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Mullett v. Baker

Court of Appeals of Indiana

March 8, 2019

Hal Mullett, Appellant-Plaintiff,
v.
Deborah K. Baker and City of Butler, Indiana, Appellees-Defendants

          Appeal from the DeKalb Superior Court The Honorable Kevin P. Wallace, Judge Trial Court Cause No. 17D01-1408-PL-45

          ATTORNEY FOR APPELLANT James O. Waanders Indianapolis, Indiana

          Crone, Judge.

         Case Summary

         [¶1] Hal Mullett appeals the trial court's order denying his request that Deborah K. Baker be ordered to disinter the remains of her mother, Joyce Mullett Mink, from a family burial plot purchased by Everett Mullett, Hal's grandfather and Deborah's great-grandfather. Concluding that Hal waived his argument, we affirm.

         Facts and Procedural History

         [¶2] In 1952, Everett purchased the family burial plot, consisting of five burial spaces, in the Butler Cemetery, which is owned and operated by the City of Butler ("the City"). Everett was married to Elizabeth Mullett. In 1959, Everett died and was buried in space number 3. In 1966, Elizabeth died and was buried in space number 2.

         [¶3] Everett and Elizabeth had two sons, Gaylord and Earl, who are now both deceased but are not buried in the family burial plot.[1] Gaylord had three children, one of whom is Hal. Earl had a son, Keith. Keith married Joyce, and they had several children, including Deborah. In 1985, Keith and Joyce divorced, and Joyce married Garner Mink, [2] to whom she was married at the time of her death.

         [¶4] In 2005, Joyce arranged to have her mother, Eula Champion, buried in the family burial plot in space number 5. In 2013, Joyce died, and Deborah arranged to have Joyce buried in the family burial plot in space number 1.

         [¶5] In August 2014, Hal filed a complaint against Deborah and the City, alleging as follows: the family burial plot was titled to Everett; neither Joyce nor Deborah owns the family burial plot; Hal is Everett's sole surviving grandson; Hal did not execute any written document providing a waiver or giving permission for Joyce to be buried in the family burial plot; Joyce was wrongfully buried in the family burial plot; and Hal's sole remedy was disinterment of Joyce's body. Appellant's App. at 12. Hal prayed that the "court order disinterment of Joyce."[3] Id. In March 2014, the City filed a summary judgment motion. In July 2015, the trial court issued an order granting the City's summary judgment motion, in which the court stated, "[Hal] concedes that [the City's] Motion for Summary Judgment shall be granted." Id. at 89.

         [¶6] In March 2018, a bench trial was held. Hal and Deborah both testified. After the evidence was heard, the trial court took the matter under advisement and granted the parties leave to file proposed findings of facts and conclusions thereon in lieu of presenting final argument. Hal and Deborah each filed proposed findings and conclusions, but neither document is included in the record before us.

         [¶7] In August 2018, the trial court issued findings of fact and conclusions thereon, in which it found that "[Hal] does not consider [Joyce] a family member and has requested the remains of [Joyce] be disinterred and reinterred elsewhere." Appealed Order at 2. The trial court also found that Deborah had not consented, nor could she obtain her brothers' consent, to Joyce's disinterment, and preferred that Joyce's remains stay in the family burial plot. Id. The trial court concluded in relevant part as follows:

11. A family burial plot has been created under I.C. 23-14-41-2. [Hal] has the right to use a space in the family burial plot under I.C. 23-14-41-4.
12. [Hal] argues that [Joyce] is improperly buried in the family burial plot and that "the only available remedy to [him] is the removal of [Joyce] from the family burial plot." [Hal] offers no legal authority for this position.
13. I.C. 24-14-41 et seq. is silent regarding a remedy under these circumstances. It may be that the heirs of Everett Mullett and Elizabeth Mullett are entitled to damages in the amount of the fair market value of a burial space in the Butler Cemetery. But the placement of the remains of [Joyce] does not prevent [Hal] from being buried in the family burial plot since space number 4 remains vacant.
14. I.C. 23-14-57 et seq. speaks about the requirements for disinterments, disentombments or disinurnments. [Hal] has not argued that he meets these statutory requirements. As [Deborah] points out in her proposed findings of fact and conclusions of law, disinterment is an extraordinary remedy, which cannot be taken lightly.

Id. The trial court ordered that "[Hal's] request that [Deborah] be ordered to disinter the remains of [Joyce] is overruled and denied." Id. at 3. This appeal ensued.

         Discussion and Decision

         [¶8] Before turning to Hal's challenge to the appealed order, we note that Deborah has not filed an appellee's brief, and therefore we will not undertake the burden of developing arguments for her. Jenkins v. Jenkins, 17 N.E.3d 350, 351 (Ind.Ct.App. 2014). Instead, we apply a less stringent standard of review and will reverse upon a showing of prima facie error, which is error "at first sight, on first appearance, or on the face of it." Orlich v. Orlich, 859 N.E.2d 671, 673 (Ind.Ct.App. 2006). However, to determine whether reversal is required, we are still obligated to correctly apply the law to the facts in the record. Jenkins, 17 N.E.3d at 352.

         [¶9] Hal seeks to disinter Joyce's remains from the family burial plot. Indiana Code Section 23-14-57-1 governs the requirements for ...


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