In this landlord-tenant dispute, Defendant Gator Flower Mound, LLC (“Gator”) asked the Court to exclude the damages testimony of Alan Someck, the expert witness designated by Plaintiff Arch & Eng, LLC (“Z Grill” or “Plaintiff”), as irrelevant and unreliable.
Z Grill alleged economic injury due to problems with the premises it leased from Gator, the landlord. In December 2003, Plaintiff’s and Gator’s predecessors entered into a lease for a commercial premises located at the Marketplace at Flower Mound shopping center (the “2003 Lease” for the “Premises”). On March 02, 2016, Gator and Plaintiff executed an Assignment and Assumption of Lease, through which Plaintiff became the tenant at, and occupied, the Premises (the “2016 Assignment”).
In 2019, despite Plaintiff having complained of problems with the Premises since 2016, Plaintiff elected to enter into a Third Amendment to Lease, extending the 2003 Lease through January 31, 2025. Plaintiff abandoned the Premises in or around January 2024, and brought suit that same month, alleging that roof leaks and an odor had persisted through the entirety of its tenancy, and had caused Plaintiff to suffer economic harm.
Hospitality Expert Witness
Alan Someck has 42 years of experience in the hospitality industry as an owner, operator, consultant, and teacher. For the past 14 years, Someck has been a full-time Management Instructor at the Institute of Culinary Education in New York City. He previously served as an Adjunct Professor of Hospitality Management at the New York Institute of Technology.
Discussion by the Court
In his expert report, Someck posits that the presence of bad odors in and around Defendant’s leased property contributed significantly to Plaintiff’s purported loss of profits and investment capital.
I. Lost Profits
Defendant raised two arguments against Someck’s interpretation of Plaintiff’s proposed lost profits damages. First, Defendant averred that the leasing agreement between the parties prohibited recovery of consequential lost profits, rendering Someck’s opinion on the subject irrelevant. Second, Defendant claimed that Someck failed to deduct actual profits from claimed lost profits, rendering his opinion unreliable.
The Court previously held that Plaintiff may potentially recover its lost profits under the Contract if it proves those profits are a “direct,” as opposed to a “consequential,” result of Defendant’s wrongful acts. The Court also held that Plaintiff may potentially recover its lost profits under certain tort causes of action. Thus, Someck’s opinion is not irrelevant on these grounds. On the contrary, Someck’s opinion will likely be crucial in helping Plaintiff carry its burden at trial.
Defendant’s second argument is unpersuasive, as its claim that “Someck fails to deduct actual profits from claimed lost profits” is directly countered by the fact that Someck has since revised and reduced the applicable projected profits by $150,730.00 “based on the correct assumption . . . that actual profits needed to be subtracted from projected profits to get the corrected lost profits.” Because Someck has fixed the alleged “foundational flaw” in his methodology, the Court found that Someck’s testimony on Plaintiff’s recovery for lost profits is not unreliable.
II. Lost Investments
Defendant argued that Someck’s proposed testimony on Plaintiff’s “lost investments” should be excluded because of its irrelevance and unreliability.
Defendant argued that Someck has failed to connect any damage amount to any act or omission taken by Defendant and has instead merely combined all of Plaintiff’s business expenses over the years and offered it as proof of “lost investments.” The Court agreed, and found that Someck’s opinion on “lost investments” is impermissibly general under the facts of this case.
Someck did not offer any reasoning or methodology to explain how his definition of lost investments constitutes a compensable injury as opposed to an unrelated expense. Nor did Someck offer insight as to the source of these expenses. For instance, he did not identify which portions of the “lost investments” arose as a pecuniary loss from Defendant’s alleged negligent misrepresentation as opposed to Defendant’s alleged fraudulent inducement.
Second, Someck’s opinion is unreliable. Defendant has argued and provided sufficient evidence that Plaintiff’s “lost investment” damages constitute an impermissible attempt to recover for expenses borne by third parties. Someck’s testimony simply does not permit the Court to accurately distinguish between injuries incurred by Plaintiff and the injuries incurred by illusory “plaintiffs.” Neither Someck nor Plaintiff have clarified their interpretation of “lost investment” damages on this issue.
The Court excluded Someck’s expert opinion testimony as to Plaintiff’s lost investments.
Held
The Court granted in part and denied in part Defendant Gator Flower Mound, LLC’s motion to exclude the testimony of Alan Someck.
Key Takeaway
Relevance depends upon whether the expert’s reasoning or methodology properly can be applied to the facts in issue. The Court does not need help to add up numbers on a page. As a result, Someck’s bare assumption, combined with a receipt of gross expenses, is not sufficiently relevant to render his opinion admissible at trial.
Case Details:
| Case Caption: | Arch & Eng, LLC V. Gator Flower Mound, LLC |
| Docket Number: | 4:24cv1068 |
| Court Name: | United States District Court, Texas Eastern |
| Order Date: | February 05, 2026 |
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