       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            ORNA MAMMON,
                              Appellant,

                                     v.

  SCI FUNERAL SERVICES OF FLORIDA INC., a Florida corporation
     d/b/a MENORAH GARDENS AND FUNERAL CHAPELS, and
         SERVICE CORPORATION INTERNATIONAL, INC.,
                    a Texas corporation,
                         Appellees.

                              No. 4D15-1788

                              [May 25, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carol-Lisa Phillips, Judge; L.T. Case No. CACE 14-
005841 (25).

  Steven H. Osber and Emily A. Thomas of Kelley Kronenberg, P.A., Fort
Lauderdale, for appellant.

  Ted C. Craig and Anastasia Protopapadakis of GrayRobinson, P.A.,
Miami, for appellees.

GERBER, J.

   The plaintiff widow appeals from the circuit court’s final order
dismissing her complaint against the defendant cemetery companies due
to lack of subject matter jurisdiction. The widow alleged that the
defendants violated both the Florida Funeral, Cemetery, and Consumer
Services Act and the Florida Deceptive and Unfair Trade Practices Act by
mispresenting to her that they would bury her husband in accordance
with “Jewish burial customs and traditions.” The defendants moved to
dismiss the complaint with prejudice for lack of subject matter jurisdiction
because the parties disputed what constituted “Jewish burial customs and
traditions,” and if the court was to determine what constituted “Jewish
burial customs and traditions,” then the court would violate the
ecclesiastical abstention doctrine. The circuit court granted the motion to
dismiss on that ground. We agree with the dismissal. Thus, we affirm.
   We present this opinion in five parts:

   1. the widow’s complaint;
   2. the defendants’ motion to dismiss for lack of subject matter
      jurisdiction;
   3. the parties’ arguments on appeal;
   4. our examination of the ecclesiastical abstention doctrine; and
   5. our application of the ecclesiastical abstention doctrine to this case.

                         1. The Widow’s Complaint

   The widow’s complaint alleged, in pertinent part, as follows.

   Her husband had been battling terminal cancer. His medical providers
advised her to prepare for his funeral and burial. Both she and her
husband were devout Jews. Accordingly, she and her husband desired to
be buried in accordance with “Jewish burial customs and traditions.”

   She considered entrusting her husband’s burial to the defendants
because they represented to the public that they provide cemetery services
in accordance with “Jewish burial customs and traditions.” For example,
the defendants’ website contained the following representation:

      As one of the Dignity Memorial network’s Jewish providers, we
      are honored to serve Jewish families by providing funeral or
      cemetery services in accordance with Jewish custom. We
      understand the needs of today’s Jewish families because we
      share their history and experiences and their values. . . .
      Jewish funeral tradition pays tribute to . . . the principle of
      Kavod Ha-Met, or Honoring the Dead, which teaches that it is
      of utmost importance to treat the body with respect and care
      from the time of death until the burial is complete . . . . Serving
      you in accordance with the traditions of your Jewish faith is an
      honor for us. With knowledge of Orthodox, Conservative, and
      Reform Judaism, our Dignity Memorial providers are
      experienced in providing the Jewish funeral services and
      customs that are important to you and your family.

(emphasis added; brackets omitted).

   The widow met with the defendants’ representative at one of its
cemeteries known as “Menorah Gardens.” The widow expressed her desire
that she wanted her husband to be buried in accordance with “Jewish
burial customs and traditions.”

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   The defendants’ representative confirmed that the defendants
understood “Jewish burial customs and traditions,” and assured the
widow that her husband would be buried in accordance with “Jewish
burial customs and traditions.”

   The widow also observed physical characteristics of the cemetery’s
grounds which, when viewed in conjunction with the defendants’
advertisements and their representative’s oral statements,    further
enhanced the widow’s expectation that the defendants would provide
cemetery services in accordance with “Jewish burial customs and
traditions.” These physical characteristics included:

   •   a large Israeli flag flying high above the cemetery’s only point of
       ingress and egress;
   •   the cemetery’s sections are named after historic Jewish
       prophets, kings, matriarchs, and leaders; and
   •   the cemetery’s grounds contain large stone monuments of
       menorahs, the Star of David, and other Jewish symbols.

   The widow, placing her trust and confidence in the defendants’
advertisements and their representative’s oral statements, purchased
burial plots at Menorah Gardens for her husband and herself.

  A few days later, her husband died. The day after his death, he was
buried in the purchased plot at Menorah Gardens.

    One month after the burial, the widow visited her husband’s grave. The
widow observed that the defendants allowed non-Jews to be buried within
the same section as their burial plots. In particular, a pastor of a different
religious faith was buried only yards away from their burial plots.

   According to the widow, burying non-Jews in the same section as Jews
violated “Jewish burial customs and traditions.”

   Based on the foregoing, the widow filed a complaint against the
defendants, alleging four counts:

       (I)   fraudulent, deceptive, and misleading sales practices in
             violation of the Florida Funeral, Cemetery, and
             Consumer Services Act, section 497.152(9)(e)-(f),
             Florida Statutes (2013) (the “Cemetery Services Act”);



                                      3
      (II)   fraudulent, deceptive, and misleading advertising in
             violation of the Cemetery Services Act’s related Florida
             Administrative Code Rule 69K-29.001 (2013);

      (III) a per se violation of the Florida Deceptive and Unfair
            Trade Practices Act, section 501.201, et seq., Florida
            Statutes (2013) (“FDUTPA”); and

      (IV) intentional or reckless infliction of emotional distress.

   Specifically, the widow alleged that the defendants’ actions violated
“Jewish burial customs and traditions” for the following reason:

      According to Jewish customs, it is a well-established tenet of
      burial customs to be buried on consecrated or sanctified
      grounds. Customarily, the burial ground is consecrated with
      a special ceremony and is to be utilized for the exclusive use
      as a Jewish cemetery.            It is to be separated from
      unconsecrated ground using a wall, fence, or a solid hedge,
      using a separate entrance. According to Jewish customs,
      every Jew is entitled to be buried in a Jewish cemetery, a
      fundamental right of Jewish burial practices. In short,
      Defendants knowingly desecrated [the husband’s] burial
      ground by [their] actions . . . .

                  2. The Defendants’ Motion to Dismiss for
                      Lack of Subject Matter Jurisdiction

    The defendants answered the complaint, and filed a separate motion to
dismiss for lack of subject matter jurisdiction. In their motion to dismiss,
the defendants argued that resolution of the widow’s claims “would require
[the] Court to weigh, interpret, and enforce purported tenets of the Jewish
religion in violation of the First Amendment” and “this First Amendment
prohibition operates to divest a court of subject matter jurisdiction.”

    The defendants filed two pieces of evidence in support of their motion
to dismiss for lack of subject matter jurisdiction. See Steiner Transocean
Ltd. v. Efremova, 109 So. 3d 871, 873 (Fla. 3d DCA 2013) (although as a
general rule, when considering a motion to dismiss, a court is limited to
the four corners of the complaint and any attachments, “a court is
permitted to consider evidence outside the four corners of the complaint
where the motion to dismiss challenges subject matter jurisdiction”)
(footnotes with citations omitted).


                                      4
   First, the defendants relied upon the following excerpts from their
deposition of the widow:

     Q. Tell me what the effect of the pastor being buried at
        Menorah Gardens is on your husband.

     A. . . . [I]t’s not in accordance with the Jewish law. This is a
        Jewish cemetery.

     Q. What Jewish law?

     A. That no non-Jewish person should be buried in Menorah
        Gardens.

     Q. Where does that law come from?

     A. Our Jewish religion. I don’t know one Jewish cemetery in
        Israel that has . . . non-Jewish people. A Jewish cemetery
        is a Jewish cemetery. A Catholic cemetery is a Catholic
        cemetery. A pet cemetery is a pet cemetery.

     ....

     Q. Okay. Why is it offensive to you to have non-Jewish
        people buried next to your husband?

     A. Because I follow my Jewish faith correctly. . . .

     ....

     Q. You keep referring to this Jewish law regarding burials.
        What is the law? Where does it come from?

     A. It comes from the law when Moses walked down with the
        Ten Commandments. We follow the Jewish law. The laws
        of Abraham. We follow the Old Testament.

     ....

     Q. Is it your belief that the Old Testament states that a non-
        Jewish person may not be buried near a Jewish person?

     A. I can’t answer that. I am not so knowledgeable. You
        should ask the rabbi. . . . [B]ut I follow the Old Testament.

                                    5
      Q. But you’re not sure what the Old Testament says, correct?

      A. Well, I know a lot about the Old Testament, but I can’t tell
         you specifics. . . . I’m not a rabbi. . . .

(emphasis added).

   Second, the defendants relied upon two papers demonstrating that,
within the Jewish rabbinical community, a theological debate exists
regarding whether Jews and non-Jews may be buried in the same
cemetery. One paper, entitled, “Burial of a Non Jewish Spouse and
Children,” discusses conflicting rabbinical interpretations concerning
whether Jews and non-Jews may be buried in the same cemetery, and
specifically, whether a non-Jewish spouse or children of an interfaith
marriage may be buried in a Jewish cemetery. The other paper, entitled
“Peaceful Paths: Burial of Non-Jews in a Jewish Cemetery Following a
Common Disaster,” acknowledges “the traditional ban on burial together
of Jews and non-Jews,” but recognizes “special circumstances in which
such burial may be permitted.”

   At the hearing on the defendants’ motion to dismiss, the widow’s
counsel argued:

         Although this [case] involves religious principles, Your
      Honor, it’s a straightforward tort.        It’s a fraudulent
      misrepresentation, and that’s how this court needs to view
      this case; the promise that [her husband] would be buried not
      only in accordance with Jewish customs, but in compliance
      with Orthodox practices and that the Menorah Gardens did
      not live up to that by engaging in the practice of burying the
      pastor in the same section that [her husband] was buried.

          . . . You’re going to have experts that are going to give
      opinions about Jewish law. The defense will have theirs. The
      plaintiffs will have theirs just like any other that involves
      expert testimony, whether it’s medical malpractice, whether
      it’s accounting practices, construction practices.     It’s a
      determination based on the experts.

   After the hearing, the circuit court entered a final order granting with
prejudice the defendants’ motion to dismiss. The court reasoned:



                                    6
      The Complaint and Plaintiff’s deposition are based upon an
      interpretation of alleged faith based burial requirements and
      whether the Defendant[s] failed to comport with Jewish burial
      customs and traditions.

                   3. The Parties’ Arguments on Appeal

   This appeal followed. Our review is de novo. See Bogdanoff v. Broken
Sound Club, Inc., 154 So. 3d 410, 411 (Fla. 4th DCA 2014) (an appellate
court reviews de novo a motion to dismiss challenging subject matter
jurisdiction).

    The widow primarily argues the circuit court erred in finding that the
disposition of her complaint would require “an interpretation of alleged
faith based burial requirements and whether the [defendants] failed to
comport with Jewish burial customs and traditions.” The widow does not
dispute there is a theological debate concerning whether Jews and non-
Jews may be buried in the same cemetery. However, according to the
widow, the question before the circuit court was simply whether the
defendants’ representations were fraudulent, deceptive and/or
misleading.

   The defendants respond that to answer the widow’s question as framed,
however, the circuit court preliminarily would have to determine whether
the defendants violated “Jewish burial customs and traditions.” According
to the defendants, because of the recognized theological debate on that
preliminary issue, the ecclesiastical abstention doctrine prohibits any
court determination of that issue.

                 4. The Ecclesiastical Abstention Doctrine

   The ecclesiastical abstention doctrine is rooted in the First Amendment
to the United States Constitution. See U.S. Const. amend. I (“Congress
shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof . . . .”). The Florida Supreme Court has described
the ecclesiastical abstention doctrine as follows:

      [T]he First Amendment prevents courts from resolving
      internal church disputes that would require adjudication of
      questions of religious doctrine. For example, the [United
      States] Supreme Court has stated that “it is not within ‘the
      judicial function and judicial competence’” of civil courts to
      determine which of two competing interpretations of scripture
      are correct. United States v. Lee, 455 U.S. 252, 256 . . . (1982).

                                      7
      Instead, civil courts must defer to the interpretations of
      religious doctrine made by the “highest ecclesiastical
      tribunal.” Serbian E. Orthodox Diocese [for U.S.A. & Canada
      v. Milivojevich], 426 U.S. [696,] 709 . . . [(1976)]. Thus, the
      First Amendment provides churches with the “power to decide
      for themselves, free from state interference, matters of church
      government as well as those of faith and doctrine.” Kedroff [v.
      St. Nicholas Cathedral of Russian Orthodox Church in N. Am.],
      344 U.S. [94,] 116 . . . [(1952)].

Malicki v. Doe, 814 So. 2d 347, 355-56 (Fla. 2002) (footnote and other
internal citations omitted).

   However, the Florida Supreme Court recognized that a First
Amendment violation does not occur any time a case requires a court to
examine church law or policies:

          A court thus must determine whether the dispute is an
      ecclesiastical one about “discipline, faith, internal
      organization, or ecclesiastical rule, custom or law,” or whether
      it is a case in which [it] should hold religious organizations
      liable in civil courts for purely secular disputes between third
      parties and a particular defendant, albeit a religiously
      affiliated organization.

Id. at 357 (citations and other internal quotation marks omitted). See also
Favalora v. Sidaway, 995 So. 2d 1133, 1135 (Fla. 4th DCA 2008)
(“Although courts are required to accept a religious body’s
pronouncements of its internal laws and cannot adjudicate matters purely
within the religious organization’s authority, courts are not forbidden from
examining a religious organization’s internal laws or structure, especially
where the inquiry is relevant to a third party’s purely secular tort or
contract claims.”) (citation omitted).

                  5. Our Application of the Ecclesiastical
                      Abstention Doctrine to This Case

   Applying the Florida Supreme Court’s description of the ecclesiastical
abstention doctrine to this case, we conclude that although the widow’s
complaint is framed in counts alleging deceptive and fraudulent
misrepresentations regarding “Jewish burial customs and traditions,” the
disposition of those counts cannot be accomplished without first
determining, as a matter of fact, what constitutes “Jewish burial customs
and traditions.” Thus, the dispute here, at its core, is “an ecclesiastical

                                     8
one about [an] ‘ecclesiastical rule, custom or law,’” precluding judicial
review under the First Amendment. Malicki, 814 So. 3d at 357.

   Our conclusion is consistent with two cases from other jurisdictions
where a court dismissed a private individual’s action against a secular
entity because the dispute required an ecclesiastical determination:
Wallace v. Conagra Foods, Inc., 920 F. Supp. 2d 995 (D. Minn. 2013),
vacated on other grounds, 747 F.3d 1025 (8th Cir. 2014); and Abdelhak v.
Jewish Press, Inc., 985 A.2d 197 (N.J. Super Ct. App. Div. 2009). We
address each case in turn.

    In Wallace, a federal district court dismissed for lack of subject matter
jurisdiction a case brought by a group of Jewish consumers alleging that
the defendant manufacturer misrepresented its food products as “100%
Kosher” when such products were not produced in the manner required
to be considered Kosher. 920 F. Supp. 2d at 996. The court reasoned:
“[T]he determination of whether a product is in fact ‘kosher’ [is]
intrinsically religious in nature. Any judicial inquiry as to whether
Defendant misrepresented that its [products] are ‘100% kosher’ . . . would
necessarily intrude upon rabbinical religious autonomy.” Id. at 998.

    In Abdelhak, a state appellate court affirmed the dismissal for lack of
subject matter jurisdiction of a case brought by an Orthodox Jewish doctor
who claimed a news publication and others made defamatory statements
about his alleged noncompliance with Orthodox Jewish religious
requirements concerning his wife. 985 A.2d at 200-02. The plaintiff had
refused to grant his wife an Orthodox Jewish consent to divorce, called a
Get. Id. at 200-01. However, according to the plaintiff, the defendants
falsely stated he had defied a rabbinical court’s contempt order, known as
a Seruv, requiring him to provide a Get to his wife. Id. at 201-02. In
affirming the trial court’s dismissal, the appellate court held:

      [T]o evaluate whether plaintiff’s reputation suffered any
      injury, a jury would, of necessity, be required to determine
      how a Seruv Listing is viewed within the Orthodox Jewish
      community and whether an Orthodox Jew would be offended
      by another’s refusal to provide a Get.          To make that
      determination, a jury would be obligated to consider the
      intricacies of Jewish doctrine. Such consideration would
      require a jury to delve deeply into the importance of giving a
      Get and the disdain heaped on a man who refuses one. . . .
      Unless a jury evaluates these deeply religious questions – that
      are limited to the practices and doctrine of the insular
      Orthodox Jewish community – the jury would be unable to

                                     9
      perform the threshold task of deciding whether the false Seruv
      Listing was defamatory at all.

Id. at 207.

   Here, as in Wallace and Abdelhak, to evaluate whether the defendants
made deceptive and fraudulent misrepresentations regarding “Jewish
burial customs and traditions,” the circuit court would, by necessity, be
required to determine what constitutes “Jewish burial customs and
traditions.” To make that determination, the circuit court would be
obligated to consider “the intricacies of Jewish doctrine,” Abdelhak, 985
A.2d at 207, or matters which are “intrinsically religious in nature” and
“would necessarily intrude upon rabbinical religious autonomy,” Wallace,
920 F. Supp. 2d at 998. Because the First Amendment’s ecclesiastical
abstention doctrine precludes the circuit court from evaluating these
deeply religious questions, the court would be unable to perform its
ultimate task of deciding whether the defendants made deceptive and
fraudulent misrepresentations regarding “Jewish burial customs and
traditions.”   Thus, the First Amendment’s ecclesiastical abstention
doctrine precludes the court from having subject matter jurisdiction here.

   The widow conceded as much in both her deposition and her argument
to the circuit court. In her deposition, after repeatedly being asked to
identify what Jewish law prohibited non-Jews from being buried with
Jews, the widow ultimately answered: “You should ask the rabbi. . . . I
am not a rabbi.” In her argument to the court, the widow ultimately
argued: “You’re going to have experts that are going to give opinions about
Jewish law. . . . [J]ust like any other that involves expert testimony,
whether it’s medical malpractice, whether it’s accounting practices,
construction practices. It’s a determination based on the experts.”
(emphasis added). However, unlike a medical malpractice, accounting, or
construction case, the First Amendment’s ecclesiastical abstention
doctrine precludes the court from relying upon experts to make such a
determination in this case.

   The case upon which the widow primarily relies, Malicki, is
distinguishable. In Malicki, the plaintiffs brought various claims against
a priest, his church, and the regional Archdiocese for damages resulting
from the priest sexually assaulting the plaintiffs on church premises. 814
So. 2d at 352. The Florida Supreme Court rejected the argument that the
case should be dismissed pursuant to the ecclesiastical abstention
doctrine. Id. at 351. The court reasoned:



                                    10
      In this case, the Church Defendants do not claim that the
      underlying acts of its priest in committing sexual assault and
      battery was governed by sincerely held religious beliefs or
      practices. Nor do they claim that the reason they failed to
      exercise control over [the priest] was because of sincerely held
      religious beliefs or practices. Therefore, it appears that the
      Free Exercise Clause is not implicated in this case because
      the conduct sought to be regulated[,] that is, the Church
      Defendants’ alleged negligence in hiring and supervision[,] is
      not rooted in religious belief. Moreover, even assuming an
      incidental effect of burdening a particular religious practice,
      the [plaintiffs’] cause of action for negligent hiring and
      supervision is not barred because it is based on neutral
      application of principles of tort law.

Id. at 360-61 (citation and internal quotation marks omitted).

   Unlike Malicki, the widow’s cause of action for violation of the Cemetery
Services Act and FDUTPA is based on more than a neutral application of
those statutes. The First Amendment is implicated because the conduct
sought to be regulated, that is, the defendants’ alleged misrepresentations
regarding “Jewish burial customs and traditions,” is rooted in religious
beliefs about what constitutes “Jewish burial customs and traditions.”

                                 Conclusion

   A court’s determination of whether the cemetery companies violated
both the Cemetery Services Act and FDUTPA, by mispresenting to the
widow that it would bury her husband in accordance with “Jewish burial
customs and traditions,” would require the court first to determine what
constituted “Jewish burial customs and traditions.” That preliminary
determination would violate the ecclesiastical abstention doctrine. Based
on the foregoing, we affirm the circuit court’s final order dismissing with
prejudice the widow’s complaint against the defendant cemetery
companies for lack of subject matter jurisdiction.

   Affirmed.

STEVENSON and LEVINE, JJ., concur.

                             *            *     *

    Not final until disposition of timely filed motion for rehearing.


                                     11
