UPDATE: See 2020 Appellate Case Notes (Graveyard Follies IV) for the Indiana Supreme Court split (3/2) per curiam decision reversing the COA and requiring the disinterment of the remains of Lowell Johnson.
The initial “Graveyard Follies” review in the CLB came days after the November 23, 2016 COA Opinion in Salyer v. Washington Regular Baptist Church, 63 N.E.3d 1091 (Ind. Ct. App. 2016). Kathy Salyer had purchased five burial spaces in a local cemetery. Three of those spaces were occupied by the remains of relatives when Kathy discovered that one of the two remaining spaces held the remains of a stranger, Lowell Johnson. The plot in question had been sold twice, first to Kathy Salyer. She filed suit on the small claims docket of a Superior Court. In other words, Kathy sued in a court of general jurisdiction but selected the limited jurisdiction docket. Kathy sued for various monetary damages (despite a civil immunity statute favoring the cemetery) and for disinterment of Lowell Johnson (despite a lack of jurisdiction on the small claims docket). A relative of Mr. Johnson intervened below to object to disinterment. The COA reversed the trial court award of compensatory damages and remanded the disinterment issue to the small claims court to consider whether the case on remand should be transferred to the plenary docket of the same court.
On October 30, 2019 the COA handed down a split (2/1) decision in the post-remand appeal.¹ The case on remand was transferred to the plenary docket of the Ripley Circuit Court. Following a bench trial, Kathy was awarded an “open” (unoccupied) gravesite rather than the one she had purchased more than 30 years prior. The disinterment of Lowell Johnson was thus avoided. For the second time Kathy Salyer appealed. For the second time there was no Brief on appeal from an appellee.
The COA majority gave proper mention of the IC 23-14-59-2 requirement that a cemetery shall correct a wrongful burial and then declined to follow it. The COA majority declared (by judicial fiat) that the statutory duty of a cemetery owner to correct its wrongful burial is in fact an equitable remedy which may be ignored on equitable principles. Judge Kirsch dissented favoring a remand to the trial court with instructions to order the corrective action set forth by IC 23-14-59-2.
The CLB does not challenge the COA majority’s conclusion that it would be inequitable to disinter Lowell Johnson. The CLB does challenge the COA majority’s conclusion that equity is relevant to the statutory duty of a cemetery to correct a wrongful burial.
Given the CLB’s criticism of the first COA panel granting Kathy Salyer the gift of a remand (after she had filed suit in a court lacking jurisdiction to order disinterment), the CLB accepts the ultimate outcome of Lowell Johnson remaining buried where he was laid to rest. It would have been better to reach that conclusion without two flawed Opinions that are bound to be taken as precedent for future cases.
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¹ The COA panels in the first and second Salyer appeals have no common members.
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