Hamlin v. Wilderville Cemetery Association
Case #: A147517
Ortega, P.J. for the Court; Sercombe, J.; Hadlock, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A147517.pdf
Civil Procedure: Summary judgment is appropriate if there is no genuine issue of material fact for trial and the moving party is entitled to prevail as a matter of law. There is no genuine issue of material fact if, based on the summary judgment record no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.
Plaintiff appeals dismissal of her case, which alleged that Defendant cemetery buried her deceased husband outside the boundaries of her burial plot. Plaintiff thought she purchased 12 gravesites, which is what a normal plot is. However, Defendant advised that they only had 9 gravesites with a walkway running adjacent. Plaintiff wanted her husband buried in the location that was in the walkway, but Defendant refused. Months after the funeral, Plaintiff viewed the cemetery map and saw that there was no walkway. Defendant’s president asked Plaintiff if they could “gift” her a plot after he rejected her other requests to move her husband. After rejecting all of her requests, she finally said to gift it to a relative. The trial court allowed summary judgment because there was an accord and satisfaction of the dispute. Also, the trial court ruled that Defendant was acting lawfully under ORS 97.710, allowing a cemetery to set its own rules and regulations. The reviewing court held that there was still a genuine issue of material fact regarding the gift as a resolution. Furthermore, dismissal was improper under ORS 97.710 because there was a factual issue as to the parameters of the plot. Reversed and remanded.