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Salyer v. Washington Regular Baptist Church Cemetery

Court of Appeals of Indiana

November 23, 2016

Kathy Salyer, Appellant-Plaintiff,
v.
Washington Regular Baptist Church Cemetery, Appellee-Defendant,
v.
Kristy Sams, Appellee-Intervening Party.

         Appeal from the Ripley Superior Court The Honorable Jeffrey L. Sharp, Judge Trial Court Cause No. 69D01-1505-SC-147

          ATTORNEY FOR APPELLANT Leanna Weissmann Lawrenceburg, Indiana

          Brown, Judge.

         [¶1] Kathy Salyer appeals from the May 13, 2016 order of the small claims court on her complaint requesting the return of a burial space she had purchased. We reverse and remand.

         Facts and Procedural History

         [¶2] In 1982, Salyer purchased five contiguous gravesites in Washington Regular Baptist Church Cemetery (the "Cemetery"). Gravesite #15 was located on the northern end of the five gravesites. Moving south from Gravesite #15, Salyer's father was buried at the next site, her first husband was buried at the next site, the next site was empty, and her second husband was buried at the final site at the southern end of the five contiguous sites. Salyer intended to bury her mother at Gravesite #15 and to have herself buried at the site between her first and second husbands.

         [¶3] In January or February of 2014, Salyer noticed that a person named Lowell Johnson had been buried at Gravesite #15. The Cemetery acknowledged that it had inadvertently sold Gravesite #15 twice, first to Salyer and later for the burial of Lowell Johnson. Salyer requested the cemetery to relocate Lowell, the Johnson family objected, and the Cemetery took no action.

         [¶4] On May 18, 2015, Salyer filed a complaint in small claims court alleging that the sale of her burial spot to another individual and the refusal to return it constituted theft, entitling her to treble damages, and requesting "a judgment requiring the [Cemetery] to remove the body from the lot she owns, treble damages, attorney fees, costs of this action and for all other proper relief."[1]Appellant's Appendix at 8. On April 15, 2016, the court held a bench trial at which it noted that Kristy Sams, the daughter of Lowell Johnson, was an intervening third-party. Salyer testified that her mother had died, that Lowell Johnson was buried where she intended to bury her mother, and that she had her mother's body cremated and buried in the same gravesite as her father.

         [¶5] On May 13, 2016, the court issued an order which provided in part:

[T]he Court, having heard the evidence, now enters judgment in favor of [Salyer]. However, specific performance is not warranted given that [Salyer] has already taken action by cremating her mother and burying her mother with her father in the north burial site of plot 14 [site adjacent to and south of Gravesite #15].
THEREFORE, under I.C. 23-14-59-2 the appropriate remedy to correct the problem given the conflicting interests of [Salyer] and [Sams] is to compensate [Salyer] with the adjacent burial site just south of her burial site and to refund her $75.00 for the purchase of the lot in question plus court costs in the amount of $94.00.

Id. at 6. Salyer filed a motion to correct errors, which the trial court denied.

         Discussion

         [¶6] Salyer maintains that, because the Cemetery wrongfully buried Johnson at her gravesite, it must relocate Johnson's body so that the site can be restored to her. She notes that the legislature directed the course of action for a wrongful burial and cites to Ind. Code § 23-14-59-2. That statute states:

When a wrongful burial, entombment, inurnment, disinterment, disentombment, or disinurnment referred to in section 1(1) . . . of this chapter occurs, the cemetery owner shall:
(1) at the expense of the cemetery owner, correct the wrongful burial, entombment, inurnment, disinterment, disentombment, or disinurnment as soon as practical after ...

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