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Gakin v. City of Rapid City6/1/2005
hip, the property, interest or authority of the other is placed in the charge of the fiduciary." High Plains Genetics Research, Inc. v. J K Mill-Iron Ranch, 535 NW2d 839, 842 (SD 1995) (citing Nelson v. WEB Water Development Ass'n, Inc., 507 NW2d 691, 698 (SD 1993)). Certainly, once a decedent's remains are interred, they are within the physical charge, custody, and control of the cemetery management. Furthermore, it is generally recognized that "a cemetery corporation is usually organized for a public rather than private purpose, and the cemetery management is in the nature of a trust." State ex rel. Stephan v. Lane, 614 P2d 987, 993 (Kan 1980) (citing Carlock v. Ladies Cemetery Association, 317 SW2d 432 (Mo 1958); Frank v. Kugler, 298 A2d 291 (NJ 1972); Dennis v. Glenwood Cemetery, 130 A 373 (NJ 1924); 14 CJS ยง 6, p 67). In fact, " emetery ... management has been held to be in the nature of a charitable, pious, or sacred trust." In re Limestone Cemetery, 24 Pa D & C2d 281, 294-295 (PaQuarSess 1960). For these reasons, "a non-profit cemetery corporation and the individuals who control its activities... bear a fiduciary relationship not only toward lot owners and relatives of persons buried in the cemetery, but toward residents at large of the community." Id. at 294 (citation omitted).
[ .] However, we need not definitively ascertain the exact nature of that relationship in this case because the decedent's parents may not rely upon the doctrine of fraudulent concealment by a fiduciary. They may not rely upon that doctrine because " raudulent concealment [only] tolls the statute of limitations until the claim is discovered or might have been discovered with reasonable diligence." Strassburg v. Citizens State Bank, 1998 SD 72, , 581 NW2d 510, 515 (citations omitted). Therefore, " raudulent concealment will not toll the statute of limitations, no matter the nature of the concealment, if a plaintiff is already on notice of a cause of action." Id. (citations omitted).
[ .] Here, the parents were on notice of their cause of action from the very beginning, and consequently, fraudulent concealment was an unavailable theory even if a fiduciary relationship existed. Because fraudulent concealment was an unavailable theory no matter what the nature of the relationship of the parties, the notice provision in SDCL 3-21-2 barred the state tort claims. Purdy v. Fleming, 2002 SD 156, , 655 NW2d 424, 432.
[ .] MEIERHENRY, Justice, joins this special writing.
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