FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE,
JUDGE ACTION NO. 17-CI-00417
FOR APPELLANT: J. Bissell Roberts Louisville, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky John
Ghaelian Benjamin Long Assistant Attorneys General Frankfort,
BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND NICKELL, JUDGES.
CLAYTON, CHIEF JUDGE.
Management-Kentucky, LLC ("Saber") appeals from the
Franklin Circuit Court's order granting summary judgment
in favor of the Commonwealth of Kentucky on the parties'
Joint Petition for Declaration of Rights and Agreed Case (the
"Petition") concerning the sale of preneed,
i.e., prior to death, burial vaults in Kentucky.
close review of the record and applicable statutory language,
owns sixteen cemeteries throughout Kentucky. Saber's
rules and regulations require the use of burial vaults
whenever a grave space is used in one of their cemeteries.
Concrete or steel burial vaults enclose a casket and support
the soil above and around the casket to prevent sinking or
collapse and make it less difficult to maintain the
appearance of the cemetery. The weight of the earth and other
cemetery equipment used to dig graves would otherwise cause
occupied gravesites to collapse if a burial vault was not in
place. Saber's preneed sales of burial vaults are made
pursuant to a written contract, and the purchaser of the
vault either pays the entire purchase price immediately or in
installments over a period of time.
April 17, 2017, the Attorney General, as the duly elected
officer responsible for enforcing and administering the
consumer protection laws set out in Kentucky Revised Statutes
(KRS) Chapter 367, and Saber submitted the Petition to the
Franklin Circuit Court. The primary issue involved whether
the preneed sale of burial vaults constituted "preneed
burial contracts" as defined by KRS 367.932(3), which
would require the cemetery to put all of the proceeds of the
sale into a trust until the individual has died and the
services and merchandise have been provided under KRS
367.934, or whether the sales constituted a "preneed
cemetery merchandise contract," which would require only
40% of the proceeds of the sale to be put into a trust or
covered by a bond under KRS 367.954.
parties filed cross-motions for summary judgment, and the
trial court ruled in favor of the Commonwealth, holding that
"the statutory construction only reasonably lends itself
to the determination that burial vaults are Preneed Burial
Contract goods and could not be Cemetery Merchandise."
In reaching its conclusion, the court determined that, with
"KRS 367.932(3), the General Assembly defined a Preneed
Burial Contract as a contract governing 'personal
property, merchandise, or services of any nature in
connection with the final disposition of a dead human body,
for future use at a time determinable by death of the person
whose body is to be disposed of[.]" The trial court
explained that "[b]urial vaults are containers into
which a casket or urn with human remains is placed. The only
purpose for the vaults is to seal the vessel which holds the
human remains." After considering the definition of
preneed burial contracts and the nature of burial vaults, the
trial court held that "burial vaults can only be found
to directly relate to the final disposition of a dead human
body, which Preneed Burial Contracts control."
response to the circuit court's ruling, Saber filed a
motion to alter, amend, or vacate pursuant to Kentucky Rules
of Civil Procedure (CR) 59.05 and a motion to amend pursuant
to CR 52.02. After briefing and oral argument, the trial
court reaffirmed its prior ruling in favor of the
Commonwealth. Saber then filed a motion asking the circuit
court to rule on Saber's CR 52.02 motion to amend, which
the court denied on June 25, 2018, for the reasons set forth
in its other two opinions. This appeal followed.
preliminary matter, this case involves a question of
statutory construction, which presents a "question of
law[.]" Harrison v. Park Hills Bd. of
Adjustment, 330 S.W.3d 89, 94 (Ky. App. 2011) (citations
omitted). "The standard of review for questions of law
is de novo." Hamilton-Smith v. ...