Alford Ranches, LLC v. TGC Industries, Inc

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NOT DESIGNATED FOR PUBLICATION

No. 112,375

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ALFORD RANCHES, LLC,
Appellee,

v.

TGC INDUSTRIES, INC.,
d/b/a TIDELANDS GEOPHYSICAL COMPANY,
Appellant.

MEMORANDUM OPINION


Appeal from Kiowa District Court; VAN Z. HAMPTON, judge. Opinion filed December 31, 2015.
Reversed.

Daniel H. Diepenbrock, of Liberal, for appellant.

Thomas V. Black and John V. Black, of Black's Law Office, P.A., of Pratt, for appellee.

Before POWELL, P.J., PIERRON and LEBEN, JJ.

PIERRON, J.: This appeal is concerned with a seismic survey performed on surface
land owned by Anthony Alford and Alford Ranches, LLC (collectively Alford). Alford
purchased the surface rights only to the land in 2007 for the purpose of hunting and cattle
grazing. TGT Petroleum (TGT) owned the mineral rights to the same land and contracted
with TGC Industries, Inc. d/b/a Tidelands Geophysical Company (TGC) to perform the
seismic survey. TGC performed the survey in March 2010. When Alford returned to the
land, he noticed ruts on the land left over from the survey. TGC offered Alford the
industry standard of $5 per acre in damages, but Alford rejected it. Instead, Alford
eventually filed a suit in negligence against TGC and the case went to trial.
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Alford pled this case as a general negligence case, as opposed to a professional
negligence case. Alford did not present expert testimony explaining industry standards
for seismic surveys or regarding the industry standard ruts left on land after a survey was
performed. Alford argued the land was too wet when TGC performed the survey and
TGC should have used lighter equipment. TGC presented evidence that it performed the
survey on the land in accordance with industry standards. The fight at the district court
centered on the damages calculation. Alford presented evidence from a dirt contractor
and farmer that it would cost $1 per foot to remediate the land and that Alford's caretaker
had fixed the ruts on the roads for $70 per foot. TGC objected to the figure and presented
evidence from a soil conservationist that Alford's land was not legally damaged based on
the intended uses—hunting and cattle grazing. The jury awarded Alford Ranches $88,000
in damages.

On appeal, TGC raises five issues, which can be summarized as a challenge to the
sufficiency of the evidence that TGC was negligent when it performed the seismic survey
on Alford's land; and the admission of evidence. TGC argues the district court abused its
discretion when it admitted expert testimony, photographs, and rebuttal testimony.

Alford responds that there was sufficient evidence of negligence and asks us to
hold TGC strictly liable. Alford also claims the district court properly admitted
deposition testimony, photographs, and rebuttal testimony. Finally, Alford claims TGC
did not properly preserve its challenge to the admission of deposition testimony.

TGC filed a reply arguing against the application of strict liability and claiming it
had properly preserved the evidentiary issue.

A review of the record indicates that Alford did not present any evidence that TGC
acted unreasonably when it surveyed the land or that TGC failed to do something a
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reasonable surveyor would have done. As such, there is an absence of evidence that TGC
breached the duty it owed Alford. Even if there was evidence of a breach, there is no
evidence establishing how or why the industry standard damages of $5 per acre that TGC
offered Alford was insufficient. The expert testimony that it would cost $1 per foot to
remediate the ruts is too speculative in nature and should not have been admitted.

TGC argues Alford presented no evidence that TGC owed a duty to Alford or that
TGC breached that duty. Therefore, TGC claims there was insufficient evidence to
support the jury's finding of fault and award of damages. Viewing the evidence in the
light most favorable to Alford, was there sufficient evidence to support the jury verdict?
We find there was not.

Alford did not present expert testimony from an outside seismic surveying expert.
Instead, Alford Ranches argued at trial that the ground was too wet to perform the survey.
Alford also argued TGC should have used a lighter vibrator truck because Alford thought
the land was too wet 2 months prior to the survey; Alford wanted TGC to use vibrator
vehicle with tracks instead of tires; and Alford was unhappy with the ruts left on his
ground. But TGC used the industry standard vibrator truck and followed the rule of
thumb regarding drying time for precipitation. Alford presented no evidence that TGC
acted unreasonably or failed to do something a reasonable seismic survey company
would have done under the circumstances. Alford's witness testified the ruts left on the
land were normal, but that the ruts made hunting and cattle grazing inconvenient. There is
also evidence that TGC did own other seismic equipment, but nothing to suggest the
equipment could have performed the same survey or have resulted in smaller ruts. The
evidence suggests that TGC performed the survey in a reasonable manner but left ruts on
the land. However, there is no evidence that the ruts were left as a result of TGC's
negligence.

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Roy Burson, TGC employee, initially contacted Alford about the survey. Alford
testified at trial that Burson had contacted him in March 2010, to let him know TGC
would be performing a survey on the property. Alford said he told Burson it was
currently raining on the land and he did not want the survey to take place while the
ground was wet. Alford testified he asked if the survey could be postponed and Burson
refused to delay the survey. Burson last worked for TGC on January 29, 2010, and died
on February 18, 2010.

On December 18, 2009, Burson had mailed Alford a permit requesting permission
to perform the survey on his land. On January 7, 2010, TGC employee, Victoria Yohn,
overheard a phone conversation between Burson and Alford. She testified she heard
Burson tell Alford that TGC had a right to be on the property and would cut locks if
Alford put them up. That same day, Yohn faxed a cover letter and the permit letter to an
attorney after Burson got off the phone with Alford. Only the cover letter is included in
the record on appeal. Alford never signed the permit.

A TGC crew went to look at the property sometime between January 25, 2010,
and February 5, 2010. However, the seismic survey did not occur until March 2010. TGC
arrived on Alford's property on March 10, 2010. Yohn had obtained weather and
precipitation information from the Dodge City Airport for the months of February and
March 2010. The airport—the closest location reported on the web site—was
approximately 50 miles from the Alford property. The records showed the following
precipitation: 9.5 inches of snow fell between February 2-22, 2010, but had all melted by
February 25, 2010; .71 inches of precipitation between February 2-21, 2010; .03 inches
of precipitation on March 11, 2010; .39 inches of precipitation on March 8, 2010; .01
inches on March 9, 2010.

TGC employee Gary Goodlander testified about the snowfall in early February
2010. He acknowledged he had not actually gone to the property before the survey to see
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if the snow was gone. Goodlander said the weather reports and 50-degree weather
indicated the snow would have melted prior to the survey. Goodlander said there was
nothing in the weather reports to suggest that TGC should not have performed the survey
of the land on March 13 through 16, 2010.

The crew laid receivers on March 10 and 11, 2010. They drove four-wheel drive
ATVs. The crew was unable to work on March 12, 2010, because the winds were too
high, which meant constant winds at 25 miles per hour or greater. The vibrator trucks
were on Alford's land from March 13 through 16, 2010. The seismic survey occurred on
March 13 through 16, 2010. TGC used Hemi-60 vibrator trucks to perform the seismic
survey. Goodlander said the trucks traveled a maximum of 127,500 feet over Alford's
land, but that did not mean TGC had left the same number of ruts.

When Alford returned to the property sometime after the survey had been
performed, he found ruts all over the land.

Jeremy Butler, a field supervisor for TGT, testified for Alford about the ruts he
saw on Alford's land. TGT owned the mineral rights and had requested the survey. Butler
had been on the land before and after the survey. Butler saw how big and how deep the
ruts were. He had driven across the land in a pickup truck and encountered the ruts. He
described the ruts as "tracks . . . that you would expect from the equipment."

In June 2010, Alford hired Earl Hicks to be the caretaker of his land. Hicks was
paid a salary. Alford asked Hicks to measure and photograph the ruts on the land. Hicks
found 14 paths of ruts, each with two ruts. Hicks said he fixed 300 feet of ruts that
crossed the roads on the lands using a disk that he dragged back and forth across the
roads. He did not photograph the ruts on the road prior to fixing them. Alford did not pay
Hicks specifically for the task of fixing the ruts; instead, Alford just paid Hicks a regular
salary. Hicks estimated the cost to be $22,000 to fix the ruts based on the time he spent
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fixing them—150 hours at a rate of $20/hour for equipment costs. This was
approximately $70 per foot. The remaining ruts were still present at the time of trial.

In the summer of 2010, Alford contacted TGC to ask why he had not received his
payment yet. Based on his acreage, Alford was entitled to $6,100. A check was sent on
October 5, 2010, but Alford never cashed the check.

Alford sought to admit exhibits N and 0. Alford said exhibit N was a photo of a
vehicle like what he thought TGC had used on his land. He did not explain where the
photo came from. Alford said exhibit O, a photo of a large vehicle with tracks instead of
tires was what he wished TGC had used. Alford did not explain where the photo came
from or verify that it was a vibrator truck. Alford said the exhibits were for demonstrative
purposes only. The district court admitted the photos over TGC's objection to the lack of
foundation.

Hicks had leased the Alford land to Dayle Heft, a neighbor, for cattle grazing.
Hicks said the ruts did not affect the ability to lease the land out for cattle grazing or
affect the deer population for hunting. Hicks said Heft provided in-kind services such as
building a fence and a solar panel on a well in exchange for letting his cattle graze on the
land. Heft bore the cost of the supplies for the projects instead of paying cash rent. Hicks
felt the ruts made it hard for handling the cattle because they made it difficult to drive
across the land and made deer hunting more difficult.

Hicks also asked Heft to look at the ruts. Heft was deposed on April 18, 2013.
Alford did not ask Heft any questions at his deposition. Heft died the week prior to trial.
Alford was prepared to read Heft's deposition testimony at trial. However, before the start
of trial, TGC filed a motion to strike Heft's testimony, claiming: Heft was "not an expert
in this field" and (2) it would be highly prejudicial to allow Heft to give his "Oh, a dollar
a foot" estimate. The motion is not included in the record on appeal, but a transcript of
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the argument is. The district court had not read the deposition testimony prior to hearing
argument on the motion to strike. Alford argued that "the dollar a foot [Heft] said was
based on his experience." Alford argued Heft had considered the amount of fuel, the cost
of a tractor, the cost of a driver, and the labor.

When Alford asked to read Heft's deposition into the record, TGC indicated it had
no objection. However, prior to the reading of the portion of Heft's testimony about the
$1 per foot estimate, TGC renewed its objection to Heft's lack of foundation and
qualifications. The district court overruled the objection.

Heft's testimony revealed that he owned property adjacent to Alford's property and
was familiar with it. Heft was a farmer and a contractor who did a lot of work as a dirt
excavator. When Heft went out to Alford's land, he recognized the ruts as seismograph
truck tracks because he had "those same tracks on my properties, too, I mean similar"
from surveys being performed on his land over the years. Heft stated he "[h]ad a good
idea" of what to expect of the ruts. He spent about an hour exploring the land with Hicks.
He measured some of the ruts.

Heft's testimony indicated he had wanted to create a tool to remediate the ruts. The
tool he created was a "big ox ripper with a special shoe on the bottom." Heft tried the tool
on his own land, but it did not work due to the dryness of the soil. He never tried the tool
again. The area had been experiencing drought conditions, but Heft felt it would work
once the undersoil had more moisture. Heft also provided a written estimate to remediate
the ruts.

Heft estimated it would cost a minimum of $1 per foot to remediate the ruts. His
written estimate included his opinion that the ruts interfered with the use of range land for
pasture. He testified he figured in the time, fuel, and labor, but his report did not mention
this. However, he was unsure whether fuel and labor were actually included in the
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estimate and did not know a cost for the labor and fuel. He had no calculations and had
not referred to any publications when calculating the cost. The district court admitted
Heft's written estimate over TGC's objection that the document was cumulative.

At trial, Alford questioned Goodlander about other equipment TGC had and
introduced photos from TGC's web site of the different pieces of equipment. TGC
objected to the admission of exhibits Q, R, S, T, and U. TGC argued the exhibits did not
further the theory of Alford's case. The photos were admitted into evidence. Goodlander
said in addition to the Hemi-60, TGC had other models of vibrator trucks, including: the
Hemi-50, "which is just the same version as the 60, but about 10 thousand pounds
lighter"; some that are mounted on trucks—the "old version" of a vibrator truck; the
Enviro-Vibe and shothole rigs; and a "10 to 300 hertz vibrator." Goodlander explained
that the Hemi-60 and Hemi-50 have very similar tires and the same chassis.

The exhibits provided the following information about the vibrator trucks: Hemi-
60—"This reliable and tested seismic vehicle is just one of the seismic source vehicles
that [TGC] has in its' fleet." It is the "most advanced seismic source system that offers . . .
the deepest seismic surveys"; Hemi-50—[t]he Hemi-50 buggy mounted vibrator is an all-
terrain vehicle that has been a mainstay of many vibroseis projects. It is well suited for
most any project." It is an "advanced seismic source system," and its "50,000 pound
output offers . . . deeper seismic surveys"; and Enviro Vibes—"powerful 'mini-buggies'
specifically designed for working in sensitive areas where size and/or sound could restrict
access." An Enviro Vibe is a "low impact vibrator system that is optimized for operation
in environmentally restricted or populated areas. . . . [It] is an excellent choice for
environmentally sensitive, high resolution surveys."

Alford also showed Goodlander exhibit O. Goodlander said he had never seen a
truck like exhibit O used on a surface source. In fact, he thought the vehicle was not even
a vibrator truck.
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At the close of Alford's case, TGC orally moved for judgment as a matter of law.
TGC argued that "no credible, no worthy evidence has been presented to substantiate a
claim for damages." TGC claimed the only evidence that Alford had presented about
damages to the land was the testimony of written report by Heft. TGC challenged the
credibility of Heft's alleged damages because Heft had never made a tool before like the
one he had made here, the tool had not worked, and he could not really explain how he
had come up with the estimate of $1 per foot. TGC also argued that Alford had not
presented any evidence of a legal damage to the land since it had been purchased for
hunting and grazing and the only complaint was inconvenience. Alford argued that Hicks'
and Heft's testimony substantiated a claim for damages.

The district court affirmed its previous ruling that Heft was qualified as an expert
to give his opinion based on his years of experience and skill involved in excavating. The
judge determined Heft had stated "it would cost at least a minimum of a dollar a foot to
repair the ruts. And, I think that's a matter for the jury." The court acknowledged that
Heft's opinion left "much room for argument," but it was up to the jury to interpret and
apply that opinion. The court denied TGC's motion finding the testimony clearly showed
that the ruts were not on the land prior to the seismic exploration and therefore the jury
"could find that the damages were shown from the testimony." The court identified the
damages questions as "whether or not the land was altered, and as a result of that altering
it would be considered damaged if it cost to remedy it." The court treated this case like
one of strict liability. In a negligence action, there is only liability for the altering of the
land if TGC acted unreasonable in some way, not merely because it cost to remedy the
ruts.

Lonnie Fehrenbacher testified as an expert for TGC. He had spent over 31 years as
a soil conservationist and was retired from the United States Department of Agriculture
(USDA). He was working part time for the Kansas Department of Wildlife Parks and
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Tourism. He did primarily the same job for both departments; writing grazing plans,
assessing damages regardless of cause, and creating burn plans.

TGC asked Fehrenbacher to visit Alford's property to inspect for possible damage.
He visited the property in March 2013 to observe the ruts and check the soil. He
determined the soil was a "Pratt loamy fine sand." Fehrenbacher testified that Pratt loamy
fine sand lacked structure and could not be compacted—or damaged—by the ruts. He
found that vegetation was growing in the ruts, which was good because water could
collect there and bring additional moisture to vegetation. He found nothing about the ruts
that would negatively affect the wildlife population or grazing cattle, but he did
acknowledge that someone driving an ATV across the land would have to be careful of
the ruts. He did not believe remediation was necessary since the land was used for
wildlife, hunting, and grazing cattle.

Fehrenbacher provided a written report of his findings, which did not include a
cost to remediate. In his report, Fehrenbacher indicated there was no evidence the
vegetation had been damaged, remediation was not necessary, and that the ruts did not
affect the use of land for grazing and wildlife purposes.

TGC also used Fehrenbacher to provide the foundation for the admission of two
documents, the USDA Custom Rates from 2009 and the Kansas State University 2013
Projected Custom Rates for Kansas. When Fehrenbacher had worked for the USDA, he
had helped to determine the cost to remediate or work farm and ranchland. One of his
responsibilities with the USDA had been to remediate damages to wetlands. The USDA
Custom Rates from 2009 indicated the custom rate for disking was an average of $9.06
an acre. The 2013 Projected Rate for disking was $9.87 an acre.

Alford presented the testimony of Kevin Heft and Steve Heft in rebuttal. Kevin
testified he had spent 30 years in the cattle business and was familiar with rent prices for
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pasture land, but he was not a certified appraiser and testified he was not expressing his
opinion as to the fair market of the land. TGC objected to his testimony as improper
rebuttal. TGC argued Kevin was not actually rebutting anything in his testimony, it was
irrelevant to Alford's measure of damages, and it lacked of foundation. The court
overruled all three objections. Alford argued Kevin's testimony rebutted Fehrenbacher's
testimony that the land did not need remediating. Kevin testified the ruts made it
inconvenient for running cattle. Alford argued he had a right to bring in evidence to rebut
TGC's evidence that there were no damages because the land was good for cattle to graze.
Kevin said he currently rented Alford's pasture at $10 per acre, but other pastures rented
for $12 to $14 per acre. He said the ruts made it less valuable.

Steve testified he worked in the construction business and had a lot of experience
with dirt moving and excavation. TGC again objected that Steve was not actually
rebutting anything and he had not been identified as an expert but was offering testimony
about the cost of remediating the land. Steve felt the land needed to be remediated. He
also felt his father's estimate had not been out of line. Steve said it would take a yard of
dirt for every 10 feet of ruts, and hauling material would cost $10 a yard, not including
reseeding. He said it would cost at least $1.75 a foot if he hauled in dirt. He also felt his
father's tool would have worked if the soil had had enough moisture. He had seen his
father's plans for the tool and had seen the actual tool.

The district court instructed the jury, and the parties made closing arguments. The
jury determined TGC was at fault and awarded Alford $88,000 in damages.

TGC filed a motion for judgment as a matter of law or for a new trial. The motion
cannot be found in the record, but a transcript of the hearing is. TGC contended there was
no evidence that its actions lacked ordinary care. TGC claimed Alford had failed to
present any evidence of a standard of care. TGC noted Alford's testimony about the land
being too wet was from a time long before TGC performed the survey. Butler said the
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ruts were normal, and there was no evidence that a seismic company using ordinary care
would have used any of the smaller equipment. TGC again challenged Heft being
qualified as an expert and his $1 per foot estimate for remediation.

TGC also argued that the district court had erroneously allowed the rebuttal
testimony of Heft's sons. Steve's testimony about Heft's tool supports TGC's theory that
Steve's theory of remediation was not proper. Kevin's testimony was improper because
Alford's theory of damages had been temporary damages and, therefore, the measure of
damages would be repair, but Kevin's testimony was about diminishing the value of the
land due to the ruts. TGC argued the district court erroneously admitted the photographs
of other seismic equipment. TGC claimed an improper foundation had been laid, and
therefore it was prejudicial to TGC to admit those photographs. Finally, TGC argued the
cumulative effect of the errors warranted a new trial or judgment notwithstanding the
verdict.

In response, Alford suggested the district court had a chance to rule on all of these
issues at trial and correctly denied all of TGC's motions and objections. Alford suggested
that Heft's death—just days prior to trial—put Alford in a position of having to proceed
with Heft's deposition or delay the trial to get another expert. Alford also said that this
was not "a scientific thing . . . moving dirt" and Heft had spent his whole life as a dirt
excavator and his son had spent numerous years as one. Alford Ranches also said Kevin's
testimony rebutted TGC's expert testimony that the land did not need to be remediated.
Finally, regarding the pictures of TGC's alternative equipment, Alford claimed TGC
could not legitimately claim surprise because the photographs came from its web site.
Alford also claimed the photos were to

"offset the fact that he was claiming that they had no equipment that could do this any
other way other than the heaviest equipment that they had and there was . . . equipment
that weighed less than half of what the equipment was that they used which would clearly
be negligence, especially given the fact that their expert testified that this was an
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environmentally sensitive area with sand that was prone to be rutted if you used really
heavy equipment . . . and they chose to use the heavier equipment."

TGC responded that it was most concerned with the photo of the truck with tracks
instead of tires. Regarding Alford claim that there was testimony about lighter equipment,
TGC clarified that the testimony revealed TGC's client chose the equipment and it had
used lighter equipment before but could not get the work done. TGC reiterated that
Alford had not presented any evidence of a standard of care or of a breach of that
standard.

The district court found that "the only explanation for the verdict was that the jury
inferred that that act was a lack of reasonable care or the act of a . . . person not acting as
a reasonable person." The court determined TGC's first claim of error failed. Regarding
Heft's testimony, the district court held that Heft's expertise was a matter of skill and
experience and that "he said he would've charged $1.00 per foot if he had an implement
that would do it." "That's what apparently the jury based their finding on." The judge said
it "appears that [Heft's] testimony was admissible based upon his experience, so I find
that was not improper." Third, the court held that the rebuttal testimony was not improper
and it did not appear the jury considered it. Regarding the photographs of equipment, the
court held the evidence went to the issue of whether there was alternative equipment
available. The court noted the "jury considered whether or not [TGC] should've waited
until it was drier to go in." The court denied TGC's motion.

On appeal, TGC challenges the sufficiency of the evidence and the admission of
evidence and testimony.

For the first time, TGC challenges the sufficiency of the evidence presented at
trial. We can consider a challenge to the sufficiency of the evidence made for the first
time on appeal. State v. Farmer, 285 Kan. 541, 545, 175 P.3d 221 (2008).
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When a verdict is challenged for insufficiency of evidence or as being contrary to
the evidence, an appellate court does not reweigh evidence or pass on the credibility of
the witnesses. If the evidence, viewed in the light most favorable to the prevailing party,
supports the verdict, the verdict will not be disturbed on appeal. Wolfe Electric, Inc. v.
Duckworth, 293 Kan. 375, 407, 266 P.3d 516 (2011).

In a negligence action, the plaintiff carries the burden of proving the following
four elements: (1) a duty owed to the plaintiff by the defendant, (2) a breach of that duty,
(3) causation between the breach of the duty and injury to the plaintiff, and (4) damages
suffered by the plaintiff. Shirley v. Glass, 297 Kan. 888, Syl. ¶ 4, 308 P.3d 1 (2013).
"Thus, with no breach of duty, there is no fault or negligence issue for the district court to
reach." Kemp v. Hudgins, No. 108,715, 2013 WL 6331604, at *9 (Kan. App. 2013)
(unpublished opinion), rev. denied 300 Kan. 1103 (2014).

Black's Law Dictionary defines "negligence" as "[t]he failure to exercise the
standard of care that a reasonably prudent person would have exercised in a similar
situation; any conduct that falls below the legal standard established to protect others
against unreasonable risk of harm. . . . The term denotes culpable carelessness." Black's
Law Dictionary 1133 (9th ed. 2009). Our Supreme Court has acknowledged that the word
"negligence," "standing alone" refers to the "duty" and "breach" elements of a negligence
claim. Fiser v. Kansas Bd. of Healing Arts, 281 Kan. 268, 272, 130 P.3d 555 (2006).

"Kansas law does not presume negligence, nor does it allow negligence to be
established by conjecture, surmise, or speculation. Negligence must be proved by
substantial competent evidence." Yount v. Deibert, 282 Kan. 619, 624, 147 P.3d 1065
(2006); see also Siruta v. Siruta, 301 Kan. 757, 767, 348 P.3d 549 (2015). In Siruta, our
Supreme Court explained when negligence can be established through circumstantial
evidence:
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"It is well established that negligence may be proved through circumstantial evidence,
however. [Citation omitted.] In order for circumstantial evidence to be sufficient to
establish negligence, '"such evidence need not rise to that degree of certainty which will
exclude any and every other reasonable conclusion'—instead, '[i]t suffices that such
evidence affords a basis for a reasonable inference by the court or jury,"' even though
'some other inference equally reasonable might be drawn [from the evidence].' [Citations
omitted.] Triers of fact may also 'draw upon their own experiences in determining
causation.' [Citation omitted.]" Siruta, 301 Kan. at 767.

On appeal, TGC contends there is insufficient evidence that it was negligent when
it surveyed Alford's land. We must determine whether the evidence viewed in the light
most favorable to Alford supports the jury verdict. Each element will be addressed in
turn.

Duty

Whether a duty exists is a question of law. Siruta, 301 Kan. at 767. Appellate
courts have unlimited review of questions of law. Thomas v. Board of Shawnee County
Comm'rs, 293 Kan. 208, 220-21, 262 P.3d 336 (2011)

TGC argues that Alford presented no evidence at trial that TGC owed a duty to
Alford. In response, Alford contends that "TGC had a duty to conduct its seismic survey
in a manor [sic] that did no damage or at least little damage a [sic] as possible to Alford's
land." Alford also claims TGC had a duty to repair the land after the survey. But Alford
does not provide a citation to the record on appeal or any caselaw in support of his claim
of duty; instead Alford argues that TGC should be held strictly liable. An appellee is
required to support statements "by references to the record in the same manner as
required of the appellant under Rule 6.02." Supreme Court Rule 6.03(a)(3) (2015 Kan.
Ct. R. Annot. 48); see also Supreme Court Rule 6.02(a)(4) (2015 Kan. Ct. R. Annot. 48)
16

("The facts included in the statement [of facts] must be keyed to the record on appeal by
volume and page number. The court may presume that a factual statement made without
a reference to volume and page number has no support in the record on appeal."). We
may presume there is no support in the record for Alford's claim that it established TGC
had a duty and TGC breached that duty. See Kenyon v. Kansas Power & Light Co., 17
Kan. App. 2d 205, 207, 836 P.2d 1193 (1992).

An independent review of the record indicates there is evidence TGC owed Alford
a duty. This case is unusual because normally when exploration occurs, there is a contract
that explains the parties' duties. The permit TGC sent to Alford in December 2009 recited
the duty that TGC would be held to if Alford had signed the permit: TGC's "operations
will be conducted in accordance with standard industry practices and in a prudent and
careful manner." However, Alford never signed and returned the permit, so TGC was not
contractually bound by the permit. Nonetheless, the permit does establish that TGC
recognized it owed some duty to surface rights land owners.

A search of Kansas caselaw suggests appellate courts have never addressed
whether seismic surveyors owe a duty to the surface rights owner absent a contract. But
our courts have stepped in and imposed liability on the lessee under an oil and gas lease
when the use of the surface has been "overreached and becomes injurious to the lessors'
agricultural pursuits" even when there is no express provision in the lease. See Norton
Farms, Inc. v. Anadarko Petroleum Corp., 32 Kan. App. 2d 899, Syl. ¶ 9, 91 P.3d 1239
(2004).

A search of other jurisdictions indicates some provide a statutory duty owed to
surface land rights owners. See Mont. Code Ann. § 82-10-505 (2015) ("The oil and gas
developer or operator is responsible for all damages to real or personal property resulting
from the lack of ordinary care by the oil and gas developer or operator."); Okla. Stat. tit.
52, § 318.22(D)(4) (2013 Supp.) (Absent a written agreement, notice shall include the
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following language: "Operator will conduct the proposed seismic exploration in a prudent
manner and agrees to indemnify and hold you harmless from personal injury or property
damage claims that may result from the operator's seismic exploration to the extent that
such damage claims are not the result of your acts or omissions.").

Also, at least Texas has recognized a duty owed to the surface rights owner. Ball v.
Dillard, 602 S.W.2d 521, 523 (Tex. 1980). But other Texas courts have found that the
dominant estate owner—the mineral rights owner—is the party owing the surface rights
owner a duty. See H.B. Taylor v. Brigham Oil & Gas, L.P., No. 0700-0225-CV, 2002
WL 58423, at *1 (Tex. App. 2002) ("It is incumbent upon the surface owner to establish
that the dominant estate owner failed to use reasonable care in pursuing its rights or that
the rights could have been pursued through reasonable alternate means sufficient to
achieve the goal desired but without the damage.").

However, the Restatement (Third) of Torts imposes a general duty to exercise
reasonable care. "A person acts negligently if the person does not exercise reasonable
care under all the circumstances." Restatement (Third) of Torts: Phys. & Emot. Harm § 3
(2010); see also see also Restatement (Second) of Torts § 302, Comment a (1965) ("In
general, anyone who does an affirmative act is under a duty to others to exercise the care
of a reasonable man to protect them against an unreasonable risk of harm to them arising
out of the act.").

Even if TGC was not contractually bound by the permit, it should be held to the
general duty articulated in the Restatement (Third) of Torts. This means TGC owed
Alford a general duty to exercise reasonable care under the circumstances. However,
there is no evidence in the record to support Alford's claim that TGC had the duty to
conduct its seismic testing in a manner that did no damage or at least as little damage as
possible. Instead, TGC had to exercise the care a reasonable seismic surveying company
would have used under the circumstances.
18


Assuming TGC had the duty to exercise the standard of care that a reasonably
prudent seismic surveyor would have exercised in a similar situation, the next question is
whether sufficient evidence supports the finding that TGC breached that duty.

Briefly, Alford argues TGC should be held strictly liable for the first time on
appeal and is therefore subject to the general rule that legal theories not asserted at trial
will not be considered on appeal. Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R.
Annot. 41) ("If the issue was not raised below, there must be an explanation why the
issue is properly before the court."); see also In re Care & Treatment of Miller, 289 Kan.
218, 224-25, 210 P.3d 625 (2009); Louisburg Building & Development Co. v. Albright,
45 Kan. App. 2d 618, 627, 252 P.3d 597 (2011). Our Supreme Court recently reiterated
that "Rule 6.02(a)(5) means what it says and is ignored at a litigant's own peril." State v.
Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015).

Alford's failure to argue an exception applies means he has abandoned this issue
and we decline to consider it.

Breach

TGC next argues its actions did not lack reasonable care. Alford argues a
reasonable person would have used a lighter truck and repaired the ruts. But again, Alford
fails to cite to the record and therefore has failed to satisfy Supreme Court Rule
6.03(a)(3).

However, even if we consider the issue, the record as a whole indicates Alford
presented no evidence of breach at trial. "Whether the duty has been breached is a
question of fact." Sall v. T's, Inc., 281 Kan. 1355, Syl. ¶ 2, 136 P.3d 471 (2006). We must
19

decide if there is evidence to support the jury's finding that TGC failed to act as a
reasonably prudent person in a similar situation.

TGC highlights that it had a right to enter the property to perform the survey and
argues there was no evidence the ground was wet or any other evidence that warranted
delaying the survey. TGC suggests the evidence indicates it acted with reasonable care
when performing the survey and therefore it was not negligent. TGC argues Alford's
suggestion that it could have used alternative equipment was not supported by evidence
and that any evidence supporting it was improperly admitted.

Alford attempted to establish that TGC acted unreasonably when it surveyed the
land.

"Generally, when plaintiffs are attempting to establish negligence based upon a
departure from the reasonable standard of care in a particular profession, expert
testimony is required to establish such a departure. Moore v. Associated Material &
Supply Co., 263 Kan. 226, 234-35, 948 P.2d 652 (1997); see, e.g., Bowman v. Doherty,
235 Kan. 870, 879, 686 P.2d 112 (1984) ('[e]xpert testimony is generally required and
may be used to prove the standard of care by which the professional actions of the
attorney are measured and whether the attorney deviated from the appropriate standard')."
Davis v. Lafayette C. Greischar Living Trust, No. 109,110, 2013 WL 5188441, at * __
(Kan. App. 2013) (unpublished opinion).

However, Alford pled this case as general negligence instead of professional
negligence. Alford did not present expert testimony or lay testimony from another
seismic surveying company to explain the general standard of care a seismic surveyor
should have used. Instead, Alford presented evidence from a TGT employee and then
relied on the testimony of TGC employees to establish the industry standard of care. The
testimony revealed: The industry standard vibrator truck was the Hemi-60; permit agents
considered the weather and soil type when conducting a survey; the client dictated which
20

vibrator truck the company would use; a day and a half drying time for each half inch of
precipitation was sufficient; and large ruts were normal after a survey

We must next determine whether there was sufficient evidence that TGC breached
this duty. That is, did TGC act unreasonably in anyway or fail to do something a
reasonable seismic surveying company would have done?

As the plaintiff, Alford carried the burden of establishing that TGC breached its
duty. Bi-State Dev. Co. v. Shafer, Kline & Warren, Inc., 26 Kan. App. 2d 515, 517, 990
P.2d 159 (1999). We must view the evidence in the light most favorable to Alford when
determining whether sufficient evidence supports a finding of breach.

At trial, Alford suggested two unreasonable actions on the part of TGC: (1) "going
out there when it was too wet" and (2) "not using a smaller vibrator truck." On appeal,
Alford suggests TGC was unreasonable for failing to use a smaller truck and not
repairing the ruts.

Regarding the claim that the land was too wet, the evidence revealed that Alford
testified Burson had contacted him in March 2010 and Alford said it was too wet for the
survey crew to come out, but—without reweighing credibility—the evidence
unequivocally established that Burson last worked for TGC in late January and had died
in February. Assuming Alford did tell Burson he did not want TGC to come out because
the land was still wet, this conversation could not have happened in March because
Burson had died.

The snow had melted by February 25, 2010, 16 days before the survey. There was
precipitation of .39 inches on March 8, 2010, .01 inches on March 9, 2010, and .03 inches
of precipitation on March 11, 2010. Rounding this precipitation up to a half inch means
TGC needed to wait until March 10th to perform the survey. The receiver crew arrived on
21

Alford's land on four-wheel drive ATVs on the 10th, but the vibrator trucks did not arrive
on the land until the 13th—well after the day and a half wait time. There was nothing in
the weather reports to suggest TGC should not have performed the survey on March 13,
2010.

This evidence is insufficient to establish that TGC acted unreasonably by
performing the survey on March 13 through 16, 2010, due to the wetness of the ground. It
is not reasonable to assume the .04 inches of precipitation that fell on March 9 and 11,
2010, would have caused the ground to be too wet for the survey.

Alford also claimed that TGC should have used a smaller truck than the Hemi-60.
The evidence revealed that smaller trucks existed, but TGT requested TGC use the Hemi-
60. The Hemi-60 was the industry standard truck, and it provided the most advanced and
deepest survey. Butler testified the ruts left on Alford's land were the regular ruts; and
although not as helpful, Heft's deposition revealed the ruts on Alford's land were similar
to those left on his land. Yohn testified he had accepted $5 per acre from TGC.

Also notable is the absence of evidence presented at trial. Alford presented no
evidence that the smaller vibrator trucks had the same surveying capabilities or would
have left smaller track. There is only evidence that other vibrator trucks existed, which is
insufficient to create the inference that a reasonable seismic surveyor in these
circumstances would have used a smaller vibrator truck.

In order to hold that TGC acted unreasonably by failing to use a lighter truck, we
would have to find it would have been reasonable for TGC to disregard the industry
standard vehicle and the requests of its client and use a vibrator truck that did not have as
deep surveying capabilities. This does not seem to be a reasonable inference based on the
evidence.

22

Alford argues it was unreasonable for TGC not to fix the ruts. But the evidence
revealed TGC offered Alford Ranches $5 per acre in standard damages, but Alford
refused to accept it. The evidence also revealed that TGC had formulas to assess damage
greater than the normal $5 per acre and it would send a permit agent to inspect the land
when notified by the surface rights owner. There is no evidence a reasonable seismic
surveyor would have fixed the ruts, only that a reasonable seismic surveyor would have
offered $5 per acre and then assessed possible greater damages when asked to by the
surface rights owner.

Finally, Alford did not present any evidence to suggest that there was something a
reasonable seismic surveyor would have done that TGC did not do. And there is no
evidence that the ruts left on Alford's land were more severe than the ruts that would be
left by a reasonably prudent seismic surveyor.

"'There is nothing in the laws, the constitution or in magna charta, or in the great
principle of jury trials, which can justify, or for a moment tolerate, a verdict without
evidence or contrary to all evidence. The law will permit no such verdict. A jury has no
power to render it, and no court should allow it to stand. You cannot predicate discretion
of such a case. It is a case where there is none.'" Backus v. Clark, 1 Kan. *287, 295
(1863).

Viewing the evidence in the light most favorable to Alford, the record indicates
TGC acted reasonably when it performed the survey of Alford's land.

Conclusion

There was insufficient evidence that TGC acted unreasonably. We reverse the
judgement and the award of damages.

Reversed.