Alma J. Carruthers v. Serenity Memorial Funeral and Cremation Service, LLC ( 2019 )


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  •                           In the Missouri Court of Appeals
    Eastern District
    DIVISION ONE
    ALMA J. CARRUTHERS,                                    )     No. ED106837
    )
    Respondent,                                 )     Appeal from the Circuit Court
    )     of the City of St. Louis
    vs.                                                    )
    )
    SERENITY MEMORIAL FUNERAL AND                          )     Honorable Barbara T. Peebles
    CREMATION SERVICE, LLC,                                )
    )
    Appellant.                                  )     Filed: June 4, 2019
    OPINION
    Serenity Memorial Funeral and Cremation Service, LLC (“Serenity”) appeals from the
    judgment of the trial court in favor of Alma J. Carruthers (“Ms. Carruthers”) on her claim
    seeking to recover the money paid to Serenity for the cremation of her deceased son, Ricky
    Whitby, (“Decedent”). Serenity asserts one point on appeal, arguing the trial court erred in
    entering judgment in favor of Ms. Carruthers based on its conclusion that Serenity failed to turn
    over Decedent’s cremated remains to Ms. Carruthers, as required by Section 194.350. 1 We
    reverse the judgment.
    1
    All statutory references are to RSMo 2016.
    Factual and Procedural Background
    Ms. Carruthers is Decedent’s mother. Secoy Webb (“Mr. Webb”) is Decedent’s son and
    Ms. Carruthers’ grandson. In December of 2017, while Decedent was gravely ill, Ms. Carruthers
    purchased a funeral insurance policy for $1,795 through Serenity’s “pre-need agent” to pay for
    Decedent’s final arrangements. Ms. Carruthers also signed an authorization with Serenity
    indicating she was Decedent’s next-of-kin or acting on behalf of the next-of-kin. Upon
    Decedent’s death in January of 2018, Ms. Carruthers authorized Serenity “to take charge of the
    funeral arrangements for [Decedent].”
    While Ms. Carruthers was meeting with Serenity to discuss the final arrangements for
    Decedent, Mr. Webb arrived at Serenity’s office. Ms. Carruthers told Serenity Mr. Webb was
    Decedent’s son, after which Serenity informed Ms. Carruthers that Mr. Webb had the legal right
    to decide how to dispose of Decedent’s remains under Missouri’s right of sepulcher statute,
    Section 194.119. While Ms. Carruthers wanted Decedent to have a cremation and a visitation,
    Mr. Webb wanted to have a funeral and burial because that is what Decedent would have
    wanted. Serenity informed Mr. Webb of the additional costs for a funeral and burial. Ms.
    Carruthers told Mr. Webb, if he wanted Decedent to be buried he would have to pay for it
    himself as she was not paying for a burial. Ms. Carruthers informed Serenity she would only
    allow the money from the insurance policy to be used for a visitation and cremation.
    Mr. Webb was unable to come up with the additional money for a burial. He agreed to
    have Decedent cremated and signed a contract with Serenity. The contract was entitled
    “Statement of Funeral Goods and Services Selected.” It provided that Serenity agreed to cremate
    Decedent, hold a visitation, and perform other related services in exchange for Mr. Webb’s
    agreement to pay Serenity $1,795 and provide a guaranteed form of payment forty-eight hours
    2
    prior to the service. The contract was silent as to what Serenity should do with Decedent’s
    remains after the visitation.
    Serenity received the funds from Ms. Carruthers’ insurance policy to pay for Decedent’s
    cremation and performed the services provided for in the contract with Mr. Webb. Afterwards,
    Ms. Carruthers went to collect Decedent’s remains and Serenity informed her that Mr. Webb had
    already collected the remains.
    Ms. Carruthers filed a petition against Serenity in small claims court, seeking recovery of
    the $1,795 she paid Serenity, arguing she was entitled to get her money back because Serenity
    did not provide her with Decedent’s remains, which she was entitled to as the person who paid
    for Decedent’s final arrangements. The court entered judgment in favor of Serenity. Ms.
    Carruthers filed a petition for trial de novo in the circuit court. Following a bench trial, the circuit
    court entered judgment in favor of Ms. Carruthers and ordered Serenity to pay Ms. Carruthers
    $1,795 in damages, plus costs. This appeal follows.
    Discussion
    I.         Compliance with Mandatory Briefing Requirements of Rule 84.04
    Before proceeding to the analysis of Serenity’s arguments, we direct Serenity’s attention
    to Missouri Supreme Court Rule 84.04 (2018), 2 which sets forth requirements for the contents of
    appellate briefs.
    Rule 84.04(e) requires appellants to include in their argument for each claim of error “a
    concise statement describing whether the error was preserved for appellate review; if so, how it
    was preserved; and the applicable standard of review.” Rule 84.04(e), see In re V.C.N.C. &
    T.D.C.C., 
    458 S.W.3d 443
    , 450 (Mo. App. E.D. 2015). Serenity’s appellant brief fails to comply
    2
    All rule references are to Missouri Supreme Court Rules (2018).
    3
    with Rule 84.04(e) because it neither describes how its claim of error was preserved for appellate
    review, nor states the applicable standard of review. Either deficiency would be grounds for us to
    dismiss Serenity’s appeal because the failure to comply with Rule 84.04(e) “preserves nothing
    for appellate review.” Fritz v. Fritz (In re Fritz), 
    243 S.W.3d 484
    , 487 (Mo. App. E.D. 2007).
    “While it would be easy enough for this court to determine the applicable standard of review, it
    is not our duty to supplement the deficient brief with our own research.” In re V.C.N.C. &
    
    T.D.C.C., 458 S.W.3d at 447
    (“The standard of review is an essential portion of all appellate
    arguments; it outlines this court’s role in disposing of the matter before us.”). Neither is it our job
    to “comb the record” in search of facts to support Serenity’s claim of error or demonstrate it is
    properly preserved for appellate review. See Wong v. Wong, 
    391 S.W.3d 917
    , 919-20 (Mo. App.
    E.D. 2013); Bramer v. Abston, 
    553 S.W.3d 872
    , 879 (Mo. App. S.D. 2018) (an appellant’s
    failure to “ascertain the preservation status” of his or her claims and “present argument in
    conformance with the applicable standard of review[] drastically undercuts the efficacy” of
    appellant’s arguments).
    Rule 84.04(d)(5) requires appellants to “include a list of cases, not to exceed four, and the
    constitutional, statutory, and regulatory provisions or other authority upon which that party
    principally relies.” Serenity’s brief fails to comply with Rule 84.04(d)(5) in that it does not cite
    any appropriate precedent to support its claims of error. See Brown v. Ameristar Casino Kan.
    City, Inc., 
    211 S.W.3d 145
    , 147-48 (Mo. App. W.D. 2007). The only legal citations in Serenity’s
    entire brief are two statutes. Although Serenity cites the relevant statutes, Serenity fails to cite
    any cases supporting its arguments. “[A]n appellant must cite legal authority to support his
    points relied on if the point is one in which precedent is appropriate or available; if no authority
    is available, an explanation should be made for the absence of citations.” In re Fritz, 
    243 S.W.3d 4
    at 488. “Failure to cite relevant authority supporting the point or to explain the failure to do so
    preserves nothing for review.” Id; Pennington-Thurman v. Bank of Am., N.A., 
    486 S.W.3d 471
    ,
    479 (Mo. App. E.D. 2016).
    The briefing requirements of Rule 84.04 are mandatory, and the failure to substantially
    comply with Rule 84.04 preserves nothing for review. 
    Brown, 211 S.W.3d at 147
    . Although we
    have discretion to dismiss an appeal for briefing deficiencies, “[t]hat discretion is generally not
    exercised unless the deficiency impedes disposition on the merits” because we “prefer[] to
    resolve an appeal on the merits of the case rather than to dismiss an appeal for deficiencies in the
    brief.” Guthrie v. Mo. DOL & Indus. Rel., 
    503 S.W.3d 261
    , 266 (Mo. App. W.D. 2016).
    Accordingly, we have discretion to review noncompliant briefs ex gratia “where the argument is
    readily understandable.” See Scott v. King, 
    510 S.W.3d 887
    , 892 (Mo. App. E.D. 2017).
    Here, we decline to exercise our discretion to dismiss Serenity’s appeal because its
    argument is “readily understandable” and the failure to follow the briefing guidelines does not
    impede our ability to address the merits of Serenity’s claim. See 
    Scott, 510 S.W.3d at 892
    ; Brown
    v. Hamid, 
    856 S.W.2d 51
    , 53 (Mo. banc 1993). Therefore, we are able to resolve this appeal
    without improperly becoming an advocate. See 
    Brown, 211 S.W.3d at 147
    (purpose of Rule
    84.04 is to “ensure that appellate courts do not become advocates by speculating on facts and
    arguments that have not been made”). “But we cautiously exercise this discretion because each
    time we review a noncompliant brief ex gratia, we send an implicit message that substandard
    briefing is acceptable. It is not.” 
    Scott, 510 S.W.3d at 892
    .
    II.   Section 194.350(3) Authorized Serenity to Deliver Decedent’s Remains to Mr.
    Webb, as the Person who Contracted for the Cremation.
    In its sole point on appeal, Serenity argues the trial court erred in entering judgment in
    favor of Ms. Carruthers on her claim to recover money paid for Decedent’s cremation in that
    5
    “[Ms. Carruthers] specifically agreed to and authorized Serenity to apply the funds for the
    cremation and visitation performed by Serenity and, further, [Ms. Carruthers] knowingly and
    willingly acquiesced in [Mr. Webb], a surviving child of [Decedent], contracting with Serenity
    for the disposition of [Decedent]’s body by cremation with a visitation utilizing the funds prepaid
    by [Ms. Carruthers] for same pursuant to a ‘pre-need’ contract after [Mr. Webb], who was
    willing to assume responsibility for disposition of [Decedent]’s remains, ultimately failed to
    produce funds for said disposition.”
    Our standard of review in a judge-tried case is governed by Murphy v. Carron. Declue v.
    McCann, 
    463 S.W.3d 792
    , 795-96 (Mo. App. E.D. 2015) (citing Murphy v. Carron, 
    536 S.W.2d 30
    , 32 (Mo. banc 1976)). We will affirm the judgment of the trial court unless there is no
    substantial evidence to support it, it is against the weight of the evidence, or it erroneously
    declares or applies the law. 
    Id. We defer
    to the trial court’s determinations of credibility and
    view the evidence and all reasonable inferences drawn therefrom in the light most favorable to
    the judgment. 
    Id. The trial
    court concluded that “based upon Section 194.350 RSMo, Plaintiff . . . was
    entitled to delivery of the cremated remains of [Decedent], in that she had contracted for the
    cremation, and not the next-of-kin, the decedent’s son.” The court also concluded that, Serenity
    did not lawfully deliver the cremated remains to Mr. Webb as the next-of-kin under Section
    194.119 because Mr. Webb did not assume financial responsibility for the disposition of the
    remains. The court further noted that “[a]lthough [Mr. Webb] sought to enter financial
    arrangement for said cost, he did so to no avail, and [Serenity] used [Ms. Carruthers’] funds to
    satisfy the final obligation.”
    6
    Serenity argues the trial court’s conclusion that Ms. Carruthers contracted for the
    cremation was not supported by the evidence because Mr. Webb signed the cremation contract,
    not Ms. Carruthers. Serenity further argues the trial court erroneously declared and applied the
    law in concluding Mr. Webb was not the next-of-kin under Section 194.119 because he did not
    actually pay the costs of Decedent’s cremation. We agree with both arguments, however we find
    the first argument is dispositive.
    Under Section 194.350, Serenity, as the “licensed funeral establishment” that cremated
    Decedent, was authorized to dispose of Decedent’s remains in one of several statutorily-
    proscribed ways. Relevant to this case, Section 194.350 authorized Serenity to “deliver[] the
    remains to or as directed by the person who contracted for the cremation.” The question of
    whether Mr. Webb entered into a contract with Serenity for the cremation of Decedent is
    governed by contract law. Three elements are required to form a valid and enforceable contract:
    offer, acceptance, and consideration. Walker v. Rogers, 
    182 S.W.3d 761
    , 767 (Mo. App. W.D.
    2006). We find the “Statement of Funeral Goods and Services Selected” constituted a contract
    for the cremation of Decedent between Serenity and Mr. Webb because it satisfied all elements
    of a valid contract. This document reflects that Serenity offered to cremate Decedent’s remains
    and perform other related services, Mr. Webb accepted this offer by signing the agreement, and
    the consideration was Mr. Webb’s promise to pay Serenity $1,795 for its services. Therefore,
    Section 194.350 expressly authorized Serenity to deliver Decedent’s remains to Mr. Webb, as the
    “person who contracted for the cremation.”
    Ms. Carruthers was not a party to the contract between Serenity and Mr. Webb. We
    acknowledge that, prior to Decedent’s death, Ms. Carruthers purchased a funeral insurance
    policy for Decedent and discussed arrangements with Serenity to cremate Decedent. However,
    7
    there is no evidence in the record that either the insurance application or Ms. Carruthers’
    discussions with Serenity culminated in any contract between Ms. Carruthers and Serenity. The
    insurance application indicates that the insurer was “CFL, a subsidiary of Catholic Holy Family
    Society,” and nothing in the document obligated Ms. Carruthers to use the insurance proceeds to
    pay Serenity to cremate Decedent. The application cannot qualify as a contract to cremate
    Decedent between Ms. Carruthers and Serenity for two reason. First, Serenity was not a party to
    the insurance policy, but merely the agent who sold the policy to Ms. Carruthers. Second, none
    of the terms of the insurance application dealt with the cremation of Decedent’s remains by
    Serenity. Accordingly, nothing in the insurance application supports a conclusion that Ms.
    Carruthers was the “person who contracted for the cremation” under Section 194.350.
    Additionally, nothing in the record before us supports the trial court’s conclusion that Ms.
    Carruthers entered into a contract with Serenity to cremate Decedent. Although Serenity offered
    its cremation services to Ms. Carruthers during preliminary discussions while Decedent was still
    alive, these discussions did not constitute a valid contract because Ms. Carruthers neither
    accepted this offer nor provided any consideration to Serenity at that time. Rather, Ms.
    Carruthers and Serenity expected to finalize the arrangements upon Decedent’s death. However,
    before any contract could be signed, Serenity learned that Ms. Carruthers did not have the
    superior claim as next-of-kin pursuant to Section 194.191.2 because Decedent was survived by
    Mr. Webb. Upon learning this fact, Serenity determined that Mr. Webb had a superior right of
    sepulcher under Section 194.119.2, meaning he had “the right to choose and control the burial,
    cremation, or other final disposition of” Decedent. Section 194.119.1 Accordingly, Serenity
    informed Ms. Carruthers that Mr. Webb had the right to decide how to dispose of Decedent’s
    remains. Serenity then entered into a contract with Mr. Webb.
    8
    While the fact that Serenity signed a contract with Mr. Webb is dispositive, we also agree
    with Serenity that Mr. Webb’s claim as Decedent’s next-of-kin was superior to Ms. Carruthers’
    claim. Under Section 194.119.2, a surviving child has priority over a surviving parent, and Mr.
    Webb met all the statutory criteria required to qualify as a next of kin in that he was (1)
    “eighteen years of age or older,” (2) “mentally competent,” and (3) “willing to assume
    responsibility for the costs of disposition” of Decedent’s remains. The trial court’s conclusion
    that Mr. Webb was not entitled to Decedent’s remains as the next-of-kin because he did not
    actually pay the cost of the cremation out of his own pocket is an erroneous application of the
    law. Section 194.119.2 only requires the next-of-kin to be “willing to assume responsibility for
    the costs of disposition,” which Mr. Webb demonstrated by signing a contract in which he
    agreed to pay Serenity for the cremation. Who ultimately gave Serenity the money to actually
    pay for the costs of Decedent’s cremation is not relevant under Section 194.119.2.
    For the aforementioned reasons, we find the trial court erred in concluding Ms.
    Carruthers was entitled to a refund of the money she paid Serenity for the cremation services
    provided to Decedent. Point I is granted.
    Conclusion
    The judgment of the trial court in favor of Ms. Carruthers is reversed, and judgment is
    entered in favor of Serenity.
    __________________________________________
    Angela T. Quigless, J.
    Roy L. Richter, P.J., and
    Robert M. Clayton III, J., concur.
    9
    

Document Info

Docket Number: ED106837

Judges: Angela T. Quigless, J.

Filed Date: 6/4/2019

Precedential Status: Precedential

Modified Date: 8/20/2019