                                                                                    FILED
                                                                                Oct 30 2019, 7:55 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT
      Leanna Weissmann
      Lawrenceburg, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kathy Salyer,                                              October 30, 2019
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 19A-PL-243
              v.                                                 Appeal from the Ripley Circuit
                                                                 Court
      Washington Regular Baptist                                 The Honorable Ryan J. King,
      Church Cemetery,                                           Judge
      Appellee-Defendant,                                        Trial Court Cause No.
                                                                 69C01-1703-PL-9
      and

      Kristy Sams,

      Appellee-Intervening Party.



      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


      Court of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019                               Page 1 of 14
      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.



      Court of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019      Page 2 of 14
[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




      1
          Johnson’s father and other family members are buried in the three gravesites directly north of Gravesite 15.


      Court of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019                                 Page 3 of 14
      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 of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019       Page 4 of 14
       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 [C]emetery or Plaintiff Salyer. Any wrongful burial
               appears to have flowed from the [M]arkers being mis-set.


               5) In addition to the confusion over who set the [M]arkers, is the
               confusion as to where [Lot] 14 and [Lot] 15 began and/or ended.
               It appears that an old access road caused significant burial site
               confusion. This serves to compound the confusion regarding the
               [M]arkers.


               6) Plaintiff Salyer testified that the matter could be “corrected” by
               either removing Lowell Johnson’s body or paying her $20,000. If
               paid $20,000, the Plaintiff would consider the matter “corrected”




       Court of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019           Page 5 of 14
         and her requested exhumation of Mr. Johnson would not be
         necessary.[ 2]


         7) Tom Brunner, an experienced gravedigger, testified that in
         similar instances the matter has been “corrected” by either
         removing the body or by providing the aggrieved party with a
         similar burial plot.


         8) The Plaintiff provided no specific reason as to what makes the
         Lowell Johnson burial site significant to her other than her belief
         that she is entitled to it. On the other hand, removing Lowell
         Johnson from being next to his parents and his grandson
         (Intervenor’s son) would be extremely traumatic to Intervenor.


Appellant’s Appendix Vol. Two at 12. Based on these findings, the trial court

made the following conclusion: “To the extent that the burial was wrongful,

there is no showing as to who set the [M]arkers and, therefore, no showing who

committed such wrongdoing.” Id. The trial court then entered its judgment as

follows:


         (1) [Salyer] has failed to show that the wrongful burial was
         committed by the cemetery, in that there is at least equal
         evidence in the record that [Salyer] set the [M]arkers thereby
         causing the error;


         (2) Irrespective of who is responsible for any purported “wrongful
         burial”, in order to “correct” this error and/or dispute the Court
         AWARDS [Salyer] the open adjacent burial site just South of her



2
 Salyer’s request in this regard was to cover the legal expenses she had incurred in trying to have Gravesite
15 restored to her.

Court of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019                                Page 6 of 14
               2nd husband, Bart Salyer’s, burial site. This burial site is to be
               free of charge and duly recorded as such by the [Cemetery].


       Id. at 12-13 (emphasis in original). Salyer now appeals. Additional facts will be

       provided as necessary.


                                             Discussion & Decision


[11]   We begin by noting that neither the Cemetery nor the intervenor filed a brief in

       response to Salyer’s appellate arguments, and therefore we will not undertake

       the burden of developing arguments for them. 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.


[12]   Where, as here, the trial court entered findings sua sponte after a bench trial,

       the findings control our review and judgment only as to those issues specifically

       referenced in the findings. See Samples v. Wilson, 12 N.E.3d 946, 949-50 (Ind.

       Ct. App. 2014). When the trial court does not make specific findings on an

       issue, we apply a general judgment standard, and we may affirm on any legal

       theory supported by the evidence adduced at trial. Id. at 950.


               A two-tier standard of review is applied to the sua sponte findings
               and conclusions made: whether the evidence supports the

       Court of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019          Page 7 of 14
               findings, and whether the findings support the judgment.
               Findings and conclusions will be set aside only if they are clearly
               erroneous, that is, when the record contains no facts or inferences
               supporting them. A judgment is clearly erroneous when a review
               of the record leaves us with a firm conviction that a mistake has
               been made. In conducting our review, we consider only the
               evidence favorable to the judgment and all reasonable inferences
               flowing therefrom. We will neither reweigh the evidence nor
               assess witness credibility.


       Id.


[13]   Salyer argues that the trial court erred in concluding that she failed to prove the

       Cemetery committed a wrongful burial and takes issue with the court’s

       suggestion that she might be partly to blame for the wrongful burial. Assuming

       without deciding that Salyer is correct—i.e., the trial court should have

       determined that the Cemetery, not Salyer, was responsible for the reselling of

       Gravesite 15 to Johnson’s family for his burial—we find no error with the trial

       court’s resolution of the matter.


[14]   This is a matter of statutory interpretation. Our standard of review for issues

       that require us to interpret a statute is well-settled:


               A question of statutory interpretation is a matter of law. In such
               interpretation, the express language of the statute and the rules of
               statutory interpretation apply. We will examine the statute as a
               whole, and avoid excessive reliance on a strict literal meaning or
               the selective reading of words. Where the language of the statute
               is clear and unambiguous, there is nothing to construe.
               However, where the language is susceptible to more than one
               reasonable interpretation, the statute must be construed to give
               effect to the legislature’s intent. The legislature is presumed to
       Court of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019         Page 8 of 14
               have intended the language used in the statute to be applied
               logically and not to bring about an absurd or unjust result. Thus,
               we must keep in mind the objective and purpose of the law as
               well as the effect and repercussions of such a construction.


       Nash v. State, 881 N.E.2d 1060, 1063 (Ind. Ct. App. 2008), trans. denied.


[15]   Our legislature set out the duties of a cemetery upon a wrongful burial in

       relevant part as follows:


               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
                        becoming aware of the error;


       I.C. § 23-14-59-2 (emphasis supplied). A cemetery is also required to give

       notice to specified individuals associated with the individual buried in the

       wrong grave. While our legislature has provided that cemeteries “shall . . .

       correct” a wrongful burial, the legislature also granted cemeteries immunity for

       any such wrongful burial. See I.C. § 23-14-59-1(1) (“A cemetery owner or

       anyone acting on behalf of a cemetery owner is not liable in any action for . . . a

       burial, entombment, or inurnment in the wrong lot, grave, grave space, burial

       space, crypt, crypt space, or niche.”) (emphasis supplied).


[16]   We begin by recognizing that the purchase of a gravesite is a real estate

       transaction. I.C. § 23-14-33-6 defines a burial right as “a right of interment,
       Court of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019         Page 9 of 14
       entombment, or inurnment granted by the owner of a cemetery and unless

       otherwise stated in the deed, certificate, or license given by the owner of the

       cemetery, is an easement for the specific purpose of burial.” Consistent with

       this provision, the certificates of ownership for Salyer’s purchases of Lot 14 and

       Gravesite 15 evidence that Salyer was “entitled to the use of [said gravesites] in

       fee simple for burial purposes only.” Exhibit Index at 4, 6 (Plaintiff’s Exhibits 1

       and 2).


[17]   Indiana courts generally order specific performance of contracts for the

       purchase of real estate. See Kesler v. Marshall, 792 N.E.2d 893, 896 (Ind. Ct.

       App. 2003), trans. denied. They do so because each piece of real estate is

       considered unique, without an identical counterpart anywhere in the world. See

       id. This is especially true with regard to the purchase of gravesites, which may

       be selected as final resting places for specific loved ones. Indeed, here, Salyer

       testified that she intended to bury her mother in Gravesite 15 because it was

       next to her father’s gravesite.


[18]   By using the word “shall” in I.C. § 23-14-59-2, the legislature expressed its

       intention that a cemetery is required to “correct” a wrongful burial. The

       operative word we must give effect to is the word “correct.” To correct is “to

       set or make true, accurate, or right; remove the errors or faults from.” See

       https://www.dictionary.com/browse/correct?s=t (last visited October 10, 2019).

       Salyer maintains that to “correct” its error, the Cemetery must exhume Johnson

       from Gravesite 15 so that Gravesite 15 is available for her use. We disagree.



       Court of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019       Page 10 of 14
[19]   An order that a cemetery owner perform its duty to correct a wrongful burial as

       mandated by I.C. § 23-14-59-2 constitutes an order for specific performance,

       which is an equitable remedy. See Kesler, 792 N.E.2d at 896. The power of a

       court to compel specific performance is an extraordinary power and as such, is

       not available as a matter of right. Id. The decision whether to grant specific

       performance is a matter within the trial court’s discretion. Id. We will find an

       abuse of discretion where the trial court’s decision is clearly against the

       reasonable deductions which may be drawn from the facts before the court. Id.


[20]   There is no easy solution here. The Cemetery sold Gravesite 15 to two different

       purchasers, neither of whom can be faulted for the circumstances that now must

       be resolved. On one side, Salyer purchased Gravesite 15 in 1982, and such was

       mistakenly sold a second time for Johnson’s burial. Regrettably, because of the

       Cemetery’s mistake, Salyer had to make the decision to have her mother

       cremated so her mother could be buried in the same gravesite as Salyer’s father

       in order to accomplish her desire that her parents be buried close to one

       another. Thus, at this point, returning Gravesite 15 to Salyer would have no

       practical benefit to her, but would serve only to affirm that Salyer purchased

       Gravesite 15 first. On the other hand, Johnson’s family purchased a gravesite

       for Johnson’s burial that, unbeknownst to them, was not available. Gravesite

       15 was adjacent to other members of Johnson’s family and there was no

       evidence that there is another gravesite similarly situated.


[21]   The trial court was presented with the delicate and difficult task of balancing

       the equities of the parties under grievous circumstances. In doing so, the trial

       Court of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019       Page 11 of 14
       court considered that Salyer provided “no specific reason as to what makes

       [Gravesite 15] significant” given that her plans for Gravesite 15 had changed in

       that she had to make alternate arrangements for the burial of her mother.

       Appellant’s Appendix Vol. Two at 12. The trial court weighed this consideration

       against the fact that to move Johnson from Gravesite 15 “would be extremely

       traumatic” for Johnson’s daughter. Id. In other words, given the circumstances

       as they currently exist, requiring the Cemetery to move Johnson would

       unnecessarily exacerbate and prolong the emotional toll on all involved.

       Considering the equities, we conclude that the trial court did not abuse its

       discretion in fashioning a remedy that required the Cemetery to “correct” its

       mistake by giving Salyer an open, adjacent burial site at the south end of Lot 14

       free of charge.


[22]   Judgment affirmed.


       Vaidik C.J., concurs.


       Kirsch, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019     Page 12 of 14
                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kathy Salyer,
      Appellant-Plaintiff,
                                                                 Court of Appeals Case No.
                v.
                                                                 19A-PL-243
      Washington Regular Baptist
      Church Cemetery,
      Appellee-Defendant,
      and
      Kristy Sams,
      Appellee-Intervening Party.



      Kirsch, Judge, dissenting.


[1]   I respectfully dissent.


[2]   “First in time, first in right” has long been a foundational legal principle. It

      should be applied in this instance to return the cemetery plot, which the




      Court of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019                    Page 13 of 14
      Washington Regular Baptist Church Cemetery (“the Cemetery”) wrongfully

      sold a second time to Kristy Sams, to its rightful owner, Kathy Salyer.


[3]   In April of 1982, Salyer purchased four adjacent gravesites in the Cemetery. In

      August of 1982, she purchased a fifth site (“Gravesite 15”) adjacent to the four

      which she already owned. Her intent was to have adjacent gravesites for her

      family. Unbeknownst to Salyer, the Cemetery sold Gravesite 15 a second time

      to Sams. At trial, the Cemetery acknowledged its error.


[4]   Indiana Code section 23-14-59-2 sets out the duty owed by a cemetery upon

      wrongful entombment. It provides, in operative part, as follows:


              When a wrongful burial, entombment, inurnment, disinterment,
              disentombment, or disinurnment referred to in section 1(1), 1(2),
              1(4), or 1(5) 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
                  becoming aware of the error . . . .


[5]   The Cemetery failed to carry out its duty under the foregoing statute. I would

      remand to the trial court with instructions to order the corrective action

      imposed by our legislature.




      Court of Appeals of Indiana | Opinion 19A-PL-243 | October 30, 2019       Page 14 of 14
