Walser v. Resthaven Memorial Gardens, Inc.

WILNER, Chief Judge. Appellants are aggrieved by an order of the Circuit Court for Frederick County dismissing their multi-count complaint against Sally Walser, Resthaven Memorial Gardens, Inc., Richard Cody, and Babylon Vault Company. The complaint arose from what appellants regard as the wrongful disinterment of Billy J. Walser, the son of appellant Dorothy Mae Walser and the brother of the other appellants. I. Underlying Facts Dorothy Mae and Billy F. Walser (Billy F.) were once married.

That union produced four children — Billy J. Walser (Billy J.) and the three other appellants. Eventually, Dorothy Mae and Billy F. divorced; Dorothy Mae moved to North Carolina and Billy J. remained in Maryland with his father. The other three children, it appears, also remained in, or returned to, Maryland. Billy F. later married Sally and, by her, had another son, Chris Walser.

At some point before ³⁷⁸ 1981, Billy F. and Sally purchased a burial plot at the Resthaven cemetery. The plot contained four adjacent spaces. In 1981, Billy J., then in his 20’s, was killed and was buried in space number 3. Billy F. was the next to die, although when is not clear from the record before us.

He was buried in space number 1. In 1991, Chris died and was buried in space number 4, leaving space number 2 reserved for Sally. Not long after Chris’s death, Sally decided that she wanted to be buried next to her natural son, Chris, and therefore requested Resthaven to have the remains of Billy J. and Chris, who were buried next to each other, switched. Upon that request, Resthaven prepared two Disinterment Agreements, under which it agreed to arrange for the switch.

In those agreements, Sally (1) asserted that she was, or represented, all of the next of kin of Billy J. and Chris, (2) requested the disinterment of those two persons, and (3) also requested Babylon Vault Company to furnish the necessary personnel and equipment to accomplish the disinterments. She agreed to hold Resthaven harmless with respect to any claims or damage arising from any action taken by Resthaven and also appointed Resthaven as her agent to procure all permits required by law to complete the disinterment. Pursuant to an agreement with Resthaven and after obtaining the disinterment agreements, Babylon completed the switch in October, 1991. It removed Chris’s casket from space number 4, slid Billy J.’s casket from space number 3 into space number 4 without actually removing it from the ground, and then replaced Chris’s casket in space number 3.

Following that operation, the two headstones were switched. When, at some later point, appellants visited Billy J.’s gravesite, they discovered the switch and filed this lawsuit. They had not been previously notified of the contemplated, or actual, disinterment of Billy J. The complaint contained 13 counts, as follows: Count I (Gross Negligence); Count II (Negligence); Count III (Intentional Infliction of Emotional Distress); Count IV (Wrongful Disinterment); Count V (Trover); Count VI (Trespass); Count VII (Constructive Fraud); Count VIII (Fraudulent ³⁷⁹ Concealment); Count IX (Breach of Confidence); Count X (Public Nuisance); Count XI (Invasion of Privacy); Count XII (Conspiracy); and Count XIII (Injunction). The court dismissed the first 12 counts as failing to state claims upon which relief could be granted.

The parties then stipulated to injunctive relief, whereupon this appeal was filed. Appellants contend that the court erred in dismissing each of the 12 counts. Although not clearly stated therein, the gravamen of their complaint seems to be that, in arranging for and carrying out the disinterment of Billy J., the appellees never contacted them or obtained their approval and never obtained prior authorization from the State’s Attorney for Frederick County. Approval of the State’s Attorney, they say, is required by Md.Code art. 27, § 265; their approval is required both by that statute and by common law.

II

Motion To Dismiss [l'J Before proceeding to discuss the merits of appellants’ complaint, we need to consider Sally’s motion to dismiss the appeal. That motion is based on the fact that, in dismissing Counts I through XII, the court stated, in the concluding sentence of its amended order, that “[t]he Plaintiffs shall have thirty days from the date of this Order to file for leave to amend the Complaint.” Sally treats this statement as though it granted leave to amend, thereby making the order nonappealable. That is not, however, the case. Md.Rule 2-322(e), dealing with motions to dismiss a complaint, provides, in relevant part, that: “If the court orders dismissal, an amended complaint may be filed only if the court expressly grants leave to amend.

The amended complaint shall be filed within 30 days after entry of the order or within such other time as the court may fix. If leave to amend is granted and the plaintiff fails to file an amended complaint within the time prescribed, the court, on motion, may enter an order dismissing the action.” (Emphasis added). In conformity with this Rule, the Court of Appeals has held on a number of occasions that, where an order dismissing a ³⁸⁰ complaint or granting summary judgment expressly grants leave to file an amended complaint, that order is not immediately appealable. See Makovi v. Sherwin-Williams Co., 311 Md. 278 , 533 A.2d 1303 (1987); National Glass v. J.C. Penney, 329 Md. 300 , 619 A.2d 528 (1993).

Unlike those situations (in Makovi for example, the order stated that “[t]he plaintiff is granted thirty (30) days in which to file an amended complaint”), no such leave was granted by the order here. Indeed, the court was careful to reserve judgment on whether it would allow an amended complaint to be filed, stating only that the plaintiff had 30 days to file “for leave to amend the Complaint.” Had appellants filed an amended complaint without obtaining such leave, it would have been a nullity, for the Rule very clearly states that an amended complaint may be filed “only if the court expressly grants leave to amend.” Why the court included the language that it did is not clear. Perhaps it wanted to see what kind of amended complaint would be offered before deciding whether to allow it. Whatever may have been the court’s reason, it is evident that leave was not expressly given, and so the amended order entered on January 7, 1992, was final and appealable.

The motion to dismiss is denied.

III

Sufficiency Of The Complaint A. Introduction In Counts I and II, appellants allege that appellees owed them a duty of care, which was breached by their actions. They do not state, however, what that duty of care was or how it was breached. In some of the introductory paragraphs in the complaint, appellants aver that the disinterment of Billy J. was arranged and carried out without appellants’ permission or approval, but it is not until Count VIII, charging fraudulent concealment, that we find an allegation that appellees “were under a duty to disclose their anticipated actions prior to undertaking them, so that authorization could be sought and a decision could properly be made” and that “[n]o authorization or permission was sought nor obtained from Plaintiffs.” ³⁸¹ In their response to appellee Babylon’s motion to dismiss, appellants, for the first time, made clear that the duty underlying the action in general was to request their permission for the disinterment of Billy J. and that it was breached by appellees’ failure to ascertain appellants’ whereabouts and obtain that permission. They argued to the circuit court, and argue to us, that that duty emanates both from the common law and from Md.Code art. 27, § 265.

In examining the sufficiency of the 12 counts at issue, we shall assume that each rests on the assertion that appellees had a duty to inform the appellants of their anticipated removal of Billy J. from his grave and to obtain their permission, and that appellees’ failure to satisfy that obligation is what gives rise to the various causes of action pled. We note, in that regard, that although there is an allegation that Sally was aware of appellants’ whereabouts, there is no such allegation with respect to the other appellees. There is no averment that those appellees knew, or should have known, that Sally was not the sole next-of-kin of Billy J. and Chris, as she represented. B. General Discussion — Common Law The underpinnings and development of the common law of sepulture are well set out in Annotation, Removal and [R]einterment of [R]emains, 21 A.L.R.2d 472 (1952).

Further expositions of that law, in some of its more particular manifestations, are examined in later A.L.R. annotations. See Civil Liability of Undertaker in Connection with Transportation, Burial, or Safeguarding of Body, 53 A.L.R.4th 360 (1987); Disinterment in Criminal Cases, 63 A.L.R.3d 1294 (1975); Liability for Desecration of Graves and Tombstones, 77 A.L.R.4th 108 (1990). At least three broad principles emerge from these works: (1) the normal treatment of a corpse, once it is decently buried, is to let it lie (21 A.L.R.2d at 476); (2) respectful disinterments have been looked upon as private concerns of the deceased’s family and the cemetery, if they all agree (21 A.L.R.2d at 481); and (3) if there is any disagreement among the family or the cemetery as to any contemplat ³⁸² ed or completed disinterment, relief can be afforded, in certain circumstances, in either equity or law, depending on the nature of the controversy (21 A.L.R.2d at 483-84). The first two of these principles and the ability of equity to resolve disputes as to contemplated disinterments have clearly been recognized in Maryland.

In Dougherty v. Merc-Safe Dep. & Tr., 282 Md. 617 , 387 A.2d 244 (1978), a widow (Elizabeth) petitioned to remove the body of her deceased husband for reburial elsewhere. The disinterment was sought initially because the owner of the plot — Elizabeth’s father-in-law — had breached an agreement to reserve the adjacent space for her by burying his daughter Geraldine (Elizabeth’s sister-in-law) in that space, but by the time the case went to court that problem had been resolved. The father-in-law had died, and his family had agreed to remove Geraldine to another space so that Elizabeth could be buried next to her husband. In affirming the denial of Elizabeth’s petition, the Court first observed that, while “there is no property in a dead body in a commercial or material sense,” a surviving spouse did have a temporary right to the possession of his or her deceased spouse’s body for the purpose of burial.

The Court further held, however, that “when the duty to furnish proper burial has been discharged, the right of custody ceases and the body is thereafter in the custody of the law and disinterment or disturbance of the body is subject to the control of a court of equity.” 282 Md. at 620 , 387 A.2d 244 . Quoting in part then from a New York case, the Court concluded, at 620-21, 387 A.2d 244 , that: “ ‘The dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose.’ Thus, any right of the wife to remove the body after it is interred is conditioned upon her having a sound reason. There have been instances when the courts have granted permission, e.g., when the initial interment was understood to be temporary ... or where there is a lack of room for the ³⁸³ spouse to be buried beside the deceased ... or the body is wrongfully interred in the lot of a plot owner.... However, where an interment takes place with the consent, express or implied, of those most interested, the interment is regarded in law as a final sepulture. ...

This is particularly of great weight where the surviving spouse consents to the initial place of burial ... unless the spouse can show that the consent was obtained through coercion or was otherwise involuntary.” (Emphasis added; citations omitted.) Dougherty was a case seeking prospective equitable relief. The 21 A.L.R.2d annotation points out that legal relief is also available to protect the right of repose. In this latter regard, it notes that: “Equity’s exclusive jurisdiction is confined to disinterments and removals (and restorations) in prospect. In most states where the question has arisen a survivor who qualifies as a proper party plaintiff can maintain his action at law to recover damages for an accomplished wrongful exhumation and removal (and for a wrongful exhumation without removal).

Although there is much confusion in the reasons advanced by the courts, actually, it seems a new tort has been created. The desire of survivors to have the remains of their decedents lie undisturbed has come to be recognized as worthy of legal protection; and the acute emotional suffering following invasion of the desire as deserving of compensatory or punitive damages.” 21 A.L.R.2d at 484; see also 77 A.L.R.4th at 117. In further recognition of this principle, Restatement (Second) of Torts, § 868 states: “One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.” This section of the Restatement covers conduct well beyond the wrongful disinterment of properly buried corpses, and ³⁸⁴ indeed the principle embodied in it is most frequently applied in two other types of cases: those involving conduct occurring prior to burial — mostly unauthorized or negligently performed autopsies or the improper preparation of the body by morticians or others; and those arising from wrongful burials, including negligence in conducting burials or in the manner of interment. The Restatement recognizes, however, that the principle applies as well to wrongful disinterments.

The section imposes liability on one who wrongfully “removes” a dead body, and Comment e to the section states that “ ‘Removes’ includes disinterment.” The basis of this liability is described in Comment a to the Restatement section. In conformance with the A.L.R. approach, the American Law Institute there notes that, although the “technical basis” of the cause of action is an interference with the exclusive right of control of the body, which is frequently characterized as a “property” right, in practice that technical right “has served as a mere peg upon which to hang damages for the mental distress inflicted upon the survivor; and in reality the cause of action has been exclusively one for the mental distress.” The kind of civil liability noted in the A.L.R. annotations and in § 868 of the Restatement, which to date has not been considered in Maryland, attempts to give recognition to the principles enunciated in Dougherty . If, indeed, there is a legally cognizable right to have the bodies of deceased next-of-kin remain undisturbed, a right enforceable prospectively in equity, there must, of necessity, be a corresponding duty on the part of others not to interfere with that right without some special, legally cognizable, justification. We think it clear, therefore, as a natural extension of Dougherty , that civil liability does exist on the part of persons who, without the consent of those who have a say in the matter, disinter properly buried bodies.

The questions that arise are (1) what is the precise basis and nature of this liability, and (2) to whom does it flow? ³⁸⁵ With respect to the first question, some courts, as the A.L.R. annotation indicates, view wrongful disinterment as an independent tort. 1 Other courts treat such conduct as a form of general negligence, negligent infliction of emotional distress (where that is regarded as a separate tort), or intentional infliction of emotional distress, depending on the circumstances. 2 We are inclined toward the second view. There is no need to create an independent tort. If we accept that there is a right not to have the bodies of deceased next-of-kin disturbed and a concomitant duty to respect that right, and we further recognize that a breach of that duty can cause significant emotional distress and possibly physical injury as well, the existing causes of action for negligence and intentional infliction of emotional distress suffice. As we indicated in Hamilton v. Ford Motor Credit Co., 66 Md.App. 46, 63 , 502 A.2d 1057 (1986) in rejecting an invitation to recognize negligent infliction of emotional distress as a separate tort, “[rjecovery may be had in a tort action for emotional distress arising out of negligent conduct.

In such case, the emotional distress is an element of damage, not an independent tort.” With respect to intentional conduct, the Court of Appeals has recognized the more general tort of intentional infliction of emotional distress, Harris v. Jones, 281 Md. 560 , 380 A.2d 611 (1977), and so there is no reason to ³⁸⁶ create a separate tort for conduct which would seem clearly to fall within the existing one. We turn, then, to the question of who may recover: to whom does the duty we have recognized flow? The Restatement speaks in terms of “a member of the family who is entitled to the disposition of the body.” That would seem, on its face, to have more direct relevance to cases involving preburial misconduct than to cases arising from disinterments, but, as the section draws no distinction, it serves to limit the potential disinterment plaintiffs as well to only the immediate next-of-kin. In this regard, the American Law Institute observes in Comment g to § 868: “The decisions in which recovery has been allowed for interference with a dead body have thus far been those in which the plaintiff has been the person entitled to disposition of the body or one of a group, such as children of the deceased, who have equal right of disposition.

In the absence of decisions, the Institute expresses no opinion on whether one who is not entitled to the disposition may not, under some circumstances, have a cause of action for his own mental distress under the principle stated in this Section.” Ordinarily, it is only this small group of persons who have the right of possession for the purpose of burial. Cf. Dougherty, supra, 282 Md. 617 , 387 A.2d 244 . The case law, by and large, is consistent with that limitation.

Courts have permitted recovery, for wrongful disinterment, by a spouse of the decedent, 3 and, where there is no spouse, some courts have allowed recovery by a parent or child of the decedent. 4 One ³⁸⁷ court allowed recovery by a grandchild when there was no spouse or closer relative able to press the claim. 5 As a general rule, however, the cases have tended to follow the Restatement approach of limiting recovery to those immediate next-of-kin who, prior to burial, would have been entitled to possession of the body for purposes of burial, even if they do not express the limitation in those terms. It is a very limited class, which narrows even more when the dispute is between or among persons who might otherwise fall within it. As Billy J.’s mother, Dorothy Mae would normally fall within the limited class, at least if there were no one else of equal or superior rank within that class. This is a matter we shall consider further in Part F. C. Statutory Duty We turn now to the second basis of liability asserted by appellants — Md.Code art. 27, § 265.

That statute, first enacted in 1882, provides as follows: “Every person, his aiders, abettors and counsellors, who shall be convicted of removing or attempting to remove from any graveyard, burial ground or vault in the State of Maryland any dead body which shall have been buried in such graveyard, burial ground or vault, shall be deemed guilty of a misdemeanor, and shall be sentenced to the penitentiary for not less than five nor more than fifteen years, unless such person or persons shall have been authorized by the State’s Attorney for Baltimore City or for the county in which such graveyard, burial ground or vault may be situated to remove such dead body for the purpose of ³⁸⁸ ascertaining the cause of death of the person whose body is so removed, or for the purpose of reburial.” Appellants rely on the “unless” clause as establishing a duty on the part of anyone seeking to disinter a body to obtain authorization from the State’s Attorney. That duty, they suggest, runs to their benefit. The argument is that, had appellees sought authorization from the State’s Attorney, he would have conducted some kind of investigation, that as a result, he would have discovered appellants’ whereabouts and interest, and that he would have denied authorization absent consent by appellants. We find no merit to the argument.

Section 265 is a criminal statute. There is scant relevant legislative history with respect to it, but it appears to be a more or less typical grave-robbing statute similar to those enacted in other States in the latter part of the 19th Century. Its formal interpretation has been confined to two Opinions of the Attorney General. In the first of those Opinions, 39 Op.Atty.Gen. 179 (1954), the Attorney General concluded that the statute had been implicitly repealed by the enactment in 1898 of what is