In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-25-00430-CV
ANDREA POTTER, INDIVIDUALLY AND AS NEXT FRIEND OF C.P. AND
H.P., MINORS; AND CORDELL POTTER, Appellants
V.
ATMOS ENERGY CORPORATION, Appellee
On Appeal from the 67th District Court
Tarrant County, Texas
Trial Court No. 067-339537-23
Before Kerr, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Appellants Andrea and Cordell Potter—who sued Appellee Atmos Energy
Corporation alleging personal injuries resulting from gas leaks inside their home—
appeal the trial court’s take-nothing judgment in Atmos’s favor following its successful
traditional and no-evidence summary-judgment motion challenging the Potters’
negligence and gross-negligence claims. Because Atmos, as a public utility, is shielded
from liability on these facts and because it did not owe the Potters the legal duties
alleged, we will affirm.
I. Background
A. Over a year after moving into their home, the Potters learn, in February
2022, of a possible interior gas leak and report the issue to Atmos.
Along with their two young children,1 the Potters moved into their Grand
Prairie2 home in January 2021. A few months later, the Potters and their children began
to experience varying symptoms including headaches, fatigue, shortness of breath,
coughing, nausea, and the like. Those symptoms worsened during the fall and winter
months of 2021.
Andrea Potter sued individually and as next friend of C.P. and H.P.
1
2
The Potters’ home is located in the portion of Grand Prairie within Tarrant County. See North Central Texas Council of Governments, www.dfwmaps.com (last visited Aug. 7, 2026).
2
On February 15, 2022, after a foundation-repair contractor working at the house
told the Potters that he smelled gas, the Potters reported a possible gas leak to Atmos.3
Atmos responded the same day, determined that the house’s gas piping was leaking,
and shut off the home’s gas service. Atmos resumed service after a plumber repaired
roughly twenty-five leaks within the pipes and the house passed city inspection.
According to the Potters, their symptoms dissipated after the leaks were repaired,
although their daughter continues to struggle with her health.
B. Five months before the reported leak, Atmos had conducted an internal
“Verify” high-bill review.
In September 2021, Atmos’s system had flagged the Potters’ account for a
“Re-Read and High Bill Investigation,” as that process is described in Atmos’s Service
Procedure Manual.4 There are two types of such an investigation: one that a customer
initiates (presumably by complaining about a high bill, which did not occur here) and
another that is triggered, as the manual states, when “a technician receives an internally
initiated VERIFY order”—which is what happened with the Potters’ account as
evidenced by, among other things, the service orders’ notations to “VFY MTR INFO”
and the order description as “Meter/Billing Verify Information.” When an Atmos
3
Atmos’s corporate representative averred that “Atmos Energy had no
knowledge of a gas leak in the [h]ouse or the [h]ouse’s gas piping before Mrs. Potter reported the possible leak on February 15, 2022.”
4
The Potters learned of Atmos’s investigation through document production in this litigation.
3
employee is called out to re-read a meter under either “Verify” scenario, he simply
examines the readings on the meter’s dials.
If a Re-Read and High Bill Investigation/Verify fails to explain an elevated meter
reading, Atmos next conducts a “Company Billing Investigation,” under which a
technician visually observes the meter and surrounding areas for indications of a leak
and, if one is detected, takes further actions that can extend to turning the meter off
and notifying the customer, as well as “[o]ffer[ing] to perform a customer piping test,”5
as the manual lays out.
Christopher Bone, the director of Atmos’s billing-services group, explained that
an account is flagged for a high-read/verify review when a recorded meter reading is
outside historical averages and is above 250 CCFs.6 A high reading can mean a “variety
of different things”—a misread meter, a customer’s addition of gas appliances, use of a
pool heater, a water-line leak that drives up hot-water-heater usage—and not necessarily
excessive consumption or a gas leak. Rather, a high reading “just indicates that an
investigation is necessary,” and when a reading is “abnormally out of historical usage,”
Atmos “just want[s] to . . . review it.”
Such a test uses pressure to check for leaks in the gas piping inside a customer’s
5
building.
6
CCF means centum cubic feet, a unit of measurement representing 100 cubic feet of natural gas.
4
Because a Verify investigation can yield a benign explanation such as a simple
meter-read error, Bone disagreed that Atmos has a responsibility to notify a customer
when it undertakes that type of investigation: “I would say since we do not know that
there’s a possible safety issue, no, we’re not responsible for letting a customer know
that there’s an investigation taking place around safety. We don’t know that.” For the
same reason, according to Bone, the “high priority” notation on the service orders
generated for the Potters’ account in response to the Re-Read and High Bill
Investigation/Verify inquiry did not necessarily signal a gas leak but only that a leak
could be one of several possible explanations for the anomalous reading. 7
Here, the result of Atmos’s Verify investigation obviated the need for an
escalated Company Billing Investigation because, as Bone testified, it turned out that
the Potters’ meter had been misread:
Well, as I explained, we review the situation; and in this case, the Potters’
home. We looked at the consumption, determined exactly what the -- the
cause of the consumption was, and we -- we took action at that point. . . .
The meter had been misread, which then took the consumption equation
out of it. So there was only a misread error. There was no consumption
error.
7
Asked whether “one reason that Atmos investigates meter reading issues in a high priority basis is because there might be a gas leak,” Bone responded, “There’s a variety of reasons that we investigate those, and certainly one of those could be a safety factor.” In answer to Atmos’s counsel’s follow-up questioning, Bone explained that the “high priority investigation” was into the meter readings and was not an investigation into whether there was a gas leak, an emergency, or a threat.
5
In addition to the service orders and Bone’s testimony, Jordan Bullock—
Atmos’s director of operations for the Mid-Tex Division and its corporate
representative—confirmed that Atmos had conducted a Verify investigation and not
the next-level Company Billing Investigation. Bullock testified that “if [the high read]
was correct and if actually that was the usage,” a Company Billing Investigation would
have been the next step, but that was “not the case here. The usage was not 1,186 [the
number that triggered the Verify investigation]. And so once we got an accurate read,
we were able to close out this service order and attribute it to human error.”8 Bullock
also testified that Atmos had “suspected that it was a misread”: “And so what happened
was, we went and got an accurate read, and that’s exactly what it was. . . . So that was,
you know, the end of this service order. There was no reason to continue further
investigation.”
Those service orders also included the notation, “SEPT IS SHOWING
1186 CCFS USED. JULY ACTUAL READING IN LINE. PLS CONFIRM HIGH
CONS[UMPTION].” The Potters extrapolate that because Bone acknowledged that
this note indicated a high reading for July and corroborated the September reading,
8
The Potters point to Bone’s testimony that Atmos had been working on a “billing issue” or “billing investigation” in asserting that Atmos was in reality pursuing the more serious Company Billing Investigation with all its attendant procedures. But the context makes clear that Bone was using the phrase “billing investigation” loosely rather than referring to the specific Company Billing Investigation procedure defined in Atmos’s manual, which was not what he was asked about.
6
Atmos knew that the Potters had had “multiple months of alarmingly high gas
consumption readings.”9 But Bone explained that the meter had simply been misread
twice by the same meter-reader—once in July and again in September—and that the
Potters’ actual consumption was historically consistent. Moreover, asked whether the
consumption at the Potters’ house from 2021 through 2022 would have triggered any
investigation at all but for the meter misread, Bone was unequivocal: “No, it would not
have.”
C. Atmos operates under a liability-limiting regulatory scheme.
The Texas Railroad Commission regulates Atmos’s Mid-Tex Division, which
serves customers in the City of Grand Prairie and approved the division’s “Tariff[10] for
Gas Service.” Among its various provisions, the Tariff limits Atmos’s liability for gasrelated damages and injuries that occur past the “[p]oint at which natural gas leaves the
The intervening August 2021 bill was not out of line and was consistent with
9
historical consumption patterns; the Potters consumed only an estimated 27 CCFs in that month. In addition, the record does not reflect any high usage numbers for the months between September 2021 and February 2022, when the Potters alerted Atmos to a possible leak, a fact that would independently suggest that the July and September meter readings were indeed human error and not reflective of “alarmingly high gas consumption,” as the Potters characterize it.
While the word “tariff” may connote government fees imposed on imported
10
goods, it has an additional meaning specific to public utilities. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215–16 (Tex. 2002) (explaining that Public Utility Commission defines a tariff as “a schedule containing all charges, rules, and regulations listed separately by type of service and customer class” and that PUC requires utilities to “file a tariff that list[s] the utility’s services and rates and govern[s] the utility’s relationship with its customers”).
7
Company’s facilities.” The Tariff-defined “point of delivery” here was where gas went
from Atmos’s exterior meter on the side of the Potters’ home and into their home, a
point upstream of where the interior gas piping leaked. Put more simply, once natural
gas goes into someone’s house, with a few inapplicable exceptions, Atmos is not liable
for any “inside” problems.
Specifically, the Tariff provides:
(B) After Point of Delivery. Company shall not be liable for any damage or
injury resulting from gas or its use after such gas leaves the point of delivery other
than damage caused by the fault of the Company in the manner of
installation of the services lines, in the manner in which such service lines
are repaired by the Company, and in the negligence of the Company in
maintaining its meter loop.[11] All other risks after the gas left the point of delivery
shall be assumed by the Consumer, his agents, servants, employees, or other
persons. [Emphases added.]
D. The trial court grants summary judgment for Atmos.
The Potters asserted four liability theories in claiming that Atmos had been
negligent and grossly negligent:
• failing to warn them of a gas leak;
• failing to warn them of adverse health effects of being exposed to a gas leak;
11
The Potters did not allege that any of these three exceptions to the limitations on Atmos’s liability were involved. Their complaint about Atmos’s not testing their gas meter is distinct from the Tariff’s reference to failure to maintain the meter loop, a part that begins at the “first exposed fitting [on the inlet side of the meter] and ends at the meter outlet valve.” Glossary of Commonly Used Terms, Guide for Gas Transmission and Distribution Piping Systems, ANSI GPTC Z380 (2015 ed.). According to Bullock, “the meter loop of a meter set does not include the meter itself.”
8
• failing to test the gas meter servicing their home; and
• failing to test their gas pipes for a leak.
Atmos moved for a traditional and no-evidence summary judgment,12 arguing
that (1) because the Potters’ alleged injuries arose from gas leaks past the point of
delivery, the Tariff’s liability limitations foreclosed the Potters’ negligence claims under
the filed-rate doctrine; and (2) the summary-judgment evidence negated the legal-duty
element of negligence because a Texas public utility is not liable for a dangerous
condition on a customer’s property if it lacks actual knowledge of the condition. Atmos
contended that without a viable negligence claim, the Potters’ gross-negligence claim
thus also failed as a matter of law.
After the Potters responded and Atmos replied further, the trial court granted
summary judgment without specifying its reasons and entered a final take-nothing
judgment. This appeal followed, in which the Potters raise issues challenging the
summary judgment on each of their negligence and gross-negligence theories and based
on the Tariff.
Atmos filed its motion before 2026, so the 2026 amendments to Texas Rule of
12
Civil Procedure 166a do not apply. Sup. Ct. of Tex., Final Approval of Amendments to Rule 166a of the Texas Rules of Civil Procedure, Misc. Docket No. 26-9012 (Feb. 27, 2026) (applying amendments to motions “filed on or after March 1, 2026”).
9
II. Discussion
A. Standard of review
We review summary judgments de novo. Travelers Ins. v. Joachim, 315 S.W.3d 860,
862 (Tex. 2010). When, as here, a party moves for summary judgment under both Rules
166a(c) and 166a(i) in a hybrid motion, the approach often “presents subtleties,” and
our review “turns on the nature of the evidence presented.” Creekside Ranch Grp., LLC
v. Blair, No. 02-24-00050-CV, 2025 WL 568697, at *4 (Tex. App.—Fort Worth Feb. 20,
2025, pet. denied).
Although we usually consider the no-evidence motion first, when both parties
present evidence on a hybrid motion that is granted without distinguishing between the
two types, “the ultimate issue is whether the nonmovant raised a fact issue to preclude
summary judgment.” Fossil Grp., Inc. v. Harris, 691 S.W.3d 874, 882 (Tex. 2024). “[T]o
determine if a fact issue exists, we examine the evidence in the light most favorable to
the nonmovant, indulging reasonable inferences and resolving any doubts against the
moving party.” Id. We thus do not segregate our review to consider the different
burdens associated with each type of summary-judgment motion, and “in conducting
our de novo review, we will review the full summary[-]judgment record to determine
whether fact issues exist.” Creekside Ranch, 2025 WL 568697, at *4 (quoting In re Cobb,
No. 13-24-00414-CV, 2024 WL 4940410, at *6 (Tex. App.—Corpus Christi–Edinburg
Dec. 2, 2024, orig. proceeding)).
10
The nonmovant must come forward with “competent controverting
evidence”—with more than a scintilla of probative evidence—to defeat a well-founded
summary-judgment motion. See Tawil v. Cook Children’s Healthcare Sys., 582 S.W.3d 669,
681 (Tex. App.—Fort Worth 2019, no pet.). Evidence does not create a material fact
issue if it is “so weak as to do no more than create a mere surmise or suspicion” that
the fact exists. Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014) (quoting Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)). And regarding a claim in which
a defendant’s knowledge of a condition must be established, where proof of such
knowledge is based on mere speculation, it is insufficient to defeat summary judgment.
Cf., e.g., Carlson v. Fiesta Mart, Inc., No. 14-99-00581-CV, 2000 WL 1840308, at *2 (Tex.
App.—Houston [14th Dist.] Dec. 14, 2000, no pet.) (setting forth this principle in case
in which nonmovant plaintiff in slip-and-fall case presented only speculation and
inference that store knew that liquid had been on floor for a long time).
B. The Potters’ negligence claim
The Potters’ negligence claim alleged four discrete failings on Atmos’s part: to
warn them of a gas leak, to warn them of adverse health effects of being exposed to a
gas leak, to test their meter, and to test their gas pipes for a leak. Atmos’s
summary-judgment motion advanced two reasons why that negligence claim failed in
each of its permutations: (1) the filed-rate doctrine and Section 9(B) of the Tariff and
(2) summary-judgment evidence that negated the legal-duty element of ordinary
11
negligence. See Elephant Ins. Co. v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022) (recapping
the elements of common-law negligence). We begin with the Tarriff.
1. Section 9(B) of the Tariff; the filed-rate doctrine
The Texas Gas Utility Regulatory Act recognizes that “[g]as utilities are by
definition monopolies in the areas they serve. As a result, the normal forces of
competition that regulate prices in a free enterprise society do not operate.” Tex. Util.
Code § 101.002(b). Thus, “as a substitute for competition,” public agencies “regulate
utility rates, operations, and services.” Id. Under the Act, the Texas Railroad
Commission has broad regulatory authority over gas utilities to ensure that they provide
“safe, adequate, efficient, and reasonable” services. Id. §§ 104.001(a), .251.
Part of this regulatory process requires gas utilities to file a proposed tariff with
the Railroad Commission for review and approval. CenterPoint Energy Res. Corp. v.
Ramirez, 640 S.W.3d 205, 210 (Tex. 2022); see 16 Tex. Admin. Code § 7.315. “Tariffs
may permissibly include provisions limiting a utility’s liability for economic and
personal-injury damages.” Ramirez, 640 S.W.3d at 210. This is so because “a limitation
on liability is an inherent part of the rate the utility charges for its services”; in that way,
regulated utilities can reduce costs for lower rates to customers. Grant, 73 S.W.3d at
217.13
Limited economic-damages liability
13
is reasonable because a utility: (1) must provide nondiscriminatory service
to all customers within its area; (2) must maintain uniform rates and reduce
12
Under the filed-rate doctrine—which comes into play “when state law creates a
state agency and a statutory scheme under which the agency determines reasonable rates
for the service provided”—a tariff that is filed with and approved by an administrative
agency is “presumed reasonable unless a litigant proves otherwise.”14 Id. at 216. And
because aggrieved utility customers cannot enforce rights contradicting the tariff’s
provisions, the filed-rate doctrine prohibits customers from suing in tort (or contract)
over matters governed by the tariff’s terms. Id. at 217. Tariffs that are filed and approved
govern a utility company’s relationship with its customers and have the force and effect
of law. Id.
Similar to other gas-company tariffs,15 Atmos’s Tariff provides that Atmos “shall
not be liable for . . . injury resulting from gas or its use after such gas leaves the point
of delivery [here, the point at which gas goes from the house’s outside meter into the
house]” unless the injury results from Atmos’s “fault” in how it installed or repaired the
costs; (3) cannot accurately estimate its exposure to damages or efficiently
insure against risks; (4) cannot increase rates for all customers based on
losses one specific class of customers incurs; and (5) must comply with
PUC regulations.
Id. (citing Houston Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668, 673– 75 (Tex. 1999)).
14
The Potters do not challenge the reasonableness of Atmos’s Tariff.
15
The CenterPoint Energy Resources tariff at issue in Ramirez had a virtually identical non-liability section. 640 S.W.3d at 211–12 (quoting tariff).
13
service lines or from its “negligence” in maintaining the meter loop. Here, it is
undisputed that the Potters’ leaks occurred past the point of delivery, that they alleged
no faulty service-line installation or repairs, and that meter-loop maintenance is not at
issue.
Under the Tariff’s plain language, and because the liability limitations are
reasonable as a matter of law under the filed-rate doctrine, the Potters cannot recover
from Atmos damages for any injuries they sustained from an interior gas leak. To the
extent that the trial court’s summary judgment was based on the Tariff and the filed-rate
doctrine, that judgment was proper.
2. Legal duty; knowledge
Seeking to avoid the past-the-point-of-delivery bar, the Potters argue that their
negligence theories all involve Atmos’s failings before that point such that the Tariff
does not preclude their negligence claim’s going forward. But their argument
presupposes that Atmos knew about a gas leak in their home, a purported fact that
Atmos’s uncontroverted summary-judgment evidence negated.
Texas common law has long held that “absent actual knowledge, utilities are not
liable for dangerous conditions on customers’ property.” Id. at 223 (Enoch, J.,
concurring) (citing San Antonio Gas & Elec. Co. v. Ocon, 146 S.W. 162, 164 (Tex. 1912));
see Leyva v. S. Union Gas. Co., No. 08-02-00258-CV, 2004 WL 100521, at *3 (Tex. App.—
El Paso Jan. 21, 2004, no pet.) (noting that a Texas “utility company’s duty is limited to
the situation where the utility company had actual knowledge of the dangerous
14
condition on the customer’s property” and that “[a]bsent actual knowledge of a
dangerous condition, no [negligence-based] duty arises”); Cent. Power & Light Co. v.
Romero, 948 S.W.2d 764, 767 (Tex. App.—San Antonio 1996, writ denied) (same, and
rejecting argument that constructive notice suffices to impose duty where utility does
not own or control defective or injury-causing equipment).
The Potters invoke “alarmingly high gas consumption” and Atmos’s “high
priority” “Company Billing Investigation” in the fall of 2021 as evidence that Atmos
did in fact know of a probable gas leak but negligently failed to warn them or take other
actions allegedly called for under their negligence theories. The problem, though, is that
no evidence shows alarmingly high consumption as opposed to a misread meter, the fact
of which was revealed by Atmos’s “Verify”—not “Company Billing”—investigation.
In Bone’s deposition testimony from which the Potters take the “alarmingly
high” phrase, which was embedded within a question to him, he never said that the
Potters ever actually consumed 1,186 CCF of gas but simply agreed that 1,186 CCFs
was an “alarmingly high gas reading” and “[v]ery abnormal, yes.” Asked about August’s
bill showing 27 CCFs—which was consistent with historical usage—Bone agreed that
the September in-person reading showed a “high jump.”16 Then, going back to the
16
Bone also explained that “during the investigation, that’s when we noticed that the July read had come in high.”
15
similarly high July number, Bone explained that the meter had been misread by the same
technician in both July and September 202117:
Q. So Atmos is in an active high priority investigation attempting
to verify whether its customer is consuming 1,186 CCFs of gas per month,
but Atmos doesn’t say anything to its customer about a possible gas leak?
A. To give you some context around the 1,186, so referring back to
July, which is a thousand and some units, correct, that we spoke about
earlier, so that was a misread by -- by an employee. If you -- if you do the
math, the consumption for the 1,100-and-some-odd CCF would have
been on top of the reading that we took in July, which would not have
indicated another thousand units was used.
So at that point, we’re not looking at a thousand units. That would
have been used in July and would no longer be relevant. And so we still
believe we need to get a good reading on this meter. The meter that was
misread the second time was the same employee. And so at this point, we
are trying to get a good, valid reading on this meter so that we can get the
billing corrected.
Atmos’s chart from its appellate brief—with the footnoted references to
summary-judgment evidence omitted here—demonstrates each month’s numbers:
17
Unlike the in-person read for those two months, Atmos had estimated the Potters’ bill for June and August. Bone explained that when Atmos “estimate[s] a customer, [Atmos doesn’t] necessarily read it. So a system estimate means that we did not take a meter reading for that particular month.” By statute, a gas utility may submit estimated bills to its residential customers (with “a distinct marking to identify an estimated bill”), “provided that an actual meter reading is taken at least every six months.” 16 Tex. Admin. Code § 7.45(6)(B), (C).
16
The Potters argue that Atmos’s work orders showing that the triggering
September read was “in line” with June18 and July numbers meant that Atmos had
known of “multiple months of alarmingly high gas consumption readings,” which the
Potters correlate to Atmos’s knowing of high gas consumption for multiple months.
But the Potters’ argument rests entirely on presupposing and speculating, without
evidence, that the CCF number that triggered Atmos’s Verify investigation—which, as
we discussed, was not the more-serious Company Billing Investigation, as the Potters
18
Atmos had estimated the Potters’ meter in June and August; both months’ consumption was later revised slightly, as the chart shows, but not by much compared to the July and September revisions after the meter was re-read and the mistaken earlier reads were corrected. The only reference to June comes in a September 16, 2021 Atmos internal note, which read, “June actual readin[g] is in line with Sept high read,” but subsequent Atmos notes refer only to July, not June. It thus seems possible that the lone June reference was incorrect. Regardless, our analysis of the summary-judgment evidence remains the same.
17
repeatedly characterize it—showed real consumption in that amount. Atmos’s
summary-judgment evidence established that it was not a consumption issue, and the
Potters did not raise a fact issue by their unsupported characterization of events or, in
their reply brief, by merely posing the question as if it created a fact issue, “Was it a
‘Company Billing Investigation’ or a ‘Verify’ investigation?”
As Bone agreed, “[b]ut for the meter misread,” “the consumption at the Potters’
house from 2021 through 2022 [would not] have triggered any investigation at all.” And
as Bullock testified, “[I]f [the high read] was correct and if actually that was the usage,”
a Company Billing Investigation would have been the next step, but that was “not the
case here. The usage was not 1,186” but instead, “[t]he meter reader made an error in
recording the reading. The actual consumption was not high and was in line with -- with
other months’ usage.”
In short, Atmos determined that the Potters’ meter had been misread, did not
conduct a Company Billing Investigation, and had no knowledge of any theoretical
leak.19
In contrast, the Potters assert liability theories based on Atmos’s (1) “[f]ailure to
warn [the] Potters about gas leak based on then-existing actual knowledge of ‘escalated’
Moreover, that leaks in the Potters’ gas piping were discovered in February
19
2022 does not raise a fact issue about leaks in the fall of 2021, much less leaks that Atmos knew about before the Potters reported a possible problem in February (and to which Atmos responded immediately).
18
and ‘high’ gas consumption for multiple months”; (2) “[f]ailure to warn [the] Potters about
health hazards based on then-existing actual knowledge of ‘escalated’ and ‘high’ gas
consumption for multiple months and actual knowledge of the chemical composition of
Atmos’s gas”; (3) “[f]ailure to test [the Potters’] gas meter for accuracy based on thenexisting actual knowledge of ‘escalated’ and ‘high’ gas consumption for multiple months
and fluctuating meter readings”20; and (4) “[f]ailure to test [the] Potters’ gas piping based
on then-existing actual knowledge of ‘escalated’ and ‘high’ gas consumption for multiple
months and need to determine source of gas leak.”21 [Emphases added.] To the extent
that, under the right facts, a gas company can owe legal duties to a customer that the
Tariff would not preclude, the fatal flaw in each of the Potters’ theories is that nothing
in the record establishes that consumption was actually “escalated” and “high” during
the relevant time.22
The meter readings were not “fluctuating”: except for the two months of
20
human error, they were consistent with the Potters’ historical usage. Atmos investigated and determined what had happened.
21
This framing presents as fact—as ipse dixit—that there was a gas leak during the relevant period, but all the evidence shows otherwise.
22
This flaw also renders conclusory the Potters’ expert’s opinions about the various duties claimed to be owed by Atmos to the Potters, since they, too, rest upon ipse dixit assertions of actual high consumption and a known probable gas leak during the relevant time. Additionally, “expert testimony is insufficient to create a duty where none exists at law,” Park v. Exxon Mobil Corp., 429 S.W.3d 142, 150 (Tex. App.—Dallas 2014, pet. denied), and any duty on Atmos’s part requires actual knowledge, Grant, 73 S.W.3d at 223 (Enoch, J., concurring); Leyva, 2004 WL 100521, at *3; Romero, 948 S.W.2d at 767, which was absent here.
19
The Potters have essentially just labeled the facts as the opposite of what Atmos
showed they were, without controverting them. That approach does not create a fact
issue. Cf., e.g., Waste Mgmt. of Tex., Inc. v. Dodd, No. 02-23-00043-CV, 2025 WL 285333,
at *5 (Tex. App.—Fort Worth Jan. 23, 2025, pet. denied) (stating that where undisputed
testimony showed that corporate employee lacked authority to hire and fire, “[e]ven if
the jury disbelieved this testimony, it is not evidence that the opposite is true,” and
citing Safeway Stores, Inc. v. White, 348 S.W.2d 162, 165 (Tex. 1961) (“While the jury was
free to disbelieve [the witness’s] statement that he did not realize there was any danger,
his testimony in that respect is not evidence that the opposite of what he said is true.”)).
Because the Potters failed to raise a genuine issue of material fact sufficient to
defeat Atmos’s entitlement to summary judgment on the basis of no legal duty (and
under the Tariff), we hold that the trial court did not err by granting summary judgment,
and we overrule the Potters’ issues challenging summary judgment on their negligence
theories.
C. Gross-negligence claim
Finally, the Potters argue that the trial court erred by granting summary judgment
on their gross-negligence claim. But Texas law is clear that without a legal duty, there
can be no gross negligence. See Lowe v. Am. Airlines, Inc., No. 02-23-00370-CV,
2024 WL 3896444, at *7 (Tex. App.—Fort Worth Aug. 22, 2024, no pet.) (collecting
cases). Because we have held that the Potters’ negligence claim fails for lack of duty, it
“necessarily follows” that their “gross-negligence claim also fails as a matter of law.” Id.
20
We thus hold that the trial court did not err by granting summary judgment on this
claim and overrule the Potters’ issue complaining otherwise.
III. Conclusion
Having overruled the Potters’ issues challenging the summary judgment on their
negligence and gross-negligence claims, we affirm the trial court’s judgment.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: August 13, 2026
21