Dana v. Heartland Management Co.

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No. 108,052

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

EDWIN S. DANA, SR., and DOUGLAS E. DANA,
Appellants,

v.

HEARTLAND MANAGEMENT COMPANY, INC., d/b/a SHAWNEE COUNTY CREMATORY,
d/b/a DOVE CREMATION AND FUNERAL SERVICES, RICHARD L. RAUSCH, JAY W.
LUEHRING, LARY K. DODGE, DANIEL J. WERNER, and WARREN J. NEWCOMER,
Appellees.

SYLLABUS BY THE COURT

1.
The standard of review relating to summary judgment is discussed and applied.

2.
In order to establish a claim of outrage, a plaintiff must prove: (1) the defendant
engaged in intentional or reckless conduct; (2) such conduct was so extreme and
outrageous as to permit recovery; (3) such conduct was causally connected to plaintiff's
mental distress; and (4) the plaintiff's mental distress was so severe and extreme that no
reasonable person should be expected to endure it.

3.
Extreme and outrageous conduct goes beyond the bounds of decency and is to be
regarded as atrocious and utterly intolerable in a civilized society.

4.
Fright, concern, embarrassment, worry, and nervousness do not constitute
sufficient harm to warrant the award of damages for extreme and outrageous conduct.
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5.
Recovery on a claim of intentional interference with a dead body requires proof of
intentional or malicious conduct.

6.
The Kansas Consumer Protection Act (KCPA) was enacted to protect consumers
from suppliers who commit deceptive and unconscionable practices. K.S.A. 50-623(b).

7.
The KCPA provides that no supplier shall engage in any deceptive act or practice
in connection with a consumer transaction. K.S.A. 2012 Supp. 50-626(a). Deceptive acts
and practices under the KCPA include the willful use, in any oral or written
representation, of exaggeration, falsehood, innuendo, or ambiguity as to a material fact;
the willful failure to state a material fact; or the willful concealment, suppression, or
omission of a material fact. K.S.A. 2012 Supp. 50-626(b)(2), (b)(3). A willful act under
the KCPA is one performed with a designed purpose or intent on the part of a person to
do wrong or to cause injury to another.

8.
The KCPA provides that no supplier shall engage in any unconscionable act or
practice in connection with a consumer transaction. K.S.A. 50-627(a). In determining
whether an act or practice is unconscionable under K.S.A. 50-627(b), which is a question
of law, the court shall consider the circumstances of which the supplier knew or had
reason to know, such as whether the supplier made a misleading statement of opinion on
which the consumer was likely to rely to the customer's detriment and whether the parties
had unequal bargaining power or knowledge.



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9.
A fiduciary relationship exists where there has been a special confidence reposed
in one who, in equity and good conscience, is bound to act in good faith and with due
regard to the interests of the one reposing the confidence. Whether a fiduciary
relationship exists depends on the facts and circumstances of each case. In reviewing a
district court's determination of the existence or nonexistence of a fiduciary relationship,
an appellate court is required to consider the evidence in the light most favorable to the
party who prevailed below.

10.
Two types of fiduciary relationships exist: (1) those specifically created by
contract such as principal and agent and (2) those implied in law due to the factual
situation surrounding the involved transactions and the relationship of the parties to each
other and to the questioned transactions. A confidential relationship is not presumed, and
the burden of proving such a relationship exists rests upon the party asserting its
existence. A party may not unilaterally impose a fiduciary relationship on another
without a conscious assumption of such duties by the one sought to be held liable as a
fiduciary.

11.
The mere fact that a customer places great trust and confidence in a funeral home
for services rendered pursuant to a contract does not—in and of itself—serve to create a
fiduciary relationship between the customer and the funeral home.





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Appeal from Shawnee District Court; FRANKLIN R. THEIS, judge. Opinion filed May 24, 2013.
Affirmed.

Karen S. Rosenberg and Paul K. Hentzen, of Krigel & Krigel, P.C., of Kansas City, Missouri, for
appellants.

David R. Cooper and Teresa L. Watson, of Fisher, Patterson, Sayler & Smith, LLP, of Topeka,
for appellees.

Before MCANANY, P.J., BUSER and STANDRIDGE, JJ.

STANDRIDGE, J.: Edwin S. Dana, Sr., and Douglas E. Dana (plaintiffs) appeal
from the decision of the district court to grant summary judgment in favor of the
defendants—a funeral and cremation company and staff—on plaintiffs' claims related to
the temporary loss of the cremated remains of plaintiffs' son and twin brother,
respectively, Edwin Dana, Jr. Plaintiffs contend the district court erred in granting
summary judgment in favor of the defendants on their claims of outrage, willful
interference with Edwin Jr.'s cremated remains, violations of the Kansas Consumer
Protection Act (KCPA), and breach of fiduciary duty. Plaintiffs also claim the district
court erred in dismissing as moot their motion to amend petition to add a claim of
punitive damages.

FACTS

On August 12, 2010, the deceased body of Edwin Jr. was discovered in his Topeka
home. Edwin Jr. was a Native American member of the Passamaquoddy Indian Tribe and
a military veteran. On August 13, 2010, Douglas went to Dove Cremation and Funeral
Service and met with Richard Rausch, a funeral director and manager, to make
arrangements for Edwin Jr.'s cremation. Rausch also spoke to Edwin Sr. by phone and
informed him that as the next of kin he was required to sign an authorization for
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cremation. Rausch prepared a document titled "Authority to Cremate and Order for
Disposition" and faxed it to Edwin Sr., who signed the document and sent it back to
Dove. The document included directions that Edwin Jr.'s cremated remains should be
shipped via registered mail to Edwin Sr. at his home address in Maine. There was no
shipment date indicated on the authorization form, but according to Edwin Sr.'s
testimony, Rausch told him that the ashes would be shipped "as soon as possible; more
than likely [August] 17th." Conversely, Rausch claimed that he made no promises to
Edwin Sr. or Douglas about when the remains would be sent. In alleged reliance on
Rausch's promise to send Edwin Jr.'s remains by August 17, Edwin Sr. planned to have a
wake, funeral, and burial on the Passamaquoddy Reservation in Maine on August 24-26,
2010.

On August 14, 2010, Douglas viewed Edwin Jr.'s body in the garage of the
Penwell-Gabel Mid-Town Chapel. When a body is decomposed, as Edwin Jr.'s was,
viewings generally occur in the chapel garage. Before viewing the body, Rausch had
Douglas sign a waiver of liability acknowledging that the body was in an advanced state
of decomposition. Upon viewing the body, Douglas performed a smudge, a ceremonial
release of the spirit which involved putting a substance on Edwin Jr.'s body and waving
an eagle's wing. Douglas placed some items, including a fan, beads, and an eagle's wing
in the body bag with Edwin Jr. Douglas returned to the funeral home on August 15, 2010,
and observed Edwin Jr.'s body as it was placed into the crematory retort.

The cremation process

Newcomer Funeral Service Group owns the stock of Heartland Management
Company, Inc., which does business as Dove Cremation and Funeral Services and
Penwell-Gabel Funeral Homes. Shared Mortuary Services (SMS) is part of the Penwell-
Gabel Funeral Homes and is an in-house centralized preparation center that performs
cremation services at the Shawnee County Crematory. When a body is cremated there,
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the body is placed in a cooler until the time the cremation is to take place. Each body is
accompanied throughout the process by a metal disk with a cremation ID number and a
case record. The ID number is recorded on the case record, along with the following
information: the date, the primary authorizing agent, the coroner's permit, the county, the
container in which the body was brought to the crematory, and a description of the urn in
which the cremated remains are to be placed. SMS also has a daily cremation log where
the ID number is recorded along with the date and time the remains are placed inside and
removed from the crematory retort.

At the time of Edwin Jr.'s cremation, when the body was placed into the retort, the
metal ID disk was attached to a magnetic clip that hung on the outside. After processing,
the remains were placed in a plastic bag and, along with the metal ID disk and case
record, were taken to the SMS office where the ID number, name, location of death, date
of cremation, and the responsible funeral home were entered in a log. The remains were
placed in an urn and then put into a locked storage locker. When the remains were placed
into an urn, the person who removed the remains from the crematory created three
identical labels containing the deceased's name, the cremation ID number, the date of
cremation, place of death, and the responsible funeral home. One label was affixed on the
outside of the urn; one label was placed on a note card and placed outside of the locker;
and one label was laminated, affixed to the metal ID disk, and placed inside the urn.

Edwin Jr.'s cremation and the search for his remains

At 9:46 a.m. on August 15, 2010, Jay Luehring, an embalmer and funeral director
at Shawnee County Crematory, placed Edwin Jr.'s body into the retort to be cremated. At
6:30 p.m., Luehring removed Edwin Jr.'s ashes, placed them in a temporary urn, and
created three labels for the remains. In creating the labels, Luehring did not look at or
read the labels before affixing them to the urn, the note card, and the ID disk and did not
compare the ID number on the metal disk to the number on the label.
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Late in the afternoon of August 18, Lary Dodge, the manager of SMS, received
Edwin Jr.'s death certificate via fax. Dodge unsuccessfully attempted to locate a locker or
urn labeled with Edwin Jr.'s name in order to place the death certificate in the file. Dodge
also checked the completed case records and the filing cabinet where permanent files
were kept but could not locate Edwin Jr.'s case file. Dodge then told Luehring that he was
unable to locate the locker with Edwin Jr.'s remains; Luehring accompanied Dodge as he
looked at the labels on the outside of each locker and checked inside each labeled locker
to see if the label on the urn matched the label on the outside of the locker. Dodge did not
look at the case file inside each locker to compare it to the labels. Dodge notified Rausch
of his inability to located Edwin Jr.'s urn or case file. Rausch went to SMS and met with
Dodge, where Rausch opened each locker, looked at the label on the urn in each locker,
and compared the urn label to the label on the outside of the locker. Rausch also searched
a filing cabinet at SMS. Rausch did not look at the case files in any of the lockers.

On August 19, Dodge, Rausch, Luehring, and Jed Dunnichay, the senior vice-
president of Heartland Management Company, went to Dove, the Parker-Price Funeral
Home, and other funeral homes in Topeka to see if Edwin Jr.'s remains had been
mistakenly taken to another funeral home. In the course of searching, they looked in other
rooms in the basements of the Dove and Parker-Price funeral homes, emptied the
shelving at SMS, went through the storeroom in the back of the building, and looked
through a trash dumpster. Dodge also told Melissa Schroeder, an embalmer at SMS, that
Edwin Jr.'s remains and case file were missing. Schroeder searched the file cabinet that
held the closed files and made phone calls to other funeral homes.

On August 20, Dunnichay interviewed Rausch, Dodge, Luehring, and other
individuals to discuss the chain of custody that had occurred with Edwin Jr.'s remains.
Dunnichay also examined the inside and outside of each locker but did not look at the
case files or the ID disks in any of the lockers. In addition, Dunnichay spoke with funeral
directors at other Penwell-Gabel funeral homes about the search for Edwin Jr.'s remains.
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That same day, Warren Newcomer, president of Newcomer Funeral Service
Group, was notified of the situation. Newcomer met with Dodge, Luehring, Dunnichay,
and Ed Tuggle, the chief operating officer of Newcomer Funeral Service Group, and
reviewed their procedures and discussed the steps that had been taken to locate Edwin
Jr.'s remains. Newcomer was convinced at that time that a thorough search had been
conducted.

On August 21, Dunnichay met with Daniel Werner, the managing funeral director
at Dove, and explained the loss of Edwin Jr.'s remains and told him that all avenues to
locate the remains had been exhausted. Dunnichay and Werner called Edwin Sr. to notify
him of the loss. Dunnichay informed Edwin Sr. that Edwin Jr.'s remains had either been
misplaced or stolen, and he described the procedures that were taken to safeguard the
remains and the steps that had been taken to search for them. Edwin Sr. called Douglas
and informed him what had happened.

That same day, Werner filed a police report with the Topeka Police Department,
and Werner and Dunnichay met with the police. On August 23, Newcomer wrote a letter
to Edwin Sr. apologizing for the loss of Edwin Jr.'s remains and informing him that a
theft must have occurred and that the police were investigating the matter.

On August 24-26, Edwin Jr.'s wake and funeral service were held. Edwin Sr. had
sought advice as to whether to tell the tribal members and his other children what had
happened; he ultimately decided to go ahead with the planned wake and funeral, and he
and Douglas did not tell anyone other than the priest that Edwin Jr.'s ashes were not
present.




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Discovery of Edwin Jr.'s remains

On August 31, Becca Duncan, a funeral director at Penwell-Gabel, noticed the
name Swenson on the outside of a storage locker. Duncan had previously made funeral
arrangements with the Swenson family, so she called them to verify that the burial had
already occurred. Duncan opened the locker and saw that the urn in the locker had a label
with Swenson's name, but the ID disk and the case file in the locker belonged to Edwin
Jr.

As it turned out, Edwin Jr.'s remains were never missing but were instead
mislabeled by Luehring when he created the labels for Edwin Jr. and Swenson. Labels are
not kept in the printer but are instead fed one sheet at a time as they are needed. Luehring
believed that instead of single clicking on the print command when making Swenson's
labels, he double-clicked it, which sent two sets of Swenson labels to the printer queue.
Then, when Luehring entered the information for Edwin Jr. and attempted to print it, the
second set of Swenson labels printed, and he mistakenly placed those on Edwin Jr.'s urn.
Luehring was later disciplined for this error.

After the discovery of Edwin Jr.'s remains on August 31, Dunnichay called Edwin
Sr. to advise him that the remains had been located and explained how they had been
verified as belonging to Edwin Jr. Rausch personally took Edwin Jr.'s remains to the post
office and mailed them to Edwin Sr., who signed for them on September 8, 2010.

Plaintiffs file suit

On November 15, 2010, plaintiffs filed a petition against the defendants alleging
claims of negligence, willful interference with plaintiffs' right to Edwin Jr.'s cremated
remains, violations of the KCPA, breach of fiduciary duty, and outrage. Plaintiffs
subsequently moved to amend their petition to include a claim for punitive damages.
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The defendants answered, opposed plaintiffs' motion to amend, and moved for
summary judgment after discovery, including depositions regarding the circumstances
involved. The district court ultimately granted the defendants' motion for summary
judgment on all claims and dismissed as moot plaintiffs' motion for punitive damages.

ANALYSIS

On appeal, plaintiffs contend the district court erred in granting summary
judgment in favor of the defendants on their claims of outrage, willful interference with
Edwin Jr.'s cremated remains, violations of the KCPA, and breach of fiduciary duty.
Plaintiffs also argue that their motion to amend petition to include a claim for punitive
damages was not moot. Plaintiffs do not challenge the district court's decision to grant
summary judgment on their negligence claim or the district court's ruling that Douglas
lacked standing with respect to certain claims.

When the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, show that there is no genuine issue as to any material
fact, the moving party is entitled to judgment as a matter of law and summary judgment
is appropriate. The district court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, the adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, the same rules apply; summary judgment must be denied if
reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus
v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).

"'"An issue of fact is not genuine unless it has legal controlling force as to the
controlling issue. The disputed question of fact which is immaterial to the issue does not
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preclude summary judgment. If the disputed fact, however resolved, could not affect the
judgment, it does not present a genuine issue of material fact. [Citation omitted.]"'
Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) [citation omitted]." Hall
v. Shelter Mutual Ins. Co., 45 Kan. App. 2d 797, 800, 253 P.3d 377 (2011), rev. denied
293 Kan. ___ (February 17, 2012).

1. Outrage

In order to establish a claim of outrage, a plaintiff must prove: (1) the defendant
engaged in intentional or reckless conduct; (2) such conduct was extreme and outrageous;
(3) such conduct was causally connected to plaintiff's mental distress; and (4) the
plaintiff's mental distress was extreme and severe. Valadez v. Emmis Communications,
290 Kan. 472, 476, 229 P.3d 389 (2010); PIK Civ. 4th 127.70.

In response to the defendants' summary judgment motion, plaintiffs offered an
affidavit from a licensed family therapist, Dr. Pauline Boss. Dr. Boss did not examine
Edwin Sr. or Douglas but reviewed plaintiffs' petition, deposition testimony, affidavits,
and medical records. Dr. Boss opined that the normal grief and distress felt by plaintiffs
resulting from Edwin Jr.'s death could not be separated from the emotional distress
caused by the defendants' conduct of losing the ashes and lying about them being stolen,
which caused "unnecessary pain and suffering piled on top of a family's normal
grieving." Dr. Boss claimed that plaintiffs' emotional distress was compounded by going
through with the wake and funeral service with an empty urn and that plaintiffs suffered
shame and embarrassment by having to endure the Passamaquoddy rituals and military
honors being performed over the urn that only they knew was empty. Dr. Boss stated that
plaintiffs' emotional distress was not cured upon receipt of the ashes, as the inconsistency
of being told the ashes were stolen and then being told they were found at the funeral
home was "an unusually painful and traumatic situation" that ruined plaintiffs' trust and
left them with no closure.

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The district court granted summary judgment in favor of the defendants on the
outrage claim, finding there was no evidence that the defendants acted willfully,
intentionally, wantonly, or recklessly with regard to the misplacement of Edwin Jr.'s
remains.

Plaintiffs allege that the district court erroneously granted summary judgment on
this claim by focusing solely on the defendants' conduct in losing Edwin Jr.'s remains.
Instead, plaintiffs contend genuine issues of material fact exist with respect to the
following series of transactions which must be resolved before it can be determined
whether the defendants acted intentionally or recklessly, including defendants'
"conducting a wholly inadequate search for the ashes, recklessly concealing the loss of
the ashes from plaintiffs and lying to plaintiffs by telling them the ashes were stolen."
Specifically, plaintiffs claim that the following factual disputes in the record preclude
summary judgment because they could show that the defendants acted intentionally and
with reckless disregard: (1) whether Rausch told plaintiffs that Edwin Jr.'s remains
would be shipped by August 17; (2) when the defendants became aware of the date of
Edwin Jr.'s wake and funeral; (3) whether the search for the remains was reasonable; (4)
why plaintiffs were not told right away that the remains were missing; (5) whether there
was a reasonable basis to believe the remains were stolen; and (6) Newcomer's intent in
sending the apology letter to Edwin Sr.

A claim of outrage has two threshold requirements: (1) The defendant's conduct
must be regarded as "so extreme and outrageous as to permit recovery" and (2) plaintiff's
emotional distress must be "so severe that no reasonable person should be expected to
endure it." Valadez, 290 Kan. at 477. Plaintiffs contend that the defendants' conduct was
outrageous in the context of the vulnerable, emotional, and confusing time that typically
follows the death of a loved one. Plaintiffs further claim that the district court ignored Dr.
Boss' affidavit and did not point to any evidence in the record that contradicted her
opinion regarding the severity of their emotional distress.
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a. Extreme and outrageous conduct

Extreme and outrageous conduct goes "beyond the bounds of decency and [is] to
be regarded as atrocious and utterly intolerable in a civilized society." Miller v. Sloan,
Listrom, Eisenbarth, Sloan & Glassman, 267 Kan. 245, 257, 978 P.2d 922 (1999).

Kansas cases have generally held in favor of defendants in outrage cases, finding
that the alleged conduct was insufficiently outrageous to support the claim. Lindemuth v.
Goodyear Tire & Rubber Co., 19 Kan. App. 2d 95, 100-01, 864 P.2d 744 (1993); see,
e.g., Moore v. State Bank of Burden, 240 Kan. 382, 388, 729 P.2d 1205 (1986), cert.
denied 482 U.S. 906 (1987) (no outrage claim where bank erroneously set off funds
against a legitimate indebtedness owed to bank); Burgess v. Perdue, 239 Kan. 473, 475-
77, 721 P.2d 239 (1986) (mother who was told that her son's brain was in a jar could not
maintain an action for outrage); Neufeldt v. L. R. Foy Constr. Co., 236 Kan. 664, 665,
668-69, 693 P.2d 1194 (1985) (no outrage claim allowed by a wife recovering from a
miscarriage who was falsely told that an arrest warrant had been issued for her husband);
Roberts v. Saylor, 230 Kan. 289, 295, 637 P.2d 1175 (1981) (no outrage claim where
doctor expressed dislike of patient prior to patient undergoing surgery); Ely v. Hitchcock,
30 Kan. App. 2d 1276, 1289, 58 P.3d 116 (2002) (funeral director allowing plaintiff to
view his mother's body with a cut to her forehead and blood on her face and hair not
sufficient to support claim of outrage).

In Burgess, the plaintiff's son was a resident of the Kansas Neurological Institute
(KNI) at the time of his death. The plaintiff refused to grant permission for a full autopsy,
but the paperwork mistakenly did not limit the autopsy as the plaintiff had requested.
After a full autopsy was performed, the coroner removed the brain of the plaintiff's son
and sent it to KNI. After her son's funeral, a doctor from KNI called the plaintiff,
informed her they had her son's brain, and asked what they should do with it. The
plaintiff brought a claim of outrage against the State based on its employee informing her
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they had her son's brain. Our Supreme Court rejected this argument, holding that while
the wording used by the doctor was not the most tactful, the doctor's conduct was not
outrageous:

"While the statements made to the mother were probably shocking, they were not
outrageous—'so extreme in degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a civilized community.' The doctor
called the mother because she knew the mother had not wanted the brain autopsied. The
doctor was concerned that any impropriety be resolved. She did not intend to harass or
intimidate or otherwise abuse the mother. No malice was involved." 239 Kan. at 477.

In the present case, there is no suggestion that the defendants' actions here—
temporarily misplacing Edwin Jr.'s cremated remains, delaying shipment to Edwin Sr.,
and claiming that the remains may have been stolen—were so outrageous in character or
so extreme in degree as to go beyond the bounds of decency. Nor were they so atrocious
as to be regarded as utterly intolerable in a civilized society. See Miller, 267 Kan. at 257.
At most, plaintiffs have alleged facts showing that the defendants' actions were
irresponsible and/or negligent. Under Kansas law, this is not enough to recover for a
claim of outrage.

b. Severe emotional distress

Additionally, liability for a claim of outrage only arises when the plaintiff's
distress is "extreme" or "severe." See Taiwo v. Vu, 249 Kan. 585, 593-94, 822 P.2d 1024
(1991); Restatement (Second) of Torts § 46, comment j, pp. 77-78 (1964). Fright,
concern, embarrassment, worry, and nervousness do not constitute sufficient harm to
warrant the award of damages. See Roberts, 230 Kan. at 293-94. "'There is no laundry list
of what qualifies as the requisite level of severity [of emotional distress] . . . . [I]t is fair
to say that headaches, sleeplessness, irritability, anxiety, depression, listlessness, lethargy,
intermittent nightmares, and the like would probably not suffice . . . .'" Valadez, 290 Kan.
15

at 479 (quoting Boston, Kline & Brown, Emotional Injuries: Law and Practice § 22:7
[1998]); see Ely, 30 Kan. App. 2d at 1289-90.

In response to interrogatories served upon them, plaintiffs described the injuries
they sustained as "'extreme and severe emotional distress.'" Plaintiffs also alleged that the
mental anguish resulting from the cover-up and events surrounding Edwin Jr.'s cremation
aggravated their existing health conditions. Specifically, Douglas testified that prior to
Edwin Jr.'s death, he suffered from posttraumatic stress and depressive disorders and he
had a pacemaker and a defibrillator. After the events occurred with Edwin Jr.'s remains,
Douglas claimed that he suffered from chest pain, discomfort, and crying and that he had
to increase his heart and sleep medications. Douglas stated that he did not really believe
the ashes sent to Edwin Sr. really belonged to Edwin Jr. Edwin Sr. testified that prior to
Edwin Jr.'s death, he had a brainstem hemangioma and suffered from posttraumatic stress
disorder. He testified that he had seen a psychologist at the veteran's hospital twice
following Edwin Jr.'s death.

But plaintiffs' claimed injuries do not rise to the level of extreme or severe
distress. Even if we consider Dr. Boss' affidavit, we must do so in conjunction with the
fact that Dr. Boss did not examine plaintiffs and her affidavit is conclusory in nature and
not based on any specific facts demonstrating plaintiffs' level of distress. Moreover, the
record does not explicitly show that plaintiffs sought medical treatment or psychological
counseling specifically related to the defendants' loss of Edwin Jr.'s remains.

None of the disputed facts alleged by plaintiffs are material to whether the
defendants' conduct was extreme and outrageous or to whether plaintiffs suffered extreme
and severe emotional distress. Accordingly, the district court properly granted summary
judgment on plaintiffs' claim of outrage.


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2. Willful interference with cremated remains

Kansas recognizes the tort of interference with a dead body. Recovery on a claim
of intentional interference with a dead body requires proof of intentional or malicious
conduct. See Burgess, 239 Kan. at 479-80; Ely, 30 Kan. App. 2d at 1283-85.

In granting summary judgment on plaintiffs' claim of intentional interference with
Edwin Jr.'s remains, the district court found that the tort of intentional interference with a
dead body should be extended to include cremated remains. However, the court held that
the claim failed because there was no evidence that the defendants' conduct as it related
to misplacing Edwin Jr.'s remains was intentional.

Plaintiffs urge this court to affirm the district court's ruling extending the tort of
intentional interference with a dead body to include cremated remains but claim the court
erred in granting summary judgment on this issue because there are genuine issues of
material fact that exist as to whether the defendants' conduct was intentional or reckless,
including: (1) when the defendants knew of the wake and funeral plans, (2) whether the
defendants' search for Edwin Jr.'s remains was reasonable, (3) whether the defendants
had a reasonable basis to claim that a theft had occurred, (4) what Newcomer's intent was
in sending the apology letter to Edwin Sr., and (5) whether Newcomer genuinely believed
a theft had occurred.

It does not appear that the question of whether the tort of intentional interference
with a dead body should include cremated remains has been decided in Kansas or in other
jurisdictions. Given that cremation is a common alternative to burial in this country, it
makes sense that the tort should be extended to include cremated remains. However, it is
not necessary for this court to decide the issue in this case because plaintiffs cannot show
that the defendants' conduct was intentional or malicious.

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In Burgess, our Supreme Court held that a physician was negligent in failing to
inform the coroner that the decedent's mother did not want an autopsy to include her son's
brain but was not liable to the mother for emotional distress damages for interfering with
her son's dead body because recovery of such damages requires proof of intentional or
malicious conduct. 239 Kan. at 479-80. In Ely, the plaintiff claimed that a mortuary
worker intentionally interfered with his mother's body when the transportation cot
carrying her body fell over, resulting in a laceration and blood on his mother's face, head,
and hair. On appeal, this court held that summary judgment was appropriate because the
evidence indicated that the cot fell accidentally and there was no evidence that the worker
intentionally battered the woman's body. 30 Kan. App. 2d at 1284-85.

Here, none of the disputed facts alleged by Edwin Sr. are material to the
defendants' handling of Edwin Jr.'s remains. There is no evidence or allegation that the
defendants mishandled Edwin Jr.'s corpse or cremated remains or that the defendants
intentionally or maliciously kept the remains from Edwin Sr. Rather, it appears that the
remains were accidentally mislabeled, and when the labeling error was discovered and
the remains located, they were mailed to Edwin Sr. Because there is no evidence that the
defendants committed an intentional or malicious act with regard to Edwin Jr.'s remains,
the district court properly granted summary judgment on plaintiffs' claim of intentional
interference with the remains.

3. The Kansas Consumer Protection Act

Plaintiffs argue that the district court erred in granting summary judgment on their
claims that the defendants violated the KCPA by engaging in deceptive and
unconscionable acts in connection with a consumer transaction. Specifically, plaintiffs
contend that the defendants violated K.S.A. 2012 Supp. 50-626(b)(2) and (b)(3) and
K.S.A. 50-627(b)(6) when they told plaintiffs that Edwin Jr.'s remains had been stolen.

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The KCPA was enacted "to protect consumers from suppliers who commit
deceptive and unconscionable practices." K.S.A. 50-623(b). In granting summary
judgment on this claim, the district court found there was no evidence of deceptive or
unconscionable conduct because the defendants' actions in misplacing Edwin Jr.'s
remains and telling plaintiffs the remains may have been stolen was not willful or done
with an intent to injure or harm plaintiffs. The court further held that whether the
defendants believed the ashes had been stolen was not material to any delay in advising
plaintiffs of the situation.

a. Deceptive acts under K.S.A. 2012 Supp. 50-626

K.S.A. 2012 Supp. 50-626 provides, in relevant part:

"(a) No supplier shall engage in any deceptive act or practice in connection with
a consumer transaction.
"(b) Deceptive acts and practices include, but are not limited to, the following,
each of which is hereby declared to be a violation of this act, whether or not any
consumer has in fact been misled:
. . . .
(2) the willful use, in any oral or written representation, of exaggeration,
falsehood, innuendo or ambiguity as to a material fact;
(3) the willful failure to state a material fact, or the willful concealment,
suppression or omission of a material fact."

Whether a person has engaged in deceptive acts or practices under K.S.A. 2012
Supp. 50-626 is ordinarily a question of fact. However, summary judgment is appropriate
on claims where there is no evidence of deceptive conduct. Crandall v. Grbic, 36 Kan.
App. 2d 179, 196, 138 P.3d 365 (2006); accord Bomhoff v. Nelnet Loan Services, Inc.,
279 Kan. 415, Syl. ¶ 4, 109 P.3d 1241 (2005). Intent is an element of a deceptive
practices claim under K.S.A. 2012 Supp. 50-626(b)(2) and (b)(3). Crandall, 36 Kan.
App. 2d at 196. A willful act under the KCPA is one performed with a designed purpose
19

or intent on the part of a person to do wrong or to cause injury to another. Tufts v.
Newmar Corp., 53 F. Supp. 2d 1171, 1178 (D. Kan. 1999); see PIK Civ. 4th 103.04.

Plaintiffs argue that the defendants committed deceptive acts by purposefully lying
to them about Edwin Jr.'s remains being stolen and in purposefully and intentionally
concealing the loss from them. For support, plaintiffs rely on the fact that there was no
evidence of a break-in, none of the employees or senior management believed there was a
break-in, police were not contacted until Edwin Sr. demanded it, the search for Edwin
Jr.'s remains was not reasonable, a theft had never occurred there before, and there is a
dispute as to whether Newcomer had a reasonable basis to conclude that there was a theft.
Plaintiffs also allege that the defendants' conduct was material to their claims of
emotional distress as set forth in Dr. Boss' affidavit and that the defendants' failure to
earlier disclose the loss of Edwin Jr.'s remains prevented the postponement of the wake
and funeral, which further contributed to their emotional distress.

Plaintiffs' argument is without merit for three reasons. First, there is no evidence in
the record to show that the defendants purposefully lied to plaintiffs about Edwin Jr.'s
remains being stolen. While several of the defendants and other employees testified in
depositions that there had been no evidence of a break-in and that they thought a theft
was unlikely, they could not come up with any other explanation at that time for the loss
of Edwin Jr.'s remains and wanted to explore all avenues while they continued to
investigate the circumstances.

Second, even if it is true that the defendants did not believe that Edwin Jr.'s
remains had been stolen, there is no evidence in the record to establish that the
defendants' act of telling plaintiffs that Edwin Jr.'s remains must have been stolen was
made with the purpose or intent to do wrong or cause injury to plaintiffs. See Tufts, 53 F.
Supp. 2d at 1178. Although the remains were later found and turned out not to have been
stolen, it does not make the defendants' mistaken belief at the time they spoke to
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plaintiffs about the possible theft willful. After the defendants discovered Edwin Jr.'s
remains were missing, they spent 2 days searching for them before they called plaintiffs.
The fact that the defendants did not call plaintiffs immediately does not suggest malicious
behavior.

Third and finally, the defendants' actions of telling plaintiffs that the ashes must
have been stolen arguably did not involve a material fact. K.S.A. 2012 Supp. 50-626 does
not define the term "material fact," but it has been defined as "'one to which a reasonable
person would attach importance in determining his [or her] choice of action in the
transaction involved.'" Farrell v. General Motors Corp., 249 Kan. 231, 244, 815 P.2d
538 (1991).

The defendants learned the ashes were missing on the afternoon of August 18, and
the plaintiffs received notice of the loss on the morning of August 21. The wake and
funeral were scheduled for August 24-26. Edwin Sr. testified that he spoke to a church
official, Sister Janice, about the missing ashes on August 21 or 22 and sought advice
about whether to go ahead with the services or to postpone them. Sister Janice
recommended that he go ahead with the wake and funeral without the ashes and do
another service later when the ashes were found. Thus, as late as August 21, Edwin Sr.
had the option to postpone the wake and funeral but chose not to. Plaintiffs do not claim,
and there is no indication in the record, that Edwin Sr. would have chosen a different
option if he had been told the remains were simply lost or misplaced rather than stolen.

b. K.S.A. 50-627

K.S.A. 50-627 provides, in relevant part:

21

"(a) No supplier shall engage in any unconscionable act or practice in connection
with a consumer transaction. An unconscionable act or practice violates this act whether
it occurs before, during or after the transaction.
"(b) The unconscionability of an act or practice is a question for the court. In
determining whether an act or practice is unconscionable, the court shall consider the
circumstances of which the supplier knew or had reason to know, such as, but not limited
to the following that:
. . . .
(6) the supplier made a misleading statement of opinion on which the consumer
was likely to rely to the customer's detriment."

Whether a defendant committed unconscionable acts is a question of law for the
court. K.S.A. 50-627(b); State ex rel. Stovall v. DVM Enterprises, Inc., 275 Kan. 243,
248, 62 P.3d 653 (2003). Summary judgment is appropriate if there is no evidence of
unconscionable acts. Bomhoff, 279 Kan. 415, Syl. ¶ 4. An appellate court has unlimited
review of the district court's unconscionability determination. State ex rel. Kline v. Berry,
35 Kan. App. 2d 896, 907, 137 P.3d 500 (2006).

Plaintiffs claim that genuine issues of material fact exist with respect to whether
the defendants' loss of Edwin Jr.'s remains and unconfirmed statement to the family that
the remains must have been stolen was unconscionable, including the adequacy of the
search for Edwin Jr.'s remains, the date that the defendants learned of the wake and
funeral plans, the reason for the defendants' concealment of the loss of the remains from
the plaintiffs, whether the defendants had a reasonable basis for telling plaintiffs the
remains must have been stolen, and the defendants' intent in telling plaintiffs the remains
must have been stolen.

"Broadly viewed, unconscionability reflects a gross disparity in the value of a
transaction favoring the supplier resulting, at least in part, from unequal bargaining power
or knowledge, often tied to the buyer's physical or mental infirmity, illiteracy, or lack of
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fluency in the language used to make the sale. [Citation omitted.]" Golden v. Den-Mat
Corporation, 47 Kan. App. 2d 450, 491, 276 P.3d 773 (2012). In order to render the
contract between the parties unconscionable, there must be "some element of deceptive
bargaining conduct present as well as unequal bargaining power." Willman v. Ewen, 230
Kan. 262, 266, 634 P.2d 1061 (1981).

In this case, there is nothing in the record to indicate deceptive bargaining or
unequal bargaining power in negotiating the contract at issue. Plaintiffs entered into a
contract with Dove to perform cremation services, which were performed. Although the
defendants were in a position of having greater knowledge of the circumstances involved
and had, in fact, misplaced Edwin Jr.'s remains, the remains were later located and
shipped to Edwin Sr. The defendants' conduct, while perhaps careless or negligent, does
not rise to the level of unconscionable. Moreover, there is no showing that the defendants
knowingly, or with reason to know, made a misleading statement of opinion or that
plaintiffs relied on such a statement to their detriment. Rather, it appears that the
defendants merely expressed their mistaken belief that Edwin Jr.'s remains must have
been stolen, and plaintiffs do not suggest what they would have done differently if the
defendants had stated that the remains were lost or misplaced rather than stolen.

Because there is no evidence showing that the defendants committed deceptive or
unconscionable acts in connection with the temporary loss/misplacement of Edwin Jr.'s
remains, the district court properly granted summary judgment on plaintiffs' claims of
KCPA violations.

4. Breach of fiduciary duty

The district court granted summary judgment on plaintiffs' breach of fiduciary
duty claim, finding, in part, that there was no evidence of a fiduciary relationship or any
special trust that existed between plaintiffs and the defendants upon which plaintiffs
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relied. Plaintiffs allege the district court erred in granting summary judgment on this
claim because a fiduciary relationship existed between the parties due to the trust and
confidence they placed in the defendants to safeguard Edwin Jr.'s remains.

"A fiduciary relationship exists where there has been a special confidence reposed
in one who, in equity and good conscience, is bound to act in good faith and with due
regard to the interests of the one reposing the confidence. [Citation omitted.]" Reebles,
Inc. v. Bank of America, N.A., 29 Kan. App. 2d 205, 208, 25 P.3d 871, rev. denied 272
Kan. 1419 (2001). Whether a fiduciary relationship exists depends on the facts and
circumstances of each case. Denison State Bank v. Madeira, 230 Kan. 684, 691, 640 P.2d
1235 (1982). In reviewing a district court's determination of the existence or nonexistence
of a fiduciary relationship, an appellate court is required to consider the evidence in the
light most favorable to the party who prevailed below. Olson v. Harshman, 233 Kan.
1055, 1057, 668 P.2d 147 (1983); Wilson v. Wilson, 37 Kan. App. 2d 564, 576, 154 P.3d
1136 (2007).

Two types of fiduciary relationships exist: (1) those specifically created by
contract such as principal and agent and (2) those implied in law due to the factual
situation surrounding the involved transactions and the relationship of the parties to each
other and to the questioned transactions. Wilson, 37 Kan. App. 2d at 577. Examples of a
fiduciary relationship include the acting of one party for another, the exercising of
influence by one party over another, the reposing of confidence by one party in another,
the inequality of the parties, and the dependence of one party on another. Morrison v.
Watkins, 20 Kan. App. 2d 411, 422, 889 P.2d 140, rev. denied 257 Kan. 1092 (1995). "A
confidential relationship is not presumed, and the burden of proving such a relationship
existed rests upon the party asserting its existence. [Citation omitted.]" Kampschroeder v.
Kampschroeder, 20 Kan. App. 2d 361, 365, 887 P.2d 1152, rev. denied 257 Kan. 1092
(1995). A party may not "unilaterally impose a fiduciary relationship on another without
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a conscious assumption of such duties by the one sought to be held liable as a fiduciary."
Linden Place v. Stanley Bank, 38 Kan. App. 2d 504, Syl. ¶ 5, 167 P.3d 374 (2007).

Plaintiffs claim that funeral homes have a unique relationship with, and owe a
special duty of care to, their customers. They contend that Edwin Sr.'s designation of the
funeral home as his agent to ship Edwin Jr.'s remains could have created a fiduciary
relationship, and they suggest that the defendants' own policies and advertising—which
note the professionalism and public trust they are charged with in providing the "vital
service" of cremation—contributed to the establishment of a fiduciary relationship. To
that end, plaintiffs allege that they placed their trust in the defendants to keep track of
Edwin Jr.'s remains and ship them to Edwin Sr. in time for the wake and funeral, and that
once they agreed to let the defendants cremate Edwin Jr., all information and control over
the whereabouts of Edwin Jr.'s remains rested solely with the defendants.

No Kansas case has addressed the issue of whether a fiduciary duty arises between
a funeral home and its customers, but other jurisdictions addressing the issue have held
that such a relationship does not exist. See, e.g., Jackson v. McKay-Davis Funeral Home,
Inc., 830 F. Supp. 2d 635, 649-50 (E.D. Wis. 2011) (no fiduciary relationship formed
when funeral home assumed control over decedent's remains and agreed to return remains
to plaintiffs for burial); Kennedy v. Carriage Cemetery Services, Inc., 727 F. Supp. 2d
925, 931 (D. Nev. 2010) (no fiduciary duty where decedent cremated without required
authorization); In re Tri-State Crematory Litigation, 215 F.R.D. 660, 683 (N.D. Ga.
2003) ("'[t]he mere fact that one reposes great trust and confidence in another does not
serve to create a confidential relationship'"); Gakin v. City of Rapid City, 698 N.W.2d
493, 500 (S.D. 2005) (no fiduciary relationship existed between plaintiff and cemetery
because plaintiff "did not relinquish control over confidential decision making inherent in
fiduciary relationships"); Evans v. Chambers Funeral Homes, No. 89,900, 2008 WL
2766173, at *3 (Ohio App. 2008) (unpublished opinion) (holding that there is no
fiduciary duty between funeral homes and their customers in wrongful burial cases); but
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see Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445, 452-53, 579 S.E.2d 505
(2003) (stating that "a personal service contract to provide funeral arrangements might, in
appropriate circumstances, give rise to a fiduciary relationship," but declining to find
such a relationship existed in that case).

Plaintiffs rely on California caselaw which recognizes mortuaries and crematories
owe an independent tort duty arising from a special relationship with their customers.
However, this duty is specific to California common law and is a separate relationship
from a fiduciary duty. See Wilson v. Houston Funeral Home, 42 Cal. App. 4th 1124,
1140, 50 Cal. Rptr. 2d 169 (1996) (funeral home's failure to provide family with
appropriate and dignified burial service not a breach of fiduciary duty, but rather a breach
of mortuary's special relationship with the family, a separate relationship recognized by
California common law).

There is no question that plaintiffs placed trust and confidence in the defendants'
ability to safeguard and ship Edwin Jr.'s remains in a timely manner. But

"[i]f a fiduciary duty were created in all instances where one party to a contract placed
trust and confidence in the other party to complete such contract as agreed, every breach
of contract claim could give rise to a counterpart breach of fiduciary duty claim, a result
not supported by the law." Jackson, 830 F. Supp. 2d at 650.

Plaintiffs entered into a contract with Dove for cremation services. There is no
evidence to suggest that the defendants were in a superior position to exercise influence
over plaintiffs as a result of their contractual relationship. The contract itself does not
give the funeral home an unfair advantage or relinquish Edwin Sr.'s control over decision
making related to the shipment of Edwin Jr.'s remains, which are key characteristics of
fiduciary relationships. Additionally, plaintiffs do not allege, and the record does not
suggest, that the parties had unequal bargaining power based on unequal knowledge of
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the facts. In fact, plaintiffs' claims do not arise from any exercise of undue influence by
the defendants, but instead from the defendants' actions of mislabeling Edwin Jr.'s
remains, expressing a mistaken belief that the remains had been stolen, and failing to
deliver the remains in time for the wake and funeral. Simply put, the facts here do not
demonstrate anything beyond a normal relationship between a bereaved family and a
funeral home. Thus, the district court properly held that no fiduciary relationship existed
between the parties and granted summary judgment on this claim.

5. Motion to amend petition to add claim for punitive damages

On the same day that the defendants filed their summary judgment motion,
plaintiffs moved to amend their petition to assert a claim for punitive damages against
Newcomer and Newcomer Funeral Services Group, Inc. on their claims of willful
interference with Edwin Jr.'s remains, violations of the KCPA, and breach of fiduciary
duty. Following its decision to grant summary judgment in favor of the defendants, the
district court dismissed the punitive damages motion as moot.

On appeal, plaintiffs contend the district court erred in ruling that the punitive
damages motion was moot because there are genuine issues of material fact relating to
whether the defendants' conduct in concealing the loss of Edwin Jr.'s remains and telling
plaintiffs the remains must have been stolen was intentional, willful, and reckless.
However, because the district court's grant of summary judgment was proper on all
claims, this issue is moot. See Bezona v. Tomson, 25 Kan. App. 2d 210, 214, 960 P.2d
252 (1998).

Affirmed.