Stanley Works v. New Britain Redevelopment Agency

• Citation: 155 Conn. 86,230 A.2d 9
• Court: Supreme Court of Connecticut
• Decision Date: 10 May 1967
• Parties: The STANLEY WORKS v. NEW BRITAIN REDEVELOPMENT AGENCY.

Page 9

230 A.2d 9

155 Conn. 86

The STANLEY WORKS v. NEW BRITAIN REDEVELOPMENT AGENCY.

Supreme Court of Connecticut.

May 10, 1967.

Arthur S. Sachs, New Haven, with whom were Sonja Goldstein, New Haven, and, on the brief, John A. Oliva, New Haven, for appellant-appellee (defendant).

Richard G. Bell, New Haven, with whom were James W. Cooper and William K. Muir, Jr., New Haven, for appellee-appellant (plaintiff).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

THIM, Associate Justice.

On or about November 25, 1964, the defendant, acting under § 8-129 of the General Statutes, filed with the clerk of the Superior Court at Hartford five statements of compensation as against the plaintiff stating that the premises therein described were found to be located in the South Central Project, a redevelopment area in New Britain, and that the compensation to be paid for the premises was to be $1,000,000. Thereafter, on December 8, 1964, the defendant caused to be filed in the office of the town clerk of New Britain five certificates of taking as to the premises. See General Statutes § 8-129. The plaintiff applied to the court for a review of the statements of compensation. General Statutes § 8-132. The court appointed a state referee to make the review. He found the fair and reasonable value of the land, buildings and fixtures to be $4,119,000. The plaintiff and the defendant filed motions with the referee asking him to correct his report in certain particulars. The referee made only some of the suggested corrections. The parties then filed exceptions with the court. Both parties also objected to the acceptance of the report. The court refused to make any material corrections and rendered judgment on the referee's recommendation that $4,119,000 be paid as compensation for the taking. The defendant and the plaintiff both appealed.

The referee found these facts: The subject property consisted of a complex of multistory buildings on approximately 8.3 acres of level land. In the spring of 1961, the defendant commenced to negotiate with the plaintiff concerning a proposal whereby the defendant would cause the plaintiff's property to be included in a proposed redevelopment area known as the South Central Project and to be designated as property to be acquired by the defendant. Since the plaintiff was employing over 1200 employees in the tool manufacturing business, the relocation of the plaintiff's business in New Britain was a prerequisite to the inclusion of the subject property in the proposed project and its designation for acquisition by the defendant. The entire renewal project, including the incorporation of the plaintiff's property therein and its acquisition price was subject to the subsequent approval of the Federal Urban Renewal Administration.

In December, 1961, the boundaries of the proposed project were extended by the defendant to include the plaintiff's property. Thereafter, the parties agreed that the acquisition price of the plaintiff's property would be $4,200,000, which was to constitute payment for the land, buildings, fixtures and moving costs incurred by the plaintiff. To justify this price, the defendant in 1961 and 1962 caused two separate appraisals of the property and one appraisal of the fixtures to be made: the McDonald appraisal in the amount of $4,526,000; and Adams appraisal of $4,168,000; and the Cahn appraisal of fixtures of $553,531. In May, 1962, the plaintiff, at the defendant's request, informed the defendant that the cost of moving to a new facility would be approximately $2,700,000.

During all of the negotiations, the plaintiff understood that the defendant could not enter into any binding agreement to acquire the property at the agreed upon acquisition price without the approval of the Federal Urban Renewal Administration. Nevertheless, in 1962, the plaintiff started to make plans for the construction of a new building. It employed an architect to prepare sketches of a new building. In the fall of 1962, the plaintiff sought and obtained a zoning change on other land in New Britain which it already owned and upon which the new plant was to be located. In March, 1963, the plaintiff, at the request of the defendant, signed an agreement to sell the property to the defendant or, in the alternative, consented to its condemnation for $4,200,000.

Relying on assurances by the defendant that the property would be acquired for the agreed price, the plaintiff in April, 1963, commenced the construction of the new plant although it realized that the requisite approval of the federal agency concerning inclusion of the subject property in the project and its acquisition price had not been given. The construction of the new plant was completed in January, 1964. Thereupon it immediately began to move its machinery to the new plant. By September 1, 1964, the move was completed. As a result of disconnecting, moving and reconnecting 1700 pieces of machinery, the plaintiff incurred moving costs of $2,008,206.

In the meantime, however, the Urban Renewal Administration, although it approved the South Central Project which included the plaintiff's property, refused to approve the acquisition price of $4,200,000 for the plaintiff's property. Thereupon the defendant instituted the present eminent domain proceeding.

The referee found that the defendant, during the negotiations with the plaintiff, acted in good faith with every expectation that its recommendation would be adopted by the Urban Renewal Administration. His unchallenged conclusion was that the parties never entered into an enforceable agreement. For this reason, he recommend an award which represented the fair market value of the property on December 8, 1964, the date of the taking.

In preparation for a review by the referee, the plaintiff filed a motion in the trial court seeking an order compelling the defendant to answer certain interrogatories. One of these interrogatories called for the identity of all persons who had been asked to appraise the plaintiff's property on behalf of the defendant. Another called for the value or values which those who had appraised the plaintiff's property had assigned to that property. The motion also requested an order compelling the defendant to make available to the plaintiff all appraisal reports which had been submitted to it concerning the plaintiff's property.

The defendant objected to answering the interrogatories, claiming that the information sought was 'confidential and privileged in nature between those persons (the appraisers) and the defendant.' It also objected to producing the appraisal reports on the ground that they were the 'work product of the defendant and are of a confidential nature.' After a hearing on the motion, the trial court ordered that the interrogatories be answered. It also ordered that the parties exchange all appraisal reports which had been made on behalf of either of them. The defendant claims the court erred both in ordering the interrogatories answered and in ordering the production of the appraisal reports.

The state courts are divided on the question whether or not the opinions of the other party's expert witnesses are the proper subject of pretrial discovery in an eminent domain proceeding. 6 Nichols, Eminent Domain (Rev.3d Ed.) § 26.22; see also Friedenthal, 'Discovery and Use of an Adverse Party's Expert Information,' 14 Stan.L.Rev. 455, 474. This division of authority is due, in large part, to the fact that, today, pretrial discovery is largely governed by statutes and rules, and among the jurisdictions the language used in the pertinent statutes and rules often differs significantly. See note, 86 A.L.R.2d 138, 170-81. Looking to our own rules, we find the motion in question is governed by §§ 167 and 168 of the Practice Book. ¹ At the outset it is apparent that, although in the context of the rules concerning pretrial discovery the 'line between opinion and fact is often metaphysical'; Fetterolf v. Levick, 80 Pa.D. & C. 523, 526; the plaintiff's interrogatory which called for the values which the defendant's appraisers had placed on the plaintiff's property clearly called for the disclosure of opinions rather than of facts. No proper objection on this point, however, was raised by the defendant, and we need not consider the propriety of the court's order in that respect. The only objections which the defendant raised to the motion were that the information sought was confidential, privileged and a work product. The defendant goes on to assert that therefore it was an abuse of discretion for the court to order the disclosure of this information. The claim that the information was confidential apparently relates to an agreement the defendant had with its appraisers to the effect that the appraisers would not divulge the information they had gathered and the opinions they had formed without the prior consent of the defendant.

We fail to discern how such an agreement could in any way be pertinent in the present situation because the plaintiff sought the information in question from the defendant, not from the appraisers. In any event, the fact that the appraisal reports may have been requested by and submitted to the condemnor in confidence does not make the reports privileged communications. It is only where the report is in some way involved in a communication between an attorney and a client that it could take on a privileged character which would protect it from discovery. Note, 146 A.L.R. 977, 988.

The mere fact that a party has the report prepared because he anticipates future litigation is insufficient to clothe the report with the attorney-client privilege. See Hurley v. Connecticut Co., 118 Conn. 276, 285, 172 A. 86. As the record is devoid of any indication that the appraisers' reports and their opinions as to the value of the plaintiff's property were in any way requested by or procured for the benefit of the defendant's counsel...