Appeals court lets cemetery take to arbitration legal battle over alleged fraud in sale of grave plots

By Charmaine Little | Oct 27, 2017

CHICAGO — A state appeals court has gratned a local cemetery a won in an ongoing battle that accused the cemetery of defrauding a familt that had purchased grave plots, sending the matter to arbitration.

Illinois First District Appellate Justice Maureen E. Connors issued the court's decision, and justices Sheldon A. Harris and Mary L. Mikva concurred. The decision reversed that of a Cook County judge.

Connors wrote in the decision that the lower court was incorrect when it decided that plaintiffs Alyssa and Joey Mogul, who are co-executors of the estate of the late Honor B. Mogul, did not have to take to arbitration their claim against defendant Memorial Park Cemetery. While the trial court decided the “arbitration clause was broad and it was unclear whether the subject matter of the dispute fell within the scope of the arbitration clause,” the appellate court reversed and remanded the case.

The relationship between the Moguls and the cemetery began when Honor Mogul purportedly bought eight family burial plots in Memorial Park in a section of the cemetery called Gan M’Nucha that is set aside for those of Jewish descent.

“By signing this agreement, [the] purchaser is agreeing that any claim [the] purchaser may have against the seller shall be resolved by arbitration and [the] purchaser is giving up his/her right to a court or jury trial as well as his/her right of appeal" according to the contract, which was cited in the decision. 

Things went awry when Honor Mogul died on June 5, 2013. The next day, Joey and Alyssa Mogul went to the cemetery to make arrangements. They were told the plots Honor Mogul had previously purchased were not available and gave them the option of another plot, which the plaintiffs intiially declined as it was outside of the Gan M’Nucha area. It also was not compatible with the headstone that Honor Mogul had previously selected. 

Alyssa and Joey Mogul claimed the plot the cemetery offered was of “inferior quality and condition,” compared to what Honor Mogul purchased, noting the cemetery's offer didn’t have the option for family members to be laid to rest nearby. Despite their hesitancies, Alyssa and Joey Mogul had their mother buried in the suggested area because their Jewish faith required them to do it sooner rather than later.

Alyssa and Joey Mogul filed a lawsuit against the cemetery on May 8, 2015, claiming “breach of contract, fraud in the inducement and intentional infliction of emotional distress.” The circuit court dismissed the lawsuit without prejudice and ordered arbitration the following November.

The plaintiffs appealed under the Consumer Fraud Act. The cemetery requested the case be dismissed and the court granted it on April 13, 2016, again ordering arbitration. Joey and Alyssa Mogul then filed their third complaint, citing “intentional emotional distress and negligent infliction of emotional distress.” The defendants were granted their motion to dismiss the third appeal that August. However, the court removed its order from April 13, and the plaintiffs were allowed to re-plead under the Consumer Fraud Act and emotional distress complaints.

The plaintiffs filed their fourth amendment, which is the subject of this particular appeal.

The defendants responded by again moving to either dismiss or compel arbitration. The court granted in part and denied in part the motion. It tossed out the Moguls' petition under emotional distress, but also denied the cemetery’s request to dismiss the consumer fraud claim.

Still, the court failed to mention whether the plaintiffs’ Consumer Fraud Act claim should be considered under the arbitration clause. The defendants filed a motion on March 8 for the court to clarify. The court granted the cemetery’s motion for reconsideration and dismissed the plaintiffs’ Consumer Fraud Act argument. The plaintiffs fought that with another filing that claimed the Consumer Fraud Act should not be subject to arbitration. They were granted reconsideration and the defendants appealed on June 30.

The appellate judges, however, overturned the trial court’s decision that allowed reconsideration of the plaintiffs' argument.

The appellate judges decided that an arbitrator should be the one to decide in the dispute.

The judges also disagreed with the trial court that the arbitration clause was intentionally broad because it states, “any claim” to cover the scope of all claims that could arise.

When it came to whether the Consumer Fraud Act claim should also be considered under arbitration, the appellate judges pointed out that the plaintiffs did not submit any evidence of fraud.

The appellate ruling was issued as an unpublished order under Supreme Court Rule 23, which limit its use as precedent.

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Illinois First District Appellate Court Memorial Park Cemetery

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