32-2194.09. Civil liabilities

A. If any part of the notice of intention filed pursuant to section 32-2194.01 contains an untrue statement of a material fact or omits a material fact required to be stated in such notice, the owner or agent is liable as provided in this article to any person who acquires a plot in the cemetery.

B. A cemetery owner, operator, broker or salesman who sells a cemetery plot in violation of this article is liable to the purchaser of such plot as provided in this article.

C. It is unlawful for any cemetery owner, operator, broker or salesman in selling or offering to sell any cemetery plot to:

1. Employ any device, scheme or artifice to defraud.

2. Obtain money or property by means of a material misrepresentation with respect to any information included in the notice of intention or the certificate of authority with respect to any other information pertinent to the plot on which the purchaser relies.

3. Engage in any transaction, practice or course of business which operates or would operate as a fraud or deceit on a purchaser.

D. Damages in any suit brought pursuant to this section shall be the difference between the amount paid for the plot together with the reasonable cost of improvements to such plot and whichever of the following is the smallest:

1. The value of the plot and improvements as of the time the suit was brought.

2. The price at which the plot was disposed of in a bona fide market transaction before suit.

3. The price at which the plot was disposed of in a bona fide market transaction after suit was brought but before judgment.

E. In an action in which a violation of this section is established the purchaser is also entitled to recover reasonable attorney fees as determined by the court. If a violation is not established, the court, in its discretion, may award reasonable attorney fees to the defendant.

F. Every person who becomes liable to make any payment pursuant to this section may recover contribution as in cases of contract from any person who, if sued separately, would have been liable to make the same payment.

G. In no case shall the amount recoverable pursuant to this section exceed the sum of the purchase price of the plot, the reasonable cost of improvements installed by the purchaser and reasonable court costs and attorney fees.

H. Nothing contained in this section precludes any other remedies that may exist at law or in equity.

I. No action may be maintained to enforce any liability created pursuant to subsection A or B of this section unless brought within one year after the discovery of the untrue statement or the omission or after such discovery should have been made by the exercise of reasonable diligence. No action may be maintained to enforce any liability created pursuant to subsection C of this section unless brought within two years after the violation on which it is based. In no event shall any such action be brought by a purchaser more than three years after the sale to the purchaser.