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Carruthers v. Serenity Memorial Funeral and Cremation Service, LLC

Court of Appeals of Missouri, Eastern District, First Division

June 4, 2019


          Appeal from the Circuit Court of the City of St. Louis Honorable Barbara T. Peebles


          ANGELA T. QUIGLESS, J.

         Serenity Memorial Funeral and Cremation Service, LLC ("Serenity") appeals from the judgment of the trial court in favor of Alma J. Carruthers ("Ms. Carruthers") on her claim seeking to recover the money paid to Serenity for the cremation of her deceased son, Ricky Whitby, ("Decedent"). Serenity asserts one point on appeal, arguing the trial court erred in entering judgment in favor of Ms. Carruthers based on its conclusion that Serenity failed to turn over Decedent's cremated remains to Ms. Carruthers, as required by Section 194.350.[1] We reverse the judgment.

         Factual and Procedural Background

         Ms. Carruthers is Decedent's mother. Secoy Webb ("Mr. Webb") is Decedent's son and Ms. Carruthers' grandson. In December of 2017, while Decedent was gravely ill, Ms. Carruthers purchased a funeral insurance policy for $1, 795 through Serenity's "pre-need agent" to pay for Decedent's final arrangements. Ms. Carruthers also signed an authorization with Serenity indicating she was Decedent's next-of-kin or acting on behalf of the next-of-kin. Upon Decedent's death in January of 2018, Ms. Carruthers authorized Serenity "to take charge of the funeral arrangements for [Decedent]."

         While Ms. Carruthers was meeting with Serenity to discuss the final arrangements for Decedent, Mr. Webb arrived at Serenity's office. Ms. Carruthers told Serenity Mr. Webb was Decedent's son, after which Serenity informed Ms. Carruthers that Mr. Webb had the legal right to decide how to dispose of Decedent's remains under Missouri's right of sepulcher statute, Section 194.119. While Ms. Carruthers wanted Decedent to have a cremation and a visitation, Mr. Webb wanted to have a funeral and burial because that is what Decedent would have wanted. Serenity informed Mr. Webb of the additional costs for a funeral and burial. Ms. Carruthers told Mr. Webb, if he wanted Decedent to be buried he would have to pay for it himself as she was not paying for a burial. Ms. Carruthers informed Serenity she would only allow the money from the insurance policy to be used for a visitation and cremation.

         Mr. Webb was unable to come up with the additional money for a burial. He agreed to have Decedent cremated and signed a contract with Serenity. The contract was entitled "Statement of Funeral Goods and Services Selected." It provided that Serenity agreed to cremate Defendant, hold a visitation, and perform other related services in exchange for Mr. Webb's agreement to pay Serenity $1, 795 and provide a guaranteed form of payment forty-eight hours prior to the service. The contract was silent as to what Serenity should do with Decedent's remains after the visitation.

         Serenity received the funds from Ms. Carruthers' insurance policy to pay for Decedent's cremation and performed the services provided for in the contract with Mr. Webb. Afterwards, Ms. Carruthers went to collect Decedent's remains and Serenity informed her that Mr. Webb had already collected the remains.

         Ms. Carruthers filed a petition against Serenity in small claims court, seeking recovery of the $1, 795 she paid Serenity, arguing she was entitled to get her money back because Serenity did not provide her with Decedent's remains, which she was entitled to as the person who paid for Decedent's final arrangements. The court entered judgment in favor of Serenity. Ms. Carruthers filed a petition for trial de novo in the circuit court. Following a bench trial, the circuit court entered judgment in favor of Ms. Carruthers and ordered Serenity to pay Ms. Carruthers $1, 795 in damages, plus costs. This appeal follows.


         I. Compliance with Mandatory Briefing Requirements of Rule 84.04

         Before proceeding to the analysis of Serenity's arguments, we direct Serenity's attention to Missouri Supreme Court Rule 84.04 (2018), [2] which sets forth requirements for the contents of appellate briefs.

         Rule 84.04(e) requires appellants to include in their argument for each claim of error "a concise statement describing whether the error was preserved for appellate review; if so, how it was preserved; and the applicable standard of review." Rule 84.04(e), see In re V.C. N.C. & T.D.C.C., 458 S.W.3d 443, 450 (Mo. App. E.D. 2015). Serenity's appellant brief fails to comply with Rule 84.04(e) because it neither describes how its claim of error was preserved for appellate review, nor states the applicable standard of review. Either deficiency would be grounds for us to dismiss Serenity's appeal because the failure to comply with Rule 84.04(e) "preserves nothing for appellate review." Fritz v. Fritz (In re Fritz), 243 S.W.3d 484, 487 (Mo. App. E.D. 2007). "While it would be easy enough for this court to determine the applicable standard of review, it is not our duty to supplement the deficient brief with our own research." In re V.C. N.C. & T.D.C.C., 458 S.W.3d at 447 ("The standard of review is an essential portion of all appellate arguments; it outlines this court's role in disposing of the matter before us."). Neither is it our job to "comb the record" in search of facts to support Serenity's claim of error or demonstrate it is properly preserved for appellate review. See Wong v. Wong, 391 S.W.3d 917, 919-20 (Mo. App. E.D. 2013); Bramer v. Abston, 553 S.W.3d 872, 879 (Mo. App. S.D. 2018) (an appellant's failure to "ascertain the preservation status" of his or her claims and "present argument in conformance with the applicable standard of review[] drastically undercuts the efficacy" of appellant's arguments).

         Rule 84.04(d)(5) requires appellants to "include a list of cases, not to exceed four, and the constitutional, statutory, and regulatory provisions or other authority upon which that party principally relies." Serenity's brief fails to comply with Rule 84.04(d)(5) in that it does not cite any appropriate precedent to support its claims of error. See Brown v. Ameristar Casino Kan. City, Inc., 211 S.W.3d 145, 147-48 (Mo. App. W.D. 2007). The only legal citations in Serenity's entire brief are two statutes. Although Serenity cites the relevant statutes, Serenity fails to cite any cases supporting its arguments. "[A]n appellant must cite legal authority to support his points relied on if the point is one in which precedent is appropriate or available; if no authority is available, an explanation should be made for the absence of citations." In re Fritz, 243 S.W.3d at 488. ...

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