Cleveland Daily Banner - Appeals Court rules on Fort Hill

Cleveland Daily Banner - Appeals Court rules on Fort Hill
Appeals Court rules on Fort Hill
by DAVID DAVIS, Managing Editor 14 days ago | 829 views | 0 | 7 | |
The Court of Appeals at Knoxville ruled Betty Saint Rogers did not prove intentional infliction of emotional distress by Fort Hill Cemetery owner Joe V. Williams III and Louisville Land Company in a case that has been in Bradley County courts since 2004.

Bradley County Chancery Court Judge Jerri Bryant had previously awarded Rogers $250 for breach of contract, $45,000 for intentional infliction of emotional distress, $250,000 in punitive damages, $37,306 in attorney’s fees and $556 in discretionary costs in February 2010.

In a decision written by Judge D. Michael Swiney, he said intentional infliction of emotional distress was not proven and reversed that judgment and punitive damages.

“We also find and hold that because Plaintiff abandoned her statutory claim, she was not entitled to an award of attorney’s fees pursuant to the statute, and we reverse the award of attorney’s fees,” Swiney stated. “We further find and hold that Plaintiff did prove breach of contract, and we affirm the award of damages for breach of contract, and the remainder of the Trial Court’s final judgment.”

Swiney wrote, “The outcome of this appeal is not what this Court would have preferred. We sympathize with Plaintiff who clearly has had a difficult time, first tragically losing her son, and then dealing with Defendants ... Unfortunately, however, given the evidence in the record before us on appeal as applied to the controlling case law, we are constrained to decide as we have.”

Rogers sued Louisville Land Company and Joe V. Williams III alleging claims under the Tennessee Consumer Protection Act, the Tennessee statutes governing cemeteries, outrageous conduct, and breach of contract, among other things.

Attorney David Hensley, of Chattanooga, represented Williams and Louisville Land Co., in the 2010 proceedings and in the appeals process.

Cleveland attorney James Logan represented Rogers throughout the lengthy trial.

Hensley said Thursday he wasn’t sure how fair it was to ask Bryant or any other judge to rule on a case that continued so long.

“I don’t know how fair it was to ask any judge to hear proof, then make a decision five years later,” he said.

Logan said this morning he would be appealing to the Tennessee Supreme Court with the hope the justices “will reinstate the principle of law that when a company or individual ignores their responsibilities, they subject themselves to reasonable remedies and punitive damages.

“The proof in this case was overwhelmingly clear and almost indisputable that Louisville Land Company and its sole proprietor, Joe V. Williams, turned a blind eye to the sanctity of the sepulcher.”

He said they would continue to monitor the cemetery and bring any failures of the cemetery to the court’s attention.

Rogers sued Williams and Louisville Land Company in April 2004 as owners of a portion (the south end) of Fort Hill Cemetery. The northern portion of the cemetery is owned by Bradley County and was not involved in the lawsuit.

She buried her son in the cemetery in 2001 and later purchased easements to two additional burial plots in the cemetery.

In April 2004, the state of Tennessee filed a separate suit against Louisville Land Company alleging the company failed to maintain the cemetery as required by Tennessee statutes. The two suits were later consolidated.

The issues involved in the state’s case were tried over several days in 2005 and 2006. Rogers’ claims were tried in February 2010, when only Rogers and Williams testified.

During the trial of the state’s case, extensive testimony was given regarding Williams’ alleged failure to maintain the cemetery. Witnesses testified about defendants’ failure to keep the cemetery mowed, the cemetery roads in good condition and necessary repairs to such things as monuments and signs. After the trial of the state’s case, the chancellor found Louisville Land Company had failed to maintain the Cemetery as required by Tennessee Code so as to reflect respect for the memory of the dead.

During Rogers’ testimony in February 2010, she stated her son died tragically in 2001 and was buried in a plot previously purchased by her husband. After her son was buried, she purchased easements to two additional lots in the cemetery.

“My thoughts at that time was that I wanted to be buried by my son. I wanted to be near him when I died,” Rogers testified. At the time of the purchase, she asked about cemetery maintenance, if it was mowed on a regular basis and kept clean. She was assured that it was, though she admittedly had concerns.

“The conditions didn’t improve. If anything, they deteriorated more. I had vaguely noticed some of the things there that I would like to have seen look better. Mowing was one of the things, and the roads were in bad condition. There was trash at the end of the road, flowers, and that kind of thing lying around.”

She said she and her other son maintained the grave site as she described grass higher than headstones, overturned headstones and roads in very poor condition. Some of the land was open and visibly eroded.

Concerning the impact the cemetery conditions had on her, Rogers said, “You were already grieving because you have lost someone that’s very precious to you. And when you go to the cemetery, you — this should be a time where you are reflecting on memories of that loved one, not a time of going to weed-eat the cemetery, looking as if they didn’t exist, that they didn’t — they’re not cared for. You’re leaving someone — when you bury them, you’re leaving them in the care of the people that you buy their lot from, and this was very degrading; it was disrespectful, to say the least.

“It was very, very emotional, very tearful. I knew that I had to do something to change this, and in 2004 I filed a suit with Mr. Logan; and since then I have seen some changes as a result of that; and I would like to see more.”

The opinion stated that while Rogers felt Williams’ actions, or lack of actions, were degrading and disrespectful, the record was devoid of any evidence she suffered any other physical manifestations of emotional distress regarding the duration of the time she was “very tearful.”

Since no actual damages were awarded, punitive damages may be awarded only if actual damages have first been awarded.

Rogers bought a lot in a cemetery and had the right to assume the cemetery would follow the statutes, rules, and regulations of the state of Tennessee; and this cemetery did not. It was proven the contract with Louisville Land Company was breached when the company did not follow the rules and regulations of the state of Tennessee.

Furthermore, Rogers testified that as a result of defendant Louisville Land Company’s breach of the contract, she had to do her own work to maintain her son’s grave site.

Hensley argued on appeal that the award of $250 was an arbitrary number and that there was no proof of actual damages.

However, damages are prohibited only when the existence of damage is uncertain, not when the amount is uncertain. When there is substantial evidence in the record and reasonable inferences may be drawn from that evidence, mathematical certainty is not required.

Plaintiff proved the elements of her claim for breach of contract.

Concerning the award of attorney’s fees, the court noted Logan announced abandoning claims regarding the state’s lawsuit.

“It is not necessary for us to determine whether Plaintiff would have been entitled to attorney’s fees if she had pursued her claims under the statute successfully, and we make no determination whatsoever with regard to that issue,” Swiney stated.