E.L. Reid v. State

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)