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Salyer v. Washington Regular Baptist Church Cemetery

Court of Appeals of Indiana

October 30, 2019

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

          Appeal from the Ripley Circuit Court Trial Court Cause No. 69C01-1703-PL-9 The Honorable Ryan J. King, Judge

          Attorney for Appellant Leanna Weissmann Lawrenceburg, Indiana

          Altice, Judge.

         Case Summary

         [¶1] Kathy Salyer filed a complaint against the Washington Regular Baptist Church Cemetery (the Cemetery) seeking to have a gravesite she purchased returned to her after the Cemetery sold the gravesite a second time and another individual was buried there. Following a bench trial, the trial court awarded Salyer an open gravesite rather than the gravesite she had purchased over thirty years prior that had since been mistakenly resold for the burial of another. On appeal, Salyer presents two issues, which we consolidate and restate as: Did the trial court abuse its discretion in ordering the Cemetery to provide Salyer with a different gravesite rather than ordering the Cemetery to have the individual buried in the gravesite she had previously purchased reinterred elsewhere so as to restore the gravesite for her use?

         [¶2] We affirm.

         Facts & Procedural History

         [¶3] In April 1982, after the death of her first husband, Salyer purchased four contiguous gravesites in the Cemetery that comprised Lot 14. In August 1982, Salyer purchased an additional gravesite (Gravesite 15) contiguous to Lot 14 on its north end. Salyer possessed a Certificate of Ownership for each purchase.

         [¶4] Moving south from Gravesite 15, Salyer's father was buried in the next site (i.e., the northern end of Lot 14), her first husband was buried in the next, the next site was empty, and Salyer's second husband was buried in the last gravesite (i.e., the southern end of Lot 14). Salyer intended to bury her mother in Gravesite 15 and to have herself buried in the empty site between her first and second husbands.

         [¶5] In early 2014, Salyer noticed that a person named Lowell Johnson had been buried in Gravesite 15. Salyer contacted the Cemetery, which eventually acknowledged that it had made a "mistake" in that it had inadvertently sold Gravesite 15 twice, first to Salyer (in 1982) and later for the burial of Johnson. Transcript Vol. 2 at 45. Anita Rahe, who sold Gravesite 15 to Johnson's family, testified that Salyer's purchase of Gravesite 15 was not properly recorded in the Cemetery's records and thus, such was overlooked when she was trying to find an open gravesite for Johnson that was near his family.[1]

         [¶6] Salyer also spoke with Tom Brunner, the gravedigger for the Cemetery, who told her that a mistake in burial occasionally happens, but that, in his experience, when made aware of the mistake, a cemetery will either give the aggrieved party a new grave or move the person who was buried in the wrong grave. Salyer requested that the Cemetery relocate Johnson. However, due to objections by Johnson's family, the Cemetery took no action.

         [¶7] On May 18, 2015, Salyer filed a small claims action against the Cemetery requesting an order that the Cemetery move Johnson and restore Gravesite 15 to her. Kristy Sams, Johnson's daughter, intervened because she did not want her father moved. While the action was pending, Salyer's mother passed away in December 2015. Because Johnson was already buried in Gravesite 15, Salyer had to make other arrangements. She decided to have her mother's remains cremated and buried in the gravesite with her father. This, however, did not change Salyer's desire to have Gravesite 15 returned to her.

         [¶8] At a bench trial on April 15, 2016, the Cemetery acknowledged it had mistakenly sold Gravesite 15 twice, first to Salyer and then to Johnson's family, and that Johnson was buried in Gravesite 15. The small claims court did not order the Cemetery to move Johnson, but rather, ordered the Cemetery to refund the seventy-five dollars Salyer paid for Gravesite 15 and give Salyer an open gravesite directly to the south of Lot 14. Salyer filed a motion to correct error, claiming the court's solution was contrary to Ind. Code § 23-14-59-2, which outlines the duties of a cemetery in the case of a wrongful burial. The small claims court denied the motion, and Salyer appealed. This court did not reach the merits of Salyer's claim, but rather, reversed and remanded for transfer to the court's plenary docket, holding that the small claims court lacked jurisdiction to grant Salyer either a gravesite adjacent to Lot 14 or to order Johnson to be moved from Gravesite 15 as small claims courts do not have jurisdiction to order specific performance or injunctive relief. See Salyer v. Wash. Regular Baptist Church Cemetery, 63 N.E.3d 1091, 1095-96 (Ind.Ct.App. 2016).

         [¶9] On remand, the matter was transferred to the Circuit Court of Ripley County. The trial court held a bench trial on November 7, 2018. Salyer asserted that, pursuant to I.C. § 23-14-59-2, the court was required to order that Johnson's body be moved from Gravesite 15 to correct the Cemetery's mistake. The Cemetery wanted the trial court to fashion an equitable remedy that did not involve disinterring Johnson. Because Sams did not appear at this hearing, the court continued the matter to December 19, 2018, in order to provide her with an opportunity to make a statement, which she did, requesting that her father (Johnson) not be moved and permitted to "rest in peace." Transcript at 107.

         [¶10] On January 15, 2019, the trial court entered its judgment, including the following relevant findings:

3) Plaintiff Salyer testified that the burial was wrongful and that the [] Cemetery committed the wrongdoing.
4) Cemetery officials testified that Plaintiff Salyer marked off the gravesites, as that was the customary practice, and [Salyer] committed the error. Further, at times Plaintiff Salyer has said that she had marked off her own sites, but at other times she said she had not. Clearly, [Salyer] had involvement with the [Markers]. In sum, the evidence is such that the Court can make no definite determination as to who set the [Markers] - whether it was the ...

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