Kreymer v. North Texas Municipality Water District

842 S.W.2d 750, 1992 WL 314780
CourtCourt of Appeals of Texas
DecidedNovember 2, 1992
Docket05-91-01233-CV
StatusPublished
Cited by6 cases

This text of 842 S.W.2d 750 (Kreymer v. North Texas Municipality Water District) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kreymer v. North Texas Municipality Water District, 842 S.W.2d 750, 1992 WL 314780 (Tex. Ct. App. 1992).

Opinion

OPINION

BAKER, Justice.

This is a condemnation case. Karol Kreymer appeals from a judgment entered on the jury verdict awarding her substantially less damages than she wanted. Appellant contends that the trial court abused its discretion in permitting an expert witness to testify to certain opinions that the District had not timely disclosed. She contends that the trial court abused its discretion in overruling her motions for continuance, mistrial, and new trial. Appellant also contends that the jury’s verdict was against the great weight and preponderance of the evidence. We affirm.

THE CONDEMNATION LITIGATION

The District brought the suit to obtain a twenty-foot permanent easement across appellant’s land for a three-foot water transmission line. The District also sought a sixty-foot-wide strip for a temporary construction easement. The court-appointed commissioners determined that appellant suffered damages of $45,000. Both appellant and the District filed objections to the commissioners’ award. The District deposited $45,000 into the court’s registry to take possession of the condemned property. The trial court released the $45,000 to appellant. A jury determined that appellant suffered damages of $2666. The trial court rendered judgment for the District against appellant for $42,334.

THE EXPERT WITNESS’S TESTIMONY

In her first four points of error, appellant complains of the trial court’s permitting Lee Freese, an engineering expert, to answer certain questions. Both sides designated Freese as an expert witness. In answers to interrogatories, appellant stated that she would call Freese to “testify as to the engineering that was performed in connection with the Water District’s project as it affects the subject property and the property surrounding the subject property.” The District stated that it would call Freese to testify “along the lines that were previously provided to the court in the Eu-banks matter,” a connected case.

Appellant also designated Richard Fer-rara as an “Architect/Planner” expert witness. The District took Ferrara’s deposition ten days before trial. During that deposition, the District for the first time learned of Ferrara’s opinion about the increased cost of development that appellant would incur because of the placement of the water transmission pipe. Appellant had not disclosed Ferrara’s opinions in her answers to the District’s interrogatories.

Four days before trial, the District disclosed to appellant that it intended to have Freese testify in rebuttal to Ferrara’s newly disclosed opinions. The next day, three days before trial, the District disclosed what Freese’s rebuttal opinions would be. Appellant moved for a continuance and to strike Freese’s testimony on these newly disclosed opinions. The trial court overruled appellant’s motions. The case went to trial.

During her case in chief, appellant called Freese to testify. Freese testified that the total outside diameter of the pipeline including its pad and protective coatings was about four feet. He stated that the District buried the pipe between five-and-a-half and six-and-a-half feet deep measuring from the top of the ground to the top of the pipe. The pipeline, according to Freese, would pump fifteen million to thirty-five million gallons of water per day at a pressure of about sixty-seven pounds per square inch. Although it is unlikely that the pipeline would break, Freese said, ruptures of water transmission lines do occur in two instances: “somebody digs into it, some kind of construction activity digs into the pipeline and breaks it, ... [or] if you have corrosion in the ground around it, it could rust out and start leaking.”

On cross-examination by the District, Freese testified as follows:

Q. Let me ask you, sir, in the design of this pipeline, if there is an attempt to place this transmission line at a minimum depth on all the properties?
*752 A. Yes. Nowhere from one end to the other of the pipeline is it any shallower than four feet. That’s the minimum depth.
Q. Why is it in the design of that pipeline that you have a minimum of four feet of ground cover over the top of the pipeline?
A. Because this pipeline is three-and-a-half to four feet in diameter. It’s an underground barrier. We wanted to leave enough space such that normal— other utilities could cross over the top of it without having to go under it.
Q. What would those other normal utilities be?
A. Water lines or — any kind of electric or telephone cable; that sort of thing.

When the District then asked Freese about whether the slope of the land would affect the location of a sewer system, appellant objected to the relevance of the question and to the fact “that [Freese] was called on Direct Examination only to the extent of testifying to the specifications of this particular line. As to what other developments could be done on this property or what other easements might be placed on the property goes beyond the — my Direct Examination.” The trial court overruled appellant’s objection.

Freese then testified that the slope of the land and the location of the water transmission line would not affect the placement of a sewer line. Over appellant’s objection, Freese further testified that he was the engineer in charge of the project. He stated the five-and-a-half to six-and-a-half feet of ground cover over the top of the water transmission line provided enough space to install other utility lines above it. These lines could be buried as close as six inches from the water transmission line.

DESIGNATION OF EXPERTS AND CROSS-EXAMINATION

A. The Applicable Law

The trial court has broad discretion about the extent of cross-examination allowed. Texas Employers’ Ins. Ass’n v. Garza, 557 S.W.2d 843, 845 (Tex.Civ. App.—Corpus Christi 1977, writ ref’d n.r.e.). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present a proper case for the trial court’s action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), ce rt. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); City of Dallas v. Cox, 793 S.W.2d 701, 706 (Tex.App.—Dallas 1990, no writ). Stated otherwise, we determine whether the trial court’s act was arbitrary or unreasonable. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984); Tate v. Commodore County Mut. Ins. Co., 767 S.W.2d 219, 222 (Tex. App.—Dallas 1989, writ denied).

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842 S.W.2d 750, 1992 WL 314780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kreymer-v-north-texas-municipality-water-district-texapp-1992.