                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                     August 13, 2007 Session

                         RONDAL AKERS, ET AL. v.
                   BUCKNER-RUSH ENTERPRISES, INC., ET AL.

                    Appeal from the Circuit Court for Bradley County
           Nos. V-02-0620, V-02-623, and V-02-624   W. Neil Thomas, III, Judge



                  No. E2006-01513-COA-R3-CV               Filed November 21, 2007



This is an appeal from three consolidated lawsuits filed against T. Ray Brent Marsh, Marsh’s former
business, Tri-State Crematory, and Buckner-Rush Enterprises, Inc. The plaintiffs are relatives and
a girlfriend of three deceased individuals whose bodies were sent by Buckner-Rush Funeral Home
to Tri-State Crematory for cremation. The bodies were not cremated and either were dumped or
buried by Marsh on the Tri-State premises. The Trial Court dismissed all three lawsuits after holding
that the plaintiffs did not have standing to bring any of the tort, contract, or statutory claims at issue.
We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.


                Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit
                Court Affirmed in Part and Vacated in Part; Case Remanded


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
joined. CHARLES D. SUSANO , JR., J., filed a separate opinion concurring in part and dissenting in part.

William J. Brown, Cleveland, Tennessee, for the Appellants, Rondal and Lucinda Akers, Donna
Burns, and Susan Hall, Doyle Harden, Ricky Harden, Sandra Fogle, Mollie C. Denton, and Elaine
Waldron,

Stuart F. James, Chattanooga, Tennessee, for the Appellees T. Ray Brent Marsh, Rhames Lashae
Marsh, Tri-State Crematory, and Tri-State Crematory, Inc.

Aubrey B. Harwell, Jr., Ronald G. Harris, and George H. Cate, III, Nashville, Tennessee, for the
Appellees, Buckner-Rush Enterprises, Inc., Prime Succession of Tennessee, Inc., and Prime
Succession Holding, Inc.
                                               OPINION

                                             Background

              This is the third appeal from numerous civil lawsuits filed against T. Ray Brent Marsh
(“Marsh”) and various other defendants. The underlying facts are set forth in depth in our other
opinions, Floyd v. Prime Succession of TN, No. E2006-01085-COA-R9-CV, 2007 WL 2297810
(Tenn. Ct. App. Aug. 13, 2007), no appl. perm. appeal filed, and Crawford v. J. Avery Bryan
Funeral Home, Inc., No. E2006-00987-COA-R3-CV (Tenn. Ct. App. Nov. 21, 2007).1 We will
again mention in this opinion only the most significant underlying facts.

               Marsh operated Tri-State Crematory in Noble, Georgia. In 2002, it was discovered
that the crematory was not operational and had not been operational in years. Although Marsh
continued to accept bodies for cremation, he simply was burying or dumping the bodies on the Tri-
State premises. Marsh would return to the family members what purported to be the ashes of a
deceased, but the ashes were not the remains of their loved one. Over 300 un-cremated bodies were
discovered on the Tri-State premises. Local authorities were able to identify approximately 200 of
those bodies. Criminal charges were brought against Marsh in Georgia and Tennessee. Marsh
received a 12-year prison sentence in Georgia and a 9-year prison sentence in Tennessee. The
sentences are being served concurrently. See Floyd, 2007 WL 2297810, at *2, 3.

                Numerous civil lawsuits were filed in several states by family members of the
deceased individuals who were not or were believed not to have been cremated. The lawsuits were
filed against various defendants including Marsh, Tri-State Crematory, and the funeral homes.

                As discussed in much more depth in our Crawford opinion, a class action lawsuit was
filed in Georgia. The United States District Court for the Northern District of Georgia certified class
action status and members of the class were permitted to opt-out. The class action lawsuit was
settled.

                 The present appeal involves three separate lawsuits brought by individuals who were
not parties to the Georgia class action lawsuit. The plaintiffs have alleged various causes of action,
including breach of contract, negligence, misrepresentation, negligent and intentional infliction of
emotional distress, intentional mishandling of a corpse, and fraud. All three of these lawsuits were
filed in the Circuit Court for Bradley Country, Tennessee. The Trial Court consolidated the cases
because they involved similar and, at times, identical issues. All the defendants in the three lawsuits
filed motions for summary judgment claiming that the plaintiffs lacked standing to pursue any of
their claims. Resolution of the standing issue, at least in part, involves an examination of the
familial relationship of the plaintiffs to their deceased loved one. The basic familial relationships
are as follows:


        1
         The opinion in Crawford v. J. Avery Bryan Funeral Home, Inc., No. E2006-00987-COA-R3-CV, is filed
contemporaneously with this opinion.

                                                   -2-
                1.      The Akers lawsuit. Rondal D. Akers, III, died on November 23, 2001. At the
time of his death, the decedent was divorced, had never remarried, and had one child, a twelve-year
old daughter named Lindsey D. Akers. Funeral arrangements were made with the Buckner-Rush
Funeral Home2 in Cleveland, Tennessee. The decedent’s father, Rondal D. Akers, Jr., signed the
contract for funeral services with the Funeral Home. Both Rondal D. Akers, Jr. and his wife, the
decedent’s mother, Lucinda Akers, signed a three page document titled “Cremation and Disposition
Authorization.” The decedent’s body then was taken to Tri-State for cremation. Because the
crematorium was not operational, we can safely assume that the decedent’s body was not cremated.
It is unclear what happened to the decedent’s body as it was not one of the bodies later identified.
The decedent’s body either is one of the unidentified bodies, or has yet to be found. The Akers
lawsuit was filed by the decedent’s parents, Rondal D. Akers, Jr., and Lucinda Akers.

                2.     The Burns lawsuit. William R. Burns died on March 19, 1999. Mr. Burns
was survived by his wife, Linda Burns. Following his death, Mr. Burns’ daughter, Donna Burns,
made the necessary funeral arrangements with the Funeral Home. Donna Burns signed both the
general contract for funeral services and the cremation and disposition authorization. Mr. Burns’
body was sent to Tri-State for cremation and either was dumped or buried on the Tri-State premises.
Mr. Burns’ remains later were identified and returned to the family. The Burns lawsuit was filed
originally by Linda and Donna Burns. After the lawsuit was filed, Linda Burns decided to participate
in the Georgia class action lawsuit, and she ultimately settled all of her claims in the class action
lawsuit. Accordingly, the claims of Linda Burns in the lawsuit now before us were voluntarily
dismissed. Donna Burns is the only remaining plaintiff in the Burns lawsuit.

                 3.     The Hall lawsuit. Lloyd Nolan Harden died on April 18, 2000. At the time
of his death, the decedent was not married. However, he did have a girlfriend, Elaine Waldron, who
was pregnant with the decedent’s only child. The decedent was survived by his mother and six
siblings. One of the decedent’s sisters, Susan Hall, signed the contract for funeral services with the
Funeral Home. However, all six of the decedent’s siblings signed the cremation and disposition
authorization. These six siblings are: Susan Hall, Doyle Harden, Ricky Harden, Sandra Fogle,
Mollie Denton, and Donnie Harden.3 The decedent’s body was transported to Tri-State for
cremation. As with the other bodies, the decedent’s remains were not cremated. In August of 2002,
the decedent’s body was discovered on the Tri-State premises. The remains were returned to the
family and properly cremated. The present lawsuit was filed by the decedent’s siblings and his
girlfriend.

              After examining the familial relationships of the plaintiffs to their deceased family
members, the Trial Court granted the defendants’ motions for summary judgment in all three cases

        2
          The funeral arrangements in all three of the consolidated cases were made with the Buckner-Rush Funeral
Home in Cleveland, Tennessee. For the remainder of this opinion, Buckner-Rush Funeral Home will be referred to as
the “Funeral Home.”

         3
          Donnie Harden voluntarily dismissed his lawsuit. T he other five of the decedent’s siblings, as well as the
decedent’s girlfriend Elaine W aldron, comprise the six appellants in the Hall case.

                                                        -3-
after finding that the plaintiffs lacked standing. The Trial Court’s dismissal in the Akers case states
as follows:

               The Plaintiffs are the parents of Rondal Douglas Akers III, who died
               on November 23, 2001, and whose remains were delivered to Tri-
               State Crematory, in and through Buckner-Rush, for cremation.… The
               issue at the core of [the Defendants’ motions for summary judgment]
               is whether the Plaintiffs in this lawsuit [have] standing to maintain a
               claim against these Defendants. Tennessee law only allows the
               relative with superior title to bring claims arising from the
               mishandling of a corpse. Superior title was defined in 1926 by the
               Supreme Court of Tennessee in Hill v. Traveler’s Inc. Co., 294 S.W.
               1097, 1098 (Tenn. 1926), as the surviving spouse of the deceased
               and, in the absence of such, the next of kin.

                                               * * *

               Analogous to the Hill case, the Plaintiffs’ claim in this action, even
               though written with contractual overtones, arises from the mutilation
               of a body. Only in the absence of a next of kin may the parents bring
               action. Lindsey Dominica Akers, as the daughter of the decedent,
               holds the sole right, if any, to bring suit on the decedent’s behalf. Her
               actions and claims are not before this court, yet her status precludes
               the Plaintiffs from their right as the otherwise next of kin.…

                       Plaintiffs make essentially two arguments. First is that their
               claims are contractually based and, therefore, kinship status is not an
               issue. This is simply not the case; the contractual relationship, if any,
               between the Plaintiffs and Defendants appears limited by the
               language of the contract itself by stating the document is simply a
               release authorization.…

                      [T]his court will follow its 2006 decision and rationale set
               forth in Crawford v. J. Avery Bryan Funeral Home, Inc. In
               Crawford, as in the case at bar, the action was brought by a family
               member who did not meet the Hill limitations on standing.…

                      All other issues raised in the motions are pretermitted by the
               decision with respect to the standing of the Plaintiffs in this case.…

               The orders dismissing the Burns and Hall cases were virtually identical to the order
dismissing the Akers case. The Trial Court concluded in Burns that the decedent’s wife, Linda
Burns, was the sole person with standing to bring the claims at issue in that case. Because Linda


                                                 -4-
Burns had the superior right, the remaining claims brought by the decedent’s daughter, Donna Burns,
were dismissed by the Trial Court for lack of standing. In Hall, the Trial Court concluded that it was
the decedent’s mother who had the superior right to bring the lawsuit, to the exclusion of the
decedent’s siblings and his girlfriend.

               All of the plaintiffs appeal, claiming that the Trial Court erred in dismissing their
lawsuits. Although several issues are raised, the dispositive issues on appeal surround whether the
Trial Court correctly dismissed all of the plaintiffs’ claims after determining that none of them had
standing.

                                             Discussion

               In Teter v. Republic Parking System, Inc., 181 S.W.3d 330 (Tenn. 2005), our Supreme
Court recently reiterated the standards applicable when appellate courts are reviewing a motion for
summary judgment. The Court stated:

                       The purpose of summary judgment is to resolve controlling
               issues of law rather than to find facts or resolve disputed issues of
               fact. Bellamy v. Fed. Express Corp., 749 S.W.2d 31, 33 (Tenn.
               1988). Summary judgment is appropriate only when the moving
               party demonstrates that there are no genuine issues of material fact
               and that he or she is entitled to judgment as a matter of law. See
               Tenn. R. Civ. P. 56.04; Penley v. Honda Motor Co., 31 S.W.3d 181,
               183 (Tenn. 2000); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993).
               In reviewing the record, the appellate court must view all the
               evidence in the light most favorable to the non-moving party and
               draw all reasonable inferences in favor of the non-moving party.
               Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). And
               because this inquiry involves a question of law only, the standard of
               review is de novo with no presumption of correctness attached to the
               trial court's conclusions. See Mooney v. Sneed, 30 S.W.3d 304, 306
               (Tenn. 2000); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Teter, 181 S.W.3d at 337.

                                        A. The tort claims

                We first will address the various tort claims filed by the plaintiffs. We begin by
briefly summarizing our holding in the companion case of Crawford v. J. Avery Bryan Funeral
Home, Inc., No. E2006-00987-COA-R3-CV (Tenn. Ct. App. Nov. 21, 2007). In Crawford, the
decedent, Robert H. Crawford, Jr., was married at the time of his death. The plaintiffs were the
parents and siblings of the decedent, whose body had been sent to Tri-State for cremation. The Trial
Court determined that the decedent’s wife had the right to control disposition of the body and,


                                                 -5-
therefore, the wife was the only person with standing to bring the various tort claims. The decedent’s
sister, Teri Crawford, appealed that determination. This Court, with a partial dissent, affirmed the
Trial Court’s dismissal of all of the various tort claims after concluding that the decedent’s sister
lacked standing. In reaching this conclusion we stated as follows:

                  [W]e conclude that, in Tennessee, any tort claims for negligent,
                  reckless or intentional interference with a dead body and the like can
                  be brought only by the person or persons who have the right to
                  control disposition of the body. Pursuant to Hill [v. Travelers’ Ins.
                  Co., 294 S.W. 1097 (Tenn. 1927)], it is the surviving spouse who has
                  the superior right to control disposition of the body. Therefore, in the
                  present case, the Trial Court correctly held that because Wife had the
                  right to control disposition of the decedent’s body, she alone had the
                  right to bring the various tort claims against the Funeral Home and
                  Tri-State. These claims were properly dismissed for lack of
                  standing.… 4 (footnote omitted)

                Consistent with Crawford, we now must determine whether the Trial Court correctly
determined that none of the plaintiffs in the three consolidated cases now before this Court had
control over disposition of their loved ones’ body and, therefore, lacked standing to proceed with the
tort claims. We have been unable to locate any Tennessee authority directly on point which
discusses who has control over disposition of a body when there is no surviving spouse. However,
Tenn. Code Ann. § 68-30-109(a) comes very close. This particular statute addresses the order of
priority among relatives of a deceased individual with regard to making anatomical gifts. While this
statute does not necessarily mandate a particular result in the present case, it does give us strong
insight into how the General Assembly would craft an order of priority if passing a statute directly
addressing the current situation. In relevant part, Tenn. Code Ann. § 68-30-109(a), which became
effective July 1, 2007, provides as follows:

                  Who may make anatomical gifts of decedent’s body or part. - (a)
                  Subject to subsections (b) and (c) an anatomical gift of a decedent’s
                  body or part for purpose of transplantation, therapy, research, or
                  education may be made by any member of the following classes of
                  persons who is reasonably available, in the order of priority listed:

                         (1) A guardian or conservator of the person of the decedent at
                  the time of death if the court order authorizes the guardian or
                  conservator to make health care decisions;

         4
           In footnote 6 of the Crawford opinion, a majority of this Court further held that this conclusion also would
apply to tort claims based upon negligent and/or intentional infliction of emotional distress. In a separate opinion, Judge
Susano partially dissented from this holding. Judge Susano concluded that Teri Crawford had standing to pursue tort
claims based upon negligent, reckless, and intentional infliction of emotional distress as to Marsh and the Tri-State
defendants, but not as to the funeral home.

                                                           -6-
                          (2) An agent5;

                          (3) The spouse of the decedent;

                          (4) Adult children of the decedent;

                          (5) Parents of the decedent;

                          (6) Adult siblings of the decedent;

                          (7) Adult grandchildren of the decedent;

                          (8) Grandparents of the decedent; …

                Given the nature of the lawsuits in the present case, the order of priority with regard
to establishing standing to sue must begin with the surviving spouse, as required by Hill v. Travelers’
Ins. Co., 294 S.W. 1097 (Tenn. 1927) and Crawford. We now go one step further and hold that the
order of priority among relatives of the deceased for bringing tort claims arising from unauthorized
mutilation of a dead body is as follows: (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; and (6) grandparents of the decedent.

               We next apply this holding to the three cases on appeal. In Akers, the deceased was
not survived by a spouse and his daughter, Lindsey, was only 12 years old. Since there was no
surviving spouse or adult child, the decedent’s parents were next in line in the order of priority. As
noted previously, the Akers lawsuit was filed by the decedent’s parents, Rondal D. Akers, Jr., and
Lucinda Akers. Therefore, with regard to the various tort claims asserted in Akers, we conclude that
the Trial Court erred when it determined that the decedent’s parents lacked standing. The Trial
Court’s judgment in this regard is vacated.

                The Burns lawsuit was filed originally by the decedent’s wife, Linda Burns, and the
decedent’s daughter, Donna Burns. However, Linda Burns eventually settled her claims in the
Georgia class action lawsuit and dismissed all of her claims in the present case. The only remaining
claims are those of the decedent’s daughter. Because the decedent’s wife had exclusive control over
disposition of the body, only she had standing to bring the various tort claims. Accordingly, we
conclude that the Trial Court correctly dismissed Donna Burns’ tort claims based on her lack of
standing. The judgment of the Trial Court dismissing the tort claims filed by Donna Burns is
affirmed.

        5
           Tenn. Code Ann. § 68-30-102(2) defines “agent” as an individual: “(A) Authorized to make healthcare
decisions on the principal’s behalf by a power of attorney for health care or an advance directive; or (B) Expressly
authorized to make an anatomical gift on the principal’s behalf by any other record signed by the principal.”




                                                        -7-
                 The Hall lawsuit was filed by the decedent’s five siblings and his girlfriend. At the
time of the decedent’s death, he was not married and had no adult children. The decedent was,
however, survived by his mother, who is not and never has been a party to this lawsuit. Therefore,
we conclude that the decedent’s mother was the person with standing to bring the various tort claims.
The Trial Court’s judgment dismissing the tort claims brought by the decedent’s siblings and
girlfriend is affirmed.

                                     B. The contract and statutory claims

                When the funeral arrangements were made with the Funeral Home, there were two
documents presented to and signed by various family members. The first document was a two-page,
standard form document used by the Funeral Home detailing the particular services chosen by the
family (i.e., casket and burial, cremation, etc.) and the costs associated with those services. The
second document was a three-page document titled “Cremation and Disposition Authorization”
which, among other things, discussed how the cremation process works. This second document also
authorized the Funeral Home to release the body to Tri-State. These two documents form the basis
of the plaintiffs’ breach of contract claims and their claims brought pursuant to the Tennessee
Consumer Protection Act (the “TCPA”), Tenn. Code Ann. § 47-18-101, et seq.6

                It is important to emphasize the precise issue on appeal. The issue before us is
whether the Trial Court correctly determined that the plaintiffs did not have standing to bring the
breach of contract and TCPA claims. The issue is not whether the plaintiffs could survive a Tenn.
R. Civ. P. 12.02 motion to dismiss or a Tenn. R. Civ. P. 56 motion for summary judgment
challenging the merits of those particular claims. The issue is as simple as this: does a person who
enters into a contractual agreement with a funeral home for funeral services and to have the body
cremated have standing to bring a breach of contract claim based upon an alleged breach of that
contractual obligation? The answer is yes. The same result holds true for the TCPA claims which
are predicated upon alleged deceptive acts committed upon the family members when signing the
documents with the Funeral Home.

               We hold that the plaintiffs who actually signed either or both the general contract for
funeral services or the cremation and disposition authorization have standing to bring breach of
contract and TCPA claims based upon claimed breaches of those documents and/or alleged deceptive
acts connected with the signing of those documents. We express absolutely no opinion on the merits
of those claims.

               In the Akers lawsuit, the general contract for funeral services was signed by plaintiff
Rondal D. Akers, Jr., and the cremation and disposition authorization was signed by both plaintiff
Rondal D. Akers, Jr., and plaintiff Lucinda Akers. Thus: (1) Rondal D. Akers, Jr. has standing to
bring breach of contract and TCPA claims based upon the general contract for funeral services, and


        6
             Other statutory violations were alleged in the complaint, but the dismissal of those claims is not challenged
on appeal.

                                                            -8-
(2) Rondal D. Akers, Jr., and Lucinda Akers have standing to bring breach of contract and TCPA
claims based upon the cremation and disposition authorization. To the extent inconsistent with the
foregoing, the judgment of the Trial Court is vacated.

                In the Burns lawsuit, both the general contract for funeral services and the cremation
and disposition authorization were signed by plaintiff Donna Burns. Thus, Donna Burns has
standing to bring breach of contract and TCPA claims based upon either or both of these documents.
To the extent inconsistent with the foregoing, the judgment of the Trial Court is vacated.

                In the Hall lawsuit, the contract for funeral services was signed by plaintiff Susan
Hall. The cremation and disposition authorization was signed by plaintiffs Susan Hall, Doyle
Harden, Ricky Harden, Sandra Fogle, and Mollie Denton. Thus: (1) Susan Hall has standing to bring
breach of contract and TCPA claims based upon the general contract for funeral services, and (2)
plaintiffs Susan Hall, Doyle Harden, Ricky Harden, Sandra Fogle, and Mollie Denton have standing
to bring breach of contract and TCPA claims based upon the cremation and disposition
authorization. To the extent inconsistent with the foregoing, the judgment of the Trial Court is
vacated.

               All remaining issues are pretermitted.

                                            Conclusion

                The Judgment of the Trial Court is affirmed in part, vacated in part, and remanded
for further proceedings consistent with this opinion and for collection of the costs below. Exercising
our discretion, costs on appeal are taxed one-half to the Appellees, T. Ray Brent Marsh, Rhames
Lashae Marsh, Tri-State Crematory, and Tri-State Crematory, Inc., and one-half to the Appellees,
Buckner-Rush Enterprises, Inc., Prime Succession of Tennessee, Inc., and Prime Succession
Holding, Inc.




                                                       __________________________________
                                                       D. MICHAEL SWINEY, JUDGE




                                                 -9-
