Alistair Edwards—Senior Attorney, National Legal Research Group
It is not uncommon for an individual to purchase a specific cemetery gravesite or gravesites many years in advance with the plan for family members to all be buried in the same area. That was the exact plan of the plaintiff, Kathy Salyer. In 1982, after the death of her first husband, Salyer purchased four contiguous gravesites in the cemetery comprising lot 14. Later that year, Salyer purchased an additional gravesite (Gravesite 15) contiguous to lot 14. Salyer possessed a Certificate of Ownership for each purchase. Salyer intended to bury her mother in Gravesite 15 and to have herself buried in the empty site between her first and second husbands. Despite Salyer's plan, she discovered in 2014 that a stranger, Mr. Johnson, had been buried in Gravesite 15. The cemetery acknowledged that it had made a mistake and had sold Gravesite 15 twice, first to Salyer and then to Mr. Johnson's family. Salyer's purchase of Gravesite 15 had not been entered in the cemetery's records, causing the cemetery's sale agent to sell the site twice.
Salyer filed an action against the cemetery, seeking an order to have the cemetery reinter the decedent, Mr. Johnson, who had been mistakenly buried in the gravesite. Mr. Johnson's daughter intervened in the action, objecting to the removal of her father's body from the gravesite.
The trial court took the position that the gravesite was real property and the purchase of a gravesite is a real estate transaction. The court considered Salyer's request, to reinter the decedent, as an action for specific performance. This was an equitable remedy in which the court had discretion whether to grant Salyer's request or fashion some alternative remedy. In balancing the equities between the parties, the court considered that Salyer had failed to provide a reason why the specific gravesite was significant to her future family burial plans. Salyer's mother, who was supposed to be buried in the gravesite, had already been cremated and buried in her deceased husband's different gravesite.
The intermediate court of appeals in Salyer v. Washington Regular Baptist Church Cemetery, 135 N.E.3d 955 (Ind. Ct. App. 2019), agreed with the trial court that reinterring Mr. Johnson would be traumatic for his family. Consequently, that court affirmed the trial court's decision to refuse Salyer's request to reinter the decedent. Instead, Salyer was awarded a different gravesite adjacent to the lot of sites containing Salyer's various family members and husbands.
However, the Supreme Court of Indiana in Salyer v. Washington Regular Baptist Church Cemetery, No. 20S-PL-102, 2020 WL 1164272 (Ind. Mar. 11, 2020), subsequently held that the trial court and the court of appeals properly recognized that Salyer was entitled to relief but that Indiana's wrongful burial statute should govern. Pursuant to Ind. Code Ann. § 23-14-59-2, when a wrongful burial occurs, "the cemetery owner shall . . . correct the wrongful burial . . . after becoming aware of the error." According to Indiana's high court, this meant that the cemetery be required to correct the wrongful burial by removing Johnson's remains from the gravesite and restoring it for Salyer's use. The case was remanded to the trial court in order to carry out this order.