                                                                      FILED
                                                                   JUNE 24, 2014
                                                            In the Office of the Clerk of Court
                                                          W A State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

THERESA WHITNEY, a married woman               )         No. 31415-4-111
in her individual capacity; ROSE ANN           )         (consolidated with
SANDS, a single woman,                         )         No. 31475-8-111)
                                               )
                     Appellants,               )
                                               )
              v.                               )         PUBLISHED OPINION
                                               )
CECILIA CERVANTES, a single woman;             )
CERVANTES LAW OFFICE, INC., a                  )
Washington corporation, RICK PHILLIPS          )
and ANN PHILLIPS, husband and wife,            )
d/b/a Telford's Chapel of the Valley,          )
                                               )
                     Respondents.              )

       LA WRENCE-BERREY, J. - Theresa Whitney sought control over burial of her

uncle's body. Rick Phillips of Telford's Chapel of the Valley denied Ms. Whitney's

request and allowed Cecelia Cervantes, the uncle's personal representative, to control

burial. Ms. Whitney and her sister Rose Ann Sands filed suit against Mr. Phillips and

Telford's for interference with the next of kin's right to control burial of a family

member, tortious interference with a dead body, and negligence. Mr. Phillips and

Telford's moved for summary judgment. The trial court dismissed all claims, finding that
No. 31415-4-III; 31475-8-III
Whitney v. Cervantes


the sisters failed to prove that Mr. Phillips acted intentionally when he denied control

over the burial. Ms. Whitney and Ms. Sands appeal. Finding no error, we affinn.

                                          FACTS

       Lawrence Wilhalm died in January 2011. He was not married, had no children,

and outlived his parents and siblings. Mr. Wilhalm's closest surviving relatives were his

nieces, Ms. Whitney and Ms. Sands, and their brother.

       In 1999, more than 10 years before his death, Mr. Wilhalm executed a valid will

that included burial plans. He wished for a burial according to the Catholic faith, with

services to be held at the St. Rose of Lima Catholic Church and intennent in the church

cemetery. Additionally, he stated that he made arrangements with Nicoles Funeral Home

of Ephrata, Washington, gave the model and color of the casket, the dimensions and

description of the tombstone, and the color of suit in which he wanted to be buried. Mr.

Wilhalm's will stated that any changes or other details regarding his funeral arrangements

shall be set forth in a separate letter of intennent. Mr. Wilhalm's will named Cecelia

Cervantes as his alternate personal representative to manage, settle, and administer his

estate in accordance with the will. Ms. Cervantes is an attorney.

       In 2010, Mr. Wilhalm created a document entitled "Burial Instructions: Lawrence

E. Wilhalm." Clerk's Papers (CP) at 46. Again, he requested a Catholic funeral and


                                             2

No. 314IS-4-III; 3147S-8-II1
Whitney v. Cervantes


burial at Saint Rose of Lima Cemetery in Ephrata. As a new addition, he stated that his

personal representative shall arrange for his burial, transportation, and interment of his

remains through Telford's or another facility within the personal representative's

discretion. The document was signed by Mr. Wilhalm, but was not signed by a witness.

Ms. Cervantes's law office prepared Mr. Wilhalm's 2010 burial instructions.

       After Mr. Wilhalm died at a Spokane hospital, Ms. Cervantes contacted the

hospital for release of his remains. The hospital sent Ms. Cervantes a letter stating that it

was releasing Mr. Wilhalm's remains to Telford's based on Ms. Cervantes's status as

personal representative, Mr. Wilhalm's instructions, and Ms. Cervantes's representation

that there was no prepaid plan at Nicoles Funeral Home.

       Ms. Cervantes contacted Mr. Phillips at Telford's. Based on a prior encounter

with Mr. Wilhalm, Mr. Phillips knew that Ms. Cervantes was Mr. Wilhalm's attorney and

that Mr. Wilhalm wanted Telford's to handle his funeral arrangements. Ms. Cervantes

showed Mr. Phillips the burial instructions indicating Mr. Wilhalm's wishes. Ms.

Cervantes said that she was acting as the personal representative of Mr. Wilhalm's estate

and would be in charge of the funeral and burial. Mr. Phillips did not see a reason to

question Ms. Cervantes's authority to act as Mr. Wilhalm's personal representative.




                                              3

No. 31415-4-III; 31475-8-III
Whitney v. Cervantes


       Ms. Whitney contacted the hospital within 48 hours of her uncle's death. She was

told that Ms. Cervantes gave the hospital instructions with respect to Mr. Wilhalm's body.

She then contacted Telford's and spoke to Mr. Phillips to make funeral plans and

arrangements. She informed Mr. Phillips that she was Mr. Wilhalm's closest surviving

relative. She advised Mr. Phillips that Mr. Wilhalm had made arrangements with Nicoles

Funeral Home and that she wanted to make sure that her uncle's wishes were followed.

She also inquired about Mr. Wilhalm's burial policies, the amounts of the policies, and

the named beneficiaries of the policies.

       Mr. Phillips told Ms. Whitney that Ms. Cervantes claimed to be in charge of

making Mr. Wilhalm's funeral arrangements and that Ms. Cervantes presented documents

to establish her authority to do so. Ms. Whitney was upset and overwhelmed emotionally.

When asked what documents were presented, Mr. Phillips told Ms. Whitney only that the

documents were in order and that he was going to allow Ms. Cervantes to control the

disposition of Mr. Wilhalm's body.

       Ms. Whitney contacted Mr. Phillips three more times and asked about the

paperwork and reminded him that Ms. Cervantes was not related to Mr. Wilhalm. Mr.

Phillips did not respond to the inquiry. Mr. Phillips also would not provide the time, date,




                                             4

No. 3141S-4-III; 3147S-8-III
Whitney v. Cervantes


and location of the funeral service, and explained that Ms. Whitney would need to contact

Ms. Cervantes for the infonnation. I

       Eventually, Ms. Whitney was told by a church parishioner that the funeral service

was scheduled for the next day at Saint Rose of Lima Catholic Church in Ephrata.

Despite the short notice, Ms. Whitney and Ms. Sands attended the service. At the

conclusion of the funeral, Mr. Phillips approached Ms. Whitney and demanded that she

give Ms. Cervantes the guest book.

       Ms. Whitney and Ms. Sands (collectively Ms. Whitney) filed a complaint for

damages against Mr. Phillips and Telford's (collectively Mr. Phillips), and Ms. Cervantes

for interfering with the sisters' right as next of kin to control disposition of Mr. Wilhalm's

remains. 2 Ms. Whitney asserted (I) intentional interference with the right to control and

direct the burial of a family member's corpse, (2) tortious interference with a dead body,

and (3) negligence. Mr. Phillips moved for summary judgment dismissal of all claims.

       The trial court reviewed the declarations from Ms. Whitney, Ms. Sands, and Mr.

Phillips. The court concluded that Ms. Whitney failed to establish an intentional act for

the purpose of summary judgment. Also, the court concluded that Washington has not



       1 There is no dispute over whether Mr. Wilhalm received the funeral arrangements
that he requested in his will.
       2 Ms. Whitney's claims against Ms. Cervantes are not subject to this appeal.


                                              S

No. 31415-4-III; 31475-8-III
Whitney v. Cervantes


adopted the restatement that permits an action based on negligence. Thus, the court

granted Mr. Phillips's motion for summary judgment and dismissed Ms. Whitney's claims

with prejudice. A stipulated order was thereafter entered pursuant to CR 54(b),

permitting Ms. Whitney's appeal of the summary judgment prior to adjudicating her

claims against Ms. Cervantes.

                                        ANALYSIS

       Right to Control and Direct Burial. A trial court's decision on summary judgment

is reviewed de novo, meaning this court will engage in the same inquiry as the trial court.

Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 197,943 P.2d 286 (1997). Summary

judgment is proper if the record before the court shows that there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law. Jd. at 197­

98 (quoting CR 56(c)). "The facts and all reasonable inferences therefrom must be

considered in the light most favorable to the nonmoving party." Jd. at 198. The facts

presented must be more than speculative and argumentative assertions. Adams v. King

County, 164 Wn.2d 640, 647, 192 P.3d 891 (2008). "The court should grant summary

judgment 'only if reasonable persons could reach but one conclusion.'" Jd. (quoting

Retired Pub. Employees Council v. Charles, 148 Wn.2d 602,613,62 P.3d 470 (2003)).




                                             6

No. 31415-4-111; 31475-8-111
Whitney v. Cervantes


       Ms. Whitney challenges the court's dismissal of her common law claim of

intentional interference with the next of kin's right to control and direct the burial ofa

family member's corpse. She contends that as next of kin, she was entitled to be the

contact person for the preplanned disposition of her uncle's body, and that Mr. Phillips

violated her right by allowing Ms. Cervantes to plan and control arrangements despite

Ms. Whitney's objection.

       "The right to the next of kin to control and direct the burial ofa corpse and arrange

for its preservation is not only a natural right, embracing a high order of sentiment, but

has become to be well recognized as a legal right." Guilliume v. McCulloch, 173 Wash.

694,696,24 P.2d 93 (1933). Absent a decedent's testamentary disposition stating

otherwise, the right to control burial belongs exclusively to the next of kin. Id. at 697

(quoting Herzl Congregation v. Robinson, 142 Wash. 469, 473, 253 P. 654 (1927)).

"[T]here is a quasi property right in a dead human body inherent in the immediate

relatives of the deceased." Herz!, 142 Wash. at 472.

       While the right to control disposition of a body arose out of common law, it is no,",:,

codified by statute in RCW 68.50.160. 3 A person has the right to control the disposition


       The Washington Supreme Court in Herz! noted that the right of custody over a
       3
dead body and disposal of the body has been recognized by Washington statute. Herz!,
142 Wash. at 471.

                                              7

No. 31415-4-III; 31475-8-II1
Whitney v. Cervantes


of his or her own remains. RCW 68.50.160(1). To execute this right, "[a] valid written

document expressing the decedent's wishes regarding the place or method of disposition

of his or her remains, signed by the decedent in the presence of a witness, is sufficient

legal authorization for the procedures to be accomplished." RCW 68.50.160(1).

       However, if the decedent has not given directions or made prearrangements with a

funeral establishment, the right to control disposition of the remains vests to the persons

in the following order: (a) the surviving spouse, (b) the surviving adult children of the

decedent, (c) the surviving parents of the decedent, (d) the surviving siblings of the

decedent, and (e) person acting as a representative of the decedent under the signed

authorization of the decedent. Former RCW 68.50.160(3) (2010).

       A licensed funeral establishment's liability for burying human remains is limited.

RCW 68.50.160(5). If the funeral establishment makes a good faith effort to locate the

person responsible as cited in former RCW 68.50.160(3)(a) through (e) or the legal

representative of the decedent's estate, "the cemetery authority or funeral establishment

shall have the right to rely on an authority to bury or cremate the remains, executed by the

most responsible party available, and the cemetery authority or funeral establishment may

not be held criminally or civilly liable for burying or cremating the human remains."

RCW 68.50.160(5).



                                             8

No. 31415-4-111; 31475-8-111
Whitney v. Cervantes


       As a preliminary note, we are not deciding the dispute of whether Ms. Whitney or

Ms. Cervantes had authority to control the burial of Mr. Wilhalm's body. Instead, the

legal issue before this court is whether Ms. Whitney is allowed to proceed with her claim

against Mr. Phillips for interfering with her alleged right to control the burial of her

uncle's body. We conclude as a matter oflaw that RCW 68.50.160(5) relieves Mr.

Phillips from liability. There is no evidence that would allow reasonable persons to

conclude that Mr. Phillips did not conduct a good faith investigation to locate the party

responsible for burial or Mr. Wilhalm's personal representative or that Mr. Phillips should

not have relied on Ms. Cervantes's authority to bury Mr. Wilhalm.

       Evidence presented by Mr. Phillips meets his burden of establishing a good faith

investigation and his right to rely on Ms. Cervantes's authority. According to Mr.

Phillips's declaration, he identified Ms. Cervantes as Mr. Wilhalm's personal

representative. Ms. Cervantes told Mr. Phillips that she was Mr. Wilhalm's personal

representative and that she would be in charge of the burial. He stated that he had no

reason to question her authority as he knew that she was Mr. Wilhalm's attorney.

       To further support his reliance on Ms. Cervantes's authority, Mr. Phillips viewed

Mr. Wilhalm's burial instructions that stated that his personal representative was to

arrange the burial and interment. Although the form was not valid because it lacked a



                                              9

No. 31415-4-111; 31475-8-111
Whitney v. Cervantes


witness signature, no evidence was presented that Mr. Phillips knew that he should not

rely on the instructions. Instead, Mr. Phillips gave the instructions merit because they

specifically laid out the burial plans. Finally, Mr. Phillips relied on a letter from the

Spokane hospital that released Mr. Wilhalm's body to Mr. Phillips's funeral home. The

hospital identified Ms. Cervantes as Mr. Wilhalm's personal representative.

       Ms. Whitney failed to present any contrary evidence to create a material issue of

fact regarding Mr. Phillips's investigation or his reliance on Ms. Cervantes. While Mr.

Phillips did not actively go searching for the information, this does not provide a basis for

reasonable persons to conclude that his investigation was not in good faith. The

documents Mr. Phillips viewed and his prior knowledge of Ms. Cervantes's relationship

with Mr. Wilhalm provided sufficient information for Mr. Phillips to reasonably rely on

Ms. Cervantes's authority to control the burial.

       Also, Ms. Whitney's conversations with Mr. Phillips regarding her familial

relationship to Mr. Wilhalm and her skepticism of Ms. Cervantes's authority do not create

an issue of material fact. Although Ms. Whitney told Mr. Phillips that she was Mr.

Wilhalm's next of kin, there is no evidence that Ms. Whitney gave Mr. Phillips a reason

to believe that she had a legal basis for authority, thus establishing a need for further




                                              10 

No. 31415-4-III; 31475-8-III
Whitney v. Cervantes


investigation. To the contrary, Ms. Cervantes presented Mr. Phillips with documentation

that established her authority as the most responsible party available.

       The trial court properly dismissed Ms. Whitney's claim of interference with the

right to control and direct burial of a family member. Ms. Whitney failed to create an

issue of material fact as to whether Mr. Phillips conducted a good faith effort to locate the

person cited in former RCW 68.50.160(3) or Mr. Wilhalm's personal representative. As a

matter of law, Mr. Phillips cannot be held civilly responsible for relying on Ms.

Cervantes's authority when burying Mr. Wilhalm.

       Tortious Interference with a Dead Body. Ms. Whitney contends that the trial court

erred in dismissing her claim for tortious interference with a dead body because a material

issue of fact exists as to whether Mr. Phillips's acts were intentional. She maintains that

Mr. Phillips acted purposefully when he allowed Ms. Cervantes control over Mr.

Wilhalm's body despite Ms. Whitney's objections and without conducting a reasonable

investigation. Ms. Whitney claims that this interference caused her to suffer emotional

damage.

       "The tort of interference with a dead body allows recovery for mental suffering

derived from the willful misuse of a body." Adams, 164 Wn.2d at 658. "The action is not

based on a property interest in the body itself, but rather an interest in the proper



                                              11 

No. 31415-4-III; 31475-8-III
Whitney v. Cervantes


treatment of the body." Id. The tort action is available for relatives of the deceased and

those who control the right to dispose of the body. Id.

       The mental suffering must directly result from a willful wrong and not merely a

negligent act. Id. (quoting Bradbury v. Bleitz, 133 Wn.2d 134, 136,233 P. 299 (1925)).

For example, intentionally withholding or delaying the proper burial of a body constitutes

a willful misuse of the body. Id. at 659.

       Ms. Whitney failed to present evidence that Mr. Phillips intentionally acted

wrongly when he denied Ms. Whitney control over the burial of Mr. Wilhalm's body.

There is no evidence that Mr. Phillips knew that Ms. Whitney should have controlled the

burial of the body and willfully denied her that right. Mr. Phillips considered the

documentation provided to him and allowed Ms. Cervantes to control disposition of Mr.

Wilhalm's body. There is no indication Mr. Phillips knew that the documents did not

provide Ms. Cervantes with legal authority. Even though Ms. Whitney objected to Ms.

Cervantes's control, Mr. Phillips's refusal to give Ms. Whitney control based on her

objections is not an intentional wrongful act relating to Mr. Wilhalm's body. In viewing

facts and reasonable inferences in the light most favorable to Ms. Whitney, reasonable

persons could not reach differing conclusions. The trial court properly dismissed Ms.

Whitney's claim for tortious interference with a dead body.



                                             12
No. 31415-4-III; 31475-8-III
Whitney v. Cervantes


       Negligence. Ms. Whitney contends that the trial court erred in dismissing her

negligence claim against Mr. Phillips. She maintains that reasonable persons could find

that Mr. Phillips acted negligently when he interfered with Ms. Whitney's right to bury

Mr. Wilhalm. We conclude that dismissal was proper. Washington law does not

recognize an action for negligent interference with a dead body. Adams, 164 Wn.2d at

656-57. Thus, as a matter oflaw, Ms. Whitney cannot pursue her negligence claim.

       In her reply brief, Ms. Whitney asks this court to adopt Restatement (Second) of

Torts § 868 (1979), which permits recovery for negligent interference with a dead body.

Section 868 states in part that one who intentionally, recklessly, or negligently withholds

the body of a dead person can be liable to a member of the decedent's family who is

entitled to disposition of the body. We will not consider Ms. Whitney's argument for

adopting the restatement because she raised the issue for the first time in her reply brief.

See RAP 10.3(c); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,809,828

P.2d 549 (1992). Furthermore, the Washington Supreme Court rejected prior arguments

requesting adoption of the restatement. Adams, 164 Wn.2d at 657 n.9.




                                             13 

No. 3141S-4-III; 3147S-8-III
Whitney v. Cervantes


      We affirm.


                                                            '\
                                       (y\(1
                                      Lawrence-Berrey, J.


WE CONCUR: 





Brown, J.




                               14 

