Defendant’s Failure to Advance Multiple and Alternative Grounds at Motion to Dismiss Stage Circumscribes Alabama Supreme Court’s Review

In Gilmer v. Crestview Memorial Funeral Home, Inc., released on June 30, 2009, the court’s review was restricted to only the grounds on which the defendants had moved to dismiss the plaintiff’s claims: that violation of section 34-13-112 of the Alabama Code did not create a private right of action. Because the plaintiff did not argue that no such private right of action existed, the only question on appeal was whether her claims were based solely on that provision. They were not and the trial court’s grant of summary judgment in the defendant’s favor was reversed with no requirement that the plaintiff put forth substantial evidence in support of her claims.  

The plaintiff in Gilmer alleged a number of acts against the funeral home that embalmed, buried, and orchestrated the funeral arrangements for her husband. Primary among these was the failure to use a licensed embalmer when preparing her husband’s body for burial, in violation of Ala. Code 34-13-12. In the motion to dismiss, the defendants argued that section 34-13-112 did not create a private right of action and that a violation of it did not constitute negligence per se. In opposition, the plaintiff did not argue the contrary, but argued that the claims asserted in her complaint constituted valid common law causes of action that were not based solely on section 34-13-12; her references to section 34-13-112 in her complaint were only to help establish some of the elements of her common-law claims.

The Court held that the narrow grounds of the defendant’s motion for summary judgment precluded it from reviewing (as it normally would at the summary judgment stage) whether or not the plaintiff had presented substantial evidence of every element of each of her claims. Because the defendant’s motion was based only on the argument that the plaintiff had no private right of action under section 34-13-112, no other response from the plaintiff was required and no other burden need be satisfied.

On appeal, the plaintiff conceded that section 34-13-112 did not provide a private right of action and argued that her claims were not based thereon. The court agreed that her claims did not arise solely under section 34-13-112. Having determined that, the order granting summary judgment was due to be reversed as the defendant failed to challenge whether the plaintiff had put forth substantial evidence of her common law claims in the event those claims were not based solely on section 34-13-112.