Bub Tucker, II v. Gregory Hill, Harry McKneely & Son, Inc. d/b/a Harry McKneely & Son Funeral Home, Rick Foster in his official capacity as Coroner and Tangipahoa Parish Coroner's Office ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0547
VABUB TUCKER, II
VERSUS
GREGORY HILL, HARRY MCKNEELY & SON, INC. D/B/ A HARRY
MCKNEELY & SON FUNERAL HOME, RICK FOSTER IN HIS
OFFICIAL CAPACITY AS CORONER AND TANGIPAHOA PARISH
CORONER' S OFFICE
DATE OF JUDGMENT.- '
JAN 0 9 20?0
ON APPEAL FROM THE TWENTY FIRST JUDICIAL DISTRICT COURT
NUMBER 2017- 0002955, DIVISION F, PARISH OF TANGIPAHOA
STATE OF LOUISIANA
HONORABLE ELIZABETH WOLFE JUDGE
Rene Paul Frederick Counsel for Plaintiff A
- ppellee
Jeanne M. Mauldin Bub Tucker, II
Covington, Louisiana
Christopher M. Moody Counsel for Defendants -Appellants
Brad J. Cascio Gregory Hill, and Harry McKneely &
Albert D. Giraud Son, Inc. d/ b/ a Harry McKneely &
Hammond, Louisiana Son Funeral Home
BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.
Disposition: REVERSED AND REMANDED.
CHUTZ, J.
Defendants -appellants, Harry McKneely & Son, Inc. d/b/ a Harry McKneely
Son Funeral Home ( McKneely), and its employee, Gregory Hill, appeal the trial
court' s final default judgment, awarding damages for the cremation of the remains
of Bob Tucker ( decedent), the father of plaintiff a
- ppellee, Bob Tucker, II. We
reverse.
BACKGROUND
Tucker instituted this action on October 17, 2017, against McKneely and
Hill, as well as the Tangipahoa Parish Coroner, Rick Foster, and the Coroner' s
Office, averring that Tucker had the legal right to control the interment of decedent
and that, despite Tucker' s lack of consent, the decedent was nevertheless cremated
by McKneely. Tucker claimed that under the pretext that the decedent' s remains
had been " abandoned," and without notifying him, McKneely and Hill transferred
the decedent' s body to the Coroner' s Office and fraudulently obtained an
authorization to cremate the decedent' s remains. Tucker sought damages for
intentional infliction of emotional distress, negligent infliction of emotional
distress, and mental anguish.
Although Coroner Foster and his office timely answered the lawsuit,
McKneely and Hill did not. On Tucker' s motion, the trial court entered a
preliminary default on April 30, 2018. A confirmation hearing was held on
December 31 2018, at which testimony and documentary evidence were adduced.
At the conclusion of the hearing, the trial court rendered judgment " as prayed for."
On December 17, 2018, the trial, court signed a judgment, in favor of Tucker and
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against McKneely and Hill, in the amount of $ 1, 500, 000. McKneely and Hill
appealed!
SUFFICIENCY OF SERVICE OF PROCESS
McKneely and Hill initially assert that the petition was improperly served on
McKneely by domiciliary service on Hill, apparently while he was at work at the
funeral home. McKneely and Hill assert that McKneely is a domestic corporation
in good standing. Therefore, they urge that personal service on McKneely' s
registered agent for service of process was required.' Reasoning that the service of
the petition was improper, McKneely and Hill contend the default judgment
against McKneely is an absolute nullity.
The nullity of a final judgment may be demanded for vices of either form or
substance. La. C. C. P. art. 2001. A final judgment shall be annulled if rendered
against a defendant who has not been served with process as required by law. La.
C. C. P. art. 2002A(2).
Generally, the question of sufficiency of service should not be raised for the
first time on appeal, but rather should be raised in a suit to annul the judgment.
Tour Holdings, L.L.0 v. Larre, 2018- 0503 ( La. App. 1st Cir. 12/ 6/ 18), 267 So. 3d
7351 737. The justification for requiring a separate suit is so that a hearing can be
held to ascertain facts regarding whether defendants were properly served. Id.The record is devoid of evidence establishing either that McKneely is a
domestic corporation or from which to determine whether a designated agent for
service of process existed or that, in attempting to make service, the process server
was unable, after due diligence, to serve the designated agent and, therefore,
I The trial court also issued an order directing that McKneely and Hill immediately place Tucker
in possession of decedent' s cremated remains. McKneely and Hill have not appealed this portion
of the judgment.
2 See La. C. C. P. art. 1261A (" Service of citation or other process on a domestic or foreign
corporation is made by personal service on any one of its agents for service of process.").
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effectuated service on Hill at McKneely' s place of business.' Accordingly, we find
this claim insufficient to preclude appellate review of the judgment rendered
against McKneely and Hill.
PROPRIETY OF THE FINAL DEFAULT JUDGMENT
The process for obtaining a preliminary default when the defendant has
failed to answer a petition timely is uncomplicated. Arias v. Stolthaven New
Orleans, L.L.C., 2008- 1111 ( La. 5/ 5/ 09), 9 So. 3d 815, 819. It may be obtained by
oral motion in open court or by written motion mailed to the court, either of which
shall be entered in the minutes of the court. But the preliminary default shall
consist merely of an entry in the minutes. La. C.C. P. art. 1701A. If no answer or
other pleading is timely filed, the confirmation of the preliminary default may be
made after two days, exclusive of holidays, from the entry of the preliminary
default. La. C. C. P. art. 1702A.
Confirmation of a preliminary default is similar to a trial and requires, with
admissible evidence, " proof of the demand that is sufficient to establish a prima
facie case." La. C. C. P. art. 1702A; Arias, 9 So. 3d at 820. The elements of a prima
facie case are established with competent evidence, as fully as though each of the
allegations in the petition were denied by the defendant. Id. In other words, the
plaintiff must present competent evidence that convinces the court that it is
probable that he would prevail at trial on the merits. Id. A plaintiff seeking to
confirm a preliminary default must prove both the existence and the validity of his
claim. Id.3 See La. C. C. P. art. 1261B( 2) ( If the corporation has failed to designate an agent for service of
process, if there is no registered agent by reason of death, resignation, or removal, or if the
person attempting to make service certifies that he is unable, after due diligence, to serve the
designated agent, service of the citation or other process may be made ... ( 2) By personal service
on any employee of suitable age and discretion at any place where the business of the
corporation is regularly conducted.).
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An appellate court' s review of the default judgment is limited to determining
the sufficiency of the evidence offered in support of the judgment. Arias, 9 So. 3d
at 818. That determination is a factual one governed by the manifest error standard
of review. Id.Maintaining that he had the rights to control and authorize the interment of
the decedent as well as to serve as the authorizing agent for cremation, Tucker
alleged that McKneely and Hill were liable to him for the damages he suffered
when they cremated his father' s body without his permission. He contends that his
testimony and the documentary evidence support the award of damages as a result
of either intentional or negligent infliction of emotional distress and mental
anguish.
La. R.S. 8: 655A, addressing the right of disposing of remains, provides that
unless other specific directions have been given or the designation of a specific
person to control disposition has been made by the decedent in the form of a
notarial testament or a written and notarized declaration, the following relevant
persons, in the priority listed, have the right to control and authorize the interment
of a deceased person: ( 1) the person designated to control disposition by the
decedent in the form of a notarial testament or a written and notarized declaration;
2) the surviving spouse, if there is no pending petition for divorce filed by either
spouse prior to the death of the decedent spouse; or ( 3) a majority of the surviving
adult children of the decedent. Similarly, relative to the authorizing agent for the
cremation of human remains, La. R.S. 37: 876A states that the following relevant
persons, in the priority listed, have the right to serve as an authorizing agent for
cremation: ( 1) any person arranging the cremation, if the decedent has given
specific directions in the form of a notarial testament or a written and notarized
declaration providing for disposition of his remains by cremation; ( 2) the person
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designated to control disposition by the decedent in the form of a notarial testament
or a written and notarized declaration; ( 3) the surviving spouse, if there is no
pending petition for divorce filed by either spouse prior to the death of the
decedent spouse; and ( 4) a majority of the surviving adult children of the decedent.
Tucker testified that he was aware that decedent had two wills, but that he
was not " given ... or showed ... at that time ... that ... [ decedent] wanted to be
cremated." According to Tucker, neither he nor the decedent desired to have the
decedent cremated, and Tucker made that " expressly clear" to McKneely.
Although he testified that he was the decedent' s son and only child, Tucker offered
no evidence, either documentary or testimonial, to show that the decedent had not
executed a written and notarized declaration or had no surviving spouse at the time
of death.' Thus, Tucker failed to establish a prima facie case that he was the person
in the priority lists who had the statutory rights to control and authorize the
interment and to serve as authorizing agent under La. R.S. 8: 655A and 37: 876A.
Additionally, we note that La. R.S. 9: 1551 provides for the disposition of
remains, stating in relevant part:
A. ( 1) Upon oral or written refusal by the person or persons
authorized in R. S. 8: 655 to provide for the disposition of the remains
of a decedent, the coroner is authorized to immediately release the
remains of the decedent to any interested person who will claim the
remains and provide for the disposition of the remains.
2) The coroner shall have and exercise custody over the
remains of all persons who die within the parish and whose remains
are abandoned, not claimed, or unclaimed by the person or persons
authorized in R.S. 8: 655, or by the person to whom the coroner has
released the remains under the provision of Paragraph ( 1) of this
Subsection, and the remains of persons that are abandoned while in
the possession of a funeral establishment as provided in Subsection C
of this Section... .
4 Mindful that in this review each element of plaintiff' s prima facie case must be established with
competent evidence, as fully as though each of the allegations in the petition were denied by the
defendant," see Arias, 9 So. 3d at 820, the allegation in Tucker' s petition that "[ a] t the time of his
death, [ the decedent] was divorced,"
is insufficient to establish that decedent had no surviving
spouse who would have been superior in rank to Tucker in the priority lists of La. R.S. 8: 655A
and 37: 876A.
R
C. ( 1) If the remains of a decedent in the possession of a funeral
establishment have been abandoned, the funeral establishment shall
notify by a written, notarized document, the coroner for the parish of
the decedent' s domicile stating the factual history and circumstances
of the abandonment... .
D. For purposes of this Section, remains of a decedent in the
possession of a funeral establishment or healthcare facility shall be
deemed abandoned if the person or persons authorized in R.S.
8: 655 or in Subsection A of this Section to control the disposition
refuses orally or in writing to make arrangement or provide for the
disposition of the decedent, or fails to make arrangement or to
provide for the disposition of the remains of a decedent after death
at a healthcare facility or after the remains are in the possession of
the funeral establishment.
E. Once coroner jurisdiction over abandoned, not claimed, or
unclaimed remains has been established, all rights to control the
disposition of the remains as listed in R.S. 8: 655( A) are waived and
terminated. The coroner shall then take and exercise custody of the
remains for disposition pursuant to the provisions in this Section.
Emphasis added.]
Tucker testified that he received a call from his mother advising him that the
decedent had died. He stated the date of death was October 24, 2016. He received a
call from Hill the following day and over the two days after decedent' s death,
Tucker had telephone communications with Hill on six occasions for a total of 18
minutes. Tucker also identified two text messages that he sent to Hill' s cell phone
number on October 26, 2016. One text included Tucker' s contact information. In
the other, Tucker asked Hill to contact his aunt to advise her that Hill and Tucker
had spoken " and what [ Tucker' s] intentions are as long as we can agree to terms
everything is going to be ok and workout [ sic]." According to Tucker, the reason
for the telephone conversations was that McKneely wanted him to go to the funeral
home immediately and " sign cremation papers."
Tucker stated that he never gave McKneely authorization to cremate the
decedent. He believed McKneely knew that he was the person who had the legal
authority to make decisions and cremated the decedent despite Tucker' s lack of
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consent. Tucker learned the decedent had been cremated when, after several " days
of continuous calling all [ ofJ the sudden the calls completely stopped." Tucker " felt
something was going on" and contacted the coroner' s office, at which time he was
informed that McKneely had submitted paperwork and the decedent' s remains had
been cremated. Tucker offered into evidence the letter and copy of a form entitled
CORONER' S PERMISSION TO CREMATE," authorizing the cremation of the
decedent on November 8, 2016.
In his testimony, at no time did Tucker offer any evidence establishing that
he made an arrangement or otherwise provided for the disposition of the decedent.
Thus, the record fails to establish that between McKneely' s initial contact with
Tucker on October 25, 2016 through November 8, 2016, when the cremation was
authorized, Tucker made any arrangements to provide for the interment of the
decedent. Under La. R.S. 9: 1551D, the remains of the decedent, which Tucker
acknowledged were in McKneely' s possession, were deemed abandoned by any
person who may have had the right to control and authorize the interment of the
decedent pursuant to La. R.S. 8: 655.
This court has recognized that a claimant may have a right to recover
whatever emotional distress he can prove since the right to dispose of a corpse by
decent sepulture includes the right to the possession of the body in the same
condition in which death leaves it. Thus, an action for damages lies for the
unauthorized mutilation of a dead body. See Blanchard v. Brawley, 75 So. 2d 891,
894 ( La. App lst Cir. 1954), citing 25 C. J. S., Dead Bodies, § 8. However, our
review of this final default judgment shows that Tucker failed to establish by
competent evidence sufficient to establish a prima facie case that either he was the
person with the statutory rights to control and authorize the interment and to serve
as authorizing agent under La. R. S. 8: 655A and 37: 876A; or that he made
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sufficient arrangements or otherwise provided for the disposition of the decedent' s
remains as necessary under La. R.S. 9: 1551D so as to support a finding that
McKneely or Hill were negligent. The trial court' s conclusion to the contrary is
manifestly erroneous.
DECREE
For these reasons, the trial court' s judgment is reversed and the matter is
remanded to the trial court. Appeal costs are assessed against plaintiff a
- ppellee,
Bob Tucker, II.
REVERSED AND REMANDED.
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