IN THE COURT OF APPEALS OF TENNESSEE, AT JACKSON
_______________________________________________________ FILED ) April 28, 1999 E. L. REID, ) Claims Commission No. 97-002-866 ) Cecil Crowson, Jr. Claimant/Appellant. ) Appellate Court Clerk ) VS. ) C.A. No. 02A01-9810-BC-00293 ) STATE OF TENNESSEE, ) ) Defendant/Appellee. ) ) ______________________________________________________________________________
From the Claims Commission of the State of Tennessee, Western Division Martha B. Brasfield, Commissioner of Claims
E. L. Reid, Pro Se Claimant/Appellant.
Paul G. Summers, Attorney General and Reporter Michael E. Moore, Solicitor General Sohnia W. Hong, Assistant Attorney General Attorneys for Defendant/Appellee.
OPINION FILED:
AFFIRMED
FARMER, J.
CRAWFORD, P.J., W.S.: (Concurs) LILLARD, J.: (Concurs) Claimant E. L. Reid appeals the final order of the Commissioner of Claims which awarded Reid $50 for the loss of a radio/compact disc player. We affirm the Claims Commissioner’s final order.
In September 1996, Reid, an inmate at the Northwest Correctional Center (NWCC) in Tiptonville, Tennessee, filed a claim with the Division of Claims Administration for the loss of a radio/compact disc player. Reid’s claim alleged that, during the summer of 1996, Tennessee Department of Correction (TDOC) officials required Reid to spend sixty days in segregation in retaliation “for his jail house lawyer type activities.” During his segregation, TDOC officers took Reid’s radio to be stored in the facility’s small property room holding area. Apparently, the radio was not returned to Reid after his sixty- day segregation ended, and Reid alleged that TDOC officers had stolen the radio. Reid sought an award of damages against the State of Tennessee in the amount of $150 for the actual value of the radio, plus $100 per day for “doing without” the radio.
The Division of Claims Administration offered to settle Reid’s claim for $85. Unsatisfied with this amount, Reid filed his claim with the Claims Commission. See T.C.A. § 9-8-402(c) (Supp. 1997).1 Thereafter, Reid filed a motion to remove his claim from the Claims Commission’s small claims docket to its regular docket. See T.C.A. § 9-8-403(a)(2) (Supp. 1997).2 The Claims Commissioner entered an order transferring Reid’s claim to the regular docket. See T.C.A. § 9-8-403(c) (Supp. 1997).3 The Commissioner’s order also indicated that, pursuant to section 9-8-403(h) of the Tennessee Claims Commission Act, Reid’s claim would be heard on affidavits. See T.C.A. § 9-8-403(h) (Supp. 1997).4
In the spring of 1998, Reid filed several discovery requests, including a motion to compel discovery, in which he asked TDOC to produce various documents in its possession. Despite the Commissioner’s previous order indicating that Reid’s claim would be heard on affidavits, Reid also sought to depose various TDOC employees and officials.
In June 1998, the Commissioner entered an order denying Reid’s discovery requests and motion to compel on the ground that the requested items were irrelevant to Reid’s personal property claim. In her order, however, the Commissioner ruled in favor of Reid on the issue of the State’s liability for the loss of Reid’s property. Based upon documents submitted by Reid, the Commissioner made the following findings:
[Reid] has shown
1 As pertinent, the Tennessee Claims Commission Act provides that, “[i]f the claim is honored and the damages may be ascertained within the ninety-day settlement period, the division shall so notify the claimant and inform the claimant of the conditions of the settlement offer and of the claimant’s right to file such claimant’s claim with the claims commission within ninety (90) days of the date of the settlement notice if the conditions of the settlement offer are unacceptable.” T.C.A. § 9-8-402(c) (Supp. 1997). 2 The Claims Commission’s small claims docket consists of “claims satisfying the monetary limit applicable to the general sessions court of Davidson County.” T.C.A. § 9-8-403(a)(2) (Supp. 1997). 3 Section 9-8-403(c) provides that, “[a]t the discretion of either party at any time prior to a hearing, a claim may be removed from the small claims docket to the regular docket. Once removed, the claim shall be treated like any other claim on the regular docket.” T.C.A. § 9-8-403(c) (Supp. 1997). 4 Section 9-8-403(h) provides that “[c]laims based on the negligent care, custody or control of personal property by persons in the legal custody of the state shall proceed on affidavits only, except where the commission determines that witnesses should be heard.” T.C.A. § 9-8-403(h) (Supp. 1997). that he owned the propert y in questio n and that the propert y was confisc ated when [Reid] was sentenc ed to punitiv e segreg ation . . .. The [State] has not been able to show that the propert y was returne d to [Reid]. It appear s that the [State] had the care, custod y and control of [Reid’s ] propert y, and that said propert y was never returne d to [Reid].
In light of these findings, the Commissioner then ruled that the only remaining issue to be determined was “the value of the lost property and the amount of the award to be granted.” The
Commissioner ordered Reid to submit proof of the value of the radio by August 1, 1998, so that
the Commissioner could make an award.
In response to the Commissioner’s order, Reid filed
a document entitled “Motion; Affidavit; Evidence; Memorandum of Law in Support of this Case
Based in Law.” The document indicated that it was made under oath, and it included Reid’s
signature; however, the document did not contain a jurat or a notary’s signature. Reid asserted in
the document that the actual value of the radio was $150 and that he had suffered additional
damages of $100 per day for his loss of use and enjoyment of the radio.
In August 1998, the Commissioner entered a final
order in which she awarded Reid $50 for the loss of his radio. The Commissioner ruled that Reid
was not entitled to the damages requested in his “Motion; Affidavit” because he failed to submit
proof of the value of the radio. Nevertheless, the Commissioner awarded Reid $50 based upon
her estimate of the property’s value. The Commissioner also ruled that the $100 per day claimed
by Reid for his loss of use and enjoyment of the radio was not awardable under the Tennessee
Claims Commission Act.
On appeal from the Commissioner’s final order,
Reid has presented thirteen issues for this court’s review,5 many of which overlap and repeat
each other. In his first three issues, as well as his eighth, ninth, and eleventh issues, Reid
contends that the Commissioner erred in denying his various discovery requests, including his
motion to compel discovery. Specifically, Reid’s requests sought discovery of the following
items:
1. TDOC rules & regulat
5 The Tennessee Claims Commission Act specifically grants this court the authority to review the Commissioner’s decision. See Shell v. State, 893 S.W.2d 416, 420 (Tenn. 1995); T.C.A. § 9-8-403(a)(1) (Supp. 1997). ions
2. Claims Comm ission rules & regulat ions for Tennes see
3. NWC C buildin g/pod operati on proced ures for Buildin g “A” # 1 housin g unit
4.Post orders for officer s in “A” type buildin gs
5.Post orders for all unit manag ement team membe rs for “A” type buildin gs
6.Staff/ officer s log books during the time [period ] of this claim and its investi gation
7.All grievan ces on theft of propert y from cells and or pods from 1992 to 1998 in TDOC, and the results
8. NWC C policy & operati on proced ures for investi gating theft during the time of # 7 till now
9. TDOC, NWC C policie s, operati on proced ures for providi ng securit y& require ments for inmate s and their propert y.
10.Staf fing require ments for “A”, buildin g#1 housin g type buildin gs.
11.Ope ration proced ures for openin g electro nic locks to cells for “A” type buildin gs by local buildin g [contro ls] and main operati ons [overri de] type [contro ls] from operati ons to include telepho ne or radio proced ures.
12.All [incide nt] related reports on this claim, on all theft claims from inmate s or their cells in TDOC since 1992 in pods, gilds, or other [simila r] housin g for inmate s.
13.All records on keys for this Claima nt’s cell, pod, or keys to other cells or pods that will operate Claima nt’s cell in this claim for a [period ] of one year before and after this claim. 14. Record on all [compa tible] cell keys at NWC C or other institut ions and their [assign ed] inmate.
15.Sta ndards of [hiring ] staff/of ficer [person nel] for TDOC & NWC C and policy.
16.Trai ning require ments for staff/of ficer employ ees and the trainin g of the staff involve d in this claim:
....
17.Ope ration proced ures for workin g employ ees overti me at TDOC/ NWC C.
18.Ove rtime worked by employ ees workin g in HSA & “A” buildin g NWC C for years 1995 to 1998.
19.Sec urity proced ures, post orders for officer s workin g NWC C-HSA unit; policy for same.
20.List any inmate s over securit y at NWC C; what and how does any inmate at NWC C have securit y [contro l] . . . over any thing.
21.List any policy, proced ures, hiring practic es at NWC C that inmate s have any [contro l] of and if so, to what extent.
22.Any discov ery describ ed above on all other staff [involv ed] with Claima nt during his time at HSA, June 1996 to August , 1996.
Reid also sought to depose various TDOC employees and officials. As previously indicated, the
Commissioner denied Reid’s requests based upon her conclusion that the requested discovery
items were irrelevant to Reid’s personal property claim. When a civil lawsuit is being pursued by a prison
inmate, the trial court has the authority to impose appropriate limitations on the discovery
conducted by the prisoner. Bradfield v. Dotson, No. 02A01-9707-CV-00152, 1998 WL 63521,
at *3 (Tenn. App. Feb. 17, 1998). The scope of such discovery is within the trial court’s sound
discretion. Id. Under the Tennessee Rules of Civil Procedure, which apply to proceedings
before the Claims Commission,6 “[p]arties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action, whether it
relates to the claim or defense of the party seeking discovery or to the claim or defense of any
other party.” T.R.C.P. 26.02(1). Upon its own initiative, or pursuant to a motion, however, the
trial court may limit discovery sought in a particular case if the court determines, inter alia, that
“the discovery sought is unreasonably cumulative or duplicative or is obtainable from some other
source that is more convenient, less burdensome or less expensive,” or that “the discovery is
unduly burdensome or expensive, taking into account the needs of the case, the amount in
controversy, limitations on the parties’ resources, and the importance of the issues at stake in the
litigation.” T.R.C.P. 26.02(1).
We conclude that the Commissioner did not abuse
her discretion in denying Reid’s requests for discovery in this case. At the time the
Commissioner denied Reid’s requests, the Commissioner ruled in favor of Reid on the issue of
the State’s liability for the loss of Reid’s property. Thus, the only issue remaining for the
Commissioner’s determination was the value of the lost property and the amount of the award to
be granted. While the requested items might have been relevant to the State’s responsibility for
the loss of Reid’s property, none of the requested items appeared to be relevant to the only
remaining issue in this case, the value of Reid’s radio. Moreover, the amount in controversy in
this case was relatively low. Except for his claim for loss of use and enjoyment, the most Reid
contended the radio was worth was $150. In light of these considerations, we affirm the
Commissioner’s order denying Reid’s motion to compel the discovery of the listed items.
6 The Tennessee Claims Commission Act provides, inter alia, that claims proceedings on the Commission’s regular docket “shall be conducted pursuant to rules of the Tennessee Rules of Civil Procedure where applicable and otherwise pursuant to rules and regulations promulgated by the commission.” T.C.A. § 9-8-403(a)(1) (Supp. 1997); see also Tenn. Comp. R. & Regs. 0310-1-1-.01 (1992). In support of his discovery requests, Reid cites
section 4-5-218 of the Uniform Administrative Procedures Act (APA), which requires each State
agency to make available for inspection and copying the agency’s rules, final orders, and
decisions. Specifically, the APA provides that
(a) Each agency shall make availab le for inspect ion and copyin g:
(1)Age ncy rules, final orders and decisio ns;
(2)Writ ten statem ents of policy or interpr etation s formul ated, adopte d or used by the agency in the dischar ge of its functio ns;
(3)Opi nions of the attorne y general and reporte r rendere d to the agency ; and
(4)A descrip tion of its current organiz ation stating the general course and method of its operati on and the method s whereb y the public may obtain inform ation or make submis sions or request s.
T.C.A. § 4-5-218(a) (Supp. 1997).
We are not convinced that this provision of the
APA is relevant to our analysis of the discovery issue in this case. The cited statute does not
require a State agency to copy its rules and provide them to a requesting party. Instead, the
statute merely requires the State agency to “make [its rules] available for inspection and
copying.” T.C.A. § 4-5-218(a)(1) (Supp. 1997) (emphasis added). Contrary to Reid’s argument,
the statute does not grant pretrial discovery rights to parties involved in litigation with the
agency. See State v. Killebrew, 760 S.W.2d 228, 231 n.6 (Tenn. Crim. App. 1988) (concluding that T.C.A. § 40-32-101(c)(3), which requires release of arrest histories of defendant or potential
witness in criminal proceeding to attorney of record upon such attorney’s request, does not grant
pretrial discovery rights to defendant). In any event, we question whether pretrial discovery
procedures even apply to documents that are a matter of public record. See State v. Adkins, 725
S.W.2d 660, 663 (Tenn.) (noting that proof sought by defendant’s counsel through pretrial
discovery procedures was available as public records), cert. denied, 482 U.S. 909 (1987); State v.
Cottrell, 868 S.W.2d 673, 677 (Tenn. Crim. App. 1992) (noting that judgment document sought
through pretrial discovery was public record available for inspection).
In his fourth issue, Reid contends that the
Commissioner erred in failing to sanction the assistant attorney general for her failure to comply
with Reid’s discovery requests. See T.R.C.P. 37.02. Based upon our conclusion that the
Commissioner did not abuse her discretion in denying Reid’s various discovery requests, we
likewise conclude that the Commissioner did not abuse her discretion in denying Reid’s motion
for sanctions.
In his fifth and sixth issues, Reid challenges the
adequacy of the Commissioner’s award of $50. In this regard, Reid contends that the
Commissioner erred in failing to award him the full $150 requested to compensate Reid for the
loss of his radio. Reid also contends that the Commissioner erred in denying his claim for $100
per day for his loss of use and enjoyment of the radio.
In response, the State contends that the
Commissioner properly refused to award the requested damages because Reid failed to prove
these damages and, further, because the Tennessee Claims Commission Act permits claimants to
recover their “actual damages only.” As pertinent, the Act provides that
[t]he state will be liable for actual damag es only. No award shall be made unless the facts found by the commi ssion would entitle the claima nt to a judgme nt in an action at law if the state had been a private individ ual.
T.C.A. § 9-8-307(d) (Supp. 1997).
We agree with the Commissioner’s ruling that Reid
failed to prove his damages in this case. As a general rule, damages for the loss or destruction of
personal property are measured by the market value of the property at the time of its loss. MCI
Telecomms. Corp. v. Bonnell, 1989 WL 19925, at *2 (Tenn. App. Mar. 8, 1989) (citing
Merritt v. Nationwide Warehouse Co., 605 S.W.2d 250 (Tenn. App. 1980)). Alternatively, if no
market for the property exists, or if the market value is inadequate, the proper measure of
damages for the loss of personal property is the actual value of the property to the owner.
Crawford v. Delta Airlines, Inc., No. 02A01-9612-CV-00296, 1997 WL 576535, at **2-3
(Tenn. App. Sept. 18, 1997) (citing Merritt v. Nationwide Warehouse Co., 605 S.W.2d at 256).
In either event, damages are calculated with reference to the date of the loss of the property, not
the date of its acquisition or purchase by the owner. Crawford v. Delta Airlines, 1997 WL
576535, at *2; MCI Telecomms., 1989 WL 19925, at *2. The burden of proving such damages is upon the plaintiff. Crawford v. Delta Airlines, 1997 WL 576535, at *3.
In the present case, Reid filed what purported to be
an affidavit in which he opined that the actual value of the radio was $150 and that he had
suffered additional damages of $100 per day for his loss of use and enjoyment of the radio.
Reid’s affidavit did not specify, however, whether the $150 value represented the purchase price
of the radio, the value of the property at the time of the loss, or its value at the time Reid filed his
affidavit. Moreover, Reid presented no evidence to substantiate his claim that the damages for
his loss of use and enjoyment of the property totaled $100 per day.7 In the absence of such proof,
we conclude that Reid failed to carry his burden of proving damages for the loss of his personal
property.8
As an aside, we question the validity of the affidavit
filed by Reid because the record contains no evidence that the affidavit was properly sworn. See
State v. Keith, 978 S.W.2d 861, 867-70 (Tenn. 1998); Moore v. Walwyn, No.
01A01-9507-CV-00295, 1996 WL 17143, at **2-3 (Tenn. App. Jan. 19, 1996); Sammons v.
Collins, No. 01A01-9009-CV-00325, 1991 WL 1056, at *1 (Tenn. App. Jan. 9, 1991).
Specifically, the record contains no evidence that the affidavit was signed under oath before an
authorized person. Instead, the affidavit merely contains the following recitation:
I, E. L. Reid # 2033 43, Claima nt being first depose d under the oath of
7 Inasmuch as Reid failed to meet his burden of proving damages in this case, we need not decide whether damages for loss of use and enjoyment constitute actual damages awardable under section 9-8-307(d) of the Tennessee Claims Commission Act. 8 The State has not appealed the Commissioner’s decision to award Reid $50 based upon her estimate of the radio’s value. perjury and to the best of my knowle dge do state the followi ng to this Honora ble Claims Comm ission under the Tennes see Rules of Court; ....
Inasmuch as the State has not challenged the validity of Reid’s affidavit, we need not decide this
issue. Regardless of whether the affidavit was properly executed, we conclude that Reid has
failed to carry his burden of proving damages for the loss of his radio.
In his seventh issue, Reid complains that he was
unable to prove the value of the radio because TDOC employees and officials unlawfully
confiscated his personal records, which would have shown that the radio had a value of at least
$150. Reid claims that the taking of his personal records constituted obstruction of justice and
violated numerous provisions of the Tennessee Constitution.
This issue is without merit. We first observe that
the list of pretrial discovery items requested by Reid did not include any personal records
allegedly in TDOC’s possession. We also note that Reid did not need these records to prove the
value of the radio because, as the owner of the property, Reid was competent to testify as to its
value. See Merritt v. Nationwide Warehouse Co., 605 S.W.2d 250, 256 (Tenn. App. 1980);
Crook v. Mid-South Transfer & Storage Co., 499 S.W.2d 255, 260 (Tenn. App. 1973);
McKinnon v. Michaud, 260 S.W.2d 721, 726 (Tenn. App. 1953). As we previously discussed, Reid’s affidavit failed to indicate whether the $150 value represented the purchase price of the
radio, the value of the property at the time of the loss, or its value at the time Reid filed his
affidavit. Thus, the evidentiary problem in this case was not that Reid failed to present
documentation to support his claim, but that Reid failed to present any competent testimony of
the property’s value at the time of its loss.
In his tenth issue, Reid contends that he is entitled
to additional compensation for the legal expenses he incurred in prosecuting his claim.
Specifically, Reid seeks to be compensated for his postage and photocopying expenses, as well as
for the time he spent performing legal research.
We conclude that this issue also lacks merit. The
claimed expenses did not constitute allowable discretionary costs. See Duncan v. DeMoss, 880
S.W.2d 388, 390 (Tenn. App. 1994) (holding that allowable discretionary costs did not include
attorney’s fees or compensation for time spent in litigation); see also T.R.C.P. 54.04(2)
(providing that allowable discretionary costs include court reporter expenses, expert witness fees,
and guardian ad litem fees, but not travel expenses). Moreover, even if the claimed expenses did
constitute allowable discretionary costs, the Commissioner was without authority to award these
costs against the State. The Tennessee Claims Commission Act provides that the State will not
be liable for “the costs of litigation other than court costs.” T.C.A. § 9-8-307(d) (Supp. 1997).
Thus, the Act specifically prohibited the Commissioner from taxing discretionary costs against
the State in this case. Phillips v. Tennessee Technological Univ., 984 S.W.2d 217, 218 (Tenn.
1998).
Although it is not clear, in his twelfth issue, Reid
appears to argue that he was not adequately compensated by the Commissioner for the loss of his
property. We believe that this argument has been addressed sufficiently elsewhere in this
opinion, and we decline to address it further.
Finally, in his thirteenth issue, Reid alleges that
TDOC has changed its policy so that it no longer allows radios to be brought into the facility
where Reid is incarcerated. On appeal, Reid contends that he has a vested right to have a new radio brought in to replace the one lost through TDOC’s negligence and, further, that TDOC
acted illegally when it changed its policy so as to retroactively affect Reid’s rights.
As framed, Reid’s last issue constitutes a challenge
to a TDOC policy governing its facilities and inmates. In Baptist Hospital v. Tennessee
Department of Health, 982 S.W.2d 339, 341 (Tenn. 1998), our supreme court held that the
Claims Commission lacked subject matter jurisdiction to issue a declaratory order as to the
validity or applicability of a State agency’s regulation. Based upon this holding, we conclude
that the Claims Commission likewise lacked subject matter jurisdiction to rule on the validity or
applicability of the TDOC policy challenged by Reid in this case.
We further note that, even if the Claims
Commission had jurisdiction to award the requested relief, Reid did not raise this issue until he
filed his notice of appeal challenging the Commissioner’s final order. As a general rule,
appellate courts do not “consider issues not dealt with in the trial court and not properly
developed in the proof.” Harlan v. Hardaway, 796 S.W.2d 953, 957 (Tenn. App. 1990). If an
issue “is not properly raised in the trial court, it will not be considered on appeal.” Id. Inasmuch
as Reid’s last issue was neither timely raised below nor ruled upon by the Commissioner, the
issue is not properly before this court for review.
The Commissioner’s final order is affirmed. Costs
of this appeal are taxed to Reid, for which execution may issue if necessary.
__________________________________ FARMER, J.
______________________________ CRAWFORD, P.J., W.S. (Concurs)
______________________________ LILLARD, J. (Concurs)