Funeral homes, embalmers, and cemeteries are seldom parties to litigation. Yet when there is a perceived legal wrong (like a lost body or an unintended cremation), the family of the decedent most often takes deep offense and feels the need to exact compensation. This Article concerns one such case.
On November 23, 2016 the COA reversed and remanded in the case of Salyer v. Washington Regular Baptist Church Cemetery. The background varies from the mundane to the strange. Kathy Salyer had two parents, two husbands (sequentially), and five contiguous burial plots in a local cemetery. Kathy’s late father was buried in one plot, and the two deceased husbands were also buried there on opposite sides of the unoccupied space reserved for Kathy. The second unoccupied space was intended for Kathy’s still-surviving mother. That space was at one end of the five contiguous plots. In early 2014 Kathy visited the grave sites to discover that a stranger (Lowell Johnson) had been buried adjacent to Kathy’s father in that space reserved for Kathy’s mother.
It seems that the cemetery had twice sold the subject plot, with the sale to Kathy being first in time. Kathy requested that the cemetery disinter Lowell Johnson. Lowell’s family objected, and the cemetery took no action.
In May of 2015 Kathy filed suit against the cemetery on the small claims docket of the Ripley Superior Court. The complaint requested treble damages (for theft), attorney fees, and a (mandate?) judgment requiring the relocation of the remains of Lowell Johnson.
By the time the small claims case came to trial in April of 2016 Kathy’s mother had died. The mother’s body was cremated and buried in the same grave site as Kathy’s father. On the procedural side of the case, a daughter of Lowell Johnson intervened to resist relocation of her father’s remains.
Let me interject some statutory law before discussing the judgment below. IC 23-14-59 pertains to “Liabilities of Cemetery Owners” and begins with a wide grant of immunity for such a faux pas as burying a body in the wrong burial space. In contrast to the monetary immunity of IC 23-14-59-1, there is IC 23-14-59-2 providing a remedy for “wrongful burial” at the expense of the cemetery owner. According to the statute, a cemetery owner has the duty to “correct the wrongful burial.”
In the suit brought by Kathy Salyer the trial court judge entered modest compensatory (not exemplary) damages against the cemetery (contrary to the statutory immunity) and declined to enforce the statutory duty for the cemetery owners to “correct the wrongful burial.” He was not at liberty to ignore statutory immunity. Upon the circumstances of the case, the trial court judge was entitled to ignore the cemetery’s duty to relocate Lowell Johnson, but not for the reasons imagined.
Kathy Salyer (by counsel?) filed suit on the small claims docket of a Superior Court that had jurisdiction broader than small claims. Here are the most notable characteristics of small claims proceedings: 1. relaxed rules of procedure and evidence; 2. pro se friendly; and 3. limited jurisdiction.
The limited jurisdiction of a “standard” small claims court can be found at IC 33-29-2-4. A small claims court is granted jurisdiction over “civil actions” involving claims for no more than $6,000.00 and landlord-tenant possessory claims, also subject to a monetary cap of $6,000.00. The small claims court lacks the jurisdiction to order a cemetery owner to “correct” a wrongful burial.
Lawyers should not (yet do) file suit in courts lacking the requisite jurisdiction. Judges should not (yet do) entertain and rule upon disputes exceeding their court’s jurisdiction. Both errors were committed below. With the least bit of foresight, the suit of Kathy Salyer could have been transferred to the plenary docket of the same court, thereby expanding the court’s jurisdiction to include injunctive relief.
In Kathy Salyer’s appeal no other party filed a brief. Such “uncontested” appeals require careful vetting before the COA issues a precedential published Opinion. I wonder whether the vetting was sufficient in this case. Nonetheless, the COA reversed the monetary award to Kathy though it is unclear whether Kathy requested that relief. Then the COA remanded the statutory injunctive remedy issue to the small claims court (which lacked jurisdiction) for consideration of whether the case on remand should be transferred to the plenary docket of the same court.
This case began with a righteously indignant plaintiff seeking her remedy in the wrong court. Then the trial court failed to address the deficits of its own jurisdiction and contravened statutory law in an effort to craft an equitable resolution. To a lesser extent the COA committed the same sort of error. Allow me to explain. Kathy Salyer wanted the body of Lowell Johnson disinterred. She filed suit in a court without jurisdiction. She lost in the trial court on her disinterment request (as she should have in light of the jurisdictional deficit). And still an overly solicitous COA gave her a remand in order to possibly get her case right on the second try. The COA should have reversed the damages portion of the trial court judgment (as it did) otherwise dismissing the appeal.
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¹I can’t say exactly why, but the arrangement of a wife buried between her two husbands strikes me as creepy. Any man who has a family of his own, then becomes single and marries a widow can avoid the awkwardness of being buried by the widow at an inappropriate location by executing a Funeral Planning Declaration pursuant to IC 29-2-19. While a typical power of attorney expires on the death of the grantor, the Funeral Planning Declaration is like a power of attorney that commences on the death of the grantor. The point is to give funeral/burial powers to someone other than your spouse.
²Though flawed in a most fundamental way, it appears most likely that the complaint was the work of a lawyer rather than Kathy’s pro se effort.
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