The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
VERNISHA KEY, UNPUBLISHED
November 9, 2021
Plaintiff-Appellant/Cross-Appellee,
and
ARDREAL HOLMES, JOQUAN MCELROY,
DESMION HODO, and RYAN KEY, a minor, and
ZENOBIA HODO, a minor, by their next friend,
VERNISHA KEY,
Plaintiffs-Appellants,
V No. 354763
Genesee Circuit Court
STONEMOR MICHIGAN, LLC, doing business as LC No. 19-113328-CD
FLINT MEMORIAL PARK, and STONEMOR
MICHIGAN SUBSIDIARY, LLC, doing business as
FLINT MEMORIAL PARK,
Defendants-Appellees/Cross-
Appellants,
and
LAWRENCE E. MOON FUNERAL HOME, INC.,
Defendant.
Before: SWARTZLE, P.J., and SAWYER and LETICA, JJ.
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PER CURIAM.
Vernisha Key’s son, Desmond Savage, Jr., was murdered and she contracted with
defendants1 for Desmond’s burial. Key was late for Desmond’s burial and arrived after the sole
family member present had told defendants they could begin to bury Desmond. Key and
Desmond’s siblings sued defendants, alleging that by prematurely burying Desmond they were
liable for intentional infliction of emotional distress, wrongful interference with the right of burial,
and breach of contract. The trial court granted summary disposition to defendants on the first two
counts, but concluded that a dispute of material fact prevented any grant of summary disposition
on the breach of contract claim. The trial court, however, dismissed that claim because it
concluded that it lacked jurisdiction due to the amount in controversy. We affirm.
I. BACKGROUND
Desmond, age 20, was the victim of a fatal drive-by shooting in Flint. Key arranged for
Desmond’s funeral service to be held at a funeral home operated by defendant Lawrence E. Moon
Funeral Home, Inc. (Moon), and for Desmond to be buried at Flint Memorial Park, which
defendants own and operate. Key signed an “Interment/Entombment Authorization and
Indemnification” agreement form (the burial contract) provided by defendants authorizing
Desmond’s burial. The contract provided that the funeral would take place at Moon’s funeral
home at 11:00 a.m. on November 16, 2016, and that the “est. arrival at cemetery” was 1:00 p.m.
Key paid defendants $1,100 for the opening and closing of the grave. The burial contract did not
specify a burial time or include any instructions about Desmond’s burial.
According to Key, Desmond’s “burial and grave side service were scheduled to take place
at approximately 1:30 PM, after completion of the viewing at Moon Funeral Home.” Based on her
meeting at Flint Memorial Park, Key understood that “the service was to take place around 1:30,
upon the family’s arrival” at the cemetery. Additionally, when Key arranged Desmond’s burial
she told defendants’ family service counselor that she would not attend Desmond’s funeral because
of her emotional state, but that family members and a minister would attend.
On the day of Desmond’s burial, Desmond’s body arrived at Flint Memorial Park before
1:00 p.m. One family member who identified himself as either Desmond’s uncle or great-uncle
arrived at the gravesite about 10 to 15 minutes after Desmond’s body arrived, but no other
mourners arrived at that time. Defendants’ employees and Desmond’s great-uncle waited about
15 minutes before removing Desmond from the hearse; no other mourners had arrived at that point.
Desmond’s great-uncle told defendants’ employees that he did not have any way to contact the
rest of Desmond’s family and he did not know if any other family members were coming.
Defendants’ employees then started the burial process and lowered Desmond in his grave and
started filling it. Shortly after that process began defendants’ employees learned that Key and her
1
Plaintiffs’ amended complaint named Lawrence E. Moon Funeral Home, Inc., as a defendant,
but that party was dismissed by stipulation. Accordingly, we use the term “defendants” to refer to
only StoneMor Michigan, LLC, and StoneMor Michigan Subsidiary, LLC.
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family were running late, but that they would arrive soon. Defendants immediately stopped filling
Desmond’s grave.
Key arrived at the grave site at approximately 1:45 p.m. and saw “that the grave had been
filled in” such that she could not see Desmond’s casket. Key concluded that she had found the
correct gravesite based on the presence of the shovels defendants had agreed to provide for the
burial service. Plaintiffs eventually sued defendants and raised three claims: (1) wrongful
interference with the right of burial based on Desmond’s premature burial; (2) intentional infliction
of emotional distress based on the same; and (3) breach of contract based on defendants burying
Desmond before his mourners arrived for a graveside service. Later, the trial court entered an
order clarifying that the breach-of-contract claim was raised only by Key.
The trial court granted defendants’ motions for summary disposition of plaintiffs’ claims
of wrongful interference with the right of burial and intentional infliction of emotional distress,
but denied summary disposition of Key’s breach-of-contract claim. The trial court, however, ruled
that Key could not recover emotional distress damages for the latter claim and then dismissed it
because the $1,100 in contract damages Key was left pursuing fell below the circuit court’s
jurisdictional limit. This appeal and cross-appeal followed.
II. ANALYSIS
Defendants moved for summary disposition under MCR 2.116(C)(8) and (10). “We review
de novo a trial court’s decision to grant or deny a motion for summary disposition.” Sherman v
City of St Joseph, 332 Mich App 626, 632; 957 NW2d 838 (2020) (citations omitted). MCR
2.116(C)(8) mandates summary disposition if “[t]he opposing party has failed to state a claim on
which relief can be granted.” Harbor Watch Condo Ass’n v Emmet Co Treasurer, 308 Mich App
380, 384; 863 NW2d 745 (2014).
A motion under MCR 2.116(C)(8) tests the legal sufficiency of the
complaint. All well-pleaded factual allegations are accepted as true and construed
in a light most favorable to the nonmovant. A motion under MCR 2.116(C)(8) may
be granted only where the claims alleged are so clearly unenforceable as a matter
of law that no factual development could possibly justify recovery. When deciding
a motion brought under this section, a court considers only the pleadings. [Maiden
v Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999) (cleaned up).]
Thus, “[a] party may not support a motion under subrule (C)(8) with documentary evidence such
as affidavits, depositions, or admissions.” Dalley v Dykema Gossett, 287 Mich App 296, 305; 788
NW2d 679 (2010).
A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency
of a complaint. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 205-206; 815 NW2d 412 (2012).
This Court reviews a motion brought under MCR 2.116(C)(10) “by considering the pleadings,
admissions, and other evidence submitted by the parties in the light most favorable to the
nonmoving party.” Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d 369 (2018). “The
trial court is not permitted to assess credibility, weigh the evidence, or resolve factual disputes,
and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition
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under MCR 2.116(C)(10).” Barnes v 21st Century Premier Ins Co, ___ Mich App ___, ___; ___
NW2d ___ (2020) (Docket No. 347120); slip op at 4. Summary disposition “is appropriate if there
is no genuine issue regarding any material fact and the moving party is entitled to judgment as a
matter of law.” Patrick, 322 Mich App at 605.
A. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Plaintiffs argue that the trial court’s dismissal of their intentional infliction of emotional
distress claim was erroneous. “To establish a prima facie claim of intentional infliction of
emotional distress, the plaintiff must present evidence of (1) the defendant’s extreme and
outrageous conduct, (2) the defendant’s intent or recklessness, (3) causation, and (4) the severe
emotional distress of the plaintiff.” Walsh v Taylor, 263 Mich App 618, 634; 689 NW2d 506
(2004). “Liability attaches only when a plaintiff can demonstrate that the defendant’s conduct is
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.” Id.
(cleaned up).
“Initially, the trial court must determine whether a defendant’s conduct qualifies as so
extreme and outrageous as to permit recovery for intentional infliction of emotional distress.”
Dalley, 287 Mich App at 321. “But where reasonable individuals may differ, it is for the jury to
determine if the conduct was so extreme and outrageous as to permit recovery.” Hayley v Allstate
Ins Co, 262 Mich App 571, 577; 686 NW2d 273 (2004). “Liability does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities.” Doe v Mills, 212 Mich
App 73, 91; 536 NW2d 824 (1995). Rather, “[t]he test to determine whether a person’s conduct
was extreme and outrageous is whether recitation of the facts of the case to an average member of
the community would arouse his resentment against the actor, and lead him to exclaim,
‘Outrageous!’ ” Lewis v LeGrow, 258 Mich App 175, 196; 670 NW2d 675 (2003) (cleaned up).
In their amended complaint, plaintiffs alleged that defendants and Key agreed that
Desmond would be buried at Flint Memorial Park on November 16, 2016, at 1:30 p.m., but that as
Key was on her way to the burial she received telephone calls from relatives who informed her
that Desmond had already been buried. When Key arrived at the cemetery at 1:45 p.m. she found
that the burial was completed.
Plaintiffs argue that the trial court erred by dismissing their claim of intentional infliction
of emotional distress because defendants’ alleged act of burying Desmond before any mourners
arrived constituted reckless disregard for the interests of Desmond’s family. But, it is undisputed
that a family member was at the burial service from the beginning. Moreover, while plaintiffs
alleged that defendants buried Desmond before other mourners arrived, they did not allege that
defendants otherwise failed to bury Desmond with the dignity and respect that should be afforded
to the deceased. While an allegedly early, but otherwise proper, burial may be lamentable and
worthy of sympathy for the disappointed mourners, we conclude that the alleged conduct, even
when viewed in a light most favorable to plaintiffs, is not sufficiently extreme and outrageous to
sustain an intentional infliction of emotional distress claim. Lewis, 258 Mich App at 196; Doe,
212 Mich App at 91. Thus, the trial court properly dismissed plaintiffs’ intentional infliction of
emotional distress claims.
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B. WRONGFUL INTERFERENCE WITH THE RIGHT OF BURIAL
Plaintiffs argue that the trial court erred by dismissing their wrongful interference with the
right of burial claim. Over a century ago, our Supreme Court explained as follows:
At the common law there was said to be no property in a dead body, and in
one sense this may still be deemed an accurate technical statement; but it has been
held in a number of well-considered American cases that the one whose duty it is
to care for the body of the deceased is entitled to possession of the body, as it is
when death comes, and that it is an actionable wrong for another to interfere with
that right by withholding the body or mutilating it in any way. [Doxtator v Chicago
& WM Ry Co, 120 Mich 596, 597; 79 NW 922 (1899).]
Therefore, “[r]ecovery for the refusal of the right to bury or for mutilation of the body is rather
based upon an infringement of a right than upon the notion that the property of plaintiff has been
interfered with.” Keyes v Konkel, 119 Mich 550, 551; 78 NW 649 (1899). “The recovery in such
cases is not for the damage to the corpse as property, but damage to the next of kin by infringement
of his right to have the body delivered to him for burial without mutilation.” Id.
More recently, our Supreme Court observed, “It seems to be settled by the great weight of
authority that the unlawful and intentional mutilation of a dead body gives rise to a cause of action
on behalf of the person or persons entitled to the possession, control, and burial of such body.”
Deeg v Detroit, 345 Mich 371, 375; 76 NW2d 16 (1956). In other words, “Michigan jurisprudence
recognizes a common law cause of action on behalf of the person or persons entitled to the
possession, control, or burial of a dead body for the tort of interference with the right of burial of
a deceased person without mutilation.” Dampier v Wayne Co, 233 Mich App 714, 728; 592 NW2d
809 (1999) (cleaned up).
Plaintiffs based their claim of “wrongful interference with the right of burial” on defendants
burying Desmond before his mourners arrived. Plaintiffs rely on cases from other jurisdictions for
the proposition that burying a body early and without proper ceremony entitles the decedent’s
relatives to relief. But those cases from other jurisdictions are not binding on this Court. We will
not address those cases here because Michigan cases that we are bound to follow have already
established the elements for interference with the right of burial.
Michigan courts have long held that a deceased is entitled to burial without mutilation and
that a party cannot improperly withhold the decedent’s body. See, e.g., Doxtator, 120 Mich at
597. Plaintiffs do not allege that Desmond’s body was mutilated and, therefore, they are not
entitled to relief on this theory. Accordingly, plaintiffs are entitled to relief on this ground only if
they can show that defendants withheld Desmond’s body.
In making this inquiry we first note that plaintiffs did not allege in their amended complaint
that defendants withheld Desmond’s body from plaintiffs. Indeed, there was no evidence that
defendants did so. Under the burial contract’s terms, Key authorized defendants to inter
Desmond’s body on November 16, 2016. Moon’s employee testified that he delivered Desmond’s
body from the funeral home to defendants on that date, and there is no disagreement among the
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witnesses that Desmond was indeed buried on that day. Consequently, defendants did not
“withhold” Desmond’s body within the usual meaning of that word.
Plaintiffs assert, in a cursory fashion, that defendants did not provide Desmond’s body for
burial because he was buried before his mourners arrived. But plaintiffs do not explain how
Desmond’s burial, which was authorized by Key and apparently accomplished free from any
defects other than its timing, constituted a withholding of Desmond’s body from burial. “If a party
fails to adequately brief a position, or support a claim with authority, it is abandoned.” MOSES,
Inc v SEMCOG, 270 Mich App 401, 417; 716 NW2d 278 (2006). Thus, plaintiffs have not shown
that defendants withheld Desmond’s body from burial. Accordingly, the trial court did not err
when it dismissed plaintiffs’ wrongful interference with the right of burial claim.
C. BREACH OF CONTRACT
Key next argues that the trial court erred by dismissing her breach-of-contract claim for
lack of jurisdiction, and defendants argue on cross-appeal that the trial court erred by denying their
motion for summary disposition of Key’s contract claim. “Whether a lower court has subject-
matter jurisdiction is a question of law that this Court reviews de novo.” Maple Manor Rehab Ctr,
LLC v Dep’t of Treasury, 333 Mich App 154, 162; 958 NW2d 894 (2020). This Court reviews de
novo questions of contract interpretation. Burkhardt v Bailey, 260 Mich App 636, 646; 680 NW2d
453 (2004).
1. DAMAGES AND JURISDICTION
“Circuit courts are courts of general jurisdiction, vested with original jurisdiction over all
civil claims and remedies ‘except where exclusive jurisdiction is given in the constitution or by
statute to some other court . . . .’ ” Papas v Gaming Control Bd, 257 Mich App 647, 657; 669
NW2d 326 (2003), quoting MCL 600.605. “The district court has exclusive jurisdiction in civil
actions when the amount in controversy does not exceed $25,000.00.” MCL 600.8301(1). “As a
rule, when a court of competent jurisdiction becomes possessed of a case, its authority continues
until the matter is finally and completely disposed of, and no court of co-ordinate authority is at
liberty to interfere with its action.” Zimmer v Byers, 319 Mich 410, 416; 29 NW2d 838 (1947)
(cleaned up).
“A court’s subject-matter jurisdiction is determined only by reference to the allegations
themselves, not the subsequent proceedings.” Luscombe v Shedd’s Food Prod Corp, 212 Mich
App 537, 541; 539 NW2d 210 (1995). Nonetheless, a circuit court may dismiss a complaint that
asserts damages in excess of $25,000 for lack of subject-matter jurisdiction when affidavits,
depositions, admissions, or other documentary evidence show incontrovertibly that amount could
not be proved because “the complaint would essentially be one pleaded in bad faith.” Meisner
Law Group PC v Weston Downs Condo Ass’n, 321 Mich App 702, 720; 909 NW2d 890 (2017).
Generally, the “recovery of damages for the breach of a contract is limited to
those damages that are a natural result of the breach or those that are contemplated by the parties
at the time the contract was made,” and, therefore, “it is generally held that damages for
emotional distress cannot be recovered for the breach of a commercial contract.” Lane v
KinderCare Learning Ctrs, Inc, 231 Mich App 689, 692-693; 588 NW2d 715 (1998). But
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“damages for emotional distress may be recovered for the breach of a contract in cases that do not
involve commercial or pecuniary contracts, but involve contracts of a personal nature.” Id. at 693.
Our Supreme Court explained as follows:
When we have a contract concerned not with trade and commerce but with
life and death, not with profit but with elements of personality, not with pecuniary
aggrandizement but with matters of mental concern and solicitude, then a breach of
duty with respect to such contracts will inevitably and necessarily result in mental
anguish, pain and suffering. In such cases the parties may reasonably be said to
have contracted with reference to the payment of damages therefor in event of
breach. Far from being outside the contemplation of the parties they are an integral
and inseparable part of it. [Stewart v Rudner, 349 Mich 459, 471; 84 NW2d 816
(1957).]
“Examples of personal contracts include . . . a contract for the care and burial of a dead
body . . . .” Lane, 231 Mich App at 693-694. And a plaintiff may “recover for mental anguish
arising out of a breach of contract despite the lack of any physical injuries to plaintiff.” Avery v
Arnold Home, Inc, 17 Mich App 240, 243; 169 NW2d 135 (1969). This is because “the law
protects interests of personality, as well as the physical integrity of the person, and that emotional
damage is just as real (and as compensable) as physical damage.” Stewart, 349 Mich at 467.
Key argues that the trial court erred by ruling that she could not recover emotional-distress
damages for her contract claim, and therefore failed to appreciate that her claim for such damages
kept her claim within the trial court’s jurisdiction. Key is correct.
There is no dispute that Key’s contract with defendants was a contract for the burial of the
remains of a deceased person. As noted, this Court has recognized that “a contract for the care
and burial of a dead body” qualifies as a personal contract subject to recovery of damages for
emotional distress. Lane, 231 Mich App at 693-694. Thus, the trial court erred when it ruled that
Key could not recover emotional distress damages for her breach-of-contract claim, and therefore
it had subject matter jurisdiction over the matter.
2. SUMMARY DISPOSITION OF KEY’S CONTRACT CLAIM
On cross appeal defendants argue that the parol evidence rule should have barred
consideration of plaintiffs’ extrinsic evidence to vary the burial contract’s terms and that they did
not breach the contract by burying Desmond before Key and her family arrived. A breach of
contract claim has three elements: “(1) that there was a contract, (2) that the other party breached
the contract, and (3) that the party asserting breach of contract suffered damages as a result of the
breach.” Doe v Henry Ford Health Sys, 308 Mich App 592, 601-602; 865 NW2d 915 (2014).
Defendants argue that they did not breach the burial contract because they were not required to
wait until Key’s arrival around 1:45 p.m. to bury Desmond.
Determining whether defendants breached the burial contract requires us to consider the
contract’s terms and conditions. “[C]ontracts must be read as a whole,” Kyocera Corp v Hemlock
Semiconductor, LLC, 313 Mich App 437, 447; 886 NW2d 445 (2015), giving “effect to every
word, phrase, and clause,” while taking pains to “avoid an interpretation that would render any
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part of the contract surplusage or nugatory,” Klapp v United Ins Group Agency, Inc, 468 Mich
459, 468; 663 NW2d 447 (2003). Accordingly, “[t]he construction or interpretation of written
contracts consists in ascertaining the meaning of the parties, as expressed in the terms of the
writing, according to the rules of grammar.” Pendill v Maas, 97 Mich 215, 218; 56 NW 597
(1893).
The burial contract stated that a funeral service would take place at 11:00 a.m. and the “est.
arrival at cemetery” was 1:00 p.m. The contract did not state a time for Desmond’s burial and left
the section titled “other special instructions/special equipment” blank. It is well-settled that
“[w]hen a contract does not identify a time for performance, as this one did not, ‘the law will
presume a reasonable time.’ ” Matter of Prichard’s Estate, 410 Mich 587, 592; 302 NW2d 554
(1981), quoting Duke v Miller, 355 Mich 540, 543, 94 NW2d 819 (1959). Whether a contractual
obligation has been completed within a “[r]easonable time depends upon the facts and
circumstances of each case.” Jackson v Estate of Green, 484 Mich 209, 217; 771 NW2d 675
(2009) (cleaned up). “Where facts are in dispute, it presents a question of fact for the jury.”
Reinforced Concrete Co v Boyes, 180 Mich 609, 616; 147 NW 577 (1914). But when “the question
of reasonable time depends, however, upon the construction of a contract in writing or upon
undisputed facts outside of the contract, it becomes a matter of law.” Id.
The burial contract itself does not provide instructions for what defendants were supposed
to do if Desmond’s mourners failed to arrive at 1:00 p.m. Similarly, the contract does not state
how many mourners, if any, were expected. Key asserts that the burial was supposed to occur at
1:30 p.m. and that she informed defendants that she expected many mourners to be present at the
burial. But all of that evidence is extrinsic because none of it appears in the burial contract.
Extrinsic evidence is admissible to define ambiguous contract terms, In re Smith Trust, 480 Mich
19, 24; 745 NW2d 754 (2008), to determine whether a contract is fully integrated, Schmude Oil
Co v Omar Operating Co, 184 Mich App 574, 580; 458 NW2d 659 (1990), and in instances of
fraud, UAW-GM Human Resource Ctr v KSL Recreation Corp, 228 Mich App 486, 492-493; 579
NW2d 411 (1998). None of those circumstances apply here. The burial contract does not have an
ambiguous burial time; rather, it simply does not specify a time for burial. A missing term is not
the same as an ambiguous one. Additionally, Key has not made any argument that the contract
was not fully integrated or that it was fraudulent. Thus, we must determine whether Desmond was
buried in a reasonable time based on the contract’s terms and the undisputed events on the date of
Desmond’s burial.
On the day of Desmond’s burial his body arrived before 1:00 p.m., but only one relative
arrived between then and at least 1:30 p.m. That relative was present at the burial site and
eventually gave defendants’ employees permission to bury Desmond because he did not know if
any other mourners were coming. Based on the written contract defendants had no contrary
information; they also had no instructions from that document that they should wait a specific
amount of time before burying Desmond. Accordingly, defendants waited about half an hour,
obtained consent to bury Desmond from the one relative who was present, and then complied with
that relative’s request to bury Desmond. Burying Desmond after waiting about half an hour was
certainly reasonable given that defendants’ employees had no knowledge regarding if or when
other mourners would arrive. Additionally, defendants’ employees stopped burying Desmond as
soon as they were told that Key and her family were coming to the burial. Defendants did not
breach the contract’s plain language.
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We acknowledge that the circumstances of this case are lamentable, but when parties enter
into a written contract, that document controls over even contrary oral statements. Even reading
the record in the light most favorable to Key, we conclude that defendants buried Desmond within
a reasonable time and did not breach the burial contract. The trial court erred by concluding that
a dispute of material fact existed on this issue, but it nevertheless correctly dismissed Key’s breach
of contract claim. Thus, we affirm the trial court’s dismissal of Key’s breach of contract claim,
albeit on different grounds than those given by the trial court.
III. CONCLUSION
For the reasons stated in this opinion, we affirm the trial court’s order granting summary
disposition to defendants and dismissing plaintiffs’ claims.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Anica Letica
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