Court of Appeals of Missouri, Eastern District, Writ Second Division
STATE OF MISSOURI ex rel. CHEVRA KADISHA CEMETERY ASSOCIATION, Relator,
HONORABLE GLORIA CLARK RENO Circuit Judge, Division 19, Twenty-First Judicial Circuit, Respondent.
Prohibition Circuit Court of St. Louis County Cause No.
LAWRENCE E. MOONEY, JUDGE
Chevra Kadisha Cemetery Association seeks a Writ of
Prohibition to prohibit the circuit court from taking any
farther action after the circuit court held the cemetery in
contempt for refusing to allow the disinterment of Gregoriy
Bozenson. We issued a preliminary order in prohibition.
Because the cemetery is not a party, we now make that order
Bozenson was a Ukrainian-born mathematics and science teacher
who arrived in St. Louis in 1993. On March 5, 2012 he entered
into and executed a contract for cremation services with
American Mortuary and Cremation Service, LLC. The mortuary
agreed to cremate the remains of Mr. Bozenson upon his death.
The cremains were then to be shipped to Mr. Bozenson's
heirs, for interment next to Mr. Bozenson's late wife in
the Ukraine. Mr. Bozenson's sole heirs, a daughter,
Izabella Zantariia, and two grandchildren, Svetlana Kolova
and Vadym Zantariia, live in Germany and the Ukraine.
Bozenson died on September 25, 2012, The mortuary, however,
did not cremate Mr. Bozenson's remains. Instead, the
mortuary and the Ahavas Chesed Society arranged for Mr.
Bozenson to be interred in a pauper's grave at the
cemetery. Burial occurred without the knowledge or
consent of Mr. Bozenson's heirs.
Bozenson's heirs and Jay B. Umansky, the purported
personal representative of Mr. Bozenson's estate, sued
the mortuary in February of 2014, seeking damages for breach
of contract. They also requested that the circuit court
grant them the right of sepulcher as to Mr. Bozenson's
remains. The circuit court granted this request,
and on March 5, 2015, ordered that the remains of Mr.
Bozenson be disinterred at the plaintiffs' expense, and
then turned over to Mr. Umansky for transport to the Ukraine
for interment. The plaintiffs and the mortuary settled
the breach-of-contract claim.
circuit court issued writs of execution on two separate
occasions, July 15, 2015 and August 25, 2016. Each writ
directed the cemetery to make Mr. Bozenson's remains
available to plaintiffs for disinterment and transfer to the
Ukraine for burial. The cemetery did not allow the
of 2017, on plaintiffs' motion, the circuit court ordered
the cemetery to show cause why it had failed to comply with
the disinterment order and attempts at execution, and why it
should not be held in contempt under Rule 74.07. The circuit
court heard arguments and took the matter under submission,
The cemetery then filed its petition for writ of prohibition.
On July 7, 2017, the circuit court held the cemetery in
contempt of court for failing to comply with the court's
orders. The circuit court ordered the cemetery to make the
remains of Mr. Bozenson available to plaintiffs for
disinterment within fourteen days. If the cemetery failed to
do so, the court ordered the cemetery fined $2, 500 per day
until such time as the cemetery made the remains of Mr.
Bozenson available to plaintiffs for disinterment. This Court
issued a preliminary order in prohibition and stayed the
contempt order. We dispense with further briefing and oral
arguments as permitted by Rule 84.24(i).
Court has the authority to "issue and determine original
remedial writs." Mo. Const. art. V, sec. 4.1; State
ex rel. Merrell v. Carter, 518 S.W.3d 798, 799 (Mo. banc
2017); St. Louis Cty. Bd of Election Commissioners v.
McShcme, 492 S.W.3d 177, 180 (Mo. App. E.D. 2016).
"A writ of prohibition is appropriate: (1) to prevent
the usurpation of judicial power when a lower court lacks
authority or jurisdiction; (2) to remedy an excess of
authority, jurisdiction or abuse of discretion where the
lower court lacks the power to act as intended; or (3) where
a party may suffer irreparable harm if relief is not
granted." State ex rel. Strauser v. Martinez,
416 S.W.3d 798, 801 (Mo. banc 2014). This Court will exercise
its discretionary authority to issue a writ of prohibition
when the facts and circumstances demonstrate unequivocally
that an extreme necessity for preventive action exists.
State ex rel Ballenger v. Franklin, 114 S.W.3d 883,
885 (Mo. App. W.D. 2003); State ex rel. Snider v.
Flynn, 926 S.W.2d 891, 894 (Mo. App. E.D. 1996). Such a
situation exists here. In holding the cemetery in contempt,
the circuit court has ruled against an entity that is not a
party. Preventative action is warranted and necessary.
74.07 provides in part that '[i]f a judgment directs
a party ... to perform any other specific act and
the party fails to comply ... the court may direct
the act to be done .... The court may also adjudge the
party in contempt." Rule 74.07 (Emphasis
supplied). The circuit court held the cemetery in
contempt for failing to abide by the court's March 5,
2015 disinterment order. That order is only binding on the
parties to the order and those in privity with them.
Strauss v. Ayres, 87 Mo. 348, 350 (Mo. 1885);
Green v. Fred Weber, Inc., 254 S.W.3d 874, 884 (Mo.
banc 2008). The circuit court entered the disinterment order
in an action between the heirs and the mortuary. The cemetery
was not a party to that action. Nor can it be said that the
cemetery was in privity with either the heirs or the
mortuary. No such contention is made and the record
does not support such a conclusion. The cemetery is thus not
bound by the disinterment order. A trial court's judgment
does not bind one not before the court. Pauli v.
Spicer, 445 S.W.3d 667, 676 (Mo. App. E.D. 2014);
Epstein v. Villa Dorado Condo. Ass'n, Inc., 316
S.W.3d 457, 461 (Mo. App. E.D. 2010). It is a violation of
due process for a judgment to be binding on a litigant who
was not a party or a privy and therefore has never had an
opportunity to be heard." Parklam Hosiery Co. v.
Shore, 439 U.S. 322, 327 n.7 (1979). Here, the cemetery
is not a party or otherwise bound by the disinterment order.
Thus, the trial court did not have jurisdiction over the
cemetery and it cannot be held in contempt for failing to
abide by that order.
circuit court exceeded its authority. We make our preliminary
order in prohibition permanent. The circuit judge is directed
to vacate her order of July 7, 2017 and deny without
prejudice the motion to hold the cemetery in
GAERTNER, JR., J. and ANGELA T. ...