DAVID HUSBAND v. DEPARTMENT OF CORRECTIONS
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RENDERED: MAY 4, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001827-MR
DAVID HUSBAND
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 99-CI-00709
v.
DEPARTMENT OF CORRECTIONS
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON, AND HUDDLESTON, JUDGES.
BUCKINGHAM, JUDGE: David Husband appeals from an order of the
Franklin Circuit Court affirming an order of the Board of Claims
dismissing his claim against the Department of Corrections.
We
reverse and remand.
On November 14, 1998, Husband, a prison inmate at
Marion Adjustment Center, was placed in segregation.
His
personal property was inventoried on the following day, and he
signed an inventory sheet on November 16, 1998.
The only
property listed as confiscated on the inventory sheet was ten
coat hangers.
On November 17, 1998, Husband was transferred to the
Northpoint Training Center.
Personnel from Northpoint’s property
section inventoried the items transferred with Husband from
Marion, and they discovered that a portion of Husband’s property
was missing.
Also, a Northpoint employee completed a
“DISPOSITION OF UNAUTHORIZED PROPERTY” form that listed items
that were in Husband’s possession but were over his authorized
limit or designated as contraband.1
On the same day, a member of
the staff at Marion partially completed a “DISPOSITION OF
UNAUTHORIZED PROPERTY” form which summarized the property that
did not accompany Husband to Northpoint.
The form was neither
signed nor dated by Husband in the space provided.
On December 3, 1998, Northpoint received Husband’s
missing property from Marion.
On December 26, 1998, Husband was
notified that his missing property had arrived.
Husband was
allowed to sort through the property, exchange some items for
others in his possession, and receive additional items through
issue.
On the same day, a Northpoint employee filled out
“DISPOSITION OF UNAUTHORIZED PROPERTY” forms on the remaining
items.
Husband.
The forms, dated December 26, 1998, were signed by
They contained a clause just above his signature which
stated that “I understand the above instructions.
1
I have been
The record indicates that “unauthorized property” was
property in quantities beyond that allowed, property received
from sources not accounted for in the inmate’s property records,
or property considered as contraband. The property that was the
subject of Husband’s claim apparently fell into the category of
property received from sources not accounted for or property
beyond the authorized quantity.
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given the choice of disposal for my belongings.
I understand
that if I do not dispose of these items within 45 days/5 days
from the above date that the institution will donate the property
to a charity or will destroy them.”
On or about January 1, 1999,
Husband sent some property out with a visitor.
On or about
January 14, 1999, the remaining property was destroyed by
Northpoint employees.
On March 2, 1999, Husband filed a claim in the Board of
Claims against the Department of Corrections, claiming that it
and its employees lost his personal property while transferring
him from Marion to Northpoint2.
Corrections filed a motion to
dismiss and argued 1) that Marion employees were not state
employees and, therefore, the Board had no authority to
compensate Husband for their actions, and 2) that the items were
properly disposed of on January 14, 1999, in compliance with
Corrections’ policies.
Husband filed a response asserting that
his property was destroyed before the expiration of the fortyfive day time period provided in the Corrections policy.
He
noted that he had signed the “DISPOSITION OF UNAUTHORIZED
PROPERTY” form on December 26, 1998, and that his remaining
property was destroyed on January 14, 1999.
In reply,
Corrections argued that Husband had received notice pursuant to
the “DISPOSITION OF UNAUTHORIZED PROPERTY” form filled out at
Marion on November 17, 1998, and that the property was destroyed
after the expiration of the forty-five day period.
Corrections
further argued that it was irrelevant that the notice was given
2
Husband’s claim for lost property amounted to $2,194.00.
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to Husband at Marion and that the property was destroyed at
Northpoint.
Based on the pleadings before it, the Board granted
Corrections’ motion to dismiss.
Husband was not allowed to
present any evidence to support his claim, and the Board entered
an order dismissing it with prejudice. The order, which was
entered on May 20, 1999, contained no findings of fact and gave
no explanation for the decision.
Pursuant to KRS3 44.140, Husband appealed the Board’s
order dismissing his claim to the Franklin Circuit Court.
Husband argued once again that Corrections’ policies were not
followed concerning the destruction of his property because he
was given neither written notice that the property had been
confiscated nor an opportunity to dispose of it within forty-five
days before its destruction.
In its answer filed in the circuit
court, Corrections denied that its policies were violated or that
the forty-five day period ran from December 26, 1998.
Rather,
Corrections asserted that the forty-five day period ran from
November 17, 1998.
In rejecting Husband’s appeal, the circuit court held as
follows:
This Court finds that the Department is
correct that they had forty-five (45) days
from the date of Petitioner’s transfer,
November 17, 1998, to dispose of Petitioner’s
remaining property. Since Petitioner’s
property was not disposed of until January
14, 1999, we find that Petitioner had
adequate notice of the Department’s intent.
Therefore, this court finds that Petitioner
3
Kentucky Revised Statutes.
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has failed to proved negligence on the part
of the Department, and he has no claim upon
which relief can be granted.
Following the entry of the circuit court’s order affirming the
Board of Claim’s order, Husband appealed to this court.
The applicable Corrections’ policy reads as follows:
An unauthorized item shall be inventoried and
packaged for mailing and held forty-five (45)
days after which the packaged item may be
mailed at the expense of the inmate. If the
inmate does not want to mail the property to
anyone, he may request that his property be
donated to a charitable or non-profit
organization as an option for disposal. This
request shall be in writing and a receipt
obtained from the receiving organization. If
the inmate refuses or fails to take any
action regarding the disposition of his
property, the property may be donated to
charity by the institution after forty-five
(45) days. In order to ensure that the
inmate has been given adequate notice to
dispose of certain property, the inmate shall
be given written notice of the property at
the time the inmate is received or
transferred and the property is inventoried.
CPP4 17.1 (VI)(A)(11).
In his appeal to this court, Husband
continues to argue that Corrections did not follow its own
policies and give him timely written notice that the property
would be destroyed or otherwise disposed of after forty-five
days.
He asserts that there is no proof that he received notice
of the November 17, 1998, action and that his first notice that
unauthorized property of his was being held was on December 26,
1998, when he signed and received the forms at Northpoint.
Further, he claims that there is even a lack of proof that the
4
Corrections Policies and Procedures.
-5-
personnel at Marion actually filled out and signed the November
1998 form at that time.
In its brief Corrections raises a single argument which
it has not heretofore raised.
Rather than continuing to maintain
that it gave Husband written notice pursuant to its policy,
Corrections now argues that Husband’s claim filed with the Board
of Claims contained no allegation that his property had been
unlawfully destroyed.
It maintains that Husband may not now
raise the issue of the destruction of his property in violation
of CPP 17.1 because this allegation is a separate and distinct
claim from that presented to the Board.
First, we conclude that Corrections’ argument before
this court may not properly be raised at this time because it was
not raised before the circuit court.
A party may not raise on
appeal a question of law which it failed to raise before the
trial court.
Commonwealth, Transp. Cabinet, Bureau of Highways
v. Roof, Ky., 913 S.W.2d 322, 325 (1996).
As stated in Hopewell
v. Commonwealth, Ky. 641 S.W.2d 744 (1982), a party “will not be
permitted to feed one can of worms to the trial judge and another
to the appellate court.”
Id. at 745, quoting Kennedy v.
Commonwealth, Ky., 544 S.W.2d 219 (1977).
Because Corrections
did not raise this argument before the trial court, it may not
raise it before this court.5
5
We have reviewed the record before the Board and have
concluded that compliance with Corrections’ policies was also an
issue at that level. Therefore, Corrections’ argument is without
merit at any rate.
-6-
Second, having reviewed the entire record before both
the Board and the circuit court, we conclude that the Board erred
in dismissing Husband’s claim without determining whether or not
he had received written notice concerning his unauthorized
property at least forty-five days before its destruction.
Before
both the Board and the circuit court, Corrections argued that it
gave Husband written notice by way of the “DISPOSITION OF
UNAUTHORIZED PROPERTY” form dated November 17, 1998.
However,
that form was not signed and dated by Husband in the space
provided.
There was simply no evidence in the record before the
Board to support a finding that Husband actually had notice
before December 26, 1998, that prison authorities were holding
unauthorized property belonging to him.
Finally, we note that we may not disturb the findings
of the Board of Claims if they are supported by substantial
evidence.
Commonwealth, Transp. Cabinet, Dep’t of Highways v.
Shadrick, Ky., 956 S.W.2d 898, 901 (1997).
judice, however, the Board made no findings.
In the case sub
Rather, it simply
dismissed Husband’s claim.
Corrections argued to the Board in its motion to
dismiss that the Board had no authority to compensate Husband
because Marion employees were not employees of the state and
that, at any rate, Husband’s property was disposed of in
accordance with CPP 17.01.
Corrections’ first argument was
without merit because the property was destroyed by Northpoint
employees who were clearly state employees.
Having determined
that the Board erred in accepting Corrections’ second argument,
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we conclude that the Board erred in dismissing Husband’s claim
and that the circuit court erred in affirming the Board.
Therefore, the order of the Franklin Circuit Court is
reversed, and this case is remanded to the circuit court with
instructions to remand the case to the Board of Claims for
further proceedings, including a determination as to whether
Husband received written notice at least forty-five days before
his unauthorized property was destroyed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David Husband, pro se
Burgin, Kentucky
Keith Hardison
Frankfort, Kentucky
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