Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016 Page 1 of 10

ATTORNEY FOR APPELLANT

Leanna Weissmann 

Lawrenceburg, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Kathy Salyer,

Appellant-Plaintiff,

v.

Washington Regular Baptist 

Church Cemetery,

Appellee-Defendant, 

v.

Kristy Sams,

Appellee-Intervening Party.

November 23, 2016

Court of Appeals Case No. 

69A04-1607-SC-1535

Appeal from the Ripley Superior 

Court

The Honorable Jeffrey L. Sharp, 

Judge

Trial Court Cause No.

69D01-1505-SC-147

Brown, Judge.
Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016 Page 2 of 10

[1] Kathy Salyer appeals from the May 13, 2016 order of the small claims court on 

her complaint requesting the return of a burial space she had purchased. We 

reverse and remand. 

Facts and Procedural History

[2] In 1982, Salyer purchased five contiguous gravesites in Washington Regular 

Baptist Church Cemetery (the “Cemetery”). Gravesite #15 was located on the 

northern end of the five gravesites. Moving south from Gravesite #15, Salyer’s 

father was buried at the next site, her first husband was buried at the next site, 

the next site was empty, and her second husband was buried at the final site at 

the southern end of the five contiguous sites. Salyer intended to bury her 

mother at Gravesite #15 and to have herself buried at the site between her first 

and second husbands. 

[3] In January or February of 2014, Salyer noticed that a person named Lowell 

Johnson had been buried at Gravesite #15. The Cemetery acknowledged that it

had inadvertently sold Gravesite #15 twice, first to Salyer and later for the 

burial of Lowell Johnson. Salyer requested the cemetery to relocate Lowell, the 

Johnson family objected, and the Cemetery took no action. 

[4] On May 18, 2015, Salyer filed a complaint in small claims court alleging that 

the sale of her burial spot to another individual and the refusal to return it 

constituted theft, entitling her to treble damages, and requesting “a judgment 

requiring the [Cemetery] to remove the body from the lot she owns, treble 
Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016 Page 3 of 10

damages, attorney fees, costs of this action and for all other proper relief.”1

 

Appellant’s Appendix at 8. On April 15, 2016, the court held a bench trial at 

which it noted that Kristy Sams, the daughter of Lowell Johnson, was an 

intervening third-party. Salyer testified that her mother had died, that Lowell 

Johnson was buried where she intended to bury her mother, and that she had 

her mother’s body cremated and buried in the same gravesite as her father. 

[5] On May 13, 2016, the court issued an order which provided in part: 

[T]he Court, having heard the evidence, now enters judgment in 

favor of [Salyer]. However, specific performance is not 

warranted given that [Salyer] has already taken action by 

cremating her mother and burying her mother with her father in 

the north burial site of plot 14 [site adjacent to and south of 

Gravesite #15]. 

THEREFORE, under I.C. 23-14-59-2 the appropriate remedy to 

correct the problem given the conflicting interests of [Salyer] and 

[Sams] is to compensate [Salyer] with the adjacent burial site just 

south of her burial site and to refund her $75.00 for the purchase 

of the lot in question plus court costs in the amount of $94.00. 

Id. at 6. Salyer filed a motion to correct errors, which the trial court denied. 

Discussion

[6] Salyer maintains that, because the Cemetery wrongfully buried Johnson at her 

gravesite, it must relocate Johnson’s body so that the site can be restored to her. 

 

1 The chronological case summary (“CCS”) indicates that the proceeding was on the small claims docket of 

the Ripley County Superior Court. 
Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016 Page 4 of 10

She notes that the legislature directed the course of action for a wrongful burial 

and cites to Ind. Code § 23-14-59-2. That statute states:

When a wrongful burial, entombment, inurnment, disinterment, 

disentombment, or disinurnment referred to in section 1(1) . . . of 

this chapter occurs, the cemetery owner shall:

(1) at the expense of the cemetery owner, correct the 

wrongful burial, entombment, inurnment, disinterment, 

disentombment, or disinurnment as soon as practical after 

becoming aware of the error; . . . .

Ind. Code § 23-14-59-2. Salyer notes that the legislature uses the words “shall” 

and “correct” in the statute and contends that the word “correct” does not 

mean leaving the status quo, that to correct a wrongful burial the person must 

be relocated from the improper grave, and that the statute “clearly directed the 

[C]emetery to do something to fix its mistake in reselling lot #15 and 

wrongfully burying Mr. Johnson in Kathy Salyer’s family burial plot.” 

Appellant’s Brief at 10-11. She also notes that the statute does not allow an 

exception for correcting a wrongful burial when the family objects. She

requests this Court to require the Cemetery to correct the wrongful burial by

moving Johnson and returning Gravesite #15 to her. The Cemetery has not 

filed an Appellee’s brief.

[7] The first step in interpreting a statute is to determine whether the legislature has 

spoken clearly and unambiguously on the point in question. City of N. Vernon v. 

Jennings Nw. Reg’l Utils., 829 N.E.2d 1, 4 (Ind. 2005). When a statute is clear 

and unambiguous, we need not apply any rules of construction other than to 
Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016 Page 5 of 10

require that words and phrases be taken in their plain, ordinary, and usual 

sense. Id. When a statute is susceptible to more than one interpretation, it is 

deemed ambiguous and thus open to judicial construction. Id. When faced 

with an ambiguous statute, our primary goal of statutory construction is to 

determine, give effect to, and implement the intent of the legislature. Id. To 

effectuate legislative intent, we read the sections of an act together in order that 

no part is rendered meaningless if it can be harmonized with the remainder of 

the statute. Id. We also examine the statute as a whole and do not presume 

that the legislature intended language used in a statute to be applied illogically 

or to bring about an unjust or absurd result. Id. at 4-5. Additionally, where 

provisions of a statute are in conflict, the specific provision will take priority 

over the general provision. Barrett v. City of Brazil, 919 N.E.2d 1176, 1179 (Ind. 

Ct. App. 2010), trans. denied; see Nordman v. N. Manchester Foundry, Inc., 810 

N.E.2d 1071, 1074 (Ind. Ct. App. 2004) (“When two conflicting statutory 

provisions appear controlling, the statute dealing with a subject in a specific 

manner controls over the statute dealing with the same subject in general 

terms.”). 

[8] Ind. Code § 23-14-33-6 provides that “‘Burial right’ means a right of interment, 

entombment, or inurnment granted by the owner of a cemetery and unless 

otherwise stated in the deed, certificate, or license given by the owner of the 

cemetery, is an easement for the specific purpose of burial.” 

[9] Ind. Code §§ 23-14-59 is titled “Potential Liability of Cemetery Owner.” Ind. 

Code § 23-14-59-1, which is titled “Immunity generally,” provides:
Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016 Page 6 of 10

A cemetery owner or anyone acting on behalf of a cemetery 

owner is not liable in any action for:

(1) a burial, entombment, or inurnment in the wrong lot, 

grave, grave space, burial space, crypt, crypt space, or niche . . 

. . 

(2) a disinterment, disentombment, or disinurnment of the 

wrong deceased remains;

(3) a repositioning of the remains of a deceased that 

encroach upon an adjacent lot, space, grave, grave space, 

or burial space;

(4) setting or installing a marker, monument, any type of 

memorial, or an outer burial container on the wrong lot, 

space, grave, grave space, or burial space; or

(5) installing any kind of foundation or other type of base 

for a marker, monument, or any type of memorial on the 

wrong lot or burial space.

(Emphases added). 

[10] Ind. Code § 23-14-59-2, which is titled “Duties upon wrongful burials,” 

provides in part: 

When a wrongful burial, entombment, inurnment, disinterment, 

disentombment, or disinurnment referred to in section 1(1) . . . of 

this chapter occurs, the cemetery owner shall:

(1) at the expense of the cemetery owner, correct the 

wrongful burial, entombment, inurnment, disinterment, 

disentombment, or disinurnment as soon as practical after 

becoming aware of the error; and 

(2) notify:

(A) the spouse, if living, of the deceased person 

whose remains were wrongfully buried, entombed, 
Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016 Page 7 of 10

inurned, disinterred, disentombed, or disinurned, or 

whose outer burial container was wrongfully placed;

(B) the parents, if living, of a deceased minor child 

whose remains were wrongfully buried, entombed,

inurned, disinterred, disentombed, or disinurned, or 

whose outer burial container was wrongfully placed;

(C) the person or persons whose marker, 

monument, memorial, foundation, or base was 

wrongfully placed; or

(D) the person or persons who authorized the

original burial, entombment, inurnment, 

disinterment, disentombment, or disinurnment;

of the occurrence.

(Emphases added). 

[11] We read Ind. Code §§ 23-14-59-1 and -2 together in order that no part is 

rendered meaningless. See City of N. Vernon, 829 N.E.2d at 4. Ind. Code § 23-

14-59-2 imposes a specific duty upon a cemetery to correct a wrongful burial. 

An order that a cemetery owner perform its duty to correct a wrongful burial as 

mandated by Ind. Code § 23-14-59-2 constitutes an order for specific 

performance or injunctive relief. Giving effect to the language of both statutes, 

in the event a wrongful burial occurs and a cemetery fails to correct it as 

required by Ind. Code § 23-14-59-2, a court may order the cemetery to perform 

its duty under the statute but may not find the cemetery liable for damages. 

Based on Ind. Code § 23-14-59-1, the court in this case erred in finding the 

cemetery liable for damages. 
Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016 Page 8 of 10

[12] In addition, an order that a cemetery perform its duty under Ind. Code § 23-14-

59-2 constitutes an order for specific performance or injunctive relief, and the 

small claims court’s order that Salyer receive “the adjacent burial site just south 

of her burial site,” Appellant’s Appendix at 6, also constitutes an order for 

injunctive relief. However, Salyer’s claim was filed and docketed on the small

claims docket of the Ripley County Superior Court. The jurisdiction of a small 

claims court is limited to that granted by the Constitution or by statute. 

Olympus Properties, LLC v. Plotzker, 888 N.E.2d 334, 337 (Ind. Ct. App. 2008)

(citing Nielsen Buick Jeep Eagle Subaru v. Hall, 726 N.E.2d 358, 360 (Ind. Ct.

App. 2000) (“The jurisdiction of an inferior court, such as the small claims 

division of a superior court, is limited to that which is granted by the 

Constitution or statute.”)). 

[13] Ind. Code § 33-29-2-4(b) provides: 

The small claims docket has jurisdiction over the following:

(1) Civil actions in which the amount sought or value of the 

property sought to be recovered is not more than six 

thousand dollars ($6,000). The plaintiff in a statement of 

claim or the defendant in a counterclaim may waive the 

excess of any claim that exceeds six thousand dollars 

($6,000) in order to bring it within the jurisdiction of the 

small claims docket. 

(2) Possessory actions between landlord and tenant in which 

the rent due at the time the action is filed does not exceed 

six thousand dollars ($6,000). 

(3) Emergency possessory actions between a landlord and 

tenant under IC 32-31-6.
Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016 Page 9 of 10

[14] Salyer was not a tenant and could not proceed in small claims court under Ind.

Code §§ 33-29-2-4(b)(2) or (3). See Ind. Code § 32-31-3-10 (defining “tenant” to 

mean an individual who occupies a rental unit for residential purposes, with the 

landlord’s consent, and for consideration that is agreed upon by both parties); 

Plotzker, 888 N.E.2d at 337 (concluding the plaintiff was not a tenant and thus 

could not proceed in small claims court under Ind. Code § 33-29-2-4(b)(2) or 

(3)). 

[15] Moreover, the small claims court does not have jurisdiction to exercise 

equitable powers such as ordering specific performance or injunctive relief apart 

from the statute. See Plotzker, 888 N.E.2d at 337 (observing “the small claims 

court did not have power to award injunctive relief apart from the statute”); 

Hall, 726 N.E.2d at 360-361 (observing that rescission of a contract is an 

equitable remedy and that, “as we noted in Sanders [v. Area Plan Comm’n of 

Evansville and Vanderburgh Cnty., 581 N.E.2d 983 (Ind. Ct. App. 1991)] and 

Buckmaster v. Platter, 426 N.E.2d 148, 150 (Ind. Ct. App. 1981), which involved 

the remedy of specific performance, the small claims statute does not provide

for the exercise of such extraordinary equitable powers”); Sanders, 581 N.E.2d 

at 984 (“Superior courts do not have the power to issue injunctive relief from 

their small claims dockets.”); Buckmaster, 426 N.E.2d at 150 (observing that 

equitable powers such as specific performance and injunctive relief are beyond 

the jurisdiction of the superior court’s small claims division). 
Court of Appeals of Indiana | Opinion 69A04-1607-SC-1535 | November 23, 2016 Page 10 of 10

[16] Accordingly, the small claims court did not have jurisdiction to grant injunctive 

relief either in ordering that Salyer receive “the adjacent burial site just south of 

her burial site,” Appellant’s Appendix at 6, or to order that Johnson’s body be 

removed from Gravesite #15. We therefore reverse the order of the small 

claims court. See Hall, 726 N.E.2d at 361 (vacating the portion of the small 

claims court’s order entering an equitable remedy). 

Conclusion

[17] For the foregoing reasons, we find the small claims court erred in finding the 

Cemetery liable for damages, and that it did not have jurisdiction to enter an 

order for specific performance or injunctive relief. We therefore reverse the 

court’s order and remand for consideration of transfer to the court’s plenary 

docket.

[18] Reversed and remanded. 

Robb, J., and Mathias, J., concur.