                              SECOND DIVISION
                               ANDREWS, P. J.,
                            MCFADDEN and RAY, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              http://www.gaappeals.us/rules/


                                                                 November 14, 2014




In the Court of Appeals of Georgia
 A14A0949. JUSTICE et al. v. SCI GEORGIA FUNERAL
     SERVICES, INC. et al.

      MCFADDEN, Judge.

      This appeal is from a grant of summary judgment to the funeral home

defendants in a case arising out their failure to insure that the cremated remains of

appellant’s decedent were in the urn that was to contain them. Appellant’s claims

include breach of contract, interference with burial rights, invasion of privacy,

intentional infliction of emotional distress and trespass. The grant of summary

judgment on the breach of contract claim was premised on the trial court’s finding

that there were no actual damages arising from the alleged breach. That finding was

correct, but because nominal damages may still be recovered, summary judgment on

that claim was improper and must be reversed. As to the remaining claims challenged
on appeal, there exist no genuine issues of material fact and we thus affirm the grant

of summary judgment on those claims.

      Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” OCGA § 9-11-56 (c). We apply a de novo standard

of review “to an appeal from a grant of summary judgment, and we view the

evidence, and all reasonable conclusions and inferences drawn from it, in the light

most favorable to the nonmovant.” Moore v. Camara, 317 Ga. App. 651, 652 (732

SE2d 319) (2012).

      So viewed, the evidence shows that Monica Rivera passed away on December

22, 2007. The following day, Rivera’s mother, Linda Justice, contracted with SCI

Georgia Funeral Services, Inc., d/b/a Striffler-Hamby Mortuary, to provide cremation

and memorial services for $4,850. Among other things, the contract provided for

transfer of the cremated remains from the crematory to the funeral home, an urn, and

a memorial service. The memorial service was held on the morning of December 28,

2007, in the Striffler-Hamby funeral home chapel. In preparing for the service,

funeral director Dale Land retrieved the urn with Rivera’s name noted on it from an

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office in the funeral home, looked inside the urn, saw that it contained a temporary

container used to hold the decedent’s ashes, and assumed that Rivera’s ashes were

inside that container. Land placed the urn in the chapel for the service. At the

conclusion of the service, Land gave the urn to Justice, who took it to her house and

put it on her mantel.

      Later that afternoon, Rivera’s ashes were delivered by the crematory to the

funeral home. Upon learning of the delivery and that the ashes were not in the urn,

Land called Justice and asked if he could come speak with her. Justice agreed, and

Land then drove to her house. Once there, he explained that the ashes were not in the

urn and apologized. He asked for permission to take the urn back to the funeral home

so he could put the ashes in it. Justice gave him permission to do so.

      After he had returned to the funeral home, Land opened the temporary

container in the urn and found that it was indeed empty. He then put Rivera’s

cremated remains inside it and drove back to Justice’s house. He knocked on the

screen door, heard voices inside, entered and placed the urn with the ashes back on

the mantel in the living room. Justice and a friend then came into the room and spoke

briefly with Land. He assured Justice that he had personally placed the decedent’s

ashes in the urn, apologized again, and left. Thereafter, Striffler-Hamby canceled the

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amount due under the contract, did not charge Justice for the services provided, and

did not collect any money for the services.

      Two years later, in November 2009, Justice, her mother Dorothy Wire, and

other family members filed the instant lawsuit against Striffler-Hamby and Land. The

trial court granted summary judgment to the defendants. This appeal followed.

      1. Breach of contract.

      Justice and the other appellants contend that the trial court erred in granting

summary judgment on the breach of contract claim because there exists a genuine

issue of material fact as to whether the failure to have the decedent’s ashes at the

memorial service constituted a breach of the agreement. We agree.

      In granting summary judgment, the trial court reasoned that pretermitting any

breach, Justice suffered no pecuniary damage because “Striffler-Hamby zeroed out

the contract such that there was no charge by the funeral home at all.” The trial court

was correct in finding that the evidence, including the deposition testimony of both

Justice and Wire, unequivocally shows that the funeral home did not charge them or

collect payment for the services provided. But the lack of such damages flowing from

the presumed breach did not authorize the court’s entry of summary judgment.



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      Where there exists evidence from which a jury could find that the defendant

breached a contract,

      the defendant is not entitled to summary judgment on the claim, even if
      the plaintiff fails to present any admissible evidence to establish the
      amount of actual damages flowing from the breach. This is because,
      under OCGA § 13-6-6, in every case of breach of contract, the injured
      party has a right to damages, but, if there has been no actual damage, the
      injured party may recover nominal damages sufficient to cover the costs
      of bringing the action.

Eastview Healthcare v. Synertx, Inc., 296 Ga. App. 393, 399 (4) (674 SE2d 641)

(2009).

      In this case, there is, at the very least, a genuine issue of material fact as to

whether the funeral home’s failure to ensure that the decedent’s ashes were in the urn

during the memorial service constituted a breach of the memorial services contract.

So even though there is a lack of evidence that the appellants sustained actual

damages arising from the alleged breach, such lack of evidence “does not constitute

a viable basis for granting [the defendants’] motion for summary judgment. [Cits.]”

Id. See also Crippen v. Outback Steakhouse Intl., 321 Ga. App. 167, 170 (1) (741

SE2d 280) (2013) (citing OCGA § 13-6-6 for proposition that “a lack of damages

would not be a bar to a breach of contract claim”); Hearn v. Dollar Rent a Car, 315

Ga. App. 164, 174 (1) (e) (726 SE2d 661) (2012) (citing right to recover nominal

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damages in breach of contract action as basis for denying summary judgment). The

trial court’s grant of summary judgment on that basis must therefore be reversed.

      2. Interference with burial rights.

      The appellants contend that the trial court erred in granting summary judgment

on their claim of interference with burial rights. The contention is without merit.

      “In this state, an unlawful and unwarranted interference with the exercise of the

right of burial is a tort. This right of burial belongs to the surviving spouse of the

deceased and devolves upon the next of kin of the deceased only if no spouse

survives.” Habersham Mem. Park v. Moore, 164 Ga. App. 676, 678 (1) (297 SE2d

315) (1982) (citations omitted). Assuming that the right of burial belonged to the

appellants as next of kin,

      [t]he funeral home owed [them] the duty not to wilfully or wantonly
      interfere with the burial of [Rivera]. To show wilful or wanton conduct,
      one must demonstrate that a defendant’s acts evidenced a wilful
      intention to inflict the injury, or else were so charged with indifference
      to the consequences as to justify finding a wantonness equivalent in
      spirit to actual intent.

Pyle v. Pyle, 243 Ga. App. 398, 400 (2) (531 SE2d 738) (2000) (citations and

punctuation omitted).




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      In this case, there is no evidence that Land or the funeral home acted wilfully

or wantonly. Rather, at most, the evidence shows that they acted negligently in failing

to ensure that the cremated remains were in the urn during the memorial service. “A

demonstration of mere negligence is not sufficient to show wilful or wanton

behavior.” McNeal Loftis, Inc. v. Helmey, 218 Ga. App. 628, 629 (462 SE2d 628)

(1995). Because the appellants failed to show the existence of a genuine issue of

material fact as to the “element [of wilful or wanton conduct] necessary to recover for

tortious interference with burial rights, the trial court [did not err in granting] the

motion for summary judgment as to that claim.” Id. at 630.

      3. Invasion of privacy.

      The appellants argue that the trial court erroneously granted summary judgment

on their invasion of privacy claim. The argument is without merit.

      The courts of this state “have identified four kinds of invasion of privacy for

which a right of action exists, and among these is an intrusion upon the seclusion or

solitude of a plaintiff or into his private affairs. [Cits.]” Benedict v. State Farm Bank,

309 Ga. App. 133, 135 (1) (a) (709 SE2d 314) (2011). The appellants allege that the

failure to have the decedent’s remains present at the memorial service somehow



                                            7
constituted such an unreasonable intrusion upon their seclusion, solitude and private

affairs. However,

      [t]he unreasonable intrusion aspect of the tort of invasion of privacy
      involves a prying or intrusion, which would be offensive or
      objectionable to a reasonable person, into a person’s private concerns.
      In order to show the tort of unreasonable intrusion, a plaintiff must show
      a physical intrusion which is analogous to a trespass; however, this
      physical requirement can be met by showing that the defendant
      conducted surveillance on the plaintiff or otherwise monitored plaintiff’s
      activities.

Sitton v. Print Direction, 312 Ga. App. 365, 369 (2) (718 SE2d 532) (2011) (citations

and punctuation omitted).

      In this case, neither the funeral home nor Land pried into or intruded on the

appellants’ private concerns. And there certainly is no evidence that a physical

intrusion or surveillance took place. The fact that the decedent’s ashes were not in the

urn during the service simply was “not an unreasonable intrusion which would

support a claim for invasion of privacy, and [we therefore] affirm[] the trial court’s

grant of summary judgment on this issue.” Yarbray v. Southern Bell Tel. & Tel. Co.,

261 Ga. 703, 706 (1) (409 SE2d 835) (1991).

      4. Intentional infliction of emotional distress.




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      The trial court correctly granted summary judgment on the claim for intentional

infliction of emotional distress.

      The four elements which must be proved in order to sustain a claim of
      intentional infliction of emotional distress are: (1) The conduct must be
      intentional or reckless; (2) The conduct must be extreme and
      outrageous; (3) There must be a causal connection between the wrongful
      conduct and the emotional distress; and (4) The emotional distress must
      be severe.

Roddy v. Tanner Med. Ctr., 262 Ga. App. 202, 204 (585 SE2d 175) (2003).

      The appellants cannot prove either of the first two elements. The conduct of the

funeral home and Land was not intentional or reckless; rather, as recounted above in

Division 2, it was, at most, negligent conduct. Moreover, “[t]o warrant the imposition

of liability for such claim, the conduct must be 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.” Hill v. City of Fort

Valley, 251 Ga. App. 615, 616 (1) (a) (554 SE2d 783) (2001) (citation omitted).

      But here, as in the similar case of Hill, the purportedly negligent conduct did

not rise to this level of outrageousness. In Hill, the funeral home mistakenly buried

the decedent in the wrong plot and then, believing it had permission of surviving

family members, re-interred the decedent in the correct plot. This court affirmed the


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grant of summary judgment to the funeral home on the family’s claim of intentional

infliction of emotional distress, finding that even if the funeral home was “insensitive

or negligent in failing to obtain the express permission of the plaintiffs prior to

moving their mother’s grave, there is nothing in the record to raise such conduct to

the degree of wilfulness or wantonness that is necessary for a claim of intentional

infliction of emotional distress.” Hill, supra at 617 (1) (a) (citations omitted).

Likewise, the conduct of the appellees in this case, while even if insensitive or

negligent, do “not rise to the level of outrageousness necessary to sustain a claim for

intentional infliction of emotional distress. [Cits.]” Northside Hosp. v. Ruotanen, 246

Ga. App. 433, 436 (541 SE2d 66) (2000). See also Roddy., supra at 205 (tort of

intentional infliction of emotional distress is reserved for instances in which a

defendant intended to harm the plaintiff).

      5. Trespass.

      The appellants’ claim that Land committed a trespass in violation of OCGA §

51-9-1 when he came back to and entered Justice’s house in order to return the urn

containing the ashes and place it on the living room mantel is entirely without merit.

“[T]here is no evidence on the present record that [Land] refused to leave the house

or realty after being asked to leave, or that [he] interfered with [Justice’s] possessory

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interest in the realty. Accordingly, the trial court correctly found there was no claim

for trespass under OCGA § 51-9-1.” Udoinyion v. Re/Max of Atlanta, 289 Ga. App.

580, 583 (657 SE2d 644) (2008) (citations omitted).

      Judgment affirmed in part and reversed in part. Andrews, P. J.,concurs. Ray,

J., concurs fully in Divisions 1, 2, 3, and 4, and in the judgement only in Division 5.




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