Opinion
HHBCV136021904S
09-25-2019
UNPUBLISHED OPINION
OPINION
Arnold W. Aronson, Judge Trial Referee
In this real estate tax appeal, the defendant, the town of Redding (town), seeks to depose a non-party real estate expert, David R. Salinas (Salinas), who had previously rendered an opinion of value for the purpose of the plaintiff obtaining financing unrelated to a revaluation of the subject property. Salinas now moves for a protective order prohibiting the town from taking his deposition.
Mr. Salinas, a resident of Florida, authored two real estate appraisals dealing with the valuation of the subject property on behalf of two lenders, one dated October 6, 2010 and the second dated on July 12, 2011. The revaluation date of the subject real estate is October 1, 2012.
The undisputed facts in this case, as reported in Redding Life Care, LLC v. Redding, 331 Conn. 711, 714-15, 207 A.3d 493 (2019) (hereinafter Redding Life), start with the town-wide revaluation of real property for the grand list of October 1, 2012, in which the town assessed the plaintiff’s real estate for tax purposes. As a result of that assessment, Redding Life initiated an action against the town to challenge the assessor’s valuation of the property.
The Supreme Court in Redding Life, supra, 331 Conn. 728, noted as follows:
"During the course of pretrial discovery, the town obtained two appraisal reports commissioned by the bank and authored by Salinas containing his opinions regarding the value of the property as of October 6, 2010, and July 12, 2011. Because the expert appraisal reports independently obtained by Redding Life contained property values drastically lower than the property values listed in Salinas’ reports, the town sought to depose Salinas to understand the difference in values. The town filed a motion for a commission to take an out-of-state deposition of Salinas. In that motion, the town listed Salinas’ qualifications as an appraiser, stated that he had appraised the property in 2010 and 2011 at values substantially in excess of the value stated by the town’s assessor, and sought ‘to depose ... Salinas with respect to his determination of [the] value[s] in these appraisals.’ "
The Redding Life court also recited the following facts:
"Subsequently, the town served Salinas with a subpoena compelling him to appear at a deposition scheduled for January 2015, in Florida. Salinas filed a motion for a protective order in the Connecticut Superior Court seeking to prohibit the town from taking his deposition. He argued that he had not been retained in the tax appeal, did not have any relevant knowledge, and could not be compelled to testify as an expert because Connecticut law ‘prohibit[s] the compulsion of such unretained expert testimony.’ The town objected.
"The [trial] court denied Salinas’ motion and ordered the following: ‘The deposition shall proceed. The town shall pay the witness his fees and expenses as provided in Practice Book § 13-4(c)(2) ...’ Salinas then filed a writ of error with [the Supreme Court] seeking appellate review of the trial court’s denial of his motion for a protective order. Salinas subsequently filed a motion seeking the following articulation: ‘Did the trial court conclude that ... Salinas can be compelled under Connecticut law to provide expert witness testimony against his will? If so, what is the basis for the conclusion?’ The court responded: ‘The answer to the first question is no. It was unnecessary to reach that conclusion because [Salinas] had already authored appraisals that contained his opinions.’
"The town thereafter filed a motion to dismiss the writ of error for lack of subject matter jurisdiction, arguing that the trial court’s discovery order did not constitute an appealable final judgment. [The Supreme Court] transferred the matter to the Appellate Court pursuant to General Statutes § 51-199(c), and that court denied the town’s motion to dismiss. Redding Life Care, LLC v. Redding, 174 Conn.App. 193, 196, 165 A.3d 180 (2017).
"The Appellate Court granted the writ of error and remanded the case to the trial court with direction to vacate the order denying the plaintiff in error’s motion for a protective order. The Appellate Court based its decision on its creation of a new, qualified unretained expert privilege that it announced. In defining the parameters of this privilege, the Appellate Court explained that, on remand, the trial court ‘should, in determining whether to grant Salinas’ motion for a protective order because his testimony is appropriately barred by the qualified unretained expert privilege, consider (1) whether under the circumstances, he reasonably should have expected that, in the normal course of events, he would be called upon to provide opinion testimony in subsequent litigation; and (2) whether there exists a compelling need for his opinion testimony in this case ...’" Redding Life, 331 Conn. 715-16.
The town filed a petition for certification to appeal the Appellate Court’s decision. The Supreme Court granted the petition limited to three issues: "1. Does Connecticut recognize a qualified expert testimonial privilege in pretrial discovery (and at trial) permitting an unretained expert to withhold testimony regarding an opinion that the expert had previously rendered and documented in a written report? 2. If Connecticut recognizes the privilege, what is its scope? 3. Does the Supreme Court have jurisdiction to grant certification to appeal from the Appellate Court’s final determination of a writ of error?" (Internal quotation marks omitted.) Redding Life, 331 Conn. 717.
The Supreme Court concluded that the Appellate Court lacked subject matter jurisdiction. The trial court’s order did not constitute an appealable final judgment thereby depriving the Appellate Court of subject matter jurisdiction over Salinas’ writ of error.
Salinas contends that the Appellate Court’s creation of a qualified unretained expert privilege, as recited in the Appellate Court’s decision, 174 Conn.App. 205, is still good law despite the Supreme Court’s holding that the Appellate Court lacked subject matter jurisdiction to consider Salinas’ appeal by way of a writ of error.
The Supreme Court’s decision in Redding Life, 331 Conn. 744, makes it clear that the discovery order issued by the trial court does not constitute a final judgment. Therefore, as the Appellate Court was without jurisdiction to consider the merits of Salinas’ appeal by way of a writ of error, its formulation of a rule of law recognizing a non-party privilege of an unretained expert is nothing more than dicta.
Dictum does not have the force of a precedent. Sharkiewicz v. Smith, 142 Conn. 410, 412, 114 A.2d 691 (1955).
As recited in Redding Life, id., "[t]he judgment of the Appellate Court is reversed and the case is remanded to that court with direction to dismiss the writ of error for lack of subject matter jurisdiction." See Fort Trumbull Conservancy, LLC v. Trumbull, 265 Conn. 423, 429, 829 A.2d 801 (2003) ("[a] court lacks discretion to consider the merits of a case over which it is without jurisdiction").
The formulation of the rule of law by the Appellate Court was made at the time that the Appellate Court did not recognize that it lacked subject jurisdiction to entertain Salinas’ appeal because the order of the pretrial judge was not a final order from which an appeal could be taken. The issue before this court can be resolved by following the recommended guideline of the Supreme Court at Redding Life, 331 Conn. 743-44: "Once Salinas attends the deposition, objects on the record to specific questions, and a trial court decides which, if any, questions he must answer, the courts will be better positioned to determine not only whether an unretained expert privilege exists, but if such a privilege even applies in this case. As the record now stands, Salinas is requesting this court to decide this issue in a vacuum."
Whether an unretained expert privilege exists will be decided by our courts following the procedure outlined above.
Accordingly, Salinas’ motion for a protective order is denied.