Altice, J.
Case Summary
Kathy Salyer filed a complaint against the Washington Regular Baptist Church Cemetery (the Cemetery) seeking to have a gravesite she purchased returned to her after the Cemetery sold the gravesite a second time and another individual was buried there. Following a bench trial, the trial court awarded Salyer an open gravesite rather than the gravesite she had purchased over thirty years prior that had since been mistakenly resold for the burial of another. On appeal, Salyer presents two issues, which we consolidate and restate as: Did the trial court abuse its discretion in ordering the Cemetery to provide Salyer with a different gravesite rather than ordering the Cemetery to have the individual buried in the gravesite she had previously purchased reinterred elsewhere so as to restore the gravesite for her use?
We affirm.
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Salyer argues that the trial court erred in concluding that she failed to prove the Cemetery committed a wrongful burial and takes issue with the court’s suggestion that she might be partly to blame for the wrongful burial. Assuming without deciding that Salyer is correct—i.e., the trial court should have determined that the Cemetery, not Salyer, was responsible for the reselling of Gravesite 15 to Johnson’s family for his burial—we find no error with the trial court’s resolution of the matter.
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Our legislature set out the duties of a cemetery upon a wrongful burial…A cemetery is also required to give notice to specified individuals associated with the individual buried in the wrong grave. While our legislature has provided that cemeteries “shall . . . correct” a wrongful burial, the legislature also granted cemeteries immunity for any such wrongful burial. See I.C. § 23-14-59-1(1) (“A cemetery owner or anyone acting on behalf of a cemetery owner is not liable in any action for . . . a burial, entombment, or inurnment in the wrong lot, grave, grave space, burial space, crypt, crypt space, or niche.”) (emphasis supplied).
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By using the word “shall” in I.C. § 23-14-59-2, the legislature expressed its intention that a cemetery is required to “correct” a wrongful burial. The operative word we must give effect to is the word “correct.” To correct is “to set or make true, accurate, or right; remove the errors or faults from.” See https://www.dictionary.com/browse/correct?s=t (last visited October 10, 2019). Salyer maintains that to “correct” its error, the Cemetery must exhume Johnson from Gravesite 15 so that Gravesite 15 is available for her use. We disagree.
An order that a cemetery owner perform its duty to correct a wrongful burial as mandated by I.C. § 23-14-59-2 constitutes an order for specific performance, which is an equitable remedy. See Kesler, 792 N.E.2d at 896. The power of a court to compel specific performance is an extraordinary power and as such, is not available as a matter of right. Id. The decision whether to grant specific performance is a matter within the trial court’s discretion. Id. We will find an abuse of discretion where the trial court’s decision is clearly against the reasonable deductions which may be drawn from the facts before the court. Id.
There is no easy solution here. The Cemetery sold Gravesite 15 to two different purchasers, neither of whom can be faulted for the circumstances that now must be resolved. On one side, Salyer purchased Gravesite 15 in 1982, and such was mistakenly sold a second time for Johnson’s burial. Regrettably, because of the Cemetery’s mistake, Salyer had to make the decision to have her mother cremated so her mother could be buried in the same gravesite as Salyer’s father in order to accomplish her desire that her parents be buried close to one another. Thus, at this point, returning Gravesite 15 to Salyer would have no practical benefit to her, but would serve only to affirm that Salyer purchased Gravesite 15 first. On the other hand, Johnson’s family purchased a gravesite for Johnson’s burial that, unbeknownst to them, was not available. Gravesite 15 was adjacent to other members of Johnson’s family and there was no evidence that there is another gravesite similarly situated.
The trial court was presented with the delicate and difficult task of balancing the equities of the parties under grievous circumstances. In doing so, the trial court considered that Salyer provided “no specific reason as to what makes [Gravesite 15] significant” given that her plans for Gravesite 15 had changed in that she had to make alternate arrangements for the burial of her mother. Appellant’s Appendix Vol. Two at 12. The trial court weighed this consideration against the fact that to move Johnson from Gravesite 15 “would be extremely traumatic” for Johnson’s daughter. Id. In other words, given the circumstances as they currently exist, requiring the Cemetery to move Johnson would unnecessarily exacerbate and prolong the emotional toll on all involved. Considering the equities, we conclude that the trial court did not abuse its discretion in fashioning a remedy that required the Cemetery to “correct” its mistake by giving Salyer an open, adjacent burial site at the south end of Lot 14 free of charge.
Judgment affirmed.
Vaidik C.J., concurs.
Kirsch, J., dissents with opinion
Kirsch, Judge, dissenting.
I respectfully dissent.
First in time, first in right” has long been a foundational legal principle. It should be applied in this instance to return the cemetery plot, which the Washington Regular Baptist Church Cemetery (“the Cemetery”) wrongfully sold a second time to Kristy Sams, to its rightful owner, Kathy Salyer.
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The Cemetery failed to carry out its duty under the foregoing statute. I would remand to the trial court with instructions to order the corrective action imposed by our legislature.