Legal Research AI

State v. Willits

Court: Indiana Supreme Court
Date filed: 2002-08-20
Citations: 773 N.E.2d 808
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30 Citing Cases




ATTORNEYS FOR APPELLANTS:         ATTORNEYS FOR APPELLEES:

KAREN M. FREEMAN-WILSON           GREGG H. MORELOCK
Attorney General of Indiana             D. J. DAVIS
                                        COHEN & MORELOCK
JON LARAMORE                            Greenfield, Indiana
Deputy Attorney General
Indianapolis, Indiana





                                   IN THE


                          SUPREME COURT OF INDIANA



STATE OF INDIANA, INDIANA STATE   )
POLICE,                                 )
                                        )    Supreme Court Cause Number
      Appellants (Respondents),              )     30S05-0010-CR-569
                                        )
            v.                          )
                                        )    Court of Appeals Cause Number
TIMOTHY X. WILLITS, et al.,             )    30A05-0001-CR-29
                                        )
      Appellees (Petitioners).               )


                   APPEAL FROM THE HANCOCK SUPERIOR COURT
                    The Honorable Richard T. Payne, Judge
                         Cause No.  30D01-9709-CF-60



                           ON PETITION TO TRANSFER



                               August 20, 2002

RUCKER, Justice
      After a criminal prosecution ended  in  a  conviction,  third  parties
intervened to obtain the return of property that had been earlier seized  by
the State Police. In addition to an order to return the property, the  trial
court also awarded damages.   The  Court  of  Appeals  affirmed.   We  grant
transfer and hold that the statute authorizing the return of  property  does
not also authorize the award of money damages.  The judgment  of  the  trial
court is therefore reversed.

                      Background and Procedural History


      When the  Indiana  State  Police  received  information  that  Timothy
Willits was selling drugs and buying stolen merchandise out of a  family-run
business, they decided to conduct a “sting” operation.   Officers  purchased
several bait and tackle supplies from a Wal-Mart store and marked them  with
either an ultraviolet solution or a special  bar  code.   The  marked  items
were provided to  an  informant.   In  exchange  for  drugs  or  money,  the
informant passed the items along to Timothy Willits at the Willits Bait  and
Tackle Shop in Greenfield.
      On September 17, 1997, armed with a list of  specially  marked  items,
State Troopers obtained a warrant  to  search  the  Bait  and  Tackle  Shop.
Executing  the  warrant,  officers  seized  over  96,000   inventory   items
consisting primarily of sport-fishing lures and related  camping  equipment.
The day after the warrant was executed, Timothy  Willits  was  arrested  and
charged in Hancock  Superior  Court  No.  1,  the  Honorable  Richard  Payne
presiding.  Although the record is not clear  of  the  relationship  between
Timothy Willits and the husband and wife team of  Robert  and  Judy  Willits
(referred to collectively as “the Willitses”),  the  record  is  clear  that
husband and wife owned the Bait and Tackle  Shop  and  much  of  the  seized
inventory.  Thus, about a week after  the  search,  the  Willitses  filed  a
“Motion to Recover Property” in Hancock Superior Court No. 2, the  Honorable
Richard Culver presiding.  R. at 8, 16.  The motion  sought  return  of  all
items taken during the search.
      After conducting a hearing, the trial court found  that  many  of  the
seized items were not listed in the probable cause affidavit and  thus  were
beyond the scope of the warrant.  R. at 65.  As a result,  the  trial  court
ordered the Indiana State Police and  the  State  of  Indiana  (referred  to
collectively as “the State”) to return  those  items  to  the  Willitses.[1]
The State complied, at least in part.  The record  shows  that  on  November
19, 1997, a State Trooper appeared at the Willits Bait and Tackle Shop  with
several boxes of fishing lures and other fishing equipment.   However,  some
of the items were damaged and unsuitable for sale, and  several  items  were
missing that had been ordered returned.
      On December 1, 1998, the Willitses filed a petition  to  intervene  in
Timothy’s criminal case before Judge  Payne  and  filed  another  Motion  to
Recover Property.  Timothy joined the motion.  By that time, he had  pleaded
guilty to drug-related charges and  had  been  sentenced  accordingly.   The
trial court granted the petition to intervene and scheduled  the  Motion  to
Recover Property for hearing on January 25, 1999.
      The Willitses served a summons, a copy of the motion, and a notice  of
the hearing date on both the Indiana State Police and the State  of  Indiana
by certified mail return  receipt  requested.   However,  on  the  scheduled
hearing date, no one appeared on the State’s behalf.   Upon  motion  by  the
Willitses, the trial court entered default judgment against  the  State  and
proceeded to hear evidence that  included  the  condition  of  the  returned
property and the wholesale value of the property that was either damaged  or
not returned.  The trial court then awarded damages to the Willitses in  the
amount of $31,084.28.  The trial court also directed the State to return  to
the Willitses by a date certain property belonging to Timothy.   Failing  to
do so, declared the trial court, would result in a further award of  damages
in the amount of $3,904.14.  In addition, the trial  court  warned  that  if
any of the property was returned  in  a  damaged  condition  unsuitable  for
sale, then another hearing would be conducted to  determine  the  amount  of
the loss.
      Thereafter, the State filed a motion for relief from judgment.   After
a hearing, the trial court denied the motion.  On review,  a  divided  panel
of the Court Appeals affirmed the trial  court’s  judgment.   See  State  v.
Willits, 733 N.E.2d 496 (Ind. Ct.  App.  2000).  Having  previously  granted
transfer, we now reverse the trial court.

                                 Discussion

      Under Indiana Trial Rule 60(B), the court may relieve a party  from  a
default judgment for a variety of reasons including “mistake,  surprise,  or
excusable neglect,” Ind. Trial Rule 60(B)(1); “the judgment is  void,”  T.R.
60(B)(6); or “any  reason  justifying  relief  from  the  operation  of  the
judgment, other than those reasons” explicitly stated, T.R.  60(B)(8).   The
grant or denial of a Trial Rule 60(B) motion for  relief  from  judgment  is
left to the sound discretion of the  trial  court.   Wolvos  v.  Meyer,  668
N.E.2d 671, 678 (Ind. 1996).  On review, we will reverse only if  the  trial
court abused its discretion.  LaPalme  v.  Romero,  621  N.E.2d  1102,  1104
(Ind. 1993).  An abuse of discretion occurs if the  trial  court’s  decision
is clearly against the logic and  effect  of  the  facts  and  circumstances
before the court or if the court has misinterpreted the law.  McCullough  v.
Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993).
      Arguing the trial court lacked jurisdiction to award money damages  in
this case, the State implicitly  invokes  the  void  judgment  provision  of
Trial Rule 60(B)(6).  Jurisdiction  is  comprised  of  three  elements:  (1)
jurisdiction of the subject matter; (2) jurisdiction of the person; and  (3)
jurisdiction of the particular case.  Troxel v. Troxel, 737 N.E.2d 745,  749
(Ind. 2000).   Only  jurisdiction  of  the  particular  case  is  implicated
here.[2]   “Jurisdiction  of  the  particular  case  refers  to  the  right,
authority, and power to hear and determine a specific case within the  class
of cases over which a court has  subject  matter  jurisdiction.”   Adler  v.
Adler, 713 N.E.2d 348, 352 (Ind. Ct. App. 1999) (quoting City of  Marion  v.
Antrobus, 448 N.E.2d  325,  329  (Ind.  Ct.  App.  1983)  (emphasis  in  the
original)).  A judgment rendered by a court without jurisdiction to  hear  a
particular case is voidable.  Troxel, 737 N.E.2d at 750.  Because the  State
timely objected  to  the  trial  court’s  jurisdiction,  the  jurisdictional
defect, if any, has not been waived.  See id.
      Indiana Code section 35-33-5-5 governs  the  disposition  of  property
seized as a result of a search  or  an  arrest.   The  statute  provides  in
relevant part:
      (b) Evidence that consists of property obtained  unlawfully  from  its
      owner may be returned by the  law  enforcement  agency  to  the  owner
      before trial, in accordance with IC 35-43-4-4(h).[3]


      (c) Following the final disposition of the cause at trial level or any
      other final disposition the following shall be done:


           1) Property which may be lawfully possessed shall be returned to
              its rightful owner, if known.  If  ownership  is  unknown,  a
              reasonable attempt shall  be  made  by  the  law  enforcement
              agency holding the property to  ascertain  ownership  of  the
              property.

Ind. Code § 35-33-5-5(b), (c)(1).  There is no question  that  this  statute
applies to the return of property to its lawful owner.  See Moore v.  State,
504 N.E.2d 586, 587 (Ind. Ct. App. 1987) (noting  that  where  there  is  no
dispute about the ownership or right of  possession  of  the  property,  the
police agency holding the property could return it to its owner without  the
necessity of a prior evidentiary hearing).   The  question  is  whether  the
statute applies also  to  an  award  of  money  damages  incidental  to  the
property’s retention.  We conclude that it does not apply.
      The statute “sustains the trial court’s continuing  jurisdiction  over
property seized in the course of a criminal investigation.”  Conn v.  State,
496 N.E.2d 604, 609 (Ind. Ct. App. 1986).  It also codifies the  common  law
rule that requires the return of such property to the rightful owner  unless
the property has  been  destroyed  because  possession  would  be  unlawful.
Hicks v. State, 635 N.E.2d 1151,  1153  (Ind.  Ct.  App.  1994);  Conn,  496
N.E.2d at 609.  Under the common law, a legal proceeding for the  return  of
property was referred  to  as  an  action  in  replevin.   See  Black’s  Law
Dictionary 1299 (6th ed. 1990) (defining replevin as  “[a]n  action  whereby
the owner or person entitled  to  repossession  of  goods  or  chattels  may
recover those goods or chattels from one who has  wrongfully  distrained  or
taken or who wrongfully detains such good or chattels.”); see also  Ridgeway
v. West, 60 Ind. 371, 372-73 (1878) (noting  that  plaintiff  maintained  an
action in replevin to recover items seized by a warrant).   Importantly  for
our analysis here, under the common law, an action in replevin  contemplated
the return  of  goods  only  and  did  not  include  a  monetary  award  for
incidental damages.[4]  See Doughty v. Sullivan, 661 A.2d  1112,  1118  (Me.
1995) (“Historically, replevin lay to  recover  immediate  possession  of  a
specific chattel as compared with other common law actions for  trespass  or
conversion which lay to  recover  damages  for  the  wrongful  taking  of  a
chattel.”) (citing Joseph E. Cobbey, A Practical  Treatise  on  the  Law  of
Replevin § 17 (2d ed. 1900) (“In replevin there was no claim for damages  as
such, but only for the immediate possession of  the  property.”));  Maryland
Cas. Ins. Co. v. Welchel, 356 S.E.2d 877, 879 (Ga. 1987)  (“At  common  law,
trover was an action for  damages  for  conversion  of  personalty;  [while]
replevin was an action to recover specific  chattels  unlawfully  taken  and
wrongfully withheld.”); Sinnot v. Feiock,  59  N.E.  265,  265  (N.Y.  1901)
(noting that at  common  law,  replevin  was  “essentially  [an  action]  to
recover the  possession  of  chattels,  as  distinguished  from  actions  in
trespass or trover to recover damages for the seizure or for  the  value  of
the property.”).
      Under the  rules  of  statutory  construction  we  “presume  that  the
legislature did not intend to make any  change  in  the  common  law  beyond
those declared either in express  terms  or  by  unmistakable  implication.”
South Bend Cmty. Sch. Corp. v. Widawski, 622 N.E.2d 160,  162  (Ind.  1993).
Because the common law did not contemplate money damage  awards  in  actions
for replevin, we do not believe the  legislature  intended  to  change  that
rule when it enacted Indiana Code section 35-33-5-5.
      We are bolstered in this belief for two additional  reasons  as  well.
First, the statute does not expressly provide for an award of money  damages
incident to the property’s retention.  “‘When certain  items  or  words  are
specified or enumerated in a statute then, by implication,  other  items  or
words not so specified or enumerated are excluded.’”   Forte  v.  Connerwood
Healthcare, Inc., 745 N.E.2d 796, 800 (Ind. 2001) (quoting  Health  &  Hosp.
Corp. of Marion County v. Marion County, 470 N.E.2d  1348,  1355  (Ind.  Ct.
App.  1984)).   This  is  so  under  an  ancient   doctrine   of   statutory
construction: expressio unius est  exclusio  alterius.   See  2A  Norman  J.
Singer, Statutes and Statutory Construction § 47:23 (6th ed.  2000).   Here,
the statute provides for the return of property only.   By  implication,  an
award of money damages is excluded.
      Second, the Tort  Claims  Act  was  enacted  by  the  Indiana  General
Assembly  in  order  to  establish  procedures  for  cases   involving   the
prosecution of tort claims against governmental entities. Indiana  Dep’t  of
Transp. v. Shelly & Sands, Inc.,  756  N.E.2d  1063,  1076  (Ind.  Ct.  App.
2001).  The Act is comprehensive, and unless the  activity  giving  rise  to
the tort falls within certain enumerated exceptions,  governmental  entities
and their employees are subject to liability for  torts  they  commit.   See
I.C. § 34-13-3-3.  This includes claims for “damage to  property.”   I.C.  §
34-6-2-75.  It is the Act which  the  Willitses  must  avail  themselves  to
pursue a monetary award for any damages to their inventory.[5]  We  conclude
therefore that the portion of the trial court’s  judgment  awarding  damages
to the Willitses for the value of their unreturned property is  void  having
no force and effect.  As such, the trial court erred in denying the  State’s
Trial Rule 60(B)(6) motion for relief from judgment.

                                 Conclusion

      The judgment of the trial court is reversed.  This cause  is  remanded
for further proceedings.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
      [1]  The record shows that the trial judge before whom the motion  was
filed was the same judge who  had  originally  issued  the  search  warrant.
There is no question the judge possessed jurisdiction to  issue  the  search
warrant and to order all seized property  impounded  by  the  State  Police.
However, once criminal charges were filed in Hancock Superior Court  No.  1,
the judge in  Hancock  Superior  Court  No.  2  lost  all  jurisdiction  and
authority over the case and thus should not have entered an  order  for  the
return of property.  See State ex rel. Coleman v. Hendricks  Superior  Court
II, 272 Ind. 40, 396 N.E.2d 111, 112 (1979) (granting writ  of  mandate  and
prohibition holding void an order of the Hendricks Superior Court to  return
seized items where order was issued after jurisdiction  over  the  case  had
vested in the Hendricks Circuit Court).  However, neither party raises  this
jurisdictional claim on appeal.
      [2]  The State also contends the trial court lacked jurisdiction  over
the person because the Willitses did  not  provide  notice  as  required  by
Trial Rule 55(B).  See T.R. 55(B) (requiring “[i]f the  party  against  whom
judgment by default is sought has appeared in the action, he . . . shall  be
served with written notice of the application for judgment  at  least  three
[3] days prior to the hearing on such application.”).  Because  we  conclude
the trial court erred in  awarding  money  damages,  we  do  not  reach  the
question of personal jurisdiction.
      [3]  Indiana Code section 35-43-4-4(h) provides:
           A law enforcement agency that is holding  as  evidence  property
      over which a person is alleged to have exerted unauthorized control or
      to have otherwise obtained unlawfully, may return that property to its
      owner if:
      (1)   the property has been photographed in a manner that  will  serve
      the purpose of demonstrating the nature of the property, and if  these
      photographs are filed with or retained by the law  enforcement  agency
      in place of the property;
      (2)   receipt for  the  property  is  obtained  from  the  owner  upon
      delivery by the law enforcement agency;
      (3)   the prosecuting attorney who is prosecuting a case that involves
      the property has not requested the law enforcement agency  to  decline
      requests for return of the property to its owner; and
      (4)   the property may be lawfully possessed by the owner.
      [4]  Compare I.C. § 34-21-10-1 (codifying the common law  of  replevin
and allowing an award of monetary damages); State Exch. Bank  of  Culver  v.
Teague, 495 N.E.2d  262,  266  (Ind.  Ct.  App.  1986)  (commenting  on  the
statutory provision and explaining that “[a] replevin  action  is  a  speedy
statutory remedy designed to allow one to  recover  possession  of  property
wrongfully held or detained  as  well  as  any  damages  incidental  to  the
detention.”).
      [5]  The Willitses apparently anticipated that the Tort Claims Act was
the appropriate remedy to pursue their claim against the State.  The  record
shows that on September 24, 1997, pursuant to  Indiana  Code  section  34-4-
16.5, the Willitses sent notice to  the  State  Police  Superintendent,  the
Risk Management Commission,  and  the  Attorney  General  of  Indiana.   See
Appendix A to Appellees’ Br. in Opposition of Petition for Transfer.