Seitel Data, Ltd. v. Simmons

• Citation: 362 S.W.3d 782
• Decision Date: 24 February 2012
• Docket Number: No. 06–11–00041–CV.,06–11–00041–CV.
• Parties: SEITEL DATA, LTD., Appellant, v. Ralph SIMMONS, as trustee of Ralph Simmons and Laura Angela Simmons Family Living Trust, Appellee.
• Court: Texas Court of Appeals

362 S.W.3d 782

SEITEL DATA, LTD., Appellant,

v.Ralph SIMMONS, as trustee of Ralph Simmons and Laura Angela Simmons Family Living Trust, Appellee.

No. 06–11–00041–CV.

Court of Appeals of Texas, Texarkana.

Submitted: Nov. 16, 2011.Decided: Jan. 18, 2012.Rehearing Overruled Feb. 24, 2012.

Cody W. Stafford, Frederick T. Johnson, Dobrowski, LLP, Houston, for Appellant.

George H. Pigg, April M. Gregston, Mettauer Shires & Adams, Center, for Appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

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...