I N T H E

Indiana Supreme Court

Supreme Court Case No. 20S-PL-102

Kathy Salyer,

Appellant (Plaintiff below),

–v–

Washington Regular Baptist Church Cemetery,

Appellee (Defendant below),

and

Kristy Sams,

Appellee (Intervenor below).

Decided: March 11, 2020

Appeal from the Ripley Circuit Court, No. 69C01-1703-PL-9

The Honorable Ryan J. King, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 19A-PL-243

Per Curiam Opinion

Chief Justice Rush and Justices David and Slaughter concur. 

Justices Massa and Goff dissent without opinion. 
Indiana Supreme Court | Case No. 20S-PL-102 | March 11, 2020 Page 2 of 6

Per curiam. 

We hold the plaintiff, who purchased a gravesite, only to discover three 

decades later that the cemetery resold the gravesite and allowed someone 

else to be buried there, is entitled to the relief provided by Indiana’s 

wrongful burial statutes—correction of the wrongful burial. The plaintiff 

was not afforded that relief, so we reverse in part and remand. 

Facts and Procedural Background

In 1982, Kathy Salyer purchased five contiguous gravesites in the 

Washington Regular Baptist Church Cemetery. She paid $75 for each and 

received certificates of ownership stating she owns the gravesites and her 

heirs and assigns are entitled to use them in fee simple for burial 

purposes. The certificates purport to be registered in the Cemetery’s 

record book. Salyer’s intent was to use the gravesites as a family plot. And 

over the years, the remains of her family members have been buried in 

some of those gravesites. 

Three decades after buying her gravesites, Salyer learned that a 

stranger, Lowell Johnson, was buried in her northernmost gravesite (“the 

Gravesite”), which Salyer intended for her mother. The Cemetery 

admitted it had made a mistake by inadvertently selling the Gravesite

twice, first to Salyer and later for Johnson’s burial. But the Cemetery 

refused Salyer’s demand to move Johnson’s remains. Salyer sued, seeking

damages, attorney’s fees, and an order for the Cemetery to remove 

Johnson’s remains from the Gravesite and restore it to her. Kristy Sams, 

Johnson’s daughter, intervened and objected to moving Johnson’s 

remains. 

After a reversal and remand in a prior appeal addressing jurisdiction, 

Salyer v. Washington Regular Baptist Church Cemetery, 63 N.E.3d 1091 (Ind. 

Ct. App. 2016) (“Salyer I”), the trial court held a bench trial. It issued a 

judgment concluding (1) Salyer failed to show the Cemetery committed 

wrongful burial; and (2) irrespective of who is responsible for any 

purported wrongful burial, the court was awarding Salyer a vacant 

gravesite just south of Salyer’s southernmost gravesite, free of charge, “in 
Indiana Supreme Court | Case No. 20S-PL-102 | March 11, 2020 Page 3 of 6

order to ‘correct’ this error and/or dispute[.]” App. Vol. 2 at 13. Salyer’s 

request for damages and attorney’s fees was denied. 

When Salyer appealed, the Court of Appeals affirmed. Assuming 

without deciding that the Cemetery is responsible for reselling the 

Gravesite, the Court of Appeals majority held the mistake does not require 

moving Johnson’s remains. It reasoned the trial court did not abuse its 

discretion in weighing the equities and “fashioning a remedy that 

required the Cemetery to ‘correct’ its mistake by giving Salyer an open, 

adjacent burial site at the south end” of her row of gravesites. Salyer v. 

Washington Regular Baptist Church Cemetery, 135 N.E.3d 955, 961 (Ind. Ct. 

App. 2019) (“Salyer II”). Judge Kirsch dissented. Citing the “first in time, 

first in right” principle, he opined that the judgment should be reversed 

and remanded for an order that the Cemetery correct the wrongful burial, 

“the corrective action imposed by our legislature.” Id. at 962. 

We grant transfer, vacating the Court of Appeals opinion. Ind. 

Appellate Rule 58(A). 

Discussion 

Where, as here, the trial court enters findings of fact and conclusions of 

law on its own motion, the appellate court reviews for clear error. Town of 

Fortville v. Certain Fortville Annexation Territory Landowners, 51 N.E.3d 1195, 

1198 (Ind. 2016). A finding or conclusion is clearly erroneous if the 

appellate court’s review leaves it with the firm conviction that a mistake 

has been made. Id. And where, as here, the appellees do not submit a brief 

on appeal, the appellate court need not develop an argument for the 

appellees but instead will “reverse the trial court’s judgment if the 

appellant’s brief presents a case of prima facie error.” Front Row Motors, 

LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014). Prima facie error in this context 

means “at first sight, on first appearance, or on the face of it.” Id.

Matters of statutory interpretation present pure questions of law and 

are reviewed de novo. Rodriguez v. State, 129 N.E.3d 789, 793 (Ind. 2019).

When interpreting a statute, our primary goal is to determine and give 
Indiana Supreme Court | Case No. 20S-PL-102 | March 11, 2020 Page 4 of 6

effect to the Legislature’s intent, and we give effect to the plain and 

ordinary meaning of statutory terms. Id. at 796. 

Indiana’s wrongful burial statutes provide, in relevant part, that a

cemetery owner or its agent “is not liable in any action for . . . (1) a burial 

. . . in the wrong lot, grave, grave space, burial space, crypt, crypt space, or 

niche[.]” I.C. § 23-14-59-1 (“Section 1(1)”). However, “[w]hen a wrongful 

burial . . . referred to in section 1(1) . . . occurs, the cemetery owner shall: 

(1) at the expense of the cemetery owner, correct the wrongful burial . . . as 

soon as practical after becoming aware of the error[.]” I.C. § 23-14-59-2 

(“Section 2”). Section 2 thus “imposes a specific duty upon a cemetery to 

correct a wrongful burial.” Salyer I, 63 N.E.3d at 1095. 

Salyer’s unopposed appellate brief makes a prima facie showing that 

the trial court clearly erred when concluding she failed to prove a 

wrongful burial. Most importantly, the court itself found that Johnson was 

buried in 2013 in the Gravesite, which had been sold to Salyer decades 

earlier in 1982. App. Vol. 2 at 11. Evidence supporting that finding 

includes Salyer’s testimony that years after she purchased the Gravesite, 

she discovered Johnson had been buried there, she had not given 

permission for anyone to be buried there, and the Cemetery admitted it 

had sold the Gravesite to the Johnson family and “made a mistake.” Tr. 

Vol. 2 at 17. 

Testimony of Anita Rahe, the Cemetery’s former secretary and current 

treasurer, corroborated Salyer’s. Rahe testified she has been associated 

with the Cemetery between eight and ten years and is familiar with the 

Cemetery records. She confirmed the Cemetery first sold the Gravesite to 

Salyer and years later sold it to the Johnson family and Johnson is buried 

in Salyer’s Gravesite. Asked whether she sold the Gravesite the second 

time, Rahe admitted she did, but she explained the sale to Salyer was not 

correctly recorded in the Cemetery’s book. “[T]hat was a mistake,” Rahe 

added. Id. at 45. She acknowledged that “it wasn’t something [Salyer] or 

anybody on her behalf did[.]” Id. at 56. Rahe further acknowledged that 

Salyer just wants what she purchased. Id. at 45-47. 

For its part, the trial court found confusion over the location of Salyer’s 

gravesites flowed from the mis-setting of markers associated with her 
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gravesites. The court found that it “could make no definitive 

determination” as to who set those markers, adding that “there is no 

showing as to who set [those] markers and, therefore, no showing who 

committed said wrongdoing.” App. Vol. 2 at 11-12. It also found that an 

old access road caused “significant burial site confusion.” Id. Yet neither 

the existence of an old access road nor the inability to identify who placed 

the markers renders Johnson’s burial in Salyer’s Gravesite anything other 

than “wrongful” under the statute. 

Finally, we agree with Judge Kirsch regarding the relief Salyer should 

receive. 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[.]” I.C. § 23-14-59-2 (emphasis 

added). 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.”

Merriam-Webster’s Collegiate Dictionary 259 (10th ed. 2000). 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 condition required by our 

statutes is one in which the burial is no longer “in the wrong lot, grave, 

grave space, burial space,” etc., I.C. § 23-14-59-1(1). The statutory language 

cited above does not contemplate a court’s weighing of equities to fashion 

an alternative form of relief. 

Conclusion 

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.” I.C. § 23-14-59-2. 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. 
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Rush, C.J., and David and Slaughter, JJ., concur. 

Massa and Goff, JJ., dissent without opinion. 

A T T O R N E Y F O R A P P E L L A N T

Leanna Weissmann

Lawrenceburg, Indiana