NO. 07-06-0119-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B DECEMBER 13, 2006

______________________________ BLAKE STRINGER, BACC FARMS, LTD., an d ROCKIN’ LAZY S, INC., Appella nts

v. RED RIVER COMMODITIES, INC., and CARROLL

MICHAEL

WILLIAMS , Appellees

_________________________________ FROM THE 69 TH DISTRICT COURT OF MOORE COUNTY; NO. 04-11; HON. ROLAND D. SAUL, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Appella nts Blake S tringer, BACC Farms, Ltd., and Rockin’ Lazy S, Inc. (collectively referred to as Stringer) appeal from a judgment denying them recovery against Red River Commodities, In c . and Car roll Mich ael Will iams (col lectivel y referred to as Re d River). Their two complaints in volve the trial court’s refusal to admit into evidence apurported1 What the “ other thi ngs” were went unmenti oned. 2 gover nment r ecord la beled Pl aintiffs’ Exhibi t 333 (P3 33) and t he expe rt testimo ny of Dr. Peter Ber nhardt. W e affirm th e judgmen t. Background The dispute concerns failed sunflower crops planted b y Stringer in the years 2002 and 20 03. The seed for the crops was acquired from Red River, and, Stringer believed them to be defective given their purpor ted i nability to produce as represented by the business. Thus, Stringer sued Red River to recover damages. Re d River d efended againstthe suit

by, among other thi ngs, attem pting to illustra te that events or acts other than the quality of its see d caused the low crop yiel ds expe rienced by String er. P333 Stringer initially contends that the trial cou rterred in excluding his exhi bit P333 from evidence. The document purported to be a government record issued by the United States Departmentof Agriculture Risk Managem ent Agency. Through it, the agency found that
a potential crop planted with the type of seed utilized by Stringer in 2002 was unin surable. Re d River ob

jected to its admis sion on the groun ds of hea rsay and relevance. Stringe r soughtto refute those grounds by asserting that the exhibit 1) was “excluded from the hearsayrule because it’s a document required by a governmental agency,” 2) showed “insurance was denied in 2002 because the crop was uninsu rable,” and 3) was “relevant among other things to the mental anguish of the Plainti ff.” 1 The trial court sustained Red River’s objection , though it did no t specify any parti cular gro und for d oing so.2 The rul e stat es that reports, reco rds, and the like of pub lic offices or agen cies are excl uded from the

hearsay rul e if

they set f

or th 1) the a ctivities o f the ag enc y or office , 2) m atters obs erve d pu rsua nt to du ty impo sed by law as to whi ch there was a duty to r eport , or 3) f actual fi ndings resul ti ng fr om an invest igat ion ma de p ursu ant to auth ority gra nted by law . T EX
. R. E VID
. 803(8 ). 3 Whethe r the trial court erred in sustaining the objection depen ds upon whet her i t abused its disc retion. Owens-Corning Fibergl as Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Moreover, we must uphold the evidentiary ruling i f there is any le git imate basis upon which to

do so, id. , and the burden lies with appellantto show that there were no ground s suppo rting thedecisio n. See Minn esota Min . & Mfg. Co . v. Nish ika, Ltd. , 885 S.W.2d 603, 630 (Tex. App.

– Beaumont 1994), rev’d on

other gro unds, 953 S.W.2d 733 (Tex. 1997) (stating that “3M . . . had to b ear the burden of showing that there was no ground upon which the trial court could have p roperly excluded t he h earsay ev idence”)

.

Given that at least t wo grounds were mentioned as basis for excl uding P333, the burden lay with Stringer to show us why neither justified the trial court’s decision. And, as to hearsay, he simply wrote in footnote three of his brief that: “P333 is excluded from the hearsayrule. See T EX
. R. E VID
. 803(8); Nissan Motor Co. , 145 S.W.3d at 141.” Nothing
more was said. So, to the extent both Rule 803(8) and Nissan mention that governmental records may be excluded from the hearsay rule, Stringer did not explain why P333 should fal l within th at exclusion. Nor did he exp lain within what category of Rule 803(8) the documentfell. This isof import since th ree exis t and two of them ma ndate tha t the repo rt encompass 1) matters observed per du t y imposed by law or 2) factual findings derivi ng from an investigation made pur suant to a uthority

granted by law. 2 Whether P333 met the requiremen ts of e ither category we nt unment ioned, a s did wh ether thedocument came4

within the parameters of the third category ( i.e. records setting forth the activiti es of the issuing agency). As stated in State v. Foltin , 930 S.W.2d 270 (Tex. App.–Houston [14 th Dist.] 1996, writdenied) , “[o]nce a document has been authenticated, Rule 803(8) does not requ ire a formal predica te to be laid through a witness, but the offered docu ment must be s hown to satisfy the requirem ents of th e rule.” Id. at272. Stringer cites us to no evidence (and we found none) authenticating P333 and thereby relieving himself of having to p rove the item satisfied Rule 803(8) . Nor h ave we uncovered testimony purporting to illustrate that the documentmet the requirements of that rule. Thus, he did not carry his burden to prove that the trial court erred in excluding it on the basis of hearsay. As for the matter of relevance, we reiterate that Stringer claimed the document was “rele vant. . . to the mental anguish of the Plaintiff.” Yet, that particul ar ground goe s unmentioned on appeal. Rather, he avers here that the trial court should have a dmitted the record since it was rel evant to the issue of causation. Given that the ground uttered here differed from that mentione d below, nothing was pres erved for our review. Hoxie Implement

Co., Inc. v. Baker, 65 S.W.3d 140 , 151 (Tex. App.–Ama rillo 20 01, pet. d enied).

F inally, even if the trial court erred in excluding the item, it remained Stringer’ s burden to establ ish harm. Doing s o obliga ted him to demonstra te “that the whol e case depended upon the evidence that was ex clude d.” Minnesota Min. & Mfg. Co. v. Nishika Ltd. , 885 S.W.2d at

630. Stringer endeavored to illustrate the potential relevance of P333. He also opined that exclusion of thedocument “probabl y resulte d in an i mproper ju dgment.”5

But, given th e teno r of the entire record, we cannot say that Stringer’s whole case depende d upon a dmission of P333. In sum, Stringer did not establish that the trial court abused its discretion in excl uding P333. So, we overrule the contention. Expert Testimony Next we address the expert testimony excluded by the trial court. It consisted of commentsby Dr. Peter Bernhardt of an experiment conducted after various of S tringer’s crops allegedly failed. The experiment a llegedly consisted of his planting various typesof sunflower

seeds, including those of the kind Stringer planted. Bags were placed over the flowersof some of the ma turing plant s while the flowers of others were left uncovered. Through this, he hoped to determine the self-pollination rate of the seed used by Stringer. Red River moved to strike the testimony, which motion thetrial court granted on the basis that Bernhardt “did not conduct a valid scientific ex periment.” We overrule the issue. As already stated, we may uphold the trial court’s deci sion on any legitimate ground. Owens-Corning Fiberglas Corp. v. Malone , supra . Next, when questioned, Bernhardt revealed that he did not know the weather conditions ( i.e. rainfall, humidity, and wind) that prevailed during his exper iment . Nor did he plant the seeds himself or know the amount of irrigation provided in the experiment, the fertili ty of the soi l before the seeds were planted, or the fertilizer requirements for sunflowers. This isof import because he also opined that climatic conditions, insufficien t wa ter, “insufficient timing of water,” humidity, and ferti lizer co uld impa ct the pl ants’ growth and p roductio n of acce ptable s eed. When asked about

soil moisture at the time of planting, Bernhardt also stated that he checked it by “eyeballing it,” a method he then agreed was not re liable for a plant6

physiol ogist. So too did he admit that he could not provide a specific rate of error related to his experiment, he had never been involved in raising sunflowers or in their breeding or fertilization prior to being hired by Stringer’satto rney to conduct the experiment, and he
was not an expert on sunflowers. Nor did he know if the seeds used in the experiment
were of the type or breed represented because they were gi ven him b y Str inger or his attorney. This too is of import because he later i ndicated thathybrid seed similarly labeled could pr oduce di fferently

if they came from d ifferent “ parents” o r “heads.” Before purportedlyexpert testimony is admitted, it must be shown not only that the expert is qualified but also that his opin ions are relevant and have a reliabl e fou ndation. E. I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d 549, 556 (Tex. 1995). To be qualified, the expert must have knowledge, ski ll, ex perience, training, or education regarding the specific

issue before the court. Broders v. Heise , 924 S.W.2d 148, 153-54 (Tex. 1996); see Helena Chemical Co. v. Wi lkins , 18 S.W.3d 744, 752-53 (Tex. App.–San Antonio 2000), aff’d, 47 S.W.3d 486 (Tex. 2001) (stating that the focus is on whether the expert’s expertise goes to the very matter on whic h he is to gi ve an opi nion). T he very matter about which Bernhardt was to opine encompasse d the s elf-pollination of sunflowers. Because he admitted to lacking expertise on sunflowers and to never before ha ving been involved with their raising or breeding, the trial court could have rationally inferred that he lacked th e experi ence and training in that f ield and , thus, wa s not qua lified i n the matter. Or, the trial court could have conclud ed tha t the reliability of his experiment was suspect. Again, Bernhardt did not personally know if any of the particular

sunflower seeds planted were of the same type involved in the underlying suit; instead, he had to rely on the repr es entations of Stringer and his attorney. Nor was he awa re of the climatic or soil7

conditions involved in his experim ent even though they could affect the results. Reason suggeststhat oneatte mptin g to determine the productivity of seed would know of and regulatethe many indicia that may affec t that pro ductivit

y. Bernh ardt did not viz his experime nt. In sum, we cannot say that the trial court abused its dis cretion in excluding the purported ly expe rt testimo ny at iss ue. The issue is overrule d. Having o verruled each iss ue, we af firm the ju dgment of

the trial court.

Brian Quinn Chief Justice