                                                              FILED
                                                         Nov 23 2016, 10:17 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,                                            November 23, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         69A04-1607-SC-1535
        v.                                               Appeal from the Ripley Superior
                                                         Court
Washington Regular Baptist                               The Honorable Jeffrey L. Sharp,
Church Cemetery,                                         Judge
Appellee-Defendant,                                      Trial Court Cause No.
                                                         69D01-1505-SC-147
        v.

Kristy Sams,
Appellee-Intervening Party.



Brown, Judge.




Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016         Page 1 of 10
[1]   Kathy Salyer appeals from the May 13, 2016 order of the small claims court on

      her complaint requesting the return of a burial space she had purchased. We

      reverse and remand.


                                      Facts and Procedural History

[2]   In 1982, Salyer purchased five contiguous gravesites in Washington Regular

      Baptist Church Cemetery (the “Cemetery”). Gravesite #15 was located on the

      northern end of the five gravesites. Moving south from Gravesite #15, Salyer’s

      father was buried at the next site, her first husband was buried at the next site,

      the next site was empty, and her second husband was buried at the final site at

      the southern end of the five contiguous sites. Salyer intended to bury her

      mother at Gravesite #15 and to have herself buried at the site between her first

      and second husbands.


[3]   In January or February of 2014, Salyer noticed that a person named Lowell

      Johnson had been buried at Gravesite #15. The Cemetery acknowledged that it

      had inadvertently sold Gravesite #15 twice, first to Salyer and later for the

      burial of Lowell Johnson. Salyer requested the cemetery to relocate Lowell, the

      Johnson family objected, and the Cemetery took no action.


[4]   On May 18, 2015, Salyer filed a complaint in small claims court alleging that

      the sale of her burial spot to another individual and the refusal to return it

      constituted theft, entitling her to treble damages, and requesting “a judgment

      requiring the [Cemetery] to remove the body from the lot she owns, treble




      Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016   Page 2 of 10
      damages, attorney fees, costs of this action and for all other proper relief.” 1

      Appellant’s Appendix at 8. On April 15, 2016, the court held a bench trial at

      which it noted that Kristy Sams, the daughter of Lowell Johnson, was an

      intervening third-party. Salyer testified that her mother had died, that Lowell

      Johnson was buried where she intended to bury her mother, and that she had

      her mother’s body cremated and buried in the same gravesite as her father.


[5]   On May 13, 2016, the court issued an order which provided in part:

              [T]he Court, having heard the evidence, now enters judgment in
              favor of [Salyer]. However, specific performance is not
              warranted given that [Salyer] has already taken action by
              cremating her mother and burying her mother with her father in
              the north burial site of plot 14 [site adjacent to and south of
              Gravesite #15].

              THEREFORE, under I.C. 23-14-59-2 the appropriate remedy to
              correct the problem given the conflicting interests of [Salyer] and
              [Sams] is to compensate [Salyer] with the adjacent burial site just
              south of her burial site and to refund her $75.00 for the purchase
              of the lot in question plus court costs in the amount of $94.00.

      Id. at 6. Salyer filed a motion to correct errors, which the trial court denied.


                                                   Discussion

[6]   Salyer maintains that, because the Cemetery wrongfully buried Johnson at her

      gravesite, it must relocate Johnson’s body so that the site can be restored to her.




      1
        The chronological case summary (“CCS”) indicates that the proceeding was on the small claims docket of
      the Ripley County Superior Court.

      Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016                  Page 3 of 10
      She notes that the legislature directed the course of action for a wrongful burial

      and cites to Ind. Code § 23-14-59-2. That statute states:

              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; . . . .


      Ind. Code § 23-14-59-2. Salyer notes that the legislature uses the words “shall”

      and “correct” in the statute and contends that the word “correct” does not

      mean leaving the status quo, that to correct a wrongful burial the person must

      be relocated from the improper grave, and that the statute “clearly directed the

      [C]emetery to do something to fix its mistake in reselling lot #15 and

      wrongfully burying Mr. Johnson in Kathy Salyer’s family burial plot.”

      Appellant’s Brief at 10-11. She also notes that the statute does not allow an

      exception for correcting a wrongful burial when the family objects. She

      requests this Court to require the Cemetery to correct the wrongful burial by

      moving Johnson and returning Gravesite #15 to her. The Cemetery has not

      filed an Appellee’s brief.


[7]   The first step in interpreting a statute is to determine whether the legislature has

      spoken clearly and unambiguously on the point in question. City of N. Vernon v.

      Jennings Nw. Reg’l Utils., 829 N.E.2d 1, 4 (Ind. 2005). When a statute is clear

      and unambiguous, we need not apply any rules of construction other than to


      Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016   Page 4 of 10
      require that words and phrases be taken in their plain, ordinary, and usual

      sense. Id. When a statute is susceptible to more than one interpretation, it is

      deemed ambiguous and thus open to judicial construction. Id. When faced

      with an ambiguous statute, our primary goal of statutory construction is to

      determine, give effect to, and implement the intent of the legislature. Id. To

      effectuate legislative intent, we read the sections of an act together in order that

      no part is rendered meaningless if it can be harmonized with the remainder of

      the statute. Id. We also examine the statute as a whole and do not presume

      that the legislature intended language used in a statute to be applied illogically

      or to bring about an unjust or absurd result. Id. at 4-5. Additionally, where

      provisions of a statute are in conflict, the specific provision will take priority

      over the general provision. Barrett v. City of Brazil, 919 N.E.2d 1176, 1179 (Ind.

      Ct. App. 2010), trans. denied; see Nordman v. N. Manchester Foundry, Inc., 810

      N.E.2d 1071, 1074 (Ind. Ct. App. 2004) (“When two conflicting statutory

      provisions appear controlling, the statute dealing with a subject in a specific

      manner controls over the statute dealing with the same subject in general

      terms.”).


[8]   Ind. Code § 23-14-33-6 provides that “‘Burial right’ means a right of interment,

      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.”


[9]   Ind. Code §§ 23-14-59 is titled “Potential Liability of Cemetery Owner.” Ind.

      Code § 23-14-59-1, which is titled “Immunity generally,” provides:

      Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016   Page 5 of 10
               A cemetery owner or anyone acting on behalf of a cemetery
               owner is not liable in any action for:
                        (1) a burial, entombment, or inurnment in the wrong lot,
                        grave, grave space, burial space, crypt, crypt space, or niche . .
                        ..
                        (2) a disinterment, disentombment, or disinurnment of the
                        wrong deceased remains;
                        (3) a repositioning of the remains of a deceased that
                        encroach upon an adjacent lot, space, grave, grave space,
                        or burial space;
                        (4) setting or installing a marker, monument, any type of
                        memorial, or an outer burial container on the wrong lot,
                        space, grave, grave space, or burial space; or
                        (5) installing any kind of foundation or other type of base
                        for a marker, monument, or any type of memorial on the
                        wrong lot or burial space.

       (Emphases added).


[10]   Ind. Code § 23-14-59-2, which is titled “Duties upon wrongful burials,”

       provides in part:


               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; and
                        (2) notify:
                                (A) the spouse, if living, of the deceased person
                                whose remains were wrongfully buried, entombed,


       Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016      Page 6 of 10
                                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.

       (Emphases added).


[11]   We read Ind. Code §§ 23-14-59-1 and -2 together in order that no part is

       rendered meaningless. See City of N. Vernon, 829 N.E.2d at 4. Ind. Code § 23-

       14-59-2 imposes a specific duty upon a cemetery to correct a wrongful burial.

       An order that a cemetery owner perform its duty to correct a wrongful burial as

       mandated by Ind. Code § 23-14-59-2 constitutes an order for specific

       performance or injunctive relief. Giving effect to the language of both statutes,

       in the event a wrongful burial occurs and a cemetery fails to correct it as

       required by Ind. Code § 23-14-59-2, a court may order the cemetery to perform

       its duty under the statute but may not find the cemetery liable for damages.

       Based on Ind. Code § 23-14-59-1, the court in this case erred in finding the

       cemetery liable for damages.




       Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016   Page 7 of 10
[12]   In addition, an order that a cemetery perform its duty under Ind. Code § 23-14-

       59-2 constitutes an order for specific performance or injunctive relief, and the

       small claims court’s order that Salyer receive “the adjacent burial site just south

       of her burial site,” Appellant’s Appendix at 6, also constitutes an order for

       injunctive relief. However, Salyer’s claim was filed and docketed on the small

       claims docket of the Ripley County Superior Court. The jurisdiction of a small

       claims court is limited to that granted by the Constitution or by statute.

       Olympus Properties, LLC v. Plotzker, 888 N.E.2d 334, 337 (Ind. Ct. App. 2008)

       (citing Nielsen Buick Jeep Eagle Subaru v. Hall, 726 N.E.2d 358, 360 (Ind. Ct.

       App. 2000) (“The jurisdiction of an inferior court, such as the small claims

       division of a superior court, is limited to that which is granted by the

       Constitution or statute.”)).


[13]   Ind. Code § 33-29-2-4(b) provides:


               The small claims docket has jurisdiction over the following:

               (1)      Civil actions in which the amount sought or value of the
                        property sought to be recovered is not more than six
                        thousand dollars ($6,000). The plaintiff in a statement of
                        claim or the defendant in a counterclaim may waive the
                        excess of any claim that exceeds six thousand dollars
                        ($6,000) in order to bring it within the jurisdiction of the
                        small claims docket.
               (2)      Possessory actions between landlord and tenant in which
                        the rent due at the time the action is filed does not exceed
                        six thousand dollars ($6,000).
               (3)      Emergency possessory actions between a landlord and
                        tenant under IC 32-31-6.


       Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016    Page 8 of 10
[14]   Salyer was not a tenant and could not proceed in small claims court under Ind.

       Code §§ 33-29-2-4(b)(2) or (3). See Ind. Code § 32-31-3-10 (defining “tenant” to

       mean an individual who occupies a rental unit for residential purposes, with the

       landlord’s consent, and for consideration that is agreed upon by both parties);

       Plotzker, 888 N.E.2d at 337 (concluding the plaintiff was not a tenant and thus

       could not proceed in small claims court under Ind. Code § 33-29-2-4(b)(2) or

       (3)).


[15]   Moreover, the small claims court does not have jurisdiction to exercise

       equitable powers such as ordering specific performance or injunctive relief apart

       from the statute. See Plotzker, 888 N.E.2d at 337 (observing “the small claims

       court did not have power to award injunctive relief apart from the statute”);

       Hall, 726 N.E.2d at 360-361 (observing that rescission of a contract is an

       equitable remedy and that, “as we noted in Sanders [v. Area Plan Comm’n of

       Evansville and Vanderburgh Cnty., 581 N.E.2d 983 (Ind. Ct. App. 1991)] and

       Buckmaster v. Platter, 426 N.E.2d 148, 150 (Ind. Ct. App. 1981), which involved

       the remedy of specific performance, the small claims statute does not provide

       for the exercise of such extraordinary equitable powers”); Sanders, 581 N.E.2d

       at 984 (“Superior courts do not have the power to issue injunctive relief from

       their small claims dockets.”); Buckmaster, 426 N.E.2d at 150 (observing that

       equitable powers such as specific performance and injunctive relief are beyond

       the jurisdiction of the superior court’s small claims division).




       Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016   Page 9 of 10
[16]   Accordingly, the small claims court did not have jurisdiction to grant injunctive

       relief either in ordering that Salyer receive “the adjacent burial site just south of

       her burial site,” Appellant’s Appendix at 6, or to order that Johnson’s body be

       removed from Gravesite #15. We therefore reverse the order of the small

       claims court. See Hall, 726 N.E.2d at 361 (vacating the portion of the small

       claims court’s order entering an equitable remedy).


                                                    Conclusion

[17]   For the foregoing reasons, we find the small claims court erred in finding the

       Cemetery liable for damages, and that it did not have jurisdiction to enter an

       order for specific performance or injunctive relief. We therefore reverse the

       court’s order and remand for consideration of transfer to the court’s plenary

       docket.


[18]   Reversed and remanded.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016   Page 10 of 10
