WESTERN ATLAS INTERNATIONAL, INC., WESTERN GEOPHYSICAL COMPANY, AND COASTAL OIL AND GAS USA, L.P. v. JEANETTE HARRISON RANDOLPH, ROBERT M. RANDOLPH, NEIL D. REYNOLDS FARMS, INC. AND DARYL KUTACH--Appeal from 23rd District Court of Wharton County

NUMBER 13-02-00244-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

WESTERN ATLAS INTERNATIONAL, INC.,

WESTERN GEOPHYSICAL COMPANY, AND

COASTAL OIL & GAS USA, L.P., Appellants,

v.

JEANNETTE HARRISON RANDOLPH,

ROBERT M. RANDOLPH,

NEIL D. REYNOLDS FARMS, INC.,

AND DARYL KUTACH, Appellees.

On appeal from the 23rd District Court of Wharton County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Garza

Memorandum Opinion by Justice Hinojosa

Appellees, Jeanette Harrison Randolph and Robert M. Randolph (collectively the Randolphs ), Neal D. Reynolds Farms, Inc. ( Reynolds ) and Daryl Kutach ( Kutach ), sued appellants, Western Atlas International, Inc. ( Western ) and Coastal Oil and Gas USA, L.P. ( Coastal ), for trespass, breach of contract, and negligence. The Randolphs leased the surface of their property to Reynolds, and Reynolds subleased a portion of the property to Kutach. Kutach used a barn on the property to store hay. On January 22, 1997, the Randolphs entered into an oil and gas lease with Coastal, giving Coastal the right to use the Randolphs property to explore, drill, and produce oil and gas. Coastal subsequently contracted with Western to perform seismic operations on the Randolphs property. On January 7, 1998, the barn and hay were destroyed by fire. At trial, appellees asserted the fire was caused by a smoldering cigarette carelessly discarded by a Western employee who sought shelter in the barn during a storm. Evidence was presented of several possible causes of the fire, including a burning cigarette, lightning, or spontaneous combustion of wet hay. After the jury found for appellees, the trial court signed a judgment against appellants for more than $150,000. On appeal, Coastal raises seventeen issues. Western raises eight issues. We reverse and render.

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. Tex. R. App. P. 47.4.

A. Legal Sufficiency of the Evidence

In Western s second issue and Coastal s twelfth issue, appellants contend the evidence is legally insufficient to support the jury s finding that Western negligently caused the barn fire.

1. Standard of Review

When we review a no evidence or legal sufficiency of the evidence issue, we must view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). A no evidence challenge will be sustained when the record discloses that: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). However, when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is not more than a scintilla and, in legal effect, is no evidence. Kindred v. Con-Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d at 711.

Circumstantial evidence can establish an ultimate fact when the fact may be fairly and reasonably inferred from other facts in the case. Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995) (per curiam). In cases with only slight circumstantial evidence, something else must be found in the record to corroborate the probability of the fact's existence or non-existence. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003) (per curiam). A jury may not infer an ultimate fact from meager circumstantial evidence, which could give rise to any number of inferences, none more probable than another. Hammerly Oaks v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). // A vital fact may not be established by piling inference upon inference. See Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex. 1968).

2. Expert Testimony

In support of their assertion that the fire was caused by a smoldering cigarette carelessly discarded by a Western employee, appellees presented the expert testimony of fire investigator William M. Lane. Lane testified that a conclusion would be that the surveying crew might have sought refuge in the barn during the storm and the careless disregard of smoking paraphernalia was probably the unintentional cause of the fire.

Texas courts have held that something is not so, simply because an expert says it is so. Havner, 953 S.W.2d at 712; Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 726 (Tex. 1997). Expert opinions must be supported by facts in evidence, not conjecture. Marathon, 106 S.W.3d at 729. Lane s opinion constitutes some evidence only if it is supported by a reliable scientific basis. An expert who presents little more than his credentials and a subjective opinion does not provide any evidence that can support a judgment. Havner, 953 S.W.2d at 712 (citing Viterbo v. Dow Chem. Co., 826 F.2d 420, 421 (5th Cir. 1987)).

In his investigation, Lane discovered evidence indicating other possible causes of the fire. However, he discounted those possibilities. Lane testified that it was the deduction of other factors not being the cause of the fire that formulated his opinion, not evidence found at the scene.

Lane admitted that he found no actual evidence at the site indicating that the fire was started by a smoldering cigarette. Lane s assumption that a Western employee may have entered the barn was based on the presence of an orange paint mark on a downed tree limb and a series of surveying stakes.

Lane assumed that members of the Western survey crews smoked. Lane s assumption was based on a videotape, which supposedly showed members of a crew smoking cigarettes on the highway, just north of the driveway leading up to the barn, taken approximately three or four days after the fire. On cross-examination, Lane admitted that he had not made the videotape; it was taken by his wife. He acknowledged that when he viewed the videotape, he could not determine the make of the truck and could not discern any markings on the truck indicating it belonged to Western. Lane testified he did not know who the men in the videotape were or for whom they worked.

An expert s simple ipse dixit is insufficient to establish a matter; rather, the expert must explain the basis of his statement to link his conclusions to the facts. Marvelli v. Alston, 100 S.W.3d 460, 478 (Tex. App. Fort Worth 2003, pet. denied) (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). Expert testimony is unreliable when it is not grounded in the methods and procedures of science, [and] is no more than subjective belief or unsupported speculation. Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 254 (Tex. 2004); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). If expert testimony is unreliable, it is not evidence. Kerr-McGee, 133 S.W.3d at 254.

Lane had no evidence to support his opinion; he relied entirely on assumptions. Some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence. Marathon, 106 S.W.3d at 728; Columbia Valley Reg l Med. Ctr. v. Bannert, 112 S.W.3d 193, 203 (Tex. App. Corpus Christi 2003, no pet.). Lane s opinion testimony is conclusory and speculative, and as such, it does not [constitute] relevant evidence, because it does not tend to make the existence of [any] material fact more probable or less probable. Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (citing Tex. R. Evid. 401).

3. Circumstantial Evidence

Appellees also presented testimony evidence attempting to show that Western employees had been in and around the barn area before the day of the fire. Kutach and Dean Macek, the Randolphs neighbor, both testified that the day after the fire they saw orange paint on a downed tree limb approximately fifty yards from the barn. Kutach testified that it was the same color paint that he had previously witnessed Western employees using. Macek testified he assumed a Western employee made the mark on the tree sometime before the day of the fire because he was out on his property the day after the fire and he did not see a Western employee marking the tree. In addition, Reynolds testified that before the fire, he saw stakes on the property near the barn which he knew belonged to Western.

Macek testified that the day before the fire, he saw a Western seismic crew using the gated road between his property and the Randolphs property. He said he knew someone had driven through the gated road on the day of the fire because they had driven over the cable for his electric fence, shorting it out. He also testified that he had seen car tracks in the area. Macek assumed that a Western employee had shorted out the cable because neither he nor his family nor any of his workers had driven on that road.

4. Analysis

The circumstantial evidence presented gives rise to a number of inferences, and the inference that the fire was caused by a cigarette carelessly discarded by a Western employee is no more probable than the inference that the fire was started by another cause. While in many cases a fact-finder may have to infer a vital fact from other facts in evidence to reach a conclusion, those inferences must be reasonable and logical. Hammerly Oaks, 958 S.W.2d at 392. An inference stacked only on other inferences is not legally sufficient evidence. Marathon, 106 S.W.3d at 728.

The record contains no evidence that a Western employee was in the barn at the time of the fire. The testimony of Kutach, Reynolds, and Macek shows only that Western employees were in the area near the barn sometime during the week before the fire. From this evidence, the jury would have had to infer that: (1) a Western employee entered the barn on the day of the fire; (2) this particular employee was a smoker; (3) the employee lit a cigarette while inside the barn; (4) the employee carelessly discarded the cigarette; and (5) the cigarette was the actual cause of the fire. This clearly constitutes the improper piling of inference upon inference to establish the vital fact that a Western employee caused the fire.

Accordingly, we hold the evidence is legally insufficient to support the jury s finding that Western negligently caused the fire. We sustain Western s second issue and Coastal s twelfth issue.

B. Trespass to Real Property

In its ninth issue, Coastal contends it cannot be held vicariously liable for any possible trespass committed by Western.

At trial, appellees claimed that after entering the Randolphs property, Western employees traveled in trucks that caused ruts in the road. Reynolds repaired the ruts and estimated his costs to repair the road at $100. The jury found that $100 would fairly and reasonably compensate Reynolds for the repairs to and loss of use of his farming leasehold.

A trespass to real property occurs when a person enters another s land without consent. Russell v. Am. Real Estate Corp., 89 S.W.3d 204, 208 (Tex. App. Corpus Christi 2002, no pet.). [A] trespasser is liable to the property owner even though there is no proof of any actual damages in any specific amount. Meyers v. Ford Motor Credit Co., 619 S.W.2d 572, 573 (Tex. Civ. App. Houston [14th Dist.] 1981, no writ) (citing Henry v. Williams, 132 S.W.2d 633, 634-35 (Tex. Civ. App. Beaumont 1939, no writ)). However, no trespass occurs when the entry is authorized as a matter of law. Williams v. City of Dallas, 53 S.W.3d 780, 788 (Tex. App. Dallas 2001, no pet.) (holding no trespass when officers entered land pursuant to valid search warrant).

In Texas, the mineral estate is the dominant estate; the mineral lessee is impliedly authorized to use as much of the premises as is reasonably necessary to produce and remove the minerals authorized by the lease. Ball v. Dillard, 602 S.W.2d 521, 523 (Tex. 1980); Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 810 (Tex. 1972) (per curiam) (op. on reh g); Ottis v. Haas, 569 S.W.2d 508, 513 (Tex. Civ. App. Corpus Christi 1978, writ ref d n.r.e.). The granting of a mineral estate would be worthless if the grantee could not enter upon the land to explore for and extract the minerals granted. Ball, 602 S.W.2d at 523. A holder of a surface lease has no legal right to deny the mineral lessee access to the land for mineral development purposes. Id.

Here, Reynolds, as the surface lessee, had no legal right to exclude the mineral lessee, Coastal, from accessing the property for the purpose of developing the minerals. When Western entered the property pursuant to a contract with Coastal to conduct seismic surveys of the land, Western was acting under the authority of the mineral lessee. Because Reynolds had no legal right to deny access to the mineral lessee, his permission was not required for the mineral lessee or his assigned agent to enter onto the land. We conclude that because Coastal, as the mineral lessee, had authority to enter the property as a matter of law, Western s failure to seek Reynolds permission before entering did not constitute a trespass. Coastal s ninth issue is sustained.

In response to this issue, Reynolds asserts, in the alternative, that the award of damages for repair to the farm leasehold should be upheld under the theory of breach of contract. In the first part of its fifth issue, Western contends that it cannot be held liable in contract for any damages to the road.

In an agreement between the Randolphs and Western, Western agreed that the seismic crews would traverse the property using four-wheelers and on foot. Reynolds asserts that his claim for damages to the road should be upheld because he is a third-party beneficiary of this contract, and the use of trucks was in violation of that agreement. The record contains no evidence that Reynolds ever asserted this claim before the trial court. Further, Reynolds did not request that the jury be charged or instructed on the issue.

Upon appeal all independent grounds of recovery . . . not conclusively established under the evidence and no element of which is submitted or requested are waived. Tex. R. Civ. P. 279. Because Reynolds did not assert this claim before the trial court and did not request that the jury be charged or instructed on the issue, we conclude it is waived and cannot be raised for the first time on appeal. See Kittyhawk Landing Apts. III v. Anglin Constr. Co., 737 S.W.2d 90, 93 (Tex. App. Houston [14th Dist.] 1987, writ ref d n.r.e.) (holding contract theories of recovery waived on appeal because appellee failed to submit issues or instructions at trial). Accordingly, we sustain the first part of Western s fifth issue.

C. Unauthorized Use of Water

In its third issue, Coastal contends it should not be held liable for contract damages for the unauthorized use of water. In the second part of its fifth issue, Western contends the use of water was not a breach of any agreement between Western and the Randolphs, and that the damages are not recoverable by law.

At trial, appellees claimed that Western employees used fresh water from a well located on the property, in violation of the oil and gas lease between the Randolphs and Coastal. Robert Randolph estimated the cost of the water to be $2; the jury found damages in the amount of $10. We conclude this amount of damages fails under the rule of de minimis non curat lex, the law does not concern itself with trifles. Black s Law Dictionary 443 (7th Ed.); see Boorhem-Fields, Inc. v. Burlington N. R.R., 884 S.W.2d 530, 540 n.5 (Tex. App. Texarkana 1994, no writ) (reversing award of $1.00); HSAM, Inc. v. Gatter, 814 S.W.2d 887, 892 (Tex. App. San Antonio 1991, writ dism d) (op. on reh g) (reversing award of $17.95); Thornhill v. Sharpestown Dodge Sales, Inc., 546 S.W.2d 151, 152 (Tex. Civ. App. Beaumont 1976, no writ) (reversing award of $0.42); Richman Trusts v. Kutner, 504 S.W.2d 539, 544 (Tex. Civ. App. Dallas 1973, writ ref d n.r.e.) (reversing award of $33).

Coastal s third issue and the second part of Western s fifth issue are sustained.

D. Exclusion of Witnesses

In two cross-points, appellees contend the trial court erred in excluding the testimony of two of their witnesses, Compton Creel and John Schiefen.

The decision whether to admit or exclude evidence is within the discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A reviewing court looks only to whether the trial court abused that discretion. Robinson, 923 S.W.2d at 558. An abuse of discretion does not exist merely if the reviewing court would have ruled a different way under the same circumstances. Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989) (orig. proceeding). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles, leading to a result that is arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985).

During written discovery, a party may request disclosure of the name, address, and telephone number of any person having knowledge of relevant facts, and a brief statement of that person s connection with the case. Tex. R. Civ. P. 194.2(e). Responses to written discovery must be complete based on all the information reasonably available to the responding party or its attorney at the time the response is made. Tex. R. Civ. P. 193.1; see Beam v. A.H. Chaney, Inc., 56 S.W.3d 920, 922 (Tex. App. Fort Worth 2001, pet. denied). A party has an affirmative duty to supplement written discovery if that party learns that a response was incomplete when made, or, although complete and correct when made, is no longer complete and correct. Tex. R. Civ. P. 193.5. This duty to supplement applies to discovery responses regarding the identification of persons with knowledge of relevant facts, trial witnesses, or expert witnesses. Id.

If a party fails to supplement a discovery response, the sanction is the automatic exclusion of the testimony of the witness for whom the supplemental information was not provided. Torres v. Caterpillar, Inc., 928 S.W.2d 233, 243 (Tex. App. San Antonio 1996, writ denied) (citing Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex. 1989)). The trial court may allow the testimony upon a finding (1) of good cause or (2) that the failure will not unfairly surprise or unfairly prejudice the other parties. Tex. R. Civ. P. 193.6. A finding of good cause must be supported by a showing in the record. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 913-14 (Tex. 1992) (op. on reh g). Whether the failure to supplement information was intentional or inadvertent is not important; inadvertence of counsel, by itself, is not good cause. ld. at 915 (citing Sharp v. Broadway Nat l Bank, 784 S.W.2d 669, 672 (Tex. 1990) (per curiam)).

1. Compton Creel

Western served written interrogatories on appellees, requesting that appellees identify any individual who claimed to have knowledge or would testify regarding whether Western was within 100 yards of the barn. Appellees responded that they were unaware of any such person, but would supplement if necessary.

Coastal served written interrogatories on appellees, requesting that appellees identify all persons with knowledge of facts relevant to appellees contention of how the fire started. Appellees responded N/A.

Creel was identified in response to appellants written interrogatories requesting the name, address, and telephone number of all persons with knowledge of relevant facts. Appellees answered appellants interrogatories with the following: Compton Creel; Montgomery Road, Wharton, TX 77488. These answers were served on October 1, 1998, and appellees did not supplement these answers.

Appellees responded to subsequent Requests for Disclosure by referring appellants to answers previously provided in response to appellants interrogatories. While appellees counsel claimed that the address was complete because there was no house number to include, the record shows that at the time the interrogatories were answered, Creel s full address was 1707 Montgomery Road, Wharton, TX 77488. Appellees counsel further asserted that Creel s telephone number was not included because it was an unlisted number and appellees did not have it. However, in his deposition, Robert Randolph testified that Reynolds had been in telephone contact with Creel a few days before the fire.

The record further shows that Creel moved from the Montgomery Road address in May 2000, more than one year before trial, and at the time of trial resided in Little Elm, Denton County, Texas. Appellants counsel attempted to contact Creel approximately one year before trial but could not locate him. Appellees counsel asserted they only learned of Creel s current whereabouts on the eve of trial. However appellees also acknowledge making no attempt to supplement their discovery requests or update opposing counsel. Creel was not under subpoena and voluntarily came to testify at the request of appellees counsel.

The trial court pointed out that there is an important distinction between what knowledge the parties have and what knowledge counsel has. While appellees counsel claimed to be unaware of Creel s full address and telephone number, there was no evidence presented that the parties themselves were unaware of the full address and contact information of one of the tenants on their land.

It is the duty of the party to answer interrogatories, not counsel. See Tex. R. Civ. P. 197.2; Walsh v. Mullane, 725 S.W.2d 263, 264 (Tex. App. Houston [1st Dist.] 1986, writ ref d n.r.e.) (holding that trial court abused its discretion in allowing testimony where witness was not identified as potential witness, and party knew about witness s knowledge but did not disclose it to her own attorney until shortly before trial).

The record supports the trial court s finding that appellees acted in bad faith. Appellees made no apparent effort to provide complete answers to requests for written discovery or to update opposing counsel when they became aware of new contact information. We hold the trial court did not abuse its discretion by excluding the testimony of Compton Creel. Appellees first cross-point is overruled.

2. John Schiefen

Appellees never identified Schiefen by name in any of their answers to appellants written interrogatories. In response to appellants request for the name, address, and telephone number of all persons with knowledge of relevant facts, appellees answered: All witnesses listed in the expert report by De-Tec Inc., dated February 28, 1998. The De-Tec Inc. report identified Schiefen as a renter of the residence at the dead end of Macek Road. . . . The residence is physically addressed at 2323 Montgomery Road. No additional information was given about Schiefen. Appellees counsel claimed that Schiefen was adequately identified as a potential witness because: (1) they informed appellants that they intended to use as witnesses all of the people who actually were living along the lane where the barn burned down, and (2) in his deposition, Robert Randolph spoke about Schiefen and his knowledge of relevant facts.

Rules 193.1 and 194.2(e) of the Texas Rules of Civil Procedure require that parties provide complete responses to written discovery and disclose the name, address and telephone number of persons having knowledge of relevant facts, with a brief statement of their connection to the case. Tex. R. Civ. P. 193.1, 194.2(e). Identifying a general category of people, without naming individuals or providing specific contact information, is insufficient to satisfy this requirement. See Vingcard A.S. v. Merrimac Hospitality Sys., 59 S.W.3d 847, 856 (Tex. App. Fort Worth 2001, pet. denied) (op. on reh g) (holding that failure to provide all information requested constitutes failure to respond and triggers automatic exclusion of testimony).

Appellants counsel cannot be expected to anticipate that any particular person will be called as a witness just because the person is mentioned in the course of other discovery and appears to have knowledge relevant to the case. See Snider v. Stanley, 44 S.W.3d 713, 717 (Tex. App. Beaumont 2001, pet. denied) (holding that parties are not required to anticipate disclosure of expert witness on eve of trial because issues an expert would testify about would be important to case). A party is entitled to prepare for trial assured that a witness will not be called because opposing counsel has not identified him or her in response to a proper interrogatory. Sharp, 784 S.W.2d at 671. The rules are intended to make unnecessary the sort of anticipation appellees advocate. Snider, 44 S.W.3d at 717.

During the hearing on the motion to exclude Schiefen s testimony, appellants counsel asserted they had made a good faith effort to find Schiefen, including calling information and conducting internet searches. Appellees counsel acknowledged that Schiefen was a difficult person to find and asserted that Schiefen s address was not disclosed during discovery because they never had an address for him. Schiefen moved away from the area after the fire. However, the record reflects that when appellees counsel acquired new information regarding Schiefen s whereabouts, shortly before trial, they did not make any attempt to share that information with opposing counsel. Schiefen was not under subpoena; appellees counsel had contacted him and arranged for him to testify voluntarily. We hold the trial court did not abuse its discretion in excluding the testimony of John Schiefen. Appellees second cross-point is overruled.

In view of our disposition of these issues, it is unnecessary to address appellants remaining issues. See Tex. R. App. P. 47.1.

The trial court s judgment is reversed, and judgment is rendered that appellees take nothing from appellants.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 24th day of March, 2005.