CLARK COUNTY — Secret meetings, altered documents, and hidden cameras are among the allegations made against a Clark County cemetery sued by the family of a boy who died after a cancer battle to have a headstone placed at his grave, according to court documents obtained by News Center 7.
>>PREVIOUS REPORT: Family: Cemetery trustees dispute approval for headstone of Clark Co. boy who died of cancer
Barrett Fitzsimmons died in 2019 at 9-years-old following a three-year battle with cancer. News Center 7 spoke with his family in December when they accused Myers Cemetery, where Barrett is buried, of refusing to allow a headstone designed by the family to be placed at his grave.
>> PHOTOS: Headstone design center of ‘impasse’ between family of Barrett Fitzsimmons and cemetery
Nathan Stuckey, the attorney representing the family said in December a lawsuit was expected to come from this disagreement between the cemetery and family. This week that lawsuit was filed in Clark County Common Pleas Court accusing the cemetery and some cemetery board members of breach of contract, fraud, civil conspiracy, violations of the Consumer Sales Practices Act, unjust enrichment, and emotional distress, according to the lawsuit.
“It’s discouraging that it has come to this but this family deserves better,” Stuckey said in a statement to News Center 7′s John Bedell.
The lawsuit seeks a judgement in excess of $25,000 paid to the family as well as an injunction for the family to install the gravestone.
The lawsuit was filed in Clark County court Tuesday but the cemetery and board members listed in the lawsuit have not been officially served the lawsuit. When they are served they will have 28 days to respond with their own filing in court.
News Center 7 has reached out several times and left messages with the law firm representing the cemetery association for comment on the lawsuit and allegations made but have not received a response.
The lawsuit outlines details contained in previous News Center 7 reporting including payment for a concrete foundation, refusal of the cemetery to pour it, approving a headstone design during a yearly board meeting only to be told the measure didn’t pass, and storage fees the family is now facing while the completed headstone remains in storage.
The lawsuit states the Fitzsimmons family has paid the cemetery in-full for the pavement of the concrete foundation and has also fully paid the maker of the headstone where it remains in storage.
After submitting a headstone design for approval by the cemetery board in April 2021 Barrett’s parents Brad and Lana were notified the memorial was not approved. In the months since, the lawsuit outlines the back-and-forth the Fitzsimmons family said happened in the effort to get the headstone installed.
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“While Brad and Lana had complied with all policies and procedures of Myers Cemetery Association, they were told by Defendants that the memorial design was ‘distasteful’ and did not conform to the standards and beliefs set forth by the German Baptist Church,” the lawsuit alleges.
“There has never been any written rule, policy, or bylaw of Myers Cemetery that would prohibit the memorial designed by (the Fitzsimmons family).”
The lawsuit outlines the family seeking approval during the cemetery board’s yearly meeting in June 2021, where the motion was approved by a count of 17-4. However in October, the family was told the memorial was not approved and the vote taken during the meeting was “not valid.”
Minutes provided by the cemetery board after the October announcement revealed “discrepancies” from what the family said happen during the meeting, notably that the vote supposedly was 14-4, not 17-4 as the Fitzsimmons claimed happened during the meeting. “Secondly, no one had ever announced or claimed at the meeting that the vote was not approved,” the lawsuit states.
In the days since the News Center 7 report on the issue between the family and cemetery, the lawsuit alleges several changes and secret meetings by board members in the aftermath of the report.
First, a sign posted at the back of the cemetery that contains “Rules & Regulations” had been altered since the report, including additions to the sign with a label maker, the lawsuit alleges.
“Defendants added ‘Established in 2016′ to the top of the sign and then added ‘And adornments, max of 3 per headstone’ to paragraph 7.”
Paragraph 7 of the “Rules and Regulations” stated “Monuments must be discussed and approved by trustees prior to ordering. Size & height requirements,” according to copies provided as exhibits in the lawsuit.
In the days after the report, lawyers also accused the cemetery association of conducting secret meetings with members to alter the cemetery rules and alter documents.
“As a result of these private meetings, Defendants have or have attempted to, retroactively change the minutes of the annual meeting...to support Defendants’ cause and/or desired outcome,” the lawsuit alleges.
“As a result of these private meetings, Defendants have improperly made, or have attempted to make, changes to the rules/regulations/bylaws of Myers Cemetery Association in an attempt to retroactively support the Defendants’ cause and/or desired outcome against the plaintiffs.”
According to the lawsuit, the family had been promised the concrete foundation would be poured by the cemetery, however cemetery officials said the delay was first due to a list of other foundations to pour, then later postponed because of the dispute over the headstone approval.
The lawsuit accuses the cemetery of completing other projects around the facility, including the installation of hidden cameras pointed at Barrett’s grave.
“While the defendants claim they have not had the time to pour the concrete foundations, Defendants have found time to install a chain link fence around the cemetery, a chain link barrier across the front entrance of the cemetery and hidden cameras pointed at the (Fitzsimmons’) burial site which is the subject of this lawsuit. All have been conveniently completed since the approval of the (Fitzsimmons’) memorial at the annual meeting,” the lawsuit states.