State ex rel. Missouri Highway and Transp. Com'n v. Anderson

• Decision Date: 26 October 1988
• Docket Number: No. 15449,15449
• Parties: STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Relator, v. Honorable David ANDERSON, Judge, of the Circuit Court of Greene County, Respondent.
• Court: Missouri Court of Appeals

Page 102

759 S.W.2d 102

STATE of Missouri, ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Relator, v. Honorable David ANDERSON, Judge, of the Circuit Court of

Greene County, Respondent.

No. 15449.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 26, 1988.

Gerald H. Lowther, Michael K. Cully, Lowther, Johnson, Lowther, Cully & Housley, Springfield, for respondent.

Rich Tiemeyer, John H. Gladden, Jefferson City, Judy L. Curran, Springfield, for relator.

MAUS, Judge.

On March 28, 1988, this court affirmed, as modified, a preliminary order in prohibition. Thereafter, on April 15, 1988, this court denied relator's motion for rehearing or to transfer to the Supreme Court. Relator then filed an application for transfer with the Supreme Court. It sustained the application on June 14, 1988. On October 18, 1988, the Supreme Court entered the following order: "Cause ordered retransferred to Missouri Court of Appeals--Southern District." With the addition of this paragraph, our original opinion is readopted. It is set out hereafter.

By this original proceeding the relator, Missouri Highway and Transportation Commission (Commission), seeks to compel the respondent, Circuit Judge David Anderson of Greene County, to set aside an order sustaining a condemnee's motion to compel discovery. The result of the order in question is to bar the relator from calling appraiser Tom Rule as a witness in the underlying condemnation action, unless Rule answers questions concerning all sales reported to him by a local realtor as comparable sales. The order also alternatively compels Rule to show to the condemnee a copy of each written report of such sales provided to him by the local realtor. This court issued a preliminary order directing the respondent circuit judge to refrain from enforcing that order for discovery and from making any other orders compelling discovery of that information. The record establishes the following facts.

In the underlying condemnation action the state seeks to acquire 34.78 acres in Greene County owned by the condemnee Modern Tractor and Supply Company. The record does not disclose the location of the condemned tract or the purpose for which it was taken. By inference, it appears that the condemned tract was part of a larger tract. The order of condemnation has been entered and the Commissioners' report filed. The Commission has paid the award into court. Each party filed exceptions to the award. Subsequently, the Commission employed Kansas City MIA appraiser Tom Rule to determine damages or benefits resulting from the condemnation.

Rule came to Springfield to make that appraisal. In the process he sought information from a number of local realtors. In response to an appropriate interrogatory, the Commission identified Rule as an expert witness it intended to call at the trial of the exceptions. The Commission's response further stated that Rule would testify to the highest and best use of the condemnee's property immediately before and after the taking and the value of that property immediately before and after the taking and state the reasons for his conclusions.

By agreement, Rule appeared in Springfield for his deposition to be taken by the condemnee. In the course of that deposition, Rule related the facts concerning his employment in the matter and his activities in preparing his appraisal. His testimony on this subject included the following. Local realtor Joe Roberts supplied to him 30 or 40 comparable sales. He had copies of the reports of those sales with him at the deposition. He concluded "[t]here were [sic] a sale or two that was obtained from Joe Roberts that I felt had a good degree of comparability, and I chose to rely on them." But, he added, "I looked at all of them and considered all of them." Rule was then asked to produce the reports. Counsel for the Commission then stated, "I will object to the showing of all the 30 or 40 sales that Joe Roberts obtained. I'll instruct the witness not to produce any sales other than those he chose to rely on." Tom Rule followed that instruction. A short time later the deposition was terminated because of further disputes between counsel.

The respondent argues the order is authorized by reason of Rule 56.01(b)(4) and Rule 57.03(b). The Commission states the issue is "whether or not landowners in a condemnation action are entitled to discover by means of a Motion to Compel Discovery, the reports, notes, memoranda, summaries or written documents compiled and used by an expert witness employed by the condemnor in forming his expert opinion...." Attacking that issue, the Commission contends the order of the trial court is erroneous because it "requires Relator to produce materials which are privileged, constitute the protected work product of Relator prepared in anticipation of litigation and further comprise the facts known and opinions held by an expert, discovery of which is strictly limited by Missouri Supreme Court Rule 56.01(b)(4)(b) to depositions."

To support its attack, the Commission first argues that the reports of comparable sales are work product and privileged. To establish that the appraisals, notes and memoranda of appraisers in a condemnation action are work product and not discoverable, the Commission cites State ex rel. State Highway Commission v. Dalton, 498 S.W.2d 801 (Mo. banc 1973); State ex rel. State Highway Commission v. Jensen, 362 S.W.2d 568 (Mo. banc 1962); and State ex rel. State Highway Commission v. Kalivas, 484 S.W.2d 292 (Mo.1972). The Commission acknowledges that those decisions were before the 1975 effective date of the current rules pertaining to discovery. Nevertheless, the Commission argues that State ex rel. Missouri Highway & Transportation Commission v. Anderson, 735 S.W.2d 350 (Mo. banc 1987) establishes that the holdings in Jensen, Kalivas and Dalton clearly survived the adoption of Rule 56.01 in 1975. The Commission also relies upon State ex rel. Missouri Highway & Transportation Commission v. McHaney, 733 S.W.2d 869 (Mo.App.1987).

"When the term 'work product' is used by Missouri courts and lawyers it refers to the protections contained in Rule 56.01(b)(3) and formerly contained in the old rule." Halford v. Yandell, 558 S.W.2d 400, 406 (Mo.App.1977) (footnote omitted). Rule 56.01(b)(3) refers to documents and tangible things "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent)...." Rule 56.01(b)(3). It is not clear the reports of comparable sales prepared by Joe Roberts and supplied to Rule constitute work product within that definition. However, the parties have assumed they are and for the purpose of this opinion they may be considered to be such. However, it must be noted those reports do not reflect "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party...." Rule 56.01(b)(3).

This case presents an issue of pretrial discovery as distinguished from production at trial. The Commission's argument that the reports of comparable sales are absolutely protected from discovery is misconceived. It does not recognize the distinction between material that is work product and material that is privileged.

'Work product' is a qualified immunity under Rule 56.01(b)(3), which denies materials prepared in anticipation of litigation or trial except upon a showing of substantial need that a party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.... In contrast, any professionally oriented communication between attorney and client is absolutely privileged, in the absence of waiver, regardless of substantial need.

State ex rel. Missouri Highway & Transportation Commission v. Legere, 706 S.W.2d 560, 566 (Mo.App.1986) (citation omitted). Rule 56.01(b)(1) excludes from discovery privileged matter. Rule 56.01(b)(3) in general places limitations upon discovery of work product.

More fundamentally, the Commission's argument does not take cognizance of the rules concerning discovery that became effective January 1, 1975.

These new rules, while not enlarging the scope of admissibility of evidence in a condemnation trial, make it clear that much can be discovered now which prior to January 1, 1975, was considered work product and strictly off limits to discovery.

Rule 56.01(b) now reads in part as follows:

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(a) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the general nature of the subject matter on which the expert is expected to testify.

(b) A party may discover by deposition the facts and opinions to which the expert is expected to testify. Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for responding to discovery by deposition.

This section of the rule now extends the right of discovery to the opinions of experts, an area which heretofore had been held immune to discovery under the work product doctrine as enunciated in State ex rel. State Highway Commission v. Jensen, 362 S.W.2d 568 (Mo. banc 1962); State ex rel. Missouri Public Service Co. v. Elliott, 434 S.W.2d 532 (Mo. banc 1968); State ex rel. State Highway Commission v. Dalton, 498 S.W.2d 801 (Mo. banc 1973); and State ex rel. State Highway Commission v. Crain, 496 S.W.2d 867 (Mo.App.E.D.1973). Presumably, these cases, decided from 1962 to 1973, are now no longer good law as respects discovery.

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