Lack of jurisdiction keeps cemetery case in court

A woman’s fight to bury her mother in a burial site that she had purchased but that was mistakenly resold will continue after the Indiana Court of Appeals found that a small claims court did not have jurisdiction to grant her injunctive relief.

In 1982, Kathy Salyer purchased five contiguous gravesites in Washington Regular Baptist Church Cemetery. Her father, and first and second husbands were buried in three of the sites, and Salyer intended to bury her mother in the northern-most gravesite and herself between her two husbands.

However, Salyer later discovered that a person named Lowell Johnson had been buried in the site intended for her mother. The cemetery admitted that it had inadvertently sold the site for the burial of Johnson after Salyer had already purchased it, but because Johnson’s family objected to his relocation, the cemetery took no action.

Salyer took the issue to small claims court, alleging theft and arguing that she was entitled to treble damages, attorney fees and court costs. She also demanded that Johnson’s body be moved. Johnson’s daughter, Kristy Sams, was an intervening third party. At the bench trial, Salyer testified that her mother had died, so she had her body cremated and buried in the same gravesite as her father.

In its May 2016 order, the court found that the best way to correct the problem was to compensate Salyer with a burial site south of her burial site, to refund her $75 for the purchase of the northern lot and to reimburse her for $94 in court costs. However, the court also found that because Salyer had already cremated her mother and buried her with her father, specific performance was not warranted.

The Ripley Superior Court denied Salyer’s motion to correct error, so she appealed, arguing that because the cemetery wrongfully buried Johnson in her gravesite, it must relocate him. She pointed specifically to Indiana Code 23-14-59-2, which holds, in part, that when a wrongful burial occurs, “the cemetery owner shall: at the expense of the cemetery owner, correct the wrongful burial … as soon as practical after becoming aware of the error.”

Although the Indiana Court of Appeals agreed Wednesday that a court may order a cemetery to perform its duty under that statute, it also held that under the preceding statute, which finds that cemetery owners are not liable in any action for a burial in the wrong lot, the trial court did err in holding the cemetery liable for damages in Salyer’s case.

Further, the appellate court wrote that I.C. 23-14-59-2 constitutes an order to specific performance or injunctive relief, and that the decision to give Salyer another burial site also constitutes an order for injunctive relief. However, small claims courts do not have jurisdiction to enter orders to specific performance or injunctive relief under Indiana statute.

Thus, the order was reversed and the case remanded for consideration of transfer to the Ripley Superior Court’s plenary docket.

The case is Kathy Salyer v. Washington Regular Baptist Church Cemetery v. Kristy Sams, 69A04-1607-SC-1535.

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