Pinellas County v. Carlson

• Decision Date: 09 December 1970
• Docket Number: No. 39094,39094
• Parties: PINELLAS COUNTY, a political subdivision of the State of Florida, Petitioner, v. G. A. CARLSON and Grace A. Carlson, his wife, et al., Respondents.
• Court: Florida Supreme Court

Page 714

242 So.2d 714

PINELLAS COUNTY, a political subdivision of the State of Florida, Petitioner, v. G. A. CARLSON and Grace A. Carlson, his wife, et al., Respondents.

No. 39094.

Supreme Court of Florida.

Dec. 9, 1970.

Rehearing Denied Jan. 25, 1971.

Richard L. Stewart, County Atty., and Daniel N. Martin, Special Counsel, Clearwater, for petitioner.

Gerald R. Colen, St. Petersburg, for respondents.

Thomas C. Britton, County Atty., and Joan Elizabeth Odell, Asst. County Atty., for Dade County.

Howard Hadley, Chief Atty., and Geoffrey B. Dobson, Asst. Atty., Tallahassee, for State of Florida Dept. of Transportation, as amicus curiae.

ADKINS, Justice.

This cause is here on petition for writ of certiorari supported by certificate of the District Court of Appeal, Second District, that its decision reported in 227 So.2d 703 is one which involves a question of great public interest. See Fla.Const. art. V, § 4(2), F.S.A.

For clarity, the parties are referred to as in the lower court. Petitioner was the Plaintiff and Respondents were the Defendants.

These were eminent domain proceedings to acquire property to be used as parking facilities in connection with the St. Petersburg branch of the Pinellas County Court-house. After filing a declaration of taking and securing an order of taking, Plaintiff filed a notice of taking the deposition of A. B. Fogarty, together with a praecipe for subpoena duces tecum upon deposition. The subpoena duces tecum required Fogarty to produce all information concerning the appraisal of Defendants' property.

Defendants filed a motion for a protective order which sought to prevent the taking of Fogarty's deposition or to exclude from the subjects of inquiry any matter relating to the contents of an appraisal made by the witness on behalf of Defendants' attorney or as to the witness' opinion as to the value of Defendants' property and as to any discussions with, or information given the witness by the attorney for Defendants relating to the value of the land or the attorney's preparation for trial of the cause. Fogarty was an appraiser engaged by Defendants' attorney.

After hearing argument on the motion, the Court entered an order allowing Plaintiff to examine Fogarty on all matters except any communication between him and the attorney for the Defendants.

Fogarty's deposition was taken and, at the trial, Plaintiff called Fogarty as its witness over the objection of the Defendants. Fogarty testified as to his appraisal of the property, his opinion of value and the basis of such opinion.

Subsequent to the trial, Defendants moved for a new trial, which motion was denied. The Defendants then entered their appeal to the District Court of Appeal, Second District. The District Court of Appeal held that the trial court was in error in requiring the Defendants to divulge the work product of their expert witness Fogarty by mandatory process and reversed the judgment of the trial court. Petitioners state the question before us as follows:

'Whether the 'work product' rule is applicable in eminent domain proceedings in prohibiting the condemning authority from utilizing discovery procedures and inquiring of the expert witnesses employed by the condemnee concerning matters upon which their opinion of value is based.'

As concepts of democracy have grown, greater emphasis has been placed on the rights of the citizen, among which has been the inalienable right or privilege of acquiring, possessing and protecting property. The power of eminent domain is circumscribed by the Constitution and statutes in order that cherished rights of the Individual may be safeguarded. It is one of the most harsh proceedings known to the law. Peavy-Wilson Lumber Co., Inc. v. Brevard County, 159 Fla. 311, 31 So.2d 483, 172 A.L.R. 168 (1947).

'Value' in our condemnation statutes ordinarily means the amount which would be paid to a Willing seller, Not compelled to sell by a willing purchaser, not compelled to purchase, considering all uses to which the property is adapted and might reasonably be applied. Casey v. Florida Power Corp., 157 So.2d 168 (Fla.App.2nd, 1963). Under this rule the condemnee, an Unwilling seller, is required to accept a value which some willing seller, not compelled to sell, would accept as the purchase price of the property. In protecting the property rights of our citizens, this Court should establish a procedure by which the condemnee, or victim, is given every opportunity to establish the true value of his property when confronted with the unlimited resources of the condemning authority.

In requiring the condemning authority to produce its appraisers' work sheets for inspection by the condemnee (Shell v. State Road Department, 135 So.2d 857 (Fla.1962)), this Court said:

'We can envisage no 'unfairness' to this governmental agency. If the governmental unit or agency is seeking to effectuate the 'summon bonum', as it should in every condemnation suit, there is no justification for cutting corners or being secretive to the possible detriment of the individual land lowner whose property is being taken from him against his will.' (p. 861)

It is inconsistent and illogical at this late date to say that the application of the rule in Shell, supra, does, in fact, result in unfairness to the condemning authority.

The discovery sought by the State of Florida in the case Sub judice should have been denied, both because it is not consistent with the standards of fairness previously announced by this Court, and also because it violates the work product rule as it has been developed in Florida case law.

The question central to this case is whether a litigant may discover the work product information prepared for his adversary party and counsel by an expert, when that expert is not scheduled to be called as a trial witness. This question previously has been answered in the negative; Motor Union (Aviation) Orion Insurance Co. v. Levenson, 153 So.2d 852 (Fla.App.3rd 1963). In Motor Union, the District Court of Appeal held that discovery would not be permitted of a doctor's work product for adverse parties, where the doctor was not to be called at trial.

In the case Sub judice, it is argued that a special rule prevails since the party who was subject to discovery was a condemnee. Reliance is placed on the Shell case. However, a careful reading of the Shell decision persuades that it was not the intention of this Court to destroy the work product rule regarding discovery in eminent domain cases. Rather, the Shell decision dealt with a special situation, the discovery of work product information prepared by the State in trial preparation. This Court stated:

'The concept of an attorney's work product being immune from discovery under the Federal Rules of Civil Procedure was first recognized and announced by the U.S. Supreme Court in the oft-cited case of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 393, 91 L.Ed. 451. In that case it was held that statements of witnesses secured by an attorney in advance of trial, while not strictly constituting matter privileged under the attorney-client relationship, should nevertheless be immune from discovery because such a procedure would be contrary to the public policy underlying the orderly prosecution and defense of legal claims. * * *

'The principle established in Hickman v. Taylor, supra, holding the work product immune from discovery procedures has been recognized and accepted in a number of cases in this state. See Atlantic Coastline Railroad Company v. Allen, Fla., 40 So.2d 115; Miami Transit Company v. Hurns, Fla., 46 So.2d 390; McGee v. Cohen, Fla., 57 So.2d 658; Seaboard Airline Railway Company v. Timmons, Fla., 61 So.2d 426; 10 Fla.Jur., Discovery, etc., Section 6; 7 Fla. Law and Practice, Depositions and Discovery, Section 25.

'* * *

'A review of the applicable Florida authorities cited above on the subject of work product, however, indicates that in an ordinary case data compiled or prepared by experts in preparation for trial would constitute a part of the work product of a party or his agents. Professor Moore indicates in his treatise that the denial of discovery of such data is usually founded on the general basis of unfairness to the person who engaged the expert. 4 Moore's Federal Practice, Section 26.24.

'Nevertheless, Conceding that in private litigation the reports and opinions of experts should be considered a 'work product' exempt from compulsory discovery, we are convinced that the 'work product' immunity should not extend to the type of information sought in this eminent domain proceeding. We realize that the rule pronounced herein with reference to condemnation proceedings is diametrically opposite to the prevailing rule in ordinary litigation. However we are convinced that there is no inconsistency because both rules are based upon sound public policy when the sphere in which each operates is properly analyzed.' (Emphasis supplied) (135 So.2d p. 860)

In Shell, the information sought to be discovered was work product information prepared for the State Road Department. This Court discussed the duty which devolves on public agencies in such cases, as differentiated from that imposed on private litigants, and concluded compulsory disclosure was proper. The Court said:

'Unlike litigation between private parties condemnation by any governmental authority should not be a matter of 'dog eat dog' or 'win at any cost'. Such attitude and procedure would be decidedly unfair to the property owner. He would be at a disadvantage in every instance for the reason that the government has unlimited resources created by its inexhaustible power of taxation. Moreover it should be remembered that the condemnee is himself a taxpayer and as such contributes to the government's 'unlimited resources'.' (p. 861)

By footnote, the Court called attention to the fact that the information sought in the case before it then was within a public agency, and...