Key v. Stonemor Mich., LLC

UNPUBLISHED

Genesee Circuit Court LC No. 19-113328-CD

Before: Swartzle, P.J., and Sawyer and Letica, JJ.

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Per Curiam

Vernisha Key's son, Desmond Savage, Jr., was murdered and she contracted with defendants^[1] for Desmond's burial. Key was late for Desmond's burial and arrived after the sole family member present had told defendants they could begin to bury Desmond. Key and Desmond's siblings sued defendants, alleging that by prematurely burying Desmond they were liable for intentional infliction of emotional distress, wrongful interference with the right of burial, and breach of contract. The trial court granted summary disposition to defendants on the first two counts, but concluded that a dispute of material fact prevented any grant of summary disposition on the breach of contract claim. The trial court, however, dismissed that claim because it concluded that it lacked jurisdiction due to the amount in controversy. We affirm.

I. BACKGROUND

Desmond, age 20, was the victim of a fatal drive-by shooting in Flint. Key arranged for Desmond's funeral service to be held at a funeral home operated by defendant Lawrence E. Moon Funeral Home, Inc. (Moon), and for Desmond to be buried at Flint Memorial Park, which defendants own and operate. Key signed an "Interment/Entombment Authorization and

Indemnification" agreement form (the burial contract) provided by defendants authorizing Desmond's burial. The contract provided that the funeral would take place at Moon's funeral home at 11:00 a.m. on November 16, 2016, and that the "est. arrival at cemetery" was 1:00 p.m. Key paid defendants $1, 100 for the opening and closing of the grave. The burial contract did not specify a burial time or include any instructions about Desmond's burial.

According to Key, Desmond's "burial and grave side service were scheduled to take place at approximately 1:30 PM, after completion of the viewing at Moon Funeral Home." Based on her meeting at Flint Memorial Park, Key understood that "the service was to take place around 1:30, upon the family's arrival" at the cemetery. Additionally, when Key arranged Desmond's burial she told defendants' family service counselor that she would not attend Desmond's funeral because of her emotional state, but that family members and a minister would attend.

On the day of Desmond's burial, Desmond's body arrived at Flint Memorial Park before 1:00 p.m. One family member who identified himself as either Desmond's uncle or great-uncle arrived at the gravesite about 10 to 15 minutes after Desmond's body arrived, but no other mourners arrived at that time. Defendants' employees and Desmond's great-uncle waited about 15 minutes before removing Desmond from the hearse; no other mourners had arrived at that point. Desmond's great-uncle told defendants' employees that he did not have any way to contact the rest of Desmond's family and he did not know if any other family members were coming. Defendants' employees then started the burial process and lowered Desmond in his grave and started filling it. Shortly after that process began defendants' employees learned that Key and her

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family were running late, but that they would arrive soon. Defendants immediately stopped filling Desmond's grave.

Key arrived at the grave site at approximately 1:45 p.m. and saw "that the grave had been filled in" such that she could not see Desmond's casket. Key concluded that she had found the correct gravesite based on the presence of the shovels defendants had agreed to provide for the burial service. Plaintiffs eventually sued defendants and raised three claims: (1) wrongful interference with the right of burial based on Desmond's premature burial; (2) intentional infliction of emotional distress based on the same; and (3) breach of contract based on defendants burying Desmond before his mourners arrived for a graveside service. Later, the trial court entered an order clarifying that the breach-of-contract claim was raised only by Key.

The trial court granted defendants' motions for summary disposition of plaintiffs' claims of wrongful interference with the right of burial and intentional infliction of emotional distress, but denied summary disposition of Key's breach-of-contract claim. The trial court, however, ruled that Key could not recover emotional distress damages for the latter claim and then dismissed it because the $1, 100 in contract damages Key was left pursuing fell below the circuit court's jurisdictional limit. This appeal and cross-appeal followed.

II. ANALYSIS

Defendants moved for summary disposition under MCR 2.116(C)(8) and (10). "We review de novo a trial court's decision to grant or deny a motion for summary disposition." Sherman v City of St Joseph, 332 Mich.App. 626, 632; 957 N.W.2d 838 (2020) (citations omitted). MCR 2.116(C)(8) mandates summary disposition if "[t]he opposing party has failed to state a claim on which relief can be granted." Harbor Watch Condo Ass'n v Emmet Co Treasurer, 308 Mich.App. 380, 384; 863 N.W.2d 745 (2014).

A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint. All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. A motion under MCR 2.116(C)(8) may be granted only where the claims alleged are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. When deciding a motion brought under this section, a court considers only the pleadings. [Maiden v Rozwood, 461 Mich. 109 119-120; 597 N.W.2d 817 (1999) (cleaned up).]

Thus, "[a] party may not support a motion under subrule (C)(8) with documentary evidence such as affidavits, depositions, or admissions." Dalley v Dykema Gossett, 287 Mich.App. 296, 305; 788 N.W.2d 679 (2010).

A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a complaint. Joseph v Auto Club Ins Ass'n, 491 Mich. 200, 205-206; 815 N.W.2d 412 (2012). This Court reviews a motion brought under MCR 2.116(C)(10) "by considering the pleadings, admissions and other evidence submitted by the parties in the light most favorable to the nonmoving party." Patrick v Turkelson, 322 Mich.App. 595, 605; 913 N.W.2d 369 (2018). "The trial court is not permitted to assess credibility, weigh the evidence, or resolve factual disputes, and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition

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under MCR 2.116(C)(10)." Barnes v 21st Century Premier Ins Co, ___ Mich. App___, __; ___N.W.2d____ (2020) (Docket No. 347120); slip op at 4. Summary disposition "is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Patrick, 322 Mich.App. at 605.

A. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Plaintiffs argue that the trial court's dismissal of their intentional infliction of emotional distress claim was erroneous. "To establish a prima facie claim of intentional infliction of emotional distress, the plaintiff must present evidence of (1) the defendant's extreme and outrageous conduct, (2) the defendant's intent or recklessness, (3) causation, and (4) the severe emotional distress of the plaintiff." Walsh v Taylor, 263 Mich.App. 618, 634; 689 N.W.2d 506 (2004). "Liability attaches only when a plaintiff can demonstrate that the defendant's conduct is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Id. (cleaned up).

"Initially, the trial court must determine whether a defendant's conduct qualifies as so extreme and outrageous as to permit recovery for intentional infliction of emotional distress." Dalley, 287 Mich.App. at 321. "But where reasonable individuals may differ, it is for the jury to determine if the conduct was so extreme and outrageous as to permit recovery." Hayley v Allstate Ins Co, 262 Mich.App. 571, 577; 686 N.W.2d 273 (2004). "Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Doe v Mills, 212 Mich.App. 73, 91; 536 N.W.2d 824 (1995). Rather, "[t]he test to determine whether a person's conduct was extreme and outrageous is whether recitation of the facts of the case to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" Lewis v LeGrow, 258 Mich.App. 175, 196; 670 N.W.2d 675 (2003) (cleaned up).

In their amended complaint, plaintiffs alleged that defendants and Key agreed that Desmond would be buried at Flint Memorial Park on November 16, 2016, at 1:30 p.m., but that as Key was on her way to the burial she received telephone calls from relatives who informed her that Desmond had already been buried. When Key arrived at the cemetery at 1:45 p.m. she found that the burial was completed.

Plaintiffs argue that the trial court erred by dismissing their claim of intentional infliction of emotional distress because defendants' alleged act of burying Desmond before any mourners arrived constituted reckless disregard for the interests of Desmond's family. But, it is undisputed that a family member was at the burial service from the beginning. Moreover, while plaintiffs alleged that defendants buried Desmond before...