Divided COA lets man stay in disputed final resting place

A man mistakenly buried at a gravesite that had already been sold to another individual will continue to rest in peace after the Indiana Court of Appeals declined to order the cemetery to exhume the man and relocate his grave. A dissenting judge, however, said Indiana statute and legal principles require the cemetery to correct the “wrongful entombment.”

Kathy Salyer sued the Washington Regular Baptist Church Cemetery in May 2015 after learning a man named Lowell Johnson had been buried on a gravesite she had previously purchased. Salyer bought four contiguous gravesites in 1982 that comprised Lot 14 of the cemetery and later purchased a fifth contiguous plot.

Salyer’s father, first husband and second husband were all buried on the sites she purchased, and according to a Wednesday appellate opinion in Kathy Salyer v. Washington Regular Baptist Church Cemetery, and Kristy Sams, 19A-PL-243, she intended for herself and her mother to be interred in the remaining two sites. Specifically, her mother was to be laid to rest in the plot known as Gravesite 15, but Salyer learned in 2014 that Johnson had been buried on that site.

The cemetery admitted it had made a mistake in reselling Gravesite 15, saying Salyer’s purchase was not properly recorded, so it was overlooked when the cemetery was searching for a gravesite for Johnson that was near his family. In a footnote, Judge Robert Altice said Johnson’s father and other family members were buried directly north of Gravesite 15.

Salyer asked that Johnson be relocated, but because his family objected, the cemetery declined. Then, when Salyer filed a small claims action, Johnson’s daughter, Kristy Sams, intervened to maintain her father’s resting place.

Meanwhile, Salyer’s mother died. Because Gravesite 15 was no longer available, Salyer had her mother cremated and buried with her father.

Even so, the small claims action continued to a bench trial in April 2016, when the small claims court ordered the cemetery to refund Salyer’s money for Gravesite 15 and give her an open site directly south of Lot 14. After Salyer’s motion to correct error was denied, the Indiana Court of Appeals in 2016 reversed and remanded, finding the small claims court lacked jurisdiction to enter specific performance or injunctive relief.

The case then went to Ripley Circuit Court, where Salyer requested that Johnson be exhumed and reburied, or that she receive $20,000 for legal expenses. But the trial court said it could not determine whether Salyer or the cemetery had mistakenly marked the gravesites, so it once again awarded her an open burial site near her family.

In upholding that decision, Altice wrote for a divided Court of Appeals panel that the issue rested on Indiana Code §23-14-59-2, which lays out the procedure for “correcting” a wrongful entombment. The majority, joined by Chief Judge Nancy Vaidik, rejected Salyer’s argument that exhuming Johnson was the only possible “correction” in this case.

“There is no easy solution here,” Altice wrote. “… 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.

“…In other words,” Altice continued, “given the circumstances as they currently exist, requiring the Cemetery to move Johnson would unnecessarily exacerbate and prolong the emotional toll on all involved.”

But Judge James Kirsch dissented, writing separately that “’(f)irst 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 Washington Regular Baptist Church Cemetery … wrongfully sold a second time to Kristy Sams, to its rightful owner, Kathy Salyer.

“… The Cemetery failed to carry out its duty under the foregoing statute,” Kirsch said, referencing I.C. 23-14-59-2. “I would remand to the trial court with instructions to order the corrective action imposed by our legislature.”

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