Darrell Ken Moore v. Lovein Funeral Home, Inc.

FIRST DIVISION
BARNES, P. J.,
GOBEIL and PIPKIN, JJ.

NOTICE: Motions for reconsideration must be
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December 21, 2020

In the Court of Appeals of Georgia
A20A1632. MOORE v. LOVEIN FUNERAL HOME, INC. et al.

GOBEIL, Judge.

Darrell Ken Moore filed suit against Robert S. Lovein, Jr. (“Lovein”) and

Lovein Funeral Home, Inc. (the “Funeral Home,”)1 (collectively, the “Defendants”),

alleging in relevant part that he never authorized the Defendants to send part of his

late wife’s, Pauline Moore’s (“Pauline”) cremated remains to Kenneth Howard.2 The

Defendants moved for summary judgment, which the trial court granted. In the instant

appeal, Moore argues that the trial court erred in granting the Defendants’ motion for

summary judgment, as he put forth sufficient evidence to support his claims for:

1
Lovein, a licensed funeral director, co-owns the Funeral Home with his father,
Robert S. Lovein, Sr.
2
Howard is Pauline’s son and Moore’s step-son.
(1) breach of contract, (2) tortious interference with burial rights, (3) intentional

infliction of emotional distress, (4) fraud, and (5) negligent misrepresentation. For the

reasons that follow, we affirm the trial court’s grant of summary judgment to the

Defendants on Moore’s claims for intentional infliction of emotional distress, fraud,

and negligent misrepresentation, but we reverse the grant of summary judgment on

his claims for breach of contract and tortious interference with burial rights.

Summary judgment is appropriate if the pleadings and evidence
show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. On appeal
from the grant or denial of summary judgment, we conduct a de novo
review, with all reasonable inferences construed in the light most
favorable to the nonmoving party.

Forsyth County v. Waterscape Svcs., LLC, 303 Ga. App. 623, 623-624 (694 SE2d

102) (2010) (citation and punctuation omitted). So viewed, the record shows that

Pauline died on February 19, 2015. Moore’s sisters contacted the Funeral Home on

his behalf to arrange crematory and memorial services for Pauline. The Funeral Home

collected Pauline’s body from her residence for transport to its place of business. On

the date of his wife’s death, February 19, Moore signed a contract with the Funeral

Home, in which he agreed to pay $1,500 for a “direct cremation.” The Funeral Home

2
provided Moore a discount from the usual cremation fee of $3,075 because Moore

was having a “hard time,” and he had used the Funeral Home in the past for other

family members.

Two days after Pauline’s death, the Funeral Home held a viewing for Pauline.

After the viewing, Moore met with Lovein at the Funeral Home for an “arrangement

conference.”3 Moore recalled that he told everyone present that he wanted Pauline to

be cremated in keeping with her wishes. At the meeting, Lovein asked Moore what

he wanted to do with the ashes after the cremation, to which Moore replied: “For the

time being they all come to me.” Because he was still so upset about Pauline’s death,

Moore had yet to decide what he was going to do with the ashes.

During the “arrangement conference,” Moore signed a separate agreement with

the crematory, South Georgia Crematory, LLC (the “Crematory”), titled

“Authorization for Cremation and Disposition.” The Funeral Home co-owns the

Crematory with several other funeral homes. Lovein presented the contract with the

Crematory to Moore for execution in his office at the Funeral Home, and went over

each provision in the document with Moore. As relevant here, Moore initialed the

3
Based on the record, it appears that Moore’s mother and sisters, as well as
Howard, were present for parts of this meeting.

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provision in the agreement that gave the Crematory permission to release Pauline’s

cremated remains to the Funeral Home. Lovein also signed the contract with the

Crematory in his capacity as director of the Funeral Home.

After the cremation on February 23, Moore authorized his sister to collect

Pauline’s ashes from the Funeral Home and bring them to his house. Shortly

thereafter, Howard’s wife, Vicki Howard, called Moore and told him that Howard had

received some of Pauline’s ashes. This was when Moore first learned that the Funeral

Home had not given him all of his late wife’s ashes. In a phone call with Moore,

Lovein admitted that he had mailed approximately one “teaspoon” of Pauline’s ashes

to Howard. Howard in turn spread the ashes over the graves of Pauline’s parents and

the Suwannee River, which he contended was in accordance with Pauline’s wishes.

Howard alleged that he was unaware that Moore did not want him to have any of his

late mother’s ashes.

In February 2017, Moore filed suit against the Defendants, raising claims for

breach of contract, tortious interference with burial rights, intentional infliction of

emotional distress, fraud, and negligent misrepresentation.4 The Defendants moved

4
Moore also raised a claim of tortious interference with contractual relations
against Howard, alleging that Howard improperly asked the Defendants to send him
some of Pauline’s ashes, even though they “were contractually and statutorily

4
for summary judgment, which the trial court granted on all of Moore’s claims.5 The

court certified its order as final under OCGA § 9-11-54 (b), and the instant appeal

followed.

1. Moore argues that the trial court erred in granting summary judgment to the

Defendants on his breach of contract claim because genuine issues of material fact

remain as to whether the Funeral Home’s failure to release to Moore all of Pauline’s

cremated remains constitutes a breach of the written agreements between the parties.

The elements for a breach of contract claim in Georgia are the (1) breach
and the (2) resultant damages (3) to the party who has the right to
complain about the contract being broken. A breach occurs if a
contracting party repudiates or renounces liability under the contract;
fails to perform the engagement as specified in the contract; or does
some act that renders performance impossible.

obligated to deliver all of [Pauline’s] remains to [Moore].” Howard did not join in the
Defendants’ summary judgment motion and is not a party to the instant appeal.
5
In his reply brief, Moore asserts that the trial court failed to enter an order
with specific findings of fact and conclusions of law despite his request to the trial
court for such an order. In the first instance, this Court will not consider arguments
raised for the first time in a reply brief. Vann v. Finley, 313 Ga. App. 153, 154 n. 2
(721 SE2d 156) (2011). In any event, “[t]he trial court is not required to make express
findings of fact and conclusions of law in ruling on motions for summary judgment,
although they are helpful to the appellate courts and instructive to the parties.” Lewis
v. Rickenbaker, 174 Ga. App. 371, 372 (1) (330 SE2d 140) (1985).

5
UWork.com, Inc. v. Paragon Technologies, Inc., 321 Ga. App. 584, 590 (1) (740

SE2d 887) (2013) (citations and punctuation omitted).

As relevant here, Moore entered into two contracts: the general contract in

which he agreed to pay the Funeral Home $1,500 for a “direct cremation.” This

contract did not include any details as to the Funeral Home’s duties and obligations

regarding the disposition of Pauline’s cremated remains. Moore also signed a second

agreement with the Crematory, titled “Authorization for Cremation and Disposition,”

with respect to the cremation and disposition of Pauline’s ashes.

On appeal, Moore does not contend that the Crematory breached the terms of

the crematory contract in the manner in which the cremation was performed or the

delivery of the ashes to the Funeral Home. Rather, Moore argues that the Funeral

Home exceeded the scope of its authority under the crematory contract when it took

possession of Pauline’s ashes from the Crematory and subsequently gave Howard a

portion of her cremated remains without Moore’s authorization.

The interpretation of a contract is a question of law, unless the
contract language presents an ambiguity that cannot be resolved by the
rules of construction. The cardinal rule of construction is to ascertain the
intent of the parties. Where the contract terms are clear and
unambiguous, the court will look to that alone to find the true intent of
the parties. . . . Where ambiguities exist, the court may look outside the

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 written terms of the contract and consider all the surrounding
circumstances to determine the parties’ intent. Parol evidence may not
be considered unless the written instrument is ambiguous.

Greenberg Farrow Architecture, Inc. v. JMLS 1422, LLC, 339 Ga. App. 325, 329 (1)

(791 SE2d 635) (2016) (citation and punctuation omitted). Importantly, the crematory

contract did not specify whether the Defendants had the authority to give Howard

some of Pauline’s ashes upon receipt from the Crematory. Because the contract is

ambiguous, we turn to parol evidence to ascertain the intent of the parties.

In his deposition, Lovein conceded that the crematory contract did not include

any provisions “about allowing someone else to take [Pauline’s cremated remains]

or authorizing the mailing” of her ashes. In fact, Lovein testified that it was his

understanding that the crematory contract required that he give Pauline’s ashes to

Moore following the cremation. Specifically, under a section titled “Order for

Disposition,” Moore authorized the Crematory to release the cremated remains to the

“possession and custody of the Funeral Home.” Additionally, under a section titled

“Crematory Requirements, Procedures, and Policies,” the agreement stated: “The

cremation, processing, and disposition of the remains of [Pauline] authorized herein

shall be performed in accordance with all governing laws, and the requirements,

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procedures, and policies of the Crematory and the designated Funeral Home.” See

OCGA § 31-21-7 (b) (3) (“the right to control the disposition of the remains of a

deceased person; the location, manner, and conditions of disposition; and

arrangements for funeral goods and services to be provided vests in . . . [t]he

surviving spouse of the decedent”). Lovein acknowledged that “once the cremation

has been completed . . . the cremains are dispersed to the next of kin. That’s the law.”

Indeed, Lovein specifically confirmed that Moore was the next of kin in this case.6

Moore maintains that he never authorized Lovein to deliver a portion of

Pauline’s ashes to Howard. In fact, Moore asserts that he clearly told Lovein that he

wanted all of the ashes. By contrast, Lovein described that Howard approached

Lovein and asked for a small portion of his mother’s ashes. During his meeting with

Moore on the day of the viewing, Lovein recalled that, although Moore initially told

Lovein that he did not want to give any ashes to Howard, Moore eventually relented

after Lovein reminded him that Howard was Pauline’s son. Specifically, Lovein

alleged that Moore told him, “Fine, just don’t . . . I just don’t want to know. Don’t tell

6
Of note, the crematory contract lists Moore as Pauline’s spouse, but does not
include her children as her surviving heirs.

8
me.” Although the crematory contract does not include this “authorization,”7 Lovein

explained that it was not uncommon for him to distribute ashes to multiple family

members without written approval.

Based on the contradiction in the evidence, “there is, at the very least, a

genuine issue of material fact as to whether” the Defendants breached the terms of the

crematory contract by distributing some of Pauline’s ashes to Howard upon receipt

from the Crematory, without Moore’s authorization. Justice v. SCI Georgia Funeral

Svcs., Inc., 329 Ga. App. 635, 637 (1) (765 SE2d 778) (2014). See also Ly v. Jimmy

Carter Commons, LLC, 286 Ga. 831, 833 (1) (691 SE2d 852) (2010) (“On summary

judgment, a trial court is not authorized to resolve disputed issues of material fact.”)

(citation and punctuation omitted).

The Funeral Home counters that Moore failed to state a valid breach of contract

claim because the Funeral Home was not a party to the crematory contract.8 Based on

7
Lovein stated that this portion of the discussion apparently took place with
only Lovein and Moore present in the room.
8
There is no contract between the Funeral Home and the Crematory. Rather,
the Funeral Home pays a fee to the Crematory for each cremation completed. As part
of its services, the Funeral Home picks up the ashes from the Crematory and then
contacts the family for the next of kin or an authorized representative to come and
pick up the ashes.

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the record on appeal, the exact nature of the relationship between the Crematory and

the Funeral Home remains unclear. Specifically, the Funeral Home is a co-owner of

the Crematory along with several other funeral homes. By his own admission, Lovein,

as an authorized representative of the Funeral Home, presented the agreement with

the Crematory to Moore and went over each term in the agreement for Moore’s

approval, including that the Funeral Home “was responsible for making arrangements

with [Moore] for the cremation of [Pauline].” Aside from Moore’s signature, the only

other signature appearing in the contract is Lovein’s, on behalf of the Funeral Home,

in two separate places. Importantly, in the contract, Moore explicitly “request[ed] and

authorize[d the Funeral Home] to take possession of and make arrangements for the

cremation of [Pauline’s] remains by [the Crematory].” As such, a question of fact

remains as to whether the Crematory was “acting as the undisclosed agent” of the

Funeral Home in contracting with Moore for the cremation. Chas. S. Martin

Distributing Co. v. Foster, 140 Ga. App. 12, 13 (230 SE2d 77) (1976). See also

OCGA § 10-6-54 (“If an agent shall fail to disclose his principal,” the contracting

party may settle with either the agent or the principal); Carpenter v. Cordele Elec.

Supply, 220 Ga. App. 548, 549 (2) (469 SE2d 799) (1996) (“Whether or not the fact

of the agency and the identity of the principal were disclosed or known to the other

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contracting party is a question of fact which may be shown by direct or circumstantial

evidence.”) (citation and punctuation omitted).

Finally, as the Defendants point out, Moore did not suffer actual damages

because by his own admission he never paid the Funeral Home the $1,500 fee to

arrange the cremation and memorial services. Nevertheless, where there exists

evidence from which a jury could find that the defendant breached a contract,

the defendant is not entitled to summary judgment on the claim, even if
the plaintiff fails to present any admissible evidence to establish the
amount of actual damages flowing from the breach. This is because,
under OCGA § 13-6-6, in every case of breach of contract, the injured
party has a right to damages, but, if there has been no actual damage, the
injured party may recover nominal damages sufficient to cover the costs
of bringing the action.

Eastview Healthcare, LLC v. Synertx, Inc., 296 Ga. App. 393, 399 (4) (674 SE2d 641)

(2009) (citations and punctuation omitted). Here, even though there is no indication

that Moore sustained actual damages arising from the alleged breach, such lack of

evidence “does not constitute a viable basis for granting [the Defendants’] motion for

summary judgment.” Id. See also Crippen v. Outback Steakhouse Intl., L.P., 321 Ga.

App. 167, 170 (1) (741 SE2d 280) (2013) (citing OCGA § 13-6-6 for the proposition

11
that “a lack of damages would not be a bar to a breach of contract claim”). We thus

reverse the trial court’s grant of summary judgment on the breach of contract claim.

2. Moore argues the trial court erred in granting the Defendants’ summary

judgment motion on his tortious interference with burial rights claim because the

Defendants “willfully and wantonly delivered a portion of [Pauline’s] cremains to [ ]

Howard, despite [Moore’s] express directive to the contrary.”

“In this state, an unlawful and unwarranted interference with the exercise of the

right of burial is a tort. This right of burial belongs to the surviving spouse of the

deceased and devolves upon the next of kin of the deceased only if no spouse

survives.” Habersham Mem. Park, Inc. v. Moore, 164 Ga. App. 676, 678 (1) (297

SE2d 315) (1982) (citation omitted). See also In re Tri-States Crematory Litigation,

215 FRD 660, 684 (II) (A) (4) (f) (2) (N.D. Ga. 2003) (recognizing that next of kin

had standing to pursue a private right of action for tortious interference with burial

rights against a crematory for allegedly mishandling decedent’s remains). The

Defendants do not dispute that Moore, as the surviving spouse, had the private right

to bury or dispose of his late wife’s remains. As such, “[the Defendants] owed

[Moore] the duty not to wilfully or want only interfere with the burial of [Pauline].”

Pyle v. Pyle, 243 Ga. App. 398, 400 (2) (531 SE2d 738) (2000).

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 A demonstration of mere negligence is not sufficient to show wilful or
wanton behavior. In order to prove wilful or wanton conduct, a plaintiff
must demonstrate that a defendant’s acts were such as to evidence a
wilful intention to inflict the injury, or else were so reckless or so
charged with indifference to the consequences as to justify finding a
wantonness equivalent in spirit to actual intent.

McNeal Loftis, Inc. v. Helmey, 218 Ga. App. 628, 629 (462 SE2d 789) (1995)

(citations and punctuation omitted). It is undisputed that the Defendants deliberately

gave Howard some of Pauline’s remains. Compare Justice, 329 Ga. App. at 637-638

(2) (affirming grant of summary judgment where there was no evidence that the

funeral home “acted wilfully or wantonly[; r]ather, at most, the evidence shows that

[it] acted negligently in failing to ensure that the cremated remains were in the urn

during the memorial service”); McNeal Loftis, 218 Ga. App. at 629-630 (reversing

denial of summary judgment on claim for tortious interference with burial rights

where decedent’s wife failed to show that cemetery owner wantonly interfered with

burial of her husband by failing to have grave dug at time of burial, in view of

evidence that cemetery owner’s inspection of grave’s location did not reveal that soil

condition was poor, making digging of grave difficult, and that cemetery owner

contacted funeral home upon discovering that grave would not be dug in time for

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burial so as to prevent funeral party from coming to cemetery until grave had been

prepared).

The Defendants counter that “[Moore’s] acquiescence to sending [ ] Howard

the ashes proves there was no ‘willful or wanton’ conduct.” As previously discussed

in Division 1, however, based on the differing accounts offered by Moore and Lovein,

a question of fact remains as to whether Moore granted the Funeral Home permission

to send Howard a portion of Pauline’s ashes. Although the Defendants argue that their

“compassion” in ensuring that Howard be granted his wish to have part of his late

mother’s remains was “not intended to inflict injury” on Moore, so as to rise to the

level of wilful or wanton conduct, this is a credibility determination that belongs

exclusively to the fact finder. See K/C Ice, LLC v. Connell, 352 Ga. App. 376, 378 (1)

(835 SE2d 11) (2019) (“In deciding a motion for summary judgment, neither the trial

court nor this Court can consider the credibility of witnesses; and a finder of fact must

resolve the question of credibility and the conflicts in the evidence which it

produces.”). Because genuine issues of fact remain for resolution, we therefore

reverse the trial court’s grant of summary on Moore’s claim for tortious interference

with burial rights.

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 3. Moore alleges that the trial court erred in granting summary judgment to the

Defendants on his claim for intentional infliction of emotional distress.

To sustain a claim for intentional infliction of emotional distress,
[Moore] must prove the following four elements: (1) The conduct must
be intentional or reckless; (2) The conduct must be extreme and
outrageous; (3) There must be a causal connection between the wrongful
conduct and the emotional distress; and (4) The emotional distress must
be severe. Whether a claim rises to the requisite level of outrageousness
and egregiousness to sustain a claim for intentional infliction of
emotional distress is a question of law.

Hill v. City of Fort Valley, 251 Ga. App. 615, 616 (1) (a) (554 SE2d 783) (2001)

(citation and punctuation omitted).

Extreme and outrageous mean exactly that: 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
that 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 possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.

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Plantation at Bay Creek Homeowners Assn. v. Glasier, 349 Ga. App. 203, 211 (7)

(825 SE2d 542) (2019) (citation, punctuation, and emphasis omitted).

In this case, “[e]ven assuming that the [D]efendants’ actions can be

characterized as wilful or wanton, [Moore’s] claim for intentional infliction of

emotional distress still must fail. To sustain such a claim, [Moore] must show that the

conduct of the [D]efendants was directed towards [him].” Hill, 251 Ga. App. at 617

(1) (a). In his deposition, Lovein testified that he was trying to ensure that Howard,

as Pauline’s son, was granted his request to receive part of his mother’s remains.

Although there remains a question of fact as to whether Moore acquiesced to Howard

receiving a part of Pauline’s cremated remains, there is nothing in the record to

suggest that the Defendants’ conduct was directed specifically towards Moore with

the intent to cause him distress. Id. Because Moore is unable to sustain a claim for

intentional infliction of emotional distress, the trial court properly granted the

Defendants’ motion for summary judgment on this ground.

4. Moore also contends that the trial court erred in granting summary judgment

to the Defendants on his claims for fraud and negligent misrepresentation.

Specifically, Moore asserts that Lovein “falsely informed” him that he would receive

all of Pauline’s cremated remains, and Moore did not realize that the Funeral Home

16
had sent part of Pauline’s remains to Howard until Howard’s wife’s phone call

informed him of this fact.

As relevant here, “[t]he tort of fraud has five elements: a false representation

by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting,

justifiable reliance by plaintiff, and damage to plaintiff.” Crawford v. Williams, 258

Ga. 806, 806 (375 SE2d 223) (1989). “The elements of a negligent misrepresentation

claim are (1) a false representation of omission of a material fact; (2) scienter;

(3) intention to induce the party claiming fraud to act or refrain from acting;

(4) justifiable reliance; and (5) damages.” Lafontaine v. Alexander, 343 Ga. App. 672,

678 (3) (808 SE2d 50) (2017) (citation and punctuation omitted).

Moore has failed to meet his burden to show that he relied on a

misrepresentation by the Defendants. See Pyle, 243 Ga. App. at 401 (3)

(“[A]ctionable fraud must be based upon a misrepresentation made to the defrauded

party, and relied upon by the defrauded party.”) (citation and punctuation omitted).

Because there is no evidence in the record that the Defendants affirmatively told

Moore that he would receive all of Pauline’s cremated remains, and that he relied on

that misrepresentation to his detriment, this contention is without merit. Rather, as

previously discussed, the crux of the dispute between the parties is whether Moore

17
consented to the Defendants sending part of Pauline’s cremated remains to Howard.

The trial court therefore did not err in granting summary judgment to the Defendants

on Moore’s fraud and negligent misrepresentation claims.

Judgment affirmed in part and reversed in part. Barnes, P. J., and Pipkin, J.,

concur.

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