Rondal Akers v. Prime Succession of Tennessee, Inc

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 22, 2011 Session
RONDAL AKERS, ET AL. v. PRIME SUCCESSION
OF TENNESSEE, INC., ET AL.
Appeal from the Circuit Court for Bradley County
No. V-02-623 Neil Thomas, III, Judge Sitting By Interchange
No. E2009-02203-COA-R3-CV-FILED-OCTOBER 17, 2011
This case is before us for the second time on appeal. In our first Opinion, Akers v. Buckner-
Rush Enterprises, Inc., we held, inter alia, that Rondal D. Akers, Jr. and Lucinda Akers had
standing to pursue their claims against T. Ray Brent Marsh; Marsh’s former business, Tri-
State Crematory (“Tri-State”); and Buckner-Rush Enterprises, Inc.1 Akers v. Buckner-Rush
Enterprises, Inc., 270 S.W.3d 67, 73-75 (Tenn. Ct. App. 2007). We remanded the case for
trial. The Trial Court entered judgment upon the jury’s verdict finding that Marsh had
intentionally inflicted emotional distress upon the Akers, that Marsh had violated the
Tennessee Consumer Protection Act, and that Marsh had violated a bailment responsibility
to the Akers. The jury awarded Dr. Akers $275,000 in damages and Mrs. Akers $475,000
in damages. Marsh filed a motion for new trial or for judgment notwithstanding the verdict.
After a hearing, the Trial Court granted Marsh a partial judgment notwithstanding the verdict
reversing the judgment for the claims under the Tennessee Consumer Protection Act and
bailment, and denied Marsh’s motion as to the remaining claims. Marsh appeals to this
Court. The Akers raise an issue on appeal regarding whether the Trial Court erred in
granting judgment notwithstanding the verdict and dismissing their claims under the
Tennessee Consumer Protection Act and bailment. We affirm the judgment in its entirety.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., and J OHN W. M CC LARTY, J.J., joined.
1
The Akers’ claims against Prime Succession of Tennessee, Inc.; Buckner-Rush Enterprises, Inc.;
and Prime Succession Holding, Inc. were settled prior to trial. The Akers non-suited their claims against Tri-
State.
Stuart F. James, Chattanooga, Tennessee, for the appellant, T. Ray Brent Marsh.
William J. Brown, Cleveland, Tennessee, for the appellees, Rondal Akers and Lucinda
Akers.
OPINION
Background
Rondall Akers (“Deceased”) died on November 23, 2001. Funeral
arrangements for Deceased were made with the Buckner-Rush Funeral Home (“the Funeral
Home”) in Cleveland, Tennessee. Deceased’s father, Rondal D. Akers, Jr. (“Dr. Akers”),
signed the contract (“the Contract”) for funeral services with the Funeral Home. Both Dr.
Akers and his wife, Deceased’s mother, Lucinda Akers, signed a three page document titled
“Cremation and Disposition Authorization” (“Authorization”). Deceased’s body was
embalmed and after a funeral service was taken to Tri-State for cremation. It is unknown
what happened to Deceased’s body after it was taken to Tri-State, but Marsh delivered what
was purported to be Deceased’s cremains (“Cremains”) to the Funeral Home who in turn
gave the Cremains to the Akers in accordance with the Contract and Authorization between
the Funeral Home and the Akers.
In pertinent part, the Authorization signed by Dr. and Mrs. Akers provides:
Cremation is performed to prepare the deceased for memorialization.
The funeral home places the human remains of the decedent in a combustible
casket or other container and delivers it to the Crematory. The Crematory then
will put the casket or container and the human remains into a cremation
chamber. Incineration of the container and contents is accomplished by
substantially increasing the temperature in the cremation chamber until
combustion is obtained. After approximately one and one-half hours, all
substances are consumed or driven off, except bone fragments (calcium
compounds) and metal, as the temperature is not sufficiently high enough to
consume them.
“The human body burns with the casket, container, or other material in
the cremation chamber. Some bone fragments are not combustible at the
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incineration temperature and, as a result, remain in the cremation chamber.
During the cremation, the contents of the chamber may be moved to facilitate
incineration. The chamber is composed of ceramic or other material which
disintegrates slightly during each cremation and the product of that
disintegration is commingled with the cremated remains. Nearly all of the
contents of the cremation chamber, consisting of the cremated remains,
disintegrated chamber material, and small amounts of residue from previous
cremations, are removed together and crushed, pulverized, or ground to
facilitate inurnment or scattering. Some residue remains in the cracks and
uneven places of the chamber. Periodically, the accumulation of this residue
is removed and interred in a dedicated cemetery property, or scattered at sea.”
Due to the nature of the cremation process, any personal possessions or
valuable materials, such as dental gold or jewelry (as well as body prostheses
or dental bridgework), that are left with the decedent and not removed from the
casket or container prior to cremation will be destroyed or will otherwise not
be recoverable. As the casket or container will usually not be opened by the
Crematory, the Authorized Agent(s) understands that arrangements must be
made with the Funeral Home to remove any such possessions or valuables
prior to the time that the decedent is transported to the Crematory.
Following an appropriate cooling period, the cremated remains are
swept or raked from the cremation chamber. The Crematory makes all
reasonable efforts and uses its best efforts to remove all of the cremated
remains from the cremation chamber, but it is impossible to remove all of
them, as some dust and other residue from the process are always left behind.
In addition, while every effort will be made to avoid commingling, inadvertent
or incidental commingling of minute particles of cremated remains from the
residue of previous cremations is a possibility, and the Authorized Agent
understands and accepts this fact.
After the cremated remains have been processed, they will be placed
into a designated urn or container. The Crematory will make a reasonable
effort to put all of the cremated remains in the urn or container, with the
exception of dust or other residue that may remain in the processing
equipment. The Funeral Home or the agent of the Funeral Home will pick up
the urn/container containing the cremated remains and deliver/dispose of it as
directed by the Authorized Agent.
(quotation marks in original).
-3-
It was discovered by the authorities in February of 2002 that Marsh was
accepting bodies for cremation, but not necessarily cremating them. Instead, Marsh was
burying or dumping the bodies on Tri-State property. The Akers surrendered the box that
contained the Cremains to the Georgia Bureau of Investigation (“GBI”) and were informed
that the box did not contain cremains, but instead contained potting soil. It later was
discovered that the box did contain human cremains.
Deceased’s body was not among those found on the Tri-State property during
the GBI investigation. At the time of his death, Deceased was a 34 year old, Caucasian male,
who was five feet ten inches tall and weighed 300 plus pounds. Deceased had short, clean
cut black hair with no gray, a Vandyke beard and mustache, a left ear piercing, and a tattoo
on his left breast of a Greek symbol.
In our Opinion in Floyd v. Prime Succession of TN, we discussed what
happened to Marsh as a result of his actions described above. Floyd v. Prime Succession of
TN, No. E2006-01085-COA-R9-CV, 2007 WL 2297810 (Tenn. Ct. App. Aug. 13, 2007), no
appl. perm. appeal filed. We noted that a Georgia grand jury returned 787 criminal
indictments against Marsh pertaining to the over 200 bodies that had been identified. The
indictments did not cover the roughly 110 bodies that were not or were unable to be
identified. Id. at *2. Marsh pled 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. The plea agreement accepted by the
Walker County Superior Court provided as follows:
[The State of Georgia] would recommend in this case that
the defendant be sentenced to serve twelve years in prison, that
he shall also be given a concurrent term of probation of 75 years
and that as a condition of probation that he pay a fine of 20
thousand dollars and that the payment of the fine commence
within one year after his release from incarceration and that he
pay the fine and attendant costs at the rate of one thousand
dollars per year under the supervision of the probation officer
and we would request that the defendant be directed to
hand-write a letter of apology to be delivered to a designated
representative for each of the identified remains in this case. The
letters would be turned over to the probation office for mailing
to their ultimate destinations. We would ask the court to direct
the defendant to write a general letter of apology. These would
not be due until six months after the commencement of the
sentence itself.
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The defendant would pay restitution to the State of
Georgia in the sum of eight million dollars in the event that the
defendant shall either directly or indirectly attempt to profit or
benefit in any manner from any transaction arising out of the
sale of his story, so to speak, regarding these events.
The defendant shall be on unsupervised probation after
the final payment of any and all fines and court costs and the
sentence shall be concurrent with any other sentence he may
receive in the State of Tennessee arising out of this and the
period of incarceration shall begin sometime after January 1st of
2005.
Floyd, 2007 WL 2297810, at *3.
Following Marsh’s guilty plea in Georgia, he pled guilty to numerous criminal
charges brought against him by the State of Tennessee. Specifically with regard to Deceased,
Marsh pled guilty in Tennessee to the crime of criminal simulation, Tenn. Code Ann. § 39-
14-115. In pertinent part, Tenn. Code Ann. § 39-14-115 provides:
39-14-115. Criminal simulation. – (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.
Tenn Code Ann. § 39-14-115 (1989). Marsh received a total sentence of nine years in the
Tennessee criminal cases. Floyd, 2007 WL 2297810, at *3. The nine-year sentence in
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Tennessee was to be served concurrently with the twelve-year sentence in Georgia.
The case now before us was tried to a jury in April of 2009. Greg Ramey, the
lead criminal investigator for the GBI, testified at trial. On February 15, 2002, Agent Ramey
received a call from the coroner requesting GBI assistance with regard to a complaint about
Tri-State. Agent Ramey went to the site and began an investigation. Marsh told Agent
Ramey that he had taken over the business when Marsh’s father became ill in late 1996 or
early 1997.
Agent Ramey described the conditions found at Tri-State including what he
referred to as surface burials, trash pits that contained bodies, and a location where an old
billiard table had been placed on top of several bodies. He stated that human remains were
discovered in “virtually all the buildings that we opened up.” A body was discovered inside
a hearse. Another was found inside a van. Some bodies were found without arms and legs,
and other bodies were found that had been partially cremated. A body was found in the
retort2 and there was no evidence that any attempt had been made to cremate this body.
The GBI made 339 recoveries at Tri-State. Agent Ramey explained:
There was some confusion mainly because of the way the media
represented it. Everybody was told we had 339 bodies, which, we had 339
recoveries. And when I say recoveries, if we had a skull and it was laying
right here, and ten feet away we had an upper torso, and ten feet away a [sic]
we had a lower torso, probably in our mind we’re thinking those three all
belong together because each is missing a specific part, but until we can
properly identify them, this had to be a recovery, this had to be a recovery, and
this had to be a recovery.
So they’re separate recoveries. And that reflected sometimes in our
report on here where we might have a body that was listed as two or three
different numbers or sometimes two or three different numbers, and even to
the point where during the recovery effort we began to find just the large bones
of the legs, the upper legs, the lower legs, and the arms, so instead of giving
them a recovery number like 34 or 35, what we had to do is give those a four-
digit number.
So sometimes you may see a recovery effort that may list Body Number
200, but it also have [sic] a four-digit number associated with it, or you may
2
The crematorium oven is also referred to as a ‘retort.’
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have a recovery effort listed as 318, 315, and 314, which tells me the body had
become disarticulated. It was separated, but we were able to recover it and put
it all back together. So realistically probably the recovery number of bodies
is more in the high 320s, after we were able to put some of the body parts back
together and make an identification.
There were some bodies that could not be identified. Agent Ramey testified:
We identified 226 bodies or body parts. Okay. Some people that were
identified all we were able to identify was like the big leg bones of the body.
We had some that were only two bones, two major bones of the body, but they
were identified through DNA. So we know we had a positive match on them.
We identified 226 individuals that way.
Roughly we had about 110 or so bodies or body parts that were
unidentified. Now, some are very identifiable. I would have in my sincerest
thoughts believed that we would have gotten those folks identified, but at the
same time a large number of the bodies were elderly people who may or may
not have had family or family living, who may not have had any relatives
around here. Some people genuinely - - we called or contacted them to supply
DNA so we could make identifications - - asked not to be included.
So we very well may have some people still right now that we could
identify if some of their family members would have submitted DNA, but for
whatever reason they chose not to and that happened quite a few times,
probably 25, 30, maybe 40 times that people just didn’t want to be included in
this.
The unidentified bodies have been buried in Walker County, Georgia.
The GBI determined that during the time that Marsh was involved in the
crematory there were a little over 1,100 bodies sent to Tri-State. The GBI assumed that
bodies not found at Tri-State were cremated, but Agent Ramey stated: “That’s an
assumption.”
During the investigation Agent Ramey walked around the Tri-State property
with Marsh and Marsh identified two bodies lying next to one another and “called out the
name Akers.” Agent Ramey stated: “His problem was he did not - - he didn’t have enough
records or didn’t take enough time. It was very obvious to us very quickly he didn’t know
who most of these bodies were.”
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Agent Ramey was asked about a day when the attorneys in the civil cases were
permitted to visit the Tri-State property after the GBI had concluded their investigation.
During that visit, Dr. William M. Bass, a forensic anthropologist, identified bone fragments
outside the retort. Agent Ramey agreed that despite the best efforts of the investigators
remains were still being found. Agent Ramey stated that this “happened shortly after we left
the crematory property,” and further stated: “I’m sure we may have left some bone fragments
there.” Agent Ramey stated:
I agree there were human remains out there, but they were unidentifiable.
They are finger bones, small finger bones. When the flesh comes off of it, it’s
probably a third of the size of a diameter of a pencil and there’s no discernible
DNA that can be taken from it. It’s a human recovery, but it’s unidentifiable.
There’s no way to attribute it to a single body, to anybody.
Hugh E. Berryman, a board-certified forensic anthropologist, testified as an
expert witness for Marsh. Dr. Berryman described to the jury how a cremation burns the
body. Dr. Berryman testified that he spent a good part of a day examining the Cremains. In
the Cremains, Dr. Berryman found human bone and “other artifacts, I would say, pieces of
metal, buttons, and there was some sternal chest wire, from - - very likely from a surgery.”
Dr. Berryman examined the bone closely and determined that it was human bone. He
described the other artifacts as a staple, a cylinder piece of metal, and small springs and
stated that he had no idea where the cylinder piece and springs came from or what they were.
Dr. Berryman also found five snaps that said “backyard blue,” which he later discovered
came from a pair of blue jeans. The parties stipulated that the Cremains contain a rivet from
a pair of Wal-Mart blue jeans. With regard to the sternal chest wire, Dr. Berryman stated:
Now, the sternal, the word sternal comes from the sternum or breast bone.
When they do open-heart surgery, they saw the middle of the sternum, they
saw down that bone and they open the chest up, do what they’re going to do,
and then they - - when they finish, they suture the skin and so forth, but the
bone - - since there’s a lot of stress - - when you pick things up, there’s a lot
of stress that goes to the chest, so they actually wire that together with stainless
steel wire, and it’s wrapped around the bone, and it’s twisted and just pressed
down.
In fact, this is a great tool for making positive identifications. I’ve used
it several times. We’ll have an unknown individual and a suspect, that we
have X-rays of the suspect, and he has these chest wires and you can see them.
There’s a series of these wires right down the bone. Now, since this is
random, as to how many times they twist this piece of wire and press it down,
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then you have a sequence of random shapes. It’s almost like a Social Security
number or something. And you can - - it’s just a great ID. You can match
those things up, the twists in the wire, the way they’re pressed down, one after
the other, all the way down, and get a positive ID of an individual. So I’ve
used - - I’ve seen this many, many times.
The parties stipulated that some of the items found in the Cremains were
sternum sutures, and that the two filaments and the metal stud were associated with a
pacemaker. When asked what that suggested to him, Dr. Berryman stated:
[T]hat would suggest that their chest had been open for some reason, and
again, I didn’t know the two filaments and the little wire that you called were
supposed to be the pacemaker, but if it is, then I would assume that we’re
dealing with someone that had heart problems.
Dr. Berryman concluded that the Cremains are human cremains. Dr.
Berryman, however, could not state whether the Cremains were Deceased, or were not. Dr.
Berryman testified:
And it was apparent to me when I looked in the [Tri-State] retort and I looked
at the floor that it would be very, very difficult to cremate one individual in
there, to remove the bones just from that one individual. Because the floor
was in such a terrible condition that it would be hard to remove one individual
without commingling or mixing the previous individual or three individuals
ago, that pieces of bone, teeth were left behind. Wire, others [sic] things may
have been left behind.
Dr. Berryman stated: “from what I know of Rondal Akers, I found things in those cremains
that didn’t belong in there.” When asked if a family who receives cremains has to rely upon
the integrity of the entity performing the cremation, Dr. Berryman agreed since it is not
possible to determine if cremains belong to a certain person. He stated: “I would have to
depend on someone telling me who’s in there.” Dr. Berryman’s opinion that the Cremains
are human is based upon his examination of the bone fragments found in the Cremains.
Dr. Berryman was asked if it were possible to determine whether a specific set
of cremains came from a specific individual, and he stated:
I don’t know of any way of determining the cremains themselves. And even
when you have a name tag in there, you rely on how accurate the person is who
put that piece of paper in there.… I could tell you there’s human bone in there,
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but as to whether it’s Mr. Akers or not I have no way of knowing if that’s Mr.
Akers.
When he looked at the floor of the Tri-State retort and realized what was going
on Dr. Berryman visited another crematorium, East Tennessee Crematorium Company (“East
Tennessee”), to watch a cremation and understand how it was being accomplished. He
stated: “I wanted to observe what they do when they cremate someone, step by step, just to
get a good understanding of how it’s done and the equipment that’s used and what the
expectations at a crematorium that really a quality crematorium, how they do things.”
Photographs of the Tri-State retort were introduced at trial. Dr. Berryman
examined the retort approximately one year after the GBI investigation. Dr. Berryman
explained that he excavated the retort floor and found bones, teeth, and metal from
cremations. He found 69 different items exposed on the floor that he was able to pick up
with his fingers. Dr. Berryman explained that the retort at East Tennessee had a very smooth
concrete floor. In contrast, the floor at Tri-State was “a sand-like material, basically, and as
far as how soft that material was - - this was supposed to be a concrete floor.” Dr. Berryman
also found raccoon footprints inside the retort and stated that even though the door was
closed and they had a problem getting it open, a raccoon had gotten into the retort.
Dr. Berryman further described the surface of the Tri-State retort stating: “if
you look at the surface, what the surface looked like, it’s a very undulating surface.” He
excavated the retort floor in layers and found “a lot of moisture … basically from body fat
over the years.” Dr. Berryman found a four inch bone partly burned away. He also found
such things as a metal bracket with four screws, a wood screw, rusty flakes of metal, and a
rusty tack. Dr. Berryman found over 100 staples in the Tri-State retort floor. When asked
further about the types of items he found in the Tri-State retort, Dr. Berryman testified:
There were quite a few bone fragments or pieces of bone, and some of
the bone I could recognize as thoracic vertebrae, transverse process, a phalanx
of the thumb, specifically, one of the bones from the thumb. So it went from
that to just bone fragments that I couldn’t identify. And then you also had
other items like the sternum wire was in there. We found evidence of hair in
there, unburned hair. Metal staples, we found quite a few metal staples. And
I think there was a stone, a little rock or something found in there or something
along that line.… I’m looking for - - a feather, did I mention feather? I found
a feather. I’m looking for buttons. Found a screw. I don’t see button listed.
There’s at least one row I can’t read down here. And I don’t recall if we did
find any.
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Dr. Berryman did not find any blue jean rivets in the retort.
Dr. Berryman described the tools that were used at Tri-State stating:
There are some tools that look - - I saw some when we were out there - - to
me, look very primitive. There’s one that’s like a handle that’s 8 feet long.
It’s like a hoe that was used.… And so it just seems like it would just be
difficult, considering what the floor looked like, to use those tools to get that
stuff out.
Dr. Berryman stated: “I examined two wood chippers that were associated with Tri-State, and
on both of those wood chippers I found material that is consistent with cremains. So the
assumption is that those were used in some fashion to pulverize bone.”
Dr. Berryman testified in detail about his visit to East Tennessee stating:
I went to see - - this was a quality operation, and so I wanted to go in and see,
start to finish, how they did cremations. And I wanted to look at the type of
equipment they used. In fact, it was a very good experience. They had two
retorts. One was a new one. One was, I believe, 25 years old, and it was
exactly the same as the one at Tri-State. It - - only it was in great shape. The
floor was really smooth. And you know, it just gave me a great opportunity to
see - - and in fact, while I was there, they cremated one individual in that
retort, so I got to see that operate. And again, they have doors on there, or
little windows, and you can look in and see what’s going on during the
cremation.
Photographs that Dr. Berryman took of the cremation he witnessed at East Tennessee were
introduced at trial. When asked what the purpose was of observing at East Tennessee in
relation to his excavation of the Tri-State retort, Dr. Berryman explained:
Again, I want - - back to protocol and how someone does something and the
shape of the floor, what kind of condition the floor is in in another retort, just
to get a range of comparison, one I know is doing an expert job, and then
compare that with Tri-State, which, obviously, had problems.
Dr. Berryman did not witness any commingling of other materials such as metal during the
cremation at East Tennessee. Dr. Berryman agreed that East Tennessee met the standards
for performing cremations contained in the Authorization that the Akers signed.
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When asked about the condition of the Tri-State retort floor after he finished
his excavation, Dr. Berryman stated:
I have some photographs of that, as well. When I go[t] through the material
I could brush away, the material that I could excavate with a trowel, and got
down to just what was left of the concrete - - I assume the original concrete,
it looked like it had been there for a long time, it was - - the surface was - - it
had pockets, it had fisher [sic] running through it, and some of the fishers [sic]
were 2 inches deep. It was just - - it was - - you know, it was just amazing, the
floor, it was in terrible shape.
Dr. Berryman introduced more photographs of the Tri-State retort and further explained:
I had taken - - I had taken this down - - again, all the way down to the material
I just couldn’t move with the trowel. It’s concrete, and I assume the original
concrete underneath all that. And you have these fishers [sic] that run across
this thing, and these - - like I said, some of these are like 2 inches deep. And
again, this goes back - - that’s the underlying surface, and there was, again,
material over that, sand or whatever that material was, a very - - a loose
material. And this just goes back to - - to emphasize, when I first looked in
that and I’m thinking, no wonder you get things mixed up. How can you
cremate one person in there and know that you removed all of that person and
no one else? And how can you - - after you do two or three in a row, how do
you know that you’re not incorporating things like - - for example, when I was
in there excavating, I found that sternal wire, an indication - - we talked about
today, there was [sic] two sternal wires in there. So how - - you know, that
sort of thing didn’t belong in this one, but how do I know it was not
accidentally incorporated into this one just in trying to clean out the remains -
- what remained from that cremation?
When asked his opinion of commingling at Tri-State, Dr. Berryman stated:
I think it - - even with your best attempts, I think, it would be very difficult to
remove cremains from one individual out of Tri-State retort without mixing
them with previous individuals.… It would be almost impossible. I don’t
know how one individual could clear that out, one individual out of there
without accidentally leaving part of that individual behind and also
accidentally incorporating other individuals, wires, metals, maybe, from a
previous cremation into that.
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GBI recovery efforts at Tri-State included, among other things, cutting down
and removing the trees and draining a lake on the property. In April of 2005 “everything [at
Tri-State] was being dozed down.” Some of the buildings had been removed and more bones
were found. Dr. Berryman testified that the few bones found represented two individuals,
but he did not believe either of those individuals was Deceased. After everything was
cleared out and GBI had released the site, Dr. Berryman and others did a line search looking
for surface remains or a grave that had been dug on the Tri-State property.
Dr. Berryman was asked about a specific photograph depicting human remains
found at Tri-State and he stated:
This represents burned remains. It indicates apparently there were some
cremations - - it looks like an attempted cremation.… It looks like a cremation
that was incompletely done or attempted and for some reason it did not
finish.… Let me also clarify if you will please, I’m looking at the bodies. The
assumption is that they’ve been in the retort and this is why they’re burned,
and we had deceased individuals that was [sic] sent there that may have died
in house fires and things like that. I want to make that distinction. I’ve gone
in this file to know what the conditions were in that regard. If these were from
the retort, if I can do that, then it looks to me like it was - - for some reason it
was not complete. The bodies were burned, but not completely burned.
Dr. Berryman also testified about a telephone survey that he and a colleague
conducted of several funeral homes in Tennessee and a few other states during which each
of the funeral homes surveyed was asked questions about the tools they use during a
cremation and whether commingling is an issue for them. The survey also asked for an
opinion about how cremains could become mixed. The responses to the survey, which were
introduced as exhibits at trial, stated answers to the question about how cremains become
mixed such as cremating more than one body at a time, carelessness, improperly cleaning of
the retort, and laziness or unethical and greedy behavior.
At trial, responses to interrogatories and requests for admissions propounded
to Marsh were read. In this discovery, Marsh invoked his Fifth Amendment privilege as to
a number of questions including whether the Tri-State retort was not operational in
November of 2001, and what happened to Deceased’s body. Marsh also invoked his Fifth
Amendment privilege in response to requests for admissions regarding whether Deceased’s
body was turned over to Marsh in November of 2001 for purposes of cremation, and whether
Marsh failed to properly dispose of the remains of Deceased’s body, among others.
Marsh was in prison in Georgia during the trial. Portions of Marsh’s
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videotaped deposition were played during the trial. With regard to Marsh’s invocation of his
Fifth Amendment privilege, the Trial Court instructed the jury that it may give the response
a negative inference, but was “not required to give the negative inference to a particular
answer …,” and that the negative inference could only be used where the Trial Court
instructed, otherwise the jury could give the response the weight the jury thought it was
entitled to. The Trial Court instructed that negative inference could be taken with regard to
questions about whether the Cremains were Deceased or not.
Portions of the videotaped deposition of Dawn Palmer were played at trial. Ms.
Palmer had been employed at the Funeral Home from April of 1996 through February of
2003 as a funeral director and embalmer. She is licensed in Tennessee and Georgia. Before
working at the Funeral Home, Ms. Palmer had worked at Woodlawn Funeral Home,
Chattanooga Funeral Home, and Lane Funeral Home.
Ms. Palmer had performed cremations at Lane Funeral Home. She described
the process of performing a cremation. When asked what she would do to ensure that she
got as much of the cremains out of the retort as possible, Ms. Palmer explained: “You would
- - the bottom of the retort had a very smooth, like a concrete finish almost, like a slick
concrete, and you brushed it until you could - - pretty much it was smooth again.”
Ms. Palmer explained that a metal medallion was put into the retort away from
the fire to keep track of who was being cremated. Ms. Palmer explained that the number
stayed with the body throughout the process to allow for identification. It was the funeral
home policy to do this. Ms. Palmer performed more than ten but less then thirty cremations
herself.
Ms. Palmer never visited Tri-State. When the Funeral Home would release a
body to Marsh, they would give Marsh the paperwork and tell him when they needed the
cremains back. Ms. Palmer stated that Marsh “was always very prompt and had it back the
next morning or whatever time we specified.” When asked if Deceased’s cremains were
returned to the Funeral Home, Ms. Palmer stated: “It’s my understanding he was.… Well,
his body has not been found, so I believe that the cremains that were brought back to us are
his cremains.”
Dr. Akers testified at trial. He and his wife had three children including
Deceased. Dr. Akers received a medical degree but chose to work as a chiropractor in
Bradley County beginning in 1976. In 1995, Dr. Akers was involved in a serious automobile
accident and, as a result, lost 75 or 80% of the use of his left hand and could no longer
practice as a chiropractor.
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Dr. Akers described Deceased stating:
My son was the gentlest, kindest human being of his generation that I knew.
Not once in high school did I have to go get my son out of trouble. Not once
that I know of him being in a fight. He was soft spoken, very much like his
mother. You will probably find out if she takes the stand. He was soft spoken,
very patient; he was a good man; he was a great son, a great boy, and he grew
into a good man. We had a good relationship.
Dr. Akers testified he was “appalled” when his son told him that he wished to
be cremated when he died. Dr. Akers stated: “It was not the way my family has done things.
I had nothing against it certainly. I honor anyone’s last wishes, but it was not our way. It
was not our way to be cremated. And my son had a specific desire to be cremated.” Dr.
Akers further stated: “We agreed to his wishes for the cremation, but we also wanted a
service. So we decided to go with a memorial service, embalming him for a memorial
service prior to cremation.” Dr. Akers testified that he expected to receive his son’s
unadulterated cremains “except for minute parts.”
Dr. Akers described how his son fell ill suddenly and died approximately three
weeks later after Dr. and Mrs. Akers made the difficult decision to take Deceased off life
support. Deceased was 34 years old when he died. At that time, Deceased was divorced but
making plans to be remarried, and had a twelve year old daughter. Dr. and Mrs. Akers chose
the Funeral Home in Cleveland, Tennessee for Deceased’s service. Dr. Akers testified that
when he and his wife signed the forms, the name for the crematorium was left blank. He
stated they never would have authorized the cremation there if they had been advised about
the conditions at Tri-State.
Dr. Akers testified that Deceased was wearing a kilt and other Scottish regalia
for the memorial service. The kilt and regalia were returned to the Akers and Deceased was
wearing a shirt and underwear when he went to the crematorium. When asked if Deceased
was wearing blue jeans, Dr. Akers stated: “No. My son was a big man, and blue jeans, he
wasn’t comfortable in blue jeans.” Deceased never had any heart problems or surgeries other
than a hernia repair when he was a young child.
After Dr. Akers turned the Cremains over the to GBI and returned home:
It was a little strange. My wife didn’t understand what was going on. We’re
simple people, and we didn’t understand what was going on, and we didn’t
understand why, all of a sudden - - you know, we didn’t understand why our
son died at age 33 - - 34. And now we didn’t understand why all this was
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happening. Quite frankly, we seemed to lack the ability to communicate at that
time. I felt as if I was at fault for some reason. I can’t tell you why, but I felt
like I was at fault for all of this, and I don’t know, I felt that my wife would
have to blame me. But she didn’t - - she wasn’t very communicative with me.
She didn’t really want to talk. The relationship was strained from that
moment.
Dr. Akers testified: “I still want my son’s body back. That’s the ultimate. I
want my son’s body back.” Dr. Akers stated that he is resigned to the fact that he will never
get Deceased’s body back. When asked if it would give him any comfort to know that
Deceased’s body had been cremated, Dr. Akers stated:
Goodness, no. My goodness, no. To place my son’s body into that - - if, in
deed [sic], he had been placed in that, that retort, that crematory, placing him
amongst the filth, it’s unspeakable that anyone would run an operation with a
retort so filthy. The witnesses have testified that there was a layer of lamina,
I think is what Dr. Berryman described. Lamina, layers of human remains
built up, and to think that my first born, my son was placed in there, or could
have possibly been placed in there, no, gave me absolutely no comfort
whatsoever.
Dr. Akers stated: “The man who is in charge, the man who can answer the question [about
whether the cremains are those of Deceased], refuses to. I don’t know how comforting that
can be.”
When asked if he felt a responsibility to the person whose cremains are in the
box, Dr. Akers stated:
Do I have a responsibility to this individual or individuals? Yes. Yes, because
when this is over with, there’s a good possibility they’ll be returned to me.
These are unknown to me. I can tell you, I could never treat them, inter them
or treat them as if they were my son. I could never do that in light of the
evidence that’s been presented here. The crematory, their operations, their
lack of records, the - - I’m sorry, unholy way in which human beings were
treated. No, it - - I feel a responsibility to see that this individual gets an
honorable disposition. I can never treat these as my son.
When asked what emotional impact the situation has had on him, Dr. Akers
stated:
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I guess the word that comes to mind for someone who has lived his life trying
to be proactive in my life, to be responsible for the things I do, confusion
would be a good word. I - - confusion and anguish, anxiety. You know, I
couldn’t get it off my mind. I couldn’t sleep, and I had nightmares.
Dr. Akers described his recurring nightmares which included one in which he
was walking through a field of dead bodies looking for his son and feeling frustrated and
another in which his wife is asking him where their son is and he cannot answer. Dr. Akers
also has cried, which he stated is not like him. Dr. Akers testified that he still has nightmares
and still cries. Dr. Akers also described how the situation has made him very angry with no
resolution. Dr. Akers stated that he was “outraged” when he saw Marsh’s deposition and
Marsh’s refusal to answer the questions. Dr. Akers stated that the memory of seeing Marsh’s
deposition will stay with him, and further stated: “Seeing his face on that screen is a memory
that will live with me forever. I didn’t live my life like that, not taking responsibility for your
own actions.”
Dr. Akers also testified about the impact the situation has had on his marriage
stating:
It had a nearly fatal - - by that, I mean terminal effect on my marriage. I didn’t
have anything to say to my wife. I couldn’t answer her as to where our son’s
body was. We didn’t know where to start talking. We’ve been married 44
years as of this past March, but up until then, it was 30-something years, and
we had always - - our marriage had always been based on communications,
and between mid - - early 2002 until late 2004, neither one of us wanted it this
way. We stayed together, we lived together, but we did not communicate. It
was as if there was a wall between us of questions that we couldn’t answer.
I didn’t know whether she held me responsible for the things that had
happened. I certainly didn’t hold her responsible, yet I was remiss in that I
didn’t pursue further to get her feelings, and she didn’t pursue further to get
my feelings. We drifted apart for a better part of two years, and the marriage
came that close (indicating) to failing.
Dr. Akers admitted that he had an extra-marital affair during that time
beginning around April or May of 2002 and lasting for approximately two years. Dr. Akers
stated:
And this individual [whom I was working with on a video production] became
close to me and, unfortunately, because of the situation at home and the lack
of communications, things happened in that relationship that I am so, so sad
-17-
about, that shouldn’t have happened. A relationship developed that shouldn’t
have developed. It was just like watching someone else.
Dr. Akers confessed the affair to his wife, and she has forgiven him.
Dr. Akers testified that he has suffered from depression. He admitted that he
had some depression ever since he lost his ability to practice as a chiropractor, and he
experienced depression upon the death of his son. Dr. Akers testified, however, that the
depression associated with the situation surrounding Tri-State was different. Dr. Akers
stated:
Totally different. Totally different. It was more of a personal nature. Yes, I
was depressed to a certain extent over losing my profession. As I indicated
earlier, that was my identity, that’s what I do, I’m a chiropractor. I even went
to medical school to get a degree, came back, I was still drawn to chiropractic.
That’s how I identified myself, how I identify myself to this day. And that was
taken from me by a traffic accident. And yes, there was some depression
associated with going from a 12-hour-a-day professional who really felt that
I was doing good in the community, to somebody who couldn’t.… [But the
Tri-State situation was] [s]omething I couldn’t do anything about. An open
sore, so to speak. Nothing seemed to help. Nothing seemed to help the fact
that I did not believe this was my son. My wife did not believe this was my
son.
Dr. Akers saw a psychiatrist, Dr. Robert Tucker Spalding, for his depression.
Portions of the videotaped deposition of Dr. Spalding were played at trial. Dr. Akers began
seeing Dr. Spalding in October of 2004, and had last seen him only a month prior to trial.
Dr. Spalding had prescribed antidepressants to Dr. Akers in addition to the talk therapy they
were doing.
When asked about how much the mystery and confusion centered around the
attempts to locate Deceased’s body may have contributed to Dr. Akers’s depression, Dr.
Spalding testified:
I think I used an analogy that you put so much weight on - - one of these
balance scales and it tips, and you can’t tell exactly what was the thing that
tipped it. He was very depressed about his son’s death, and then the frustration
of locating the body, being given - - told a body was his son’s, which was not,
added to the frustration, in terms of teasing out what percentage, there’s no
way that I could do that outside of saying it was another factor, another weight
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on the scale that tipped him toward depression.
When asked, Dr. Akers testified that he could not put a value on his son’s body,
but it is priceless to him. Dr. Akers described how he likes to visit the graves of other
relatives and finds that comforting. Dr. Akers further stated:
I like to go through life thinking that the world is good and there is bad in the
world - - bad in the whole world. My belief has been altered significantly now
to know that there are people who expect me - - who expect me, in this world,
to believe that these are my son’s cremains, and yet they won’t stand up and
tell me they are. The very person who can tell me won’t tell me. That’s - - it
has shaded my opinion of the world, and it’s opened a dark place inside of me
that I don’t know if it will heal.
Mrs. Akers testified at trial. She was 64 years old at the time of trial. When
asked if Deceased was wearing blue jeans when he was sent to Tri-State, Mrs. Akers stated:
“No. He hardly ever wore blue jeans because he was big. I think he had one pair he had a
few years before he died that he got at the Big & Tall Men’s Shop. That’s about the only
place he could find pants that would fit him.”
Mrs. Akers explained that she picked up the Cremains from the Wildwood
branch of the Funeral Home. She did not know why the Cremains were at the Wildwood
branch when she and her husband had been dealing with the Ocoee branch of the Funeral
Home, and when she asked, the Funeral Home had no explanation.
Mrs. Akers testified about her emotional condition when she first learned about
Tri-State stating:
It was all hard to deal with. Not only having him cremated, it was hard to do
that, and then dealing with this hearing stories about all the bodies they found
just thrown like garbage, my son being treated like a bag of garbage. I
couldn’t deal with it.… It affected everything. I shut down. I admit I couldn’t
talk to [my husband] about it. I withdrew. I didn’t talk to family. The only
thing I could do to get away from it was at work. I could go to work, I could
stay busy, that was my therapy.
When asked if she cried, Mrs. Akers stated:
All the time. I’m not a crying person. My parents taught me to deal with your
problems, don’t cry in public. They were very proud people. If you had to
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mourn, mourn in private, and this has made me cry in front of people.… That
hurts, too, because I can’t deal with it, and I’ve always been able to handle
things.
Mrs. Akers testified that she has had: “A lot of nightmares. I can’t sleep
anymore. I still wake up early and I’ve just seen horrible things. I’m trying to find my son.
I don’t know where he is.” Mrs. Akers was asked about her feelings when she saw the
videotape of Marsh’s deposition when he invoked his Fifth Amendment privilege, and she
stated: “If he had of been really sorry he would have told us what he did with him, wherever
he threw his body, whatever horrible thing he did to him, he would have told us, and he
didn’t, he took the Fifth.”
Mrs. Akers was asked about the problems that developed between her and her
husband and she stated:
Looking back I don’t know if I could have handled it any different. I stopped
talking to him. I didn’t want to be in the house. I worked all the time. I would
get to bed and I would wake up in [sic] 3:00 in the morning and I would go to
work. I just wanted to be by myself and just work as hard as I could to keep
my mind off of it. I would stay late. I worked through lunch. I didn’t want
to go out with the girls anymore. I didn’t want them talking to me. I didn’t
want to answer questions. I quit talking to them. I just quit talking to him. He
even asked me why don’t I talk about it and I said no.
When asked if having the Cremains comforts her, Mrs. Akers stated: “No. I
don’t know who those people are. I looked at it through this trial while it was sitting up here
and I feel so bad for all the other families that this may be theirs, this may be husbands and
wives, who knows.” Mrs. Akers feels a responsibility to the Cremains “because those
mixtures or whatever belong to somebody,” and they deserve respect. When asked if she had
suffered serious emotional injuries, Mrs. Akers stated: “I don’t think I’ll ever get over this.”
Howard Martin Stinnett a close friend of the Akers for many years testified.
Mr. Stinnett was asked about what he has observed in terms of the impact that the situation
has had on the Akers and he stated:
It’s really been devastating to them. They have two other children that are still
alive. They seem to be doing well. But Ron has never been the same man that
he was prior to this. He is a good man, but he and Lucinda neither one have
ever softened their pain. It’s still there just like it just happened.
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After the trial and their deliberations, the jury completed its verdict form
finding that Marsh intentionally inflicted emotional distress upon the Akers, that Marsh
violated the Tennessee Consumer Protection Act, and that Marsh violated a bailment
responsibility he had to the Akers. The jury found that Dr. Akers had damages in the amount
of $275,000, and that Mrs. Akers had damages in the amount of $475,000. The Trial Court
entered a Final Judgment upon the jury verdict on May 5, 2009.
Marsh filed a motion for new trial or for judgment notwithstanding the verdict.
The Akers filed a motion seeking treble damages and attorney’s fees under the Tennessee
Consumer Protection Act. After a hearing, the Trial Court granted Marsh a partial judgment
notwithstanding the verdict dismissing the claims under the Tennessee Consumer Protection
Act and bailment, denied the Akers’ motion seeking treble damages and attorney’s fees,
affirmed the judgment as to intentional infliction of emotional distress, and denied Marsh’s
motion for a new trial. Marsh appeals to this Court.
Discussion
Marsh raises numerous issues on appeal which we consolidate and restate as
follows: 1) whether the Trial Court erred in charging the jury that they may take a negative
inference from Marsh’s invocation of his Fifth Amendment privilege; 2) whether the Trial
Court erred in admitting photographic and video evidence of the mishandling of bodies other
than that of Deceased; 3) whether the Akers proved intentional infliction of emotional
distress; 4) whether the outrageous conduct jury instruction utilized by the Trial Court and
the jury verdict form were invalid or improper; and, 5) whether the Trial Court erred in
allowing comments about Marsh’s unlimited resources to be made during closing argument.
The Akers raise an issue regarding whether the Trial Court erred in granting Marsh’s motion
for judgment notwithstanding the verdict with regard to the Tennessee Consumer Protection
Act claim and the breach of bailment claim.
We first consider whether the Trial Court erred in charging the jury that they
may take a negative inference from Marsh’s invocation of his Fifth Amendment privilege.
In his brief on appeal, Marsh makes two arguments with regard to his invocation of the Fifth
Amendment privilege. First, Marsh argues that a negative inference may not be used to
prove a case without corroborating evidence. Second, Marsh argues that the Trial Court
erred in permitting the Akers to read questions and answers from Marsh’s deposition to the
jury wherein Marsh asserted his Fifth Amendment privilege, but the Trial Court did not
instruct the jury that they may take a negative inference.
With regard to the first of his arguments, Marsh asserts that it was improper
to allow the use of a negative inference from Marsh’s invocation of his Fifth Amendment
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privilege without producing any corroborating evidence of their claims that the body of
Deceased was mishandled. As this Court has stated:
The United States Supreme Court has determined that there is no constitutional
impediment to drawing an inference against a party invoking his or her Fifth
Amendment privilege in a civil case. Baxter v. Palmigiano, 425 U.S. 308,
318, 96 S. Ct. 1551, 1558, 47 L. Ed. 2d 810 (1976); Robert Heidt, The
Conjurer’s Circle - The Fifth Amendment Privilege in Civil Cases, 91 Yale
L.J. 1062, 1110-12 (1982). Accordingly, the majority of jurisdictions,
including Tennessee, permit fact-finders to draw adverse inferences against
parties who invoke their Fifth Amendment rights in [a] civil case. See Rachels
v. Steele, 633 S.W.2d 473, 476 (Tenn. Ct. App. 1981); VIII John H. Wigmore,
Evidence § 2272, at 439 (McNaughton rev. 1961).
Levine v. March, 266 S.W.3d 426, 442 (Tenn. Ct. App. 2007). More recently, this Court
stated:
In interpreting [Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed.
2d 810 (1976)], lower courts have uniformly held that the gravamen of the
Baxter case is that such adverse inference can only be drawn when
independent evidence exists concerning the fact that the party refuses to
answer. See, e.g., LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 391 (7th
Cir. 1995); Peiffer v. Lebanon Sch. Dist., 848 F.2d 44, 46 (3d. Cir. 1988). An
adverse inference may be drawn when silence is countered by independent
evidence of the fact being; however, that inference cannot be drawn when, for
example, silence is the only answer to the allegation contained in the
complaint. See Nat’l Acceptance Co. v. Bathalter, 705 F.2d 924, 930 (7th Cir.
1983). 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. LaSalle Bank, 54 F.3d at 391.
Steppach v. Thomas, No. W2010-00606-COA-R3-CV, 2011 Tenn. App. LEXIS 91, at **88-
89 (Tenn. Ct. App. Feb. 28, 2011), Rule 11 appl. perm. appeal denied July 15, 2011.
The Akers did present other corroborating evidence that would tend to show
that the body of Deceased was mishandled and not properly cremated. For instance, the
Akers presented evidence of the manner in which Marsh was treating other bodies during the
same time period in which Deceased’s body was transported to Tri-State. This evidence was
both in the form of testimony given by Agent Ramey and Dr. Berryman, and in the form of
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photographs and video showing the Tri-State property and the mishandled bodies.
The Akers also presented evidence of the fact that Marsh pled guilty to the
felony of criminal simulation with regard to Deceased’s body. Marsh argues in his brief on
appeal that “[a]lthough a guilty plea can be used as evidence in a civil trial on liability, it is
not conclusive evidence.” Marsh relies upon Grange Mut. Cas. Co. v. Walker, 652 S.W.2d
908 (Tenn. Ct. App. 1983) for this proposition. In Grange Mut. Cas. Co., this Court actually
stated:
A plea of guilty, however, is generally not conclusive on the issues in a
subsequent civil action, Patrons-Oxford Mut. Ins. Co. v. Dodge, 426 A.2d 888(Me.1981); Kickasola v. Jim Wallace Oil Co., 144 Ga.App. 758, 242 S.E.2d
483 (1978), but is competent evidence as an admission against interest. State
Farm Mutual Auto. Ins. Co. v. Worthington, 405 F.2d 683 (8th Cir.1968);
Boshnack v. World Wide Rent-a-Car, Inc., 195 So. 2d 216 (Fla.1967);
Tietelbaum Furs, Inc., supra; McDaniel v. Textile Workers Union of America,
36 Tenn.App. 236, 254 S.W.2d 1 (1952); Paine, Tennessee Law of Evidence,
§§ 13 and 55 (1974); and cases cited in 18 A.L.R. 1287, at 1311 and
supplements.
Grange Mut. Cas. Co. v. Walker, 652 S.W.2d 908, 910 (Tenn. Ct. App. 1983). Marsh’s
guilty plea constitutes competent evidence as an admission against interest, and makes it
more likely than not that Marsh mishandled Deceased’s body.
Marsh argues in his brief on appeal that evidence of a guilty plea is not
conclusive evidence in a civil trial and that a defendant may present an explanation as to why
he entered into the guilty plea. Marsh further argues that his guilty plea should not be
considered because at the time that he entered into the plea, the Akers thought that they had
been given potting soil and not human cremains. Marsh argues that “[t]he guilty plea was
also inappropriate as evidence of liability because it was based on information later proved
to be false.” We note, however, that Marsh is the only person who knows what happened to
Deceased’s body, that Marsh possessed this information before entering into the guilty plea,
and that Marsh freely pled guilty to the felony of criminal simulation with regard to
Deceased’s body. As Marsh himself, however, provided no explanation whatsoever as to
why he entered into the guilty plea, and instead has chosen to consistently invoke his Fifth
Amendment privilege, this argument is immaterial. We find this argument to be without
merit.
Given all of the above, we find, contrary to Marsh’s assertion, that the Akers
did provide corroborating evidence that makes it more likely than not that Marsh mishandled
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Deceased’s body and failed to properly cremate it. As such, we find no error in the Trial
Court’s charge to the jury that it may give a negative inference to Marsh’s invocation of his
Fifth Amendment privilege.
Marsh’s second argument concerns questions and answers from Marsh’s
deposition to which “no negative inference applied” and which were read to the jury without
the Trial Court instructing the jury that they may take a negative inference. Pursuant to
Tenn. R. Civ. P. 32.01 (2): “The deposition of a party … may be used by an adverse party for
any purpose.” Tenn. R. Civ. P. 32.01 (2). This rule could not be any clearer. The Akers
were free to use Marsh’s deposition “for any purpose” not prohibited by case law or the
Rules of Evidence. From our independent review of these questions and answers, we find
absolutely nothing in the record to support Marsh’s argument that the reading of these
questions and answers in any way mislead the jury. We believe the Trial Court’s instructions
were adequate, and we find no error by the Trial Court relative to this issue. Further, even
if it was error, it was harmless error as our considering the record as a whole shows that it
did not “more probably than not [affect] the judgment or ... result in prejudice to the judicial
process.” Tenn. R. App. P. 36 (b).
We next consider whether the Trial Court erred in admitting photographic and
video evidence of the mishandling of bodies other than that of Deceased. “The appellate
court affords the trial court wide discretion regarding the admissibility of evidence and will
not overturn the trial court's determination absent an abuse of that discretion.” Goodale v.
Langenberg, 243 S.W.3d 575, 587 (Tenn. Ct. App. 2007).
As pertinent to this issue, Tenn. R. Evid. 401 provides:
Rule 401. Definition of “relevant evidence.” – “Relevant evidence” means
evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.
Tenn. R. Evid. 401. Tennessee Rule of Evidence 403 provides:
Rule 403. Exclusion of relevant evidence on grounds of prejudice,
confusion, or waste of time. – Although relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative
evidence.
-24-
Tenn. R. Evid. 403. As this Court noted in Goodale:
Additionally, we have observed that the plain language of the rules "strongly
suggests" that when the balance between the evidence's probative value and
any prejudicial effect is close, the evidence should be admitted. Id. at 21
(citing Neil P. Cohen, et al., Tennessee Law of Evidence § 403.3, at 152 (3d
ed. 1995)). Therefore, excluding relevant evidence under rule 403 “is an
extraordinary step that should be used sparingly.” Id.
Goodale, 243 S.W.3d at 587.
In his brief on appeal, Marsh states that the: “Evidence necessary to the
determination of the issues in this case is (1) evidence that indicates it is more or less likely
that the Akers’ son was cremated and (2) evidence that indicates it is more or less probable
that Plaintiffs were returned the cremated remains of their son.” Marsh argues that
photographs and the videotape that show other bodies do not show that it was more or less
likely that Deceased was cremated or that his body was mishandled, and, therefore, those
images were irrelevant. We disagree.
First, Marsh has mis-characterized the evidence necessary to the determination
of the issues in the case. The relevant evidence is evidence that shows that it is more or less
likely that Deceased’s body was mishandled and not properly cremated. As Marsh invoked
his Fifth Amendment privilege with regard to questions about Deceased’s body, and there
is no direct evidence as to what happened to Deceased’s body, the photographs that show
how Marsh was treating bodies at Tri-State are relevant and tend to show that it is more
likely that Deceased’s body was mishandled.
Furthermore, even if Deceased’s body were cremated at Tri-State, the evidence
shows, as discussed more fully below, that the cremation was not done properly in
accordance with industry standards and the authorization given by the Akers. The
photographs and video of other bodies found at Tri-State show that it was more likely that
Deceased’s body was mishandled and, even if it were cremated, was not properly cremated.
Marsh also argues that the evidence of other bodies should have been excluded
because of the danger of unfair prejudice. Marsh argues in his brief on appeal that “the only
purpose the photographs and video served was to inflame the jury and prejudice them against
Marsh,” and that “[t]he admission of images of dead bodies likely disturbed the jury and
caused an emotional response which was not the proper basis for determining the material
issues of fact.” While we agree that the photographs and videotape are disturbing, we do not
agree that the only purpose for their admission was to inflame the jury and prejudice them
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against Marsh. As we discussed above, these images are relevant to the issues that were
before the jury and, since Marsh invoked his Fifth Amendment privilege, were relevant to
show that it was more likely than not that Deceased’s body was mishandled and not properly
cremated. Furthermore, the photographs and videotape were relevant to show the outrageous
nature of Marsh’s actions as to Deceased’s body, which the Akers had to prove in order to
recover for intentional infliction of emotional distress.
Marsh also argues that admission of the photographs was inappropriate because
they “were used to suggest harm was done to the bodies.” Marsh argues: “Decay is a natural
process, but the numerous photographs of decaying bodies combined with the Akers’
attorney’s argument that the body of the Akers’ son could have been mutilated, confuse the
natural process with an injury done to the bodies.” What Marsh has failed to acknowledge
in this argument is that the photographs show that these bodies were handled inappropriately
and left to decay in inappropriate places. The photographs do not simply depict the natural
process of decay, they depict the manner in which the bodies were mishandled, and the fact
that these bodies were allowed to decay in wholly inappropriate places and ways. We find
no abuse of discretion in the Trial Court’s admission of the photographs and the videotape.
We next consider whether the Akers proved intentional infliction of emotional
distress. As our Supreme Court has instructed:
An appellate court shall only set aside findings of fact by a jury in a
civil matter if there is no material evidence to support the jury’s verdict. Tenn.
R. App. P. 13(d); Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn. 2006). In
determining whether there is material evidence to support a verdict, we shall:
“(1) take the strongest legitimate view of all the evidence in favor of the
verdict; (2) assume the truth of all evidence that supports the verdict; (3) allow
all reasonable inferences to sustain the verdict; and (4) discard all
[countervailing] evidence.” Barnes v. Goodyear Tire & Rubber Co., 48
S.W.3d 698, 704 (Tenn. 2000) (citing Crabtree Masonry Co. v. C & R Constr.,
Inc., 575 S.W.2d 4, 5 (Tenn 1978)). “Appellate courts shall neither reweigh
the evidence nor decide where the preponderance of the evidence lies.”
Barnes, 48 S.W.3d at 704. If there is any material evidence to support the
verdict, we must affirm it; otherwise, the parties would be deprived of their
constitutional right to trial by jury. Crabtree Masonry Co., 575 S.W.2d at 5.
Creech v. Addington, 281 S.W.3d 363, 372 (Tenn. 2009).
With regard to intentional infliction of emotional distress, or outrageous
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conduct3 , there are three essential elements to this cause of action: “(1) the conduct
complained of must be intentional or reckless; (2) the conduct must be so outrageous that it
is not tolerated by civilized society; and (3) the conduct complained of must result in serious
mental injury.” Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). As discussed by the Bain
Court, this is not an easy burden to meet. Id. According to Bain:
[T]his Court has adopted and applied the high threshold standard described in
the Restatement (Second) of Torts as follows:
The cases thus far decided have found liability only where the
defendant's conduct has been extreme and outrageous. It has not
been enough that the defendant has acted with an intent which
is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been
characterized by 'malice,' or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all bounds of decency, and to be regarded as atrocious
and utterly intolerable in a civilized community. Generally, the
case is one in which the recitation of the facts to an average
member of the community would arouse his resentment against
the actor, and lead him to exclaim, 'Outrageous.'
Bain, 936 S.W.2d at 622-23.
With regard to the third necessary element of intentional infliction of emotional
distress, this Court has noted that:
[S]erious mental injury is that in which “‘the distress is so severe that no
reasonable [person] could be expected to endure it.’” [Miller v. Willbanks, 8
S.W.3d 607, 615 n.4 (Tenn. 1999)] (quoting Restatement (Second) of Torts §
46 cmt. j (1965)). In Miller v. Willbanks, the Tennessee Supreme Court
recognized that a plaintiff may establish such emotional harm by several
means, such as through the plaintiff’s own testimony, lay witness testimony of
the plaintiff’s acquaintances, physical manifestations of emotional distress,
3
“Intentional infliction of emotional distress and outrageous conduct are not two separate torts, but
are simply different names for the same cause of action.” Bain v. Wells, 936 S.W.2d 618, 622 n.3 (Tenn.
1997).
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evidence of nightmares, insomnia and depression, proof of psychiatric
treatment, or evidence of the mental distress’ intensity and duration. Id. at
615.
Levy v. Franks, 159 S.W.3d 66, 85 (Tenn. Ct. App. 2004). In Miller v. Willbanks, our
Supreme Court emphasized:
Although the plaintiff is generally not required to present expert testimony to
validate the existence or severity of a mental injury, we emphasize that the
evidence must establish that the plaintiff’s mental injury is serious or severe.
It is only where [the mental injury] is extreme that the liability
arises. Complete emotional tranquility is seldom attainable in
this world, and some degree of transient and trivial emotional
distress is a part of the price of living among people. The law
intervenes only where the distress is so severe that no reasonable
[person] could be expected to endure it.
Miller v. Willbanks, 8 S.W.3d 607, 615 n.4 (Tenn. 1999) (quoting Restatement (Second) of
Torts § 46 cmt. j (1965)). Our Supreme Court also has instructed: “A person acts
intentionally when it is the person’s conscious objective or desire to engage in the conduct
or cause the result.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992).
Marsh argues that the Akers failed to prove that the conduct complained of was
intentional. We disagree. The proof in the record on appeal shows that Marsh pled guilty
to the felony of criminal simulation with regard to Deceased’s body. The proof also shows
the horrible manner in which Marsh treated the bodies entrusted to Tri-State for cremation.
The proof shows that Marsh was routinely not cremating bodies, but was instead improperly
burying or dumping them. The proof also clearly shows that even when Marsh did cremate
a body the cremation was not done in accordance with industry standards and the
authorization given by Dr. and Mrs. Akers. Even if Deceased were cremated, the proof
shows that the cremation was done in a wholly inappropriate manner, using a disgustingly
filthy retort and improper tools, which could only result in substantial commingling with the
cremains of other previously cremated bodies. This fact was clearly shown by the testimony
of Dr. Berryman when he described how a cremation is performed at a quality crematorium,
and the condition of the Tri-State retort, and by the testimony of Ms. Palmer who also
described how a proper cremation is performed. In addition, the answers to the survey of
several other funeral homes done by Dr. Berryman and his colleague show that anything
other than minimal commingling of cremains is most probably the result of improper
procedures, sloppy work, or deliberate malfeasance. The proof in the record shows that
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material evidence was produced that Marsh acted with the intent to engage in the conduct of
mishandling Deceased’s body and failing to properly cremate Deceased’s body.
As for the second element of intentional infliction of emotional distress, i.e.,
the conduct must be so outrageous that it is not tolerated by civilized society, the record is
replete with evidence that Marsh’s conduct was so outrageous as to not be tolerated by
society. Agent Ramey and Dr. Berryman both testified extensively about the horrendous
conditions at Tri-State, and numerous photographs and a videotape were introduced at trial
clearly depicting these conditions. In addition, Dr. Berryman and Ms. Palmer both testified
as to how a cremation is conducted at a facility where bodies are being cremated properly,
or what Dr. Berryman described as a “quality crematorium.” Thus, ample evidence was
produced to the jury showing that Marsh’s conduct was a far cry from what is normal in the
operation of a crematorium. We do not think that any reasonable juror presented with the
evidence in the record now before us would fail to find that Marsh’s conduct was extremely
outrageous.
Marsh also argues that the Akers did not prove that his conduct resulted in
serious mental injury. We disagree. Both Dr. and Mrs. Akers testified in detail how the
situation at Tri-State involving Deceased has had a serious effect upon them mentally and
emotionally. Mr. Stinnett, a close friend of the Akers, testified that the Tri-State situation
involving Deceased has had a “devastating” effect upon the Akers. In addition, Dr. Spalding,
who treated Dr. Akers, testified how the situation surrounding Tri-State involving Deceased
added another stressor that tipped the scales toward depression.
Marsh argues that Dr. Akers’s depression was a pre-existing condition not
caused by Marsh’s conduct and the Tri-State situation, and therefore, the Akers did not prove
damages. We disagree.
As this Court stated in Emert v. City of Knoxville:
A tortfeasor is liable for all injuries proximately caused to a plaintiff.
When the plaintiff has a pre-existing medical condition, “the defendant is
responsible for all ill effects which naturally and necessarily follow the injury
in the condition of health in which the plaintiff was at the time of the [injury].”
Elrod v. Town of Franklin, 140 Tenn. 228, 240, 204 S.W. 298, 301 (1917).
Thus, it has long been the law that a tortfeasor “must accept the injured person
as he finds him,” in that the tortfeasor is liable for the injury or harm actually
caused by or which is the natural consequence of the tortfeasor’s negligence
whether the plaintiff was “weak or strong, healthy or sick” before the accident.
Id.
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Emert v. City of Knoxville, No. E2003-01081- COA-R3-CV, 2003 Tenn. App. LEXIS 813,
at **9-10 (Tenn. Ct. App. Nov. 20, 2003), no appl. perm. appeal filed.
The record contains material evidence upon which the jury based its decision that the Akers
proved severe emotional damages.
Taking the strongest legitimate view of all the evidence in favor of the verdict,
assuming the truth of all evidence that supports it, allowing all reasonable inferences to
sustain the verdict, and discarding all countervailing evidence, as we must, we find that there
is material evidence in the record sufficient to support the jury’s verdict that Marsh
intentionally inflicted emotional distress upon the Akers.
Next, we consider whether the outrageous conduct jury instruction utilized by
the Trial Court and the jury verdict form were invalid or improper. As this Court explained
in Goodale v. Langenberg:
The trial court's instructions guide the jury in its deliberations. The
instructions must be plain and understandable, and must inform the jury of
each applicable legal principle. Wielgus v. Dover Indus., 39 S.W.3d 124, 131
(Tenn. Ct. App. 2001). They must also reflect the theories that are supported
by the parties' pleadings and proof, as well as the parties' claims and defenses.
Cole v. Woods, 548 S.W.2d 640, 642 (Tenn. 1977). Jury instructions must be
correct and fair as a whole, although they do not have to be perfect in every
detail. Wielgus, 39 S.W.3d at 131. Upon review, we read a trial court's
instructions to the jury in their entirety and in context of the entire charge. See
id. Additionally, where the trial court's instructions clearly and definitely set
forth the elements upon which liability must be based, the failure to recite each
element in the verdict form will not render the verdict invalid. State v.
Faulkner, 154 S.W.3d 48, 62 (Tenn. 2005).
Goodale v. Langenberg, 243 S.W.3d 575, 584 (Tenn. Ct. App. 2007).
Marsh argues that the Trial Court erred in charging the jury using the pattern
jury instruction for intentional infliction of emotional distress because Marsh asserts that the
law has changed in this area as a result of our Supreme Court’s Opinion in Doe v. Roman
Catholic Diocese of Nashville, 154 S.W.3d 22 (Tenn. 2005). We disagree with Marsh’s
assertion that the law has changed with regard to intentional infliction of emotional distress.
Doe v. Roman Catholic Diocese of Nashville dealt with the elements of reckless infliction
of emotional distress and specifically stated that the Doe Court was expressing no opinion
concerning the elements of claims of intentional infliction of emotional distress. Doe v.
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Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 39 n.29 (Tenn. 2005).
Marsh urges this Court to express a change in the law with regard to the
elements of intentional infliction of emotional distress commensurate with the Supreme
Court’s pronouncement in Doe v. Roman Catholic Diocese of Nashville. Unfortunately for
Marsh, it is not the role of this Court to change the law. Rather it is the role of this Court to
interpret and apply the law as it exists. The law as it exists with regard to intentional
infliction of emotional distress is fully discussed and applied above. Marsh’s argument is
better addressed to our Supreme Court or our General Assembly.
Furthermore, Marsh admits in his brief on appeal that the instruction given to
the jury concerning recklessness was “unnecessary,” and that “[t]he facts presented during
the trial pointed to a theory of intentional infliction of emotional distress.” We agree. The
word “reckless” in the instructions was mere surplusage, which caused no harm. The
instructions as a whole were plain and understandable and informed the jury of each
applicable legal principle.
Marsh also argues on appeal that the jury verdict form was improper because
it did not provide separate spaces for damages for the different claims, but rather just
provided one space for all damages. Marsh did not raise this issue below. The law in
Tennessee is well settled that issues not raised in the trial court may not be raised on appeal.
E.g., In re: The Guardianship of R.D.M., 306 S.W.3d 731, 736 (Tenn. Ct. App. 2009). This
issue is without merit.
Marsh also argues that the jury verdict form was confusing for the jury as it
contained the phrase “outrageous conduct” in addition to the phrase “intentional infliction
of emotional distress.” As we mentioned above, outrageous conduct is simply another name
for the tort of intentional infliction of emotional distress. As such, we fail to see how
utilizing both phrases could have confused anyone. We find no error in the Trial Court’s use
of the pattern jury instruction for intentional infliction of emotional distress, or in the use of
the jury verdict form.
Next, we consider whether the Trial Court erred in allowing comments about
Marsh’s unlimited resources to be made during closing argument As this Court stated in
McCall v. Bennett:
[A]n issue regarding the propriety of statements made by opposing counsel
during closing argument is waived if raised for the first time in a motion for
new trial. "The law is well-settled in this state that '[a]n objection to the
remarks or conduct of counsel must be made at the trial and a ruling had
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thereon, or they will not be considered on appeal.'" Id. (quoting Lee v. Lee,
719 S.W.2d 295, 299 (Tenn. Ct. App. 1986)). See also Marress v. Carolina
Direct Furniture, 785 S.W.2d 121, 126 (Tenn. Ct. App. 1989).
McCall v. Bennett, 243 S.W.3d 570, 573 (Tenn. Ct. App. 2007).
While Marsh did not wait until filing his motion for new trial to raise an
objection to the comments made during opposing counsel’s argument, he did wait until after
the jury had retired to deliberate before making the objection. We do not find this to be a
“contemporaneous objection” to counsel’s statements. See State v. Armstrong, 256 S.W.3d
243, 249 (Tenn. Crim. App. 2008) (stating “typically when a prosecutor's statement was not
the subject of a contemporaneous objection, the issue is waived.”). At the time that Marsh
raised his objection, it was too late for the Trial Court to have taken any effective action to
cure any error, assuming for purposes of argument that an error had occurred. We, therefore,
find that the objection was not made “at the trial and a ruling had thereon …,” and was
waived. McCall, 243 S.W.3d at 573. We also note that even if it were error, it was harmless
error as our consideration of the whole record shows that it did not “more probably than not
[affect] the judgment or … result in prejudice to the judicial process.” Tenn. R. App. P. 36
(b).
We now turn to the issue raised by the Akers regarding whether the Trial Court
erred in granting Marsh’s motion for judgment notwithstanding the verdict with regard to
their Tennessee Consumer Protection Act claim and the breach of bailment claim. As this
Court has explained:
A bailment is a delivery of personalty for a particular purpose or on mere
deposit, on a contract expressed or implied, that after the purpose has been
fulfilled, it shall be re-delivered to the person who delivered it or otherwise
dealt with according to his direction or kept until he reclaims it.
Merritt v. Nationwide Warehouse Co., Ltd., 605 S.W.2d 250, 252 (Tenn. Ct. App. 1980).
There are two problems with the Akers’ theory of bailment. First, a dead body
does not fit within the definition of personalty. Second, the agreement that the Akers had
was with the Funeral Home, not with Marsh or Tri-State. In fact, the Akers testified that they
had no idea that Deceased’s body was going to be taken to Tri-State. The space in the
Authorization for the name of the crematorium was blank when the Authorization was
signed, and when the Akers inquired about where the body would be taken the Funeral Home
told them that it would most probably be a crematorium in Chattanooga. In addition, Dr.
Akers testified that had he known about Tri-State, he never would have consented to allow
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the release of Deceased’s body to Tri-State. The evidence in the record simply does not
support a claim for bailment. As such, we find no error in the Trial Court’s grant of a
judgment notwithstanding the verdict dismissing the claim of bailment.
With regard to the claim under the Tennessee Consumer Protection Act, Tenn.
Code Ann. § 47-18-109 provides, in pertinent part:
47-18-109. Private right of action – Damages – Notice to division. –
(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.
(2) The action may be brought in a court of competent jurisdiction in the
county where the alleged unfair or deceptive act or practice took place, is
taking place, or is about to take place, or in the county in which such person
resides, has such person’s principal place of business, conducts, transacts, or
has transacted business, or, if the person cannot be found in any of the
foregoing locations, in the county in which such person can be found.
(3) If the court finds that the use or employment of the unfair or deceptive act
or practice was a willful or knowing violation of this part, the court may award
three (3) times the actual damages sustained and may provide such other relief
as it considers necessary and proper.…
Tenn. Code Ann. § 47-18-109 (a) (2001). In pertinent part, Tenn. Code Ann. § 47-18-104
provides that unfair or deceptive acts include: “Engaging in any other act or practice which
is deceptive to the consumer or to any other person.” Tenn. Code Ann. § 47-18-104 (b)(27)
(2001).
In Searle v. Harrah’s Entm’t, Inc., this Court stated: “Only actual damages may
be trebled under the TCPA, Tenn. Code Ann. § 47-18-109 (a)(2)-(3), and damages awarded
for emotional distress do not constitute actual damages.” Searle v. Harrah’s Entm’t, Inc.,
No. M2009-02045-COA-R3-CV, 2010 Tenn. App. LEXIS 627, at *36 (Tenn. Ct. App. Oct.
6, 2010), no appl. perm. appeal filed. As the Akers were awarded damages for emotional
distress, and emotional distress damages do not constitute actual damages under Tenn. Code
Ann. § 47-18-109, we find no error in the Trial Court’s grant of a judgment notwithstanding
the verdict with regard to the claim under the Tennessee Consumer Protection Act.
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Conclusion
The judgment of the Trial Court is affirmed. This cause is remanded to the
Trial Court and costs shall be collected in compliance with our Order of February 16, 2011
wherein we stated:
Because the trial court clerk has failed to complete and transmit the record for
this appeal in the time and manner provided in the rules of appellate procedure,
the trial court clerk shall forfeit to the appellant the clerk’s entire fee set forth
in Tenn. Code Ann. § 8-21-401(i)(11) for preparing and transmitting the
record. See Tenn. R. App. P. 40(i). In addition, the court exercises its
discretion, and taxes all costs at the appellate level associated with the efforts
to ensure the filing of an accurate and complete record for this appeal, to the
trial court clerk, said costs to be collected at the conclusion of this appeal.
Costs on appeal not otherwise provided for are assessed against the appellant, T. Ray Brent
Marsh, and his surety.
_________________________________
D. MICHAEL SWINEY, JUDGE
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