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
SUPREME COURT OF INDIANA
STATE OF INDIANA, INDIANA STATE )
) Supreme Court Cause Number
Appellants (Respondents ), ) 30S05-0010-CR-569
) 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
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
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.
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 Timothys
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 States 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
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 courts judgment.
See State v.
Willits, 733 N.E.2d 496 (Ind. Ct. App. 2000). Having previously granted transfer, we
now reverse the trial court.
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 courts 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.
See footnote 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 courts 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).
(c) Following the final disposition of the cause at trial level or any
other final disposition the following shall be done:
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.
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
propertys retention. We conclude that it does not apply.
The statute sustains the trial courts 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 Blacks 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 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
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 propertys 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 Dept 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.
We conclude therefore that the portion of the trial courts 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 States Trial Rule 60(B)(6) motion for relief from judgment.
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.
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
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
The State also contends the trial court lacked jurisdiction over the
person because the Willitses did not provide notice as required by Trial Rule
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
 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.
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.
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.).
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.