Wofford v. M.J. Edwards & Sons Funeral Home Inc.

• Decision Date: 29 March 2017
• Docket Number: No. W2015-02377-COA-R3-CV.,W2015-02377-COA-R3-CV.
• Citation: 528 S.W.3d 524
• Parties: Akilah Louise WOFFORD, et al. v. M.J. EDWARDS & SONS FUNERAL HOME INC., et al.
• Court: Tennessee Court of Appeals

528 S.W.3d 524

Akilah Louise WOFFORD, et al.

v.M.J. EDWARDS & SONS FUNERAL HOME INC., et al.

No. W2015-02377-COA-R3-CV.

Court of Appeals of Tennessee, Western Section, AT JACKSON.

February 15, 2017 Session

FILED March 29, 2017

Application for Permission to Appeal Denied by Supreme Court August 18, 2017

Thomas P. Cassidy, R. Scott Vincent, and, Steve N. Snyder, Memphis, Tennessee, for the appellant, N.H. Owens & Son Funeral Home, Inc.

John R. Branson and Jacob A. Dickerson, Memphis, Tennessee, for the appellants, M.J. Edwards & Sons Funeral Home, Inc., M.J. Edwards–Whitehaven Chapel, Inc. d/b/a M.J. Edwards Whitehaven Funeral Chapel, and M.J. Edwards Hillside Chapel, Inc. d/b/a M.J. Edwards Funeral Home Stage Road Chapel.

Andrew H. Owens, Memphis, Tennessee, for the appellant, Millington Funeral Home, Inc.

David J. Cocke, Memphis, Tennessee, for the appellant, N.J. Ford and Sons Funeral Home, Inc.

Albert G. McLean and Kevin D. Bernstein, Memphis, Tennessee, for the appellant, Christian Funeral Directors, Inc.

Richard Sorin and R. Scott McCullough, Memphis, Tennessee, for the appellants, James E. Herndon, III individually and d/b/a J.E. Herndon Funeral Home, LLC; R.S. Lewis & Sons Funeral Home, LLC and J.A. Lofties Funeral Home and James F. Lofties.

Garrett M. Estep, Memphis, Tennessee, and, Jason A. Lee, Nashville, Tennessee, for the appellant, Harrison's Funeral Home, Inc.

Dawn Davis Carson, Russell B. Jordan, and, Hal S. (Hank) Spragins, Jr., Memphis, Tennessee, for the appellant, SLS, LLC d/b/a Superior Funeral Home Hollywood Chapel.

Robert A. Talley, Memphis, Tennessee, for the appellants, Preston Jefferson, Individually and d/b/a Jefferson Mortuary.

Kathryn E. Barnett, Nashville, Tennessee, for the appellee, Akilah Louise Wofford.

D. Michael Swiney, C.J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

OPINION

D. Michael Swiney, C.J.

This appeal arises from the certification of a class. Numerous individuals ("Plaintiffs"), some next of kin and some who had contracted for funerals of loved ones, filed suit against certain funeral homes ("Defendants") in the Chancery Court for Shelby County ("the Trial Court"). Plaintiffs alleged that the funeral homes abandoned human remains to an unlicensed cemetery, Galilee Memorial Gardens ("Galilee"), where the remains were disposed of improperly. Plaintiffs sought to bring their claims, which include breach of contract and a request for equitable relief, as a class. After a hearing, the Trial Court granted class certification. Defendants appeal to this Court. We find and hold, inter alia , that the Trial Court did not abuse its discretion, and we find no error by the Trial Court in granting class certification. We affirm the judgment of the Trial Court.

Background

Plaintiffs filed suit against Defendants alleging that the defendant funeral homes wrongly abandoned the remains of Plaintiffs' loved ones at an unlicensed cemetery, Galilee, through a period from 2011 to 2014. The purported number of burials during the relevant period is 1,288. Galilee is alleged to have used improper methods in disposing of human remains, including burying multiple bodies in a single grave and crushing caskets with a backhoe in order to make room for more burials in a grave. A receiver was appointed for Galilee.

Plaintiffs filed their first class action complaint in February 2014 in the Trial Court. There are two categories of Plaintiffs: those who signed contracts with the funeral homes and next of kin who did not sign a contract. Plaintiffs filed a series of amended complaints, ultimately stating a number of specific causes of action including breach of contract, breach of fiduciary duty, reckless and negligent mishandling of remains, and a request for equitable relief in the form of location and identification of the loved one's remains. Defendants argued throughout that they are separate entities from Galilee, that they conduct funerals not burials, and that they have no additional duty either contractual or otherwise beyond entrusting the remains to the cemetery, after which the remains become the cemetery's responsibility. Plaintiffs' theory, on the other hand, rests upon an argument that Defendants did have a duty to ensure a proper burial after the remains had been handed over to the cemetery. This appeal is not dispositive of the merits as it concerns only the questions of jurisdiction, standing, and whether class certification was appropriate.

In November 2015, following a hearing, the Trial Court entered a detailed order granting class certification, stating as follows, in relevant part:

B. PROPOSED CLASS DEFINITION

The named Plaintiffs moved this Court for certification pursuant to Tenn. R. Civ. P. 23 of a class of families affected by the events at Galilee, defined as:

All those who are or were next of kin¹ of any decedent delivered to Galilee for burial from January 1, 2011 through January 31, 2014; and

all persons or entities who were parties to any contract with any defendant regarding funeral arrangements for a decedent who was delivered to Galilee for burial from January 1, 2011 through January 31, 2014.

The class is defined to exclude any class member who timely elects to be excluded from the class, and any class member who has obtained other legal representation and has commenced a separate lawsuit as of the date of certification. However, any potential class member who is participating in a separate lawsuit may elect to join the class. The class excludes the defendants, including any parent, subsidiary, affiliate or controlled person of these entities and their officers, directors, agents, employees and members of their immediate families; and the judicial officers to whom this case is assigned, their staff, and the members of their immediate families.

* * *

D. THE COURT'S FINDINGS

The Court finds that this case meets the requirements for class certification under Rule 23.01 and Rule 23.02.

I. NUMEROSITY

Under Tenn. R. Civ. P. 23.01, class certification is appropriate where the class is so numerous that joinder of all members is impractical. When class size reaches substantial proportions, the impracticability of joinder requirement is usually satisfied by the number alone. In re Am. Med. Sys. Inc. , 75 F.3d 1069, 1079 (6th Cir. 1996), see alsoIsabel v. Velsicol Chem. Corp. , 2006 WL 1745053, at *3–4 (W.D. Tenn. 2006) (Hon. Bernice Donald). Thus, when the number of class members exceeds forty, the numerosity requirement is generally deemed satisfied, Ham. v. Swift Transp. Co., Inc. , 275 F.R.D. 475 (W.D. Tenn. 2011) (citations omitted). Other factors to consider include the need to avoid a multiplicity of actions and the interests of judicial economy. Id. Plaintiffs have the burden of establishing the number of the members of the class and also that joinder is not practicable. Albriton v. Hartsville Gas Co. , 655 S.W.2d 153, 155 (Tenn. Ct. app. 1983) (citing Cash v. Swif t on Land Corp. , 434 F.2d 569, 571 (6th Cir. 1970) ).

Galilee's records indicate that, from January 1, 2011 through November 2, 2013, some 1,288 decedents were buried at Galilee. In total, this case's class includes the next of kin of hundreds of decedents who were to be buried at Galilee between January 1, 2011 through January 31, 2014, as well as the individuals who contracted for the funeral services for those decedents. Defendants deny that joinder is impractical, arguing that a very large percentage of potential Plaintiffs have already been named and successfully joined in both this case and the related matters of the Chancery Court Part III Stevens case and the Circuit Court Anderson case. Defendants further argue that Plaintiffs have failed to meet their burden of providing specific, identifiable evidence or proof to show that joinder is impracticable.

The Court finds that Plaintiffs have effectively met their burden of providing specific, identifiable evidence or proof to show that joinder is impracticable. It is undisputed that there are at least 1,288 deceased individuals in the purported class, some of whom are part of this lawsuit and some of whom are not. Therefore, the Court finds the Plaintiffs' argument that the class is too numerous for practicable joinder to be well-taken.

II. COMMONALITY

Tenn. R. Civ. P. 23.01(2) requires that, for certification of a class, there must be questions of law or fact that are common to the class; the commonality test is qualitative rather than quantitative. Robinson v. EMI Music Distribution Inc. , 1996 WL 49551, at *1 (Circuit Court of Tennessee, 2015). Where a common course of wrongful conduct is alleged, commonality is most easily demonstrated. Sterling v. Velsicol Chemical Corp. , 855 F.2d 1188, 1197 (6th Cir. 1988), see alsoNewberg on Class Actions , § 3.10 ("When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more elements of that cause of action will be common to all of the persons affected...."). A common nucleus of facts is usually enough to satisfy the commonality requirement of Rule 23.01(2). Robinson , 1996 WL 495551, at *2. Finally, separate issues of law and fact regarding damages do not negate class action certification. Meighan , 924 S.W.2d at 637.

Defendants argue that the commonality bar is not met by Plaintiffs because each claim of the proposed class representatives will require extensive, individualized proof. However, in this case, regardless of whether it was Plaintiff family member or some other authorized person on Plaintiffs' behalf who contacted and met with the Defendant funeral home, all Plaintiffs came away with the same basic understanding that the Defendant would provide appropriate funeral services. Furthermore, all members of the proposed class have been victims of a common course of conduct: they suffered the death of a loved one, they entrusted their loved one's remains with a funeral home

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