Alderwoods Group, Inc. v. Garcia

119 So. 3d 497, 2013 WL 3927691, 2013 Fla. App. LEXIS 12002
CourtDistrict Court of Appeal of Florida
DecidedJuly 31, 2013
DocketNo. 3D11-1497
StatusPublished
Cited by6 cases

This text of 119 So. 3d 497 (Alderwoods Group, Inc. v. Garcia) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alderwoods Group, Inc. v. Garcia, 119 So. 3d 497, 2013 WL 3927691, 2013 Fla. App. LEXIS 12002 (Fla. Ct. App. 2013).

Opinion

EMAS, J.

Alderwoods Group, Inc., Osiris Holding of Florida, Inc. d/b/a Graceland Memorial Park South, f/k/a/ Paradise Memorial Gardens, Inc., and Northstar Graceland, LLC (collectively “Alderwoods”), former and current owners and operators of Graceland Memorial Park South Cemetery (the “Cemetery”), appeal the lower court’s non-final order granting class certification. For the reasons that follow, we reverse.

I. FACTS

Appellees, Reyvis Garcia, Ramona Johnson, and Mercedes Woodberry (collectively the “Representative Plaintiffs”) have family members buried at the Cemetery. They filed suit against Alderwoods, asserting each of the Representative Plaintiffs sought to locate their relatives’ graves but were unable to do so.

A. Background

The Cemetery opened in 1959 at Southwest 117th Avenue and 139th Street in Miami, Florida, extending east to west from 117th Avenue to the Florida Turnpike. Thousands of people are buried in what is deemed the “old section” of the Cemetery, consisting of approximately seven acres of the nearly thirty-five acre plot of land. The old section contains burials from approximately 1959 until at least 1993, and includes more than 5000 graves.

B. The Comptroller’s Investigation

In mid-1996, the Comptroller of the State of Florida, as head of the Florida Department of Banking and Finance (the “Department”), commenced an investigation of the Cemetery pursuant to the provisions of the Florida Funeral and Cemetery Services Act, Chapter 497, Florida Statutes (1996) (“Cemetery Act”). The Department noted serious deficiencies in the Cemetery’s books and records, determining them to be “unexaminable.” On February 20, 1997, the Department and Osiris Holding Corporation entered into a stipulation and consent order. Under the terms of this order, the Cemetery-in lieu of immediate administrative suspension for its inability to be examined-received a fine and was required to retain certified public accountants to perform an audit. The order further required that, no later than July 31, 1997, the Cemetery would bring its books and records into compliance with the Cemetery Act. The Department subsequently placed the Cemetery on probation pursuant to sections 497.233(l)(a), (i), (j) and (w) of the Cemetery Act.1

The Cemetery violated the terms of the stipulation and consent order by failing to bring its books and records into compliance with the Cemetery Act by the agreed-upon deadline. On January 12, 1999, the Department issued a cease and desist order, finding an immediate danger to the public welfare. The Department concluded the Cemetery was “unable to rehabilitate [its] operations,” failed to implement the CPA’s recommendations, and “failed to make corrections to [its] books, records and processes” that would bring it into compliance. As a result, the Department suspended the Cemetery’s license as it pertained to: entering into preneed con[500]*500tracts; engaging in sales; advertising pre-need services, preneed merchandise and preneed burial rights; entering into pre-construction sales contracts; engaging in preconstruction sales; and advertising and soliciting at-need sales. The Department suspended the Cemetery’s license until such time as the Cemetery came into compliance with the requirements of the Cemetery Act.

The suspension remained in effect until July of 2002, when the Department conducted examinations to determine compliance with the 1999 cease and desist order. The Department issued a report concluding that the majority of the problems it identified during the 2002 examination were inconsistent cemetery records. Thereafter, on December 23, 2002, the Department issued a final order (the “Final Order”) on a new stipulation between the parties executed on the same date, finding “no current and continuing violations, which justify continuing the suspension of preneed sales by [the Cemetery],” but otherwise requiring strict compliance with all provisions of the Cemetery Act. Specifically, the Final Order provided that within sixty days, the Cemetery was obligated to “(1) [reconcile its burial space inventory and burial rights ownership records at Graceland Memorial Park; (2) provide a Reconciliation Report to the Department of its findings and corrections; and (3) provide appropriate notification to any affected customers.” Within twenty-four months from the effective date of the Final Order, the Department would assess the Cemetery’s compliance.

C. Events Giving Rise to the Instant Lawsuit

The events giving rise to the instant lawsuit began shortly after the issuance of the above-described 2002 Final Order. Thereafter, in December 2004, Reyvis Ramon Garcia filed suit against Alderwoods. Following a deposition of the cemetery manager, Yvette McPhillips2, Garcia added the class action allegations in June 2006 and Ramona Johnson and Mercedes Wood-berry were added as plaintiffs in October 2006. Each of the Representative Plaintiffs was alleged to have a relative buried in the old section of the Cemetery between 1986 and 1993, and each allegedly had difficulty locating the gravesites of their respective family member. The allegations surrounding each of their family members’ gravesites are as follows:

• Reyvis Ramon Garcia’s mother, Eloísa, was buried in the old section on March 20,1986. Garcia arrived from Cuba in 2003 intending to pay respects to his mother’s grave, but her body could not be readily found and the Cemetery was “never able to tell [him] exactly where she was buried.” He admits his family did not purchase a memorial to mark the grave. When Garcia subsequently went to visit the grave of his aunt who was also buried at the Cemetery, her grave was found without issue. However, while he was at the Cemetery, he observed employees inserting metal bars into the ground, a process called “probing,” and was told the Cemetery was attempting to locate his mother’s grave. He became upset with what he saw. After eventually narrowing down the location at which [501]*501his mother was believed to be buried, Cemetery employees, in the presence of a licensed funeral director, removed the lid of the outer burial container believed to be Eloisa’s and inspected the casket without removing either the casket or remains. The parties confirmed that the remains were those of Eloísa. Garcia is the only Representative Plaintiff who alleges his family member’s interred remains were disturbed in some manner.
• Ramona Johnson’s father, Robert Williams, was buried in the old section of the Cemetery in June 1993 with a temporary marker on his grave. Thereafter, Johnson’s attempts to locate her father’s grave on several occasions were unsuccessful because the temporary marker was missing. The temporary marker was simply a piece of paper in a plastic cover and was only supposed to identify the grave until a tombstone was purchased by the family. No tombstone was ever purchased. Though she went to the cemetery in 2001, 2003 and 2004, Johnson did not make an inquiry about the location of her father’s remains until 2006. At that time, the Cemetery could not locate or identify his grave in its books. Johnson never asked the lower court to order an inspection of the grave believed to be that of her father.
• Mercedes Woodberry’s child, Constance Grace, was stillborn.

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Bluebook (online)
119 So. 3d 497, 2013 WL 3927691, 2013 Fla. App. LEXIS 12002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alderwoods-group-inc-v-garcia-fladistctapp-2013.