The 'ship has sailed' attorneys say in response to Sunset Mesa body-broker defendants' push to stay suit in which default judgment was already granted

People affected by the Sunset Mesa Funeral Directors body-brokering case tie ribbons onto a memorial tree at Delta's Confluence Park during a ceremony in 2019. (Montrose Daily Press/file photo)

The defendants in ongoing lawsuits over the handling of deceased people’s remains emphatically denied the existence of a trust in a minor’s name, as part of their renewed motions to stay proceedings in one of the cases.

Attorneys in the case, captioned Artrup et. al. — one of several civil suits filed against Sunset Mesa Funeral Foundation — said the named defendants were too late to seek a stay or dismissal in the largely settled suit. A judgment of default was issued in April.

Further, the defendants failed to follow applicable rules for notifying opposing counsel, the Nov. 19 response to the defendants’ Nov. 5 motions says.

Artrup, et. al., is based on allegations the now-defunct Sunset Mesa Funeral Home and Crematory harvested and sold people’s remains without consent of next of kin and, in some cases, passed off other substances as cremains. Artrup names as defendants Megan Hess, Sunset Mesa’s principal operator, her mother, Shirley Koch and father, Alan Koch, as well as the trust.

In a separate criminal matter, Hess and Shirley Koch are set for trial on federal charges of mail fraud involving more than 30 bodies and other charges of shipping diseased body parts. They deny the allegations. Alan Koch was not charged. The case is set for trial next year.

Hess in November filed identical motions for stay for all defendants. These say the Atrup plaintiffs’ attorneys are off-base in naming a trust purportedly held in a child’s name.

“As stated numerous times, the (child’s) trust does not exist. This is an entity the plaintiff dreamt up and there is no record of any trust,” the motions state.

The motions go on to accuse the plaintiffs of defaming a child’s name.

“Numerous times the plaintiff and this court have been notified that there is no trust. There is no trust associated with Megan Hess, (child), Alan and Shirley Koch, Sunset Mesa Funeral Directors or any other entity associated with the aforementioned defendants.”

The Artrup complaint names the trust, and also an “unknown trust” or John Doe. In April, the plaintiffs were awarded significant damages, collectively totaling millions. However, one plaintiff died during the pendency of the case and the court directed attorneys from the firm Killian and Davis to substitute her estate’s personal representatives for her, as well as to file calculations for interest and attorneys’ fees.

It was not until two weeks after the judgment was issued that the defendants first sought a stay, which was denied, the firm’s Nov. 19 response to the current motion for stay notes.

At the time of the April judgment, the law firm was given 43 days to replace the “unknown trust” with the name of the actual trust. In August, the attorneys sought a continuance and, after the court’s request for a status update, in October filed a motion for more time. This was granted, giving the plaintiffs until May 25, 2022 to provide the information.

According to the October filing, when subpoenaed for financial records, Hess responded that she could not provide them, because they were seized by the FBI.

(The agency raided Sunset Mesa’s former building in February of 2018.)

Hess also declined to answer certain financial questions, asserting her Fifth Amendment rights.

Killian and Davis learned of a law firm that might have helped prepare the alleged trust, but that firm asserted attorney-client privilege. Attempting to depose Hess prior to the conclusion of her federal case would be “futile,” Keith Killian wrote in the October motion, because she doesn’t have the records she would need to refresh her recollection.

Killian also said the plaintiffs’ Freedom of Information Act request for the criminal file pertaining to evidence in the funeral home case has been denied.

The Nov. 5 defendants’ motions reiterate that Hess does not have the records sought because they were seized and are part of the ongoing federal case.

Because Hess is not employed, she has no tax records to furnish and “bank accounts were closed in January of 2019 due to discrimination by the bank at their request,” the motions say.

The child named in the trust plaintiffs allege exists does not file taxes and does not have a bank account.

“I repeat,” Hess wrote, “there is no trust.”

The Kochs are retired, were not owners of Sunset Mesa Funeral Directors and “not privy” to business records or assets. Instead, the couple is being sued purely because of their association with Hess, she wrote.

“This is reckless and let’s not forget that plaintiffs were attorneys for the Koch family during the time the initial lawsuit was filed,” Hess said.

Killian in the response said that is “not factual.” Killian represented a Koch family member who is not party to the current civil case; that case was finalized before the Artrup complaint was filed.

Hess’ motions also say the plaintiffs are basing the case off media reports, despite knowing she and the Kochs have no assets.

“This case is based on media frenzy and exposé. The articles written … are specifically intended to mislead readers thereby producing inaccurate and wrongful conclusions meant to cause intentional, perpetual reputational harm,” the motions state.

“ … If the defendants are accused of such heinous acts, then it is only fair they can defend themselves fully when the time is appropriate. It is impossible to provide information that is not accessible.”

Per the Nov. 19 response, Killian and Davis learned of the Nov. 5 filing only after conducting a routine check of court records — there had been no conferral with opposing counsel, as legal rules require and, despite the motions stating a copy was mailed, no proper service.

Killian argues the motions should be denied as legally deficient under those and other procedural rules, plus they should be denied as untimely because the judgment has been entered.

Further, to the extent a dismissal is sought, earlier attempts to dismiss were denied, so the court should accordingly deny a new push to cancel out the case, he said.

The Nov. 5 stay motions appear to seek to to allow Hess and the Kochs to defend against the liability after the federal criminal case against Hess and Shirley Koch is concluded, Killian said. “But that ship has sailed. That ship has sailed with the entry of default, which was prior to the indictment.”

The defendants’ “lack of diligence” is not a good reason to scrap the judgment and start over, the attorney also wrote. Neither the court’s nor the public’s interest would be served by a stay, he also argued.

To the extent a delay on having the pay the judgment is sought, the defendants need to post a bond, the motion further states.

Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.

Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.

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