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
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.
and Procedural History
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
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
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."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.
On May 13, 2016, the court issued an order which provided in
[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.
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
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