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.
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[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.