{ "id": 4307902, "name": "SCOTT R. CARLSON, Indiv. and as Coex'r of the Estate of Eleanor Carlson, Deceased, et al., Plaintiffs-Appellants, v. GLUECKERT FUNERAL HOME, LTD., et al., Defendants-Appellees", "name_abbreviation": "Carlson v. Glueckert Funeral Home, Ltd.", "decision_date": "2011-02-04", "docket_number": "No. 1\u201410\u20140158", "first_page": "257", "last_page": "264", "citations": [ { "type": "official", "cite": "407 Ill. App. 3d 257" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "221 Ill. 2d 234", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5703875 ], "year": 2006, "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/221/0234-01" ] }, { "cite": "40 Ill. App. 3d 288", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2968745 ], "year": 1976, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0288-01" ] }, { "cite": "316 Ill. App. 3d 485", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096566 ], "year": 2000, "pin_cites": [ { "page": "499", "parenthetical": "quoting Crawford Savings & Loan Ass'n v. Dvorak, 40 Ill. App. 3d 288, 292 (1976)" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0485-01" ] }, { "cite": "348 Ill. App. 3d 929", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4022661 ], "year": 2004, "pin_cites": [ { "page": "933" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0929-01" ] }, { "cite": "286 Ill. App. 3d 853", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544487 ], "year": 1997, "pin_cites": [ { "page": "857-58" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0853-01" ] } ], "analysis": { "cardinality": 769, "char_count": 16291, "ocr_confidence": 0.765, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.366046630517841 }, "sha256": "85c89eb3cb686aa0e35ba182145b16a9d88eabeecbcb38dceac9db2fef6e7d2c", "simhash": "1:d547edb868ace749", "word_count": 2601 }, "last_updated": "2023-07-14T15:37:05.247121+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SCOTT R. CARLSON, Indiv. and as Coex\u2019r of the Estate of Eleanor Carlson, Deceased, et al., Plaintiffs-Appellants, v. GLUECKERT FUNERAL HOME, LTD., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE EPSTEIN\ndelivered the judgment of the court, with opinion.\nJustices Joseph Gordon and Howse concurred in the judgment and opinion.\nOPINION\nPlaintiffs-appellants Scott R. Carlson, Nancy I. Lyons, and Sheila O\u2019Gara filed the instant lawsuit against defendants-appellees Glueckert Funeral Home, Ltd., and John Glueckert, Jr., seeking damages relating to a funeral contract and defendants\u2019 handling of the remains of Eleanor Carlson. The circuit court involuntarily dismissed plaintiffs\u2019 complaint pursuant to defendants\u2019 motion, ruling, inter alia, that as a matter of law defendants were shielded from liability under the Illinois Disposition of Remains Act (755 ILCS 65/1 et seq. (West 2008)) (the Act). The trial court denied plaintiffs\u2019 motion to reconsider and this appeal followed. For the following reasons, we affirm.\nBACKGROUND\nEleanor Carlson died on September 15, 2007. Eleanor was survived by her son, Scott Carlson, her estranged daughter, Denise F\u00e1rdelos, and her sister, Nancy Lyons. Plaintiffs allege that approximately one month earlier, on August 10, 2007, Eleanor appointed Scott and Nancy coexecutors of her last will and testament. Eleanor also appointed Scott and Nancy successor cotrustees of her support trust, of which Eleanor was the primary trustee. Sheila O\u2019Gara, Eleanor\u2019s niece, was appointed as successor cotrustee of the trust in the event that Nancy was unable to perform her duties. Eleanor\u2019s will and trust provided that on her death all of her property, including the trust estate, was to be distributed to Scott. In her trust documents, Eleanor expressly excluded Denise from her estate. Plaintiffs allege that on August 10, 2007, Eleanor also executed a power of attorney for health care form, appointing Scott as her agent to, inter alia, direct the disposition of her remains after her death.\nOn September 17, 2007, Scott contacted Glueckert Funeral Home to arrange for Eleanor\u2019s funeral and burial. Scott met with Matt Bennett, Glueckert Funeral\u2019s director, to make the necessary arrangements and allegedly presented Bennett with Eleanor\u2019s power of attorney, will, and trust documents as proof of his authority to direct the disposition of her remains. Scott then executed a form contract with Glueckert Funeral specifying the type and cost of the funeral arrangements. Bennett informed Scott that the funeral would be held three days later, on September 20, 2007. Glueckert Funeral subsequently took possession of Eleanor\u2019s body. After the funeral arrangements were set, however, Denise allegedly contacted Glueckert Funeral and demanded that other, more expensive, arrangements be made. Glueckert Funeral contacted Scott and informed him that the funeral would be delayed due to the dispute. Scott objected to the delay and expressed concern for the effect it would have on Eleanor\u2019s unembalmed body. John Glueckert, Glueckert Funeral\u2019s employee, allegedly responded that deterioration would not be a problem and the body could be stored at their facility indefinitely.\nOn September 28, 2007, Glueckert Funeral transferred Eleanor\u2019s body to the Lake County coroner\u2019s office. Glueckert Funeral subsequently informed plaintiffs that it considered Eleanor\u2019s body abandoned, that transfer of the body to the coroner was necessitated by an investigation being conducted by the police into the circumstances of Eleanor\u2019s death, and that it had not refrigerated her body over the last 11 days. Soon thereafter, the coroner informed Scott that it was in possession of Eleanor\u2019s body, which was extensively decayed. On October 11, 2007, Scott obtained a court order requiring the release of Eleanor\u2019s body, the details of which are not of record. Scott then made arrangements with another funeral home, and Eleanor was buried on October 18, 2007.\nOn September 12, 2008, plaintiffs filed the instant lawsuit, bringing claims for breach of contract, common law fraud, consumer fraud, intentional infliction of emotional distress, and \u201cinterference with the next of kin\u2019s right to possess and preserve the decedent\u2019s body.\u201d Defendants moved to involuntarily dismiss plaintiffs\u2019 complaint pursuant to section 2\u2014619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2\u2014619(a)(9) (West 2008)), arguing: (1) Scott\u2019s power of attorney was legally insufficient because it was neither notarized nor signed by him; (2) the power of attorney terminated on Eleanor\u2019s death; and (3) section 50 of the Act shielded defendants from liability related to their handling of Eleanor\u2019s remains. Plaintiffs responded that Scott\u2019s power of attorney granted him the authority to direct the disposition of Eleanor\u2019s remains; Denise lacked standing to challenge that authority; section 50 of the Act was inapplicable; and unspecified unresolved issues of material fact precluded dismissal.\nOn July 9, 2009, the circuit court summarily granted defendants\u2019 motion to dismiss, stating:\n\u201c1) The Court finds as a matter of law that because of the dispute between the decedent\u2019s children as to the disposition of her remains, Defendant is not liable to Plaintiffs pursuant to 755 ILCS [65]/1 (Illinois Disposition of Remains Act).\n2) The Court further finds as a matter of law that the decedent\u2019s Power of Attorney Form had no legal effect because it specifically stated that it terminated upon her death.\u201d\nOn December 17, 2009, plaintiffs\u2019 motion to reconsider was denied. This appeal followed.\nANALYSIS\nOn appeal, plaintiffs raise only two arguments. First, they contend the circuit court erred in ruling that Scott\u2019s power of attorney expressly terminated on Eleanor\u2019s death. Second, they contend the circuit court erred in ruling that a legal dispute existed between Eleanor\u2019s children. We will address each argument in turn.\n\u201cSection 2\u2014619(a)(9) of the Code of Civil Procedure authorizes the involuntary dismissal of a complaint where \u2018the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.\u2019 [Citation.] Such [a] motion should be granted where there is no disputed issue of fact and the affirmative matter negates the plaintiff\u2019s cause of action completely or refutes critical conclusions of law or conclusions of material, unsupported fact. [Citation.]\nOur review of a section 2\u2014619(a)(9) motion to dismiss \u2018is limited to consideration of the legal questions presented by the pleadings, but such review is independent and need not defer to the trial court\u2019s reasoning.\u2019 [Citation.] Accordingly, we apply a de novo standard of review. [Citations.] Our inquiry is \u2018whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.\u2019 [Citations.]\u201d Frydman v. Horn Eye Center, Ltd., 286 Ill. App. 3d 853, 857-58 (1997).\nI. Power of Attorney\nEleanor\u2019s power of attorney form states:\n\u201cI, ELEANOR Y CARLSON, do hereby appoint my son, SCOTT R. CARLSON, of Chicago, Illinois, as my attorney-in-fact (my \u2018Agent\u2019), to make any and all decisions for me concerning my personal care, medical treatment, hospitalization care and to require, withhold or withdraw any type of medical treatment or procedure, even though my death may ensue. *** My agent shall also have full power to make a disposition of any part or all of my body for medical purposes, authorize an autopsy and direct the disposition of my remains.\n* * *\nABSENT AMENDMENT OR REVOCATION, THE AUTHORITY GRANTED IN THIS POWER OF ATTORNEY WILL BECOME EFFECTIVE AT THE TIME THIS POWER IS SIGNED AND WILL CONTINUE UNTIL YOUR DEATH, AND BEYOND IF ANATOMICAL GIFT, AUTOPSY OR DISPOSITION OF REMAINS IS AUTHORIZED, UNLESS A LIMITATION ON THE BEGINNING DATE OR DURATION IS MADE BY INITIALING AND COMPLETING EITHER OR BOTH OF THE FOLLOWING:\n3. This power of attorney shall become effective on execution.\n4. This power of attorney shall terminate on my death unless sooner amended or revoked.\u201d (Emphasis added.)\nThe form is signed by Eleanor and dated August 10, 2007. With the exception of the italicized language, which was added by Eleanor, the wording of the power of attorney form is standard, taken from article IV of the Illinois Powers of Attorney for Health Care Law (755 ILCS 45/4\u201410 (West 2008)), which provides a suggested short form for granting the power of attorney for health care. The italicized language appears where article IV provides blank spaces to be completed by the principal.\nPlaintiffs argue that Eleanor did not initial paragraph 4 and so it never became effective. Defendants respond that plaintiffs waived their right to raise that argument on appeal because plaintiffs did not argue it before the circuit court. It is true that \u201cpoints not argued before the trial court generally may not be raised for the first time on appeal.\u201d Village of South Elgin v. Waste Management of Illinois, Inc., 348 Ill. App. 3d 929, 933 (2004). Here, however, in response to defendants\u2019 motion to dismiss before the circuit court, plaintiffs argued that the power of attorney form granted Scott the power to direct the disposition of Eleanor\u2019s remains, and in plaintiffs\u2019 motion to reconsider, they specifically argued that paragraph 4 required Eleanor\u2019s initials to be effective. Further, the circuit court obviously considered that issue as it was one of the expressed bases of its ruling. Plaintiffs did not waive their right to argue the validity of Scott\u2019s power of attorney on appeal.\n\u201cA written power of attorney must be strictly construed so as to reflect the \u2018clear and obvious intent of the parties.\u2019 \u201d Fort Dearborn Life Insurance Co. v. Holcomb, 316 Ill. App. 3d 485, 499 (2000) (quoting Crawford Savings & Loan Ass\u2019n v. Dvorak, 40 Ill. App. 3d 288, 292 (1976)). The power of attorney form at issue here purports to grant Scott the power, as Eleanor\u2019s attorney-in-fact, to direct the disposition of her remains after her death unless certain temporal limitations are enumerated and initialed. Two limitations are enumerated; neither is initialed. Thus, those limitations, including the provision stating that Scott\u2019s power of attorney terminated on Eleanor\u2019s death, did not modify or revoke the language stating that Scott\u2019s power to direct the disposition of Eleanor\u2019s remains continued beyond her death.\nDefendants argue, however, that this reading of the power of attorney form is circuitous because the limitation in paragraph 4 follows paragraph 3, which states that the power of attorney will take effect once executed. Defendants argue that \u201cEleanor did not initial this paragraph either so if paragraph 4 is not effective for want of initials, then paragraph 3 must also fail. Without paragraph 3, the power of attorney never took effect.\u201d We disagree. The power of attorney form plainly states that the power granted therein becomes effective when signed, August 10, 2007. As we have already stated, paragraph 3 was never initialed and therefore did not modify this provision. The circuit court\u2019s ruling that Scott\u2019s power of attorney expressly terminated at Eleanor\u2019s death was erroneous. Nevertheless, for the reasons stated below, we decline to reverse the judgment of the circuit court.\nII. The Disposition of Remains Act\nThe second question presented, whether the disagreement between Scott and Denise as to the disposition of Eleanor\u2019s remains constitutes a \u201cdispute\u201d under the Act, is one of statutory construction. It is, as far as we can discern, a question of first impression.\n\u201cThe cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. [Citation.] The best evidence of legislative intent is the language of the statute, and when possible, the court should interpret the language of a statute according to its plain and ordinary meaning. [Citation.] We do not construe words and phrases of a statute in isolation; instead, all provisions of a statute are viewed as a whole. [Citation.] \u2018Legislative intent can be ascertained from a consideration of the entire Act, its nature, its object and the consequences that would result from construing it one way or the other.\u2019 [Citation.] Thus, we are not bound by the literal language of a statute if that language produces absurd or unjust results not contemplated by the legislature.\u201d In re Donald A.G., 221 Ill. 2d 234, 246 (2006).\nAlthough the circuit court referenced only section 1 of the Act\u2014 the short title provision \u2014 in its order, it is apparent from the structure of the statute that the court relied on section 50, which states:\n\u201cAny dispute among any of the persons listed in Section 5 [(755 ILCS 65/5 (West 2008))] concerning their right to control the disposition, including cremation, of a decedent\u2019s remains shall be resolved by a court of competent jurisdiction. A cemetery organization or funeral establishment shall not be liable for refusing to accept the decedent\u2019s remains, or to inter or otherwise dispose of the decedent\u2019s remains, until it receives a court order or other suitable confirmation that the dispute has been resolved or settled.\u201d 755 ILCS 65/50 (West 2008).\nPut another way, section 50 provides that: (1) any disputes between persons listed in section 5 concerning the disposition of a decedent\u2019s remains are to be resolved by a court; and (2) funeral homes and cemeteries will not be liable for their refusal to accept, inter, or otherwise dispose of the decedent\u2019s remains while such disputes are ongoing.\nPlaintiffs argue:\n\u201cSince Eleanor\u2019s Power of Attorney did not terminate upon her death and she clearly left directions in writing designating an agent to direct the disposition of her remains *** the \u2018people\u2019 listed in subsections 1\u20144 of \u00a75 [(755 ILCS 65/5(1) through (4) (West 2008))] never got the right to dispute Scott\u2019s directions. As a result it is unnecessary to inquire about whether Denise was one of the \u2018persons\u2019 listed in subsections (1) through (9) of Section 5 [(755 ILCS 65/5(1) through (9) (West 2008))] who could dispute Scott\u2019s right to control the disposition of Eleanor\u2019s remains. Because that person was Scott and Scott alone, no one else was authorized to dispute his directions.\u201d\nDefendants respond, in relevant part, that regardless of whether Scott has the right to direct the disposition of Eleanor\u2019s remains, a dispute concerning that right existed between Scott and Denise. We agree.\nSection 50 does not limit its reach to only those persons whose assertions of right are later adjudged valid and well founded, as plaintiffs argue. The reason for this is obvious enough. It is not the role of funeral homes and cemeteries to judge the relative legal rights of feuding family members. That task is left to the courts and for good reason. Section 50 expressly applies to any dispute between persons listed in section 5, which includes the decedent\u2019s competent adult children. 755 ILCS 65/5(4) (West 2008). Plaintiffs\u2019 argument to the contrary is conclusory and goes against the plain meaning of the Act. Further, there was clearly a \u201cdispute\u201d between Eleanor\u2019s surviving adult children concerning the disposition of her remains. The term \u201cdispute\u201d is not defined in the Act. Under its plain and ordinary meaning, however, a dispute is \u201c[a] conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other.\u201d Black\u2019s Law Dictionary 472 (6th ed. 1990). The conflicting assertions of rights by Scott and Denise, in the plain and ordinary sense of the term, qualify as a dispute concerning control over the disposition of Eleanor\u2019s remains. Therefore, the circuit court did not err in concluding that a dispute existed between Eleanor\u2019s children and its judgment is affirmed.\nCONCLUSION\nFor all the foregoing reasons, the judgment of the Cook County circuit court is affirmed.\nAffirmed.", "type": "majority", "author": "JUSTICE EPSTEIN" } ], "attorneys": [ "Marc S. Mayer and Michael V Marsh, both of Mayer & Marsh, of Chicago, for appellants.", "Dale L. Schlafer and Kevin C. Rasp, both of Kiesler & Berman, of Chicago, for appellees." ], "corrections": "", "head_matter": "SCOTT R. CARLSON, Indiv. and as Coex\u2019r of the Estate of Eleanor Carlson, Deceased, et al., Plaintiffs-Appellants, v. GLUECKERT FUNERAL HOME, LTD., et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1\u201410\u20140158\nOpinion filed February 4, 2011.\nRehearing denied March 7, 2011.\nMarc S. Mayer and Michael V Marsh, both of Mayer & Marsh, of Chicago, for appellants.\nDale L. Schlafer and Kevin C. Rasp, both of Kiesler & Berman, of Chicago, for appellees." }, "file_name": "0257-01", "first_page_order": 273, "last_page_order": 280 }