Sunset Mesa Funeral Home Foundation should be ordered to pay about $3 million in damages to the survivors of Gerald “Cactus” Hollenback, his widow and stepdaughter’s motion for default judgment says.
Shirley Hollenback and Diana McBride are suing the Sunset Mesa entity and its owner, Megan Hess, for fraud, outrageous conduct, breach of contract and violation of the Colorado Consumer Protection Act. The foundation did business in Montrose as Sunset Mesa Funeral Home and Donor Services Inc.
The Hollenback and McBride suit alleges Hess returned incorrect cremains to Shirley — these contained remnants of items Cactus was not wearing when his body was taken to Sunset Mesa Funeral Home for cremation in 2017.
The suit further alleges Cactus’ body was used for “unauthorized purposes,” pertaining to a body-trade “scheme” and that the incorrect ashes were substituted as a cover.
Hess in a failed filing to dismiss the claim denied the allegations as “hysterics” based on sensationalism.
The Hollenback action was filed just weeks after the FBI raided Hess’ now-closed funeral home and associated Donor Services, Inc.
In the months since first filing suit, Hollenback and McBride were granted a clerk’s entry of default — a procedural notation that the foundation entity had not filed responsive documents or taken similar action within a designated timeframe.
The plaintiffs’ attorney Aaron Acker on June 21 followed up with a motion for default judgment and requested a hearing to determine damages. The filing states that because an entry of default was noted on a Consumer Protection Act claim, the women are entitled to triple damages.
They also suffered “severe emotional distress” and other non-economic damages because of what happened, and are prepared to testify that these damages exceed the statutory cap of $468,010.
“I have suffered severe emotional distress, unpleasant memories and mental reactions, nervous shock, horror, grief, humiliation, embarrassment, anger, disappointment and worry, both as a result of the defendants’ outrageous and egregious conduct and my particular susceptibility in the wake of the death of (Cactus),” both women wrote in brief affidavits filed with the motion for default judgment.
Each of the plaintiffs is seeking $468,010 for severe emotional and physical distress and an additional $996,020, each, on the trebled Colorado Consumer Protection Act claim.
Acker also said in the motion they should receive pre-judgment interest from the date they filed suit and from the date the defendants allegedly breached their contract.
Hollenback and McBride are further seeking about $6,000 in costs, and Hollenback wants reimbursed $728 for a cremation she alleges did not occur.
Although it is their position they are the prevailing party and thus, entitled to attorneys’ fees, they are not seeking those at this time.
The court had not as of Tuesday set a time by which the Sunset Mesa defendants should respond, or set a hearing on the matter.
Hollenback and McBride’s suit was the first to be filed after a Reuters report was published, linking Sunset Mesa to “body brokering.”
In February of last year, the FBI served warrants at Sunset Mesa Funeral Home and Donor Services Inc., but has not disclosed to the press the nature of the investigation and charges have not been filed.
The Colorado Department of Regulatory Agencies initially suspended Hess’ licenses, finding “multiple, willful” violations of the Mortuary Science Code. In its findings, the state referred to the Hollenback family having received incorrect cremains; the state also said others received back concrete mix, not ashes.
Later that year, Hess permanently surrendered her mortuary and crematory registrations, but did not admit the state’s allegations.
State legislators in 2018 passed a law that largely precludes the owner of a mortuary from also owning a “non-transplant tissue” procurement business like Donor Services.
Others, citing communication they received from the FBI, have stepped forward with allegations their loved ones’ bodies were dismembered and sold through Sunset Mesa/Donor Services without knowledge or consent of survivors.
Such allegations form the basis for other civil suits filed against Sunset Mesa, Hess, and additional defendants.
Hollenback and McBride had considered joining one of those cases, the multi-party Espinoza et. al, but decided their claims “should not be impeded” by that “slow-moving” matter and so, opted not to become a party to it.
Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.