DAVID FLOYD HOUSTON v. DON SHEPARD; JAMES MORGAN; BRAD MITCHELL; MARION BURRIS; EARL WESTERFIELD; JOHN DAMRON; BOYCE CROCKER
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RENDERED:
December 31, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO.
97-CA-1092-MR
DAVID FLOYD HOUSTON
APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE STEPHEN M. SHEWMAKER
ACTION NO. 96-CI-0517
v.
DON SHEPARD; JAMES MORGAN;
BRAD MITCHELL; MARION BURRIS;
EARL WESTERFIELD; JOHN DAMRON;
BOYCE CROCKER
APPELLEES
OPINION
REVERSING AND REMANDING
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BEFORE:
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GUIDUGLI, JOHNSON AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
David Floyd Houston appeals pro se from an
order dismissing an action he filed against employees of the
Department of Corrections.
Houston asserts that the circuit
court improperly dismissed his action for failure to state a
claim.
We agree and reverse.
Houston is an inmate currently confined in the Eastern
Kentucky Correctional Complex.
He filed a complaint in Boyle
Circuit Court on November 27, 1996, alleging that Corrections
employees at Northpoint Training Center, where he was then
confined, seized thousands of Administrative Office of the Court
(AOC) forms from him and sent them to Frankfort.
Houston claimed
he had purchased these forms, and valued them at $4250.00.
He
sought damages for conversion and under other legal theories.
Corrections moved to dismiss under Kentucky Rule of Civil
Procedure (CR) 12 on December 23, 1996.
on January 16, 1997.
Houston filed a response
On April 11, 1997, the court entered an
order granting Corrections’ motion to dismiss.
This appeal
followed.
Houston argues that the circuit court erred by
dismissing his action under CR 12.02(f).
Corrections did not
file a brief, but relies on its motion below.
When considering a
motion to dismiss under CR 12.02(f) for failure to state a claim
upon which relief can be granted, the pleadings should be
liberally construed in a light most favorable to the plaintiff
and all allegations in the complaint taken to be true.
Scroggy, Ky. App., 725 S.W.2d 867, 869 (1987).
Gall v.
Conversion is the
wrongful exercise of dominion and control over property of
another, and the measure of damages is the value of the property
at the time of conversion.
State Auto. Mut. Ins. Co. v. Chrysler
Credit Corp., Ky. App., 792 S.W.2d 626, 627 (1990).
Taking its allegations as true, Houston’s complaint
states a claim for conversion.
In its motion to dismiss,
Corrections asserted that Houston’s claim was ludicrous because
the AOC provides these forms for free and thus Houston could not
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prove either that he bought the forms or the value of the forms.
In his response to this motion, Houston claimed that he had the
forms printed at his own expense for use in his law firm before
entering prison.
It is not the province of the trial court nor
of this Court to decide whether Houston may be able to prove his
allegations or ultimately prevail.
City of Louisville v. Stock
Yards Bank & Trust Co., Ky., 843 S.W.2d 327, 328 (1992); W.
Bertelsman and K. Philipps, Kentucky Practice, 4th ed., Rule
12.02 (1984).
The trial court erred by dismissing the action
under CR 12.
Accordingly, the order of dismissal is reversed and the
case remanded.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
David Floyd Houston, Pro Se
West Liberty, Kentucky
No brief was filed for the
appellees.
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