Kamy Real Property Trust v. Atmos Energy Corporation and Mastec North America Inc.
CourtTexas Court of Appeals, 7th District (Amarillo)
Date FiledNovember 3, 2026
Docket07-26-00204-CV
StatusPublished
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Full Opinion
In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-26-00204-CV
KAMY REAL PROPERTY TRUST, APPELLANT
V.
ATMOS ENERGY CORPORATION AND MASTEC NORTH AMERICA, INC.,
APPELLEES
On Appeal from the 431st District Court
Denton County, Texas1
Trial Court No. 24-1247-431, Honorable James S. Johnson, Presiding
November 3, 2026
MEMORANDUM OPINION
Before PARKER, C.J., and YARBROUGH and PRATT, JJ.
Appellant, Kamy Real Property Trust, appeals from the trial court’s grant of
summary judgment in favor of Appellees, Atmos Energy Corporation and MasTec North
America, Inc. It challenges the trial court’s orders through three issues. By this appeal,
1 This cause was originally filed in the Second Court of Appeals and was transferred to this Court.
In the event of any conflict, we apply the transferor court’s case law. See TEX. R. APP. P. 41.3. See also
Mitschke v. Borromeo, 645 S.W.3d 251, 258 n.12 (Tex. 2022) (“A transferee court must follow the transferor
court’s jurisprudence . . .”).
Kamy requests reversal of both summary judgment orders and remand for trial on the
merits of negligence, trespass, and nuisance claims against both Appellees. We affirm.
BACKGROUND
The underlying suit arose from utility construction activities on Kamy’s three
Denton County properties located at 720 Cook Street, 314 Wye Street, and 929 Johnson
Street. In April 2020, Atmos and MasTec entered into a Master Services Agreement for
construction, maintenance, and repair of natural gas facilities. The Agreement specifically
designated MasTec as an independent contractor. From 2020–2023, MasTec performed
pipeline construction work near the lots owned by Kamy. By its suit, Kamy alleged the
properties were subjected to unauthorized industrial construction activities including
storage, stockpiling, dumping, land-disturbing activities, and soil discharge, resulting in
landscape destruction, vegetation loss, heritage tree removal, soil degradation, erosion,
chemical residue, environmental hazard contamination, and other associated harm.
Kamy also alleged the construction entities failed to obtain proper permits required by
City of Denton ordinances and TCEQ regulations.
Atmos and MasTec filed motions for summary judgment concerning Kamy’s
claims. Kamy filed its response on December 16, 2025,2 four days late and just three
days prior to the hearing date. On December 19, 2025, the trial court entered orders
denying Kamy’s motion to file late summary judgment responses, granting MasTec’s
objections to Kamy’s summary judgment evidence, and granting MasTec’s No-Evidence
2 The record indicates the request to late-file responses to the motions for summary judgment was
filed in the trial court on December 17, 2025, at 12:32 a.m.
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Motion for Summary Judgment pursuant to Rule 166a(i) and Atmos Energy’s Hybrid
Traditional and No-Evidence Motion for Summary Judgment pursuant to Rules 166a(c)
and (i), disposing of all claims. Kamy’s Motion for New Trial filed on January 23, 2026
was denied on February 5, 2026.
ANALYSIS
STANDARD OF REVIEW
When a party moves for both traditional and no-evidence summary judgments, we
first consider the no-evidence motion. First United Pentecostal Church of Beaumont v.
Parker, 514 S.W.3d 214, 219 (Tex. 2017). We review a no-evidence summary judgment
under a legal sufficiency standard. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–
51 (Tex. 2003) (“A no-evidence summary judgment is essentially a pretrial directed
verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence
summary judgment as we apply in reviewing a directed verdict.”). Applying this standard,
a no-evidence summary judgment will be sustained when: “(a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to prove a vital fact, (c) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact.” Id. at 751 (citing Merrell Dow
Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
In a no-evidence summary-judgment motion, the movant must allege that there
exists no evidence to support one or more essential elements of a claim for which the
non-movant bears the burden of proof at trial. Wyly v. Integrity Ins. Sols., 502 S.W.3d
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901, 904–05 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Once the movant has met
its burden, the burden shifts to the non-movant, who must produce at least a scintilla of
evidence raising a genuine issue of material fact to defeat the no-evidence challenge.
Lightning Oil Co. v. Anadarko E & P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017).
To obtain a traditional summary judgment, a movant must produce evidence
showing that no genuine issue of material fact exists and that it is entitled to judgment as
a matter of law. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 551 (Tex. 2019);
see TEX. R. CIV. P. 166a(c). A defendant that conclusively negates at least one essential
element of a plaintiff’s cause of action is entitled to summary judgment on that claim.
Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
APPLICATION
Issue One—Late-Filed Responses
By its first issue, Kamy argues the trial court abused its discretion in denying the
Motion to Late-File Summary Judgment Responses when trial counsel experienced
medical emergencies requiring hospitalization on December 7 and December 14, 2025,
and neither MasTec nor Atmos asserted prejudice from the late filing. We overrule the
issue.
We review a trial court’s ruling on a request for leave to file a late summary
judgment response for an abuse of discretion. Carpenter v. Cimarron Hydrocarbons
Corp., 98 S.W.3d 682, 684, 688 (Tex. 2002). Such a motion should be granted when “a
litigant establishes good cause for failing to timely respond by showing that (1) the failure
to respond was not intentional or the result of conscious indifference, but the result of
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accident or mistake, and (2) allowing the late response will occasion no undue delay or
otherwise injure the party seeking summary judgment.” Id. See also Verhalen v. Adriana
Akhtar, 699 S.W.3d 303, 305 (Tex. 2024).
Kamy argues the trial court abused its discretion in denying leave to file late
responses. According to Kamy, trial counsel experienced a medical emergency on
December 7, 2025, was hospitalized again on December 14, 2025, and sought
extensions from Appellees. Atmos agreed to the extension and late filing request, but
MasTec never responded. Kamy contends it initially believed both Atmos and MasTec
agreed and thus, the failure was due to accident, not intentional or conscious indifference.
Kamy also argues no party claimed undue prejudice. Kamy further asserts the trial court’s
orders stated it considered all evidence, suggesting the responses may have been
considered despite the denial, creating ambiguity requiring reversal.
We first note it was Kamy’s burden to establish accident or mistake and lack of
prejudice, not MasTec’s, so it was not MasTec’s burden to establish undue prejudice.
Verhalen, 699 S.W.3d at 305; Tex. Petro. Land Mgmt., LLC v. McMillan, 641 S.W.3d 831,
849 (Tex. App.—Eastland 2022, no pet.). As to accident or mistake, the record shows
Kamy’s response was due December 12, 2025. Kamy’s attorney was released from the
hospital on December 8, 2025, but was apparently not advised to refrain from certain
activities until December 12, 2025. While counsel was re-hospitalized on December 14,
2025, the motion and attachments do not explain the delay between December 8 and 12,
nor do they explain why a motion was not filed at that time to provide Atmos and MasTec
adequate time to respond prior to the hearing set for December 19. Additionally, Kamy’s
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request for leave was unverified3 and unsupported by affidavit, contrary to Texas law.
See Carpenter, 98 S.W.3d at 688; Life Investment Management Company, LLC v.
Settlements of Texas, Inc., No. 02-23-00151-CV, 2025 Tex. App. LEXIS 5911, at *41
(Tex. App.—Fort Worth Aug. 7, 2025, pet. denied). As a result, no good cause was shown
through proper evidence.
Kamy did not address prejudice in its request to file its responses late. It noted
MasTec did not respond to Kamy’s request.4 The responses were filed early the morning
of December 17, 2025, giving MasTec two days to review Kamy’s responses and exhibits,
develop objections, research issues, and prepare a reply brief before the hearing.5 It did
so but we cannot say the trial court abused its discretion in determining it was prejudiced
by the late filing to which it did not consent.6 Compare Verhalen, 699 S.W.3d at 306
(finding minimal (if any) prejudice because parties had at least five days, only two fewer
than if a timely response had been filed, to consider the responses, prepare for the
hearing, and file replies).
We also cannot agree with Kamy’s position that because the trial court’s orders
stated it considered all evidence, that it also considered Kamy’s late summary judgment
responses and attached evidence. Where nothing appears of record to indicate that a
3 The order issued by the trial court specifically notes Kamy’s request was unverified.
4 Atmos agreed to the extension via email dated December 15, 2025.
5 We note also Kamy did not respond to MasTec’s objections concerning its summary judgment
evidence.
6 We acknowledge MasTec did not file a response in opposition to Kamy’s motion for leave to file
the responses late and did not otherwise assert prejudice. See Verhalen, 699 S.W.3d at 306. Nevertheless,
we still find the trial court acted in its discretion to find prejudice and deny the motion.
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late filing of a summary judgment response was with leave of court, we presume that the
trial court did not consider the response. Life Investment Management Company, LLC,
2025 Tex. App. LEXIS 5911, at *55 (citing B.C. v. Steak N Shake Operations, Inc., 598
S.W.3d 256, 259 (Tex. 2020) (op. on reh’g)). The record must be reviewed for an
affirmative indication that the trial court permitted the late filing, and that affirmative
indication may arise from a separate order, a recital in the summary judgment, or an oral
ruling contained in the reporter’s record of the summary judgment hearing. Id. The record
here shows the trial court denied Kamy’s motion to file the late responses, indicating it
would not consider them. The record also contains an order sustaining MasTec’s
objections to Kamy’s summary judgment evidence, again indicating it would not consider
the evidence. The language of the summary judgment orders does not alter that
conclusion. Id.
Issue Two—MasTec’s No-Evidence Motion for Summary Judgment
Through its second issue, Kamy contends the trial court erred in granting MasTec’s
No-Evidence Motion for Summary Judgment on all claims because the record contained
more than a scintilla of evidence of the challenged elements of negligence, trespass, and
nuisance.7 We resolve the issue against Kamy.
Kamy argues it presented more than a scintilla of evidence on each of its claims.
With regard to negligence, Kamy asserts it provided sworn affidavit testimony, deeds,
7 We note Kamy initially states it is challenging the ruling concerning evidence of negligence,
nuisance, trespass, civil conspiracy, strict liability, and gross negligence. However, its arguments center
only on negligence, trespass, and nuisance. Therefore, we address only the evidence pertaining to those
claims.
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permits, photographs of MasTec equipment and damage, and the Master Service
Agreement showing MasTec’s duty to protect adjacent property. On trespass, Kamy
claims it provided evidence of ownership through deeds and sworn testimony, physical
entry through photographs and affidavit testimony denying authorization, and injury
through photographic evidence. Kamy argues MasTec’s objections to evidence were
insufficiently specific and should have been overruled. Even with sustained objections,
Kamy posits, unobjected portions of evidence and incorporation of the Master Service
Agreement from Atmos’s motion provide sufficient evidence to survive Rule 166a(i)
review.
MasTec contends Kamy waived any argument regarding the trial court’s granting
of MasTec’s objections by failing to respond to the objections in the trial court or raise the
issue in its motion for new trial. We agree. See James v. J. Alexander L. Firm P.C., No.
05-25-00083-CV, 2026 Tex. App. LEXIS 5150, at *8 (Tex. App.—Dallas June 3, 2026, no
pet.) (mem. op.) (“when a party fails to object to the trial court’s ruling that sustains an
objection to her summary judgment evidence, she has not preserved the right to complain
on appeal about the trial court’s ruling”); Essex Crane Rental Corp. v. Carter, 371 S.W.3d
366, 383 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (citing TEX. R. APP. P.
33.1(a)(1) (objections concerning summary judgment evidence must be raised with the
trial court by a timely request, objection, or motion). See also Cantu v. Horany, 195
S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.) (noting same).
Further, contrary to Kamy’s assertions, MasTec argues its objections were specific
and tailored, identifying particular statements and phrases as constituting legal opinions,
lacking personal knowledge, containing hearsay, or being speculative and conclusory.
8
The affidavit of Zachary Sadeghian failed to establish personal knowledge, contained
inadmissible hearsay, legal conclusions, and unsubstantiated expert opinions.8 The
exhibits were not properly authenticated as business records or public records, and
photographs were not properly verified. Our review of the record leads us to agree with
MasTec’s position.
MasTec also argues Kamy waived any argument on the merits by making only
conclusory arguments with general references to voluminous exhibits without directing
the trial court to specific evidence supporting each element of its causes of action. While
it attempts to do so on appeal, MasTec argues this is too late because it did not direct the
trial court to the supporting proof it desired it to consider. Murray v. Hondo Nat’l Bank,
No. 04-19-00408-CV, 2020 Tex. App. LEXIS 7681, at *4–5 (Tex. App.—San Antonio,
Sept. 23, 2020, no pet.) (mem. op.). We again agree. The nonmovant has the burden to
produce summary judgment evidence raising a genuine issue of material fact as to each
challenged element of its cause of action. James, 2026 Tex. App. LEXIS 5150, at *7.
Merely citing voluminous summary judgment evidence in response to either a no-
evidence or traditional motion for summary judgment is not sufficient to raise an issue of
fact to defeat summary judgment. Id. Rather, a party must specifically identify the
supporting proof on file that it seeks to have considered by the trial court. Id. And, Kamy’s
reference to evidence submitted by Atmos (i.e., the 46-page Master’s Services
Agreement), was equally non-specific and the trial court was not required to look to other
evidence submitted in support of a traditional summary judgment to determine whether it
8 Sadeghian was untimely designated as an expert witness.
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defeated the no-evidence summary judgment. Dyer v. Accredited Home Lenders, Inc.,
No. 02-11-00046-CV, 2012 Tex. App. LEXIS 877, at *14 (Tex. App.—Fort Worth Feb. 2,
2012, pet. denied) (mem. op.).
Accordingly, we find Kamy failed to produce evidence establishing duty, breach,
causation, or damages for negligence claims. There was no evidence of intentional entry
or damages for trespass claims. Kamy failed to establish intent, negligence, or
substantial interference for nuisance claims. And, expert testimony was required, but not
provided, to establish standard of care, breach, and causation regarding alleged
chemical/environmental hazard contamination. Helena Chem. Co. v. Cox, 664 S.W.3d
66, 75 (Tex. 2023).
Accordingly, we conclude the trial court did not abuse its discretion in granting
MasTec’s motion for summary judgment.
Issue Three—Atmos’s Motion for Summary Judgment
In its last issue, Kamy claims the trial court erred in granting Atmos’s combined
motion for no-evidence and traditional summary judgment because the independent
contractor defense was insufficient to address strict liability and does not apply to trespass
and nuisance claims.9 We overrule the issue.
Kamy argues the independent contractor defense asserted by Atmos does not
apply to trespass and nuisance claims, which do not require personal participation and
9 On appeal, Kamy states it “specifically challenges the summary disposition as to trespass and
nuisance.”
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can be based on aiding, assisting, or ratifying another’s conduct. Kamy contends liability
for trespass is not dependent upon personal participation, and the independent contractor
defense is legally inapplicable to these claims. According to Kamy, the summary
judgment evidence, including the Master Service Agreement, construction plans,
photographs, and City of Denton correspondence, supports continuation of litigation
against Atmos on trespass and nuisance theories.
Atmos argues that Kamy’s claims fail because they are premised on liability for
MasTec’s alleged actions, but MasTec was an independent contractor over which Atmos
had no control. The Agreement explicitly stated MasTec was an independent contractor
with the sole and exclusive right to control and supervise the method, manner, and details
of work. Indeed, the Agreement contained the following provision:
A. INDEPENDENT CONTRACTOR RELATIONSHIP
CONTRACTOR [MasTec] shall act as and be deemed to be an independent
contractor. Neither CONTRACTOR [MasTec] nor any of its employees shall
act as, nor be deemed to be, an agent, representative, or employee of
COMPANY [Atmos]. CONTRACTOR [MasTec] shall have the sole and
exclusive right to control and directly supervise the method, manner, and
details of the Work.
The Supreme Court has expressly stated that “the law is settled that one who hires
an independent contractor is generally not liable for the contractor’s torts.” In re Home
Depot U.S.A., Inc., 735 S.W.3d 719, 723 (Tex. 2026); Fifth Club., Inc. v. Ramirez, 196
S.W.3d 788, 790 (2006). Narrow exceptions apply when “the hiring party retains or
exercises control over the details of the work or when a nondelegable duty is imposed by
statute or common law, including when the work involves an inherently dangerous activity.
Control gives rise to liability based on the power to prevent the work from being done in
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a dangerous or unsafe manner. When a duty is nondelegable, the employer cannot avoid
responsibility by delegating control to an independent contractor.” Home Depot, 735
S.W.3d at 723. Those narrow exceptions do not apply here.
Atmos did not perform construction activities, did not retain control over MasTec’s
actions, and did not have the right to control the means, methods, or details of MasTec’s
work. Further, it did not exercise any actual control over MasTec’s actions. As noted
above, Texas law generally holds that one who hires an independent contractor is not
liable for the contractor’s torts unless the employer retains control over the means,
methods, or details of the work. Id. Control requires more than general rights to inspect
work, mandate schedules, or order work stopped. Randall Noe Chrysler Dodge, LLP v.
Oakley Tire Co., 308 S.W.3d 542, 546 (Tex. App.—Dallas 2010, pet. denied). Employers
can direct when and where an independent contractor does the work and can request
information and reports about the work, but an employer may become liable for the
independent contractor’s tortious acts only if the employer controls the details or methods
of the independent contractor’s work to such an extent that the contractor cannot perform
the work as it chooses. Id. Atmos retained the right to inspect ongoing and completed
work, mandate the schedule for installation and completion, remove any person from the
work site deemed “not competent,” insist on compliance with the Atmos Energy
Construction Procedures Manual, and order temporary suspension of work all
demonstrate control. This does not demonstrate the control necessary to render Atmos
liable for MasTec’s actions. Id.
Given the foregoing and applying the well-settled law, we cannot find the trial court
abused its discretion in granting Atmos’s motion on this point.
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Next, we find the independent contractor defense applies to trespass and nuisance
claims, as an employer is not liable for an independent contractor’s trespass or nuisance
unless the employer participated in or directly controlled the contractor’s actions. Gordoa
v. Marlowe Condo. Owners Ass’n & Cmty. One Source, LLC, No. 14-25-00491-CV, 2026
Tex. App. LEXIS 7037, at *9–10 (Tex. App.—Houston [14th Dist.] July 28, 2026, no pet.)
(mem. op.) (regarding trespass). See also Severs v. Mira Vista Homeowners Ass’n, 559
S.W.3d 684, 705 (Tex. App.—Fort Worth 2018, pet. denied) (regarding nuisance). The
Fort Worth Court of Appeals, citing Oakley Tire Co., 308 S.W.3d at 549, has expressly
stated that “it must be the defendant who substantially interferes with the plaintiff’s use
and enjoyment of their property.” Id. Because this matter was transferred to this Court
from the Second Court of Appeals, we must apply the law the Fort Worth Court would
apply. Mitschke, 645 S.W.3d at 258 n.12. Doing so, we find the trial court did not abuse
its discretion in concluding Kamy failed to present any evidence that Atmos participated
in MasTec’s actions. We thus find no error in the trial court’s ruling.
CONCLUSION
Having overruled each of Kamy’s issues, we affirm the judgments of the trial court.
Alex Yarbrough
Justice
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