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                 MEMORANDUM DECISION – NOT FOR PUBLICATION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

                                              2
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

                               3
             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).



                                            4
      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

                                            5
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.


                                                   6
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.



                                            7
      Affirmed.

VAIDIK, J., and MATHIAS, J., concur.




                                       8
