Jump To

Top Caption Disposition Lead Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 11, 2026 Get Citation Alerts Download PDF Add Note

Robert Lomerson, on Behalf of Shirley Lomerson v. Lyle Reid & Associates, L.L.C. D/B/A LR Fine Homes, Timothy Clark, and Lisa Marie Clark

Texas Court of Appeals, 7th District (Amarillo)

• Citations: None known
• Docket Number: 07-25-00067-CV
• Nature of Suit: Miscellaneous/other civil

• Disposition: Affirmed

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Disposition

Affirmed

Lead Opinion

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-25-00067-CV

ROBERT LOMERSON, ON BEHALF OF SHIRLEY LOMERSON, APPELLANT

V.

LYLE REID & ASSOCIATES, L.L.C. D/B/A LR FINE HOMES,
TIMOTHY CLARK, AND LISA MARIE CLARK, APPELLEES

On Appeal from the 342nd District Court
Tarrant County, Texas 1
Trial Court No. 342-348721-23, Honorable Kimberly Fitzpatrick, Presiding

March 11, 2026
MEMORANDUM OPINION
Before PARKER, C.J., and DOSS and YARBROUGH, JJ.

Appellant Robert Lomerson, on behalf of Shirley Lomerson, appeals the trial

court’s order granting no-evidence summary judgment in favor of Appellees, Lyle Reid &

1 This cause was originally filed in the Second Court of Appeals. It was transferred to this Court by
a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE § 73.001. In the event
of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3.
Associates, L.L.C. d/b/a LR Fine Homes, Timothy Clark, and Lisa Marie Clark. We affirm

the judgment of the trial court.

BACKGROUND

This appeal arises out of a property dispute between neighboring landowners. The

Clarks contracted with Lyle Reid to construct a residence on their property. Lomerson

brought suit alleging that the Clarks’ construction altered the natural flow of surface water

in a manner that caused damage to Lomerson’s land and seawall. He asserted causes

of action for trespass, negligence, and negligence per se under Texas Water Code

section 11.086.

Appellees filed a no-evidence summary judgment motion challenging every

element of Lomerson’s claims. In particular, Appellees argued that Lomerson had no

admissible evidence to establish causation or damages because he failed to timely

designate his experts, rendering their technical reports inadmissible. Lomerson filed a

response that included reports prepared by CD Environmental Engineering and Alliance

Geotechnical Group. Appellees filed objections to the evidence Lomerson used to

respond to Appellees’ no-evidence summary judgment motion, including specifically

objecting to the expert reports due to the experts being untimely designated. In his

response to Appellees’ objections, Lomerson acknowledged that he failed to designate

these experts before the deadline. After hearing arguments, the trial court granted

Appellees’ no-evidence summary judgment motion. It did not, however, explicitly rule on

Appellees’ objections to Lomerson’s evidence.

2
By one issue, Lomerson contends that the trial court erred in granting Appellees’

no-evidence summary judgment motion.

STANDARD OF REVIEW

After an adequate time for discovery, the party without the burden of proof may,

without presenting evidence, move for summary judgment on the ground that there is no

evidence to support an essential element of the nonmovant’s claim or defense. TEX. R.

CIV. P. 166a(i). The motion must specifically state the elements for which there is no

evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial

court must grant the motion unless the nonmovant produces evidence that raises a

genuine issue of material fact. See TEX. R. CIV. P. 166a(i) & cmt.; Hamilton v. Wilson,

249 S.W.3d 425, 426 (Tex. 2008).

We employ a de novo review of a trial court’s ruling on a motion for summary

judgment. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). In our review,

we consider as true all evidence favorable to the nonmovant, and we indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Summary judgment is

appropriate if the movant establishes that there is no genuine issue of material fact and

judgment should be granted as a matter of law. Diversicare Gen. Partner, Inc. v. Rubio,

185 S.W.3d 842, 846 (Tex. 2005).

3
ANALYSIS
The Expert Reports

Lomerson’s sole appellate issue contends that the trial court erred by granting

Appellees’ motion for no-evidence summary judgment. The evidence Lomerson claims

raises a genuine issue of material fact includes two reports prepared by experts who were

not timely designated.

A party that fails to make, amend, or supplement a discovery response in a timely

manner may not introduce into evidence the material or information that was not timely

disclosed, unless the trial court finds that there was good cause for the failure to timely

disclose or the failure will not unfairly surprise or prejudice the other parties. TEX. R. CIV.

P. 193.6(a). “Evidence not timely disclosed is automatically excluded in the context of

both trials and summary judgments.” Cresson Int., LLC v. Rooster, No. 02-21-00366-CV,

2022 Tex. App. LEXIS 6707, at *7 (Tex. App.—Fort Worth Aug. 31, 2022, pet. denied)

(mem. op.) (citing Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 882

(Tex. 2009)). This exclusionary effect applies equally to expert reports and testimony.

See Wilson v. Murphy, No. 02-23-00207-CV, 2024 Tex. App. LEXIS 2548, at *22–23 (Tex.

App.—Fort Worth Apr. 11, 2024, no pet.) (mem. op.) (“When a party fails to timely

designate an expert, exclusion is mandatory and automatic unless the court finds there

was good cause for the failure to amend or supplement, or the failure will not unfairly

surprise or prejudice the other party.”). “Because exclusion is automatic, the party

seeking to capitalize on Rule 193.6 need not move to compel or seek sanctions as an

intermediate step.” Cresson Int., LLC, 2022 Tex. App. LEXIS 6707, at *7. The party who

fails to designate an expert has the burden to establish good cause or lack of unfair
4
surprise before the trial court may admit the evidence. Wilson, 2024 Tex. App. LEXIS

2548, at *23; Cresson Int., LLC, 2022 Tex. App. LEXIS 6707, at *7–8.

In the present case, Lomerson failed to designate either CD Environmental

Engineering or Alliance Geotechnical Group as experts by the trial court’s discovery

deadline, a fact he acknowledged in his response to Appellees’ objections to his summary

judgment evidence. Applying the law of the transferor court, as we must, these experts’

reports were automatically excluded unless Lomerson could prove good cause for the

experts not being timely designated or that the lack of designation would not result in

unfair surprise or prejudice to Appellees. Wilson, 2024 Tex. App. LEXIS 2548, at *23;

Cresson Int., LLC, 2022 Tex. App. LEXIS 6707, at *7–8. At the hearing on the summary

judgment motion, Lomerson claimed that the failure to designate the experts was a

mistake. However, he did not elaborate as to the nature of the mistake. Such a

conclusory statement does not carry Lomerson’s burden to prove good cause for the lack

of timely designation of the experts. 2 Wilson, 2024 Tex. App. LEXIS 2548, at *23;

Cresson Int., LLC, 2022 Tex. App. LEXIS 6707, at *7–8. Thus, even though the trial court

did not make an express ruling on Appellees’ objections to the experts, it could not

consider this evidence in assessing whether Lomerson raised a genuine issue of material

fact that would overcome Appellees’ no-evidence summary judgment motion.

2 To the extent that Lomerson relies on his inadvertence to timely designate his experts,
“[i]nadvertence of counsel, by itself, is not good cause because, if it were, the exception would swallow up
the rule, for there would be very few cases in which counsel would admit to making a deliberate decision
not to comply with the discovery rules.” Cunningham v. Columbia/St. David’s Healthcare Sys., L.P., 185
S.W.3d 7, 13 (Tex. App.—Austin 2005, no pet.).

5
Other Evidence

Having determined that the trial court could not properly consider the reports of CD

Environmental Engineering and Alliance Geotechnical Group, we must look to the

remaining evidence offered by Lomerson to assess whether it raises a genuine issue of

material fact regarding his claims. This evidence consists of Lomerson’s affidavit,

photographs of the property, drainage plans, and invoices. We will focus on whether this

evidence raises a genuine issue of material fact as to causation as it is an essential

element of each of Lomerson’s claims. 3

Lomerson’s affidavit does not raise a genuine issue of material fact as to causation.

We note that much of this affidavit is conclusory and, as to causation, relies on the

opinions of the experts that we have previously determined are inadmissible. In fact,

Lomerson expressly provides that “all statements in this affidavit are made based on my

personal knowledge, observations, and the findings of experts who have evaluated the

damages.” The affidavit provides no supporting measurements, data, or explanation of

how Lomerson reached his conclusions other than by relying on the conclusions reached

by his experts. A case, such as this one, involving property damage caused by flooding

3 The elements of civil trespass are (1) ownership or lawful right to possess land, (2) defendant’s

entry onto the land, and (3) defendant’s trespass caused injury to plaintiff. Wilen v. Falkenstein, 191 S.W.3d
791, 798 (Tex. App.—Fort Worth 2006, pet. denied). The elements of negligence are (1) a legal duty, (2)
breach of that duty, and (3) damages proximately caused by that breach. Lakeside Village Homeowners
Ass’n v. Belanger, 545 S.W.3d 15, 38 (Tex. App.—El Paso 2017, pet. denied). The elements of negligence
per se under Texas Water Code section 11.086 are the same as for negligence but the breach-of-duty
element is established by showing the violation of a statute or regulation. Tenaris Bay City Inc., 718 S.W.3d
at 200.

6
requires expert testimony when the cause of the damage is beyond jurors’ common

understanding. Tenaris Bay City Inc. v. Ellisor, 718 S.W.3d 193, 201 (Tex. 2025).

The remaining evidence, consisting of photographs of the property, drainage

plans, and invoices, also does not establish causation. The photographs depict the

condition of the Lomerson property but do not address how the water came to the

Lomerson property and certainly do not establish that Appellees caused the water to flow

onto the Lomerson property. The drainage plan does not establish how Appellees caused

water to flow onto the Lomerson property. Finally, while the invoices might be some

measure of damages, they do not address how Appellees caused any damage to the

Lomerson property.

None of the cognizable summary judgment evidence establishes the causation

element necessary to establish any of Lomerson’s claims. We overrule Lomerson’s sole

issue.

CONCLUSION

Having reviewed all the evidence properly before the trial court, we conclude that

the trial court did not err in granting Appellees’ motion for no-evidence summary

judgment.

Judy C. Parker
Chief Justice

7