OPINIONS OF THE MISSISSIPPI SUPREME COURT AND THE

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OPINIONS OF THE MISSISSIPPI SUPREME COURT AND THE Powered By Docstoc
					 T H E L AW O F F I C E O F RO B E RT H . PA I N E , P L L C



 opinions of the Mississippi
  supreme court and the
Mississippi court of appeals
  on issues pertaining to
cemetery and funeral la   ws




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                         Jackson, MS 39201
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                      www.painelawoffice.com
                             INTRODUCTION

       The following is a compilation of opinions of the Mississippi Supreme Court and
the Mississippi Court of Appeals that pertain to cemeteries and funeral homes in the State
of Mississippi. The following does not include every opinion dealing with cemeteries
and funeral homes but is a selection of those opinions which have shaped in large part the
way that the courts view the laws that regulate these industries.


       It is provided in the hopes that it will serve as a resource for those in the cemetery
and/or funeral services industries and those who come in contact with those industries
from time to time. It is for informational purposes only and provided as a service to the
public. It is not legal advice or a substitute for legal counsel and it is not intended to
create nor does it create an attorney-client relationship.




                                               2
  COMPILATION OF
  OPINIONS OF THE
MISSISSIPPI SUPREME
     COURT AND
MISSISSIPPI COURT OF
 APPEALS ON ISSUES
   PERTAINING TO
   CEMETERY AND
   FUNERAL LAWS




         3
760 So.2d 715

                    Supreme Court of Mississippi.
              HOLLYWOOD CEMETERY ASSOCIATION
                                v.
    BOARD OF MAYOR AND SELECTMEN OF the CITY OF McCOMB CITY,
                            Mississippi.
                     No. 1998-CA-01399-SCT.
                          March 23, 2000.

Cemetery association brought action to challenge city's decision to repeal the
association's exclusive right to open and close graves. The Circuit Court, Pike County,
Keith Starrett, J., affirmed the board of mayor and selectmen. Association appealed.
The Supreme Court, Mills, J., held that: (1) association did not have a vested property
interest in opening and closing graves in a city-owned cemetery; (2) city's decision was
not a taking without just compensation; and (3) it was not tortious interference with
contract rights.
Affirmed.
McRae, J., concurred in the result only.

BEFORE PITTMAN AND BANKS, P.JJ., AND MILLS, J.


MILLS, Justice, for the Court:

¶ 1. The Circuit Court of Pike County, Mississippi acting as an appellate court pursuant
to Miss.Code Ann. § 11-51-75 (1972), affirmed the action of the Board of Mayor and
Selectmen of the City of McComb City, Mississippi (City), denying that Hollywood
Cemetery Association (HCA) had a property interest in the opening and closing of
graves in the city-owned cemetery; that board actions of the City constituted an unjust
taking; or that the City interfered with HCA's contract rights. From that decision HCA
appeals assigning the following as error:

1) Whether the City of McComb, Mississippi through the Board of Mayor and
Selectmen of the City of McComb City, Mississippi violated the property and
liberty interests of the Hollywood Cemetery Association in rescinding Order No.
231:10/87.

2) Whether the City unlawfully interfered with the business and contracts of HCA
by causing a detrimental financial impact upon HCA due to the loss of revenues
for opening graves.

3) Whether the City has conceded the facts recited in HCA's Bill of Exceptions,
and the City's Answer to the Bill of Exceptions should be disallowed by the Court.




                                           4
4) Whether the City's repeal of HCA's right to open graves at the Hollywood
Cemetery Amounted to a taking without just compensation.

5) Whether HCA is entitled to recover its attorneys' fees from the City.

                               STATEMENT OF FACTS

¶ 2. During the Great Depression, the City found that it could no longer pay for burying
its dead in the idyllically named, city-owned Hollywood Cemetery. The City's financial
embarrassments birthed the Hollywood Cemetery Association, established as a non-
profit corporation on March 12, 1932: Its purpose shall be to maintain, care for and
beautify Hollywood Cemetery in the city of McComb city, Pike County, Mississippi,
and to this end, it may collect dues from its membership, contract for the special care of
cemetery lots, receive aid and donations from any person or persons or from other
sources and may employ labor and contract with same to perform such services as may
be required in said cemetery, to carry out the purpose of this organization. Constitution
of Hollywood Cemetery Association.

¶ 3. The Hollywood Cemetery is owned by the City, which has sold and currently sells
deeded lots to individuals. HCA, through dues collected and other income, including
special care fees and fees generated from opening and closing of graves, has hired
workers and maintained the cemetery for over 60 years providing the following
services: (1) opening and closing of graves in the city cemeteries for privately owned
funeral homes; (2) interring and disinterring bodies; (3) providing grave site
maintenance for the owners of grave sites who have purchased perpetual care contracts
(i.e., lump sum payment for perpetual grave site maintenance); and (4) providing grave
site maintenance for the owners of grave sites who annually purchase Special Care
Contracts.

¶ 4. Over time, problems began to develop regarding the maintenance of graves without
perpetual care. HCA did not wish to care for these graves. Since neither HCA nor the
progeny of the decedents cared to keep up these sites, the City was forced to assume
these responsibilities--the expense to be borne by the taxpayers of the City.

¶ 5. The newer parts of the cemetery have lots that are only sold with perpetual care.
The money received by the City from the sale of these lots is placed in a perpetual care
trust and operated by the City. This new system implemented by the City does not
affect the rights and responsibilities of prior perpetual care contracts entered into by
HCA with individual gravesite owners.

¶ 6. The City addressed the issue of opening and closing graves in October, 1987. By
order dated October 27, 1987, HCA was given written authority to open graves in city
owned cemeteries. However, by order dated October 8, 1996, the city rescinded the
October 27, 1987 order allowing HCA to open graves in all the city owned cemeteries
and designated itself as the sole entity authorized to open and close graves. HCA
complains that it derived a significant portion of its income from fees charged for


                                            5
opening and closing graves for private individuals and funeral homes, even though
HCA had no separate agreement with these entities. This dispute over who could dig
graves festered until February 18, 1997.

¶ 7. The Board of Mayor and Selectmen took up an HCA submitted settlement proposal
and voted to disapprove the proposal on March 11, 1997. From that decision, a second
bill of exceptions was taken by HCA. The trial court, acting as an appellate court,
upheld the City's action. From that ruling HCA appeals to this Court.

                                       ANALYSIS

1) Whether the City of McComb, Mississippi through the Board of Mayor and
Selectmen of the City of McComb City, Mississippi violated property and liberty
interests of the Hollywood Cemetery Association in rescinding Order No. 231:10/87
and whether the City's repeal of HCA's right to open graves at the Hollywood
Cemetery Amounted to a taking without just compensation?

4) Whether the City's repeal of HCA's right to open graves at the Hollywood
Cemetery Amounted to a taking without just compensation.

¶ 8. The scope of a reviewing court is limited in examining the actions of a municipal
board. Such an order may not be set aside by a reviewing court unless it is clearly shown
to be arbitrary, capricious, or discriminatory or is illegal or without substantial
evidentiary basis. Sunland Publishing Co. v. City of Jackson, 710 So.2d 879, 882
(Miss.1998) (citing City of Jackson v. Capital Reporter Pub. Co., 373 So.2d 802, 807
(Miss.1979)).

¶ 9. In an appeal from the decision of a municipal authority, Miss. Code Ann. §11-51-75
(1972) states that the person aggrieved may "embody the facts, judgment and decision in
a bill of exceptions" which will be transmitted to the circuit court acting as an appellate
court. The bill of exceptions serves as the record on appeal, and this Court has held that
"[t]he circuit court can only consider the case as made by the bill of exceptions. This is
the only record before the circuit court, as an appellate court." Stewart v. City of
Pascagoula, 206 So.2d 325, 328 (Miss.1968). Having said that, we review the decidedly
skeletal record in this case.

¶ 10. In order to simplify the issues, we combine HCA's first and fourth assignments of
error. HCA contends that the City violated its Fourteenth Amendment rights under the
United States Constitution and its Article 3, section 14 rights under the Mississippi
Constitution by rescinding the City's order authorizing HCA to open and close graves at
the Hollywood Cemetery, which is owned by the City, without prior notice. HCA argues
that the repeal impaired a vested property interest.

¶ 11. First, HCA offers no authority to support its contention that it has a vested property
interest in the opening and closing of graves in the City-owned cemetery. The only case
law that HCA offers is Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903, 29 L.Ed. 185


                                             6
(1885), which HCA cites to state that an attempted repeal cannot divest vested rights.
That puts the cart before the horse. Since HCA cannot establish that HCA's opening and
closing of graves in the city cemetery is a vested property interest, it certainly cannot
establish that the repeal of that duty amounts to a taking without just compensation.
Miss.Code Ann. § 21-17-1 states in pertinent part: Every municipality of this state shall
be a municipal corporation and shall have the power to sue and be sued; to purchase and
hold real estate, either within or without the corporate limits, for all proper municipal
purposes, including parks, cemeteries, hospitals, schoolhouses, houses of correction, ...
to purchase and hold personal property for all proper municipal purposes; ... to sell and
convey any real and personal property owned by it, and make such order respecting the
same as may be deemed conducive to the best interest of the municipality, and exercise
jurisdiction over the same. Miss.Code Ann. § 21-17-1 (Supp.1999) (emphasis added).

¶ 12. The City owns the Hollywood Cemetery, the cemetery in which HCA claims its
has a vested property interest in the opening and closing of graves. The City chose to
open and close the new graves in the interest of economic efficiency. The City was
wholly within its statutory rights to make this decision.

¶ 13. Without expressly stating so, it is apparent that HCA assumed or expected its
agreement with the City to open and close graves to be a vested property interest. This
Court has stated that a mere unilateral expectation is not sufficient to create a vested
property interest. State v. Jones, 726 So.2d 572, 574 (Miss.1998). HCA argues that a
binding agreement between it and the City was established over a period of time,
through habit and custom, thereby creating more than a unilateral expectation. HCA
offers proof that it has opened and closed graves for the city since 1932. This is
irrelevant. The City's decision to repeal the order giving HCA the exclusive right to open
and close graves was a lawful exercise of its police power. Though the City is
responsible for those graves opened between October 27, 1987 and March 11, 1997, it
bore no further obligations to HCA under the prior order after its revocation. The rule is
well established that any exercise of police power is valid if it has for its object the
protection and promotion of the public health, safety, morality or welfare, if it is
reasonably related to the attainment of that object, and if it is not oppressive, arbitrary or
discriminatory. Hattiesburg Firefighters Local 184 v. City of Hattiesburg, 263 So.2d
767, 772 (Miss.1972). In other words, when governmental entities act pursuant to their
police powers, and in the absence of a binding agreement, they are free to conduct their
affairs in a manner consistent with their best interests provided their actions are
reasonably related to the attainment of those interests and are not arbitrary, oppressive or
discriminatory. Further, agreements sufficient to bind the governmental entity must
consist of more than habit, custom, tradition, course of dealings or unilateral
expectation. Here, the City's decision to repeal Order No. 231:10/87 is reasonably
related to its interest in streamlining the maintenance of its cemetery for the overall
welfare of its citizens and is not arbitrary, oppressive or discriminatory against HCA.
The City's actions were within its authority and do not establish an unconstitutional
taking. See generally Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 33
L.Ed.2d 548 (1972).




                                              7
2) Whether the City unlawfully interfered with the business and contracts of HCA
by causing a detrimental financial impact upon HCA due to the loss of revenues for
opening graves.

¶ 14. HCA next argues that the City unlawfully interfered with its business and contract.
HCA contends that the City's adoption of the order rescinding HCA's authority to open
and close graves in the cemetery amounts to a tortious interference with contract rights.
HCA claims that it will no longer be able to honor and fulfill its own contract
obligations to individuals who procured perpetual care contracts for the care and
maintenance of gravesites since it will no longer be receiving the income from the
opening and closing of graves.

¶ 15. An action for tortious interference with contract ordinarily lies when a party
maliciously interferes with a valid and enforceable contract, causing one party not to
perform and resulting in injury to the other contracting party. Levens v. Campbell, 733
So.2d 753, 760 (Miss.1999). The four elements for this tort are: "(1) that the acts were
intentional and willful; (2) that they were calculated to cause damage to the plaintiffs in
their lawful business; (3) that they were done with the unlawful purpose of causing
damage and loss, without right or justifiable cause on the part of the defendant (which
constitutes malice); and (4) that actual damage and loss resulted." Par Indus., Inc. v.
Target Container Co., 708 So.2d 44, 48 (Miss.1998) (quoting Cenac v. Murry, 609
So.2d 1257, 1268-69 (Miss.1992)). Of course the plaintiff must also prove that an
enforceable obligation existed between the plaintiff and another party. Merchants &
Planters Bank v. Williamson, 691 So.2d 398, 407 (Miss.1997). In addition, the plaintiff
must prove that the contract would have been performed but for the alleged interference.
Par Indus., Inc., 708 So.2d at 48.

¶ 16. HCA contends that the City's October 1996 order rescinding HCA's authority to
open and close graves in city-owned cemeteries amounts to a tortious interference with
contract rights. HCA argues that it will no longer be able to honor its perpetual care
contracts with individual cemetery plot owners. However, in HCA's bill of exceptions
HCA offers no proof of any such contracts. We have stated, "If the bill of exceptions is
not complete and is fatally defective in that pertinent and important facts and documents
are omitted therefrom, then the [circuit] court does not have a record upon which it can
intelligently act." Stewart, 206 So.2d at 328. Further, this Court will not rely solely on
assertions made in the briefs; it is the appellant's duty to establish any facts necessary to
establish his claim of error. Goss v. State, 730 So.2d 568, 572 (Miss.1998). Therefore,
HCA having provided no proof whatsoever of its perpetual care contracts with
individual gravesite owners, we must conclude that no such contracts exist, thereby
precluding a claim for tortious interference with contract rights.

¶ 17. Assuming arguendo, that HCA does have valid and enforceable contracts with
individuals for the perpetual care and maintenance of gravesites, we apply the four
elements of tortious interference with contract rights. First, the City's action in adopting
the October 1996 order which rescinded the October 1987 order authorizing HCA to
open and close graves must be said to be intentional and willful and calculated to cause


                                             8
damage. HCA fails to offer any proof that the City calculated to cause damages to HCA.
HCA merely contends that the City "knew that its actions would injure HCA." The
City's mere knowledge of a detrimental effect on HCA does not constitute evidence that
its actions were calculated to cause damage. Further, the City's actions were not done
with an unlawful purpose of causing damage and loss without right or justifiable cause.
When the City rescinded the October 1987 order it was exercising its statutory authority
to "make such orders ... as may be deemed conducive to the best interest of the
municipality." Miss.Code Ann. § 21- 17-1 (Supp.1999). Finally, HCA offers no proof
that any loss has occurred. HCA only hypothesizes that it will no longer be able to fulfill
its contractual obligations to the individual gravesite owners because it will be forced
out of business.

3) Whether the City has conceded the facts recited in HCA's Bill of Exceptions, and
the City's Answer to the Bill of Exceptions should be disallowed by the Court.

¶ 18. HCA's next assignment of error is immaterial. The circuit court expressly stated
that it did not consider the City's Answer to the Bill of Exceptions in its ruling.

5) Whether HCA is entitled to recover its attorneys' fees from the City.

¶ 19. HCA's final assignment of error concerns its right to recover attorneys' fees from
the City. HCA claims that the City requested it to prepare a proposed agreement to
resolve the principal dispute between the two entities and that HCA prepared such an
agreement. However, the City voted not to adopt the agreement. HCA contends that the
City never even considered adopting the agreement, and HCA cites authority stating that
attorney fees may be recovered where punitive damages would be justified. Aetna Cas.
& Sur. Co. v. Steele, 373 So.2d 797, 801 (Miss.1979). HCA also states the well-
established rule that punitive damages are appropriate when there is a wrongful act
intentionally performed. Milner Hotels v. Brent, 207 Miss. 892, 899, 43 So.2d 654, 655
(1949). This argument is without merit. Sufficient facts have not been presented to in
any way justify an award of punitive damages or attorneys' fees in this case. The City
lawfully declined to adopt the agreement during a regular board meeting on March 11,
1997. Accordingly, this issue is wholly without merit.

¶ 20. For the foregoing reasons, the judgment of the Circuit Court of Pike County is
affirmed in all respects.

¶ 21. AFFIRMED.

PRATHER, C.J., PITTMAN AND BANKS, P.JJ., SMITH, WALLER AND COBB, JJ.,
CONCUR. MCRAE, J., CONCURS IN RESULT ONLY. DIAZ, J., NOT
PARTICIPATING.




                                            9
760 So.2d 870

                       Court of Appeals of Mississippi.
      Delie SHEPARD, Administratrix of the Estate of Rodney Stowers, Deceased
                                   Appellant,
                                        v.
       Eddie JOHNSON d/b/a Holifield Funeral Home and Does 1-5, Appellees.
                          No. 1998-CA-01336-COA.
                                 June 13, 2000.

Parent brought action against funeral home claiming funeral home was negligent in
failing to inform her that her son's body was buried without its internal organs. The Scott
County Circuit Court, Marcus D. Gordon, J., granted summary judgment for funeral
home, and parent appealed. The Court of Appeals, King, P.J., held that funeral home did
not owe duty to inform parent of absence of son's internal organs, as funeral home did
not remove or have control over organs.
Affirmed.


BEFORE KING, P.J., PAYNE, AND THOMAS, JJ.


KING, P.J., for the Court:

¶ 1. This appeal arises from the Scott County Circuit Court's judgment sustaining Eddie
Johnson's, d/b/a Holifield Funeral Home, ("Holifield") motion for summary judgment.
The trial court found that Delie Shepard executed a written consent, which authorized
the hospital to perform an autopsy on her son and to remove and to retain tissues as the
physician deemed proper. We find no error and accordingly, affirm the judgment of the
trial court.

                                         FACTS

¶ 2. On September 29, 1991, Delie Shepard's son, Rodney Stowers, was admitted to
Golden Triangle Regional Medical Center (Golden Triangle) for injuries sustained
earlier that day at a football game. Four days later Stowers died from his injuries. After
Stowers's death, Shepard executed a written authorization allowing the hospital to
perform an autopsy on the body. This authorization allowed the examining physician to
remove and retain certain tissues and specimens as he deemed necessary. Following the
autopsy, Golden Triangle released Stowers body without internal organs to Holifield
Funeral Home for burial. After receiving the body, Holifield embalmed and buried it
without its internal organs.

¶ 3. In May of 1992 Stowers body was exhumed for a second autopsy. After the
exhumation, Shepard discovered the body had been buried without its internal organs.
On October 1, 1993, Shepard filed a complaint in Scott County Circuit Court,
individually and as administratrix of Rodney Stowers's estate, against the


                                            10
anesthesiologist, Golden Triangle, Dr. Russell Linton, and Holifield. In May of 1994 the
trial court severed and transferred some of the claims to the Lowndes County Circuit
Court. Holifield was the only defendant remaining in the Scott County case. Shepard's
claim against Holifield alleged improper burial of her son's body without internal organs
and failure to inform her of the absence of the body's internal organs.

¶ 4. On May 22, 1998, Holifield filed a motion for summary judgment, which the Scott
County Circuit County granted. After the court denied Shepard's motion to set aside,
alter or amend the final judgment, she perfected this appeal.

                       ANALYSIS OF THE ISSUE AND LAW

                                            I.

Whether the court erred in granting Holifield Funeral Home's motion for summary
judgment.


¶ 5. Shepard contends that the chancellor erred in granting Holifield's motion for
summary judgment because it was not specifically authorized to bury Stowers's body
without its internal organs. She asserts that the written authorization for removal and
retention of certain tissues and specimens from the body extended only to the hospital
and not to Holifield. Shepard alleges that Holifield was negligent in its duty to inform
her of the absence of Stowers's internal organs prior to burial.


¶ 6. When we are asked to review a lower court's grant of summary judgment, we
employ a de novo standard of review. Seymour v. Brunswick Corp., 655 So.2d 892, 894
(Miss. 1995) (citing Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.
1988)). In applying that standard, we review all evidentiary matters before us in the
record: affidavits, depositions, admissions, interrogatories, etc. Seymour, 655 So.2d at
894. The evidence is viewed in the light most favorable to the non-moving parties, and
they are given the benefit of every reasonable doubt. Mississippi Ins. Guar. Ass'n v.
Harkins & Co., 652 So.2d 732, 735 (Miss.1995). Summary judgment lies only when
there is no genuine issue of material fact, and the moving party is entitled to a judgment
as a matter of law. Id. To prevent summary judgment, the non-moving party must
establish a genuine issue of material fact by means allowable under the rule. Baptiste v.
Jitney Jungle Stores of Am., 651 So.2d 1063, 1065 (Miss.1995) (citing Lyle v.
Mladinich, 584 So.2d 397, 398 (Miss.1991)). Having applied this standard, this Court
finds that there were no material issues of disputed fact.


¶ 7. The elements of proof required for negligence include duty, breach of duty, damages
and proximate cause. Rolison v. City of Meridian, 691 So.2d 440, 444 (Miss. 1997). We
agree with the trial court and are persuaded that, in this case, Holifield owed no duty to
inform Shepard of *872 Stowers burial without his internal organs. Shepard admitted



                                            11
that she authorized the hospital to perform an autopsy on her son's body after his death.
The authorization specifically allowed the examining physician to remove and retain
tissues and specimens as he deemed appropriate. Mississippi Code Annotated § 41-39-1
(Rev.1993) permits an examining physician to dispose of tissue from the human body by
cremation, incineration or burial unless a written request is submitted by someone
claiming the dead body prior to removal of the tissue. Nothing in the record suggests that
Shepard requested that her son's organs be replaced after examination. In fact, there is no
indication that the examining physician gave Shepard any specific notification of her
options in this matter. Nevertheless, Shepard executed the authorization allowing the
autopsy based on the assumption that Stowers's organs would be replaced.


¶ 8. Holifield had no duty to inform Shepard of the absence of her son's internal organs.
The autopsy was a matter between Shepard and other parties and did not involve
Holifield. Holifield did not remove, nor did it have control of the internal organs. Nor
does the record reflect any discussion between Shepard and Holifield which might give
rise to a duty to inform. In the absence of some duty by operation of law or contract,
George B. Gilmore Co. v. Garrett, 582 So.2d 387, 391 (Miss.1991) (citing Pinnix v.
Toomey, 242 N.C. 358, 87 S.E.2d 893, 897-98 (1955)), Holifield had no actionable
obligation to inform Shepard of the missing organs.

¶ 9. We find that there no are issues of fact which are material to the legal principles on
which Shepard must depend to establish her claim for negligence against Holifield. We
agree with the trial court that summary judgment was proper in this case. We, therefore,
affirm the judgment of the trial court.

¶ 10. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT
GRANTING SUMMARY JUDGMENT IN FAVOR OF THE APPELLEES IS
AFFIRMED. APPELLANT IS TAXED WITH ALL COSTS OF THIS APPEAL.


McMillan, C.J., SOUTHWICK, P.J., BRIDGES, IRVING, LEE, MOORE, PAYNE,
AND THOMAS, JJ., CONCUR.




                                             12
203 So.2d 318

                     Supreme Court of Mississippi.
           W. O. RUTLEDGE, Jr., et al., Complainants-Appellants,
                                   v.
   NATIONAL FUNERAL HOME OF NEW ALBANY, MISSISSIPPI, INC., et al.,
                            Defendants-
                              Appellees.
                             No. 44532.
                           Oct. 16, 1967.


Suit to enjoin establishment and operation of funeral home. The Chancery Court, Union
County, Fred P. Wright, Chancellor, denied injunction and dismissed suit. Complainants
appealed. The Supreme Court, Gillespie, P. J., held that area was essentially residential
in character and residents thereof were entitled to injunction against operation of funeral
home therein, where, omitting churches and schools, there were only seven commercial
or service establishments within nine-block area which had as its center the block in
which defendants proposed to establish funeral home, and there were over 100
residences in the nine-block area. Reversed and judgment for appellants.


GILLESPIE, Presiding Justice.
This suit was instituted in the Chancery Court of Union County by Mr. and Mrs. Richard
Sanders and Mr. and Mrs. W. O. Rutledge, hereinafter called complainants, against W.
T. Lamar and National Funeral Home of New Albany, Mississippi, Inc., hereinafter
called defendants. Complainants sought a decree perpetually enjoining defendants from
establishing and operating a funeral home in New Albany, on a lot adjoining the
Sanders' home and across the street from the Rutledges' home. The chancellor denied the
injunction and dismissed the suit. We reverse and enter judgment here for the relief
prayed for by the complainants.

Complainants had owned and lived on their properties for many years prior to February
28, 1966, when the defendant Lamar purchased a residence located at the southeast
intersection of Central Avenue and Main Street in the City of New Albany. Prior to
Lamar's purchase of the property, complainants made known to him their objections to
the operation of a funeral home on the property.

Defendants planned to convert a residence located on the aforesaid lot into a funeral
home which they proposed to operate with all the usual services, including embalming,
providing a place for relatives to sit up with the dead and conducting funerals.

There is no substantial conflict in the evidence. New Albany has a population of slightly
over 5,000. There is no zoning ordinance and no building permits are required. For the
purpose of identification, the block wherein defendants propose to establish a funeral
home will be referred to as Block 1. This block is exclusively residential. At the time
defendant Lamar purchased the property, known as the Work property, located in the


                                            13
northwest corner of said Block 1, there were ten residences in said block and no vacant
lots and no commercial establishments. The block immediately to the west of said Block
1 is exclusively residential except a telephone exchange located in the northwest corner.
On the block immediately to the east of said Block 1 there are fifteen residences, a
church, a school gymnasium, and the Union County Health Department located in the
northwest corner. The block immediately to the south of said Block 1 is exclusively
residential. On the block immediately to the north of said Block 1 there is located in the
southwest corner, opposite the proposed funeral home property, the Shands Hospital
which is being used, in part, as a physician's office, but is not now being used as a
hospital. Toward the east end of said block and facing Block 1 is a dental clinic. On the
north side of said block, facing north, there is a combination dry cleaning and car wash
business. The remaining part of the block is occupied by nine residences. The block to
the southeast of Block 1 is occupied by a junior high school. The block to the northeast
of Block 1 is an irregular shaped block and is all residential property except for a service
station at the extreme east and which is approximately three blocks from the proposed
funeral home property. The block to the southwest of said Block 1 is exclusively
residential. The block cornering with Block 1 on the northwest has ten residences, a
church and a service station, the service station being located on the southwest corner.
Omitting churches and schools, which do not detract from the residential characteristics
of a neighborhood, there are only seven commercial or service establishments within the
nine block area having as its center Block 1 where defendants purpose to establish a
funeral home. The record does not show the exact number of residences in the
exclusively residential block south and southwest of Block 1, but it appears that there are
in the aforementioned nine blocks over one hundred residences.

Since there is no dispute in the testimony with reference to the location of the proposed
funeral home and all the non-residential property in the area involved in this case, it
becomes a question of law whether complainants are entitled to have their residential
property protected from the operation of the funeral home.

The Court has decided four cases involving the question under consideration. In
Williams v. Montgomery, 184 Miss. 547, 186 So. 302 (1939), the decree of the chancery
court enjoined the operation of a funeral home in an exclusively residential
neighborhood. The Court said that although the funeral home was conducted in a
modern and approved manner, it was a nuisance in an exclusively residential area. The
Court, taking judicial notice of the reactions of the normal person, said that one who has
selected a quiet home for happiness and joy and comfort will, by the obtrusion of a
funeral home in his immediate vicinity, have his right to comfort, repose and enjoyment
in the home materially affected; and there must ensue a material depreciation of the
value of the home and that a funeral home, although lawful and conducted in an
approved manner, is a nuisance to those so affected.

In Davis v. Holmes, 189 Miss. 554, 198 So. 25 (1940) the Court again affirmed a decree
enjoining the operation of a funeral home. In that case the seven-block area surrounding
the block of property in question was residential except two small grocery stores in the
block wherein the complainants' residences were located, and another small shop in the



                                             14
area. The appellant in Davis v. Holmes, supra, contended that the area was not
exclusively residential but was semi-commercial and, therefore, Williams v.
Montgomery, supra, did not apply. The Court rejected this argument, and said the area in
question was '* * * essentially residential in character and that the presence of three
small commercial places, particularly in view of the nature of the business transacted
there, is not of such material significance as to oust the district from the protection
afforded under the rule announced in Williams v. Montgomery, supra.' 189 Miss at 558,
198 So. at 25. Thus the rule was established that the residents of an area 'essentially
residential in character' were entitled to protection against the operation of a funeral
home in such area.

In Smith v. Fairchild, 193 Miss. 536, 10 So.2d 172 (1942), the chancery court dismissed
a bill of complaint seeking an injunction against the location and operation of a funeral
home in the City of Hattiesburg. This Court reversed and issued the injunction. The area
involved in that case was residential except that opposite the funeral home there was an
ice plant and a gasoline service station and a small grocery some 700 feet from the
funeral home. The Court said that if a transition was taking place, it '* * * has not
reached the point where the residents are not entitled to protection.' 193 Miss. at 547, 10
So.2d at 174.

The last case on this question is May v. Upton, 233 Miss. 447, 102 So.2d 339 (1958),
wherein this Court affirmed the chancery court's decree denying an injunction and
dismissing the complaint. In that case the Court recognized that complainants' property,
which was across the street from the funeral home, was on the edge of an essentially
residential area, but no relief was granted because the funeral home was in a block which
was exclusively commercial. The street between the funeral home and the complainants'
property was the dividing line between the commercial and essentially residential areas.

We are of the opinion that the trial court erred in holding that the area involved in this
case was not essentially residential in character. The few scattered non-residential
parcels are not such as to characterize the area as commercial. Especially is this true of
the block where defendants propose to establish the funeral home, which is exclusively
residential. The decree dismissing the bill of complaint is reversed and judgment entered
here granting the injunction as prayed for in the bill of complaint.

We reach this decision without considering the testimony of the embalmer that the fumes
from the embalming room would be exhausted toward the kitchen and outdoor living
area of the Sanders' residence. We find it unnecessary to consider whether this feature of
the proposed operation would of itself entitle the Sanders to relief.
Reversed and judgment here for appellants.

JONES, INZER, SMITH and ROBERTSON, JJ., concur.




                                             15
820 So.2d 3

                          Court of Appeals of Mississippi.

                 BROOKHAVEN FUNERAL HOME, INC., Appellant,
                                           v.
              Deborah HILL and City of Brookhaven, Mississippi, Appellees.
                             No. 2000-CA-01126-COA.
                                     Jan. 15, 2002.
                          Rehearing Denied March 19, 2002.
                           Certiorari Denied June 27, 2002.

Funeral attendee brought action against funeral home for injuries suffered when she fell
on sidewalk in front of funeral home. The Circuit Court, Lincoln County, Mike Smith,
J., granted judgment in favor of attendee. Funeral home appealed. The Court of Appeals,
Southwick, P.J., held that sidewalk on which attendee fell was not under ownership or
control of funeral home.
Reversed and rendered.

Before SOUTHWICK, P.J., IRVING, and MYERS, JJ.


SOUTHWICK, P.J., for the Court.

¶ 1. Deborah Hill brought suit for injuries suffered when she fell on a sidewalk in front
of Brookhaven Funeral Home. On appeal, the funeral home argues that no proof was
introduced that the sidewalk on which she fell was under its ownership or control. We
agree and reverse and enter judgment for Brookhaven Funeral Home. Issues regarding
the funeral home's potential right of indemnification from the City of Brookhaven are
thus moot.

                                         FACTS

¶ 2. On April 1, 1997, Deborah Hill attended her grandfather's funeral. Hill parked her
automobile in Brookhaven Funeral Home's lot. In order to enter the funeral home from
this lot, a person needed to cross a street and continue on a concrete walkway that had an
initial slope up towards the entrance. Hill entered without incident. She later exited in
order to have her vehicle placed behind the hearse in the funeral procession. It was her
testimony that while she was walking down the sidewalk on the portion that sloped
towards the street, her foot "went out from under [her] and [she] turned completely
around." At trial Hill could not identify what caused her to fall. She specifically refused
to say that her fall was caused by a crack that was located in the middle of the sidewalk.
Hill was transported by ambulance to a hospital. She later received surgery on her elbow
and had several months of rehabilitation. Hill suffered considerable pain and also lost
wages as a result of the injury.




                                            16
¶ 3. The funeral home notified the City of Brookhaven of this injury. It requested that the
City construct steps to replace the initial sloped section of the sidewalk. The funeral
home offered to pay for the concrete. The offer was accepted and City employees broke
out the old sloping sidewalk and replaced it with a walk containing two concrete steps.
In addition to the steps constructed by the City, the funeral home asked for permission to
place a handrail in the middle of the steps. Permission was granted and the funeral home
installed the handrail.

¶ 4. The only evidence as to ownership of the sidewalk came from the funeral home and
from an admission in discovery by the City. Both agreed that the City owned the
property on which the relevant sidewalk was located.

 ¶ 5. Hill brought suit against the funeral home, who in turn brought a third party
complaint for indemnity against the City. No claim was brought by Hill directly against
the City. By statute, the funeral home's claim against the City was to be resolved by the
trial judge. Miss.Code Ann. § 11-46-13 (Supp. 2001). After a trial, the jury found the
funeral home liable to Hill for $75,000. The trial judge held that the City had no
indemnity obligation. The funeral home appeals.

                                       DISCUSSION
1. Legal issues at trial

¶ 6. There were three individuals or entities potentially at fault in this accident. The
plaintiff herself could have been negligent. There was testimony that during the fifteen
years preceding this accident, perhaps 35,000 people had used this sidewalk to access the
funeral home and Hill was the only one to fall. However, the jury found that Hill in no
way negligently contributed to her own injuries. The other two possibilities were the
funeral home and the City. The fault of either of the latter two required showing which
one owned or controlled the premises on which some defective condition existed. Hill's
attorney chose the funeral home as the sole defendant.

¶ 7. Under Mississippi practice, the funeral home did not have the right to join the City
as a codefendant just because the City might instead have been the one liable to the
plaintiff Hill. Narkeeta Timber Co., Inc. v. Jenkins, 777 So.2d 39, 42 (Miss.2000). The
selection of defendants is in this state's practice solely the prerogative of the plaintiff.
However, the funeral home could and did file a claim against the City for indemnity.
M.R.C.P. 14(a) (defendant may bring into suit a party who "may be liable to [the
defendant] for all or part of the plaintiff's claim against him").

¶ 8. Therefore, insofar as the outcomes available in this case were concerned, the funeral
home, if found to have some degree of fault, could be made to compensate Hill for that
percentage fault. Miss.Code Ann § 85-5-7(7)(Rev. 1999). In addition, if the City were
found to have some obligation to indemnify the funeral home, that could have been
ordered. M.R.C.P. 14. On the other hand, since Hill did not herself sue the City, any
responsibility that the City might have had to Hill could not have resulted in a judgment
requiring a payment from the City to Hill. Estate of Huner v. General Motors Corp., 729



                                              17
So.2d 1264, 1275-76 (Miss. 1999). As to Hill's attempt to assess fault in this suit, the
City was not a party. There is no issue made on appeal of whether the jury should have
been given an instruction to consider allocating a measure of fault to the City as a
potential absent tortfeasor responsible to Hill. Id.

¶ 9. Hill's suit against the funeral home was for its alleged failure to maintain premises in
a reasonably safe condition. Therefore, the defect must be to premises for which the
funeral home has sole or shared legal responsibility, not just to property in the vicinity of
the funeral home.

¶ 10. Whether the funeral home had responsibility for this sidewalk begins with
understanding the physical setting. To enter the funeral home, Hill left her vehicle at a
parking lot and then walked across a City street. She then stepped up from the curb onto
a sidewalk. This was the sloping sidewalk on which the alleged defect existed. It was
perhaps ten feet wide and extended the five or six feet from the curb to connect to the
sidewalk that runs parallel to the street along this side of the funeral home's block. We
will call these the "sloping" and the "parallel" sidewalks. Except for a few connecting
sidewalks such as the one in question here, grass separates the street and curb from the
parallel sidewalk. She first stepped onto the sloping sidewalk when she stepped up over
the curb. After walking on it the five or six feet until it connected to the sidewalk that
parallels the street, then crossing over the width of the parallel walk, she stepped onto a
narrower section of sidewalk that extended the remaining distance to the front of the
funeral home itself.

¶ 11. Hill did not fall when she first used the sidewalks. At a later time, Hill retraced her
steps and fell on the sloping sidewalk near the street. It was her burden to prove that the
cause of her fall was a defective condition for which the funeral home was responsible.
If such responsibility existed, then the funeral home also had an opportunity to prove
that it should be indemnified by the City. Since Hill did not sue the City, though, if the
City were solely responsible for the defect and not just derivatively so, no compensation
from the City could be awarded in this litigation.

2. Ownership and control of sidewalk

¶ 12. The fulcrum on which this appeal turns is whether there was evidence to make a
jury question of the funeral home's responsibility for defects in the segment of sidewalk
on which Hill fell.

¶ 13. A municipality has "a non-delegable duty to maintain its sidewalks and other
public ways in a reasonably safe condition." Bell v. City of Bay St. Louis, 476 So.2d 657,
659 (Miss. 1985). As other premises owners but subject to some statutory restrictions, a
city may be held responsible for injuries arising from unsafe conditions. City of Tupelo
v. Martin, 747 So.2d 822, 828 (Miss. 1999). Private landowners are similarly
responsible for the sidewalks that they own or maintain. Stanley v. Morgan & Lindsey,
Inc., 203 So.2d 473, 476 (Miss.1967). An abutting landowner is liable for the injuries
on a municipal sidewalk only if its tortious conduct causes a dangerous condition on the



                                              18
sidewalk to arise. Rosenbaum Realty Co. v. Tolbert, 142 Miss. 710, 711, 107 So.422,
423 (1926).

¶ 14. Who owned or controlled the sidewalk on which Hill fell was part of her necessary
prima facie case. In order to prove "liability on the part of an owner or occupant of
premises for injuries resulting from the condition of the premises," a plaintiff must, as a
preliminary matter, show that the defendant had occupation or possession and control.
Wilson v. Allday, 487 So.2d 793, 796 (Miss. 1986). Consequently, Hill was required to
show the funeral home's legal relationship to the allegedly dangerous segment of
sidewalk.

¶ 15. On appeal, Hill claims that there was a factual dispute over ownership, possession
or control, and the jury resolved the controversy in her favor. What the record reflects,
however, is that the only evidence on this issue revealed that this was the City's
sidewalk. One witness called by Hill was Michael Hemphill, who saw Hill fall. His
testimony and that from other witnesses including Hill identified the portion of sidewalk
on which Hill fell as identical to the segment that the City replaced after Hill's accident
and that the City admitted that it owned. A survey entered into evidence by the funeral
home also revealed that the sidewalk was owned by the City of Brookhaven.

¶ 16. Hill alleges that a jury question as to control and possession of the sloping
sidewalk was made by the fact that the funeral home took the initiative after the accident
to request that the City make improvements. The funeral home then paid for the concrete
and installed a handrail. *7 In fact, this evidence proves the opposite. No one disputes
that the City performed the work and did so on its own property, the very property on
which Hill testified that she fell. We do not find that the fact that the funeral home was
willing to pay for the concrete as an inducement to get the City to make this
improvement equates to evidence of ownership, possession or control. The evidence in
fact supports that the funeral home considered that the City had control over upgrading
of the sidewalk. The City's actions were an acceptance of that control.

¶ 17. Since ownership and control were clear, the City had a non-delegable duty to
maintain the walkway. Since there were now steps instead of a slope, the funeral home
asked if it could add a handrail in the middle. If in the future some defect in the handrail
is said to cause injury, then the fact that the funeral home made that improvement to the
City's sidewalk might be relevant. We find no relevance to this evidence in assessing
fault for Hill's injuries.

¶ 18. In summary, these are the items of evidence that arguably created a fact question
about the funeral home's ownership, possession or control of the sloping sidewalk.
1) The funeral home notified the City after Hill's fall that improvements should be made.
2) The funeral home agreed to pay for the concrete if the City would construct steps to
replace the sloping sidewalk.
3) The funeral home gained permission from the City to add a handrail.
4) The sidewalk is adjacent to the funeral home.




                                             19
¶ 19. We find nothing in these facts to create an issue for the jury. Municipal sidewalks
will be adjacent either to private property or to other governmental property. Proximity
is the unavoidable reality of sidewalks and does not by itself create a fact issue on
ownership or control. Post-injury efforts to improve the walk were consistent with the
City's ownership and control over the property; all the funeral home did was offer to pay
for the concrete as an incentive for the discretionary action of the City. The post-accident
handrail is similarly ineffective to prove the funeral home's liability.

3. Conclusion

¶ 20. Since the funeral home's occupation or ownership of the sidewalk was never
shown, we reverse and enter judgment for Brookhaven Funeral Home. The separate
issue of the City's possible obligation to indemnify the funeral home is therefore moot
and we do not address it. What we have held should not be read as resolving whether
Hill has a claim against the City since such a claim has not been made in this case.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY
REQUIRING THAT BROOKHAVEN FUNERAL HOME, INC. PAY $75,000 TO
DEBORAH HILL IS REVERSED AND RENDERED. COSTS OF THIS APPEAL
ARE ASSESSED EQUALLY TO THE APPELLEES.

MCMILLAN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER and BRANTLEY, JJ., CONCUR.




                                             20
344 So.2d 127

                              Supreme Court of Mississippi.
                                 Sidney STUART et al.
                                            v.
                               Mrs. Willie C. SMITH et al.
                                      No. 49250.
                                    March 23, 1977.

Bill was brought to have cemetery perimeter established and to enjoin interference with
access of grantor's mother's descendants to cemetery and their right to be buried there.
The Chancery Court, Wilkinson County, Fred C. Berger, Chancellor, established
perimeter of cemetery, construed 1933 deed to mean that grantor reserved unto himself
in fee simple one-quarter acre in square from capable of being conveyed by his heirs
who in 1974 did convey it to grantee's successor in title, and held that descendants had
only right or license to be buried in graveyard as it existed in 1933 with ingress and
egress rights, and descendants appealed. The Supreme Court, Broom, J., held that
chancellor's interpretation that grantor's language operated to retain in himself fee simple
title to square shaped one-quarter acre burdened with easement in favor of descendants
as to actual burial ground was correct and his refusal to order enlargement of established
cemetery was not inequitable.
Affirmed.

.
Before PATTERSON, ROBERTSON and BROOM, JJ.


BROOM, Justice, for the Court:
Cemetery rights are the subject of litigation in this cause growing out of 'excepting and
reserving' language of a land deed. Appellants' (Sidney Stuart, et al.) bill against
appellees (Mrs. Willie C. Smith, et al.) was tried in the Chancery Court of Wilkinson
County, which court entered a decree adverse to appellants. We affirm.

In 1933 by warranty deed W. C. Stuart (son of Martha, same person as M. C. Stuart)
conveyed 243 acres in Wilkinson County to Julia Morris (appellees' predecessor in title).
Following the land description, the deed reads: (E)xcepting and reserving therefrom one
quarter of an acre in square form surrounding the present graveyard with necessary rights
to and from said graveyard at any and all times for the use of the heirs of M. C. Stuart,
deceased.

Subsequently the appellees purchased from Julia Morris (or her successor in title)
property completely surrounding the one-quarter of an acre, and remain in possession. In
1974, for valuable consideration, the heirs (five of the appellants) of W. C. Stuart
conveyed by separate deeds unto the appellee Mrs. Willie C. Smith all their right, title
and interest to the one-fourth acre excepted and reserved by W. C. Stuart in his 1933 deed
to Julia Morris. These deeds each state that the grantor does 'hereby convey and warrant
until Willie C. Smith, all my right, title and interest' in the one-quarter acre. Then in 1975


                                             21
appellants (descendants of M. C. Stuart) filed their bill to (1) have the cemetery perimeter
established, (2) require appellees to remove all trailers, structures and personal property
from the one-quarter acre parcel, and (3) have appellees enjoined from interfering with
access of M. C. Stuart's descendants to the cemetery and their right to be buried there.

The lower court established the perimeter of the cemetery as depicted by the map drawn
by R. L. Hammack. His map (introduced into evidence) indicates that the actual land
upon which graves were made consists of approximately one-half of the quarter acre. In
construing the 1933 deed the chancellor held it to mean that W. C. Stuart reserved unto
himself in fee simple one-quarter of an acre in square form 'capable of being conveyed'
by his heirs who in 1974 did convey it to the appellees. Additionally, the chancellor held
that the appellants have only 'the right or license to be buried in the graveyard as it
existed . . . in 1933' with ingress and egress rights. His decree did not by metes and
bounds precisely describe the one-quarter acre in square form decreed to be owned by
appellees, or the fifteen foot easement decreed to appellants for access to the existing
graveyard. However, there was attached to the decree, and by reference made a part of it,
a map which shows the graveyard's area colored yellow on the map. Appellants contend
that it was W. C. Stuart's effect and intention (as expressed by his language in the 1933
deed to Julia Morris) to create a one-quarter acre cemetery in square form rather than just
the smaller parcel upon which people were actually buried.

Testimony introduced in this cause is summarized here. Appellees own all lands adjacent
to the cemetery which is one of antiquity. No person has been interred there since about
1910. Appellants' father and grandfather were buried elsewhere, and the same is true of
W. C. Stuart, who employed the controversial excepting and reserving language in his
1933 deed to Julia Morris. Two experts, an archeologist and civil engineer, have through
resistivity tests and a topographic survey established the perimeter of the cemetery as
actually used for burial sites. The court found as a fact that prior to W. C. Stuart's
execution of the 1933 deed, the cemetery existed upon the land or area depicted in yellow
on the map or plat of archaeologist McGahey.

The description in the controversial clause is fairly definitive of the entire parcel, but
does not precisely define the perimeter of the burial ground. McLendon v. Ravesies, 178
Miss. 428, 173 So. 303 (1937), held that if any reasonable construction can be given to a
land description, it will not be held void for uncertainty. No evidence in the record
establishes with precise certainty the publicly recognized perimeter of the cemetery, but
witnesses Florida Ford and Jim Williams state that the cemetery is located where it has
always been since they have known of the Stuart family cemetery. Mrs. Smith testified
that shortly after she purchased the property (approximately forty years ago), Mr. Bernie
Stuart, father of the complainant Sidney Stuart, pointed out the limits of the cemetery to
her and told her she could use the remainder of the land for a garden. However, McGahey
by his resistivity tests located the cemetery. The evidence shows that no burials have
been made there since the date of the conveyance. It follows that the cemetery would
have been the same size and in the same location in 1933 as at the present. Thus the
chancellor acted reasonably in fixing the 'perimeter and boundaries of the cemetery . . . as
being that shown in yellow on the map and plat' of archaeologist McGahey, and in fixing



                                            22
appellants' 'easement and right-of-way' to the cemetery as a fifteen foot strip 'by the
shortest and most direct route.' There is no proof or argument that this location of the
'easement and right-of-way' is unreasonable or unusable or unduly restrictive as to
appellants.

Appellees cogently argue that the actual burial ground should (as decreed below) be
limited to the perimeter of the area upon which graves are presently located as
determined by archaeologist McGahey's resistivity tests. Appellants contend that the
language 'for the use of the heirs of M. C. Stuart, deceased,' gives them use of the entire
one-quarter acre for burial purposes. No case precisely in point is cited from this
jurisdiction and we have not found any. Morgan v. Collins School House, 160 Miss. 321,
133 So. 675 (1931), dealt with a deed in which the intended grantees were not legal
entities in esse. There, even though the deed, void for lack of any grantee, failed to
effectively establish a private cemetery, we held: Under the facts shown in the testimony
the permitting of people to bury their dead in the said lands, and its use as a cemetery or
graveyard by persons with permission and a consent of the owners creates a situation
which equity will protect to the extent of its powers to do so under the facts (Citations
omitted) . . . The custom of ages has been for people to bury their relatives together or in
the same cemetery as far as reasonably possible and giving a privilege to bury should be
understood as carrying this right. (160 Miss. at 329, 133 So. at 677).

Mississippi Code Ann. s 41-43-3 (1972) is authority that this state now recognizes private
or family cemetery or burying ground. However, the statute (and none other cited in the
briefs) controls here where the question involved is one of interpreting an inartfully
drawn clause in the 1933 deed. Our affirmance of the lower court's decree in no way
operates to deny appellants in any manner of their reasonable use of and access to the
established cemetery which the chancellor found to preexist the deed in question. His
refusal to order enlargement was not inequitable upon the facts and circumstances of this
case. Appellees have not cross appealed from his rejection of their theory that the
cemetery had been abandoned.

Appellants question the logic of W. C. Stuart conveying 243 acres and saving unto
himself one-quarter of an acre in fee simple and placing rights of ingress and egress to the
cemetery in M. C. Stuart's heirs. They ask why would he hold fee simple title in himself
to the small area surrounding the Stuart cemetery. In some of the cases cited by
appellants there was raised the question of why would a grantor reserve in himself a
small island of land in a large tract, but the facts of those cases are distinguishable from
the instant case. W. C. Stuart's intent as construed by the chancellor is not unreasonable.
Obviously he desired to maintain control of the area surrounding the burial ground and it
does not appear from the record that his purpose was illegal or contrary to public policy.
Appellants state that W. C. Stuart could have made no reasonable use of the small area
surrounding the cemetery. Although use of the area may not have been financially
rewarding to him or his successors (appellees), he certainly had a right to retain title to it
as a buffer zone around the burial ground, or for a burial place for his children who
(because W. C. Stuart was yet alive) in 1933 were not heirs of M. C. Stuart, or for any
other purpose that may have existed in his mind not shown to be illegal or against public



                                             23
policy.

As construed by the lower court, W. C. Stuart's language operated to retain in himself fee
simple title to the square shaped one-quarter acre burdened with an easement in favor of
appellants as to the actual burial ground. Mainly from evidence introduced by appellants,
the court established the perimeter and boundaries of the cemetery in a logical manner.
Our judgment is that the chancellor's interpretation of the controversial language in W. C.
Stuart's 1933 deed was correct. His findings of fact and decree were based upon
substantial evidence and sound legal principles.

AFFIRMED.

GILLESPIE, C.J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG,
WALKER and LEE, JJ., concur.




                                            24
214 Miss. 190, 58 So.2d 491

                              Supreme Court of Mississippi.
                                    NOLAN et al.
                                          v.
                                    EASLEY et al.
                                      No. 38385.
                                     May 5, 1952.

Petition by Clyde Nolan and others against J. B. Easley, administrator, and others for
construction of a holographic will and for a division of the personal estate of the testatrix
among the heirs. The Chancery Court, Calhoun County, Herbet Holmes, Chancellor,
dismissed the bill and petitioners appealed. The Supreme Court, Hall, J., held that the
will created a trust fund for the upkeep of certain graves in a cemetery lot.
Decree affirmed and cause remanded.

HALL, Justice.
Mrs. Nancie Thomas, an elderly widow, approximately ninety years of age, died on
September 18, 1947, leaving a holographic will, which was thereafter duly admitted to
probate. The three parties to whom the will was addressed declined to serve for the
limited compensation therein stipulated, and J. B. Easley was appointed administrator C.
T. A.

Mrs. Thomas' husband predeceased her by several years. They had only one child,--a son
who was never married and who also predeceased his mother. The only heirs of Mrs.
Thomas were therefore collateral kindred. Mr. and Mrs. Thomas and the son were all
buried on one lot in a country cemetery in Calhoun County.

The following is a copy of the will as it appears in the record:

'My Will
July 23, 1947
To Munro Brasher and Dud Davis and Ruble James if anything happens to me in Death
I want them to see after my things that I leave. I want one thousand Dollars 1000--used
around our Graves--if that much is left----
Give each 25 Dollars a piece for taking care of this Business
What is in the house sell it for what you can get Lawrence and Edell has a plenty.
Give Pernicia Colums 25 Dollars.
Get that money out of the Bank of Bruce. If Ellie wants to buy the place give him first
chance if I should die soon.
Sell cows chickens and pig.
Use it on our Graves.
Hiar some on to keep those Graves up
Pay all expincies out of my Estate.
There is nothing againce this place
If you halft to have a Lawyer.
Dont get Abb Paterson. Get Stone.


                                             25
Nancie Thomas
Put concrete then place the steel wire.
Hire this work dun pay out of my money all expences.'

Twenty-two of the heirs of Mrs. Thomas brought this suit against her remaining nine
heirs and the administrator and alleged that in said will she made no disposition of 141
acres of land belonging to her; they further alleged that said land was incapable of
division in kind among the heirs and prayed that the same be sold for a division of the
proceeds. They further alleged that by said will no disposition was made of the personal
estate and they sought a construction of the will to this effect and prayed that the personal
estate be divided among the heirs, after payment of debts, in accordance with their
respective interests. No question was raised as to the testamentary capacity of Mrs.
Thomas. The chancellor denied the relief sought and dismissed the bill, from which
action this appeal is prosecuted.

The will as above set out is copied from the record and the original is not before us. The
chancellor had the original before him and found as a fact that it contains no punctuation.
This finding is not questioned, and the entire argument of appellants, and the only
question in the case, turns upon an interpretation and construction of the will. In this
connection we should bear in mind that a will should be so construed as to avoid partial
intestacy if by any reasonable construction this can be done; moreover, effect should be
given to each provision of the will in determining the testatrix' intention, as ascertained
from the language employed, even though it may be necessary to disregard grammatical
mistakes in writing, improper use of capital letters, and mistakes in punctuation.
Richmond v. Bass, 202 Miss. 386, 32 So.2d 136, and numerous authorities therein cited.

With these principles as the basis for our consideration we can do no better than to adopt
the reasoning of the learned chancellor. The instrument is directed to Munro Brasher,
Dud Davis and Ruble James who are directed to see after the things that are left by the
testatrix and for their services they are to receive $25 each. They declined to serve as
executors but that fact could not defeat the intention of the testatrix in the disposition of
her property.

Mrs. Thomas wanted '$1,000.00 used around our graves if that much is left.' When this
will was made she was in poor health and was being looked after by her neighbors. She
had some property and money but did not then know how much of her estate would be
exhausted in discharging the expenses of her last illness and burial. She was devoted to
her husband and son and was very solicitous about the care of their graves. If there was as
much as $1,000 left she wanted that much spent on their graves along with her own. After
conversion of the personal estate into cash and after payment of debts there was a balance
on hand of $2,463.52, which does not include the land. While no specific directions were
given as to how the money should be spent on the graves, the chancellor directed that the
administrator should spend that amount, or approximately that amount, in improving the
burial lot. In this we think he was correct. It was not necessary that the will should set out
detailed specifications as to exactly what improvements should be made.




                                             26
The property in the house, as well as the cows, chickens and pig were sold by the
administrator and the proceeds placed in the administrator's account. Also, the money in
the Bank of Bruce was placed in the administrator's account. All this was in accordance
with the directions in the will.

The sum of $25 was devised to Pernicia Colums and the chancellor ordered payment of
this bequest. There is no question as to this item.

The chancellor held, and we think correctly so, that Mrs. Thomas desired that the land be
sold and that Ellie (Chrestman) be given the first opportunity to purchase it, provided, of
course, that he would offer as much as any other bidder, and the decree directed the
administrator to petition for a sale of the land upon hearing of which petition the
chancellor would fix the mode and manner of sale.

The chancellor further held that the dominant purpose and intent of the testatrix was that
the graves and cemetery lot be kept up, and that someone be hired from time to time to do
this and that the expenses therefor be paid out of her estate, which includes not only the
personal estate but also the real estate. In our opinion this is a correct interpretation of the
will.

The chancellor adjudicated that the will created a trust fund for the upkeep of the graves
and cemetery lot, but left open for future decree what amount should be retained for that
purpose. The decree stipulated that after the land has been sold and the expenses of
administration paid the interested parties may then petition the court for disposition of the
corpus of the estate which will not be needed or required to carry out and completely
fulfill the purposes of the trust.

The gist of appellants' argument is that the will is so indefinite and uncertain in its terms
that effect can be given to no part thereof except the devise of $25 to Pernicia Colums,
and further that no trust is created for improvement and maintenance of the graves and
cemetery lot for the reason that no specific directions are given as to just what is to be
done. They rely primarily upon a general statement in 69 C.J. and on the case of Smith v.
Heyward, 115 S.C. 145, 105 S.E. 275. That case dealt with an attempt to create a private
trust for the perpetual upkeep of the house, gardens and grounds constituting the old
home place of the testatrix and we do not think it is here in point. Section 1273,
Mississippi Code of 1942, expressly authorizes a bequest for the maintenance and
preservation of any private or family cemetery or burying ground. The lot on which the
three graves in question are situated, while in a country churchyard, constitutes, in our
opinion, a private burying ground within the meaning of the statute, and, at any rate, we
feel that the chancellor correctly adjudicated the meaning and intent of the testatrix as to
the improvement and maintenance of this burial lot.

The decree is accordingly affirmed and the cause remanded to the lower court so that its
terms may be carried out under its supervision.




                                              27
Affirmed and remanded.

McGEHEE, C. J., and KYLE, HOLMES and ETHRIDGE, JJ., concur.




                                    28
230 So.2d 795

                           Supreme Court of Mississippi.
                              Louis HENGEN et al.
                                       v.
                       PERPETUAL CARE CEMETERIES, INC.
                                   No. 45592.
                                 Jan. 19, 1970.

Trustee filed petition as to proposed sale of portion of land conveyed under covenant
that original trustee and successors use land as public burial ground. The Chancery
Court, Harrison County, Frank W. Alexander, Chancellor, entered decree, and holders of
interment rights appealed. The Supreme Court, Ethridge, C.J., held that where portion of
property was never dedicated and declaration of trust executed at same time as deed
gave trustee unrestricted power to sell property conveyed to him without limitation in
title conveyed, trustee was expressly authorized to sell that part of land and to create a
cemetery out of remainder, and further held that even if trustee had no express power to
sell, chancery court properly authorized sale in order to preserve purposes of original
trust where business owned by trustee was in extreme financial difficulties and property
in question was threatened with foreclosure.
Affirmed on direct and cross appeals.

ETHRIDGE, Chief Justice:

This case involves the power of a corporate trustee of certain cemetery land, operated for
profit, to sell an undeveloped, distinct part of the land which its predecessor purchased.
The Chancery Court of Harrison County held that appellee, Perpetual Care Cemeteries,
Inc., (called Perpetual Care) had express authority to convey the east 275 feet of land
owned by it in the City of Biloxi, free and clear of any restrictions as to the use to which
that tract may be devoted. Even if no express authority existed, the chancery court
authorized and directed the sale in order to preserve the purposes for which the trust in
the property was created, the preservation of the remaining portion laid out and
developed as a cemetery. We affirm on both conclusions.

In 1932 Mrs. Mary C. Holmes owned this land, which fronts for 754 feet on the
Mississippi Sound and is 1160 feet in depth. For a substantial consideration she executed
simultaneously two instruments. Conveying this land to R. H. Holmes, 'Trustee, for
Southern Memorial Park, a common-law trust,' the deed recited: The other consideration
mentioned in the above conveyance, is the covenant and agreement, that the property
herein conveyed, shall be, and will be used by the said trustee and his successors in title,
as trustees, of said Southern Memorial Park, as a public burial ground or memorial park
to be owned, operated, maintained and perpetuated for burial or interment of persons * *
*

The other instrument was a declaration of trust, which recited that the trustee intended to
engage in the purchase, sale and general development of a cemetery, designated as a
'business * * * enterprise.' The declaration of trust did not identify any specific property


                                             29
to be used for burial purposes. The trustee was given broad powers with respect to all of
the trust property, his major restriction being the obligation 'to manage and dispose of the
same for the benefit of the holders from time to time of the certificates of shares issued
and to be issued' under the provisions of the trust. The declaration of trust gave the trustee
the express power to borrow money and to mortgage the property, and: To sell and
convey, or otherwise use and deal in, on such terms as he shall think fit, the whole or any
part of the trust properties.

The declaration of trust further provided that the trustee could 'acquire, own, hold,
dispose of, sell, mortgage, bond or encumber or otherwise deal in real estate * * *' The
trustee was given power generally to conduct the trust 'in any manner that the trustee
shall deem fit * * *' Since the deed and the declaration of trust were executed and
recorded at the same time and pertain to the same purposes, they must be read and
interpreted together.

Following execution of these instruments, beneficial shares in the common-law trust were
issued, and the west portion of the property was developed for cemetery purposes by
selling off lots and using grave spaces. However, in the east 275 feet no lots were ever
platted, no roads or walkways were laid out, and that area was not cleared of
undergrowth. No grave spaces in the east 275 feet were ever sold, and no persons were
ever interred in that part. Some of the remaining portion of the property was divided into
units, lots and burial spaces, and interment rights were sold therein. Through mesne
conveyances, O'Keefe as trustee sold this property in 1954 to O'Keefe individually. That
instrument recited that there had been established a perpetual maintenance trust fund, and
that the trustee had obligated himself to pay into the trust fund twenty percent of the sale
price 'of all lots or plots hereinafter sold in said cemetery, when the sale has been
completed and deed issued.' O'Keefe then conveyed the property to Southern Memorial
Park, Inc., for $10,000, and this instrument also referred to the twenty percent perpetual
care fund. In 1960 the capital stock of Southern Memorial Park, Inc., was sold to
Perpetual Care, and Southern Memorial Park was dissolved, thus vesting all interests in
Perpetual Care.

When Perpetual Care purchased this property there was a debt from Southern Memorial
Park, Inc., to the trust fund of $9,000, which Perpetual Care paid into the trust on that
date. From 1960 to 1965, however, a debt of Perpetual Care to the trust fund accrued in
the amount of $51,000. Apparently the reason for this large deficiency arose from losses
resulting from Perpetual Care's ownership and unsuccessful operation of several other
cemeteries and a monument company. In 1965 H. H. Burnett became president of
Perpetual Care, with the purpose of extricating the corporation from its financial
difficulties, and a new policy was begun of setting aside twenty percent of the sale price
of burial spaces when they were first contracted to be sold.

A multitude of serious financial problems faced Burnett when he became president in
October 1965. In addition to the debt to the trust fund, there were also substantial
obligations on federal taxes, to the Small Business Administration of $162,000, to a bank
in excess of $27,000, and numerous other debts to banks and common creditors.



                                             30
Perpetual Care's total obligations exceeded $270,000, over and above the debt to the
perpetual care trust. The SBA note was secured by the first deed of trust on the east 250
feet of the property and on the entire beach front. Both a bank mortgagee and SBA were
threatening foreclosure.

Perpetual Care Cemeteries, Inc., filed a petition in 1966 with certain class defendants,
asking the chancery court to remove from the east 275 feet of the tract owned by
petitioner the cloud of any alleged dedication for cemetery purposes. In January 1967 the
chancery court entered its decree finding no dedication as to the east 275 feet, removing
the cloud of the alleged dedication, and approving a proposed sale of the east tract. In
June 1968 petitioner filed its report and an additional petition. The proposed sale of the
east 275 feet had not been consummated, but another sale of the entire property had been
bound by contract. Notice was published to all persons having interment rights in the
cemetery proper that they were represented by N. C. Holmes as class representative, but
advising them of their right to intervene and to appear and participate in the hearing. A
number of holders of interment rights, who are now the appellants, intervened, and after a
full trial the chancery court rendered a comprehensive opinion and decree. It removed
from the east 275 feet the cloud of an alleged dedication, approved the proposed sale of
the east 275 feet without restrictions, and authorized sale of the remainder with
protections for continuance and maintenance of the cemetery proper.

There has never been a dedication of the east 275 feet of the land owned by Perpetual
Care. The essential elements of a dedication are not present. It must be to the public.
There can be no dedication to private uses. See Morgan v. Collins School House, 160
Miss. 321, 133 So. 675 (1931). Neither the declaration of trust nor the deed used the word
'dedicate' or any substantially similar term. Both instruments were grants to a private
trustee and not the public. The declaration of trust recites that the trustee is to hold for the
benefit of the shareholders, not for the benefit of the public. Moreover, in a dedication no
control over the property can be retained, but here control by the trustee was not
relinquished. 23 Am.Jur. 2d Dedication ss 1, 5, 17 (1965).

The declaration of trust clearly gave the trustee the unrestricted power to sell the property
conveyed to him as trustee, namely, the east 275 feet, without a limitation in the title
conveyed. Although the grantor indicated an intent that a cemetery would be created by
the trustee, this was a mere directive to him; no grant was made to the public. When the
two instruments are read together, the trustee is authorized to sell a part of the land and to
create a cemetery out of the remainder. Cf. Stokely v. State ex rel. Knox, Atty.Gen., 149
Miss. 435, 115 So. 563 (1928); Laurel Hill Cemetery Ass'n. v. Sargent, 73 Cal.App. 193,
238 P. 732 (1925).

Finally, even assuming Perpetual Care as trustee has no express power to sell, the sale of
the east 275 feet was properly authorized by the chancery court in order to preserve the
purposes of the original trust. The business owned by Perpetual Care was in extreme
financial difficulties, and the property was threatened with foreclosure. Courts of equity
have inherent power to protect trusts and may order a sale of part of the trust property, if
such action is necessary for execution of the trust purposes. In Re Hart's Estate, 206 Miss.



                                              31
498, 40 So.2d 263 (1949); Corley v. Bishop, 101 Miss. 490, 58 So.360 (1911); 2 Scott on
Trusts s 190.4 (3d ed 1967). The undisputed evidence here justified the chancery court in
authorizing unrestricted sale of the east 275 feet. With the proposed sale completed, all
liens on burial grounds will be released, they will be perpetually dedicated for cemetery
purposes only, a trust fund of over $131,000 will be created to perpetually maintain the
park, and funds will be available for continued operation of the cemetery proper. See
Miss.Code 1942 Ann. ss 5308-01 to 5308-13 (Supp.1968).

N. C. Holmes has cross-appealed, asserting that the chancery court should have charged
both Perpetual Care and The First National Bank of Biloxi as trustee of the perpetual care
fund for the large deficiencies in that fund. This contention has no merit for several
reasons. The decree made no ruling on these charges in Holmes' cross-bill, and the issue
was not raised again until his cross-appeal. Moreover, the declaration of trust between
Perpetual Care and the bank imposed no duty on it to pursue and collect funds for
payment into the perpetual care trust fund. The bank only had the obligation to deal as a
trustee with funds deposited with it. As to Perpetual Care Cemeteries, Inc., the chancellor
made no finding of misappropriation of funds. The O'Keefe document, creating an
obligation to place twenty percent of the sale price of plots in the cemetery, when fully
paid for and deed delivered, into a perpetual care trust, did not impress a trust on
proceeds of the sale of cemetery lots, but it created a debt. 1 Scott on Trusts ss 12.1, 12.2
(3d ed. 1967).

Affirmed on direct and cross-appeals.

JONES, BRADY, INZER and ROBERTSON, JJ., concur.




                                             32
124 F.Supp.2d 434

                               United States District Court,
                                    S.D. Mississippi,
                                    Jackson Division.
                           CASKET ROYALE, INC. Plaintiff
                                            v.
      State of MISSISSIPPI; Mississippi State Board of Funeral Service; Dolores
      Kenney, in her official capacity as Executive Director of the Board; and Guy
       Roberts, Jr., James Miller, Charles Stephens, A. Wendell Stringer, Eddie
      Robinson, Jr., Nina Welch, and George Gulley, in their official capacities as
                           Members of the Board Defendants
                              No. CIV.A. 3:99CV00737BN.
                                      Oct. 31, 2000.

Casket manufacturer sued State of Mississippi, Board of Funeral Services and its
members, in their official capacities, challenging constitutionality of statutes requiring
that sellers of caskets hold licenses for practice of funeral services or funeral directing.
Parties moved and cross moved for summary judgment. The District Court, Barbour, J.,
held that: (1) Eleventh Amendment did not bar suit against Board members, in their
official capacities; (2) statutes violated substantive due process rights of casket maker, as
there was no rational relationship between licensure and government objectives of
prompt human remains disposal and consumer protection; and (3) statutes violated equal
protection rights of casket maker, due to lack of same rational relationship.
Judgment for casket maker.

                                 OPINION AND ORDER

BARBOUR, District Judge.

This cause is before the Court on the Cross Motions for Summary Judgment of Plaintiff
and Defendants as well as the Motion to Dismiss of Defendants Mississippi State Board
of Funeral Service and the State of Mississippi. Having considered the Motions,
Responses, Rebuttals, and all attachments to each, as well as supporting and opposing
authority, the Court finds that Plaintiff's Motion for Summary Judgment is well taken
and should be granted and Defendants' Motion for Summary Judgment is not well taken
and should be denied. In addition, the Motion to Dismiss of Defendants Mississippi
State Board of Funeral Service and the State of Mississippi is well taken and should be
granted.

                     I. Factual Background and Procedural History


The Mississippi State Board of Funeral Service Licensing Law ("the funeral statutes"),
Miss.Code Ann. §§ 73-11-41 through 73-11-63, and the Mississippi State Board of
Funeral Service Rules and Regulations ("the funeral regulations"), forbid anyone but
those holding a "license for the practice of funeral service" or a "license for the practice


                                             33
of funeral directing" to engage in the "sale of funeral merchandise," except the "pre-need
sale of funeral merchandise...." Miss.Code Ann. §§ 73-11-41(d)-(f); 73-11-51(1) (1999).
Consequently, it is a crime punishable by a fine of between $500 to $1,000, with the
possibility of six months in prison, for anyone but a licensee to engage in the sale of
funeral merchandise. Miss.Code Ann. § 73-11-59 (1999).

[FN1] The difference between a license for "funeral service" versus "funeral
directing" is that one practicing funeral directing is deemed one who is engaged
in funeral service who is not engaged in the practice of embalming. However, as
the Court uses the term "licensee," it is meant to include both those engaged in
"funeral directing" as well as "funeral services."


Plaintiff Casket Royale is a New Hampshire casket manufacturer that neither
employs a funeral director nor owns or operates a funeral home. However,
Casket Royale and its dealers, including Ricky Dancy of Direct Casket Sales and
Larry Methany of L & K Casket Sale, have received cease and desist letters from
the Mississippi State Board of Funeral Service threatening to initiate prosecution
if they do not discontinue the unlicensed sale of caskets. Thus, unless Casket
Royale or its dealers obtain licenses for the practice of funeral service, and sell
the caskets out of licensed funeral establishments, [FN2] they cannot sell caskets
in Mississippi that are manufactured by Casket Royale. Accordingly, Casket
Royale has brought this suit under 42 U.S.C. § 1983 claiming that the funeral
statutes and the funeral regulations are violative of both the Due Process Clause
and the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution. In addition, Casket Royale also maintains that the licensing
requirements violate the Privileges and Immunities Clause as well as the
Interstate Commerce Clause of the United States Constitution. Casket Royale
requests the following action of the Court: (1) a judgment declaring the funeral
statutes and funeral regulations unconstitutional as applied to Casket Royale; (2)
an order requiring Defendants to pay the attorneys' fees and costs incurred by
Plaintiff in prosecuting this action; and (3) an injunction preventing Defendants
from *437 enforcing the funeral statutes and funeral regulations to prevent the
unlicensed sale of caskets by Casket Royale. [FN3] Both parties agree that there
are no genuine issues of material fact and that the Court may decide the case on
the motions for summary judgment. The Court agrees and so finds.

FN2. In addition to the requirement that casket dealers themselves be licensed,
the funeral statutes provide that "[t]he practice of funeral service or funeral
directing must be engaged in at a licensed funeral establishment...." Miss.Code
Ann. § 73-11-51(6) (1999). As a dealer engaged in the sale of funeral
merchandise is deemed to be engaged in the practice of funeral service or the
practice of funeral directing, caskets, as funeral merchandise, must be sold from
licensed funeral establishments under the funeral statutes.




                                            34
FN3. Defendants claim that because Ricky Dancy, a casket dealer in Meridian, is
currently being prosecuted for violating the funeral statutes and funeral
regulations, abstention is proper under the doctrine of Younger v. Harris, 401
U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Younger abstention is based upon
a "national policy forbidding federal courts to stay or enjoin pending state court
proceedings except under

special circumstances." Id. at 41, 91 S.Ct. 746. The Court finds this argument to
be without merit because, first, Dancy is not a party to this action, and second,
should this court enjoin the members of the Mississippi State Board of Funeral
Service from enforcing the funeral statutes and funeral regulations against
unlicensed casket dealers, nothing in such an injunction issued by this court
would be directed toward a state court which would in any way interfere with the
pending prosecution of Dancy.



                                          II. Analysis
                                        A. Jurisdiction
Defendants first assert that this Court does not have jurisdiction over two of the
Defendants in this matter as the Eleventh Amendment to the United States Constitution
prohibits suits against a state in federal court. Accordingly, it is Defendants' position that
the State of Mississippi and the Mississippi State Board of Funeral Service are immune
from suit in this instance. Casket Royale does not dispute this assertion.

Defendants are correct in that a state cannot be sued in federal court without its consent.
Pennhurst State Sch. & Hosp. v. Halcerman, 465 U.S. 89, 98, 104 S.Ct. 900, 79 L. Ed.2d
67 (1984). In addition, the Eleventh Amendment bar applies "regardless of the nature of
the relief sought." Id. at 100, 104 S.Ct. 900 (citing Missouri v. Fiske, 290 U.S. 18, 27, 54
S.Ct. 18, 78 L.Ed. 145 (1933)). Therefore, the State of Mississippi and the Mississippi
State Board of Funeral Service are entitled to Eleventh Amendment immunity from this
suit and are hereby dismissed with prejudice from this action.

However, as Defendants correctly note, the Eleventh Amendment does not prohibit suit
against the executive director and the members of the Mississippi State Board of Funeral
Service in their official capacities for injunctive relief. See Pennhurst, 465 U.S. at 102-
03, 104 S.Ct. 900; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
Therefore, this suit may proceed against the members of the Board.

                               B. Substantive Due Process

Casket Royale first contends that the requirement that caskets be sold only by licensees
violates its substantive due process rights as guaranteed by the Fourteenth Amendment.
Indeed, under the Due Process Clause, there is a liberty interest in the right of an
individual to pursue a chosen occupation. Conn v. Gabbert, 526 U.S. 286, 291-92, 119
S.Ct. 1292, 143 L.Ed.2d 399 (1999); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct.
625, 67 L.Ed. 1042 (1923). While this right is subject to regulation by the State of


                                              35
Mississippi, any such regulation must be "rationally related to legitimate government
interests." Washington v. Glucksberg, 521 U.S. 702, 728, 117 S.Ct. 2258, 138 L.Ed.2d
772 (1997)(citing Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257
(1993)).

Therefore, when an economic regulation is challenged as violative of substantive due
process, a court must determine whether: (1) the regulation has a legitimate
governmental purpose; and (2) there is a rational relationship between that purpose and
the means chosen by the State to accomplish it. See id. at 728, 117 S.Ct. 2258; Exxon
Corp. v. Governor of Md., 437 U.S. 117, 124-25, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978).
Defendants assert two purposes for the regulation. First, Defendants claim that the
requirement contributes to the prompt disposition of human remains. Second,
Defendants also maintain that the regulation provides consumer protection. Without
need for further discussion, the Court finds both asserted purposes to be legitimate
governmental interests. See Turner Broadcasting System v. FCC, 520 U.S. 180, 189-90,
117 S.Ct. 1174, 137 L.Ed.2d 369 (1997)(finding consumer protection to be a legitimate
governmental interest); Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357,
375-76, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997)(finding health and safety to be a legitimate
governmental interest); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 502, 116
S.Ct. 1495, 134 L.Ed.2d 711 (1996)(consumer protection); Hodel v. Virginia Surface
Mining & Reclamation Ass'n, 452 U.S. 264, 300, 101 S.Ct. 2352, 69 L.Ed.2d 1
(1981)(health and safety). Therefore, the issue before the Court is whether the licensing
requirement in question, as applied to casket sales, is rationally related to furthering
these interests.

                    1. The Prompt Disposition of Human Remains


Defendants argue that the requirement that caskets be sold only by licensees leads to the
prompt disposal of human remains as it alleviates timing considerations and provides
legal accountability for any failure to adhere to state guidelines regarding such
disposition. As far as timing considerations, Defendants assert that time constraints
become particularly important in cases where embalming or refrigeration cannot take
place for religious or financial reasons, or as a matter of personal preference. Defendants
also state that the restriction "alleviates potential delay occasioned by the ignorance or
incompetence of an unlicensed seller or by the quality or remote physical location of his
product." Memorandum Brief in Support of Defendants' Motion for Summary Judgment,
at 7-8.


As for Defendants' first contention, where embalming or cremation cannot take place,
Defendants have failed to show that the licensing requirement in any way speeds the
process of burial. More importantly, Defendants have failed to provide any evidence that
unlicensed dealers slow burial or cremation. While there is a legitimate governmental
interest in the prompt disposition of an unpreserved human body, the regulation in
question does not advance this interest as nothing inherent in the licensing requirement,
at least in regard to a coffin, would offer a quicker burial or cremation.


                                            36
In regard to Defendants' next contention, that the ignorance or incompetence of an
unlicensed seller will impede the disposal of human remains, the Court finds this
argument to be without merit. It does not make sense that any possible ignorance or
incompetence of an unlicensed dealer would delay burial as such a dealer is selling what
amounts to be a glorified box. The unlicensed seller is responsible only for delivering the
casket and not for the preparation or burial of the body. Surely no special skills are
necessary for this duty that would require the services and training of a licensee. As with
the seller of any other merchandise, if an unlicensed casket dealer is unknowledgeable
about his product or is incompetent in its delivery, that seller will do little to no business.
The same is also true in regard to Defendants' claim that the remote physical location of
the product will delay burial or cremation. As most funerals are held within a few days
of death on a day selected by the family of the deceased, it only makes sense that the
family will only deal with a casket dealer that can deliver the casket in time to
accommodate the schedule either by maintaining adequate inventory in the proximate
area, or by developing the ability to quickly ship a coffin from a remote location. In
addition, licensees deal with the same shipping and inventory concerns of an unlicensed
dealer that the funeral statutes do not resolve. [FN4] Therefore, for the reasons stated
above, Defendants have failed to show that the limitation of casket sales to licensees
advances the interest of Mississippi in the prompt disposition of human remains.

FN4. Although the funeral statutes do require that a funeral establishment contain
an "adequate casket vault selection room," they do not set forth a specific casket
inventory requirement. Miss.Code Ann. §73-11-55(3)(a)(1999).

                                  2. Consumer Protection

Defendants also contend that the licensing requirement advances the interest of
Mississippi in consumer protection. Specifically, Defendants maintain that "[r]estricting
such sales to licensees promotes consumer protection by insuring product knowledge
and quality, preventing solicitation, and, most importantly, providing legal
accountability." Memorandum Brief in Support of Defendants' Motion for Summary
Judgment, at 5.

As far as product knowledge, Defendants assert that as part of their training, licensees
visit casket manufacturing plants and are tested by the Mississippi State Board of
Funeral Service in regard to the distinguishing characteristics of various types of caskets.
In considering this argument, the Court notes that a casket is not a complex piece of
equipment. While some caskets may have differing features such as the type of seal or
locking mechanism that they employ, the primary differences among coffins relate to the
materials from which they are constructed. As such, these differences are fairly obvious
to the lay person. Accordingly, this Court finds that any special training that licensees
may receive does not advance consumer protection. If anything, such training only
advances customer service which the Court does not find to be a legitimate
governmental interest.




                                              37
In regard to product quality, the Court is equally unconvinced as the Mississippi
legislature has not seen fit to prescribe guidelines for the quality of caskets. In addition,
the licensing requirement in no way promotes product quality as licensees have nothing
to do with the production or construction of the casket. Instead, licensees obtain their
inventory from the same manufacturers as would-be nonlicensed dealers. Even assuming
that casket quality is a legitimate governmental interest in the area of consumer
protection, this regulation in no way promotes such quality.

The Court next considers the issue of solicitation. Defendants are correct in that
Mississippi law does prevent licensees from soliciting "dead human bodies." Miss.Code
Ann § 73-11-57(1)(1999). However, such a prohibition does not prevent a licensee from
soliciting a casket sale from family members of the deceased as long as the licensee is
not soliciting the body. Theoretically, a licensee who operates a funeral home who
contacts the family of the deceased and offers only to sell a casket would not technically
be in violation of the statute. Naturally, the licensee would want to solicit the body for
preparation and burial by the funeral home, but there is nothing that would stop such a
casket sale solicitation. Therefore, the regulation itself does not prohibit the solicitation
that Defendants claim its purpose is to prevent. If the goal of the licensing provisions is
to prohibit the solicitation of casket sales from the family of the bereaved, the statute
fails to accomplish this as licensees are free to engage in such activity as long as they are
not soliciting a "dead body." Without ruling on whether the prevention of solicitation of
casket sales is a legitimate governmental interest under the guise of consumer protection,
the Court finds that the regulation is not rationally related to the advancement of the
interest of Mississippi in consumer protection as it does not prevent solicitation.
Defendants' final contention is that the regulation provides legal accountability and
protects "consumers from fraudulent or incompetent licensees." Memorandum Brief in
Support of Defendants' Motion for Summary Judgment, at 6. However, under the funeral
statutes, the only recourse against an unscrupulous licensee is the revocation of that
licensee's ability to act as a funeral director or provide funeral services. Nowhere in the
regulation is recourse given to the consumer who is the victim of such practices. Instead,
the consumer of ordinary goods is given recourse by the consumer protection laws of
Mississippi under which a buyer may bring an action against a seller to recover any
monetary loss as a result of a seller's fraudulent practices. See Miss.Code Ann § 75-24-
15(1) (1999). Accordingly, the Court finds that the "legal accountability" under the
regulation is not rationally related to consumer protection as it gives the consumer no
recourse to recover damages for the practices of deceptive or fraudulent licensees.
This Court ultimately finds that the requirement that only licensees be allowed to sell
caskets not only fails to advance the interest of Mississippi in consumer protection, it
actually diminishes it. As a result of this requirement, consumers in Mississippi are
offered fewer choices when it comes to selecting a casket. Consequently, there is less
price competition among the sellers of caskets. Ultimately, the consumer is harmed by
this regulation as one is forced to pay higher prices in a far less competitive
environment.

For example, Defendants assert that "Mississippi funeral homes mark up the price of
caskets an industry-standard 250-300%." Memorandum in Support of the Motion for



                                             38
Summary Judgment of Plaintiff Casket Royale, at 3 (emphasis in original). Defendants
do not dispute this assertion. The Federal Trade Commission has recognized the harm
that non-disclosure of casket prices inflict upon consumers by requiring that funeral
providers itemize the cost of a funeral so that purchasers know exactly how much they
are paying for each aspect of the service, including the coffin. See 16 C.F.R. § 453.2(a).
Also, the FTC requires that a funeral provider must give "a printed or typewritten list to
people who inquire in person about the offerings or prices of caskets or alternative
containers." 16 C.F.R. § 453.2(b)(2)(i). As the Third Circuit has found, these regulations
promulgated by the FTC were: premised on evidence that consumers are uniquely
disadvantaged when they purchase funeral services after the death of a loved
one....Additionally, the evidence showed that funeral service providers often sold only
preselected packages of goods and services such that consumers were forced to purchase
goods and services that they did not want. Pennsylvania Funeral Directors Ass'n, Inc. v.
Federal Trade Comm'n, 41 F.3d 81, 83 (3d Cir.1994). Although Defendants have made
no reference to this regulation, it is clear that the FTC has found that there is a necessity
in protecting consumers from the pricing practices of the funeral industry, especially in
regard to casket sales. The Mississippi funeral statutes, on the other hand, restrict
competition and limit casket sales to the licensed few, accomplishing just the opposite.
Accordingly, the Court finds that not only are the funeral statutes not rationally related to
the interest of Mississippi in consumer protection, they actually harm the persons that
they supposedly protect.

Therefore, because Defendants have failed to show a rational relationship between the
regulation and the advancement of the purported interests of the prompt disposition of
human remains and the protection of consumers, this Court finds that the requirement of
the funeral statutes and funeral regulations that caskets be sold only by licensees violates
the Due Process Clause of the Fourteenth Amendment.

                                   C. Equal Protection

Casket Royale next contends that the funeral statutes and funeral regulations violate the
Equal Protection rights of Casket Royale as secured by the Fourteenth Amendment by
distinguishing between licensed and unlicensed casket sellers and limiting casket sales to
those holding the required licenses. Where a plaintiff is not of a suspect class nor where
a fundamental right is involved, a licensing requirement violates the Equal Protection
Clause only where there is no "rational relationship between the disparity of treatment
and some legitimate governmental purpose." Central State University v. American Ass'n
of University Professors, 526 U.S. 124, 127- 28, 119 S.Ct. 1162, 143 L.Ed.2d 227
(1999)(citing Heller, 509 U.S. at 319- 21, 113 S.Ct. 2637). Accordingly, the role of the
Court is to determine whether there is a rationality between the stated purpose of
Mississippi and the means chosen to carry out the same.

Again, Defendants maintain that the purpose of Mississippi in discriminating against
unlicensed casket retailers is to ensure the prompt disposition of human remains and the
protection of consumers. However, for the reasons stated above, there is no rational
relationship between these interests and such discrimination. For this reason, the Court



                                             39
finds that the funeral statutes and funeral regulations violate the Equal Protection Clause
of the Fourteenth Amendment.

                                     III. Conclusion


Nothing in the ruling of this Court takes away from the basic Mississippi regulatory
scheme for the funeral industry. All of those statutes and regulations remain intact with
certain exceptions. Miss.Code Ann. § 73-11-41(f) which defines "Practice of funeral
service" to include the selling of funeral merchandise and Miss.Code Ann § 73-11-51(1)
which allows only licensees to engage in the practice of funeral directing or funeral
services violate the Due Process and Equal Protection clauses of the Fourteenth
Amendment to the United States Constitution as applied to the sale of caskets. [FN5] A
judgment will enter this day enjoining Defendants from preventing persons unlicensed in
the practice of funeral directing or funeral services from operating their legitimate retail
casket business.

FN5. The Court notes that Casket Royale has also asserted that the funeral
statutes also violate the Privileges and Immunities Clause as well as the Interstate
Commerce Clause. As this Court has ruled that the funeral statute as applied to
casket dealers is unconstitutional under both a Due Process and Equal Protection
analysis, this Court need not reach a determination on these two remaining
issues.

IT IS THEREFORE ORDERED that Plaintiff's Motion for Summary Judgment [23-1] is
well taken and is hereby granted.

IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment [24-1] is
not well taken and is hereby denied.

IT IS FURTHER ORDERED that the Motion to Dismiss of Defendants Mississippi State
Board of Funeral Services and the State of Mississippi [24-1] is hereby granted and
Defendants Mississippi State Board of Funeral Service and the State of Mississippi are
hereby dismissed from the above captioned cause of action with prejudice.

IT IS FURTHER ORDERED that Defendants shall, pursuant to 42 U.S.C. § 1988(b), pay
the reasonable costs and attorneys' fees incurred by Plaintiff in prosecuting this action.
Plaintiff shall submit to the Court by November 16, 2000, its motion for attorneys' fees
and supporting attachments in accordance with Rule 54.2 of the Uniform Local Rules of
the United States District Courts for the Northern District and Southern District of
Mississippi. Defendants shall reply by November 30, 2000. If Plaintiff desires to submit a
rebuttal, it shall do so by December 7, 2000.




                                             40
677 So.2d 186

                           Supreme Court of Mississippi.
                             BANK OF MISSISSIPPI
                                       v.
                        SOUTHERN MEMORIAL PARK, INC.
                             No. 92-CA-01307-SCT.
                                 June 13, 1996.

Motion to transfer funds of a perpetual trust was granted but request for reimbursement
of attorney fees incurred by trustee, to assure proper substitution of new trustee, was
denied by the Chancery Court, Harrison County, Jason H. Floyd, Jr., Chancellor. Trustee
appealed. The Supreme Court, Prather, P.J., held that: (1) whether to award any
requested attorney fees was question of law subject to de novo review; (2) trustee was
entitled to reimbursement of reasonable attorney fees incurred to assure proper trustee
substitution; but (3) remand was required to determine amount of fees to be awarded.
Reversed and remanded.
McRae, J., dissented and filed opinion in which Dan Lee, C.J., joined.

En Banc.

PRATHER, Presiding Justice, for the Court:

                                    INTRODUCTION

The Bank of Mississippi appeals the November 16, 1992, decision of the Harrison
County Chancery Court denying the authorization of attorneys' fees incurred while
adjudicating its status as trustee in litigation instigated by Southern Memorial Park, Inc.
The sole issue on appeal is whether the trial court erred in failing to authorize the
payment of attorneys' fees in the aforementioned proceedings.

                             STATEMENT OF THE CASE

Ernest H. Brown, acting as president for Southern Memorial Park, Inc. (hereinafter the
"Park") filed on February 1, 1991, a motion seeking to transfer trust funds from First
Mississippi National Bank of Hattiesburg to Paul E. Roberts, Jr., C.P.A., in Biloxi. The
Harrison County Chancery Court granted the motion, but the Bank of Mississippi
(hereinafter the "Bank"), the successor in interest of First National following a merger,
refused to comply because of alleged code violations. After communication between the
parties, a petition was filed seeking transfer of funds to an entity called Planned Trusts,
Inc., which had not yet been validly incorporated.

The Bank filed an answer to the petition and counterclaimed for the appointment of a
new trustee. In its answer, the Bank delineated eleven issues for consideration by the
chancery court in which the statutes' interplay with the trust agreement raised issues
regarding the proper means of effectuating a legal substitution. In addition, the Bank
requested $2,000.00 as compensation for its services as trustee and $3,500.00 in


                                             41
attorneys' fees, but it later increased this amount to $8,339.82 following the performance
of additional legal services.

On October 26, 1992, the chancery court issued its opinion and judgment, recognizing
the substitution of Planned Trusts as trustee, mandating the transfer of all funds less the
Bank's trustee's fees incurred during final accounting, and assessing all court costs to the
Bank. The Bank timely appealed from the judgment.

                             STATEMENT OF THE FACTS

On March 29, 1983, Great American Properties--Mississippi, Inc., a Georgia
corporation, executed a perpetual care trust pursuant to the requirements of Miss.Code
Ann. § 41-43-31 to -53 (1993) for the management of the Park, which consisted of
cemetery property located in Biloxi, Mississippi. The Park is incorporated in the State of
Mississippi and engages in the business of "providing lots or other interment space
therein for the remains of human bodies, and of entering into contracts with retail
consumers whereunder personal property and/or services related to a funeral service or
burial of the dead are deliverable at a future or unspecified date." Another declaration of
trust was made for the purpose of assuring payment of merchandise purchased and paid
for by owners of interment rights in the cemetery.

Great American created the trusts, with the First Mississippi National Bank in
Hattiesburg (hereinafter "First National") designated as trustee. First National merged
with the Bank of Mississippi (the "Bank"), which assumed the duties of trustee for the
Park. As trustor, Great American subsequently sold the property on May 19, 1983 to
Ernest H. Brown, who currently owns the Park in an individual capacity. An amendment
was subsequently made to the original trust for a cemetery merchandise trust fund.
Thereafter, the Park and Brown began efforts to replace the Bank as trustee, executing a
perpetual care trust with Paul E. Roberts, C.P.A., as trustee for the Park. On February 22,
1991, the Park filed a motion with the Harrison County Chancery Court, seeking
recognition of the trustee transfer. On that very same day, and without notice to the
Bank, the chancery court entered an order requiring all trust funds belonging to the Park
to be transferred from the Bank to Roberts and designating Roberts as the new trustee.

Upon advice of counsel, the Bank refused to comply with the order on the basis that
various provisions of Miss.Code Ann. § 42-43-31 to -53 and § 75-63-3 to -23 were not
followed. The Bank's attorneys presented a letter to the Park on April 4, 1991,
suggesting certain procedures to follow in substitution of the trustee, including one
procedure which dictated that a corporation, not an individual, had to be designated as
trustee. The letter also requested verification of the Notice of Intent to Transfer and
Notice of Intent to Receive fund assets, income tax returns, direction as to liquidation of
certain fund investments that could not be transferred, and indemnification and hold
harmless instruments. Some of these requests were made pursuant to statutory
requirements and others were merely precautionary steps taken by the Bank.




                                             42
Following this correspondence, the Park did in fact attempt to comply with some of the
recommendations made by the Bank's attorney. On July 1, 1991, for example, the Bank
received a copy of a notice of intent that Planned Trusts, Inc. was sought as a substitute
trustee, even though said entity was not validly incorporated until two weeks later.
At the time of trial, the principal of the cemetery merchandise trust was $57,835.04 with
estimated annual interest of $2,313.00, and the principal of the perpetual care trust was
$184,918.69 with estimated annual interest of $7,396.00. In its second and final petition
with the chancery court, the Park sought, inter alia, a review of the charges and expenses
which could be assessed against the trust corpus and those expenses which were incurred
by the Bank in its own interest, and therefore, not chargeable against the trust. The Bank,
in turn, sought declaration on its duties as trustee in order to appropriately relinquish
trustee status, particularly with regards to the state statutory requirements.

After a final determination by the chancery court authorizing the trustee substitution, the
Bank appealed because attorneys' fees were not granted. The law firm of Page, Mannino
& Peresich (hereinafter the "Firm"), employed by the Bank, asserts that it spent a total of
82.6 hours at $100.00 per hour in this matter. The Firm further asserts that all the
aforementioned fees were incurred after June 28, 1991, the cut-off date established by
the chancery court for the trusts' liability of attorneys' fees. As a result, no allowance of
attorneys' fees was made for the proceedings related to the substitution of the trustee.

                                ANALYSIS OF THE LAW

Neither trust agreement addressed the reimbursement of attorneys' fees to the trustee.
However, various statutes imply that, when related to the administration of the trust,
attorneys' fees are reasonable expenses entitling the trustee to reimbursement. First,
Miss.Code Ann. § 75-63-7 specifically allows for the income of trust funds to be used
for reasonable expenses as stated herein: To insure the adequacy of the trust funds of
their intended purpose, the net income therefrom shall remain therein and be reinvested
and compounded except the income of the trust fund may be used to defer reasonable
expenses of the trustee in connection with the administration of the trust funds.
Miss.Code Ann. § 75-63-7 (1991).

Another code section pertaining to perpetual care trusts requires that the principal remain
intact and the funds be used only for cemetery upkeep. Miss.Code Ann. § 41-43-37(1),
(5) (1993). These statutes are open to interpretation, and the chancery court decided that
the Bank was not entitled to the expense of court costs nor attorneys' fees associated
with the trustee substitution after June 28, 1991, when the notice of intent to transfer and
the notice of intent to receive funds were received by the clerk's office.

A reading of the Mississippi Uniform Trustees Powers Law indicates that the Bank
should be entitled to a reasonable amount of attorneys' fees for work performed in
connection with the trustee substitution. The following are related excerpts:

(1) From time of creation of the trust until final distribution of the assets of the trust, a
trustee has the power to perform, without court authorization, every act which a prudent



                                              43
man would perform for the purposes of the trust, including but not limited to the powers
specified in subsection (3) of this section, and those powers, rights and remedies set
forth in Section 91-9-9, Mississippi Code of 1972.
                                          ******
(3) A trustee has the power, subject to subsections (1) and (2):

(r) To borrow money to be repaid from trust assets or otherwise; to advance money for
the protection of the trust and for all expenses, losses and liability sustained in the
administration of the trust or because of the holding or ownership of any trust assets, for
which advances with any interest the trustee has a lien on the trust assets as against the
beneficiary.

(x) To employ persons, including attorneys, auditors, investment advisors or agents,
even if they are associated with the trustee, to advise or assist the trustee in the
performance of his administrative duties; to act without independent investigation upon
their recommendations; and instead of acting personally, to employ one or more agents to
perform any act of administration, whether discretionary or not.

(y) To prosecute or defend actions, claims or proceedings for the protection of trust
assets and of the trustee in the performance of his duties;
Miss.Code Ann. § 91-9-107(1), (3) (Revised 1994) (Emphasis added).
Clearly, this statute provides for attorneys' fees associated with a trustee's administrative
duties akin to the Bank's efforts. A trustee has all the powers conferred by statute unless
limited by the trust agreement. Miss.Code Ann. § 91-9-105 (1994). The agreements did
not specifically limit the Bank's authority to seek legal representation concerning trust
matters. As stated in the Joint Stipulation of Facts, Brown and the Park attempted to
substitute a trustee without following certain formalities. To retain an attorney to advise
them of the proper method of substituting a trustee was not only a natural conclusion for
the Bank, but a necessity.
The trial court's ruling disallowing legal fees after June 28, 1991, does not comport with a
fair reading of the applicable statutes. One arguable basis for denying attorneys' fees
would be if it were determined that the Bank was no longer a trustee as of June 28, 1991,
when Ernest Brown exercised his contractual right to substitute trustees by filing notice
of his intention to transfer and receive. As the Bank points out, however, this notice alone
does not complete the substitution process, given that a bond is required to be posted,
unless the court waives the posting of said bond. Miss.Code Ann. § 41-43-37 and § 75-
63-17 (1972). The trial court did not waive the posting of said bond, however, directing
the Bank to transfer the amounts in the two trusts to Planned Trusts, Inc., the substitute
trustee, only upon receiving a bond in the amount equal to the assets to be transferred
from the Bank.

It was within the responsibility of the Bank as trustee to undertake reasonable steps to see
that the interest of the beneficiaries were protected until such point as a valid substitution
of trustees had taken place. The actions of the trial court in not waiving the bond
requirement validly led the Bank to conclude, under Mississippi law, that it still had the
duties of trustee until such bond was provided or requirement thereof was waived. Given



                                             44
that no bond had been filed and that the successor trustee was not even yet a legal entity,
the Bank was still the trustee pursuant to Mississippi statutes, and a ruling which held
otherwise would be in error as a matter of law.

In addition to the aforementioned considerations, the Bank had reason to suspect the
financial and legal integrity of the substitute trustee, Planned Trusts, Inc. As of June 28,
1991, the date on which the notice to accept the assets of the trust was given by Paul
Roberts as president of the putative corporation (as well as the cut-off date set by the trial
court for the recovery of legal fees), Planned Trusts, Inc. had still not been validly
incorporated. Moreover, Planned Trusts, Inc. is given authority under its Articles of
Incorporation to issue one thousand shares of stock at a par value of $1.00 each, which
indicates a rather weak capital structure of said corporation. Had the Bank been asked to
transfer the assets of the trust to a legally and financially well-established corporation, it
would have had less reason to contest various legal issues on behalf of the beneficiaries.
The substitution of a trustee can have enormous consequences to the beneficiaries of a
trust, and the Bank had reason to proceed diligently in accordance with its fiduciary
duties. In addition to the questions surrounding the integrity of Planned Trusts, Inc., the
Bank had other cause to proceed cautiously with regard to this particular case. Most
notably, in 1991 the Bank had seen the Park make a prior attempt to substitute trustees in
an ex parte proceeding of which it had been given no notice, in contravention of
established procedural requirements.

When considered in light of this history, as well the failure of the Park to follow the
statutory procedures in the second attempted substitution of trustees, the Bank can not be
said to have been overly cautious in continuing to obtain advice of counsel with regard to
the substitution of trustees. In the opinion of this Court, the Bank performed in this case
as a diligent trustee should in requiring the Park to meet the statutory requirements
relating to trustee substitutions. This Court would not hesitate to rule against any trustee
who negligently allowed the trust to be placed under the control of a financially
irresponsible or legally non-existent substitute trustee, and we find that the Bank
proceeded with due caution under the particular facts of this case.

Another arguable basis for denying attorneys' fees after June 28, 1991, would be if it
were determined that the Bank was attempting to promote its own interests rather than
those of the beneficiaries in incurring the legal expenses. The Bank, however, correctly
notes that the statutes with which it was attempting to comply were passed for the benefit
of the beneficiaries of trusts. While it may be true that the Bank derived an incidental
benefit from performing its legal duties owed under the statutes by avoiding legal liability
for breaching said statutes, the statutes were nevertheless written for the benefit of the
beneficiaries of the trust.

Of significant dispute in this appeal is the standard of review to be applied thereto. A
chancellor's ruling on findings of fact will not be disturbed unless manifestly wrong or
clearly erroneous. Denson v. George, 642 So.2d 909, 913 (Miss. 1994). A trial court's
decision on attorneys' fees is subject to the abuse of discretion standard of review. Barber
v. Barber, 234 Miss. 89, 105 So.2d 630 (1958). However, where questions of law are



                                             45
raised, this Court conducts a de novo review. Denson, 642 So.2d at 913 [citations
omitted]. It is the opinion of this Court that to deny outright all attorneys' fees incurred
after July 28, 1991, was in error as a matter of law, where the Bank was merely following
the dictates of the statute in protecting the interests of the beneficiaries of the trust. A
decision to deny such attorneys' fees in their entirety goes against the intent of the
previously discussed statutes and as such is subject to a de novo review.

The Mississippi Uniform Trustees Powers Law impliedly recognizes the Bank's rights as
trustee to have legal representation for administrative duties. Such duties should
encompass trustee substitutions. Having said this, this Court makes no ruling as to the
amount of attorneys' fees which should be awarded to the Bank in this particular case. In
deciding whether to seek legal counsel with regard to matters relating to his duties as a
trustee, a trustee must be acutely aware of the detrimental effect the expenses associated
with obtaining said counsel can have on the assets of the trust. It would indeed be a
pyrrhic victory if a trustee were to ensure that the statutory requirements relating to the
trust were followed to the last detail, only to unduly deplete the assets of the trust in the
process.

Thus, this opinion should not be read as a blanket authorization for attorneys representing
trustees to use the statutory provisions relating to trusts as a means of generating legal
fees at the expense of the trust assets. Chancellors should carefully scrutinize any
requests for attorneys' fees to be paid out of trust income to determine whether said
amounts are fair in relation to the amount of work done. The chancellor should also
consider the importance of the interest of the beneficiaries which the trustee is seeking to
protect, as well as whether the trust would be able to continue to perform its stated
functions if the expenses were allowed to be paid out of trust income. In cases involving
misuse of trust assets to generate legal fees or to promote some interest of the trustee, it
is, of course, within the discretion of the chancellor to deny attorneys' fees in their
entirety.

To the extent that the amount of work performed by said attorneys is excessive in light of
the aforementioned considerations, the cost for such work should properly be borne by
the trustee rather than the beneficiaries of the trust. A trustee should not allow its counsel
to undertake extraordinary legal measures to ensure that the letter of the law is followed
with regard to matters of dubious importance, particularly if doing so would unduly
deplete the assets of the trust. Although this Court finds, as noted earlier, that the Bank
acted responsibly in requiring that the statutory requirements be complied with, we make
no finding or recommendation as to the appropriateness of the amount of work performed
by the attorneys in this particular case, nor to the appropriateness of the specific amounts
charged therefore. It is left to the Chancellor on remand to make a ruling as to the
appropriateness thereof, taking into consideration the factors discussed above. A finding
by the chancellor as to the amount of such attorneys' fees will, as always, be subject to an
abuse of discretion standard of review by this Court. Barber, 234 Miss. at 93, 105 So.2d
at 630.




                                             46
For the foregoing reasons, this case is reversed and remanded for a determination of a
reasonable amount of attorneys' fees owed to the Bank, to be paid out of the income of
the trust.

REVERSED AND REMANDED.

SULLIVAN, P.J., and PITTMAN, BANKS, JAMES L. ROBERTS, SMITH and MILLS,
JJ., concur.

McRae, J., dissents with separate opinion joined by DAN LEE, C.J.


McRae, Justice, dissenting:

I must respectfully dissent from the decision to remand this case for another
determination of attorneys' fees as the Bank failed to demonstrate an abuse of discretion.
The allowance of attorney's fees is of course largely discretionary with the trial court
when the same should be allowed and this Court will not undertake to substitute its
judgment for that of the chancellor unless it clearly appears that the chancellor has abused
his discretion or has failed to apply correctly the equitable principles which govern in
such cases. Barber v. Barber, 234 Miss. 89, 93, 105 So.2d 630, 632 (1958).

The chancellor in this case refused to allow for attorneys' fees after June 28, 1991, having
concluded the Bank was no longer trustee as of this date since Brown had exercised his
contractual right to substitute trustees, and that any actions by the Bank after this date
were therefore only precautionary in order to protect its own interests, as opposed to the
interests of the trust. The chancellor was correct in concluding that it was improper to
allow attorney fees to a party who is no longer trustee. Such a party should not be
permitted to incur legal bills at the expense of the trust as it could potentially wipe out the
trust.

There is a presumption in favor of the validity of the trial court's judgment, and this Court
will affirm the judgment if it can be upheld for any reason. Gates v. Gates, 616 So.2d
888, 890 (Miss.1993); Taylor v. F. & C. Contracting Co., 362 So.2d 625, 628
(Miss.1978); Rayner v. Lindsey, 243 Miss. 824, 138 So.2d 902 (1962). Because the
record supports the denial of attorneys' fees after June 28, 1991, the Bank has failed to
demonstrate an abuse of discretion. Therefore, I dissent from the majority's decision to
remand this case to the lower court for another determination of attorneys' fees.

DAN M. LEE, C.J., joins this opinion.




                                              47

				
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