Ex parte Shepperd
| Decision Date | 25 July 1974 |
| Docket Number | Nos. B--4334,B--4335,s. B--4334 |
| Citation | 513 S.W.2d 813 |
| Parties | Ex parte Alfred L. SHEPPERD. Ex parte Arthur C. TROILO, Jr. |
| Court | Texas Supreme Court |
John L. Hill, Atty. Gen., Joe D. Jarrard, Jr., Asst. Atty. Gen., Austin, for Alfred L. Shepperd.
Lang, Cross, Ladon, Boldrick & Green, Paul M. Green, San Antonio, for respondent.
Walter C. Wolff, Jr., Sawtelle, Goode, Davidson & Troilo, Arthur C. Troilo, Jr., and Terry Topham, San Antonio, for Arthur C. Troilo, Jr.,
Robert C. Patterson, San Antonio, for respondent.
These habeas corpus cases raise a common question concerning the permissible scope of pre-trial discovery in eminent domain proceedings: May the landowner obtain in advance of trial, appraisal reports prepared by the government's intended appraisal witnesses relating to other land not the subject of the proceedings in which discovery is sought when the reports were prepared for, and are in the custody of, the government?
Trial judges in two separate condemnation suits ordered relators, counsel for the condemning authorities, to deliver such reports to the condemnees. Each of the relators refused, and each was committed for contempt. We granted writs of habeas corpus to determine the underlying issue of discoverability.
We hold that the reports sought are discoverable except to the extent that they would be immune from discovery by the owners of the tracts which they directly concern in pending condemnation proceedings against those tracts.
In the case of the Relator Alfred L. Shepperd, all of the reports ordered disclosed concerned tracts which the State has finally acquired. Hence those reports were discoverable. In the case of the Relator Arthur C. Troilo, Jr., some of the tracts are the subject of pending litigation. Hence the order in Troilo is invalid.
Relator Shepperd is an Assistant Attorney General of Texas. He is representing the State in proceedings to acquire land for the construction of Interstate Highway 35 in Frio County. In this connection, Shepperd is counsel for the State of Texas in State of Texas v. Beever Farms, Inc., an eminent domain proceeding now pending in Frio County. In that proceeding, Beever Farms Inc., now a respondent before this court, filed a motion for discovery under Rule 167, 1 seeking access to
'All appraisal reports covering properties acquired for the IH 35 By-Pass project submitted to Plaintiff (the State) by any expert value witness that Plaintiff intends to call upon the trial of this case and which reports are in the possession, care, custody or control of Plaintiff.'
In answer to this motion, the State designated Curtis Bremer as its expert witness on land values, and only Mr. Bremer's reports are now in controversy. The trial court ordered Shepperd to deliver to counsel for Beever Farms the appraisal reports of Mr. Bremer concerning the Beever Farms property and five other tracts in the immediate vicinity. Shepperd produced the report concerning the Beever Farms property, but refused to produce any other reports. The County Judge found Shepperd in contempt and ordered him committed to the custody of the Sheriff 'for a period of three days or until he complies with . . . (the discovery order).'
Relator Troilo represents the Urban Renewal Agency of the City of San Antonio, hereafter 'the Agency.' The Agency is acquiring a large area of land in the City of San Antonio designated 'Vista Verde Project Tex. R--109,' and including a lot owned by respondent Carlos Torralva. The condemnation proceeding styled Urban Renewal Agency of the City of San Antonio v. Carlos Davis Torralva, et al, is now pending in the County Court at Law No. 6 of Bexar County. In that proceeding, Torralva filed a motion for discovery under Rule 167 seeking access to
'All appraisal reports of Frank Drane and Harvey Tamon which cover the subject property, and all appraisals made by these witnesses on all properties appraised by them in this Urban Renewal project which is known as Tex. R--109.'
It is stipulated that either or both the witnesses Drane and Tamon may be called as witnesses by the Agency.
The judge of the County Court at Law ordered Troilo to 'make available for inspection and copying' reports concerning the Torralva property and nine other specified tracts which he determined were comparable to the Torralva property. At least two of these properties were still in negotiation and had not yet been acquired by the Agency at that time.
Relator Troilo agreed to produce the reports of Tamon and Drane concerning the Torralva property, but he refused to produce any other reports. The trial judge found Troilo in contempt and committed him to the custody of the Sheriff of Bexar County until he complies with the order.
Rule 167, as recently amended, specifically provides for discovery of the reports of experts who will be called as witnesses in the case. Hence this Court's decision in State v. Ashworth, 484 S.W.2d 565 (1972), holding that reports of appraisal witnesses were per se immune from pre-trial discovery, is no longer applicable. The parties do not contend otherwise. As noted, relators make no objection to disclosing the experts' reports concerning the respondents' properties. The sole issue is whether the condemning authorities must reveal appraisal reports concerning other land, not involved in these proceedings and in which respondents own no interest. The parties have not cited, nor have we found, any case in which a court has decided this precise issue. 2
Approaching the problem as one of first impression, we look initially to the language of Rule 167, which provides, in pertinent part:
'RULE 167. DISCOVERY AND PRODUCTION OF DOCUMENTS AND THINGS FOR INSPECTION, COPYING OR PHOTOGRAPHING
'Upon motion of any party Showing good cause therefor . . . the court in which an action is pending may order any party:
'(1) To produce and permit the inspection and copying or photographing by or on behalf of the moving party of any of the following which are in his possession, custody or control: (a) any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, Which constitute or contain, or are reasonably calculated to lead to the discovery of, evidence material to any matter involved in the action; and (b) any insurance agreement . . .; and
'The identity and location of any potential party or witness may be obtained from any communication or other paper in the possession, custody or control of a party, and Any party may be required to produce qnd permit the inspection and copying of the reports, including factual observations and opinions, of an expert who will be called as a witness. . . .' (Emphasis added.)
While the Rule specifically authorizes discovery of expert reports, it contains general qualifications that the party seeking discovery must show 'good cause' and that the documents sought must be such as 'constitute or contain, or are reasonably calculated to lead to the discovery of, evidence material to any matter involved in the action.' We must determine whether the condemnees in these cases have met the 'good cause' and 'materiality' tests thus imposed.
The condemnees contend the reports are material for purposes of cross-examination and impeachment of the appraisers when they testify at the trial. We agree. Several cases in this state hold that an appraiser may be cross-examined regarding his contemporaneous appraisals of other land. City of Garland v. Stevener, 462 S.W.2d 67 (Tex.Civ.App.1971, writ ref'd n.r.e.); State v. Weidel, 385 S.W.2d 626 (Tex.Civ.App.1964, no writ); City of Denison v. Corcoran, 253 S.W.2d 321 (Tex.Civ.App.1952, no writ) (dictum). This information generally would not be available to the landowners from other sources. Thus the good cause and materiality requirements are satisfied unless the case comes within the restriction on discovery for impeachment purposes imposed by this court's decision in Russell v. Young, 452 S.W.2d 434 (Tex.1970).
In Russell v. Young, we held that the personal records of a non-party witness were not discoverable where their only possible relevance would be to impeach the witness's testimony on the ground of bias or prejudice. Russell arose out of...
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