Tenngasco Gas Gathering Co. v. Fischer, 1843

• Decision Date: 22 October 1981
• Docket Number: No. 1843,1843
• Citation: 624 S.W.2d 301
• Parties: TENNGASCO GAS GATHERING COMPANY, Appellant, v. C. E. FISCHER, Appellee.
• Court: Texas Court of Appeals

Page 301

624 S.W.2d 301

TENNGASCO GAS GATHERING COMPANY, Appellant, v. C. E. FISCHER, Appellee.

No. 1843.

Court of Appeals of Texas, Corpus Christi.

Oct. 22, 1981.

Rehearing Denied Nov. 19, 1981.

William H. Keys, Keys, Russell & Seaman, Corpus Christi, for appellant.

Frank Weathered, Meredith & Donnell, Corpus Christi, E. B. Grimes, Robstown, for appellee.

Before BISSETT, YOUNG and GONZALEZ, JJ.

OPINION

BISSETT, Justice.

This is a gas pipeline condemnation case. Tenngasco Gas Gathering Company (hereinafter "the pipeline company") filed a petition in condemnation seeking a permanent easement and right of way twenty feet wide and a temporary construction easement seventy-five feet wide across a 144 acre tract of farm land located in Nueces County, Texas, and owned by C. E. Fischer ("the landowner"). The parties were unable to agree on the matter of damages and the Special Commissioners awarded the landowner $5,750.00 as damages. The landowner contested the award and filed appropriate exceptions and objections thereto. A jury trial in the Nueces County Court at Law No. 3 followed.

The jury found that the value of the twenty foot permanent easement and right of way before the taking to be $2,412.00 and $3,159.00 after the taking. It further found that the "before" value of the remaining portion of the tract (approximately 143 acres) to be $553,788.00 and its "after" value to be $434,841.00. Judgment was rendered on the verdict. The pipeline company has appealed.

No complaint is registered in this appeal concerning the damages awarded for either the taking of the twenty foot permanent easement or the damages caused by the temporary construction of the pipeline. However, the pipeline company does complain of the finding that the market value of the remainder of the subject property immediately before the taking of the easement was $553,788.00, and of the finding that the market value of such remainder immediately after the taking of subject easement was $434,841.00.

We first address the pipeline company's contentions that the trial court erred in permitting Mr. William Nicholson, over its objections, to testify. It is argued that Nicholson was an expert witness, not named in answers to interrogatories propounded to the landowner, and that, therefore, he should not have been allowed to testify. The landowner, on the other hand, argues that Nicholson was offered as a lay witness who merely gave testimony concerning his personal experiences in land development.

The pipeline company's contention that Nicholson was an expert witness is based on his background and on the subject matter of his testimony. The record reveals that he is a registered civil engineer. It is also shown that he developed the Quail Valley subdivision in Nueces County. This subdivision, some several miles from the Fischer tract (the land involved in this appeal), consists of approximately three hundred twenty acres of land with about ten pipelines running through it. Nicholson detailed the problems he had while developing Quail Valley, which were caused by the existence of the pipelines.

The purpose of Nicholson's testimony, according to the landowner, was to rebut the statements of Mr. Richard Clower, the pipeline company's expert, that the placing of a gas pipeline across land does not affect its value. Nicholson never related his experiences to the Fischer tract. He gave no opinions regarding the effect a gas pipeline would have on the Fischer tract, but simply stated the difficulties he encountered in developing Quail Valley. The fact that he possessed the requisite qualifications to give an opinion concerning the Fischer tract did not make him an expert witness in this particular case. He never went beyond the realm of his personal experiences in developing Quail Valley, and was, therefore, a lay witness, rather than an expert, regardless of his qualifications and background in civil engineering. Had he offered an opinion, based on his experiences and training, as to the effect a gas pipeline would have on the Fischer tract, a different case would be before us. But, because he was careful to speak only of his own experiences in land development, we hold he was a mere lay witness, and not an expert.

If we assume, for argument purposes only, that Nicholson was an expert, his testimony was not rendered inadmissible per se by the landowner's failure to supplement his answers to the interrogatories. The sanctions imposed for failing to abide by the discovery rules are within the sound discretion of the trial court. Its refusal to impose sanctions can be reversed only upon a clear showing of abuse of discretion. See Hankins v. Haffa, 469 S.W.2d 733, 738 (Tex.Civ.App.-Amarillo 1971, no writ).

After a review of the record, we find that Nicholson was not the only witness who gave testimony concerning the effect that a pipeline will have on land. Mr. Herman Fischer, Mr. John Reagan, and the landowner, gave testimony which touched this issue; Nicholson's testimony was therefore merely cumulative of other testimony. No abuse of discretion is shown. The trial court did not err in permitting Nicholson to testify.

We next consider the pipeline company's complaint that the trial court erred in allowing the landowner's witness, Mr. John H. Reagan, over its objections, to testify as to the value of the remainder of the subject land before and after the taking of the pipeline easement. As grounds therefor, the pipeline company says: 1) the opinion was based upon the sales of individual lots out of existing developed subdivisions; and 2) by such testimony the witness could not have formulated an opinion as to the value of defendant's land without using the value of sales in other existing and developed subdivisions.

During cross-examination, Reagan testified that he took into consideration sales figures of lots in existing, developed subdivisions, and could not have otherwise reached an opinion on the value of the subject property. The pipeline company contends this was improper because the subject property is undeveloped farm land and therefore Reagan's testimony should have been excluded.

The land involved in this appeal is raw, unplatted land which was under cultivation. It comprises approximately 144 acres and is located between "Five Points" and Robstown in Nueces County, Texas. It is bound on the east by FM Road 1694, and on the west by U. S. Highway 77. The Missouri-Pacific railroad tracks run diagonally from the southwest to the northeast across the west part of the tract. The permanent easement for the gas pipeline is a strip twenty feet wide and runs diagonally from southeast to northwest across the tract. Although the testimony is conflicting, there is evidence which puts the acreage of that part of the tract west of the railroad to be from twenty-eight to thirty-five acres and there is also testimony which puts the acreage of the remainder of the tract to be from one hundred nine to one hundred sixteen acres.

In valuing raw acreage, prices paid for subdivision lots are inadmissible. State v. Willey, 360 S.W.2d 524, 525 (Tex.1962). It is conceded by the pipeline company that Reagan did not testify with respect to the prices paid for, or the value of, individual lots in the neighboring subdivisions. Thus, the issue is whether an expert's opinion as to the value of raw acreage is admissible once it is shown that the expert, in formulating that opinion, relied upon the sales prices of lots in nearby subdivided areas. We hold that such opinion evidence is admissible.

The factual basis upon which an expert arrives at his opinion goes to the weight of his testimony, not to its admissibility. Texas Sanitation Co. v. Marek, 381 S.W.2d 710, 716 (Tex.Civ.App.-Corpus Christi 1964, no writ); State v. Sides, 348 S.W.2d 446, 452 (Tex.Civ.App.-Dallas 1961, writ ref'd n.r.e.); Hays v. State, 342 S.W.2d 167, 174 (Tex.Civ.App.-Dallas 1960, writ ref'd n.r.e.). Since the pipeline company's objections to Reagan's testimony went to its weight and not to its admissibility, the trial court did not err by allowing Reagan to testify.

The pipeline company also attacks the jury findings of the value of the remainder of the Fischer tract of land before the taking and the value thereof after the taking by bringing forward "no evidence" points, "factual insufficient evidence" points...