A divided Indiana Supreme Court is ordering a cemetery to exhume a man from his burial place after the gravesite was accidentally sold to two buyers. The 3-2 majority of justices reversed in the original owner’s favor on Wednesday, ordering for the grave to be restored for her future use.
The Washington Regular Baptist Church Cemetery was sued by gravesite owner Kathy Salyer in May 2015 after she discovered that a man named Lowell Johnson had been buried on a plot intended for her mother that Salyer had purchased more than 30 years prior. Salyer purchased four contiguous gravesites in 1982 that comprised Lot 14 of the cemetery and later purchased a fifth contiguous plot.
The cemetery admitted its mistake in inadvertently selling the gravesite twice, first to Salyer and later for Johnson’s burial, but refused Salyer’s demand to move Johnson’s remains. Salyer then sued, seeking damages, attorney fees, and an order for the cemetery to remove Johnson’s remains from the gravesite and restore it to her.
However, the Ripley Circuit Court held that the cemetery did not commit wrongful burial and awarded Salyer a free vacant gravesite instead, also denying her request for damages and attorney fees. The Indiana Court of Appeals affirmed, but Judge James Kirsch dissented, finding that the judgment should be reversed and remanded for an order that the cemetery correct the wrongful burial.
Indiana Supreme Court justices split in reversing the trial court’s decision in Kathy Salyer v. Washington Regular Baptist Church Cemetery, and Kristy Sams, 20S-PL-102, with the majority agreeing with Kirsch about the relief Salyer should receive. Justices Mark Massa and Christopher Goff dissented without an opinion.
“(I.C. § 23-14-59-2) Section 2 provides that when a wrongful burial described in Section 1(1) occurs, ‘the cemetery owner shall … correct the wrongful burial … after becoming aware of the error[.]’ A dictionary published a few years after Section 2 was enacted in 1997 defines the verb ‘correct’ to include ‘to make right or set right[;] to alter or adjust so as to bring to some standard or required condition.’ Thus, Section 2 requires that a wrongful burial be made right or set right, altered so as to bring it to some required condition,” the majority of Chief Justice Loretta Rush and justices Steven David and Geoffrey Slaughter held in a per curiam opinion.
“The condition required by our statutes is one in which the burial is no longer ‘in the wrong lot, grave, grave space, burial space,’ etc. The statutory language … does not contemplate a court’s weighing of equities to fashion an alternative form of relief.
“The trial court and the Court of Appeals recognized Salyer is entitled to relief. But we agree with Salyer that she is entitled to ‘correct[ion of] the wrongful burial,’” the majority continued. “Accordingly, while we affirm the denial of damages and attorney’s fees, we reverse in part and remand for the trial court to order the Cemetery to correct the wrongful burial by removing Johnson’s remains from the Gravesite and restoring it for Salyer’s use.”