                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0456n.06

                                          No. 14-6106


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

SHERRY J. CAPPS, CHARLOTTE P.                   )                                 FILED
DELGAICCO, individually and as executor         )                           Jun 17, 2015
of the estate of Richard A. Pierce, and         )                       DEBORAH S. HUNT, Clerk
BRIAN D. PIERCE,                                )
                                                )
       Plaintiffs-Appellants,                   )
                                                     ON APPEAL FROM THE UNITED
                                                )
                                                     STATES DISTRICT COURT FOR THE
v.                                              )
                                                     EASTERN DISTRICT OF TENNESSEE
                                                )
CREMATION OPTIONS, INC.,                        )
                                                )
       Defendant-Appellee.




BEFORE:        DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. Rhonda Barnes, Steven Crumley,

and Joseph Crumley, who were originally defendants in this case, arranged for defendant

Cremation Options, Inc., to cremate of the remains of their deceased step-father, Richard A.

Pierce, by representing to Cremation Options that they were Pierce’s only children and,

therefore, had the authority to permit cremation. In fact, Pierce had three additional, biological

children—plaintiffs Sherry Capps, Charlotte DelGaicco, and Brian Pierce—who were religiously

and culturally opposed to cremation. They were not informed of the contract between Cremation

Options and the other three defendants until after the decedent was cremated. They then brought

suit against Cremation Options, their step-siblings, additional family members, and East

Tennessee Cremation Company, the facility that actually carried out the cremation under a
No. 14-6106
Capps v. Cremation Options, Inc.

subcontract with Cremation Options. All defendants except Cremation Options were eventually

dropped from suit at one time or another in district court. The claims against the remaining

defendant included intentional infliction of emotional distress, negligent infliction of emotional

distress, trespass upon the right to possess a body for decent burial, and conversion of cremated

remains.


       Cremation Options moved for summary judgment on all the claims against it, arguing,

first, that the decedent’s advance directive authorized cremation and, second, that Tennessee

Code Annotated §§ 62-5-707 and -708 absolved it of all liability because it reasonably relied on

the representations of Rhonda Barnes and Steven and Joseph Crumley in proceeding with the

cremation. The district court granted summary judgment to Cremation Options solely on the

basis of §§ 62-5-707 and -708. The plaintiffs now appeal this ruling, on the ground that those

statutes were enacted after Cremation Options’s allegedly tortious conduct occurred and should

not be applied retroactively. The plaintiffs, however, did not raise this issue in the district court.

We nevertheless find it necessary to vacate the district court’s grant of summary judgment to

Cremation Options and remand on the plaintiffs’ claims against that defendant.

                      FACTUAL AND PROCEDURAL BACKGROUND

       On October 13, 2011, while terminally ill, Richard A. Pierce appointed former defendant

Rhonda Barnes as his health-care agent, authorizing her to make all health-care decisions on his

behalf if he became unable to do so. He also signed an “advance care plan” form, again

designating Rhonda Barnes as his health-care agent. On the form, under a section entitled

“[o]ther instructions, such as burial arrangements, hospice care, etc.,” the word “creamation”

(sic) was written.




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Capps v. Cremation Options, Inc.

        Pierce died ten days later, on October 23, 2011.                 The next day, Jarrett Vance, an

employee of defendant Cremation Options, Inc., met with Barnes and Steven and Joseph

Crumley. Barnes identified herself to Vance as Pierce’s daughter; the Crumleys identified

themselves as Pierce’s sons. When Vance asked whether Pierce had any other children, the three

of them said that he did not. In signing the “cremation and disposition authorization” form

provided by Cremation Options, they averred that they were legally authorized to arrange for the

cremation, processing, and final disposition of Pierce’s remains; that any other adult children of

the decedent had been notified of his death and none had expressed an objection to cremation;

and that they had the legal right to authorize Pierce’s cremation and agreed to hold Cremation

Options harmless from any liability on account of their authorization of Pierce’s cremation,

identification, and final disposition.

        The decedent’s remains were cremated on October 24, in accordance with a cremation

permit obtained from the state. Despite the representations of Barnes and the Crumleys, they

were not Richard Pierce’s only children. They were, in fact, his step-children by a second

marriage; he also had three biological children—plaintiffs Sherry Capps, Charlotte DelGaicco,

and Brian Pierce—by an earlier marriage. Because the plaintiffs purportedly had cultural and

religious aversions to cremation, they brought suit against various defendants, including their

step-siblings,1 for intentional infliction of emotional distress, negligent infliction of emotional

distress, trespass upon the right to possess a body for decent burial, and conversion of cremated

remains,2 all in violation of Tennessee law.


1
  All defendants except Cremation Options were voluntarily dismissed from suit after summary judgment was
granted but before the notice of appeal was filed, undoubtedly so that the summary judgment in Cremation Options
favor would constitute a final, appealable judgment.
2
 Cremation Options released half of the resulting ashes to Rhonda Barnes and the other half to plaintiff Charlotte
DelGaicco. Despite her acknowledgement of receipt, DelGaicco later claimed title to all of the decedent’s remains.

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Capps v. Cremation Options, Inc.

       Cremation Options moved for summary judgment in the district court, in part on the

ground that, under Tennessee Code Annotated §§ 62-5-707 and -708, it was entitled to rely on

the representations of Barnes and the Crumleys, who were the only children of Richard A.

Pierce, thus relieving Cremation Options of any liability in conjunction with the cremation of his

remains.   The district court agreed with this argument and granted summary judgment to

Cremation Options. The plaintiffs now appeal the judgment in favor of Cremation Options on

their claims of intentional infliction of emotional distress, negligent infliction of emotional

distress, and trespass upon the right to possess a body for decent burial, but not for conversion of

cremated remains.

                                           DISCUSSION

       The plaintiffs raise only one argument on appeal, contending that the district court erred

in granting summary judgment to Cremation Options on the basis of Tennessee Code Annotated

§§ 62-5-707 and -708 because they went into effect only after the cremation took place.

However, the plaintiffs did not make this argument in the district court, either in opposition to

the defendant’s motion for summary judgment, in which the statutory provisions were first

asserted by Cremation Options as a defense to liability, or in a motion to alter or amend

judgment under Federal Rule of Civil Procedure 59(e). Conceding that the mistake was not

brought to the district court's attention, they now ask that we review it for “plain error.”


       Before we can correct an error not raised at trial, we must find that it is “plain” and that it

“affects substantial rights.” See Johnson Controls, Inc. v. Jay Industries, Inc., 459 F.3d 717, 728

(6th Cir. 2006) (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)). If those

conditions are met, we have the discretion to review the error, but only if it “seriously affects the



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Capps v. Cremation Options, Inc.

fairness, integrity, or public reputation of [the] judicial proceedings.” Id. (internal quotation

marks omitted) (quoting Johnson, 520 U.S. at 467).

       The district court relied on Tennessee Code Annotated §§ 62-5-707 and -708 in finding that

Cremation Options could not be held liable for wrongful disposition of the decedent’s remains in

this case. Section 62-5-707 deems “any person signing a “funeral service agreement” that directs

the disposition of remains as warranting the truthfulness of any facts set forth in the

authorization, including that person’s authority to order such a disposition. Tenn. Code Ann.

§ 62-5-707. It also provides a funeral establishment with the right to rely on such authorization

and “to carry out the instructions of the person whom [it] reasonably believes holds the right of

disposition”.     Further, under § 62-5-707 a funeral establishment is “not responsible for

contacting or independently investigating the existence of any next-of-kin or relative of the

decedent”.      Id.   Section 62-5-708 absolves of criminal and civil liability any “funeral

establishment or funeral director” who reasonably relies in good faith on the instructions of a

person claiming the right of disposition and carries out that person’s instructions in disposing of

the remains, unless the establishment or director knew or had reason to know that that person did

not have the right of disposition. Tenn. Code Ann. § 62-5-708. The district court reasonably,

but incorrectly, applied these statutory provisions to the facts presented in support of Cremation

Options’s motion for summary judgment.

       There can be little doubt about the existence of the error here.          Tennessee Code

Annotated §§ 62-5-707 and -708 were not effective until April 25, 2012, some six months after

Richard Pierce’s remains were cremated on October 24, 2011. Nothing within either section

provides for retroactive application, and Cremation Options does not argue that either statute

should be construed as having retroactive effect. Nor, importantly, did the district court indicate


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Capps v. Cremation Options, Inc.

that it was retroactively applying §§ 62-5-707 and -708 to plaintiffs’ claims against Cremation

Options. In this situation, we can reasonably assume that the district court was unaware that the

statutes were enacted after the relevant conduct in this case occurred and that its decision was not

based on a knowing retroactive application of the statutes.3

         Despite the inadvertence of the error, it is nevertheless “plain,” and it clearly “affects

substantial rights” in the controversy at hand, principally who had the right to control disposition

of the decedent’s remains.            At the time of Richard Pierce’s death, that authority was not

governed by Tennessee statute but had devolved largely as a matter of common law. The

question had been addressed in the Tennessee Supreme Court’s then-recent opinion in Seals v. H

& F, Inc., 301 S.W.3d 237 (Tenn. 2010), a case like this one, in which the authority to direct a

cremation was challenged after the cremation was completed. The scheme adopted by the Seals

court plowed new ground, based as it was on analogy to the priorities established by the Uniform

Anatomical Gift Act, as amended, Tennessee Code Annotated §§ 68-30-101 to -120 (Supp.

2009), a solution first developed by the Tennessee Court of Appeals in Akers v. Buckner-Rush

Enterprises, Inc., 270 S.W.3d 67, 73 (Tenn. Ct. App. 2007). The Tennessee Supreme Court also

concluded that Tennessee Code Annotated § 62-5-511 controlled the question of liability for a

cremation based on the apparent authority of someone without a superior right to control

disposition of a decedent’s remains. Seals, 301 S.W.3d at 248-49. That statute provides a safe

harbor for the “operator of a crematory facility” who performs a cremation “in accordance with

the instructions set forth by the decedent or an heir or personal representative of the decedent,”


3
  If the district court did intend to retroactively apply §§ 62-5-707 and -708, its decision to do so was error. “There is
a ‘presumption against retroactive legislation [that] is deeply rooted in our jurisprudence. . . . The principle that the
legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has
timeless and universal appeal.’” Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939, 946 (1997) (quoting
Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994)). Absent an express command that a statute operates
retroactively, the statute will be applied prospectively only. Glover v. Johnson, 138 F.3d 229, 249 (6th Cir. 1998).

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Capps v. Cremation Options, Inc.

unless the operator’s action was undertaken “with malicious purpose, in bad faith or in a wanton

or reckless manner.” Tenn. Code Ann. § 62-5-511(a).

       Unfortunately for Cremation Options, it clearly would have qualified as a “funeral

establishment or funeral director” for purposes of the safe-harbor provisions in §§ 62-5-707 and

708, had those statutes been in effect in October 2011, but it would not qualify as the “operator

of a crematory facility” for purposes of the safe harbor provided in § 62-5-511. Pointing to

Tennessee Code Annotated § 62-5-507, the Seals court held that “the General Assembly intended

‘operator’ to refer to the party actually performing the cremations,” meaning that H & F Inc., the

funeral director in Seals, did not qualify for protection from liability because it had subcontracted

out the actual cremation process to a separate business entity.         Seals, 301 S.W.3d at 252

(emphasis added) (“Generally, however, a funeral home that does not perform cremations, but

merely makes arrangements for cremations to be carried out by another company, is not itself the

operator of a crematory facility and, in consequence, cannot rely on the section 62–5–511 safe

harbor.”). Cremation Options, like H & F Inc., had contracted with another company to perform

the actual cremation of the decedent’s remains in this case and, thus, could not have defended on

the basis of § 62-5-511.

       Without the availability of a safe harbor, Cremation Options is left to look to Seals, 301

S.W. 3d at 242, “to ascertain who has control over the disposition of remains.” The Tennessee

Supreme Court in Seals held that:

       [T]he decedent, as a general rule, has the primary entitlement to expressly elect
       the method of disposal of his or her body, or, in the alternative, to designate an
       individual to elect the method of disposal; if the decedent does not do so,
       however, the legal right to direct the disposal of remains descends to the
       following parties, in order of priority: (1) the spouse of the decedent; (2) adult
       children of the decedent; (3) parents of the decedent; (4) adult siblings of the
       decedent; (5) adult grandchildren of the decedent; (6) grandparents of the


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Capps v. Cremation Options, Inc.

       decedent; and (7) an adult who has exhibited special care and concern for the
       decedent.

Id. (emphasis added).

       Because the district court in this case rested its decision in the defendant’s favor entirely

on inapplicable Tennessee Code provisions, the court did not rule on the validity of the advance

directive purportedly executed post-mortem by Richard A. Pierce, in which he ostensibly

designated cremation as “the method of disposition of his body” and, in the alternative, also

purported “to designate [Rhonda Barnes] to elect the method of disposal.” We take this to mean

that the court’s error was not only plain and in derogation of rights, but also that the application

of plainly inapplicable statutory provisions could “seriously affect [ ] the fairness, integrity, and

public reputation of the judicial proceedings” in this case. Johnson Controls, 459 F.3d at 728.

We therefore find it necessary to vacate the order of summary judgment and remand the case to

the district court for further proceedings, including reconsideration of the plaintiffs’ request to

reopen formal discovery.

                                         CONCLUSION

       For the reasons set out above, we REVERSE the district court's judgment and REMAND

the case for further proceedings.




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