Seitel Data, Ltd. v. Ralph Simmons, as Trustee of Ralph Simmons and Laura Angela Simmons Family Living Trust

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________

No. 06-11-00041-CV
______________________________

SEITEL DATA, LTD., Appellant

V.

RALPH SIMMONS, AS TRUSTEE OF RALPH SIMMONS
AND LAURA ANGELA SIMMONS FAMILY LIVING TRUST, Appellee

On Appeal from the 273rd Judicial District Court
Shelby County, Texas
Trial Court No. 10CV31,035

Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
 OPINION

Seitel Data, Ltd., entered into a contract with the Ralph Simmons and Laura Angela

Simmons Family Living Trust (Simmons) wherein Seitel would enter upon the Simmons property

in Shelby County, Texas, to conduct seismic testing.1 Simmons conducted a chicken growing

operation on the premises, an activity which requires a substantial amount of water in order to keep

the chicken houses cool. To supply the water for this activity, Simmons had two productive water

wells and (as additional protection against failure) a backup connection with a city water line.

Shortly after Seitel completed its seismic testing on the premises, one of the water wells failed.

Simmons brought suit against Seitel under both contract and tort theories, claiming damages of

about $15,000.00. On trial before a jury, Simmons relied on testimony from both Ralph and

Laura Simmons and from a water well driller, but they provided no expert on seismic testing.

Seitel called no witnesses. A jury awarded damages under both fraud and contract theories

(Simmons elected to recover only under the contract theory, thereby dropping the recovery under

tort), together with attorney‘s fees at trial and on appeal. Seitel has filed this appeal.

On its appeal, Seitel maintains that in the absence of evidence from an expert seismologist,

there is no evidence upon which the jury could have found that the seismic testing precipitated the

damages Simmons claims and, further, that there was no evidence to support the award of

1
Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV‘T CODE ANN. § 73.001 (West 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.

2
attorney‘s fees on appeal. The sufficiency of evidence is the critical factor in this case due to the

relief requested by Seitel. Because Seitel seeks only a reversal and rendition rather than a new

trial, we must review the evidence from a ―no evidence‖ standpoint as opposed to a factual

sufficiency review.

When employing seismic testing, the tester uses a grid of underground explosions to cause

localized vibrations of the earth, and then analyzes readings of those vibrations to create a picture

of subterranean formations. This particular seismic testing project involved a large area, of which

the Simmons property was a part. Very shortly after testing ended, Simmons‘ previously quite

productive water well began slowing production due to the sudden appearance in the water of large

and increasing quantities of sand mixed with the water. About three months after the cessation of

the seismic testing, the quantity of sand became sufficient to cause the motor-driven shaft of the

submerged well pump to break; the free-wheeling pump shaft overheated the pump and caused it

to melt to the casing. The well pump could neither be replaced nor repaired, and efforts to reset

another pump produced only a few gallons per minute of mud as opposed to the approximately

forty gallons per minute of clear water which the well had produced before its failure. Simmons

alleged that vibrations in the earth due to Seitel‘s underground explosions caused an opening or

cracking apart of underground formations that resulted in sand infiltration that plugged up its

previously extremely good water well. Ultimately, Simmons had to drill a new well.

Issues

3
 Seitel contends that the trial court erred by denying its motion for directed verdict because

there is no expert witness evidence to allow a jury to determine that the blasting caused the damage

(and that expert testimony was mandatory to prove the case) and that there was no evidence to

support the trial court‘s award of appellate attorney‘s fees to Simmons.

The Evidence in Detail

The background evidence is summarized above. Simmons claims that the failure of the

primary water well occurred because of earth tremors caused by the blasts occurring during the

seismic testing conducted by Seitel on its property near the well. The seismic testing was

conducted by Seitel pursuant to a contract with Simmons to perform that work on Simmons‘

property over about a two- or three-week period, ending in July 2009. The crucial and controlling

language is contained in the following portion of the contract: ―Seitel Data will be responsible for

damages, if any should occur, due to seismic operations . . . .‖

Ralph Simmons (one of the beneficiaries of the trust and the primary operator of the

chicken-raising enterprise) testified that a couple of weeks after the testing concluded, he began

experiencing problems with the filtration system of his water well and that by November, the well

was producing substantial amounts of sand. This caused him to contact Wanda Drilling and

Water Development, Inc. (the entity which had drilled the replacement well for Simmons), in what

developed into a fruitless exercise to salvage the well. Laura Simmons (Ralph‘s wife) suggested

4
the correlation between the recently concluded seismic testing operations and the problems with

the well.

The evidence presented in this case came from Ralph and Laura and from Jason Key, the

vice president and driller for Wanda Drilling.

Ralph testified regarding the approximate dates and locations of seismic blasts conducted

by Seitel (across the road from the well) and the onset of problems with the well. He testified that

shortly after the seismic blasting had occurred, it abruptly began to be necessary to change the

filters on the water from the well five or six times a week, as opposed to changing the filters about

once per month before the seismic operations had been conducted. Ralph also testified that his

other (and older) water well, located about thirty feet away from the new one, was unaffected, that

it had ―a lot of iron in it,‖ apparently believing that explained why it was unaffected by the

blasting. There is no testimony about whether the wells were set at the same or similar depth or

whether they produced water from the same underground stratum.

Ralph also testified that two of his neighbors (about three to four miles away from his

house, but also within the blasting zone) had experienced the same sorts of problems with their

wells, at about the same time. Ralph testified that one of the neighbors had received some

satisfaction from Seitel, while the other was continuing to work with the company.

Laura testified similarly, together with detailed information about costs. She also added

that during the tests, the vibrations of the earth could be heard and felt when underground blasts

5
took place and that a plaque was jarred from a wall in the house on the same property as a result of

the shaking which resulted.

Keys is the vice president and driller for Wanda Drilling, a family-run business that has

drilled water wells in the area since 1975. Keys has worked in the water well business for about

fifteen years and had drilled a couple of thousand wells in the area.

Keys provided the details regarding the well itself, stating that the bore hole was 7-7/8

inches in diameter with a four-inch stainless steel casing inside, a screen on the bottom, and with

gravel packed around it. The well hole of the failed well was 432 feet deep, the pump was set at

260 feet, and the water level was at 150 feet. Before it failed, the well would produce forty to fifty

gallons a minute of crystal clear water, something it had done since it was drilled in 2003. That

uninterrupted production changed within a week or two of the cessation of the seismic tests, when

the well began producing enormous amounts of sand and mud along with water. Specifically,

Simmons had a 10,000 gallon water storage tank that had to be cleaned out because the well had

dumped 3 to 3-1/2 feet of silt into the bottom of it. Keys testified that there should be only a little

sand, if any. Keys explained that an excessive amount of sand would cause the well to fail in the

fashion that it did, saying that the bottom hole pump sucked sand through the orifice and the sand

scarred the impellers, eventually causing the impellers to seize up and break the shaft.

Keys was questioned at length on cross-examination about his understanding of seismic

testing; he admitted very frankly that seismic blasting and geologic structure was outside his area

6
of expertise except as it affected the drilling of water wells. He did explain that the geologic soft

materials in East Texas made for a large difference from drilling through limestone formations as

found in West Texas. He explained that the pump locked to (melted to) the sides of the casing

because of heat buildup that could only have happened due to the pump shaft breaking, causing the

motor to freewheel at high revolutions per minute. He went on to opine that the excess sand and

silt that the well began producing was by far the highest probable cause for the damage. He

testified that it was about a ninety-nine percent probability that sanding caused the breakdown.

It is clear that the well began to develop sanding problems for the first time immediately

after the seismic testing occurred. The evidence shows that the well was extremely productive

and had previously experienced no sanding problems whatsoever, as shown by the unusually long

time periods between replacement of the filters (about once per month before the seismic

operations) as opposed to having to be changed five or six times every week (after the seismic

operations).

There was evidence that for a period of two or three weeks, Seitel discharged five or so

underground explosions per day, and that as they worked across the property, they reached a point

where they knocked a plaque off the wall in the Simmonses‘ house, and the shock and vibration

from the blasts could readily be felt as well as the sound heard. The evidence shows that a water

well drilled in 2003 had been operating efficiently, producing crystal-clear water at a rate of about

forty to fifty gallons per minute rate until 2009, when the seismic blasting occurred. Then, about

7
two weeks after the blasting ended, the Simmonses realized that their water bills for the city water

they were also hooked up to as an automatic backup had increased noticeably, and then realized

they had a problem with the well. The closest underground blast was about 400 feet from the

damaged well.

The Contract for Seismic Testing Operations

The contract between Seitel and Simmons stated that ―Seitel Data will be responsible for

damages, if any should occur, due to seismic operations, . . . .‖ Seitel argues that the term ―due to‖

places a burden on Simmons to prove that the seismic activity was a ―proximate cause‖ of the

damages, and then that in order to prove up proximate cause, the plaintiff must provide expert

testimony.

Role of Expert Testimony

On appeal, Seitel‘s argument is that as a matter of law, expert testimony is mandatory to

provide the proof that it breached its contract. In essence, Seitel maintains that lay testimony is

completely insufficient to provide the requisite proof. Thus, Seitel argues, because there is no

expert testimony upon which the trier of fact can rely, there is no evidence. Based upon this,

Seitel maintains that we must render a take-nothing judgment in its favor.

Whether expert testimony is necessary to prove a matter or theory is a question of law.

FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 89–90 (Tex. 2004). Pure questions of law

8
are reviewed de novo. Doan v. Christus Health Ark-La-Tex, 329 S.W.3d 907, 910 (Tex.

App.––Texarkana 2010, no pet.).

Although Simmons filed its pleadings relying on both tort and contract and the jury found

in its favor on both theories, Simmons ultimately relied solely on its contract claim. Thus, it is

different from the cases cited by Seitel, all of which are based solely in tort. In order for Seitel to

prevail, it must show that the analysis under claims made in this type of case is the same in a breach

of contract case as it is in a tort claim.

Seitel relies almost exclusively on a memorandum opinion rendered in a tort case, Adair v.

Veritas DGC Land, Inc., No. 14-06-00254-CV, 2007 WL 2790362 (Tex. App.—Houston [14th

Dist.] Sept. 27, 2007, pet. denied) (mem. op.). Seitel takes the position that the opinion in Adair

requires expert testimony in all seismic testing damage cases (whether in tort or contract) to show

that the damage was caused by the blasting, quoting the following language from that opinion:

―The effect of seismic testing on structures is a very technical area and necessitates expert

testimony as to whether the testing caused the damage alleged in this case.‖ In support of that

statement, the Houston Fourteenth Court of Appeals cited a sentence from K-Mart Corp. v.

Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000): ―Expert testimony assists the trier-of-fact when the

expert‘s knowledge and experience on a relevant issue are beyond that of the average juror and the

testimony helps the trier-of-fact understand the evidence or determine a fact issue.‖ As can be

seen, this statement does not support the position that the sole means of proof in cases involving

9
seismic testing is by way of expert testimony; rather, it is contained in a discussion about when

expert testimony should be admitted and when it may or must be excluded.

Further, Adair is a summary judgment case wherein some 262 plaintiffs (ultimately

divided into trial groups of thirty) sued Veritas for damages caused to their homes, allegedly as a

result of seismic testing; there were a variety of claims, all of which were based on tort theories of

recovery. The portion of the plaintiffs in that suit who appealed were denied recovery as the

result of a summary judgment in which the losing plaintiffs presented no evidence in their

response. The ruling of the Fourteenth court in Adair was based on the complete failure of the

plaintiffs to provide any summary judgment evidence to counter the evidence provided by the

defendants. The statement in the opinion concerning the necessity of expert testimony being

required is not quite a sidebar, but is certainly not determinative to the outcome. Any evidence

(expert or lay) to raise a pertinent fact question could have been enough to defeat a motion for

summary judgment, but none was offered.2 We also recognize that the Adair opinion has no

analysis, no discussion, and no authority (legal or otherwise) to support its conclusion.

2
For context, this is the entirety of that section:

A movant‘s right to summary judgment can be proved solely on the uncontroverted testimony of an expert
witness if the subject matter is such that a trier of fact would be guided solely by the opinion testimony of experts, if
the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and
could have been readily controverted. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (per curiam). The effect
of seismic testing on structures is a very technical area and necessitates expert testimony as to whether the testing
caused the damage alleged in this case. See K-Mart Corp., 24 S.W.3d at 360 (―Expert testimony assists the
trier-of-fact when the expert‘s knowledge and experience on a relevant issue are beyond that of the average juror and
the testimony helps the trier-of-fact understand the evidence or determine a fact issue.‖). Therefore, Veritas‘s expert

10
 There are very few reported cases that track this particular type of problem. Those in

Texas that do address damages alleged to have arisen from seismic testing seem universally to

arise from tort actions, not from suits based in contract. There are other Texas cases cited below

that touch on the need for an expert in this context, but the Fourteenth court did not utilize them.

Those cases also required an expert witness in a tort case, but the stated reason was to provide

evidence of a standard of care borne by the tortfeasor that had then been breached, rather than to

show that damage occurred.

A number of cases have discussed the need for expert testimony in the context of highly

technical matters of design and engineering, and where such a situation presents itself, uniformly

and properly require expert testimony. The reasoning behind those reside principally on the idea

that a lay person‘s general experience and common sense will not enable that person to determine

causation. See Praytor v. Ford Motor Co., 97 S.W.3d 237, 241 (Tex. App.—Houston [14th Dist.]

2002, no pet.) (concluding motorist in air bag deployment suit required to present expert testimony

to establish causation); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 603 (Tex.

App.—Houston [1st Dist.] 2002, pet. denied) (holding when lay person‘s general experience and

common sense will not enable that person to determine causation, expert testimony is required);

Gen. Motors Corp. v. Harper, 61 S.W.3d 118, 133 (Tex. App.—Eastland 2001, pet. denied)

(reversing plaintiff‘s jury award in products liability seat belt restraint suit because design expert‘s

testimony may establish the right to summary judgment if it is uncontroverted, clear, direct, and otherwise free from
contradictions and inconsistencies.

11
testimony failed to establish causation); Sipes v. Gen. Motors Corp., 946 S.W.2d 143, 154 (Tex.

App.—Texarkana 1997, pet. denied) (stating although expert not required in all cases to establish

product defect, ―issues may arise on technical matters of design and engineering that would be

beyond evidence that lay witnesses with no expertise in these fields could offer‖).

Similarly, and for the same reasons, in medical malpractice and veterinarian negligence

cases, expert testimony is required to prove negligence ―[u]nless the mode or form of treatment is

a matter of common knowledge or is within the experience of the layperson.‖ Hood v. Phillips,

554 S.W.2d 160, 165–66 (Tex. 1977); McGee v. Smith, 107 S.W.3d 725, 727 (Tex. App.—Fort

Worth 2003, pet. denied); Shook v. Herman, 759 S.W.2d 743, 747 (Tex. App.—Dallas 1988, writ

denied).

Seitel also directs the Court to Stanolind Oil and Gas Co. v. Lambert, 222 S.W.2d 125

(Tex. Civ. App.—San Antonio 1949, no writ). In that case, the court held that a jury could not

infer the existence of proximate cause from an explosion and a promptly sanded up cistern. The

court acknowledged that res ipsa loquitur3 could possibly apply in such a situation, but found the

proof to be deficient because there was no evidence of a standard to which the tortfeasor should be

held, a standard which was breached. This standard of care must be shown before ―a departure

3
Res ipsa loquitur applies to situations in which two factors are present: (1) the character of the accident is such that
it would not ordinarily occur in the absence of negligence, and (2) the instrumentality causing the injury is shown to
have been under the management and control of the defendant. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex.
1990).

12
from that standard may be inferred from occurrences which result in damage. In a case such as

this, the matter is one for proof and can not be supplied by common knowledge, . . . .‖ Id. at 126.

Where a standard of care must be met in a negligence case, it is reasonable that expert

testimony would be required to show the limits of that standard. Stanolind Oil also cites to

several older Texas cases approvingly, cases which had roughly the same fact patterns and ruling.

Those cases clearly hold that expert testimony is necessary in a tort claim against a seismic

blasting company because it was required to establish the standard of care which was then

allegedly breached.

In those cases, there was no expert to establish the requisite standard of care; absent expert

testimony to set the parameters of the standard of care, the claimant would lose. However, even

in those cases, the deficiency did not result in a conclusion that there was no evidence and thus

rendition of judgment in favor of defendants, but, instead, resulted in a new trial.

Even in situations involving damage to structures allegedly caused by seismic testing

(instead of rock quarries or earthquakes—there are some other jurisdictions with such cases), the

cause of the damage can be proven by lay testimony, usually from homeowners. In one Louisiana

case,4 the court went so far as to state that the homeowner‘s testimony about temporal proximity,

physical proximity to the blast, and the damage resulting was sufficient even in the face of expert

testimony that the blasting could not have caused the damage. In that case, the ―scientific

impossibility‖ defense offered by the seismic exploration company consisted of expert testimony
4
Not cited as authority, but for the reasoning which is employed.

13
that it was scientifically impossible for the underground seismic blast detonated by the company to

have caused structural damage to nearby buildings. The court held this did not rebut the property

owner‘s initial showing of a causal connection between the blast and damages. Dykes v. Peabody

Shoreline Geophysical, 482 So. 2d 662, 664–65 (La. Ct. App. 1985).

If these charges are of sufficient intensity and force so as to penetrate deeply into
the earth and rebound to the surface, it would appear inconsistent that such
explosions could not and would not produce vibrations horizontally. The effect of
Dr. Leet‘s most informative and learned scientific explanations would lead to the
conclusion, which he expressed in most positive terms, that defendant‘s operations
could not and did not cause the damages as plaintiffs alleged; but, as opposed to this
scientific hypothesis, we are confronted with the fact, overwhelmingly established
by the evidence, that the damages occurred immediately following defendant‘s
operations. To ascribe this fact to sheer coincidence would be a speculative and
illogical procedure. Again, while it may be said that such testimony establishes
the so-called scientific impossibility of the damage resulting from the explosive
operations, the fact is that the only reasonable conclusion is that such damage was
caused by and is attributable to defendant‘s operations.

Pate v. W. Geophysical Co. of Am., 91 So. 2d 431, 433 (La. Ct. App. 1956).

In other contexts, we recognize authority holding that a trier of fact may decide the issue of

proximate cause in medical malpractice cases based upon (1) general experience and common

sense from which reasonable persons can determine causation, (2) scientific principles provided

by expert testimony allowing the fact-finder to establish a traceable chain of causation from the

condition back to the event, or (3) a probable causal relationship as articulated by expert testimony.

Chesser v. LifeCare Mgmt. Servs., L.L.C., No. 02-10-00291-CV, 2011 WL 3835669 (Tex.

App.—Fort Worth Aug. 31, 2011, pet. filed); Marvelli v. Alston, 100 S.W.3d 460, 470 (Tex.

14
App.—Fort Worth 2003, pet. denied). As applied in the context of back injuries and causation,

appellate courts have reasoned that if multiple causes of the injury are shown to exist, then expert

testimony of some level of probability is necessary. See W.C. LaRock, D.C., P.C. v. Smith, 310

S.W.3d 48, 59 (Tex. App.—El Paso 2010, no pet.). These concepts would reasonably apply to

this field of scientific endeavor as well.

As explained by the Texas Supreme Court, lay testimony is adequate to prove causation in

those cases in which general experience and common sense will enable a layman to determine,

with reasonable probability, the causal relationship between the event and the condition. Lenger

v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970). Generally, lay testimony

establishing a sequence of events which provides a strong, logically traceable connection between

the event and the condition is sufficient proof of causation. Morgan v. Compugraphic Corp., 675

S.W.2d 729, 733 (Tex. 1984); Griffin v. Tex. Employers’ Ins. Ass’n, 450 S.W.2d 59, 61 (Tex.

1969); see, e.g., Ins. Co. of N. Am. v. Kneten, 440 S.W.2d 52 (Tex. 1969).

As most recently handled by the Texas Supreme Court, an interpretive gloss has been

layered onto this concept to explain:

Care must be taken to avoid the post hoc ergo propter hoc fallacy, that is, finding an
earlier event caused a later event merely because it occurred first. Stated simply,
correlation does not necessarily imply causation. As we noted in Guevara,
―[e]vidence of an event followed closely by manifestation of or treatment for
conditions which did not appear before the event raises suspicion that the event at
issue caused the conditions. But suspicion has not been and is not legally
sufficient to support a finding of legal causation.‖ [Guevara v. Ferrer, 247
S.W.3d 662, 668 (Tex. 2007)].

15
 When lay testimony is credited as evidence of causation, it usually highlights a
connection between two events that is apparent to a casual observer.

Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010).

We reiterate, as generally applied in Texas, lay testimony may be used as evidence of

causation in certain circumstances, but when expert testimony is required, lay evidence supporting

liability is legally insufficient. Id. Conversely, when lay testimony can be used and the

testimony establishes a sequence of events providing a strong, logically traceable connection

between the event and condition, it is not just legally, but factually sufficient to support a jury

verdict. Figueroa v. Davis, 318 S.W.3d 53, 60–61 (Tex. App.—Houston [1st Dist.] 2010, no pet.)

(discussing Morgan, 675 S.W.2d at 733 as compared with Guevara).

We are not persuaded that expert testimony about the connection between the blasting and

the injury is necessary in every case, and will not state such a bright-line rule. A claimant is

required, however, to show a causal connection between the event and the injury. Further, in an

appeal such as this one (where the review is under a ―no evidence‖ standard), the evidence would

not need to be great, but only more than a scintilla or a suspicion. In making such a

determination, however, we still must determine what sort of evidence must have been presented,

and what evidence actually was presented. The Texas Supreme Court has said,

Proof other than expert testimony will constitute some evidence of causation only
when a layperson‘s general experience and common understanding would enable
the layperson to determine from the evidence, with reasonable probability, the

16
 causal relationship between the event and the condition. Expert testimony is
required when an issue involves matters beyond jurors‘ common understanding.

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006).

In another circumstance, that same court wrote,

[N]on-expert evidence alone is sufficient to support a finding of causation in
limited circumstances where both the occurrence and conditions complained of are
such that the general experience and common sense of laypersons are sufficient to
evaluate the conditions and whether they were probably caused by the occurrence.

Guevara, 247 S.W.3d at 668.

We believe that a juror, applying commonsense understanding, can tie the relationship of

the vibrations of the earth caused by seismic testing with reasonable probability to the concurrent

abrupt sanding of a water well. Hence, although expert testimony is often helpful to the

understanding of the effects of seismic testing and is often advised, when there has been

convincing lay witness evidence presented (as here), it is not absolutely mandatory.

What Proof Does the “Due To” Phrase in the Contract Require?

Seitel concentrates on the portion of the contract with Simmons that imposes a contractual

liability. That portion of the contract states, ―Seitel Data will be responsible for damages, if any

should occur, due to seismic operations, . . . .‖

Seitel argues that under this contractual provision, Simmons is required to provide

evidence to meet the proximate cause standard in order to recover. Simmons responds by saying

that the proximate cause standard, while applicable in tort actions, does not apply to contract

17
claims. Further, Simmons argues alternatively that even if the proximate cause standard is

required, the evidence presented is sufficient to satisfy the requirement.

Seitel relies largely upon language in Utica National Insurance Co. of Texas v. American

Indemnity Co., 141 S.W.3d 198, 202 (Tex. 2004). In the context of analyzing an exclusionary

clause in an insurance contract, the court opined that its language excluding injury ―due to‖ the

rendition of professional services required a more direct type of causation than the term ―arising

out of‖ (which was employed in a parallel paragraph in the same contract) to tie the insured‘s

liability to the manner in which the services were performed. Id. at 203. Although the language

used by the Texas Supreme Court does contemplate a closer or tighter connection (a ―cause and

effect‖ relationship) when the phrase ―due to‖ is used as opposed to the phrase ―arises out of,‖ it

does not reach the ―‗due to‘ equals ‗proximate cause‘‖ precision that Seitel advocates.

Accordingly, we will not import a tort theory into this contract analysis, but will utilize the

concepts as explained by the Texas Supreme Court.

Standard of Review: Legal Sufficiency

In reviewing a legal sufficiency challenge to the evidence, we credit evidence that supports

the verdict if reasonable jurors could have done so and disregard contrary evidence unless

reasonable jurors could not have done so. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l

Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009); City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex. 2005). A legal sufficiency challenge

18
 will be sustained when (a) there is a complete absence of evidence of a vital fact, (b)
the court is barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is
no more than a mere scintilla, or (d) the evidence conclusively establishes the
opposite of the vital fact.

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). ―Evidence does not

exceed a scintilla if it is ‗so weak as to do no more than create a mere surmise or suspicion‘ that the

fact exists.‖ Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006).

Summary of the Evidence

The evidence heard by the jury relating to the relationship between the seismic operations

and the ruination of the water well can be generally summarized as follows:

1. Simmons had a water well on its property that consistently produced large quantities of

clear water, which was relatively free of sand or mud.

2. The water well would have been expected to continue to produce copious clear water for

decades.

3. Seitel conducted seismic testing on the same property as the well was located. This

seismic testing involved underground explosions, one of which was about 400 feet from the water

well.

4. The explosive blasts from the seismic testing shook the ground sufficiently that the

vibrations from the explosions caused a plaque to be jarred from the wall of the house (also on the

same property as which the water well was located) in which the Simmonses lived.

19
5. There were numerous explosions of four or five per day for over a week.

6. Shortly after the seismic testing had been completed, Simmons‘ well began to disgorge

sand and mud as well as water.

7. The underground pump in the water well was ruined due to the encroachment of sand into

the water it was attempting to pump, and the pump overheated and welded itself to the interior of

the lining pipe.

8. Efforts to install a new pump above the ruined pump were unsuccessful because the newer

pump likewise began to draw water infused with sand or mud.

9. Two neighboring property owners also experienced sanding difficulties with their water

wells at a time in close proximity to the seismic testing operation.

Again, we recognize that suspicion is not legally sufficient to support a finding of causation

in a tort case: that evidence of an event followed closely by manifestation of conditions which did

not appear before the event raises only suspicion that the event at issue caused the condition.

Guevara, 247 S.W.3d at 668 (discussing Morgan, 675 S.W.2d at 733).

Equally, however, the court recognized that these cases do not say that evidence of

temporal proximity is irrelevant to causation. Id.

In this case, however, temporal proximity is not all that is provided by the evidence. The

connection that Seitel argues is missing in this instance is whether there is evidence that the

blasting could cause sand to be released from previously locked strata to infiltrate the well bore,

20
along with the suggestion that only a seismic or geologic expert could provide such specific

information to the jury.

We disagree. Jurors are not blank slates, and can be expected to bring both intelligence,

knowledge, and the power to reason logically to the table. Common sense could allow a jury to

conclude that when explosives strong enough to bounce waves off various geologic strata are used

to shake the ground, the shaking could open previously tight formations to allow sand to filter

through the gravel pack into the wellbore. Although Seitel argues at length that seismic testing is

in all ways a very detail-ridden, specialized field requiring expert testimony to explain, that

overstates the situation. Although the exact mechanism of interpreting seismic waves would fit

that description, as would calculations of the placement of explosives and their quantities, the

method of detonation, and perhaps the differences observable between different levels of

explosive charges (if there were any evidence of such) would require individuals with expertise in

the appropriate field to explain, the jury issue as framed in this case requires no such particularized

expertise. A person can reasonably understand that an airplane that has lost its wings will fall to

earth because its wings are missing—even without understanding the nature of the Bernoulli effect

that keeps it airborne with its wings attached. The jury need not employ inductive reasoning

(which takes events and makes generalizations) to arrive at the conclusion that the loss of the

effective use of the water well was ―due to‖ underground blasting done by Seitel and subsequent

tremors of the earth which resulted from it.

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 In this case, the results of explosions causing the ground to vibrate are in some ways

entirely clear and straightforward. Simply put, if one places water and gravel in a jar, then sand

on top and shake, the sand will work its way to the bottom. That is neither a complex nor

involved concept. It is, in fact, nothing more than a grade school science project. There is no

reason that an average juror could not understand that basic concept, or the probable result of the

actions that were proven to have occurred, even if he could not explain the mathematical and

scientific basis for the observable result. There is more basis to support the jury‘s determination

than mere proximity in time, eliminating the maligned ―mere suspicion‖ problem, and thus

constitutes some evidence that Seitel was the cause of the injury.

We are not convinced that such a level of proof would meet the factual sufficiency standard

of review of a judgment. That is not, however, the problem before us. All that is required here is

some evidence, more than a scintilla, providing more than a suspicion to support the verdict. A

chain of events was proven to set the stage, and to show the result. The temporal proximity of the

events, when combined with the anticipated and entirely reasonable general knowledge jurors

would have of the result of shaking the earth, and the interaction between gravel and sand provides

such evidence. For this analysis, in the context of the situation arising in this case, we have

concluded that expert testimony is not necessary. We, therefore, conclude that there is some

evidence (more than a suspicion or a scintilla) to connect the actions of Seitel in its on-site seismic

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testing and the damage occasioned to the water well. Accordingly, we overrule Seitel‘s issues on

this subject.

Attorney’s Fees on Appeal

Based upon the jury‘s verdict, the court awarded $5,000.00 in attorney‘s fees on appeal to

this Court (if Simmons prevails), and $10,000.00 in attorney‘s fees for appeal to the Texas

Supreme Court (should Simmons prevail there).

Seitel argues that the appellate attorney‘s fees must be reversed because there is no

evidence to support the award. The amount of attorney‘s fees at the trial level was stipulated and

is not an issue here. Simmons tacitly admits in his brief that there is no such evidence, arguing

that Seitel has not preserved that complaint for our review because it did not complain about the

fees until now.

Upon review of the record, the $5,000.00 and $10,000.00 amounts appear in the trial record

only in closing arguments, when counsel asked the jury to award those amounts for appeal. The

jury did so. There is, however, no evidence to support that award.

Simmons argues that the issue is not preserved for our review, but does so by stating that

Seitel did not object to the submission of a charge to the jury asking for attorney‘s fees. That is

not the issue raised here. The issue is whether there is evidence to support the jury‘s decision.

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 We acknowledge that under TEX. R. CIV. P. 324, an argument that a jury finding is

unsupported by the evidence must be raised by a point in a motion for new trial. Seitel‘s motion

for new trial raises this issue. The sufficiency of the evidence is therefore before us for review.

It is clear that there must be evidence. The courts of this State have consistently held that

an award of attorney‘s fees must be supported by competent evidence. Torrington Co. v.

Stutzman, 46 S.W.3d 829, 852 (Tex. 2000), and the burden of proof was on Simmons to establish

the reasonable and necessary attorney‘s fees. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d

1, 10 (Tex. 1991).

When reviewing legal sufficiency, we examine the evidence in the light most favorable to

the challenged finding and indulge every reasonable inference that would support it. See Wilson,

168 S.W.3d at 822.

In this case, Simmons offered no evidence of attorney‘s fees, reasonable, incurred or

otherwise. The judgment is therefore without support in the evidence, and the award of appellate

attorney‘s fees must be reversed.

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 We modify the judgment to delete the award of attorney‘s fees on appeal, and as modified,

affirm.

Bailey C. Moseley
Justice

Date Submitted: November 16, 2011
Date Decided: January 18, 2012

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