HOMERO TRUEBA, OMAR TRUEBA, AND ORLANDO TRUEBA, BROTHERS AND NEXT OF KIN AND SONS OF GERARDO RAMON TRUEBA, APPELLANTS,
v.
PERSHING INDUSTRIES, INC., D/B/A VISTA MEMORIAL GARDENS, AND EDWARD PAWLEY, RICHARD CLARK, AND JOHN GONZALEZ, JOINTLY AND SEVERALLY AS TORT FEASORS, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Trueba brothers appealed the dismissal of their complaint seeking disinterment of their father's body and damages for emotional distress after a cemetery sold them an already-sold plot and moved the body despite their refusal. The court reversed the dismissal of the disinterment claim but affirmed dismissal of the emotional distress claim.
The court affirmed dismissal of the emotional distress claim but reversed dismissal of the disinterment claim, remanding for the trial court to receive evidence and exercise discretion regarding whether to order an examination of the vault.
[1] Recovery for intentional infliction of severe mental distress requires conduct that is deliberately done with intent to harm, is of a wanton and outrageous character, exc…
[2] A cemetery may have the contractual right to move a body if the contract of purchase of the plot contains language permitting such action.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Under the decisions dealing with recovery for intentional infliction of severe mental distress, recovery therefor is proper only when the causatory conduct is deliberately done with intent to so harm the person, and is of such wanton and outrageous character as would constitute conduct that would warrant the allowance of punitive damages”
Establishes the high standard required for emotional distress claims in Florida, which the plaintiffs failed to meet
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGerardo Ramon Trueba died in 1976. His sons purchased a cemetery plot from Vista Memorial Gardens but discovered the plot had already been sold to ano…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Outrageous Conduct cases and more on FLexlaw
BARKDULL, Judge.
The Trueba brothers appeal the trial court’s order granting a motion for a judgment on the pleadings and dismissing their complaint with prejudice.
By their second amended complaint, the Truebas alleged that they were brothers, and sons of Gerardo Ramon Trueba who died in 1976. The complaint sought a court order for the disinterment of their father’s body and damages for emotional distress, alleging that Vista Memorial Gardens had sold them a plot that had already been sold; that the cemetery moved the body despite the specific refusal of the brothers; that the brothers were uncertain about where their father was and, hence, had suffered great emotional distress and humiliation.
The defendants answered, generally denying the pertinent allegations and setting out as affirmative defenses that the body had not actually been interfered with (the entire vault had been moved), and that the cemetery had the right to move the vault by the language of the contract of purchase of the plot.
The trial court granted the motion for judgment on the pleadings, dismissed the complaint with prejudice, and denied rehearing. This appeal followed.
As to the cause of action for emotional distress and humiliation, we find no meritorious claim. In this connection, see the recent opinion of this court, authored by Judge Charles A. Carroll: Gellert v. Eastern Air Lines, Inc., 370 So. 2d 802 (Fla. 3d DCA 1979), wherein (speaking about actions for emotional distress) the following is found:
“Under the decisions dealing with recovery for intentional infliction of severe mental distress, recovery therefor is proper only when the causatory conduct is deliberately done with intent to so harm the person, and is of such wanton and outrageous character as would constitute conduct that would warrant the allowance of punitive damages (Kirksey v. Jernigan, supra [45 So. 2d 188 (Fla.1950)]), and constitutes conduct that exceeds all bounds which could be tolerated by society, and is of a nature especially calculated to cause mental damage of a serious kind. Slocum v. Food Fair Stores of Florida, Inc., supra [100 So. 2d 396 (Fla.1958)]. The several incidents presented and relied on by the plaintiff as having caused him severe mental distress, in our view were not shown to be conduct equal to the flagrant character thereof which, as outlined above, is essential for recovery. The judgment is entitled to be affirmed on this alternative and separate ground. In re Estate of Yohn, 238 So. 2d 290, 295 (Fla.1970); Firestone v. Firestone, 263 So. 2d 223, 225 (Fla.1972); Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526, 528 (Fla. 3d DCA 1974); Atlantic Plaza Partnership v. Daytona Sands, Inc., 357 So. 2d 761 (Fla. 1st DCA 1978).”
As to the issue made upon the failure of the trial court to entertain or exercise his discretion in ordering an examination of the vault, we return the matter to the trial court with directions to the chancellor to receive evidence on the issue as framed by the pleadings, and then to exercise his discretion. In this connection, see the following authorities: Application of Keck, 75 Cal.App.2d 846, 171 P. 2d 933 (1st Dist. 1946); Cordts v. Cordts, 154 Kan. 354, 118 P. 2d 556 (1941); Currier v. Woodlawn Cemetery, 300 N.Y. 162, 90 N.E. 2d 18 (1949); Evergreen Cemetery Association, Inc. v. Jurgensen, 34 A.D.2d 709, 309 N.Y.S.2d 847 (1970).
Reversed and remanded, with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Woods, 400 So. 2d 456 (Fla. 1981)…ADKINS, Justice. By petition for certiorari, we have for review a decision of the Third District Court of Appeal reported at 374 So. 2d 47, which allegedly conflicts with prior decisions of this Court and those from the same district, and which arguably directly and exclusively affects the duties and powers of a class of constitutional or state officers; namely, the circuit court judge…
-
Trueba v. Pawley, 407 So. 2d 945 (Fla. 3d DCA 1981)…[*946] NESBITT, Judge. In a prior appearance by the parties to the present action, Trueba v. Pershing Industries, Inc., 374 So. 2d 47 (Fla.3d DCA 1979), we affirmed the dismissal of the natural sons’ action claiming damages for emotional distress in connection with the disturbance of their father’s remains by the defendant cemetery company. However, the proceeding was returned to…
-
Gonzalez v. Metro. Dade Cnty. Pub. Health Tr., 626 So. 2d 1030 (Fla. 3d DCA 1993)…; Ponton v. Scarfone, 468 So. 2d 1009 (Fla. 2d DCA), rev. denied 478 So. 2d 54 (Fla.1985); Sherer v. Rubin Mem. Chapel, Ltd., 452 So. 2d 574 (Fla. 4th DCA 1984); Scheuer v. Wille, 385 So. 2d 1076 (Fla. 4th DCA 1980); Trueba v. Pershing Indus., Inc., 374 So. 2d 47 (Fla. 3d DCA 1979); Estate of Harper v. Orlando Funeral Home, Inc., 366 So. 2d 126 (Fla. 1st DCA 1979); Brooks v. South Broward Hosp. Dist., 325 So. 2d 479 (Fla. 4th DCA 1975), cert. denied, 341 So. 2d 290 (Fla.1976); Jackson v. Rupp, 228 So. 2d 916…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kirksey v. Jernigan, 45 So. 2d 188 (Fla. 1950)
- Firestone v. Firestone, 263 So. 2d 223 (Fla. 1972)
- In re Est. of Carl Sylvester Yohn, 238 So. 2d 290 (Fla. 1970)
- Julia Slocum and Homer v. Slocum, 100 So. 2d 396 (Fla. 1958)
- Deemer v. Hallett Pontiac, Inc., 288 So. 2d 526 (Fla. 3d DCA 1974)
- Gellert v. E. AIR Lines, Inc., 370 So. 2d 802 (Fla. 3d DCA 1979)
- State v. Sudol, 357 So. 2d 761 (Fla. 4th DCA 1978)
- Atl. Plaza P'ship v. Daytona Sands, Inc., 357 So. 2d 761 (Fla. 1st DCA 1978)