On Appeal from the 273rd Judicial District Court Shelby County
The appellant company entered into a contract with the appellee trust to conduct seismic testing on the appellee's property. The appellee conducted a chicken growing operation on the premises, which required a substantial amount of water. The appellee had two productive water wells and a backup connection to a city water line. Shortly after the appellant completed its seismic testing on the premises, one of the water wells failed. The appellee brought suit against the appellant under both contract and tort theories, claiming damages of $15,000.00. A jury awarded damages under both fraud and contract theories, together with the attorney’s fees. The appellate court found that the results of explosions causing the ground to vibrate were in some ways entirely clear and straightforward, and an average juror could understand the concept, cause or probable result of actions that were proven to have occurred. The court determined that expert testimony was not necessary in this case to meet the factual sufficiency standard of review of a judgment. For that analysis, the court had concluded that the expert testimony was not necessary. Therefore, the court concluded that there was some evidence to connect the actions of the appellant in its on-site seismic testing and the damaged water well. Further, the court found that the $5,000.00 and $10,000.00 amounts appeared in the trial record only in closing arguments, there was, however, no evidence to support that award. Also, the appellee offered no evidence of attorney’s fees, reasonable, incurred or otherwise. The judgment was therefore without support in the evidence, and the award of the appellate attorney’s fees must be reversed. Accordingly, the court modified the judgment to delete the award of the attorney’s fees on appeal, and as modified, affirmed.