Mammon v. SCI Funeral Servs. of Fla. Inc.

193 So.3d 980

Orna MAMMON, Appellant,

v.SCI FUNERAL SERVICES OF FLORIDA INC., a Florida corporation d/b/a Menorah Gardens and Funeral Chapels, and Service Corporation International, Inc., a Texas corporation, Appellees.

No. 4D15–1788.

District Court of Appeal of Florida, Fourth District.

May 25, 2016.

Steven H. Osber and Emily A. Thomas of Kelley Kronenberg, P.A., Fort Lauderdale, for appellant.

Ted C. Craig and Anastasia Protopapadakis of GrayRobinson, P.A., Miami, for appellees.

GERBER, J.

The plaintiff widow appeals from the circuit court's final order dismissing her complaint against the defendant cemetery companies due to lack of subject matter jurisdiction. The widow alleged that the defendants violated both the Florida Funeral, Cemetery, and Consumer Services Act and the Florida Deceptive and Unfair Trade Practices Act by mispresenting to her that they would bury her husband in accordance with “Jewish burial customs and traditions.” The defendants moved to dismiss the complaint with prejudice for lack of subject matter jurisdiction because the parties disputed what constituted “Jewish burial customs and traditions,” and if the court was to determine what constituted “Jewish burial customs and traditions,” then the court would violate the ecclesiastical abstention doctrine. The circuit court granted the motion to dismiss on that ground. We agree with the dismissal. Thus, we affirm.

We present this opinion in five parts:

1. the widow's complaint;

2. the defendants' motion to dismiss for lack of subject matter jurisdiction;

3. the parties' arguments on appeal;

4. our examination of the ecclesiastical abstention doctrine; and

5. our application of the ecclesiastical abstention doctrine to this case.

1. The Widow's Complaint

The widow's complaint alleged, in pertinent part, as follows.

Her husband had been battling terminal cancer. His medical providers advised her to prepare for his funeral and burial. Both she and her husband were devout Jews. Accordingly, she and her husband desired to be buried in accordance with “Jewish burial customs and traditions.”

She considered entrusting her husband's burial to the defendants because they represented to the public that they provide cemetery services in accordance with “Jewish burial customs and traditions.” For example, the defendants' website contained the following representation:

As one of the Dignity Memorial network's Jewish providers, we are honored to serve Jewish families by providing funeral or cemetery services in accordance with Jewish custom. We understand the needs of today's Jewish families because we share their history and experiences and their values.... Jewish funeral tradition pays tribute to ... the principle of Kavod Ha–Met, or Honoring the Dead, which teaches that it is of utmost importance to treat the body with respect and care from the time of death until the burial is complete.... Serving you in accordance with the traditions of your Jewish faith is an honor for us. With knowledge of Orthodox, Conservative, and Reform Judaism, our Dignity Memorial providers are experienced in providing the Jewish funeral services and customs that are important to you and your family.

(emphasis added; brackets omitted).

The widow met with the defendants' representative at one of its cemeteries known as “Menorah Gardens.” The widow expressed her desire that she wanted her husband to be buried in accordance with “Jewish burial customs and traditions.”

The defendants' representative confirmed that the defendants understood “Jewish burial customs and traditions,” and assured the widow that her husband would be buried in accordance with “Jewish burial customs and traditions.”

The widow also observed physical characteristics of the cemetery's grounds which, when viewed in conjunction with the defendants' advertisements and their representative's oral statements, further enhanced the widow's expectation that the defendants would provide cemetery services in accordance with “Jewish burial customs and traditions.” These physical characteristics included:

• a large Israeli flag flying high above the cemetery's only point of ingress and egress;

• the cemetery's sections are named after historic Jewish prophets, kings, matriarchs, and leaders; and

• the cemetery's grounds contain large stone monuments of menorahs, the Star of David, and other Jewish symbols.

The widow, placing her trust and confidence in the defendants' advertisements and their representative's oral statements, purchased burial plots at Menorah Gardens for her husband and herself.

A few days later, her husband died. The day after his death, he was buried in the purchased plot at Menorah Gardens.

One month after the burial, the widow visited her husband's grave. The widow observed that the defendants allowed non-Jews to be buried within the same section as their burial plots. In particular, a pastor of a different religious faith was buried only yards away from their burial plots.

According to the widow, burying non-Jews in the same section as Jews violated “Jewish burial customs and traditions.”

Based on the foregoing, the widow filed a complaint against the defendants, alleging four counts:

(I) fraudulent, deceptive, and misleading sales practices in violation of the Florida Funeral, Cemetery, and Consumer Services Act, section 497.152(9)(e)-(f), Florida Statutes (2013) (the “Cemetery Services Act”);

(II) fraudulent, deceptive, and misleading advertising in violation of the Cemetery Services Act's related Florida Administrative Code Rule 69K–29.001 (2013) ;

(III) a per se violation of the Florida Deceptive and Unfair Trade Practices Act, section 501.201, et seq., Florida Statutes (2013) (“FDUTPA”); and

(IV) intentional or reckless infliction of emotional distress.

Specifically, the widow alleged that the defendants' actions violated “Jewish burial customs and traditions” for the following reason:

According to Jewish customs, it is a well-established tenet of burial customs to be buried on consecrated or sanctified grounds. Customarily, the burial ground is consecrated with a special ceremony and is to be utilized for the exclusive use as a Jewish cemetery. It is to be separated from unconsecrated ground using a wall, fence, or a solid hedge, using a separate entrance. According to Jewish customs, every Jew is entitled to be buried in a Jewish cemetery, a fundamental right of Jewish burial practices. In short, Defendants knowingly desecrated [the husband's] burial ground by [their] actions....

2. The Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction

The defendants answered the complaint, and filed a separate motion to dismiss for lack of subject matter jurisdiction. In their motion to dismiss, the defendants argued that resolution of the widow's claims “would require [the] Court to weigh, interpret, and enforce purported tenets of the Jewish religion in violation of the First Amendment” and “this First Amendment prohibition operates to divest a court of subject matter jurisdiction.”

The defendants filed two pieces of evidence in support of their motion to dismiss for lack of subject matter jurisdiction. See Steiner Transocean Ltd. v. Efremova, 109 So.3d 871, 873 (Fla. 3d DCA 2013) (although as a general rule, when considering a motion to dismiss, a court is limited to the four corners of the complaint and any attachments, “a court is permitted to consider evidence outside the four corners of the complaint where the motion to dismiss challenges subject matter jurisdiction”) (footnotes with citations omitted).

First, the defendants relied upon the following excerpts from their deposition of the widow:

Q. Tell me what the effect of the pastor being buried at Menorah Gardens is on your husband.

A. ... [I]t's not in accordance with the Jewish law. This is a Jewish cemetery.

Q. What Jewish law?

A. That no non-Jewish person should be buried in Menorah Gardens.

Q. Where does that law come from?

A. Our Jewish religion. I don't know one Jewish cemetery in Israel that has ... non-Jewish people. A Jewish cemetery is a Jewish cemetery. A Catholic cemetery is a Catholic cemetery. A pet cemetery is a pet cemetery.

....

Q. Okay. Why is it offensive to you to have non-Jewish people buried next to your husband?

A. Because I follow my Jewish faith correctly....

....

Q. You keep referring to this Jewish law regarding burials. What is the law? Where does it come from?

A. It comes from the law when Moses walked down with the Ten Commandments. We follow the Jewish law. The laws of Abraham. We follow the Old Testament.

....

Q. Is it your belief that the Old Testament states that a non-Jewish person may not be buried near a Jewish person?

A. I can't answer that. I am not so knowledgeable. You should ask the rabbi. ... [B]ut I follow the Old Testament.

Q. But you're not sure what the Old Testament says, correct?

A. Well, I know a lot about the Old Testament, but I can't tell you specifics.... I'm not a rabbi ....

(emphasis added).

Second, the defendants relied upon two papers demonstrating that, within the Jewish rabbinical community, a theological debate exists regarding whether Jews and non-Jews may be buried in the same cemetery. One paper, entitled, “Burial of a Non Jewish Spouse and Children,” discusses conflicting rabbinical interpretations concerning whether Jews and non-Jews may be buried in the same cemetery, and specifically, whether a non-Jewish spouse or children of an interfaith marriage may be buried in a Jewish cemetery. The other paper, entitled “Peaceful Paths: Burial of Non–Jews in a Jewish Cemetery Following a Common Disaster,” acknowledges “the traditional ban on burial together of Jews and non-Jews,” but recognizes “special circumstances in which such burial may be permitted.”

At the hearing on the defendants' motion to dismiss, the widow's counsel argued:

Although this [case] involves religious principles, Your Honor, it's a straightforward tort. It's a fraudulent misrepresentation, and that's how this court needs to view this case;

...