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
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?
& Procedural History
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.
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.
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.
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.
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.
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.
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.
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 ...