Dennis Mikel v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
FILED
Nov 27 2012, 8:50 am
of establishing the defense of res
judicata, collateral estoppel, or the law CLERK
of the supreme court,
of the case. court of appeals and
tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DENNIS MIKEL GREGORY F. ZOELLER
Bunker Hill, Indiana Attorney General of Indiana
ELIZABETH ROGERS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DENNIS MIKEL, )
)
Appellant-Plaintiff, )
)
vs. ) No. 52A02-1205-SC-428
)
STATE OF INDIANA, )
)
Appellee-Defendant. )
APPEAL FROM THE MIAMI SUPERIOR COURT
The Honorable J. David Grund, Judge
Cause No. 52D01-1105-SC-512
November 27, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Dennis Mikel appeals the small claims court’s damage award in his action against
the Miami Correctional Facility (“the Facility”) and Mark Sevier, Superintendent of the
Facility, (collectively, “the Defendants”). We affirm.
Issues
Mikel raises three issues, which we restate as:
I. whether the small claims court erred when it awarded
him damages in the amount of $50 for the loss of his
TV;
II. whether the small claims court erred when it failed to
award him damages for other destroyed personal
property; and
III. whether the small claims court erred by failing to
award costs.
Facts
The relevant facts were stated in the first appeal of this matter.
On April 7, 2010, during a “shake down” at the
Facility, corrections officers entered Mikel’s cell and
confiscated a number of items, including books, magazines, a
radio, some medications, and a TV. The reason given for the
confiscation was that the number of items Mikel possessed
exceeded the maximum allowed and also that the TV and
radio had been altered in violation of Facility rules.
According to Department of Correction (“DOC”) rules,
property confiscated from an inmate must be disposed of in
one of four ways, at the inmate’s discretion: it may be given
to a charity, retained for use by the DOC at the DOC’s
discretion, mailed to an outside party, or destroyed.
Additionally, an inmate may wish to file a grievance
regarding the confiscated property. If an inmate does not
choose a disposition for the property and if the inmate does
not indicate that he or she wishes to file a grievance, “the
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prohibited item(s) will be destroyed 60 days from the date of
the withholding of the item(s).” Appellant’s App. p. 18. On
the date his property was confiscated, Mikel filled out a DOC
form indicating that he intended to file a grievance. Mikel
did not indicate how he would want the property to be
disposed of.
On May 3, 2010, Mikel filed a grievance with the
Facility regarding the confiscation of his property. This first
grievance was not reviewed because Mikel allegedly had
failed to try to resolve his concerns informally. After meeting
this requirement, Mikel filed a second grievance on May 24,
2010. On June 3, 2010, a Facility employee, Clair Barnes,
responded to Mikel, “Your TV will be returned to you, and
the medication will be returned back to the medical
department.” Id. at 25. Barnes denied Mikel’s grievance
with respect to the rest of his property.
On June 16, 2010, Mikel wrote a letter indicating that
he wished to appeal the denial of his grievance. In a letter
dated June 18, 2010, Barnes wrote to Mikel, stating in part:
Your television initially appeared that it could
be returned to you. After further review by the
Property Officer, it was determined that your
TV is altered. It will not be returned to you. I
apologize for the misinformation I gave you in
the grievance response. You must select a
disposition for the television within sixty days
from the date of confiscation, or the property
will be destroyed. . . . I have scanned this letter
into the grievance. An appeal form was sent to
you on June 10, 2010. You may address your
television in your appeal, if you choose to
submit it.
Id. at 59. Also on June 18, 2010, Mikel formally filed an
appeal of the denial of his grievance. The appeal does not
mention the TV; it is unclear from the record whether Mikel
received Barnes’s letter regarding the TV before or after he
filed his appeal.
On July 22, 2010, another Facility official denied
Mikel’s grievance appeal in a written document. The
document contains the original language from the June 3,
2010 response to Mikel’s grievance, including the language
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that “[y]our TV will be returned to you,” and then states that
the reviewing official concurred with that determination. Id.
at 28.
As the next level of administrative review of Mikel’s
grievance, he filed a complaint with the DOC’s Ombudsman
Bureau. While that complaint was under consideration, on
August 2, 2010, a Facility employee sent Mikel a letter
informing him that he still had confiscated property in
storage, that the sixty-day time limit for directing disposition
of the property had passed, that Mikel had “either failed to
file a grievance or you have exhausted your grievance
remedies,” and that he now had five days to decide how he
wanted to dispose of the property. Id. at 29. Mikel did not
give any directions on how he wanted his property disposed
of, nor did the letter specify what property was being held
subject to disposal. On August 13, 2010, the director of the
Ombudsman Bureau wrote to Mikel that “[t]he grievance
response you received in reference to this matter properly
addresses the issue. You were told your TV will be returned
to you. . . . Accordingly, I find no violation of DOC policy or
procedure in regard to this matter.” Id. at 30.
On August 25, 2010, the Facility’s property officer
destroyed all of Mikel’s confiscated property, including the
TV. Mikel then timely filed a notice of tort claim for the loss
of his property with the Attorney General’s office. On
January 10, 2011, the Attorney General’s office informed
Mikel that it saw no basis for his tort claim and would not
offer a settlement to him.
On May 9, 2011, Mikel filed a complaint against the
Defendants in the small claims docket of the Miami Superior
Court, seeking damages of $1500. Before actually filing the
action, Mikel had requested that the trial court appoint
counsel to represent him. The trial court denied this request
and also ordered that Mikel’s case be decided by affidavit.
After documentary evidentiary submissions by Mikel and the
Facility, the trial court entered judgment in favor of the
Facility on October 7, 2011. . . .
Mikel v. State, No. 52A04-1111-SC-598, slip op. pp. 2-5 (Ind. Ct. App. Apr. 18, 2012)
(footnotes omitted).
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On appeal, Mikel argued, in part, that the small claims court erred by denying his
claim regarding his TV. We concluded that Mikel “established that he is entitled to
compensation for the destruction of his TV.” Id. at 12. We remanded to the small claims
court for a determination of Mikel’s damages.
On remand, the small claims court considered the previously submitted evidence
and found that the TV in question was at least thirteen years old, had a damaged rear case
that was melted due to an unknown heat source, and displayed only a two to four inch
picture in the center of the display. The small claims court found that Mikel “failed to
present any evidence regarding the value of his lost TV.” Appellant’s App. p. 9. The
small claims court concluded that the value of the TV was $50 and entered judgment in
favor of Mikel in that amount. Mikel now appeals.
Analysis
Judgments in small claims actions are “subject to review as prescribed by relevant
Indiana rules and statutes.” Ind. Small Claims Rule 11(A). Under Indiana Trial Rule
52(A), the clearly erroneous standard applies to appellate review of facts determined in a
bench trial with due regard given to the opportunity of the small claims court to assess
witness credibility. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006).
This “deferential standard of review is particularly important in small claims actions,
where trials are ‘informal, with the sole objective of dispensing speedy justice between
the parties according to the rules of substantive law.’” Id. at 1067-68 (quoting City of
Dunkirk Water & Sewage Dep’t v. Hall, 657 N.E.2d 115, 116 (Ind. 1995)). Where a
small claims case turns solely on documentary evidence, we review the judgment de
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novo, just as we review summary judgment rulings and other “paper records.” Id. at
1068.
I. Value of the TV
Mikel seems to argue that the small claims court should have awarded damages
for the replacement cost of his TV.1 The burden of proving the value of goods destroyed
by another is upon the plaintiff. Campins v. Capels, 461 N.E.2d 712, 719 (Ind. Ct. App.
1984). “The measure of damages for the destruction of personal property is the fair
market value at the time of loss.” Lachenman v. Stice, 838 N.E.2d 451, 466 (Ind. Ct.
App. 2005), trans. denied. The fair market value is “the price a willing seller will accept
from a willing buyer.” Campins, 461 N.E.2d at 719.
Mikel presented evidence only as to the replacement value, not the fair market
value of a thirteen-year-old, damaged, and poorly functioning TV. The small claims
court took into account the age and condition of the TV and determined that its value was
$50. We conclude that this assessment and award were not clearly erroneous.2
II. Other Missing Items
Next, Mikel argues that the small claims court failed to assess the value of his
other personal property, including his books, magazines, and radio. In his first appeal,
1
Mikel also seems to argue that the serial number of his TV was incorrect on one or more of the State’s
forms and that the small claims court was “bamboozled” by the “deceptive documentation.” Appellant’s
Br. p. 6. However, Mikel does not dispute that his TV was thirteen years old and does not explain how
the discrepancy in the serial numbers affects his damages.
2
Mikel also asserts that his mother gave him the TV and that it has sentimental value. However, Mikel
presented no evidence that his mother gave him the TV, and in fact, in his Offender Grievance, he stated
that he bought the TV at “W.V.C.F and have had it (13) years . . . .” Appellant’s App. p. 15.
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Mikel focused only on the destruction of his TV, and we did not address the destruction
of his books, magazines, and radio. See Mikel, No. 52A04-1111-SC-598, slip op. p. 9.
We concluded Mikel established that he was entitled to compensation for the destruction
of his TV. Consequently, on remand, the small claims court’s only task was to determine
Mikel’s damages for the destruction of his TV, not his remaining personal property.
Mikel waived damages for his remaining personal property when he failed to make an
argument regarding those damages in his first appeal. See Montgomery v. Trisler, 771
N.E.2d 1234, 1239 (Ind. Ct. App. 2002) (“[A]n issue ripe for review, but not raised in the
first appeal, will be considered as finally determined and will be deemed affirmed.”).
III. Costs
Mikel also argues that the small claims court should have awarded him costs,
including his expenses for copying and mailing. Mikel relies on Indiana Small Claims
Court Rule 11(B), which provides: “The party recovering judgment shall also recover
costs regardless of the amount.” We addressed a similar argument in Banks v. Brown,
876 N.E.2d 335, 336 (Ind. Ct. App. 2007). There, we noted that “costs may not be
assessed against the State absent specific statutory authority.” Banks, 876 N.E.2d at 335.
Mikel has not cited specific statutory authority exempting him from the general rule.
Accordingly, Mikel was not entitled to an award of costs.
Conclusion
The small claims court properly awarded Mikel damages for his TV. Mikel was
not entitled to damages for his remaining personal property or for costs. We affirm.
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Affirmed.
VAIDIK, J., and MATHIAS, J., concur.
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