HOLLY M. KIRBY

An Appeal from the Circuit Court for Gibson County

No. H 3804

Clayburn Peeples, Judge

This is a lawsuit alleging unauthorized cremation. The plaintiffs' mother, a Tennessee resident, died in Arkansas while visiting a friend. The plaintiffs hired a Tennessee funeral home to transport the decedent's body back to her hometown of Medina, Tennessee, for an informal family viewing. The plaintiffs instructed the Tennessee funeral home operator that, after the viewing, the decedent's body was to be taken to Nashville, Tennessee, to be cremated there. The Tennessee funeral home retained the defendant Arkansas funeral home to handle the matter. The Arkansas funeral home delivered the body to an Arkansas crematory. The plaintiffs' mother's body was cremated by the crematory in Arkansas, so the plaintiffs were deprived of the opportunity to view their mother's deceased body in Tennessee. The plaintiffs filed this lawsuit against several defendants, alleging various causes of action arising out of the unauthorized cremation of their mother's body in Arkansas. The defendant Arkansas funeral home filed a motion for summary judgment as to all counts of the complaint. The trial court granted summary judgment to the Arkansas funeral home on all counts and certified the order as final under Tenn. R. Civ. Proc. 54.02. The plaintiffs now appeal. We affirm in part, reverse in part, and remand the case for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is

Affirmed in Part, Reversed in Part, and Remanded

HOLLY M. KIRBY, J., delivered the opinion of the Court, in which DAVID R. FARMER, J., and J. STEVEN STAFFORD, J., joined. Todd D. Siroky, Jackson, Tennessee, for the Plaintiff/Appellants Carey B. Boals, Jr., and Kim Hickerson, individually and as next of kin of Judy Marlene Boals, deceased Lori D. Parish, Memphis, Tennessee, for the Defendant/Appellee Alpha Mortuary Service, LLC

OPINION

FACTS AND PROCEEDINGS BELOW

On October 6, 2009, Judy Marlene Boals ("Ms. Boals"), 60 years old, traveled from her hometown in Medina, Tennessee, to Little Rock, Arkansas, to visit a friend who was a patient at a Little Rock hospital. Suddenly and unexpectedly, Ms. Boals died during the hospital visit under suspicious circumstances. Hospital personnel reported that they found a third person in the room with Ms. Boals' deceased body with the door closed; the person was rummaging through Ms. Boals' purse and personal belongings and refused to open the door for hospital personnel. The suspect was arrested and held on felony theft charges. Little Rock police opened a homicide investigation of Ms. Boals' death. As part of the investigation, Little Rock authorities sent Ms. Boals' body to the coroner for an autopsy. Little Rock police contacted Ms. Boals' children, Plaintiff/Appellants Carey B. Boals, Jr., and Kim Hickerson ("Mr. Boals" and "Ms. Hickerson," collectively referred to as "Plaintiffs"), and told them that their mother had died. At the time, Mr. Boals lived in Alabama, and Ms. Hickerson lived in or near Ms. Boals' hometown, Medina, Tennessee. Upon hearing the news of Ms. Boals' death, Mr. Boals began making arrangements for transportation of Ms. Boals' body from Little Rock, Arkansas, to Medina, Tennessee. To this end, he contacted Defendant Stephen Murphy, whom he knew. Mr. Murphy owns and operates Defendant Medina Funeral Home and Cremation Service ("Medina Funeral Home") in Medina. Mr. Boals asked Mr. Murphy to have Ms. Boals' body transported to Medina so that the family could have an informal viewing of the body there, and after the Medina viewing transport the body to Nashville, Tennessee. Mr. Boals told Mr. Murphy that the family wanted the body cremated in Nashville at the Music City Crematory Service ("Music City Crematory"), owned by Mr. Murphy and his brother, Defendant Jeff Murphy. Mr. Murphy and Mr. Boals had a series of conversations about these arrangements. Because Mr. Boals lived in Alabama, on October 6, 2009, his sister Ms. Hickerson went to see Mr. Murphy at the Medina Funeral Home to confirm the arrangements. Mr. Murphy told Ms. Hickerson that he would have Ms. Boals' body transported from Arkansas to Medina, Tennessee, and that the family would have an opportunity to view the body when it was brought to Medina. After the family viewing in Medina, Mr. Murphy told Ms. Hickerson, he would have Ms. Boals' body transported to Nashville for cremation at Music City Crematory. Mr. Murphy told Ms. Hickerson that, in light of his relationship with Mr. Boals, he would waive the charges for transportation of the body. In reliance on Mr. Murphy's representations, Ms. Hickerson signed a release stating that Ms. Hickerson and Mr. Boals released Ms. Boals' body to "Medina Funeral Home and Alpha Mortuary Service." Mr. Boals' signature was also on the release. Defendant/Appellee Alpha Mortuary Service, LLC ("Alpha"), is a funeral home located in Little Rock, Arkansas, owned by William Newsome; the record does not indicate whether there is a relationship between Medina Funeral Home and Alpha Mortuary Service. Ms. Hickerson also signed a document entitled "Statement of Funeral Goods and Services Selected," which was an invoice containing Medina Funeral Home's charges for the cremation of Ms. Boals' body. Neither of these forms directly authorized the cremation of Ms. Boals' body; Ms. Hickerson and Mr. Boals assert that neither of them signed any document authorizing the cremation of Ms. Boals' body. Contrary to Mr. Murphy's assurances that he would personally see to it that Ms. Boals' body was brought back to the family's home in Medina, Mr. Murphy contacted Mr. Newsome at Alpha for assistance. Mr. Murphy faxed Mr. Newsome the release signed by the Plaintiffs. The Plaintiffs allege that Mr. Murphy also sent Alpha a cremation authorization form containing the forged signatures of Mr. Boals and Ms. Hickerson. When it was sent, the cremation authorization form Mr. Murphy sent to Mr. Newsome did not include Defendant Chapel Hill Crematory as an authorized crematory; at some point, Mr. Newsome inserted Chapel Hill Crematory's name next to Alpha's as authorized to cremate Ms. Boals' body. On October 7, 2009, the Arkansas State Crime Lab completed the autopsy on Ms. Boals' body. Based on the autopsy, the Chief Medical Examiner ruled preliminarily that the manner of Ms. Boals' death was undetermined, pending results of toxicology tests and the pending homicide investigation. The day the autopsy was completed, Mr. Newsome presented the signed release to the Arkansas State Crime Lab, so the Crime Lab released Ms. Boals' body to him. Mr. Newsome then delivered the body to Chapel Hill Crematory in Jacksonville, Arkansas, for cremation. In doing so, Mr. Newsome presented to Chapel Hill Crematory the forged cremation authorization. Based on this forged cremation authorization, Chapel Hill Crematory cremated Ms. Boals' body the very next day, October 8, 2009, in Arkansas. Because the body was prematurely cremated, Mr. Boals and Ms. Hickerson were never able to have the family viewing of their mother's body in Tennessee. Perhaps not surprisingly, the Plaintiffs were never asked to pay for the funeral home services per their original agreement with Mr. Murphy. On February 2, 2010, the Plaintiffs, individually and on behalf of Ms. Boals, filed this lawsuit in the Circuit Court for Gibson County, alleging wrongful cremation of Ms. Boals' body. As defendants, the lawsuit named Mr. Murphy, Mr. Murphy's Medina funeral home businesses (Medina Funeral Home and Murphy Undertaking, Inc.), Mr. Jeff Murphy, the Murphys' Nashville funeral home businesses (Music City Crematory Service and Murphy Enterprises, Unlimited, Inc.), Alpha, and Chapel Hill Crematory. In the Plaintiffs' amended complaint, they sought relief based on several legal theories: Count 1 - negligence per se for violations of (a) Tennessee Code Annotated § 62-5-107/ use of an unlicensed crematory, (b) Rule 4(B) of the Arkansas State Board of Embalmers and Funeral Directors Rules and Regulations, and (c) Tennessee Code Annotated § 39-17-312/abuse of a corpse; Count 2 - intentional, reckless, and/or negligent mutilation of a human body; Count 3 - negligent infliction of emotional distress ("NIED"); Count 4 - intentional infliction of emotional distress; Count 5 - violation of the Tennessee Consumer Protection Act ("TCPA"), Tennessee Code Annotated § 47-18-104; Count 6 - common law negligent/reckless/intentional conduct; Count 7 - breach of contract; Count 8 - negligent misrepresentation; and Count 9 - intentional misrepresentation and fraud. The Plaintiffs sought "$2,000,000 for the mental anguish, physical pain, and emotional distress" caused by the defendants' misconduct. The complaint also sought $1,000,000 in punitive damages "for the intentional violation and reckless disregard of the statutes alleged above, and the reckless and/or intentional acts and omissions set forth herein." Discovery ensued. On November 16, 2011, Alpha filed its first motion for summary judgment, seeking summary judgment on all of the Plaintiffs' claims. In the motion, Alpha pointed out that, in making the arrangements for the disposition of Ms. Boals' remains, the Plaintiffs contracted and dealt exclusively with Mr. Murphy and had no direct or indirect communication with anyone at Alpha. Alpha claimed in the motion that the undisputed evidence showed that Mr. Murphy instructed Alpha to have Ms. Boals' body cremated in the state of Arkansas, and that, pursuant to those instructions, Alpha delivered Ms. Boals' body to Chapel Hill Crematory. Based on these facts, Alpha argued, the Plaintiffs cannot establish any of their claims against Alpha. On March 5, 2012, the trial court entered an order granting in part and denying in part Alpha's motion for summary judgment. The trial court granted the motion as to negligence per se for violation of Section 39-17-312/abuse of a corpse (Count 1(c)), mutilation of a human body (Count 2), intentional infliction of emotional distress (Count 4), violation of the TCPA (Count 5), negligent misrepresentation (Count 8), and intentional misrepresentation and fraud (Count 9). The trial court reasoned:

Defendant Alpha successfully established that Plaintiffs are unable to prove essential elements of those claims. With specific reference to the allegations of negligent and intentional misrepresentation, Plaintiffs are unable to prove that Defendant Alpha provided information meant to guide them in their decision making process and are further unable to prove that they relied upon representations of Defendant Alpha in making their decisions. Plaintiffs are also unable to prove the intent or actions of Defendant Alpha necessary to establish Plaintiffs' allegations of intentional infliction of emotional distress [(Count 4)], fraud [(Count 9)], and violations of the [TCPA (Count 5)]. In addition, there is no evidence to support and Plaintiffs are unable to prove that Defendant Alpha mutilated the body [(Count 2)] or abused the corpse [(Count 1(c))] of Judy Marlene Boals, deceased.

Specifically, the Court found that Plaintiffs were unable to prove essential elements of their claims of negligent infliction of emotional distress [(Count 3)], negligence per se for violations of Tenn. Code Ann. § 62-5-107 [(Count 1(a))] and Rule 4(B) of the AR Board of Embalmers and Funeral Directors Rules and Regulations [(Count 1(b))], and common law negligence [(Count 6)]. With regard to these claims, the Court determined that Plaintiffs' suit sought compensation for stand-alone claims of emotional injury and mental anguish, that such claims of severe emotional injury require expert medical proof to establish that such an injury was indeed suffered by Plaintiffs, that such proof is lacking in Plaintiffs' case as neither Plaintiff had received any medical treatment for their alleged severe emotional injury, and had not presented evidence from any medical experts, making them unable to establish that such damages were suffered. Further, that because Plaintiffs cannot present the proof required to demonstrate that they suffered damages as the result of Defendant's alleged conduct, they are unable to establish an essential element of their claims for the various types of negligence, making summary judgment appropriate as a matter of law.

ISSUES ON APPEAL AND STANDARD OF REVIEW

The Plaintiffs raise several issues on appeal, all challenging different aspects of the trial court's orders granting summary judgment in favor of Alpha. The Plaintiffs state the issues as follows:

(1) Whether the trial court erred in making inconsistent rulings on the Plaintiffs' claims against the Murphy Defendants and Alpha?
(2) Whether the trial court committed reversible error in holding that the Plaintiffs are required to present expert proof of their damages (and in granting summary judgment on that basis)?
(3) Whether the trial court erred in dismissing the Plaintiffs' claim for negligence per se for violation of Tennessee Code Annotated § 62-5-107/use of an unlicensed crematory (Count 1(a)) because Alpha's actions were grossly negligent?
(4) Whether the trial court erred in dismissing the Plaintiffs' claim for violation of Arkansas State Board of Embalmers and Funeral Directors Rule and Regulations 4(B) (Count 1(b))?
(5) Whether the trial court erred in dismissing the Plaintiffs' claims against Alpha for negligence per se for violation of Tennessee Code Annotated § 37-17-312(a)(1)/abuse of a corpse (Count 1(c))?
(6) Whether the trial court erred in granting summary judgment on the Plaintiffs' claim for mutilation of Ms. Boals' body (Count 2)?
(7) Whether the trial court erred in granting summary judgment on the Plaintiffs' claims for negligent misrepresentation (Count 8)?
(8) Whether the trial court erred in granting summary judgment on the Plaintiffs' claims for intentional misrepresentation and fraud (Count 9)?
(9) Whether the trial court erred in granting summary judgment on the Plaintiffs' claim for punitive damages?

ANALYSIS

In our analysis, we vary somewhat from the order in which the Plaintiffs set forth the issues raised, and we group some claims together for purpose of discussion.

Summary Judgment Based on Lack of Expert Proof of Damages

The Plaintiffs contend that the trial court erred in granting Alpha's motion for summary judgment as to the "various types of negligence" claims based on the Plaintiffs' lack of expert proof of serious or severe emotional injuries. The trial court held that the Plaintiffs' claims for negligence per se for violation of Section 62-5-107/use of an unlicensed crematory (Count 1(a)), negligence per se for violation of Arkansas Board of Embalmers Rule 4(B) (Count 1(b)), NIED (Count 3), and common law negligence (Count 6) are "stand-alone claims of emotional injury and mental anguish." It held that "such claims of severe emotional injury require expert medical proof to establish that such an injury was indeed suffered by Plaintiffs." Because the Plaintiffs had offered no expert proof on their injuries as of the date of the summary judgment hearing, and because the Plaintiffs had not sought medical treatment for their emotional injuries, the trial court granted summary judgment in favor of Alpha on those claims. With no expert proof, the trial court reasoned, the Plaintiffs are "unable to establish that such [severe emotional] damages were suffered." On appeal, the Plaintiffs argue that they are not required to proffer expert proof of their emotional injuries in this case, because they alleged outrageous conduct along with other multiple types of claims and damages. They argue that the trial court erred in looking at the type of injury alleged rather than the kind of conduct involved to determine whether their claims are "stand alone" claims for emotional injuries. In this case, the Plaintiffs contend, the claims alleged are not "stand alone" NIED claims, so no expert proof is required. See Estate of Amos v. Vanderbilt Univ., 62 S.W.3d 133, 136 (Tenn. 2001); Miller v. Willbanks, 8 S.W.3d 607, 614-15 (Tenn. 1999). Appellee Alpha argues that the trial court did not err in holding that, because the negligence claims that were dismissed sought only emotional distress damages, they were all "stand alone" claims, also citing Estate of Amos. Because the Plaintiffs allege only damages related to their emotional well-being, Alpha contends, their claims are "stand alone" claims for NIED and expert proof of damages is required. A review of the applicable legal principles is helpful to our analysis. The seminal Tennessee case on whether a plaintiff who asserts a claim for NIED must submit expert proof of damages is Camper v. Minor, 915 S.W.2d 437, 443-44 (Tenn. 1996). In that case, the plaintiff's truck collided with another vehicle driven by a 16-year-old. The 16-year-old driver was killed instantly in the collision. The driver of the truck sued the deceased teenage driver's estate and the owner of the vehicle the teenager was driving. He asserted only a claim of NIED, seeking to recover for the emotional injuries he sustained by seeing the decedent's body immediately after the accident. Id. at 439. The question presented in Camper was one that had been the subject of some dispute in Tennessee courts, namely, whether a plaintiff who asserts only a claim of NIED must prove that he suffered a contemporaneous physical injury in order to recover for his emotional injuries. Settling this issue, the Camper Court held that a plaintiff who asserts a claim for NIED is not required to prove an accompanying physical injury. Id. at 440, 444 (noting that "law of negligent infliction of emotional distress is one of the most disparate and confusing areas of tort law," and that "cases applying Tennessee law on the subject had been far from consistent"). It concluded that a claim for NIED should be analyzed under a "general negligence approach." However, the Camper Court imposed safeguards intended to prevent recovery in frivolous lawsuits but still protect the rights of plaintiffs who had truly suffered serious emotional injuries. Id. at 440 (noting that the law of NIED "is fundamentally concerned with striking a balance between two opposing objectives: first, promoting the underlying purpose of negligence law-that of compensating persons who have sustained emotional injuries attributable to the wrongful conduct of others; and second, avoiding the trivial or fraudulent claims that have been thought to be inevitable due to the subjective nature of these injuries"). First, the Court held that one who asserts a claim for NIED may recover only if he proves that he sustained "serious" or "severe" emotional injury caused by the defendant's negligent conduct. Id. at 446. The Court defined a "serious" or "severe" injury as one "where a reasonable person, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case." Id. As an added safeguard against frivolous claims, the Court held that "the claimed injury or impairment must be supported by expert medical or scientific proof." Id. Thus, Camper established that a plaintiff who brings a NIED claim must (1) satisfy the five elements of ordinary negligence (duty, breach of duty, injury or loss, causation in fact, and proximate or legal cause), (2) establish a "serious" or "severe" emotional injury, and (3) support his or her claim of serious or severe injury with expert medical or scientific proof. See Marla H. v. Knox County, 361 S.W.3d 518, 529 (Tenn. Ct. App. 2011) (citing Camper, 915 S.W.2d at 446). The standard of proof was refined a few years later in Miller v. Willbanks. In Miller, the Tennessee Supreme Court held that the "expert proof" requirement in Camper does not apply in cases in which a plaintiff alleges intentional, as opposed to negligent, infliction of emotional distress. Miller v. Willbanks, 8 S.W.3d 607, 614 (Tenn. 1999). The Miller Court noted that the level of proof required to prove intent provides an added measure of reliability to the claim. For this reason, it is not necessary to have the safeguard of requiring expert proof of the emotional injury resulting from intentional infliction of emotional distress:

With regard to intentional infliction of emotional distress, the added measure of reliability, i.e., the insurance against frivolous claims, is found in the plaintiff's burden to prove that the offending conduct was outrageous. This
is an exacting standard requiring the plaintiff to show that the defendant's conduct is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community." Restatement (Second) of Torts § 46 cmt. d (1965). Such conduct is "important evidence that the distress has existed," id. § 45 cmt. j, and from such conduct, more reliable indicia of a severe mental injury may arise. The outrageous nature of the conduct, therefore, vitiates the need for expert testimony in a claim for intentional infliction of emotional distress. The risk of frivolous litigation, then, is alleviated in claims for intentional infliction of emotional distress by the requirement that a plaintiff prove that the offending conduct was so outrageous that it is not tolerated by a civilized society.

In cases of negligent infliction of emotional distress, however, the conduct giving rise to the tort is not marked by extraordinary or outrageous elements inherent in intentional conduct. Thus, concerns with unwarranted claims are not addressed by the kind of conduct that must be proved to obtain damages for emotional distress. In the absence of any reliable indicia of a severe mental injury suggested by the conduct, some safeguard must be imposed to limit frivolous litigation. Accordingly, when the conduct complained of is negligent rather than intentional, the plaintiff must prove the serious mental injury by expert medical or scientific proof. See Camper, 915 S.W.2d at 446.

The special proof requirements in Camper are a unique safeguard to ensure the reliability of "stand-alone" negligent infliction of emotional distress claims. Camper, 915 S.W.2d at 440; see also Miller v. Willbanks, 8 S.W.3d 607, 614 (Tenn. 1999). The subjective nature of "stand-alone" emotional injuries creates a risk for fraudulent claims. Miller, 8 S.W.3d at 614 ("legitimate concerns of fraudulent and trivial claims are implicated when a plaintiff brings an action for a purely mental injury"); see Camper, 915 S.W.2d at 440. The risk of a fraudulent claim is less, however, in a case in which a claim for emotional injury damages is one of multiple claims for damages. When emotional damages are a "parasitic" consequence of negligent conduct that results in multiple types of damages, there is no need to impose special pleading or proof requirements that apply to "stand-alone" emotional distress
claims. See Kush v. Lloyd, 616 So.2d 415, 422-23 (Fla. 1992); see also Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825, 831 (1982); Phillips v. United States, 575 F. Supp. 1309, 1318-19 (D.S.C. 1983).
Even before Camper, a plaintiff could recover for emotional injuries as one of several items of compensatory damages. See, e.g., Smith v. Gore, 728 S.W.2d 738, 751-52 (Tenn. 1987) (in an action for wrongful pregnancy, plaintiffs could recover damages for medical expenses, pain and suffering, loss of wages, and emotional distress or mental anguish); Laxton v. Orkin Exterminating Co., Inc., 639 S.W.2d 431, 431, 434 (Tenn. 1982) (damages allowed for mental anguish, personal injury, and property damages resulting from the negligent contamination of plaintiffs' water supply); Roberson v. Univ. of Tenn., 829 S.W.2d 149, 152 (Tenn. Ct. App. 1992) (damages for gender discrimination included actual damages, damages for emotional distress, attorneys' fees, costs, and punitive damages). Before Camper, however, Tennessee courts did not allow recovery for mental injuries "without accompanying physical injury or physical consequences, or without other independent basis for tort liability." Laxton, 639 S.W.2d at 433. The Camper holding contemplated a plaintiff who was involved in an incident and received only emotional injuries. With its abandonment of the "physical manifestation" rule, the Camper Court opened the door for legitimate "stand-alone" claims of negligent infliction of emotional distress. See Laura J. Bradley, Case Note, Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997), 65 Tenn. L. Rev. 293, 305. The Camper holding did not alter the longstanding rule that emotional injuries are compensable if accompanied by additional claims for damages. Imposing the more stringent Camper proof requirements upon all negligence claims resulting in emotional injury would severely limit the number of otherwise compensable claims. Such a result would be contrary to the intent of our opinion in Camper - to provide a more adequate, flexible rule allowing compensation for valid "stand-alone" emotional injury claims. Camper, 915 S.W.2d at 446.

When the claim for negligent infliction of emotional distress is a "stand-alone" claim, i.e., one for emotional disturbance alone in the absence of a physical injury, the serious or severe mental injury must be proven "through expert medical or scientific proof." Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 528 (Tenn. 2008). When the cause of action for negligent infliction is for "emotional damages [that] are a 'parasitic' consequence of negligent conduct that results in multiple types of damages," there is no requirement that the serious or severe mental injury be proven by expert proof. Estate of Amos v. Vanderbilt Univ., 62 S.W.3d 133, 137 (Tenn. 2001).

When a plaintiff suffers a physical injury there is some indication that allegations of emotional and mental injuries resulting from that injury are not fraudulent. See Amos, 62 S.W.3d at 137. On the other hand, having a potential claim for physical injuries does nothing to ensure the reliability of [a NIED] claim relating to the emotional injuries resulting from witnessing the death or injury of a third party. Accordingly, there is no good reason to relieve [the mother] of her burden of meeting the Camper requirements.

Id.

Finally in Flax, the mother argued that the severity of her emotional injuries was obvious from the tragic circumstances of her case, and so expert proof of those damages should not be required. The Court rejected this argument as well. It acknowledged that some cases are sympathetic and "may tempt [the Court] to hold that certain circumstances 'obviously' result in severe emotional injuries," but cautioned that it "must also recognize that such a holding would subvert the principles set forth in Camper and would likely lead to the kind of ad hoc decisions that originally made [NIED] case law unpredictable and incoherent." Id. at 530-31. The parties to the instant appeal cited no cases from this Court addressing whether an NIED claim, brought amidst other actions for negligence, is considered a "stand alone" claim for NIED when the plaintiff alleges only emotional injury. Our research has uncovered one such case, Riley v. Whysbrew , 185 S.W.3d 393 (Tenn. Ct. App. 2005). In Riley, the plaintiffs lived next door to tenants who rented a house from the defendant owner. The tenants engaged in disturbing conduct such as illegal drug use, the discharge of firearms, and harassment of the plaintiffs. The plaintiffs sued the defendant homeowner for nuisance, intentional infliction of emotional distress, and NIED, alleging that he permitted the tenants' behavior to continue even after the plaintiffs pleaded with him to either evict the tenants or to make them stop the offending behavior. The trial court granted summary judgment to the homeowner on all of the plaintiffs' claims, and the plaintiffs appealed. On appeal in Riley, the homeowner maintained that the trial court properly granted summary judgment on the plaintiffs' NIED claim because expert proof is required to support an award of damages for such a claim, and the plaintiffs had admitted that they never obtained medical treatment for their claimed emotional distress. In response, the plaintiffs argued that expert proof of damages was not required because their NIED claim was not a "stand alone" claim. The appellate court agreed with the plaintiffs. Because the plaintiffs' NIED claim was related to their claim that the homeowner negligently failed to abate the nuisance caused by the tenants, the appellate court held that the plaintiffs' NIED claim was "not a stand alone claim and the Camper requirement of expert medical or scientific proof is not applicable." Id. at 401 (citing the pre-Camper case of Laxton v. Orkin Exterminating Co., 639 S.W.2d 431, 433 (Tenn. 1982), for the proposition that even pre -Camper, a plaintiff could not recover for mental injury "without accompanying physical injury or physical consequences, or without other independent basis for tort liability"). In addition, we have reviewed the cases cited by the Supreme Court in Estate of Amos in its discussion of whether the plaintiff's claim for NIED was a "stand alone" claim, particularly in light of the fact that "multiple claims for damages" were also asserted in that lawsuit, including wrongful death and medical negligence. Estate of Amos, 62 S.W.3d at 136. The Estate of Amos Court listed examples of other cases in which emotional injuries were alleged as one of several bases for compensatory damages, including Smith v. Gore, 728 S.W.2d 738, 751 -52 (Tenn. 1987) (holding that, in an action for wrongful pregnancy, plaintiffs could recover damages for medical expenses, pain and suffering, loss of wages, and emotional distress or mental anguish); Laxton, 639 S.W.2d at 434 (holding that damages were allowed for mental anguish, personal injury, and property damages resulting from the negligent contamination of plaintiffs' water supply); and Roberson v. Univ. of Tenn., 829 S.W.2d 149, 152 (Tenn. Ct. App. 1992) (noting that damages for gender discrimination included actual damages, damages for emotional distress, attorneys' fees, costs, and punitive damages). The Estate of Amos Court also reaffirmed that requiring expert proof of emotional damages in "all negligence claims resulting in emotional injury would severely limit the number of otherwise compensable claims." Estate of Amos, 62 S.W.3d at 137. After considering this caselaw and carefully reviewing the appellate record in this case, we must conclude that the trial court below mischaracterized the Plaintiffs' negligence claims as "stand alone" NIED claims. While the damages sought for these claims are based on non-physical injuries, this does not necessarily mean that the claims are "stand alone" NIED claims. Initially, we note that, on their face, the Plaintiffs' claims for negligence per se and the claim for violation of the common law are not captioned as "NIED" claims. That fact in and of itself, of course, is not enough. We recognize that a plaintiff need not use the exact words "negligent infliction of emotional distress" for a claim to be considered a NIED claim. See Jones v. Marlow Family Ltd. P'ship, No. E2006-02677-COA-R3-CV, 2007 WL 2142978, at *6 (Tenn. Ct. App. July 27, 2007) (NIED claim is "essentially a claim of negligence which results in emotional distress"). Be we also note that these claims are not generalized allegations of negligence. Rather, the claims state an "independent basis for tort liability" based on alleged violations of a statute and/or an industry regulation, and also the common law right to have custody and/or dispose of a family member's remains as one sees fit. See Estate of Amos, 62 S.W.3d at 137 (citing Laxton, 639 S.W.2d at 433). The fact that the Plaintiffs seek damages for emotional injuries for these claims does not convert them into NIED claims. The claim asserted by the Plaintiffs in Count 3, however, is clearly a NIED claim. Whether the Count 3 NIED claim is a "stand alone" claim is a different issue. In light of our review of the caselaw outlined above, we agree with the Plaintiffs that this is not a "stand alone" claim for NIED. In making this determination, we look to "the kind of conduct, rather than the kind of injury, for which a plaintiff seeks a remedy." Miller, 8 S.W.3d at 614 (emphasis in original). As we have indicated, the Plaintiffs have alleged a variety of negligence claims for which several types of damages are recoverable other than emotional injuries. Specifically, the Plaintiffs' claims for negligence per se, negligent mutilation, violation of the common law, breach of contract, and violation of the TCPA are independent bases for tort liability that are related to the injuries that the Plaintiffs' NIED claim seeks to redress. See Riley, 185 S.W.3d at 401 (NIED damages are related to the damages recoverable in the nuisance claim). In other words, the Plaintiffs' emotional injuries are "a 'parasitic' consequence of negligent conduct that results in multiple types of damages." Estate of Amos, 62 S.W.3d at 136. Therefore, based on the record before us, the Plaintiffs' NIED claim is not a "stand alone" claim, and expert proof is not required to support the damages sought. Thus, we conclude that, at this juncture, the Plaintiffs have not alleged a "stand alone" NIED claim. Consequently, we must conclude that the trial court erred in holding that the Plaintiffs are required to submit expert proof to support their request for damages for emotional injuries, and in granting summary judgment to Alpha on that basis. Moreover, regardless of whether the Plaintiffs will be required to submit expert proof on their claims at trial, the Hannan standard precludes a grant of summary judgment on the Plaintiffs' "various negligence claims" on the basis that the Plaintiffs failed ? at the summary judgment stage ? to present such proof. In the case at bar, the trial court granted summary judgment in favor of Alpha because the Plaintiffs had not yet submitted expert proof of their serious or severe emotional injury. Under Hannan, a party who moves for summary judgment cannot "negate" an element of the nonmoving party's claim simply by noting that the nonmoving party has no evidence to prove the element. Under that circumstance, the moving party has not "disprove[d] an essential factual claim" made by the plaintiff, and therefore has not shifted the burden to the plaintiff. White, 2012 WL 6599814, at *7 (quoting Martin, 271 S.W.3d at 84). In general, as we interpret the holding in Hannan, it will not suffice to simply point out that the nonmoving party has no evidence to support his claim:

Under Hannan, as we perceive the ruling in that case, it is not enough to rely on the nonmoving party's lack of proof even where, as here, the trial court entered a scheduling order and ruled on the summary judgment motion after the deadline for discovery had passed. Under Hannan, we are required to assume that the nonmoving party may still, by the time of trial, somehow come up with evidence to support her claim.

Negligence Per Se for Violation of T.C.A. § 39-17-312(a)(1) (Count 1(c))

The Plaintiffs challenge the trial court's grant of summary judgment in favor of Alpha on their claim that Alpha was negligent per se for violating Section 39-17-312(a)(1)/abuse of a corpse (Count 1(c)). In its grant of summary judgment on this claim in its March 2012 order, the trial court stated only that "there is no evidence to support and Plaintiffs are unable to prove that Defendant Alpha . . . abused the corpse [(Count 1(c))] of" the decedent. The Plaintiffs argue that this was error, because the evidence in the record and all inferences therefrom must be viewed in a light most favorable to them. They contend that, based on the undisputed facts of this case, there is at least a fact question as to whether Alpha is liable on this claim. Section 39-17-312 is a criminal statute that generally prohibits the abuse or mistreatment of a corpse:

(a) A person commits an offense who, without legal privilege, knowingly:

(1) Physically mistreats a corpse in a manner offensive to the sensibilities of an ordinary person;
(2) Disinters a corpse that has been buried or otherwise interred; or
(3) Disposes of a corpse in a manner known to be in violation of law.

(b) A person commits an offense who, without legal authority or privilege, knowingly offers to sell, sells, offers to purchase or purchases previously
buried human skeletal remains. Any remains seized in violation of this subsection (b) shall be confiscated and subject to disposition as provided for in §§ 11-6-104 and 11-6-119.
(c) A violation of this section is a Class E felony.

Mutilation of a Body (Count 2)

The Plaintiffs also challenge the grant of summary judgment as to their claim for the intentional, reckless, or negligent mutilation of a body (Count 2). The trial court granted summary judgment on this claim in the same ruling in which it granted summary judgment on Count 1(c). The order stated only that "there is no evidence to support and Plaintiffs are unable to prove that Defendant Alpha mutilated the body" of the decedent. The Plaintiffs again argue that the trial court erred because the evidence and all inferences therefrom must be viewed in a light most favorable to them, and that, based on the undisputed facts of this case, there is at least a fact question as to whether Alpha is liable on this claim. In Crawford v. J. Avery Bryan Funeral Home, Inc., 253 S.W.3d 149, 157-58 (Tenn. Ct. App. 2007), this Court utilized the description of the tort of "mutilation" set forth in the Restatement:

One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.

Negligent and Intentional Misrepresentation (Counts 8 and 9)

The Plaintiffs next challenge the trial court's grant of summary judgment in favor of Alpha on their claims of negligent and intentional misrepresentation. The stated reason for the trial court's grant of summary judgment on these claims was that the Plaintiffs are "unable to prove that Defendant Alpha provided information meant to guide [the Plaintiffs] in their decision making process and are further unable to prove that they relied upon representations of Defendant Alpha in making their decisions." The Plaintiffs argue that the trial court erred in granting summary judgment on this basis, because credible evidence showed that Mr. Newsome, Alpha's owner and operator, admitted that he altered the cremation authorization by writing the name of Chapel Hill Crematory on it, and some evidence indicated that Mr. Newsome may have forged the Plaintiffs' signatures on the authorization form. Plaintiffs claim that they relied on Alpha to act according to the instructions they gave to Mr. Murphy, but Alpha failed to do so. The Plaintiffs contend: "Alpha's addition of untruthful and unauthorized information to the cremation authorization that was concealed from the Plaintiffs upon which a third-party relied in cremating Ms. Boals' body caused injury to Plaintiffs by denying them the opportunity to conduct a final viewing of their love one's body." Therefore, they argue, the trial court erred in granting summary judgment on these counts. To recover for intentional misrepresentation, a plaintiff must prove:

(1) that the defendant made a representation of a present or past fact; (2) that the representation was false when it was made; (3) that the representation involved a material fact; (4) that the defendant either knew that the representation was false or did not believe it to be true or that the defendant made the representation recklessly without knowing whether it was true or false; (5) that the plaintiff did not know that the representation was false when made and was justified in relying on the truth of the representation; and (6) that the plaintiff sustained damages as a result of the representation.

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Punitive Damages

The Plaintiffs argue that the trial court "erred in granting summary judgment on Plaintiffs' claim for punitive damages against Alpha." In order to address this argument, we must first ascertain the precise ruling on which the Plaintiffs seek review. Neither of the trial court's two orders granting summary judgment in favor of Alpha specifically grant summary judgment in favor of Alpha on any "claim for punitive damages." To be sure, the trial court granted summary judgment on all of the underlying counts alleged in the Plaintiffs' complaint, but the trial court's rulings were all based on the merits of each claim and the Plaintiffs' inability to establish the claim. The appellate record includes an order entered by the trial court on January 15, 2013, after the notice of appeal was filed, in which the trial court granted in part the Murphy Defendants' motion for summary judgment. In that order, the trial court granted summary judgment "for the additional claims for intentional misrepresentation, and fraud, and punitive damages." No such ruling, however, was made in the orders granting summary judgment to Alpha. Furthermore, the Plaintiffs did not link their request for punitive damages to any specific count in their complaint. Rather, they made a broad request for punitive damages in the prayer portion of their complaint based on "the intentional violation[s] and reckless disregard of the statutes alleged above, and the reckless and/or intentional acts and omissions as set forth herein." The Plaintiffs also alleged that punitive damages are warranted based on the defendants' "intentional disregard and/or reckless indifference for the Plaintiffs' right to control the disposition of the human remains of their deceased mother." Given this procedural posture, it is unclear whether the trial court intended to include any request for punitive damages in its grant of summary judgment in favor of Alpha. As we have emphasized, under Hannan, a grant of summary judgment based on insufficient evidence would be improper. It is well settled that, in order to recover punitive damages, the Plaintiffs must show by clear and convincing evidence that Alpha acted intentionally, fraudulently, maliciously, or recklessly. Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992); see also Rogers, 367 S.W.3d at 211 n.14 (noting that an award of punitive damages is limited to "the most egregious cases" and is proper only where there is clear and convincing proof that the defendant has acted either "intentionally, fraudulently, maliciously, or recklessly" under Hodges). Because we have reversed the grant of summary judgment on several of the Plaintiffs' claims, we merely clarify that the Plaintiffs are not precluded on remand from seeking punitive damages on any of the claims that are otherwise viable and that involve the type of conduct that would support an award of punitive damages.

Serious and Severe Emotional Injuries

Alpha argues on appeal that, even aside from all of the other arguments, summary judgment should have been granted on all of the Plaintiffs' claims because they cannot show that their emotional injuries were sufficiently serious or severe to support their claim for damages. In the trial court's January 15, 2013 order, entered after the notice of appeal was filed, the trial court held that, as to the Murphy Defendants, "the undisputed material facts demonstrate that Plaintiffs did not suffer a serious or severe mental or emotional injury." It then granted partial summary judgment to the Murphy Defendants on that basis. The trial court did not, however, make the same ruling as to Alpha in the orders involved in this appeal. Therefore, we decline to address it.

Inconsistent Rulings

The trial court granted summary judgment to Alpha on all of the Plaintiffs' claims, but it denied summary judgment to the Murphy Defendants on some of the claims. In this appeal, the Plaintiffs argue that the trial court erred in making inconsistent rulings with respect to Alpha and the Murphy Defendants, because Alpha was simply acting as an agent for the Murphy Defendants. They argue that "both the agent and his principal are liable for the wrongful act of the former when committed within the scope of the agent's authority, or ratified by the principal if the act is not within the scope of such authority." See Allied Sound, Inc. v. Neeley, 909 S.W.2d 815, 821 (Tenn. Ct. App. 1995). In essence, the Plaintiffs seek a ruling from this Court that Alpha is the agent of the Murphy Defendants, and that Alpha is, therefore, vicariously liable for any wrongdoing of the Murphy Defendants. As noted by Alpha in its appellate brief, the issue of vicarious liability was not raised in the Plaintiffs' initial or amended complaint. The record on appeal indicates that the issue of vicarious liability was first raised in the Plaintiffs' opposition to Alpha's motion for summary judgment. Therefore, it is questionable whether this issue is even properly before this Court. In addition, the trial court did not address the Plaintiffs' argument regarding vicarious liability in either of its orders granting summary judgment to Alpha. We have reversed several of the trial court's rulings on summary judgment. At this juncture, we decline to address whether the trial court's rulings were inconsistent, or whether Alpha is vicariously liable for the conduct of the Murphy Defendants for the purpose of determining whether the trial court's orders were, in fact, inconsistent. All arguments raised by the parties that were not specifically addressed herein are either rejected or are pretermitted by our decision.

CONCLUSION

The decision of the trial court is affirmed in part and reversed in part as set forth above, and remanded for further proceedings consistent with this opinion. Costs on appeal are to be taxed equally, one-half to Appellants Carey B. Boals, Jr., and Kim Hickerson and their surety, and one-half to Appellee Alpha Mortuary Service, LLC.

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HOLLY M. KIRBY, JUDGE