Troy Thomas Lavender and April Lee Lavender, Individually and as Co-Trustees of the Troy Thomas Lavender Revocable Trust and the April Lee Lavender Revocable Trust, Appellants-Defendants, v. The Hudson Cemetery and The Hudson Cemetery Fund, Appellees-Plaintiffs. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Troy Lavender and April Lavender, individually and as co-trustees of the Troy Thomas Lavender and April Lee Lavender Revocable Trusts (collectively the Lavenders), appeal the trial court's entry of a declaratory judgment and permanent injunction against them and in favor of the Hudson Cemetery and the Hudson Cemetery Fund. Finding no error, we affirm.

Issues

[2] The Lavenders present two issues for our review:

I. Whether the trial court erred by concluding that burials can resume in the Hudson Cemetery.

II. Whether the trial court erred by concluding that the Hudson Cemetery Fund is the owner of the Hudson Cemetery.

Facts and Procedural History

[3] The Hudson Cemetery is listed on the cemetery registry for the Indiana State Historic Architectural and Archaeological Research Database. The Hudson Cemetery Fund is an unincorporated association comprised of Hudson family members led by Rusty Hudson that maintains the Cemetery, raises the funds for such maintenance, and preserves the historical significance of the Cemetery. The Hudson Cemetery is located on approximately one-half of an acre in Greene County within the boundaries of property owned by the Lavender Trusts. The property where the cemetery is located and the property now owned by the Trusts were included in a land grant conveyed to Charles Hudson in 1838. Charles is the great-great-great grandfather of Rusty Hudson and is among several Hudson ancestors buried in the cemetery.

[4] In 1922, the heirs of Charles Hudson conveyed the property to Alonso Ison with the exception of the one-half acre “for a burial place where the grave yard is now fenced off[.]” Exs. Vol. III, p. 11 (Ex. 5). Since 1922, the property has been conveyed to other Hudson family members and eventually to Troy and April in 1987 and then to their trusts, always with the exception of the one-half acre that is fenced off and used as a graveyard. See id. at 12 (Ex. 6), 13 (Exs. 7 & 8), 15 (Ex. 9), 16 (Ex. 10 - 1987 deed to Lavenders), 19 & 21 (Exs. 12 & 13 - 2009 deeds to Lavender trusts). Both before Troy and April acquired the property and since their acquisition, the Hudson family has accessed the Cemetery using the driveway on Troy and April's property.

[5] In April 2022, the Lavenders denied the Hudson Cemetery Fund and Hudson family members access to the Cemetery. In March 2023, the Hudson Cemetery and the Hudson Cemetery Fund filed a complaint for declaratory judgment and injunctive relief seeking to restore the Fund's access to the Cemetery as well as its use and maintenance of the Cemetery. The Lavenders filed a cross-claim and third party complaint, asking the court to quiet title to the Cemetery in them through adverse possession.

[6] At the bench trial on the matter, the parties stipulated to the exhibits of all the deeds and transfers of the property. See Tr. Vol. II, pp. 3-4. Following the trial, the court entered findings of fact and conclusions thereon in which the court declared that the Cemetery was not part of the Lavenders’ property, permanently enjoined the Lavenders from prohibiting access to the Cemetery by the Hudson family members and invited guests for legitimate Cemetery purposes, granted the Hudson family members and the Hudson Cemetery Fund an easement across the Lavenders’ property to access the Cemetery for maintenance and grave site visitation, and denied the Lavenders’ request to quiet title. This appeal ensued.

Discussion and Decision

[7] At the request of the Cemetery and the Fund, the trial court entered findings and conclusions pursuant to Trial Rule 52. Our standard of review in such a situation is well settled: first we determine whether the evidence supports the findings and then whether the findings support the judgment. Hicks & Sons, LLC v. Carewell Int'l, LLC, 173 N.E.3d 270, 276 (Ind. Ct. App. 2021) (quoting In re Adoption of E.B., 163 N.E.3d 931, 936 (Ind. Ct. App. 2021)). “A trial court's findings will not be overturned unless they are clearly erroneous.” Hicks & Sons, 173 N.E.3d at 276. Findings are clearly erroneous when the record lacks any evidence to support them. Id. A judgment is clearly erroneous when it is unsupported by the findings and the conclusions that rely on those findings. Id. In our review, we consider only the evidence favorable to the trial court's judgment without reweighing the evidence or reassessing the credibility of witnesses. Harper v. S&H Leasing, LLC, 260 N.E.3d 960, 967 (Ind. Ct. App. 2025) (quoting Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 614 (Ind. Ct. App. 2011), trans. denied). And we review questions of law de novo. Hicks & Sons, 173 N.E.3d at 276.

I. Resumption of Burials in the Hudson Cemetery

[8] The Lavenders assert that the trial court erred by concluding that burials can resume in the Hudson Cemetery. In challenging the court's judgment on this matter, however, the Lavenders mischaracterize the issue. They attribute the trial court's judgment permitting the resumption of burials to the court's misinterpretation of certain statutes. See Appellants’ Br. pp. 11-21. The issue before the trial court, however, was whether the Lavenders had any right or power to forbid the Fund from having burials in the Cemetery in the first place. Ultimately, the court determined that the Lavenders lacked standing to do so. Therefore, the question now on appeal is not whether the court erred by allowing the Fund to resume burials in the Cemetery but rather whether the court erred by determining that the Lavenders had no standing to prohibit further burials.

[9] On this issue, the court's judgment states that the Lavenders, “as contiguous and servient land owners, have no right or standing to restrict, prohibit, or dictate burial rights within the cemetery[.]” Appellants’ App. Vol. II, p. 42 (Findings of Fact, Conclusions and Judgment).

[10] The court's findings in support of its judgment are as follows:

51. During trial, the Lavenders introduced photographs of the cemetery they purported to show that there is no room for any more burials. However, the photographs presented show open space remaining for burials. (Exhibits 9, 10, 11 and 12.) The Lavenders did not hire anyone to conduct ground penetrating radar around the cemetery to determine the number or location of previous burials.

52. April Lavender also expressed concern about possible drainage and erosion issues in or around the cemetery if further burials were conducted. However, the Lavenders did not hire an engineer to inspect the property or contact anyone at the Department of Natural Resources, or any other agency, such as the Indiana Department of Environmental Management, to provide an opinion on drainage or erosion control issues.

53. There was no expert surveyor testimony introduced as to whether the 57.5 acres on which the Lavenders are paying taxes does or does not include the excepted cemetery. A plain reading of the legal description would indicate that there are, in fact, 57.5 acres independent of the cemetery such that the Lavenders are not being assessed taxes for the excepted cemetery.

Id. at 27-28.

[11] Based on its findings, the court concluded:

[The Lavenders] advanced no persuasive support that, in the absence of a successful adverse possession claim and/or quiet title action, a person or entity who owns real estate contiguous to or even fully surrounding a cemetery (or over whose ground the cemetery has easement rights) has the right to enjoin the owner of such cemetery from entering the cemetery for cemetery purposes, which purposes unambiguously include interment/burial, absent some injury or harm over and above the use and/or increased use of the prescriptive easement by [the Hudson Cemetery Fund] and its assigns and guests. Defendant, April Lavender's concerns regarding potential erosion potentially caused by potential, future burials was [sic] not persuasive and, even if persuasive, the common enemy doctrine would appear to protect [the Hudson Cemetery Fund's] rights to burial to the extent they otherwise exist. Simply disapproving of or not anticipating burials is not a sufficient injury or basis for injunctive relief, and [the Lavenders] have proven no such injury over and above the frustration of their preferences or expectations regarding the respective rights and obligations of [the Hudson Cemetery Fund] and [the Lavenders].

Id. at 39-40 (Conclusion #97).

[12] “The threshold issue of standing determines whether a litigant is entitled to have a court decide the substantive issues of a dispute.” Solarize Ind., Inc. v. S. Ind. Gas & Elec. Co., 182 N.E.3d 212, 216 (Ind. 2022). To be entitled to such a decision, a claimant must be the “ ‘proper person’ ” to invoke the court's authority. Id. (quoting Horner v. Curry, 125 N.E.3d 584, 589 (Ind. 2019)). Indiana law is clear that standing requires a party to demonstrate that it has suffered or is in immediate danger of suffering a direct injury as a result of the conduct at issue. Hoosier Contractors, LLC v. Gardner, 212 N.E.3d 1234, 1238 (Ind. 2023) (quoting Solarize, 182 N.E.3d at 217).

[13] In an appeal that involves Trial Rule 52 findings and conclusions, the challenger of the trial court's judgment must establish that the court's findings are clearly erroneous. Israel v. Israel, 189 N.E.3d 170, 176 (Ind. Ct. App. 2022) (quoting Estate of Kappel v. Kappel, 979 N.E.2d 642, 651-52 (Ind. Ct. App. 2012)), trans. denied. In challenging the court's judgment that they do not have standing to direct or challenge the use and operation of the Hudson Cemetery, generally, or burials therein, specifically, the Lavenders do not address the court's findings and conclusion that they have neither suffered a direct injury nor are in immediate danger thereof by the Cemetery operations. The Lavenders have no colorable claim to ownership of the real estate upon which the cemetery is located. Consequently, the Lavenders have wholly failed to meet their burden on appeal.

II. Owner of Hudson Cemetery

[14] The Lavenders next assert that the trial court erred by concluding that the Hudson Cemetery Fund is the owner of the Hudson Cemetery and claim that such conclusion was not supported by the record. The court's judgment states, in pertinent part, “that the Hudson Cemetery is a cemetery as defined by Indiana Code; that Plaintiff, The Hudson Cemetery Fund, is the operator and thus the owner of the cemetery per Indiana Code[.]” Appellants’ App. Vol. II, p. 42 (Findings of Fact, Conclusions and Judgment).

[15] The court concluded:

56. The Indiana general cemetery law is codified at Ind. Code § 23-14-33 et seq. The provisions apply to all cemeteries located within Indiana. Ind. Code § 23-14-33-2.

57. A “cemetery” means any land or structure in Indiana that is dedicated to: and used for, or intended to be used for the interment, entombment or inurnment of human remains. Ind. Code § 23-14-33-7.

․

61. “Cemetery owner” or “owner of a cemetery” means the person that owns or operates and conducts the business of a cemetery. Ind. Code § 23-14-33-8. [Emphasis added.] A “person” is defined to include individuals, as well as associations, limited liability companies, corporations, firms, or other legal entity. Ind. Code § 23-14-33-31.

․

63. An “association” is a collection of persons who have joined together to pursue a common enterprise.

Id. at 28, 29. The Lavenders direct us to Conclusion 97, in which the court stated: “[The Hudson Cemetery and the Hudson Cemetery Fund] proved that the Hudson Cemetery is a cemetery as defined by Indiana Code and that The Hudson Cemetery Fund is an unincorporated entity or association that operates the Hudson Cemetery, and, as such is the owner of the cemetery.” Id. at 39.

[16] In support of its conclusion and judgment, the court made several findings of fact:

3. The Hudson Cemetery and The Hudson Cemetery Fund consist of a group of Hudson family members, currently led largely by Rusty Hudson, who are engaged in the joint enterprise of maintaining the Hudson Cemetery, raising funds to maintain the Hudson Cemetery, and preserving the historical significance of the cemetery by sending out newsletters to interested parties. The Hudson Cemetery Fund was established to raise funds for maintenance of the cemetery. At the time of trial, the Fund had about $800.00 in its checking account. Neither organization has been formally incorporated through the Indiana Secretary of State's Office.

․

29. Until April of 2022, Plaintiff Rusty Hudson and other Hudson family members maintained the Hudson Cemetery by mowing the grass, resetting the smaller stones, planting flowers on graves, repairing the fence, and conducting other maintenance.

30. Rusty Hudson started visiting the Hudson Cemetery on a regular basis with his father and learned to maintain the cemetery and the family history when he was a small child. Gilbert Hudson assisted Rusty Hudson's father in maintaining the cemetery. Ron Martin, a cousin to Rusty Hudson, also assisted over the years in maintaining the cemetery.

31. Rusty Hudson's grandfather also maintained the cemetery. Rusty's grandchildren and step-daughter Amanda Frye have also participated over the years by cutting grass and decorating graves, for little or no compensation.

․

43. Rusty Hudson recalled one incident when one of the Lavenders’ horses got into the cemetery. Troy Lavender called Rusty Hudson to report the incident and Rusty Hudson met with Troy Lavender at the cemetery to survey the damage to the cemetery.

․

50. The Lavenders have periodically performed some maintenance to the cemetery, but the Hudson Cemetery Fund has never requested the Lavenders’ assistance nor abandoned its own maintenance efforts.

Id. at 18, 24, 26, 27.

[17] The Lavenders argue that the maintenance of the Cemetery performed by the Fund and Hudson family members does not equate to ownership of the Cemetery. Indiana Code chapters 23-14-33 through 23-14-76 comprise the Indiana General Cemetery Law, and the provisions of these chapters apply to all cemeteries, except as otherwise provided. Ind. Code §§ 23-14-33-1, -2. Section 23-14-33-7 defines the term “cemetery” as any land or structure that is dedicated to and used for, or intended to be used for the interment, entombment, or inurnment of human remains. And Section 23-14-33-8 provides:

“Cemetery owner” or “owner of a cemetery” means the person that:

(1) owns; or

(2) operates and conducts the business of; a cemetery.

For these purposes, “[p]erson” is defined as “an individual, an association, a limited liability company, a corporation, a firm, or another legal entity.” Ind. Code § 23-14-33-31.

[18] The term “association” is not defined in the General Cemetery Law. However, it is well settled that “[w]e give undefined words in statutes their plain, ordinary meaning.” Horn v. Hendrickson, 824 N.E.2d 690, 699 (Ind. Ct. App. 2005). The general meaning of “association” is “[a] gathering of people for a common purpose; the persons so joined” and “[a]n unincorporated organization that is not a legal entity separate from the persons who compose it[;]” also termed “unincorporated association” or “voluntary association.” Association, BLACK'S LAW DICTIONARY (11th ed. 2019).

[19] The Lavenders do not direct us to any case law or legal standard to support their argument that the Fund is not the owner of the Cemetery. Instead, the Lavenders point to Troy's testimony that he had occasionally performed some maintenance to the cemetery. See Appellants’ Br. p. 23. However, we will not reweigh the evidence, and, as Troy's testimony is not favorable to the judgment, we may not consider it. See Harper, 260 N.E.3d at 967.

[20] Moreover, the evidence showed that the Hudson Cemetery Fund does more than just maintenance concerning the Cemetery. The Hudson family visits the graves of their ancestors and loved ones, and the Fund has a bank account, maintains the records of the Cemetery, and occasionally sends a newsletter. Rusty testified that the Fund has “pretty accurate records of whose [sic] there and where they're at in the cemetery.” Tr. Vol. II, p. 44.

[21] Further, to the extent the Lavenders argue that the Hudson Cemetery Fund is not the owner of the Cemetery but rather a perpetual care fund governed by Indiana Code chapter 23-14-48, see Appellants’ Br. p. 24, they have waived this argument by not presenting it to the trial court. See CT102 LLC v. Auto. Fin. Corp., 175 N.E.3d 869, 874 (Ind. Ct. App. 2021) (it is well settled that argument presented for first time on appeal is waived for appellate review). Moreover, waiver notwithstanding, it appears that this chapter of the code does not even apply to the Hudson Cemetery, as it does not apply to a cemetery:

(A) that is ten (10) acres or less in size;

(B) that is owned and operated entirely and exclusively by a nonprofit mutual association in existence on June 14, 1939; and

(C) in which burials have taken place before June 14, 1939.

Ind. Code § 23-14-48-1(a)(3). The Lavenders’ brief is silent on this point.

[22] Thus, having reviewed de novo the questions of law addressed by the trial court, we find the court did not err in its application of the statutes. Further, the evidence supports the court's findings, and the findings support the court's judgment that the Hudson Cemetery Fund, as an association of Hudson family members that has operated, maintained, and conducted the business of the Hudson Cemetery for many decades, is the owner of the Cemetery pursuant to Indiana Code section 23-14-33-8. The Lavenders have not satisfied their burden of demonstrating that the court's findings are clearly erroneous.

Conclusion

[23] The trial court did not err when it concluded that the Lavenders have no standing or right to restrict, prohibit, or dictate the operation, maintenance, or burials of the Hudson Cemetery and that the Hudson Cemetery Fund is the owner of the Hudson Cemetery.

[24] Affirmed.

Crone, Senior Judge.

Judges Pyle and Tavitas concur. Pyle, J., and Tavitas, J., concur.