Rondal Akers v. Prime Succession of Tennessee, Inc.

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
May 8, 2012 Session
RONDAL AKERS ET AL. v. PRIME SUCCESSION OF TENNESSEE, INC.
ET AL.
Appeal by Permission from the Court of Appeals, Eastern Section
Circuit Court for Bradley County
No. V-02-623 William Neil Thomas III, Judge, sitting by interchange
No. E2009-02203-SC-R11-CV - Filed September 21, 2012
Dr. Rondal D. Akers, Jr. and Lucinda Akers sued T. Ray Brent Marsh for the alleged
mishandling of their deceased son’s body, which had been sent to Mr. Marsh’s crematorium
for cremation. Following a jury verdict for the Akerses, the trial court entered judgment
against Mr. Marsh based on the intentional infliction of emotional distress claim but granted
his motion for a judgment notwithstanding the verdict on the Akerses’ Tennessee Consumer
Protection Act (“TCPA”) and bailment claims. The Court of Appeals affirmed. We hold the
trial court did not err in (1) holding Mr. Marsh liable for intentional infliction of emotional
distress in the amount of the jury verdict; (2) instructing the jury that they were permitted to
draw a negative inference resulting from Mr. Marsh’s invocation of his Fifth Amendment
privilege during questioning; and (3) dismissing the TCPA and bailment claims. The
judgments of the trial court and the Court of Appeals are affirmed.
Tenn. R. App. 11 Appeal by Permission; Judgment of the Court of Appeals
Affirmed
S HARON G. L EE, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK, C.J.,
J ANICE M. H OLDER, G ARY R. W ADE, and W ILLIAM C. K OCH, J R., JJ., joined.
William J. Brown, Cleveland, Tennessee, for the appellants, Rondal Akers, Jr. and Lucinda
Akers.
Stuart F. James, Chattanooga, Tennessee, for the appellee, T. Ray Brent Marsh.
OPINION
I. Factual and Procedural Background
Rondal Douglas Akers III (the “Deceased”) died at the age of thirty-four on November
23, 2001, following a brief illness. His parents, Dr. Rondal D. Akers, Jr., and Lucinda Akers,
made funeral arrangements with Buckner-Rush Funeral Home in Cleveland,
Tennessee. Although Dr. and Mrs. Akers were opposed to having their son’s body cremated,
they authorized and arranged for the cremation in accordance with his expressed
wishes. After their son’s funeral service, his body was transported to Tri-State Crematory
in Noble, Georgia, for cremation. Later, the Akerses received what was purported to be their
son’s cremains (the “Cremains”).
Subsequently, it was discovered that Mr. Marsh had not been cremating bodies that
were sent to Tri-State for cremation, but rather burying or dumping the bodies in various
places on the Tri-State property. The Georgia Bureau of Investigation (“GBI”) began an
investigation in February 2002. The investigation soon turned into a massive search and
recovery effort by the GBI and numerous other governmental agencies that lasted roughly
three months. Agent Greg Ramey, the lead criminal investigator for the GBI, testified that
about 100 GBI agents from around the state were assigned to work on the Tri-State case in
rotating shifts and that approximately fifteen other agencies assisted in the search and
recovery effort.
From the Tri-State property, authorities recovered bodies and body parts of over 320
persons, in widely varying stages of decay. Some were buried in shallow graves. Some had
been dumped in surface trash pits. Human remains and bodies were found in virtually every
building on the property. A body was found in a hearse, another in a van, and a partially
mummified corpse of a man in a suit was discovered in a box. Some of the bodies recovered
had been partially cremated, some were without arms and legs, and some had their
extremities burned away. An unburned corpse was laying in the crematory’s retort.1
The GBI’s efforts to find all the bodies at Tri-State were extensive. All of the trees
on the roughly sixteen-acre property were cut down, and bulldozers were used to remove the
top two or three inches of soil. A lake on the property was drained and the bottom dredged
with heavy machinery. Agent Ramey testified that “every inch” of the property was carefully
searched. Other property that was nearby or adjacent to Tri-State property was also
inspected. Agent Ramey testified that he was absolutely confident that all of the bodies that
were on the Tri-State property had been recovered. Deceased’s body was never found, and
1
The crematory oven is called a “retort.”
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the GBI’s search and recovery effort yielded no clue as to what actually happened to his
body.
After the Akerses learned about the problems at Tri-State, they took the box
containing their son’s “cremains” to the GBI and were told that the box contained potting soil
and cement. The Akerses suffered under this misconception from 2002 until September 2008
when they learned that the box contained human cremains.2
The Tri-State Crematory investigation produced criminal and civil litigation in
Tennessee and Georgia. Mr. Marsh was indicted and pleaded guilty to multiple criminal
charges in Georgia and Tennessee stemming from his operation of Tri-State. He was
incarcerated in Georgia at the time of trial of this action.3 The investigation also spawned
civil litigation against Tri-State, Mr. Marsh, and other parties.4
On July 26, 2002, the Akerses sued Mr. Marsh.5 The complaint alleged causes of
action for “breach of bailment responsibility”; violations of the TCPA; “outrageous conduct”;
fraud and/or negligent misrepresentation; and “intentional/negligent infliction of emotional
distress.” The case against Mr. Marsh proceeded to trial before a jury.
2
All of the experts testified that the box provided to the Akerses contained human remains, although
no expert could definitively determine whether the Cremains were or were not those of Deceased.
3
Mr. Marsh “ple[aded] guilty in Georgia to multiple felonies including 122 counts of burial service
fraud, 47 counts of false statement, 179 counts of abuse of a dead body, and over 400 counts of criminal
intent theft by taking.” Akers v. Prime Succession of Tenn., Inc., No. E2009-02203-COA-R3-CV, 2011 WL
4908396, at *3 (Tenn. Ct. App. Oct. 17, 2011). Mr. Marsh was sentenced in Georgia to twelve years in
prison, a concurrent term of seventy-five years of probation, payment of a $20,000 fine, and a requirement
that he send handwritten letters of apology to his victims. Id., quoting Floyd v. Prime Succession of Tenn.,
Inc., No. E2006-01085-R9-CV, 2007 WL 2297810, at *3 (Tenn. Ct. App. Aug. 13, 2007). In 2005, Mr.
Marsh pleaded guilty in Tennessee to one count of theft of services between $1,000 and $10,000, seven
counts of criminal simulation, and thirty-five counts of abuse of a corpse. See Floyd, 2007 WL 2297810,
at *3. Mr. Marsh received a nine-year sentence in Tennessee, to be served concurrently with the Georgia
sentence. Id.
4
See Akers v. Buckner-Rush Enters., Inc., 270 S.W.3d 67 (Tenn. Ct. App. 2007); Crawford v. J.
Avery Bryan Funeral Home, Inc., 253 S.W.3d 149 (Tenn. Ct. App. 2007); Floyd, 2007 WL 2297810; see also
Note, Keith E. Horton, Who’s Watching the Cryptkeeper?: The Need for Regulation and Oversight in the
Crematory Industry, 11 Elder L.J. 425, 438-39 (2003).
5
The Akerses also sued Tri-State Crematory, Inc. and Buckner-Rush Funeral Home and its corporate
owners, Prime Succession of Tennessee, Inc., Buckner-Rush Enterprises, Inc., and Prime Succession
Holding, Inc. The Akerses eventually settled with and dismissed their claims against the funeral home
defendants and nonsuited their claims against Tri-State Crematory.
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Dr. Hugh E. Berryman, a board-certified forensic anthropologist, testified as an expert
witness for Mr. Marsh. Dr. Berryman, who examined and analyzed the Cremains, testified
that several foreign metal items were found in the Cremains. One of the items was a metal
stud bearing the inscription “Backyard Blue” from a pair of denim blue jeans. Deceased,
however, was not wearing blue jeans when he was sent to Tri-State for cremation. There
were also several pieces of fine wire that appeared to be from a mechanical device or a
surgical procedure, and that Dr. Berryman characterized as “sternal chest wire” that was
“very likely from a surgery.” Deceased did not have wire from a mechanical device or a
surgical procedure on or in his body. When asked whether he found “commingling in the
Akers reported cremains,” Dr. Berryman replied, “from what I know of Rondal Akers, I
found some things in those cremains that didn’t belong in there.” Dr. Berryman testified that
no scientific test exists to determine whether the Cremains delivered to the Akerses are those
of Deceased or of someone else.
Dr. Berryman also closely examined the retort at Tri-State and testified that it was in
such bad condition that he was surprised that it was operational. He described the floor of
the retort as “in really bad shape,” stating that “it had pockets, it had [fissures] running
through it, and some of the [fissures] were two inches deep. It was . . . just amazing, the
floor, it was in terrible shape.” Dr. Berryman testified that the tools used at Tri-State to
remove the cremains “look[ed] very primitive;” one was “like a hoe” with an eight-foot
handle. Dr. Berryman further stated:
I remember . . . looking at all the fissures and dips and holes and things that are
in that retort floor and all the bones that were left behind and other metal and
materials that were left in there, and I remember just making the
comment . . . I don’t see how you take one set of cremains out of there without
leaving part of it behind and without mixing some of the others that had been
there before with that one.
He spent several days inside the retort, excavating it like an archaeological site, because he
“wanted to see how much material and where it is, how much material is left behind. And
the thing that was shocking to me is how much actually was left behind.” The retort floor
was stratified. On the top layer of loose dust and sand that Dr. Berryman could move with
a brush, he found sixty-nine items on the surface, including teeth, bone fragments, and metal
items. Beneath the layer of loose material, Dr. Berryman found a moist layer that he could
move with a trowel. He testified that this layer “had a lot of moisture in it, and it was . . .
basically from body fat over the years.” When Dr. Berryman was asked how many
peoples’ remains had been left in the retort, he replied, “I couldn’t tell you how many
individuals are there. I can tell you there’s a minimum number of two, but could be a lot
more than that, and I suspect there are.”
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As a part of his work on the case, Dr. Berryman visited the East Tennessee
Crematorium Company in Maryville, Tennessee, to see how a quality crematorium was
operated so he could compare it with Tri-State’s operation. At the East Tennessee
Crematorium, the floor of the retort was smooth and solid. The floor was swept clean of the
cremains after a cremation, and Dr. Berryman did not see any commingling of materials with
the cremains.
Following the close of proof and deliberations, the jury returned its verdict on the
written verdict form, answering “YES” to the following questions: “(1) Did Brent Marsh
intentionally inflict emotional distress or outrageous conduct upon the plaintiffs? (2) Did
Brent Marsh violate the Tennessee Consumer Protection Act? (3) Did Brent Marsh violate
a bailment responsibility with the plaintiffs?” The jury awarded Dr. Akers compensatory
damages in the amount of $275,000, and Mrs. Akers compensatory damages in the amount
of $475,000. The trial court entered judgment on the jury verdict.
Mr. Marsh filed a post-trial motion for judgment notwithstanding the verdict
(“JNOV”) or for a new trial. The Akerses filed a motion requesting the trial court to award
treble damages and attorney’s fees under the TCPA. After a hearing, the trial court granted
Mr. Marsh a partial JNOV on the bailment and TCPA claims, dismissed those claims, and
denied Mr. Marsh’s motion for a JNOV or for a new trial on the intentional infliction of
emotional distress claim. The Court of Appeals affirmed the trial court’s judgment. Akers,
2011 WL 4908396, at *1.
Both Mr. Marsh and the Akerses filed applications for permission to appeal. We
granted both applications and address the following issues: (1) whether the trial court erred
in denying Mr. Marsh’s motion for a JNOV or for a new trial on the intentional infliction of
emotional distress claim; (2) whether the trial court erred in instructing the jury that they
were permitted to draw a negative inference from Mr. Marsh’s invocation of his Fifth
Amendment privilege in response to certain questions asked of him during his deposition;
(3) whether the trial court erred in granting Mr. Marsh a JNOV and dismissing the TPCA
claim; and (4) whether the trial court erred in granting Mr. Marsh a JNOV and dismissing
the Akerses’ bailment claim.
The issues raised, with the exception of our review of the jury verdict, present
questions of law, which we review de novo with no presumption of correctness. Mitchell v.
Fayetteville Pub. Utils., 368 S.W.3d 442, 448 (Tenn. 2012). “Findings of fact by a jury in
civil actions shall be set aside only if there is no material evidence to support the verdict.”
Tenn. R. App. P. 13(d). In determining whether “there is material evidence to support the
jury verdict, we ‘take the strongest legitimate view of all the evidence in favor of the verdict,
assume the truth of all evidence that supports the verdict, allow all reasonable inferences to
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sustain the verdict, and discard all countervailing evidence.’” Barkes v. River Park Hosp.,
Inc., 328 S.W.3d 829, 833 (Tenn. 2010) (quoting Whaley v. Perkins, 197 S.W.3d 665, 671
(Tenn. 2006)).
II. Intentional Infliction of Emotional Distress
The legal argument supporting Mr. Marsh’s assertion that the trial court should have
granted his motion for a JNOV or for a new trial on the intentional infliction of emotional
distress claim is a rather nuanced one. Mr. Marsh argues that in Doe 1 ex rel. Doe 1 v.
Roman Catholic Diocese of Nashville, 154 S.W.3d 22 (Tenn. 2005), this Court effectively
created two separate causes of action for the infliction of emotional distress—one for
intentional infliction and another for reckless infliction. Because the Akerses did not
specifically allege a claim for “reckless infliction of emotional distress,” Mr. Marsh argues
that they should be precluded from recovery based on a theory of reckless infliction. It
follows, according to this argument, that proof presented by the Akerses from which the jury
could have concluded that Mr. Marsh acted recklessly in inflicting emotional distress should
be held insufficient because the plaintiffs did not specifically allege reckless infliction of
emotional distress but only intentional infliction of emotional distress. We disagree with this
argument.6
In Rogers v. Louisville Land Co., 367 S.W.3d 196 (Tenn. 2012),7 we reviewed the tort
of intentional infliction of emotional distress and reaffirmed that the “elements of an
intentional infliction of emotional distress claim are that the defendant’s conduct was (1)
intentional or reckless, (2) so outrageous that it is not tolerated by civilized society, and (3)
resulted in serious mental injury to the plaintiff.” Id. at 205 (emphasis added). We further
observed as follows in Rogers:
6
Mr. Marsh also argues that in order to recover for intentional infliction of emotional distress, a
plaintiff must prove that the defendant’s conduct was specifically directed at the plaintiff. In his brief, Mr.
Marsh asserts that because “the jury instruction did not include all of the elements of intentional infliction
of emotional distress, and omitted the crucial element that the intentional infliction of emotional distress has
to be directed [at] a particular party, a logical conclusion that can be reached from the Doe decision,” the jury
instruction was fatally flawed and the case must be remanded for new trial. This Court in Doe 1 rejected the
“directed-at” requirement for reckless infliction of emotional distress claims such as the one presented in this
appeal. See Doe 1, 154 S.W.3d at 41-42. Because we hold that the Akerses may recover based on a showing
of reckless conduct and that there is material evidence supporting the jury verdict on this element, we do not
reach this argument.
7
In fairness to Mr. Marsh and his counsel, it must be noted that his appellate brief was prepared and
filed before this Court released its opinion in Rogers.
-6-
Since Doe 1 was decided, there has been some confusion and inconsistency
regarding whether “reckless infliction of emotional distress” is a separate and
distinct tort from intentional infliction of emotional distress. . . . [We have]
observed numerous times that intentional infliction of emotional distress can
be proven by a showing of either reckless or intentional behavior. This
approach is consistent with the Restatement (Second) of Torts and the
Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 45
(Tentative Draft No. 5, 2007). Although Doe 1 makes it clear that the analysis
differs somewhat when the claimant alleges reckless conduct, it does not
expressly hold that reckless infliction of emotional distress is a separate tort.
Id. at 205 n.6 (internal citations omitted); see also Lourcey v. Estate of Scarlett, 146 S.W.3d
48, 51 (Tenn. 2004) (“To state a claim for intentional infliction of emotional distress, a
plaintiff must establish that: (1) the defendant’s conduct was intentional or reckless . . . .”)
(emphasis added)); Leach v. Taylor, 124 S.W.3d 87, 91-92 (Tenn. 2004) (noting that the first
element of prima facie showing of intentional infliction of emotional distress is “the conduct
complained of must be intentional or reckless” (emphasis added) (quoting Bain v. Wells, 936
S.W.2d 618, 622 (Tenn. 1997))); Miller v. Willbanks, 8 S.W.3d 607, 612 (Tenn. 1999);
Medlin v. Allied Inv. Co., 398 S.W.2d 270, 274 (Tenn. 1966) (abrogated on other grounds
by Camper v. Minor, 915 S.W.2d 437, 444 (Tenn. 1996)); Restatement (Second) of Torts §
46 (1965) (“One who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional distress . . . .”)
(emphasis added); Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 45 cmt. g (Tentative Draft No. 5, 2007) (“Courts uniformly hold that reckless conduct, not
just intentional conduct, can support a claim for intentional infliction of emotional
disturbance.”); John J. Kircher, The Four Faces of Tort Law: Liability for Emotional Harm,
90 Marq. L. Rev. 789, 799 (2007) (“[A]lthough the rule is dubbed ‘Intentional Infliction,’
recovery also will be allowed when the defendant’s conduct is not intended to cause
emotional distress, but the defendant is merely reckless in doing so.”).
The Akerses are not precluded from recovery because they did not specifically allege
reckless infliction of emotional distress in their complaint. Because a claim for intentional
infliction of emotional distress can be proven by a showing that a defendant acted recklessly,
and the Akerses asserted a claim for intentional infliction of emotional distress, the trial court
did not err in allowing the claim to go to the jury and entering judgment on the jury verdict.
The trial court instructed the jury as follows:
Normally, the law does not permit the recovery of damages for emotional
distress unless the emotional distress is severe. A plaintiff is entitled to
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recover damages for severe emotional distress: (1) actually and proximately
caused by the extreme and outrageous conduct of another; and (2) done either
with a specific intent to cause emotional distress or with reckless disregard of
the probability of causing that distress.
(Emphasis added). This instruction closely tracks the current Tennessee pattern jury
instruction on intentional infliction of emotional distress, T.P.I.–Civil 4.35 (2011). In
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992), this Court defined “reckless
conduct” as occurring “when the person is aware of, but consciously disregards, a substantial
and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the
standard of care that an ordinary person would exercise under all the circumstances.” In
future cases, if a claim of intentional infliction of emotional distress based on reckless
conduct is tried to a jury, it would be helpful for the trial court to include a jury instruction
defining “recklessness.” Nevertheless, the jury here was instructed that the plaintiffs could
recover if they proved the defendant acted with reckless disregard of the probability that his
outrageous conduct would cause severe emotional distress, and consequently the failure of
the trial court to specifically define “recklessness” in its instructions is not fatal to the jury
verdict.
Mr. Marsh also complains that in the written jury verdict form, the question was
phrased as “Did Brent Marsh intentionally inflict emotional distress or outrageous conduct
upon the plaintiffs?” We agree that the verdict form is not perfect in that it would have been
preferable to have omitted the term “outrageous conduct” on the form. In Rogers, this Court
retired the use of the name “outrageous conduct” as a tort in Tennessee, explaining that
[b]ecause having two names for the same tort—“intentional infliction of
emotional distress” and “outrageous conduct”—engenders potential confusion
and misunderstanding and may lead to error, courts and litigants should no
longer refer to “outrageous conduct” as a separate, independent cause of
action, nor as a synonym for the tort of intentional infliction of emotional
distress.
Rogers, 367 S.W.3d at 205. The trial court in this case instructed the jury without the benefit
of the Rogers decision, at a time when it was still common practice to refer to “intentional
infliction of emotional distress” and “outrageous conduct” as “different names for the same
tort.” Lane v. Becker, 334 S.W.3d 756, 762 n.3 (Tenn. Ct. App. 2010). Furthermore, “[j]ury
instructions are not measured against the standard of perfection.” City of Johnson City v.
Outdoor W., Inc., 947 S.W.2d 855, 858 (Tenn. Ct. App. 1996) (citing Grissom v. Metro.
Gov’t of Nashville, 817 S.W.2d 679, 685 (Tenn. Ct. App. 1991)). In addressing “whether
a trial court committed prejudicial error in a jury instruction, [we] review the charge in its
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entirety and consider it as a whole, and the instruction will not be invalidated if it ‘fairly
defines the legal issues involved in the case and does not mislead the jury.’” Nye v. Bayer
Cropscience, Inc., 347 S.W.3d 686, 699 (Tenn. 2011) (quoting Otis v. Cambridge Mut. Fire
Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992)). The trial court’s jury instructions as a whole
are not misleading and easily meet this standard.
We have carefully reviewed the record in this case and find there is sufficient material
evidence of Mr. Marsh’s reckless conduct to support the jury verdict imposing liability for
intentional infliction of emotional distress. The Akerses presented evidence showing that
Mr. Marsh pleaded guilty to the felony of criminal simulation with regard to Deceased’s
body. The proof also demonstrates that Mr. Marsh routinely treated bodies sent to him for
cremation in a disrespectful and inappropriate manner, dumping or improperly burying them
instead of cremating them. When he did cremate them, it was done in an improper manner
that resulted in substantial commingling of the cremains with the cremains of other bodies
and other foreign items. We affirm the jury verdict for intentional infliction of emotional
distress.
III. Negative Inference Resulting from Assertion of Fifth Amendment Privilege
During his deposition, Mr. Marsh invoked his Fifth Amendment privilege in
response to numerous questions asked by plaintiffs’ counsel. The trial court allowed
portions of Mr. Marsh’s deposition to be read to the jury and played a videotape showing
Mr. Marsh taking the Fifth Amendment in response to questioning. The trial court then
instructed the jury as follows regarding negative inferences that might be drawn from Mr.
Marsh’s invocation of the Fifth Amendment privilege:
Mr. Marsh has taken the Fifth Amendment privilege against self-
incrimination, and I instruct you that you have available to you the
opportunity to weigh the Fifth Amendment response and to give the
response a – what is known as a negative inference.
For example, if Mr. Marsh asserted the Fifth Amendment privilege
in response to a particular question, you may infer that if he had answered
the question the answer would have had a negative impact.
However, you are not required to give the negative inference to a
particular answer, and let me tell you I have not given this instruction as to
every response he made where he asserted the Fifth Amendment
privilege. Not every such response where the Fifth Amendment is asserted
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may be given a negative inference, only where I instruct you it may be
given a negative inference.
Otherwise, I want you to give the response the weight you think it is
entitled to. I want you to consider the response in the light of all the other
evidence given in this case. Let me just emphasize that only when I instruct
you that a negative inference may be given should that negative inference
be given. Otherwise, just give it the weight you think it’s entitled to.
The trial court further instructed the jury that it was permitted to draw a negative
inference from Mr. Marsh’s refusal to answer the question “Are [the Cremains] the
cremains of Rondal Douglas Akers, III?” and “Isn’t it true those are not the cremains of
Rondal Akers, III?” 8
Mr. Marsh makes two arguments supporting his assertion that the trial court
committed reversible error in addressing his invocation of the Fifth Amendment
Privilege. First, Mr. Marsh asserts that there was not sufficient corroborating independent
evidence regarding the facts to which he refused to answer to allow for a negative
inference instruction to be given to the jury. Second, he insists that it was error to allow
questions and answers from Mr. Marsh’s deposition to which no negative inference
applied to be read to the jury.
The Fifth Amendment to the Constitution of the United States provides that no
person shall “be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V. Federal courts have held that the Fifth Amendment’s protections
extend to any type of proceeding, including civil trials,9 but only under “those
circumstances in which the person invoking the privilege reasonably believes that his
disclosures could be used in a criminal prosecution, or could lead to other evidence that
could be used in that manner” or “where the disclosures would not be directly
incriminating, but could provide an indirect link to incriminating evidence.” Doe v.
Glanzer, 232 F.3d 1258, 1263 (9th Cir. 2000); see Nat’l Acceptance Co. of Am. v.
Bathalter, 705 F.2d 924, 926-27 (7th Cir. 1983); see generally Robert Heidt, The
Conjurer’s Circle—The Fifth Amendment Privilege in Civil Cases, 91 Yale L.J. 1062,
1065 (1982). Courts have further recognized that a party’s invocation of the privilege
may disadvantage the opposing party, and thus, in civil proceedings, where “the parties
8
The trial court also allowed a negative inference to be drawn from Mr. Marsh’s refusal to answer
three questions regarding a notebook in which he had kept records of whose bodies Tri-State had received
for cremation from various funeral homes.
9
See Lefkowitz v. Turley, 414 U.S. 70, 77 (1973); Kastigar v. U.S., 406 U.S. 441, 444 (1972).
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are on a somewhat equal footing, one party’s assertion of his constitutional right should
not obliterate another party’s right to a fair proceeding.” Serafino v. Hasbro, Inc., 82 F.3d
515, 518 (1st Cir. 1996); see SEC v. Graystone Nash, Inc., 25 F.3d 187, 190 (3rd Cir.
1994).
Given this tension between the rights of both parties in civil matters, the United
States Supreme Court has ruled that the trier of fact may under certain circumstances be
allowed to draw adverse inferences from a party’s invocation of his Fifth Amendment
privilege. Baxter v. Palmigiano, 425 U.S. 308, 318 (1976); see Levine v. March, 266
S.W.3d 426, 442 (Tenn. Ct. App. 2007) (“[T]he majority of jurisdictions, including
Tennessee, permit fact-finders to draw adverse inferences against parties who invoke
their Fifth Amendment rights in a civil case.”). In Baxter, the Supreme Court 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” and further observed that “aside from the privilege against
compelled self-incrimination, the Court has consistently recognized that in proper
circumstances silence in the face of accusation is a relevant fact not barred from evidence
by the Due Process Clause.” 425 U.S. at 318-19. However, “[t]he Baxter holding is not a
blanket rule that allows adverse inferences to be drawn from invocations of the privilege
against self-incrimination under all circumstances in the civil context.” Doe, 232 F.3d at
1264. The Ninth Circuit in Doe elaborated further as follows:
[L]ower courts interpreting Baxter have been uniform in suggesting that the
key to the Baxter holding is that such adverse inference can only be drawn
when independent evidence exists of the fact to which the party refuses to
answer. Thus, an adverse inference can be drawn when silence is countered
by independent evidence of the fact being questioned, but that same
inference cannot be drawn when, for example, silence is the answer to an
allegation contained in a complaint. In such instances, when there is no
corroborating evidence to support the fact under inquiry, the proponent of
the fact must come forward with evidence to support the allegation,
otherwise no negative inference will be permitted.
Id. (internal citations omitted); see also Steppach v. Thomas, 346 S.W.3d 488, 521 (Tenn.
Ct. App. 2011) (applying prevailing interpretation of Baxter as requiring corroborating
independent evidence).
We agree with the standard adopted by the Doe court. Therefore, we hold that the
trier of fact may draw a negative inference from a party’s invocation of the Fifth
Amendment privilege in a civil case only when there is independent evidence of the fact
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to which a party refuses to answer by invoking his or her Fifth Amendment privilege. In
instances when there is no corroborating evidence to support the fact under inquiry, no
negative inference is permitted.
Mr. Marsh first argues that the Akerses produced no corroborating evidence that
he mishandled Deceased’s body, and thus the jury should not have been instructed that it
could draw a negative inference from his invocation of his Fifth Amendment
Privilege. Specifically, Mr. Marsh argues that evidence of the way in which he treated
other bodies is not evidence of how he treated that of Deceased, and that his guilty plea of
the offense of criminal simulation with regard to Deceased’s body does not constitute
corroborating evidence.
We agree with Mr. Marsh that evidence of mishandling and mistreatment of other
bodies is insufficient corroborating evidence to alone support a negative inference
instruction. Courts have previously determined that for an adverse inference to be
permitted, a plaintiff must present corroborating evidence regarding the specific fact to
which the defendant refuses to answer. Doe, 232 F.3d at 1264-65; Steppach, 346 S.W.3d
at 521. In determining whether a negative inference is permissible, the privilege analysis
is applied on a question-by-question basis, and “therefore . . . the privilege necessarily
attaches only to the question being asked and the information sought by that particular
question.” Doe, 232 F.3d at 1265 (emphasis added). Here, Mr. Marsh was specifically
questioned about his treatment of the body of Deceased. As pertinent to the Fifth
Amendment analysis, he was not asked questions regarding his treatment of other corpses
sent to Tri-State for cremation. Evidence of mishandling or failure to cremate other
bodies, standing alone, is not relevant corroborating evidence to support the accusation
that Mr. Marsh specifically mishandled Deceased’s body.
Mr. Marsh’s argument, however, fails because the Akerses produced other
evidence that tends to show that the body of Deceased was mishandled and not properly
cremated. For example, in a video recorded during the GBI investigation, Mr. Marsh
pointed to a body on the floor of a building and identified it as “Akers.” Although it was
later proved that the body was not that of Deceased, the video evidence indicates that Mr.
Marsh believed he did not fully cremate Deceased’s body. Even if Deceased was in fact
cremated, the evidence established that the cremation did not comply with either industry
standards or any reasonable notion of common decency and respect for the dead and the
living who have lost a loved one. The evidence shows that cremation was done in a
wholly improper and inappropriate manner using a retort that was in poor condition which
could only result in substantial commingling with the cremains of previously cremated
bodies and adulteration from other foreign materials. Furthermore, the testimony of Dr.
Berryman established that metal objects were found in the Cremains that did not belong
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to Deceased, including a wire from a mechanical device or a surgical procedure and a
rivet from a pair of jeans. Expert testimony proved that the Cremains were returned to the
Akerses in a commingled and adulterated condition. We believe that the foregoing is
sufficient corroborating evidence that, if Deceased was cremated, Mr. Marsh mishandled
the body of Deceased during the cremation.
Mr. Marsh further argues that his guilty plea to the felony of criminal simulation 10
with regard to Deceased’s body should not be used as independent evidence. In Grange
Mutual Casualty Co. v. Walker, 652 S.W.2d 908, 910 (Tenn. Ct. App. 1983) the court
stated that “[a] plea of guilty . . . is generally not conclusive on the issues in a subsequent
civil action, but is competent evidence as an admission against interest.” (Emphasis
added) (citations omitted). Even if the guilty plea is not conclusive as to liability, it
constitutes independent evidence that supports the contention that Mr. Marsh mishandled
Deceased’s body. We conclude that the Akerses presented sufficient independent
evidence regarding the mistreatment of Deceased’s body to permit the jury to draw an
adverse inference regarding the questions at issue.
Mr. Marsh’s second argument insists that the trial court erred in allowing the
Akerses’ attorney to read questions and answers to the jury from Mr. Marsh’s deposition
testimony to which no negative inference applied. However, before permitting the
deposition testimony to be read to the jury, the trial court informed counsel that it would
instruct the jury as to which specific questions it could give a negative inference. For the
remaining questions, the jury would be (and was) specifically instructed to give the
response the weight to which the jury determined the response was entitled. Counsel for
Mr. Marsh responded to the trial court: “That cures the problem, Your Honor. Thank
you. I just wanted to make sure.”
10
Mr. Marsh pleaded guilty to the offense of criminal simulation specifically as a result of his
treatment of Deceased’s body. At the time of the offense, criminal simulation was defined at Tennessee
Code Annotated section 39-14-115 (1989) as follows:
(a) A person commits an offense of criminal simulation who:
(1) With intent to defraud or harm another:
(A) Makes or alters an object, in whole or in part, so that it appears to have value because
of age, antiquity, rarity, source, or authorship that it does not have;
(B) Possesses an object so made or altered, with intent to sell, pass, or otherwise utter it; or
(C) Authenticates or certifies an object so made or altered as genuine or as different from
what it is; or
....
(c) Criminal simulation is punishable as theft pursuant to § 39-14-105, but in no event shall
criminal simulation be less than a Class E felony.
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By withdrawing his objection and approving the trial court’s proposed instruction
as “cur[ing] the problem,” Mr. Marsh has waived this issue on appeal. Tennessee Rule of
Appellate Procedure 36(a) provides that a party is not entitled to relief if that party is
“responsible for an error or . . . failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.” Tenn. Rule App. P. 36(a). “It is an
elementary principle of law that a party may not register an objection, later withdraw that
objection, and subsequently raise the issue post-trial.” State v. Garrin, No. 02C01-9501-
CR-00028, 1996 WL 275034 at *5 (Tenn. Ct. Crim. App. May 24, 1996). Therefore, Mr.
Marsh’s second argument regarding his Fifth Amendment Privilege also fails.
IV. Tennessee Consumer Protection Act Claim
The Akerses argue that the trial court erred by granting Mr. Marsh a JNOV and
dismissing their claim alleging violation of the TCPA, Tennessee Code Annotated
sections 47-18-101 to -2704 (2001 & Supp. 2011). Mr. Marsh argues that the TCPA does
not provide a cause of action when the alleged damages suffered are for emotional
distress without any economic or pecuniary loss. We agree with Mr. Marsh and hold that
an action does not lie under the TCPA for emotional distress in the absence of pecuniary
damages.11
A motion for “judgment notwithstanding the verdict” is governed by Tennessee
Rule of Civil Procedure 50.02, which terms such a motion as one for directed verdict12
and provides in pertinent part:
Within 30 days after the entry of judgment a party who has moved
for a directed verdict may move to have the verdict and any judgment
entered thereon set aside and to have judgment entered in accordance with
the party’s motion for a directed verdict . . . . If a verdict was returned, the
court may allow the judgment to stand or may reopen the judgment and
either order a new trial or direct the entry of judgment as if the requested
verdict had been directed.
11
The issue of whether a plaintiff may recover under the TCPA for non-economic damages such as
pain and suffering and emotional distress in addition to economic damages is not presented here, and we do
not express an opinion on that issue in the present case.
12
We have observed that “Rule 50.02 does not use the term ‘judgment notwithstanding the verdict’;
rather, it employs the term ‘judgment entered in accordance with the motion for directed verdict.’ There is
no substantive difference between the terms, however[.]” Huskey v. Crisp, 865 S.W.2d 451, 453 n.1 (Tenn.
1993).
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“In ruling on such a motion, the standard applied by both the trial court and the
appellate court is the same as that applied to a motion for directed verdict made during
trial.” Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 130 (Tenn. 2004). This
standard requires the trial court and appellate courts to “take the strongest legitimate view
of the evidence in favor of the opponent of the motion, allow all reasonable inferences in
his or her favor, discard all countervailing evidence, and deny the motion when there is
any doubt as to the conclusions to be drawn from the evidence.” Id. at 130-31. In this
case, the trial court granted its JNOV based purely on conclusions of law; there is no
factual issue. In Mercer, this Court observed that “when the jury’s verdict rests upon an
error of law, a party who has moved for a directed verdict may request the trial court to
set aside the verdict and enter a judgment in accordance with the party’s motion for
directed verdict.” Id. at 130.
At the time the complaint was filed, the TCPA, Tennessee Code Annotated section
47-18-109 (Supp. 2001), provided in pertinent part as follows:
(a)(1) Any person who suffers an ascertainable loss of money or
property, real, personal, or mixed, or any other article, commodity, or thing
of value wherever situated, as a result of the use or employment by another
person of an unfair or deceptive act or practice declared to be unlawful by
this part, may bring an action individually to recover actual damages.
(Emphasis added). Thus, the TCPA provides a cause of action for a plaintiff who
has suffered an ascertainable loss of (1) money; (2) property; or (3) “any other article,
commodity, or thing of value.” See Discover Bank v. Morgan, 363 S.W.3d 479, 496
(Tenn. 2012) (“Once an ascertainable loss has been established, the TCPA allows
consumers to recover ‘actual damages.’”); Morrison v. Allen, 338 S.W.3d 417, 440
(Tenn. 2011) (holding no cause of action under TCPA resulting from plaintiffs’ decision
to allow insurance policy to lapse because the decision “does not constitute a ‘loss of
money or property’”); see also Wood v. Woodhaven Memory Gardens, Inc., 1991 WL
112273, at *5 (Tenn. Ct. App. June 27, 1991) (reversing award under TCPA where “the
only damages claimed . . . are for emotional distress” resulting from cemetery’s refusal to
allow plaintiffs to place a full ledger memorial on their son’s grave).
The TCPA does not provide a cause of action for purely emotional loss resulting
from wrongful death. In Kirksey v. Overton Pub, Inc., 804 S.W.2d 68 (Tenn. Ct. App.
1990), the plaintiffs asserted a TCPA claim resulting from the alleged wrongful death of
their son due to the defendant’s deceptive acts. The Kirksey plaintiffs argued that the life
of their son was a “thing of value” that they had lost, and therefore the TCPA provided
-15-
them a cause of action. Id. at 73. The Court of Appeals, ruling that the TCPA did not
provide an action for purely emotional loss resulting from wrongful death, stated:
Our interpretation of T.C.A. § 47-18-109 is that a person would be
allowed to bring an action for loss of money or property as a result of unfair
or deceptive acts. We must hold that the General Assembly intended for the
Consumer Protection Act to be used by a person claiming damages for an
ascertainable loss of money or property due to an unfair or deceptive act or
practice and not in a wrongful death action.
Id.
The Akerses have stated a claim for emotional loss and have not demonstrated that
they have suffered an ascertainable loss of money, property, or any other article,
commodity or tangible thing of value.13 Although a person’s cremains have significant
emotional and sentimental value, they do not have tangible economic value as required by
the TCPA. See generally Restatement (Second) of Torts § 869 cmt. a (1965) (noting that
“the body ordinarily cannot be sold or transferred, has no utility and can be used only for
the one purpose of internment or cremation”). Consequently, by the plain and
unambiguous terms of the TCPA, that statute does not provide a cause of action for their
recovery. We affirm the judgment of the trial court granting Mr. Marsh a JNOV and
dismissing the TCPA claim.
V. Bailment Claim
We now turn to the issue of whether the trial court erred in granting Mr. Marsh a
JNOV and dismissing the bailment claim. The Akerses alleged that their delivery of
Deceased’s body to the funeral home “for the specific purpose of providing crematory
services in a respectful and dignified manner” created a bailment relationship.
This Court has defined a bailment as “a delivery of personalty for a particular
purpose or on mere deposit, on a contract express or implied; that after the purpose has
been fulfilled, it shall be redelivered to the person who delivered it, or otherwise dealt
with according to his direction or kept until he reclaims it.” Dispeker v. New S. Hotel
Co., 373 S.W.2d 904, 908 (Tenn. 1963) (citing Breeden v. Elliot Bros., 118 S.W.2d 219,
219 (Tenn. 1937)). Although bailments typically involve contractual agreements, an
agreement is not always an indispensable element of a bailment relationship. A bailment
13
Dr. Akers testified that Buckner-Rush funeral home ultimately did not charge the Akerses for the
costs of Deceased’s funeral and cremation.
-16-
relationship is generally founded on a contractual relation; however, “an actual contract
or one implied in fact is not always necessary to create a bailment.” Aegis Investigative
Grp. v. Metro. Gov’t. of Nashville & Davidson Cnty., 98 S.W.3d 159, 163 (Tenn. Ct.
App. 2002). The Aegis court recognized a type of constructive or involuntary bailment,
which arises by operation of law where (1) the person who has possession of a chattel
holds it under such circumstances that the law imposes on him or her the obligation of
delivering it to another; (2) a person has lawfully obtained possession of another’s
personal property by means other than a mutual contract of bailment; or (3) a person has
lawfully acquired the possession of another person’s chattel and holds it under
circumstances whereby he or she should, on principles of justice, keep it safely and
restore it or deliver it to the owner. Id.; see also Campbell v. State, 450 S.W.2d 795, 801
(Tenn. Crim. App. 1969) (holding that an actual contract or one implied in fact is not
necessary to create a bailment when a person has lawfully acquired the personal property
of another and holds it under circumstances whereby principles of justice dictate that the
possessor keep it safe and restore it to the owner). The Court of Appeals ruled that the
Akerses’ bailment claim failed because the Akerses’ agreement “was with the Funeral
Home, not with Marsh or Tri-State.” Akers, 2011 WL 4908396, at *25. We disagree
with this reasoning. Although there was no express agreement between the Akerses and
Mr. Marsh, there existed a constructive or involuntary bailment on which a bailment
claim could be made.
The bailment claim fails, however, because a corpse is not “personalty” for
bailment purposes. See generally Tinsley v. Dudley, 915 S.W.2d 806, 807 (Tenn. Ct.
App. 1995) (observing that while there is “no property right in the body of a deceased” at
common law, courts “have recognized that a quasi-property right in dead bodies vests in
the nearest relatives, and arises from their duty to bury their dead”)14 ; 22A Am. Jur. 2d
14
In Crawford v. J. Avery Bryan Funeral Home, Inc., 253 S.W.3d 149, 158 (Tenn. Ct. App. 2007)
the Court of Appeals cited the Restatement (Second) of Torts § 869 cmt. a (1965), which states:
One who is entitled to the disposition of the body of a deceased person has a cause of action
in tort against one who intentionally, recklessly or negligently mistreats or improperly deals
with the body, or prevents its proper burial or cremation. The technical basis of the cause
of action is the interference with the exclusive right of control of the body, which frequently
has been called by the courts a “property” or a “quasi-property” right. This does not,
however, fit very well into the category of property, since the body ordinarily cannot be sold
or transferred, has no utility and can be used only for the one purpose of interment or
cremation. In practice the technical right has served as a mere peg upon which to hang
damages for the mental distress inflicted upon the survivor; and in reality the cause of action
has been exclusively one for the mental distress.
(continued...)
-17-
Dead Bodies § 3 (2012) (noting that “[a]t common law, there is no property right in the
body of a deceased person”); see also Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877,
882 (Colo. 1994) (rejecting “the fictional theory that a property right exists in a dead body
that would support an action for conversion” because the plaintiffs’ claims are “more
properly addressed through a tort action related to the infliction of emotional distress”);
Louisville & Nashville R.R. v. Wilson, 51 S.E. 24, 25 (Ga. 1905) (“It is not surprising
that the law relating to this mystery of what death leaves behind cannot be precisely
brought within the letter of all the rules regarding corn, lumber and pig iron.”); Bauer v.
N. Fulton Med. Ctr., Inc., 527 S.E.2d 240, 244 (Ga. Ct. App. 1999) (affirming dismissal
of bailment claim arising from alleged removal of eye tissue from corpse without
permission); Edwards v. State, 286 S.W.2d 157, 159 (Tex. Crim. App. 1955) (holding that
the taking of custody of a body by a funeral home for the purpose of preparing it for
burial does not create a bailment). We affirm the judgment of the trial court granting the
motion for JNOV and dismissing the bailment claim.
VI. Conclusion
The judgments of the Court of Appeals and the trial court are affirmed. Costs on
appeal are assessed one-half to the Appellants, Rondal Akers, Jr. and Lucinda Akers, and
one-half to the Appellee, T. Ray Brent Marsh, and his surety, for which execution may
issue if necessary.
_________________________________
SHARON G. LEE, JUSTICE
14
(...continued)
(Emphasis added). Thus, although courts have characterized the right to possession of a corpse as a
“property” or “quasi-property” right, the American Law Institute has recognized that this characterization
is primarily a practical means to the end of allowing plaintiffs to recover for emotional distress resulting from
mistreatment of a loved one’s corpse.
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IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
May 8, 2012 Session
RONDAL AKERS ET AL. v. PRIME SUCCESSION OF TENNESSEE, INC.
ET AL.
Circuit Court for Bradley County
No. V-02-623
No. E2009-02203-SC-R11-CV - Filed October 26, 2012
ORDER
Petitioner Brent Marsh filed a petition to rehear in this case on October 10, 2012, and
a motion to permit extension of time for filing a petition to rehear on October 11, 2012. The
petition to rehear was not timely filed. The Court’s opinion was filed and judgment entered
on September 21, 2012. The mandate issued on October 2, 2012. The time for filing ran on
October 1, 2012, pursuant to Tennessee Rule of Appellate Procedure 39(b): “A petition for
rehearing must be filed with the clerk of the appellate court within 10 days after entry of
judgment unless on motion the time is shortened or enlarged by the court or a judge
thereof.” Rule 39(b) further states that “[m]otions for extending time to file petitions for
rehearing will be allowed only in extreme and unavoidable circumstances.” The motion to
permit extension of time does not allege appropriate grounds to extend the ten-day time
provided in Rule 39.
The petition to rehear and motion to permit extension of time for filing a petition to
rehear are therefore dismissed.
We have nevertheless reviewed the issues raised in the petition to rehear, and we agree
that the testimony of Dr. William Bass was incorrectly referenced in our original opinion. A
corrected opinion is being filed contemporaneously with this order, and we are grateful to
Mr. Marsh for bringing this error to our attention. Contrary to Mr. Marsh’s argument,
however, the modification does not change the factual or legal analysis nor does it require
reconsideration of any issue in the case, because Dr. Bass’s deposition testimony was largely
duplicative of Dr. Berryman’s testimony.
-1-
Mr. Marsh again argues that there was insufficient independent evidence to support
a negative inference from his Fifth Amendment privilege assertions regarding the claim of
intentional infliction of emotional distress presented at trial. For the reasons expressed in the
original opinion, we disagree. There was sufficient evidence including Mr. Marsh’s
conviction for criminal simulation, his reference to a dead body as “Akers” in the GBI video,
and the expert testimony of Dr. Berryman. Mr. Marsh’s petition argues that “the direct
evidence showing cremation outweighed any inference that should be given from Mr.
Marsh making statements in a video taken on the night of the discoveries of the bodies at Tri-
State Crematory.” This argument invites us to independently re-weigh the evidence, which
we are not permitted to do.
Mr. Marsh disagrees with our conclusion that his second argument regarding his Fifth
Amendment claims was waived and “asserts that reading questions where the Fifth
[Amendment privilege] was taken but no inference is given suggests to the jury that the
person answering the question somehow deserves a negative inference despite any instruction
to the contrary.” The problem with this argument is that the trial court clearly correctly
explained to the jury the circumstances under which it could draw a negative inference,
stating:
However, you are not required to give the negative inference to a particular
answer, and let me tell you I have not given this instruction as to every
response he made where he asserted the Fifth Amendment privilege. Not
every such response where the Fifth Amendment is asserted may be given a
negative inference, only where I instruct you it may be given a negative
inference.
Prior to giving the jury this instruction, the trial court informed counsel as to how it was
going to instruct the jury on this issue, and no objection was made. The petition raises no
issue meriting reconsideration.
PER CURIAM
-2-