JUSTICE et al.
SCI GEORGIA FUNERAL SERVICES, INC. et al
Contract, etc. Muscogee Superior Court. Before Judge Rumer.
James D. Patrick, for appellants.
Weinberg, Wheeler, Hudgins, Gunn & Dial, John M. Hawkins, Stephen W. Mooney, for appellees.
MCFADDEN, Judge. Andrews, P. J., concurs. Ray, J., concurs fully in Divisions 1, 2, 3, and 4, and in the judgment only in Division 5.
This appeal is from a grant of summary judgment to the funeral home defendants in a case arising out of their failure to ensure that the cremated remains of appellants' decedent were in the urn that was to contain them. Appellants' claims include breach of contract, interference with burial rights, invasion of privacy, intentional infliction of emotional distress and trespass. The grant of summary judgment on the breach of contract claim was premised on the trial court's finding that there were no actual damages arising from the alleged breach. That finding was correct, but because nominal damages may still be recovered, summary judgment on that claim was improper and must be reversed. As to the remaining claims challenged on appeal, there exist no genuine issues of material fact, and we thus affirm the grant of summary judgment on those claims.
Summary judgment is appropriate " if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56 (c). We apply a de novo standard of review " to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant." Moore v. Camara, 317 Ga.App. 651, 652 (732 S.E.2d 319) (2012).
So viewed, the evidence shows that Monica Rivera passed away on December 22, 2007. The following day, Rivera's mother, Linda Justice, contracted with SCI Georgia Funeral Services, Inc., d/b/a Striffler-Hamby Mortuary, to provide cremation and memorial services for $4,850. Among other things, the contract provided for transfer of the cremated remains from the crematory to the funeral home, an urn, and a memorial service. The memorial service was held on the morning of December 28, 2007, in the Striffler-Hamby funeral home chapel. In preparing for the service, funeral director Dale Land retrieved the urn with Rivera's name noted on it from an office in the funeral home, looked inside the urn, saw that it contained a temporary container used to hold the decedent's ashes, and assumed that Rivera's ashes were inside that container. Land placed the urn in the chapel for the service. At the conclusion of the service, Land gave the urn to Justice, who took it to her house and put it on her mantel.
Later that afternoon, Rivera's ashes were delivered by the crematory to the funeral home. Upon learning of the delivery and that the ashes were not in the urn, Land called Justice and asked if he [329 Ga.App. 636] could come speak with her. Justice agreed, and Land then drove to her house. Once there, he explained that the ashes were not in the urn and apologized. He asked for permission to take the urn back to the funeral home so he could put the ashes in it. Justice gave him permission to do so.
After he had returned to the funeral home, Land opened the temporary container in the urn and found that it was indeed empty. He then put Rivera's cremated remains inside it and drove back to Justice's house. He knocked on the screen door, heard voices inside, entered and placed the urn with the ashes back on the mantel in the living room. Justice and a friend then came into the room and spoke briefly with Land. He assured Justice that he had personally placed the decedent's ashes in the urn, apologized again, and left. Thereafter, Striffler-Hamby canceled the amount due under the contract, did not charge Justice for the services provided, and did not collect any money for the services.
Two years later, in November 2009, Justice, her mother Dorothy Wire, and other family members filed the instant lawsuit against Striffler-Hamby and Land. The trial court granted summary ...