                                                                                FILED
                                                                           Mar 08 2019, 5:48 am

                                                                                CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT
      James O. Waanders
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Hal Mullett,                                              March 8, 2019
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                18A-PL-2080
              v.                                                Appeal from the DeKalb Superior
                                                                Court
      Deborah K. Baker and City of                              The Honorable Kevin P. Wallace,
      Butler, Indiana,                                          Judge
      Appellees-Defendants                                      Trial Court Cause No.
                                                                17D01-1408-PL-45



      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.

      Court of Appeals of Indiana | Opinion 18A-PL-2080| March 8, 2019                             Page 1 of 11
                                      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



      1
          They are buried in separate family burial plots, which are not at issue here.
      2
          The Appealed Order mistakenly refers to Garner as Gaylord.

      Court of Appeals of Indiana | Opinion 18A-PL-2080| March 8, 2019                    Page 2 of 11
      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:




      3
          Hal did not challenge Eula’s burial in the family burial plot.

      Court of Appeals of Indiana | Opinion 18A-PL-2080| March 8, 2019         Page 3 of 11
              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.
      Court of Appeals of Indiana | Opinion 18A-PL-2080| March 8, 2019             Page 4 of 11
      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 disinterment and provides in

      relevant part as follows:


              (a) As used in this section, “removal” or “removed” refers to the
              disinterment, disentombment, or disinurnment of the remains of
              a deceased human.


              (b) Except as provided in subsection (e) and sections 4 and 5 of
              this chapter, the remains, either cremated or uncremated, of a deceased
              human shall not be removed from a cemetery without:


                   (1) a written order:


                         (A) that is issued by the state department of health; and


                   (2) the written consent of:


                         (A) the owner of the cemetery; or
                         (B) the owner’s representative; and


                   (3) the written consent of a person or persons referred to in one (1) of
                   the following clauses, which are listed according to priority:

      Court of Appeals of Indiana | Opinion 18A-PL-2080| March 8, 2019                        Page 5 of 11
                   (A) The individual who was the spouse of the deceased at
                   the time of the deceased’s death.


                   (B) The surviving adult child of the deceased. If there is more
                   than one (1) surviving adult child of the deceased, the
                   requirement for written consent under this subdivision is
                   satisfied if:


                        (i) any one (1) of the surviving adult children
                        provides written consent to the removal of the
                        deceased’s remains;


                        (ii) the consent provided under item (i) confirms that
                        all other surviving adult children of the deceased
                        have been notified of the proposed removal of the
                        deceased’s remains; and


                        (iii) the state department of health does not receive a
                        written objection to the proposed removal from any
                        of the deceased’s surviving adult children.


             ….


        (c) Before issuing a written authorization under subsection (b),
        the state department of health shall do the following:


             (1) Obtain written evidence that a licensed funeral director
             has agreed to:


                   (A) be present at the removal and at the reinterment,
                   reentombment, or reinurnment of the remains; and




Court of Appeals of Indiana | Opinion 18A-PL-2080| March 8, 2019                     Page 6 of 11
                          (B) cause the completed order of the state department of
                          health to be recorded in the office of the county recorder
                          of the county where the removal occurs.


                     (2) Obtain a copy of:


                          (A) the written consent required under subsection (b)(3);
                          or


                          (B) a court order obtained by a person under subsection (d).


                (d) If the written consent of an individual authorized under subsection
                (b)(3) to give consent is not available, a person who has made a request
                under this section to the state department of health may petition a court
                to determine whether to waive the consent requirement of subsection
                (b)(3). In determining whether to waive the requirement, the court shall
                consider the viewpoint of any issue (as defined in IC 29-1-1-3)[4] of the
                deceased. In a proceeding under this subsection, the court may not order
                the disinterment, disentombment, or disinurnment of the remains of a
                deceased human.


       (Emphases added.)


[10]   Hal frames the issue on appeal as whether “the Trial Court err[ed] in refusing to

       order the consent, or to determine the unavailability and waiver of the

       requirement of consent, under Indiana Code 23-14-57 of a family member to

       the disinterment of a non-family member wrongfully buried in a family burial




       4
         Indiana Code Section 29-1-1-3(16) provides, “‘Issue’ of a person, when used to refer to persons who take by
       intestate succession, includes all lawful lineal descendants except those who are lineal descendants of living
       lineal descendants of the intestate.”

       Court of Appeals of Indiana | Opinion 18A-PL-2080| March 8, 2019                                  Page 7 of 11
plot.” Appellant’s Br. at 4. He argues that he is seeking a determination that

“the consent of Deborah necessary for correction of Joyce’s wrongful burial is

either unnecessary or that such consent is unavailable and the requirement of

consent be considered waived, so that [he] can initiate the disinterment of Joyce

through the state department of health, and so that the Cemetery can fulfill its

statutory duty to correct a wrongful burial,” under Indiana Code Section 23-14-

59-2.5 Id. at 22. According to Hal, the City has a statutory duty to correct the

wrongful burial under Indiana Code Section 23-14-59-2, and therefore the

consent for disinterment required under Section 23-14-57-1(b)(3) should either

not be required or waived under Section 23-14-57-1(d).




5
    Indiana Code Section 23-14-59-2 provides,
         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; and
           (2) notify:
               (A) the spouse, if living, of the deceased person whose remains were wrongfully buried,
               entombed, inurned, disinterred, disentombed, or disinurned, or whose outer burial
               container was wrongfully placed;
               (B) the parents, if living, of a deceased minor child whose remains were wrongfully buried,
               entombed, inurned, disinterred, disentombed, or disinurned, or whose outer burial
               container was wrongfully placed;
               (C) the person or persons whose marker, monument, memorial, foundation, or base was
               wrongfully placed; or
               (D) the person or persons who authorized the original burial, entombment, inurnment,
               disinterment, disentombment, or disinurnment;
         of the occurrence.



Court of Appeals of Indiana | Opinion 18A-PL-2080| March 8, 2019                                       Page 8 of 11
[11]   Our review of Hal’s complaint, the transcript of the bench trial, and the

       appealed order reveals that he did not present this argument to or request this

       relief from the trial court. In his complaint, Hal alleged that Joyce was

       wrongfully buried in the family burial plot because neither she nor Deborah

       owned the family burial lot, and that he, as the sole surviving grandson of the

       person who had held title to the family burial lot, had not executed a written

       document indicating a waiver or giving permission for Joyce to be buried there.

       Hal prayed for the court to order Joyce’s disinterment. At the bench trial, Hal’s

       attorney stated in his opening statement that “[Hal] is requesting the only relief

       he can receive which will be of any satisfaction is that [Joyce be] disinterred and

       located on another lot, a process that is not common but not unheard of.” Tr.

       at 5. The parties did not present closing arguments at trial, and Hal has not

       included his proposed findings and conclusions in his appendix. In the

       appealed order, the trial court concluded that Hal had not argued that he met

       the statutory requirements for disinterments under Indiana Code Section 23-14-

       57 and denied “[Hal’s] request that [Deborah] be ordered to disinter the

       remains of [Joyce].” Appealed Order at 3.


[12]   As we have previously explained,


               A party generally waives appellate review of an issue or
               argument unless that party presented that issue or argument
               before the trial court. However, that principle is not without
               limits....


               The rule that parties will be held to trial court theories by the
               appellate tribunal does not mean that no new position may be

       Court of Appeals of Indiana | Opinion 18A-PL-2080| March 8, 2019            Page 9 of 11
               taken, or that new arguments may not be adduced; all that it
               means is that substantive questions independent in character and
               not within the issues or not presented to the trial court shall not
               be first made upon appeal. Questions within the issues and before
               the trial court are before the appellate court, and new arguments
               and authorities may with strict propriety be brought forward....


               This rule exists because trial courts have the authority to hear
               and weigh the evidence, to judge the credibility of witnesses, to
               apply the law to the facts found, and to decide questions raised
               by the parties. Appellate courts, on the other hand, have the
               authority to review questions of law and to judge the sufficiency
               of the evidence supporting a decision.


               The rule of waiver in part protects the integrity of the trial court;
               it cannot be found to have erred as to an issue or argument that it
               never had an opportunity to consider. Conversely, an
               intermediate court of appeals, for the most part, is not the forum
               for the initial decisions in a case.


       Showalter v. Town of Thorntown, 902 N.E.2d 338, 342 (Ind. Ct. App. 2009)

       (citations and quotations omitted), trans. denied.


[13]   Given the importance of consent to disinterment required by Section 23-14-57-

       1(b)(3), it is significant that there is absolutely no mention in the complaint,

       transcript, or appealed order of the explicit authority granted in Subsection 1(d)

       to the trial court to waive the consent requirement after considering the

       viewpoint of any issue of the deceased. Also, although Subsection 1(d)

       explicitly prohibits a court from ordering the disinterment of the remains of a

       deceased human, the trial court did not mention that prohibition in deciding

       not to order disinterment. Hal has been afforded an evidentiary hearing on the

       Court of Appeals of Indiana | Opinion 18A-PL-2080| March 8, 2019           Page 10 of 11
       legal issues he raised; he may not obtain a second bite at the apple by raising a

       new legal argument that cannot be decided on facts that are not already in the

       record.6 For this reason, we find his argument on appeal waived. Therefore,

       we affirm.


[14]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       6
         Hal does not argue that the family consent requirements under Section 23-14-57-1(b)(3) are inapplicable as
       a matter of law when a wrongful burial occurs under Section 23-14-59-2.

       Court of Appeals of Indiana | Opinion 18A-PL-2080| March 8, 2019                               Page 11 of 11
