetery to gather his thoughts and "be close to his dad and his son."
On the day after Thanksgiving in 2001, John Wilson, Jr., went to the cemetery with his sister and mother to meet with Mr. Brown. It was during this meeting that John Wilson, Jr., asked Mr. Brown to determine if a similar mistake had been made with his son's grave.3 In fact, a similar mistake had been made and Mr. Brown notified John Wilson, Jr., that his son would have to be moved.4 John Wilson Jr. then notified the rest of the Wilson family of the fact that James Wilson and Bruff Wilson would both have to be disinterred and re-interred.
A year later, on November 15, 2002, Wilma Wilson, Dianne Wilson Martin, John B. Wilson, Jr., and Nancy Wilson,5 (collectively, the "plaintiffs") filed this action against the City and several other defendants asserting claims for negligence, nuisance, and outrageous conduct.6 Following numerous motions and the dismissal of a majority of the defendants and some of the claims asserted in the original complaint, the plaintiffs filed an Amended Complaint in April of 2005, in which they added employees of the City, namely Jeff Baines, Harry Ours, David Gibbs, and Charles Brown, as defendants in addition to the City.
After this action was commenced, Mrs. Wilma Wilson received a letter from Jeff Baines, the Commissioner of Public Works for the City. In the letter, Mr. Baines apologized for the City's mistake and offered to disinter and re-inter her husband in another cemetery plot at no expense to her. Mrs. Wilma Wilson did not accept the offer.
In May of 2003, the City purchased from the Gillihan family the cemetery plots where Bruff Wilson was buried and titled the plots in the name of Mrs. Wilma Wilson.7 As a consequence, the grave of Bruff Wilson, Mrs. Wilma Wilson's husband, was not disturbed and will not be disturbed.
As for the grave of James B. Wilson, the City offered to disinter and re-inter James B. Wilson at the City's expense and to place him in a family plot along with additional cemetery plots, enclosed by a border. At first, his parents John and Nancy Wilson declined the offer; however, they subsequently agreed. On December 27, 2004, at the City's expense and in compliance with all scheduling requests of the family, the City disinterred and re-interred James B. Wilson.8
The case went to trial in October of 2006; however, prior to trial, upon motion of the City, the trial court dismissed the trespass claims and all claims for outrageous conduct. Although a negligent infliction of emotional distress claim was not specifically pled, the trial court dismissed with prejudice any claims for infliction of emotional distress that may arise out of the general negligence claim.9
Thus, the only claims that went to trial were (1) a claim for general negligence and (2) a claim for nuisance. At the close of the plaintiffs' proof, the City and the individual defendants moved for dismissal. The trial court granted the individual defendants' motions to dismiss; however, the trial court denied the City's motion.
Subsequently, the City put on proof during its case-in-chief. At the conclusion of the trial, the trial court announced its findings and ruling from the bench. All claims of nuisance were dismissed upon the finding that the plaintiffs had failed to prove that a nuisance existed. As for the plaintiffs' negligence claims, the trial court determined that the City owed the plaintiffs a duty, that it breached its duty to the plaintiffs, and that the City's breach of its duty was both the cause-in-fact and legal cause of the plaintiffs' injuries. As for damages, the trial court found that plaintiffs Dianne Martin, Jacob Wilson, and Joseph Wilson suffered no damages and therefore their claims were dismissed. Mrs. Wilma Wilson, the widow of Bruff Wilson, was awarded damages of $22,500. The trial court based the award on Mrs. Wilma Wilson's testimony that she could not place a headstone on her husband's grave for a substantial time, and that she thought she was having a heart attack when she was informed by the City of its mistake....
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