PHIPPS, Presiding Judge.
This is an appeal from an order permanently enjoining the enforcement of a rule established by a private cemetery owner to prohibit the use of concrete vaults in its cemeteries. For the reasons that follow, we affirm.
In 2008, the Savannah Cemetery Group, Inc., which owned five private cemeteries in the Savannah, Chatham County area (the "cemetery group") established a rule prohibiting the use of concrete burial vaults in its cemeteries, requiring instead steel or polymer vaults. The cemetery group notified local funeral homes of the rule.
Several businesses in the Savannah, Chatham County area, namely a concrete burial vault manufacturer, a concrete burial vault distributor and six funeral homes (collectively, the "vault/funeral group") filed an action to enjoin the cemetery group from implementing the rule, alleging that the rule violated the Georgia Cemetery and Funeral Services Act of 2000
1. The cemetery group contends that the trial court erred in finding that its rule banning concrete vaults in its cemeteries was unreasonable and prohibited by the Cemetery Act. We disagree.
We apply a de novo standard of review to any questions of law decided by the trial court; factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to
OCGA § 10-14-16(b) provides, in relevant part, that "[t]he owner of every cemetery shall have the ... right to establish reasonable rules and regulations regarding the type, material, design, composition, finish, and specifications of any and all merchandise to be used or installed in the cemetery." OCGA § 10-14-16(a) provides that no such cemetery shall have the power to adopt any rule or regulation in conflict with any of the provisions of the Cemetery Act or in the derogation of the contract rights of lot owners or owners of burial rights. OCGA § 10-14-2(b) provides that "every competent adult has the right to control the decisions relating to his or her own funeral arrangements."
Pursuant to the Cemetery Act, a cemetery owner has the right to establish reasonable rules regarding the type of material and composition of merchandise to be used or installed in the cemetery.
"[I]n construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry."
The Cemetery Act is intended to protect consumers and the public interest. For instance, the Cemetery Act provides that it is necessary, in the interest of the public welfare, to regulate preneed dealers
The evidence presented during the bench trial included the following. The cemetery group owned and operated five cemeteries in Chatham County; Lawrence Nikola, Jr., who owned the cemetery group cemeteries, "guess[ed]" that the cemetery group properties comprised all the private cemeteries in Chatham County, though there was also evidence suggesting that there were other cemeteries in the area; approximately 50 percent of the burials conducted by the three local funeral home operators who testified occurred in the cemetery group's cemeteries; concrete vault sales accounted for approximately 95-99 percent of the vault sales in the area-families were "accustomed to [concrete] and they have faith in it and they believe in it," and even when other types of vaults were offered, concrete vaults were the most popular; the cost of installed concrete vaults was less than the cost of installed polymer or steel vaults; concrete vaults were more suitable than polymer or steel vaults given the soil composition in the area; concrete vault sales were predominantly made by the DePue-Wilbert Vault Company and Harry Reita; the funeral home appellees were parties to hundreds of outstanding preneed contracts in which individuals with burial rights in the cemetery group cemeteries had selected and purchased concrete vaults for interment therein; and enforcement of the rule would disrupt or destroy business relationships between the funeral home appellees and the vault distributor appellees, disrupt or damage goodwill, trust and the relationships between the funeral home appellees and their clients by forcing clients to buy vaults the funeral home appellees had previously represented as inferior, and place the funeral home appellees in breach of preneed contracts wherein their clients had already selected and paid for concrete vaults. There was also evidence that Nikola, the cemetery group's owner, was the exclusive retailer in Chatham County of steel and polymer burial vaults; that Nikola had stated that he intended to put Charles DePue (of DePue-Wilbert Vault Company) out of business; that damage Nikola claimed was being caused to the cemetery grounds by the transport of heavy concrete vaults could be prevented through the placement of plywood planks; and that Nikola had acted in bad faith.
The trial court's findings of fact, which included some though not all of this evidence, were supported by the record and were not clearly erroneous. In light of the legislative intent underlying OCGA § 10-14-16(b), the trial court did not err in finding the rule banning concrete vaults in the cemetery group cemeteries unreasonable.
Citing Cobb County-Kennestone Hosp. Auth. v. Prince
2. The cemetery group contends that the court erred in granting the permanent injunction because there was no evidence to support the judgment. We disagree.
Entry of a permanent injunction is appropriate only in clear and urgent cases where there is a vital necessity to prevent a party from being damaged and left without an adequate remedy at law.
The trial court did not manifestly abuse its discretion by entering a permanent injunction against the cemetery group.
3. The cemetery group contends that the court abused its discretion in allowing a witness for the vault/funeral group to testify as an expert on steel and polymer vaults or soil
The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court and, consequently, the trial court's ruling thereon cannot be reversed absent an abuse of discretion.
David Brugger testified that he had a degree in electrical engineering, that in college he had studied the composition, strength and durability of various materials, including metals and plastics, and that he was subsequently employed as a design engineer where he designed boiler systems and materials used for underground steel pipe systems and evaluated the life span of steel pipe in corrosive soil environments. He later owned and operated a vault company which manufactured concrete vaults. Brugger was also a funeral director and a cemetery owner; he had participated in disinterments of approximately 600 vaults, including vaults made of both steel and concrete. Brugger served as a plant certification officer for a burial vault association, which involved scientific testing to analyze the strength and quality of concrete burial vaults. The court permitted Brugger to testify as an expert.
Brugger opined that steel burial vaults were not suitable for interment in Chatham County due to the presence of corrosive elements in the soil, and that steel burial vaults would corrode and collapse under loads imposed by the earth and cemetery backhoes. Brugger also testified that steel and plastic vaults were not suitable for use in Chatham County due to the area's low elevation and high water table, and that he had concerns about the buoyancy of those vaults. Brugger added that concrete becomes stronger over time and can withstand the loads imposed by the earth and cemetery equipment.
OCGA § 24-9-67.1(b) provides:
The cemetery group contends that Brugger's opinion testimony was not the product of reliable principles and methods as required by the second part of the statute, but was "mere subjective belief or unsupported speculation."
Contrary to the cemetery group's argument, Brugger's testimony regarding soil conditions, the water table in the cemeteries, and the qualities of steel and polymer vaults was not based upon "mere subjective belief or unsupported speculation." The appropriate standard for assessing the admissibility of the opinion of the expert is not whether it is speculative or conjectural to some degree, but whether it is wholly so;
4. The cemetery group contends that it was entitled to a new trial because it was "misled by the trial court's statement... that the issue was not whether concrete is better than either steel or polymer," and the court later based its ruling in part on a finding that concrete was a "much better choice." The cemetery group asserts that it relied on the trial court's statement that the issue of the relative merits of the materials was not relevant, and that had it been given "fair warning" that the court had changed its mind, it would have offered evidence on the issue. Specifically, it asserts that it was prepared to offer the testimony of two witnesses as to the qualities of steel and polymer burial vaults.
We are not convinced that the trial court misled the cemetery group as to whether such evidence would be considered. The court had stated early in the trial that the qualities of the various vault materials "may have to do with reasonableness," that the court was not yet sure what evidence would be relevant, and that it was trying to "take in all the evidence" and then "sift through it." And, the court indicated that evidence of the suitability of the various vault materials would be admitted when it permitted Brugger,
Moreover, the cemetery group did not attempt to introduce the purported expert testimony and neither sought nor obtained a ruling on its admissibility. This court has the authority to review rulings of the trial court, and given the cemetery group's failure to secure a ruling on the admissibility of the testimony, we find no grounds for reversal.
5. The cemetery group contends that the court contradicted itself in granting a permanent injunction in the original order and then stating in the order denying the motion for new trial that the vault/funeral group had standing to bring actions for tortious interference with contract. The cemetery group asserts that if the vault/funeral group had an adequate remedy at law, then no injunction should have been granted. We disagree.
In this case, the tortious interference with business and contractual relations claims formed only part of the basis for the petition for injunctive relief. In fact, the trial court granted the injunction based upon a different ground—that the rule was unreasonable and prohibited by the Cemetery Act. There was evidence that there was no adequate remedy at law in that, among other things, the ban on concrete vaults would effectively deny consumers the freedom to make decisions about burial vault materials, particularly when many consumers had already made those decisions by contract or had traditionally made them in a manner inconsistent with the new cemetery rule banning concrete vaults. That the court has stated, in dicta, that the plaintiffs may also have had standing to assert one or more other claims does not mean that the court was not authorized to prevent irreparable injury based on another ground. The remedy at law must be plain and adequate, or, in other words, as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity.
6. The cemetery group contends that the injunction is overly broad in that it purports to enjoin any possible future bans on concrete vaults by the cemetery group. In its order, the court stated: "Defendants are permanently enjoined from implementing a concrete vault ban, in any form, in any [of] their five private cemeteries in Savannah, Chatham County, Georgia." The injunction is limited to the permanent banning of concrete vaults in the cemetery group's cemeteries. The cemetery group has offered no suggested terminology which would cure the alleged broadness.
Judgment affirmed.
MILLER, C.J., and JOHNSON, J., concur.