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

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              ).            )

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. See footnote 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. See footnote 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.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.