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Scott R. Carlson, Individually and As Coexecutor of v. Glueckert Funeral Home

February 4, 2011

SCOTT R. CARLSON, INDIVIDUALLY AND AS COEXECUTOR OF )
THE ESTATE OF ELEANOR CARLSON, DECEASED; NANCY I.
LYONS, INDIVIDUALLY AND AS COEXECUTOR OF THE ESTATE OF
ELEANOR CARLSON, DECEASED; AND SHEILA O'GARA, INDIVIDUALLY AND AS SUCCESSOR COEXECUTOR; PLAINTIFFS-APPELLANTS,
v.
GLUECKERT FUNERAL HOME, LTD, AN ILLINOIS CORPORATION; AND JOHN GLUECKERT, JR.,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County Honorable Charles Winkler, Judge Presiding.

The opinion of the court was delivered by: Judge Epstein

JUDGE EPSTEIN delivered the judgment of the court, with opinion. Justices Joseph Gordon and Howse concur in the judgment and opinion.

OPINION

Plaintiffs-appellants Scott R. Carlson, Nancy I. Lyons, and Sheila O'Gara filed the instant lawsuit against defendants-appellees Glueckert Funeral Home, Ltd., and John Glueckert, Jr., seeking damages relating to a funeral contract and defendants' handling of the remains of Eleanor Carlson. The circuit court involuntarily dismissed plaintiffs' complaint pursuant to defendants' motion, ruling, inter alia, that as a matter of law defendants were shielded from liability under the Illinois Disposition of Remains Act (755 ILCS 65/1 et seq. (West 2008)) (the Act). The trial court denied plaintiffs' motion to reconsider and this appeal followed. For the following reasons, we affirm.

BACKGROUND

Eleanor Carlson died on September 15, 2007. Eleanor was survived by her son, Scott Carlson, her estranged daughter, Denise Fardelos, and her sister, Nancy Lyons. Plaintiffs allege that approximately one month earlier, on August 10, 2007, Eleanor appointed Scott and Nancy coexecutors of her last will and testament. Eleanor also appointed Scott and Nancy successor co-trustees of her support trust, of which Eleanor was the primary trustee. Sheila O'Gara, Eleanor's niece, was appointed as successor cotrustee of the trust in the event that Nancy was unable to perform her duties. Eleanor's will and trust provided that on her death all of her property, including the trust estate, was to be distributed to Scott. In her trust documents, Eleanor expressly excluded Denise from her estate. Plaintiffs allege that on August 10, 2007, Eleanor also executed a power of attorney for health care form, appointing Scott as her agent to, inter alia, direct the disposition of her remains after her death.

On September 17, 2007, Scott contacted Glueckert Funeral Home to arrange for Eleanor's funeral and burial. Scott met with Matt Bennett, Glueckert Funeral's director, to make the necessary arrangements and allegedly presented Bennett with Eleanor's power of attorney, will, and trust documents as proof of his authority to direct the disposition of her remains. Scott then executed a form contract with Glueckert Funeral specifying the type and cost of the funeral arrangements. Bennett informed Scott that the funeral would be held three days later, on September 20, 2007. Glueckert Funeral subsequently took possession of Eleanor's body. After the funeral arrangements were set, however, Denise allegedly contacted Glueckert Funeral and demanded that other, more expensive, arrangements be made. Glueckert Funeral contacted Scott and informed him that the funeral would be delayed due to the dispute. Scott objected to the delay and expressed concern for the effect it would have on Eleanor's unembalmed body. John Glueckert, Glueckert Funeral's employee, allegedly responded that deterioration would not be a problem and the body could be stored at their facility indefinitely.

On September 28, 2007, Glueckert Funeral transferred Eleanor's body to the Lake County coroner's office. Glueckert Funeral subsequently informed plaintiffs that it considered Eleanor's body abandoned, that transfer of the body to the coroner was necessitated by an investigation being conducted by the police into the circumstances of Eleanor's death, and that it had not refrigerated her body over the last 11 days. Soon thereafter, the coroner informed Scott that it was in possession of Eleanor's body, which was extensively decayed. On October 11, 2007, Scott obtained a court order requiring the release of Eleanor's body, the details of which are not of record. Scott then made arrangements with another funeral home, and Eleanor was buried on October 18, 2007.

On September 12, 2008, plaintiffs filed the instant lawsuit, bringing claims for breach of contract, common law fraud, consumer fraud, intentional infliction of emotional distress, and "interference with the next of kin's right to possess and preserve the decedent's body." Defendants moved to involuntarily dismiss plaintiffs' complaint pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2008)), arguing: (1) Scott's power of attorney was legally insufficient because it was neither notarized nor signed by him; (2) the power of attorney terminated on Eleanor's death; and (3) section 50 of the Act shielded defendants from liability related to their handling of Eleanor's remains. Plaintiffs responded that Scott's power of attorney granted him the authority to direct the disposition of Eleanor's remains; Denise lacked standing to challenge that authority; section 50 of the Act was inapplicable; and unspecified unresolved issues of material fact precluded dismissal.

On July 9, 2009, the circuit court summarily granted defendants' motion to dismiss, stating:

"1) The Court finds as a matter of law that because of the dispute between the decedent's children as to the disposition of her remains, Defendant is not liable to Plaintiffs pursuant to 755 ILCS [65]/1 (Illinois Disposition of Remains Act).

2) The Court further finds as a matter of law that the decedent's Power of Attorney Form had no legal effect because it specifically stated that it terminated upon her death."

On December 17, 2009, plaintiffs' motion to reconsider was denied. ...


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