The opinion
John I. Purtle, Justice, dissenting. I would not grant the rehearing in this case because I think we correctly decided it in the original opinion. In order to determine whether the twenty percent contribution to the perpetual care fund was at issue in the lower court, I quote below two questions and answers which were abstracted by the appellant.
Q. And you don’t take the same attitude here about the 20% contribution amount that the Board requires?
A. I’m taking the same attitude, sir, but I’m paying it.
Q. in other words, you still contend that’s improper but you have been paying it?
A. That is correct.
It is obvious from the above questions and answers the appellee was contending at the hearing that the twenty percent was improper. There is another statement in appellant’s brief which I think bears upon this issue. It is as follows:
... that the transcript of the administrative hearing clearly indicated that Memorial Properties, Inc., had agreed to the 20% requirement and had previously recognized the Board’s authority to require such amount.
This also clearly shows the twenty percent requirement was considered at the administrative hearing. The appellant has presented nothing in the abstract which would be grounds for reversing the trial court.
It is obvious from reading both briefs that the appellant was trying to collect twenty percent of the gross sales from the lots in North Hills Memorial Gardens and the appellee was trying to keep from paying anything above ten percent. The whole heart of the hearing was designed to collect the additional ten percent and a penalty of ten dollars per day for each day the appellee had not paid the extra ten percent.
It is the appellant’s burden to prove his case before this court. A longstanding rule of this court is that we do not resort to the record in order to reverse; however, we may do so in order to affirm, as required in the interest of justice.