Texas Municipal Power Agency v. Berger

• Decision Date: 27 March 1980
• Docket Number: No. 17595,17595
• Citation: 600 S.W.2d 850
• Parties: TEXAS MUNICIPAL POWER AGENCY, Appellant, v. Tony R. BERGER et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 850

600 S.W.2d 850

TEXAS MUNICIPAL POWER AGENCY, Appellant, v. Tony R. BERGER et al., Appellees.

No. 17595.

Court of Civil Appeals of Texas, Houston (1st Dist.).

March 27, 1980.

Naman, Howell, Smith, Lee & Muldrow, P. C., Roy L. Barrett, Waco, for appellant.

Karl C. Hoppess, Warren G. King, Houston, Coulter T. Hoppess, Bryan, Latham Boone, III, Navasota, for appellees.

Before PEDEN, WARREN and EVANS, JJ.

EVANS, Justice.

This condemnation proceeding was initiated by the appellant, Texas Municipal Power Agency (TMPA). TMPA sought to condemn the surface of a tract of 28.304 acres in Grimes County owned by the appellees, Tony R. Berger and wife Marguerite Berger, and also the right to prevent the removal of minerals within 200 feet of the surface of the land. The jury found that the market value of the surface, together with all minerals, if any, located within 200 feet of the surface was the sum of $65,099.20, reflecting a market value of $2300.00 per acre. TMPA brings this appeal, complaining that the trial court erred in admitting in evidence certain exhibits and testimony concerning the quality, quantity and market value of lignite material under the surface of the land and that the evidence is legally insufficient to support the jury's verdict.

The principal issue at the trial was whether the value of the tract would be enhanced by reason of its having a potential for commercial lignite production. There are three different types of "beds" of lignite in the general area of the Bergers' land, only one of which (the "green" bed) has a market value for commercial production. Mr. Winston Sahinen, the geologist witness for the Bergers, testified that in his opinion the valuable type of lignite was located under the Bergers' property. However, Dr. Christopher Matheson, the geologist called as a witness on behalf of TMPA, expressed a contrary opinion.

Both expert witnesses testified that in reaching their respective conclusions, they had considered certain maps, electrical logs, core samples and chemical analyses of core samples obtained from the Paul Weir Company, an organization which had been retained by TMPA to conduct exploration work in the area to verify the presence or absence of lignite deposits. This data was initially offered in evidence by the Bergers through the written deposition of Mr. Paul Anderson, a geologist employed by the Paul Weir Company.

Mr. Anderson identified seventeen exhibits as being derived from his company's exploration of the area in question. Included within these exhibits were maps showing drillsite locations on land on which he had supervised the drilling of core samples; printouts of electrical logging operations at the drillsite; sample descriptions of the core samples made by visual examination; chemical analyses of the core samples; projections and estimates made by his company of the lignite make-up of the explored lands; and letters explaining and updating the projections and estimates. Mr. Anderson testified that these exhibits had been prepared in the regular course of his employment, at or near the time of drilling, and maintained in his company's business records. All seventeen exhibits were then offered in evidence as a group and TMPA objected to all of the exhibits on the following grounds:

"Your Honor, we object to all of these exhibits based on they contain hearsay and contain chemical analyses First, they contain hearsay. Secondly, they contain chemical analyses, electric logs and information that has not been properly proven up and authenticated by testimony of any witnesses, . . . ."

When TMPA made this objection, the trial court excused the jury, and the Bergers' attorney read more deposition testimony into the record. Through his deposition, Mr. Anderson testified that either he or another company employee had been present and supervised the taking of the core samples and that the samples were taken in accordance with accepted geological practices. The samples were then placed in plastic bags and delivered to Commercial Testing Company's laboratory in Chicago for chemical analyses. The Paul Weir Company sent instructions with the samples explaining how they were to be handled and what was to be done to them, and the testing laboratory then made the chemical analyses and sent its reports back to the Paul Weir Company. Mr. Anderson testified regarding this chain of events as follows:

Question: "Are those samples from the holes that you cored, they were taken and under your supervision delivered to the laboratory here in Chicago?"

Answer: "Yes."

Question: "And was the testing in that laboratory here in Chicago, that you had talked about, were done in accordance with the accepted laboratory procedure?"

Answer: "Yes, I assume it was."

Question: "And your office here is familiar with the way that laboratory conducts its tests?"

Answer: "Yes. We have confidence in them, which is why we use them."

Question: "But you also, you may not individually, but the people here in your office know what kind of tests they do and how they do the tests?"

Answer: "Yes. Our people send instructions as to how the cores will be handled and what will be done to the cores."

Question: "And you get the report back from them?"

Answer: "Yes."

The Bergers also offered deposition testimony of Mr. John Paul Weir to the effect that the Paul Weir Company had used the Commercial Testing Company in the past and considered Commercial Testing to be "leaders in their field." Upon presentation of this additional testimony, the trial court indicated its satisfaction that a sufficient predicate had been made for the admission of the group of exhibits in evidence, and it overruled the hearsay objection of TMPA.

TMPA contends that the trial court erred in admitting the chemical analyses in evidence because there was no proof as to the identity and qualifications of the individuals performing the analyses or that such tests were performed in accordance with accepted laboratory procedures and because the evidence failed to establish a proper chain of custody from the time the core samples were mailed to the laboratory to the time of Paul Weir Company's receipt of the reports of chemical analyses.

TMPA concedes in its brief that the maps, electric logs and photographs of core samples were properly received in evidence and that such data constituted "some evidence" in support of Mr. Sahinen's opinion testimony as to the existence, location and quantity of lignite material beneath the Bergers' property. TMPA contends, however, that Mr. Sahinen's opinion regarding the marketable quality of such lignite material is based entirely upon the written reports of chemical analyses which, it argues, were improperly received in evidence.

A general objection to evidence as a whole, whether it be oral or documentary, which does not point out specifically the portion objected to, is properly overruled if any part is admissable. Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339 (1944) and authorities cited. TMPA's objection was levelled at the entire group of exhibits and TMPA did not specifically point out to the trial court of the specific basis for its contention that the Bergers had not established a sufficient predicate for the admission of the electric logs and reports of chemical analyses.

In order to preserve error, specific objections to...