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).
3
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.
4
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.
5
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.
6
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.
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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 gas- related 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”).
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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.”
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• 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”).
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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)).
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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
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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
13
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).
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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
15
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.”
16
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).
17
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.
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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).
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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 then- existing 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.
20
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.
21
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