












 
 
 
 
 
 
 
 
 
                                                         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




                                                                   O P I N I O N
 
            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
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
            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 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 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 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
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 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 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.  
            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
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 loquitur[3] 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 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 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.
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)].
 
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
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
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 
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.
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, 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.
            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 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.  
            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.
            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




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


[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).


[4]Not
cited as authority, but for the reasoning which is employed. 


