Town of Thomaston v. Ives
| Decision Date | 13 February 1968 |
| Citation | 156 Conn. 166,239 A.2d 515 |
| Court | Connecticut Supreme Court |
| Parties | TOWN OF THOMASTON v. Howard S. IVES, Highway Commissioner. |
Clement J. Kichuk, Asst. Atty. Gen., with whom, on the brief, were Harold M. Mulvey, Atty. Gen., and Jack Rubin, Asst. Atty. Gen., for appellant (defendant).
H. Gibson Guion, Thomaston, for appellee (plaintiff).
Before ALCORN, HOUSE, COTTER, THIM and RYAN, JJ.
This appeal presents the question whether, in eminent domain proceedings initiated by the state highway commissioner in which the amount assessed by the commissioner as damages is the only issue in dispute, the owner of the condemned property may compel a real estate appraiser employed by, but not offered as a witness by, the commissioner to testify concerning his opinion as to the value of the condemned property. A secondary issue is the admission into evidence of the witness' appraisal report.
The question arose in this way. The state highway commissioner, hereinafter referred to as the state, condemned, pursuant to General Statutes § 13a-73(b), about 1.05 acres of land and a two-story, brick and frame school building situated on the land belonging to the town of Thomaston, hereinafter called the town. The building was in active use as a school. The state condemned the property for a trunkline highway and assessed the damages to the town for the taking at $35,500. The town appealed to the Superior Court for a reassessment of damages, and the court referred the case to a state referee to make the reassessment. General Statutes § 13a-76. At the hearing before the referee, the town called, as a rebuttal witness, Walter Kloss, a real estate expert who had been employed by the state to appraise the damages arising from the taking but who had not been produced as a witness by the state. The state objected to any testimony by Kloss as to the value of the property on four grounds: The issue should have been raised on a motion for disclosure prior to the reference of the case to a referee; the witness was under contract as an expert to render a confidential report to the state; his report was the 'work product' of an expert for which he was paid by the state, and his testimony and report were not available to the town to be offered by it in evidence; and Kloss was a privileged witness who could not be required to divulge his appraisal and report because they were confidential. The witness, after being sworn, refused to testify because of his contract with the state. The referee, with the approval of the parties, then returned the case to the court for a ruling on the legal issue presented.
At this point, the procedure becomes cloudy because the printed record does not disclose the manner in which the question came before the court. The Superior Court file, which we judicially notice; State v. Lenihan, 151 Conn. 552, 554, 200 A.2d 476; shows that the town made a motion, pursuant to Practice Book, § 168, for a disclosure of the names of all persons who had appraised the property other than the one appraiser who had testified for the state, for a disclosure of the amounts of the appraisals made by each, and for an order requiring the state to produce the reports of all such appraisals for inspection and copying. The court file also shows that the state filed an objection to the motion on the grounds that the disclosure sought concerned the privileged 'work product' of an expert retained by the state which was not needed by the town in the prosecution of its appeal and that the appraisals sought consisted of opinions which were based on facts which were available to and already in the possession of the town.
The court filed a memorandum of decision which concluded by ordering 'that the State's witness answer the question propounded to him as to his opinion of the fair market value of the property condemned by the State before the taking.' The memorandum of decision does not indicate that it resulted from a hearing on the motion for disclosure and the objection thereto. Nor does the order which was passed meet any of the issues presented by the motion or the objection to it. The judgment file, however, recites that the court granted the motion for disclosure, and, in this appeal, the parties treat the order of the court as responsive to the motion.
Following the court's decision ordering the witness to answer the question propounded to him, the case was again referred to the referee, and Kloss was again summoned as a witness by the town. The objections previously made to his testimony were repeated by the state, the referee overruled them, and the state duly excepted. There is no claim that the town had refused to compensate Kloss for his appearance as an expert witness. Kloss then testified that, in his opinion, the condemned property had a value of $52,700. Another appraiser, who had previously been called as a witness by the town, had valued the property at $57,800. Charles B. Trobel, the only appraiser called by the state, had valued the property at $35,500.
The state then called a witness who was asked to describe the process by which it had decided to assess, as damages for the taking, the valuation of $35,500 placed upon the property by Trobel rather than the value of $52,700 determined by Kloss, both appraisers having been employed by the state to value the property. This procedure involved, in substance, an evaluation of the Trobel and Kloss reports by a review appraiser who was a salaried employee of the state and a further review by a screening committee of three persons. At the conclusion of this testimony, the town offered, as an exhibit, the appraisal report which Kloss had furnished to the state. The defendant objected on the ground that the report was 'not necessary due to the limited testimony respecting it.' The referee overruled the objection and admitted the report as an exhibit, and the state duly excepted.
At the conclusion of all the evidence, the referee decided, and reported to the court, that the town had sustained damages of $45,900 as a result of the taking. The report of the referee was accepted by the court over the defendant's objection, and judgment was rendered for the town in accordance with the referee's report.
The state assigns, as distinct issues on this appeal, that (1) both the court and the referee erred in requiring Kloss to testify as to his opinion of the value of the condemned property and (2) the referee erred in admitting Kloss' appraisal report into evidence. We will consider the issues in that order.
At the outset, we emphasize that the case does not involve an issue of pretrial discovery. We considered such an issue in Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 93-95, 230 A.2d 9, in which a motion for disclosure and production almost identical to the one filed by the town in the present case was involved, and we concluded that the material sought was not immune to disclosure on grounds of privilege, confidentiality or 'work product' of the appraiser. In the present case, it is clear that the parties understood that the question presented to the trial court was whether the witness could be compelled to testify concerning his opinion as to...
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