Whitney v. Cervantes

328 P.3d 957, 182 Wash. App. 64
CourtCourt of Appeals of Washington
DecidedJune 24, 2014
DocketNos. 31415-4-III; 31475-8-III
StatusPublished
Cited by3 cases

This text of 328 P.3d 957 (Whitney v. Cervantes) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitney v. Cervantes, 328 P.3d 957, 182 Wash. App. 64 (Wash. Ct. App. 2014).

Opinion

Lawrence-Berrey, J.

¶1 Theresa Whitney sought control over burial of her uncle’s body. Rick Phillips of Telford’s Chapel of the Valley denied Ms. Whitney’s request and allowed Cecelia Cervantes, the uncle’s personal representative, to control burial. Ms. Whitney and her sister, Rose Ann Sands, filed suit against Mr. Phillips and Telford’s for interference with the next of kin’s right to control burial of a family member, tortious interference with a dead body, and negligence. Mr. Phillips and Telford’s moved for summary judgment. The trial court dismissed all claims, finding that the sisters failed to prove that Mr. Phillips acted intentionally when he denied control over the burial. Ms. Whitney and Ms. Sands appeal. Finding no error, we affirm.

FACTS

¶2 Lawrence Wilhalm died in January 2011. He was not married, had no children, and outlived his parents and siblings. Mr. Wilhalm’s closest surviving relatives were his nieces, Ms. Whitney and Ms. Sands, and their brother.

¶3 In 1999, more than 10 years before his death, Mr. Wilhalm executed a valid will that included burial plans. He wished for a burial according to the Catholic faith, with services to be held at the Saint Rose of Lima Catholic Church [67]*67and interment in the church cemetery. Additionally, he stated that he made arrangements with Nicoles Funeral Home of Ephrata, Washington, gave the model and color of the casket, the dimensions and description of the tombstone, and the color of suit in which he wanted to be buried. Mr. Wilhalm’s will stated that any changes or other details regarding his funeral arrangements shall be set forth in a separate letter of interment. Mr. Wilhalm’s will named Cecelia Cervantes as his alternate personal representative to manage, settle, and administer his estate in accordance with the will. Ms. Cervantes is an attorney.

¶4 In 2010, Mr. Wilhalm created a document entitled “Burial Instructions: Lawrence E. Wilhalm.” Clerk’s Papers (CP) at 46. Again, he requested a Catholic funeral and burial at Saint Rose of Lima Cemetery in Ephrata. As a new addition, he stated that his personal representative shall arrange for his burial, transportation, and interment of his remains through Telford’s or another facility within the personal representative’s discretion. The document was signed by Mr. Wilhalm, but was not signed by a witness. Ms. Cervantes’s law office prepared Mr. Wilhalm’s 2010 burial instructions.

¶5 After Mr. Wilhalm died at a Spokane hospital, Ms. Cervantes contacted the hospital for release of his remains. The hospital sent Ms. Cervantes a letter stating that it was releasing Mr. Wilhalm’s remains to Telford’s based on Ms. Cervantes’s status as personal representative, Mr. Wilhalm’s instructions, and Ms. Cervantes’s representation that there was no prepaid plan at Nicoles Funeral Home.

¶6 Ms. Cervantes contacted Mr. Phillips at Telford’s. Based on a prior encounter with Mr. Wilhalm, Mr. Phillips knew that Ms. Cervantes was Mr. Wilhalm’s attorney and that Mr. Wilhalm wanted Telford’s to handle his funeral arrangements. Ms. Cervantes showed Mr. Phillips the burial instructions indicating Mr. Wilhalm’s wishes. Ms. Cervantes said that she was acting as the personal representative of Mr. Wilhalm’s estate and would be in charge of [68]*68the funeral and burial. Mr. Phillips did not see a reason to question Ms. Cervantes’s authority to act as Mr. Wilhalm’s personal representative.

¶7 Ms. Whitney contacted the hospital within 48 hours of her uncle’s death. She was told that Ms. Cervantes gave the hospital instructions with respect to Mr. Wilhalm’s body. She then contacted Telford’s and spoke to Mr. Phillips to make funeral plans and arrangements. She informed Mr. Phillips that she was Mr. Wilhalm’s closest surviving relative. She advised Mr. Phillips that Mr. Wilhalm had made arrangements with Nicoles Funeral Home and that she wanted to make sure that her uncle’s wishes were followed. She also inquired about Mr. Wilhalm’s burial policies, the amounts of the policies, and the named beneficiaries of the policies.

¶8 Mr. Phillips told Ms. Whitney that Ms. Cervantes claimed to be in charge of making Mr. Wilhalm’s funeral arrangements and that Ms. Cervantes presented documents to establish her authority to do so. Ms. Whitney was upset and overwhelmed emotionally. When asked what documents were presented, Mr. Phillips told Ms. Whitney only that the documents were in order and that he was going to allow Ms. Cervantes to control the disposition of Mr. Wilhalm’s body.

¶9 Ms. Whitney contacted Mr. Phillips three more times and asked about the paperwork and reminded him that Ms. Cervantes was not related to Mr. Wilhalm. Mr. Phillips did not respond to the inquiries. Mr. Phillips also would not provide the time, date, and location of the funeral service, and explained that Ms. Whitney would need to contact Ms. Cervantes for the information.1

¶10 Eventually, Ms. Whitney was told by a church parishioner that the funeral service was scheduled for the next day at Saint Rose of Lima Catholic Church in Ephrata. [69]*69Despite the short notice, Ms. Whitney and Ms. Sands attended the service. At the conclusion of the funeral, Mr. Phillips approached Ms. Whitney and demanded that she give Ms. Cervantes the guest book.

¶11 Ms. Whitney and Ms. Sands (collectively Ms. Whitney) filed a complaint for damages against Mr. Phillips and Telford’s (collectively Mr. Phillips) and Ms. Cervantes for interfering with the sisters’ right as next of kin to control disposition of Mr. Wilhalm’s remains.2 Ms. Whitney asserted (1) intentional interference with the right to control and direct the burial of a family member’s corpse, (2) tortious interference with a dead body, and (3) negligence. Mr. Phillips moved for summary judgment dismissal of all claims.

¶12 The trial court reviewed the declarations from Ms. Whitney, Ms. Sands, and Mr. Phillips. The court concluded that Ms. Whitney failed to establish an intentional act for the purpose of summary judgment. Also, the court concluded that Washington has not adopted the Restatement that permits an action based on negligence. Thus, the court granted Mr. Phillips’s motion for summary judgment and dismissed Ms. Whitney’s claims with prejudice. A stipulated order was thereafter entered pursuant to CR 54(b), permitting Ms. Whitney’s appeal of the summary judgment prior to adjudicating her claims against Ms. Cervantes.

ANALYSIS

¶13 Right To Control and Direct Burial. A trial court’s decision on summary judgment is reviewed de novo, meaning this court will engage in the same inquiry as the trial court. Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 197, 943 P.2d 286 (1997). Summary judgment is proper if the record before the court shows that there are no genuine issues of material fact and the moving party is entitled to [70]*70judgment as a matter of law. Id. at 197-98 (quoting CR 56(c)). “The facts and all reasonable inferences therefrom must be considered in the light most favorable to the nonmoving party.” Id. at 198. The facts presented must be more than speculative and argumentative assertions. Adams v. King County, 164 Wn.2d 640, 647, 192 P.3d 891 (2008). “The court should grant summary judgment ‘only if reasonable persons could reach but one conclusion.’ ” Id.

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Bluebook (online)
328 P.3d 957, 182 Wash. App. 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitney-v-cervantes-washctapp-2014.