                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  February 28, 2007 Session

    RONALD M. FLOYD, ET AL. v. PRIME SUCCESSION OF TN, ET AL.

              Interlocutory Appeal from the Circuit Court for Bradley County
                        No. V-02-621    W. Neil Thomas, III, Judge



                 No. E2006-01085-COA-R9-CV - FILED AUGUST 13, 2007



This lawsuit was filed by the husband and children of Gail Lavan Floyd, who died in March 2000.
T. Ray Brent Marsh (“Marsh”) and the company managed by him, Tri-State Crematory, Inc. (“Tri-
State”), are the only remaining defendants. The instant case is one of many civil actions filed against
Marsh and Tri-State following the discovery of over 300 bodies on the company’s premises. The
bodies were to have been cremated, but were not. Criminal charges were brought against Marsh in
Georgia and Tennessee. He pleaded guilty to many of the charges. Following Marsh’s sentencing,
he was noticed, for the second time, to give a deposition in the instant action. At an earlier
deposition, he had invoked his Fifth Amendment privilege against self incrimination. As to the
present notice, the trial court concluded that Marsh could no longer invoke his Fifth Amendment
privilege because, in the court’s judgment, he is no longer facing criminal prosecution. The court
ordered Marsh to give a second deposition and further ordered that he could not refuse to answer any
question posed to him at the deposition if his refusal was predicated upon the Fifth Amendment. We
granted Marsh’s Tenn. R. App. P. 9 application for an interlocutory appeal. We affirm in part and
vacate in part.


          Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court
                  Affirmed in Part and Vacated in Part; Case Remanded


CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which D. MICHAEL SWINEY and
SHARON G. LEE, JJ., joined.

Stuart F. James, Chattanooga, Tennessee, for the appellant, T. Ray Brent Marsh.

William J. Brown, Cleveland, Tennessee, for the appellees, Ronald Floyd, Jeffrey Floyd, Michael
Floyd, and Amanda Clark.

                                             OPINION
                                                    I.

        The relevant underlying facts and procedural history are essentially undisputed. Gail Lavan
Floyd died on March 21, 2000. Buckner-Rush Funeral Home in Cleveland agreed to handle the
funeral arrangements and agreed to have Mrs. Floyd’s remains cremated. Her body was to be
cremated at Tri-State, located in Noble, Georgia, a business that provided cremation services for
funeral homes in Tennessee, Georgia, and Alabama. Marsh had been operating Tri-State since 1996.

        This lawsuit was filed in July 2002. The plaintiffs sued various defendants,1 including the
funeral home, Tri-State, and Marsh. According to the complaint,

                [t]he [p]laintiffs placed the body of their loved one in the care of
                . . . [the funeral home] with the specific expectation that the body
                would be handled in the manner and method described and with
                appropriate care and dignity as had been represented to them. The
                funeral was held and the body was placed in the possession of the . . .
                [funeral home] for cremation with the full expectation and promise
                that their loved one’s’s [sic] remains would be returned to them after
                it was properly cremated. On or about April 4, 2000, the plaintiffs
                were advised that their loved one’s’s [sic] remains were at the funeral
                home and they could pick them up. This they did and received a
                black box which was represented to them by representatives of the . . .
                [funeral home] as being the remains of their loved one’s [sic] and a
                copy of a death certificate that recites that cremation of the body was
                performed at the defendant Tri-State Crematory . . . .

                On or about, February 25, 2002, the plaintiffs became aware through
                the media that bodies had been discovered on the grounds of the
                “Crematory” and that an investigation was proceeding. Plaintiffs
                have taken the box that was given to them by the . . . [funeral home]
                and have been advised that the contents are adulterated materials and
                that therefore it could not be the remains of their loved one. To date,
                they have not been advised by the . . . [funeral home], the
                “Crematory” or the Georgia Bureau of Investigation where the body
                was disposed of or the manner it was disposed of.

                Plaintiffs have since discovered that Tri-State Crematory was an
                [unlicensed] facility that was in a substantial state of disrepair. A
                casual inspection would have disclosed to any reasonable person that
                the facility was not properly managed or operational with the


        1
         The claims against Buckner-Rush Funeral Home and other defendants were settled. An agreed order of
compromise and dismissal as to them was entered on November 9, 2005.

                                                   -2-
               cremation chamber not able to be used. Instead of the bodies being
               disposed of consistent with the “Cremation and Disposition
               Authorization” attached as Exhibit B, bodies that were taken to the
               “Crematory” were buried in pits or mass graves on the property or
               placed in burial vaults or just dumped on the ground.

               Between February and April, a massive investigation involving
               extensive digging on the grounds of the “Crematory” were conducted
               by the authorities of the State of Georgia, Walker County, and the
               Federal Government. Despite this massive undertaking, the plaintiffs
               [sic] loved one’s body has not been recovered nor has . . . [the
               disposition of the body] been disclosed by either the authorities
               . . . [or] the defendants.

(Paragraph numbering in original omitted). The plaintiffs asserted various theories of recovery:
“breach of bailment responsibility,” fraud and/or negligent misrepresentation, intentional/negligent
infliction of emotional distress, and a claim pursuant to the Tennessee Consumer Protection Act.

        As discovery proceeded, the plaintiffs served Marsh with a notice to take his deposition. He
filed a motion to quash, citing the likelihood of criminal charges being filed against him. The initial
deposition of Marsh was taken on August 29, 2003. At the beginning of the deposition, Marsh’s
attorney made the following comments regarding the parameters of the deposition:

               It is expected that due to the nature of the indictments that were
               handed down against Mr. Marsh yesterday, that Mr. Marsh will be
               taking the Fifth Amendment.

               [Counsel for the plaintiffs] and I had a hearing with Judge Thomas
               yesterday in which we dealt with a motion to quash. It is my
               understanding that [the plaintiffs’ attorney] is going to ask questions
               and that Mr. Marsh will be allowed to assert the privilege of the
               Fifth Amendment, and that at such later time upon [the plaintiffs’

_________________________




                                                 -3-
                  attorney’s] decision whether he wants the inference2 to be taken or
                  considered by the Judge or there are issues . . . that there’s a waiver
                  or a question that falls outside the parameters of the Fifth
                  Amendment, we’ll file the deposition transcript with Judge Thomas
                  and . . . [we] will address those issue with Judge Thomas at such later
                  time.

(Footnote added).

         A grand jury in Georgia returned 787 criminal indictments against Marsh. Those charges
subjected Marsh to a possible cumulative sentence of an astounding number of years: more than
8,000. The indictments pertained to over 200 bodies, the identity of which had been ascertained.
In addition, there were 111 unidentified bodies that were not a part of the indictment. On November
19, 2004, Marsh entered into a negotiated plea agreement that was announced to and accepted by the
Superior Court for Walker County, Georgia. Although not entirely clear from the record, it appears
that, in the Georgia proceeding, Marsh pleaded guilty to: (a) 122 counts of burial service fraud; (b)
47 counts of making a false statement; (c) 179 counts of abuse of a dead body; (d) 439 counts of theft
by taking; and (e) 2 counts of “criminal attempt – attempted theft by taking.” The plea agreement,
as announced by the district attorney general, provides, in relevant part, as follows3:

                  [The State of Georgia] would recommend in this case that the
                  defendant be sentenced to serve twelve years in prison, that he shall
                  also be given a concurrent term of probation of 75 years and that as


         2
          The negative inference referenced by Marsh’s attorney is discussed in the case of Mitchell v. United States,
526 U.S. 314, 328 (1999):

                  This Court has recognized “the prevailing rule that the Fifth Amendment does not
                  forbid adverse inferences against parties to civil actions when they refuse to testify
                  in response to probative evidence offered against them,” Baxter v. Palmigiano, 425
                  U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), at least where refusal to
                  waive the privilege does not lead “automatically and without more to [the]
                  imposition of sanctions,” Lefkowitz v. Cunningham, 431 U.S. 801, 808, n.5, 97
                  S.Ct. 2132, 53 L.Ed.2d 1 (1977). In ordinary civil cases, the party confronted with
                  the invocation of the privilege by the opposing side has no capacity to avoid it, say,
                  by offering immunity from prosecution. The rule allowing invocation of the
                  privilege, though at the risk of suffering an adverse inference or even a default,
                  accommodates the right not to be a witness against oneself while still permitting
                  civil litigation to proceed. Another reason for treating civil and criminal cases
                  differently is that “the stakes are higher” in criminal cases, where liberty or even life
                  may be at stake, and where the government’s “sole interest is to convict.” Baxter,
                  425 U.S., at 318-319, 96 S.Ct. 1551.


         3
           Unless otherwise indicated, the only alteration from the transcribed plea agreement is that it has been changed
from all capital letters.

                                                            -4-
                  a condition of probation that he pay a fine of 20 thousand dollars and
                  that the payment of the fine commence within one year after his
                  release from incarceration and that he pay the fine and attendant costs
                  at the rate of one thousand dollars per year under the supervision of
                  the probation officer and we would request that the defendant be
                  directed to hand-write a letter of apology to be delivered to a
                  designated representative for each of the identified remains in this
                  case. The letters would be turned over to the probation office for
                  mailing to their ultimate destinations. We would ask the court to
                  direct the defendant to write a general letter of apology. These would
                  not be due until six months after the commencement of the sentence
                  itself.

                  The defendant would pay restitution to the State of Georgia in the
                  sum of eight million dollars in the event that the defendant shall
                  either directly or indirectly attempt to profit or benefit in any manner
                  from any transaction arising out of the sale of his story, so to speak,
                  regarding these events.

                  The defendant shall be on unsupervised probation after the final
                  payment of any and all fines and court costs and the sentence shall be
                  concurrent with any other sentence he may receive in the State of
                  Tennessee arising out of this and the period of incarceration shall
                  begin sometime after January 1st of 2005.

       On January 7, 2005, in Tennessee, Marsh pleaded guilty in the Criminal Court for Bradley
County to: (a) 1 count of theft of services between $1,000 and $10,000; (b) 7 counts of criminal
simulation; and (c) 35 counts of abuse of a corpse. It appears that his prison sentence in Tennessee
was for a total of nine years.4

        In anticipation of Marsh’s guilty pleas and sentencing in the criminal proceedings, the
plaintiffs again filed a notice seeking to take Marsh’s deposition. The deposition was scheduled for
February 7, 2005. Marsh filed a motion to quash and for a protective order. In the motion to quash,
Marsh noted that he had already been deposed in the Georgia class action as well as by the plaintiffs’
attorney in the present case. Marsh added:



         4
            As previously indicated, M arsh’s conduct resulted not only in criminal proceedings in Georgia and Tennessee,
but also in numerous civil lawsuits in addition to the present case. For example, there is an appeal pending before this
Court styled Akers v. Buckner-Rush Enterprises, Inc., No. E2006-01513-COA-R3-CV, which involves appeals from
several other civil cases which were consolidated for the purpose of appeal. In addition, a class action lawsuit was
certified in the State of Georgia. The Georgia class action lawsuit apparently was resolved contemporaneously with
Marsh’s guilty plea in Georgia.



                                                          -5-
               [The plaintiffs’ attorney took Marsh’s deposition] in these cases. Mr.
               Marsh asserted the Fifth Amendment and . . . [the plaintiffs’ attorney]
               has not filed a motion nor has he addressed whether the Fifth
               Amendment was appropriately taken by Mr. Marsh. . . . [Plaintiffs’
               attorney] had the opportunity to fully examine Mr. Marsh pursuant to
               rule 26.02 of the Tennessee Rules of Civil Procedure. There were no
               limitations placed on the areas of inquiry, and . . . [the plaintiffs’
               attorney] had the opportunity to ask Mr. Marsh any question relating
               to discovery, allowing Mr. Marsh to assert the Fifth Amendment, and
               then ask this court to address the issues regarding the Fifth
               Amendment.

                                               * * *

               [The plaintiffs’ attorney] noticed the deposition because of Mr. Brent
               Marsh’s guilty plea in Walker County, Georgia. . . .

               The fact that a plea has been entered does not mean that the Fifth
               Amendment privilege is waived. If the court allows a second
               deposition, Mr. Marsh must assert his Fifth Amendment privilege or
               it is waived. Moreover, the court cannot address the issue of the
               assertion of the Fifth Amendment privilege until the question is posed
               and the privilege is asserted. . . .

        The plaintiffs responded to the motion to quash by claiming that the Fifth Amendment could
not be invoked because Marsh no longer faced criminal prosecution. Plaintiffs attached, as exhibits,
Marsh’s guilty pleas in Walker County, Georgia, and Bradley County. They also attached the
affidavits of: (1) William H. Cox, III, the District Attorney General for the 11th Judicial District of
Tennessee; (2) C. Michael Layne, the District Attorney General for the 14th Judicial District of
Tennessee; (3) J. Michael Taylor, the District Attorney General for the 12th Judicial District of
Tennessee; and (4) Mike O’Dell, the District Attorney General for the 9th Judicial Circuit of
Alabama. All four of the district attorney generals have prosecutorial jurisdiction in counties where
funeral homes are located which sent bodies to Tri-State for cremation. Each of the district attorney
generals stated that he is satisfied with the results of the criminal prosecutions that took place in
Walker County, Georgia, and Bradley County, and that he has no intention of bringing any additional
criminal charges against Marsh.

       The trial court denied Marsh’s motion to quash and ordered Marsh to proceed with the
deposition. The trial court’s order states:

               The court, having heard argument of counsel, on the defendants [sic]
               Motion to Quash the Notice of Deposition and Subpoena for Brent
               Marsh to testify, and after . . . hearing argument of counsel regarding


                                                 -6-
               the Motion to Quash and the arguments regarding Mr. Marsh’s
               constitutional rights under the Fifth Amendment of the United States
               Constitution, the court hereby:

               ORDERS, ADJUDGES, and DECREES that the plaintiffs are
               permitted to take the deposition of Mr. Marsh and accordingly denies
               the Motion to Quash filed by Mr. Marsh by his attorneys. The court,
               further, orders that the deposition shall not be permitted until March
               2006 as the court believes that the appropriate statute of limitations
               for any criminal charges will have expired by February 17, 2006. In
               light of the statute of limitations expiring, the court orders that the
               Fifth Amendment privilege is no longer available to Mr. Marsh in the
               context of these cases. The court, therefore, orders that Mr. Marsh
               cannot take the Fifth Amendment privilege against self-incrimination
               as to any question in the deposition.

(Emphasis added).

       After the trial court ordered Marsh to give a second deposition and further ordered that Marsh
could not assert a Fifth Amendment privilege “as to any question,” Marsh filed a Tenn. R. App. P.
9 application for interlocutory appeal, which the trial court granted. We subsequently granted
Marsh’s application.

                                                 II.

       Marsh raises the following issues, which we take verbatim from his brief:

               Whether the trial court appropriately ordered the deposition of the
               defendant, Brent Marsh, based upon the trial court’s conclusion that
               the statute of limitations for any criminal charges expire on a date
               certain[.]

               Whether the expiration of the statute of limitations for criminal
               charges permits the court to enter an order that the Fifth Amendment
               privilege is no longer available to a person in a civil case before the
               party invokes the Fifth Amendment Privilege as to questions posed
               to that person.

               Whether the trial court may order that a person cannot take the Fifth
               Amendment privilege under the Tennessee and United States
               Constitutions against self-incrimination as to any question in a
               deposition as ordered by the Hamilton County Circuit Court in its
               order of February 27, 2006.


                                                -7-
(Footnote omitted). Marsh also asks this Court to “consider whether ordering a second deposition
[in this case] . . . is appropriate.”

                                                 III.

       In this non-jury case, our standard of review is de novo upon the record of the proceedings
below. Tenn. R. App. P. 13(d). Since our decision in this case involves a pure questions of law, our
de novo review is pursued with no presumption of correctness attaching to the trial court’s
conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

                                                 IV.

       In Hoffman v. United States, 341 U.S. 479 (1951), the United States Supreme Court
discussed the Fifth Amendment in the context of a federal prosecution. What the High Court said
would apply with equal force to a state prosecution:

               The Fifth Amendment declares in part that “No person * * * shall be
               compelled in any Criminal Case to be a witness against himself”.
               This guarantee against testimonial compulsion, like other provisions
               of the Bill of Rights, “was added to the original Constitution in the
               conviction that too high a price may be paid even for the unhampered
               enforcement of the criminal law and that, in its attainment, other
               social objects of a free society should not be sacrificed.” Feldman v.
               United States, 1944, 322 U.S. 487, 489, 64 S.Ct. 1082, 1083, 88
               L.Ed. 1408. This provision of the Amendment must be accorded
               liberal construction in favor of the right it was intended to secure.
               Counselman v. Hitchcock, 1892, 142 U.S. 547, 562, 12 S.Ct. 195,
               197, 35 L.Ed. 1110; Arndstein v. McCarthy, 1920, 254 U.S. 71,
               72-73, 41 S.Ct. 26, 65 L.Ed. 138.

               The privilege afforded not only extends to answers that would in
               themselves support a conviction under a federal criminal statute but
               likewise embraces those which would furnish a link in the chain of
               evidence needed to prosecute the claimant for a federal crime.
               (Patricia) Blau v. United States, 1950, 340 U.S. 159, 71 S.Ct. 223.
               But this protection must be confined to instances where the witness
               has reasonable cause to apprehend danger from a direct answer.
               Mason v. United States, 1917, 244 U.S. 362, 365, 37 S.Ct. 621, 622,
               61 L.Ed. 1198, and cases cited. The witness is not exonerated from
               answering merely because he declares that in so doing he would
               incriminate himself - his say-so does not of itself establish the hazard
               of incrimination. It is for the court to say whether his silence is
               justified, Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438,


                                                 -8-
               and to require him to answer if “it clearly appears to the court that
               he is mistaken.” Temple v. Commonwealth, 1880, 75 Va. 892, 899.
               However, if the witness, upon interposing his claim, were required to
               prove the hazard in the sense in which a claim is usually required to
               be established in court, he would be compelled to surrender the very
               protection which the privilege is designed to guarantee. To sustain
               the privilege, it need only be evident from the implications of the
               question, in the setting in which it is asked, that a responsive answer
               to the question or an explanation of why it cannot be answered might
               be dangerous because injurious disclosure could result. The trial
               judge in appraising the claim “must be governed as much by his
               personal perception of the peculiarities of the case as by the facts
               actually in evidence.” See Taft, J., in Ex parte Irvine, C.C.S.D. Ohio,
               1896, 74 F. 954, 960.

Hoffman, 341 U.S. at 485-87 (emphasis added).

        In United States v. Townsend, 139 F.3d 909 (Table), 1998 WL 80614 (9th. Cir. 1998), the
United States Court of Appeals for the Ninth Circuit addressed the proper procedure to be employed
with respect to the invocation of the Fifth Amendment privilege:

               In United States v. Pierce, 561 F.2d 735, 741 (9th Cir. 1977), this
               court held that “[a] proper application of this standard requires that
               the Fifth Amendment claim be raised in response to specific
               questions propounded by the investigating body. This permits the
               reviewing court to determine whether a responsive answer might lead
               to injurious disclosures.”

Townsend, 1998 WL 80614, at *3 (emphasis added). In North River Ins. Co. v. Stefanou, 831 F.2d
484 (4th Cir. 1987), cert. denied 486 U.S. 1007 (1988), the United States Court of Appeals for the
Fourth Circuit made a similar observation:

               A party wishing in good faith to assert the privilege must do so “with
               respect to particular [allegations],” thereby allowing the trial judge
               to determine the propriety of each refusal. General Dynamics Corp.
               v. Selb Manufacturing Co., 481 F.2d 1204, 1212 (8th Cir. 1973), cert.
               denied, 414 U.S. 1162, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974) (citing
               Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95
               L.Ed. 1118 (1951)). The privilege also may be asserted and preserved
               in the course of discovery proceedings, Fed. R. Civ. P. 26(c), but in
               specifics sufficient to provide the court with a record upon which to
               decide whether the privilege has been properly asserted as to each



                                                -9-
                    question. United States v. Gordon, 634 F. Supp. 409, 418 (Ct.Int'l
                    Trade 1986).

Stefanou, 831 F.2d at 487. (emphasis added)

         As can be seen, the proper procedure to be utilized when the Fifth Amendment is invoked
is for the question to be asked first. Then, if the Fifth Amendment privilege is invoked, the trial
court is “to determine the propriety of each refusal.”5 Stefanou, 831 F.2d at 487 (emphasis added).
In the present case, the trial court issued a blanket order directing Marsh not to assert a Fifth
Amendment privilege “as to any question” that might be asked at the deposition. Such a broad
prohibition would prohibit Marsh from asserting the Fifth Amendment privilege even with respect
to potentially incriminating testimony regarding matters not directly related to the events at Tri-
State.6 This is not appropriate. We, therefore, conclude that the trial court erred when it entered, in
advance of the second deposition, a blanket prohibition against the invocation of the Fifth
Amendment privilege. The blanket prohibition is hereby vacated.

         At this point in the litigation, we need not determine if Marsh can successfully assert a Fifth
Amendment privilege, or, more specifically, whether Marsh has a reasonable belief that he could be
prosecuted further. Those issues will need to be decided by the trial court when, and if, Marsh
asserts a Fifth Amendment privilege with respect to specific questions. In the event this happens,
the trial court will need to determine if a response by Marsh to any particular question might lead
to an “injurious disclosure.” Hoffman, 341 U.S. at 487.

       When Marsh was initially deposed, the applicability of the Fifth Amendment to many of the
questions was not in serious dispute because Marsh had been indicted the day before the deposition.
Had the plaintiffs gone to the trial court at that time and challenged Marsh’s invocation of the Fifth
Amendment privilege, which they did not, Marsh certainly would have been successful. Now that
Marsh has pleaded guilty to criminal charges in Georgia and Tennessee and has been sentenced, the
landscape with regard to the Fifth Amendment may well be different. In other words, what may have
been protected by the Fifth Amendment at the time of the first deposition may not now be protected.7
Accordingly, the trial court committed no error when it ordered Marsh to give a second deposition,
and we reject Marsh’s claim to the contrary. This portion of the trial court’s judgment is affirmed.




         5
          Typically, the attorney taking the deposition will ask all of his or her questions; the privilege will be asserted
as the deponent sees fit; the deposition will be transcribed; and all questions and assertions of the privilege will be
presented to the trial court for its review.

         6
             W e do not mean to suggest that any such activity actually took place.

         7
       W e again emphasize that at this point in the proceedings, we express no opinion on the applicability of the Fifth
Amendment to any potential question that may be posed to Marsh during a future deposition.

                                                           -10-
                                                 V.

        The judgment of the trial court is affirmed in part and vacated in part, and this case is
remanded to the trial court for further proceedings consistent with this opinion. Costs on appeal are
taxed to the appellees, Ronald Floyd, Jeffrey Floyd, Michael Floyd, and Amanda Clark.




                                                       _______________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




                                                -11-
