Opinion
No. 108,805.
2013-08-16
Dustin J. MERRYFIELD, Appellant, v. Shawn SULLIVAN, Secretary of the Kansas Department for Aging and Disability Services, et al., Appellees.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge. Dustin J. Merryfield, appellant pro se. Corrine E. Johnson, litigation counsel, Kansas Department for Aging and Disability Services, for appellee.
Appeal from Pawnee District Court; Bruce T. Gatterman, Judge.
Dustin J. Merryfield, appellant pro se. Corrine E. Johnson, litigation counsel, Kansas Department for Aging and Disability Services, for appellee.
Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dustin Merryfield, an involuntary participant in the Kansas Sexual Predator Treatment Program (SPTP), appeals the trial court's dismissal of his replevin action and also the trial court's ruling that the program's policies and related handbooks did not have to be implemented through the procedures mandated under the Rules and Regulations Filing Act, K.S.A. 77–415 et seq. Of these two issues, we find only the first to be meritorious. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.
Merryfield was committed to the SPTP program under the custody of the Secretary of Social and Rehabilitation Services (Department) in December 2000. During his time in SPTP, Merryfield accumulated substantial amounts of personal property, some of which did not initially require approval of SPTP. In September 2007, Merryfield was removed from the general population of SPTP and was placed in the Intensive Treatment Unit (ITU). Under the rules of the ITU, Merryfield was unable to retain possession of his personal property. As a result, SPTP placed Merryfield's property in storage. Merryfield filed grievances alleging that his property was taken without due process. SPTP informed Merryfield that his personal property would be returned to him after he was released from ITU.
In April 2010, Merryfield was released from ITU. Upon his release, SPTP returned some of Merryfield's property to him but certain items were not returned because they were being reviewed to determine whether they were allowed under current SPTP policies. The property that was withheld from Merryfield was not returned to him because it either violated SPTP policies or it exceeded the allowed limits of personal property. Merryfield requested the return of the items held in storage under K.S.A.2010 Supp. 59–29a22(c).
On July 11, 2011, Merryfield made a written demand for the return of his personal property and that if no resolution was reached within 30 days, suit would be filed.
On August 23, 2011, Merryfield filed a replevin action in Pawnee County District Court alleging that his personal property had been wrongfully seized and demanded its return.
On September 14, 2011, Merryfield met with his therapist and numerous items were returned to him. Merryfield signed “shakedown sheets” for the returned items, but he refused to sign the sheets for the property that continued to be held in storage. Instead, Merryfield again requested the return of his property and was told that he should file a grievance on the items he believed to be wrongfully retained.
In response to Merryfield's replevin action, SPTP argued that it had implemented a property and clothing handbook that outlined what property residents could have and the reasons for restrictions on property that residents could have in their rooms. Additionally, SPTP contended that it had implemented specific policies related to certain types of property, such as movies, video games, and other types of media. This handbook and policies specifically delineated what property SPTP did not allow residents to possess and how much property residents could possess. SPTP further argues that some of the property that Merryfield wished to be returned to him fell outside of that allowance. Finally, SPTP contended that the property that Merryfield was permitted to possess was returned to him on September 14, 2011.
On September 14, 2012, the trial court dismissed Merryfield's replevin action, finding that
“Merryfield has shown ownership of the personal property in question, but has failed to establish his burden of entitlement to possession of the personal property because the authorized policies of SPTP have determined that the same represents prohibited contraband, possession of which is unauthorized at the facility. Merryfield further fails to establish that SPTP is wrongfully detaining the personal property. The Petition for Replevin is therefore denied and dismissed.”
The trial court further ruled that the SPTP handbooks and policies were not subject to the Kansas Rules and Regulations Filing Act.
Did the Trial Court Err in Denying Merryfield's Petition for Replevin?
Merryfield argues that SPTP wrongfully detained his property which led him to file his petition for replevin. Merryfield contends that he is the lawful owner of the property and that SPTP unlawfully detained his property. Merryfield maintains that SPTP's policies previously allowed him to have this property and that SPTP's new policies still allow him to have the property.
A replevin action is when a party is seeking the return of property that a party owns and contends another party is wrongfully keeping. See K.S.A. 60–1005(a). The elements required to sustain a replevin action are: (1) the plaintiff owned the property alleged in the petition; (2) the plaintiff is entitled to possession of the property; and (3) the defendant unlawfully detained the property. K .S.A. 60–1005; Herl v. State Bank of Parsons, 195 Kan. 35, 39, 403 P.2d 110 (1965).
In this case, the trial court ruled that Merryfield properly showed that he owned the property alleged in the petition. Although the SPTP disputes the trial court's ruling in its brief, it did not file a cross-appeal to challenge the trial court's ruling on this point. As a result, we cannot consider the matter. See K.S.A.2012 Supp. 60–2103(h). Nevertheless, the trial court held that Merryfield failed to prove the remaining two elements of a valid replevin action. The trial court held that Merryfield failed to establish that he was entitled to possess the property and that he failed to establish that SPTP wrongfully detained the property. As a result, the trial court denied Merryfield's petition for replevin.
Merryfield appeals the trial court's finding that he failed to establish that he was entitled to possess the property and that he failed to establish that SPTP wrongfully detained the property.
Under K.S.A.2012 Supp. 59–29a22(b)(17), a person committed under the Sexually Violent Predators Act (Act) retains the right to use his or her personal possessions while committed. The Act also details the procedures used when the Department denies a resident the right to use his or her belongings. K.S.A.2012 Supp. 59–29a22(c). The denial must be for cause, and the Department must inform the patient in writing of the grounds for denial. Additionally, the Department must provide the opportunity for review of the denial at an informal hearing. K.S.A.2012 Supp. 59–29a22(c). Then, if the informal hearing does not reverse the denial, the resident can petition for review through grievance procedures the Act mandates. K.S.A.2012 Supp. 59–29a22(c), (d).
Therefore, based on the Act, Merryfield is entitled to possess his personal property unless the Department has gone through the procedures to deny him his right to that property. Merryfield contends that the Department failed to follow the procedures detailed in the Act when it denied him his right to his personal property.
When we consider the trial court's ruling that Merryfield had “shown ownership of the personal property in question” along with K.S.A.2012 Supp. 59–29a22(b)(17), which gave Merryfield the right to use his personal possession while committed, we determine that he met his burden to allege sufficient facts to constitute his replevin action. Based on K.S.A.2012 Supp. 59–29a22(c), the burden shifted to SPTP to prove facts constituting its defense. Indeed, SPTP alleged that its handbook and policies prohibited Merryfield from possessing the requested property. For example, in its arguments to the trial court, SPTP told the court that it withheld some of Merryfield's property because it violated the department's policies. SPTP, however, did not provide a specific reason for why the property was withheld, other than stating that it was contraband or that the property exceeded the property limits a resident is allowed to have. There is no evidence in the record that the SPTP told Merryfield why each property item was being withheld and how it violated the SPTP's policies.
We note that the trial court had the parties brief their issues and then present oral arguments. Oral arguments, however, are not evidence. There is no evidence in the record that the parties agreed to submit the decision of this matter on the briefs. Moreover, we could not find in the record where the parties agreed that no other evidence would be presented and the matter would be submitted to the trial court for decision at the conclusion of the hearing. Because of a lack of an evidentiary record, we are remanding this case for further proceedings consistent with this opinion, whether that be a properly supported summary-judgment motion, if there are no material questions of fact in dispute, or trial.
Due Process Argument
In addition to his replevin argument, Merryfield also raises a due process argument. Merryfield argues that he has a protected property interest in his property and that the Department's confiscation of his property violated his due process rights. This issue was litigated in Pawnee County District Court case number 2010–CV–000004 and is currently on appeal to our court in case number 109,559. Because this case is currently pending before our court, we will not address this issue.
Did the Trial Court Err in Finding that SPTP's Handbooks and Policies are not Subject to the Rules and Regulations Filing Act?
Merryfield argues that his property was unlawfully detained because SPTP's handbooks and policies allowing for the removal of his property were illegally promulgated. Merryfield contends that SPTP's policies must be promulgated according to the provisions of the Kansas Rules and Regulations Filing Act, K.S.A. 77–415, et seq .
An appellate court reviews the trial court's findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support the trial court's conclusions of law. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). Substantial competent evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. Hodges, 288 Kan. at 65. An appellate court has unlimited review of conclusions of law. American Special Risk Management Corp. v. Cahow, 286 Kan. 1134, 1141, 192 P .3d 614 (2008).
In this case, the trial court rejected Merryfield's rule promulgation argument and held that SPTP's handbook and policies were not subject to the Rules and Regulations Filing Act. The trial judge stated:
“ ‘Rules and Regulation’ means a standard, requirement or other policy of general application that has the force and effect of law issued or adopted by a state agency to implement or interpret legislation. K.S.A. 77–415(c)4. The Resident Property and Clothing Handbook and SPTP policies concerning contraband are established for internal management of the treatment program and agency, and not as a policy of general public application. The Handbook and policies are not subject to the Rules and Regulations Filing Act.”
In support of the trial court's holding, our court addressed this issue in Lovingood v. Kansas Social and Rehabilitation Servs., No. 105,225, 2011 WL 3250595 (Kan.App.2011) (unpublished opinion). In Lovingood, our court held that one of SPTP's policies was not subject to the Rules and Regulations Filing Act because it was not a general order with general application. 2011 WL 3250595, at *3. In reaching that decision, our court noted that the policy was limited to cover only the people committed to the SPTP program. With such limited application, our court held that it did not fall within the definition of a rule or regulation that must be printed in the Kansas Register. Lovingood, 2011 WL 3250595, at *3.
We adopt and apply the reasoning in Lovingood to this case. Here, like in Lovingood, the policies and handbook that Merryfield complains about are not rules of general application. In fact, the policies and handbook only apply to the limited number of residents in the SPTP program. As stated earlier, “ ‘[r]ule and [r]egulation’ means a standard, requirement or other policy of general application that has the force and effect of law ... issued or adopted by a state agency to implement or interpret legislation.” K.S.A. 77–415(c). Therefore, the policies and handbook do not fit within the definition of a rule or regulation. Moreover, the SPTP policies and handbook do not have the force and effect of law. Thus, we affirm the trial court's decision that SPTP's policies and handbook are not subject to the Rules and Regulations Filing Act.
Affirmed in part, reversed in part, and remanded with directions.