Family sues Myers Cemetery officials after dispute over son’s headstone

A Clark County family whose 9-year-old son died of cancer two years ago filed a $25,000 lawsuit against officials at the cemetery where the boy is buried following a dispute over a headstone.

The civil suit — which includes counts of breach of contract, violations of the Consumer Sales Practices Act, unjust enrichment, fraud, emotional distress and civil conspiracy — was filed by plaintiffs Brad and Lana Fitzsimmons in the Clark County Court of Common Pleas on Tuesday, according to the family’s lawyer, Nathan Stuckey.

“My clients have attempted to resolve this without success,” Stuckey said in an email. “All they want is closure — to be able to install a memorial at their son’s gravesite that they can visit. It’s discouraging that it has come to this, but this family deserves better.”

The defendants listed in the lawsuit include the Myers Cemetery Association and its president and chairman, Doug Miller, as well as cemetery trustees Theodore Simonton, James Steggemann and Jerry Washburn.

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The News-Sun reached out to Miller for comment regarding the lawsuit. He forwarded the newspaper to the secretary of the cemetery trustees, but the newspaper did not receive a response before its print deadline.

Brad and Lana’s son, Barrett Fitzsimmons, is buried at Myers Cemetery, where many of his relatives are also buried. Brad and Lana purchased three plots at the North Hampton cemetery after their son passed away in May of 2019, according to the lawsuit’s complaint, one for their son and the other two for themselves.

After their son’s burial, the Fitzsimmons family hired Set N’ Stone, based in Urbana, to help design the headstone for all three plots, which included pictures of young Barrett in his Northwestern football jersey and smiling with his arms outstretched, as well as several other images such as dinosaurs, turtles, robots and other things that captured the nine-year-old during his life.

The family was informed last April that the design for the headstone wasn’t approved by the cemetery.

Myers Cemetery Association president and chair Miller said in an email to the News-Sun that headstones are limited to three photos. Aside from the Barrett’s headstone exceeding the maximum number of photos, trustees felt the design would be out of place in the cemetery, which was founded in 1860 on a farm belonging to German Baptists — simple people, Miller said.

In June, the family attended the cemetery association’s annual meeting to appeal to association members in regard to the design. A motion to accept and approve the design was made by association member Bob Linkhorn, according to the lawsuit, and the motion passed with a vote of 17-4.

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After the vote, the Fitzsimmons family contacted Set N’ Stone to engrave the headstone with the approved design. The memorial was completed in September and was ready for installation, according to the lawsuit. A month prior to the headstone’s completion, a cemetery trustee told the headstone company that the Fitzsimmons burial plot was third in line for the pouring of the foundation for the headstone.

Credit: Bill Lackey

Credit: Bill Lackey

The association later told the family that the vote was null due to nonmembers participating and casting a vote, and thus, the headstone was not approved. The Fitzsimmons family requested a copy of minutes from the meeting, which lists the board’s vote as 14 to 4, saying the measure on the headstone design “does not have a majority vote needed,” according to the lawsuit.

The Fitzsimmons’ legal counsel also provided a copy of the letter the board sent to the monument company last October to the News-Sun. The letter describes the rules and regulations the board has in place for the cemetery, including a timeframe in which footers can be made and placed on graves, beginning April 1 and ending Oct. 1.

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The letter also states that there has not been any approval “for such [a] monument from your company by Myers Cemetery trustees.”

Brad Fitzsimmons told the News-Sun that his family has paid the money for a concrete footer that hasn’t been poured, and the family continues to pay thousands of dollars in storage fees for the headstone.

Currently, a makeshift headstone — a T-rex dinosaur carved out of a sheet of metal — is at Barrett’s gravesite. It’s a nod to the boy’s fascination with the prehistoric animals. A sign of the Barrett Strong Foundation, which aims to raise awareness of pediatric cancer, is nearby.

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