                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-09-00231-CV

JAIME IBARRA AND MARIA IBARRA TORRES,
                                   Appellants
 v.

THE HINES LAND GROUP, LTD., A.W. HINES,
KELLY KING HINES, RICKY D. HINES,
INDIVIDUALLY AND D/B/A HINES DEVELOPMENT
CORPORATION, HINES DEVELOPMENT, LTD.,
AND HINES DEVELOPMENT MANAGEMENT, LLC,
                                        Appellees


                          From the 170th District Court
                            McLennan County, Texas
                           Trial Court No. 2007-3728-4


                         CONCURRING OPINION


      In this appeal, Ibarra and Torres assert that the judgment does not resolve all

claims alleged against the Hines defendants. In this regard, they assert that we do not

have a final judgment. The basis for this argument arises from the fact that after the

motions for summary judgment were filed, both traditional and no evidence motions,

the petition was amended to add new causes of action. And, as their argument goes,
because the motions for summary judgment were filed before the new claims were

added, there is simply no way the motions for summary judgment could have

addressed the new claims.          I write separately to focus on this argument and the

resolution of the question of duty which would dispose of most, if not all, of the

complaints of Ibarra and Torres. Such a disposition would also render much of the

majority opinion, which I do not join, unnecessary. I concur in the judgment of the

Court.

                                          ANALYSIS

         It is not uncommon for plaintiffs to amend their petitions after a motion for

summary judgment is filed. Sometimes it has the effect of delaying the hearing on the

motion for summary judgment, or may cause the filing of a supplemental or amended

motion for summary judgment. In this instance, the Hines defendants contended that

was unnecessary because their summary judgment motions were sufficiently broad to

encompass the later-filed claims.

         Ibarra and Torres amended the petition and added additional claims of

negligence. The Hines defendants had already filed a no evidence motion for summary

judgment. That motion was broad enough to encompass all negligence claims. The no

evidence motion makes the following assertion:

         In order to prove negligence, Ibarra must prove the standard elements –
         (a) that the Defendant(s) owed a legal duty to the Plaintiff, (b) that
         Defendant(s) breached the duty, and (c) that the breach proximately
         caused the Plaintiff’s injury. As to the Hines Defendants, the Ibarras can
         prove neither the duty owed, nor the breach of that duty by any of the
         Hines Defendants, nor can they prove the breach of duty proximately
         caused damages.

Ibarra v. The Hines Land Group, Ltd.                                                  Page 2
       This assertion is broad enough to reach any claim based on any mutation of a

negligence claim. The differing labels used by Ibarra and Torres for their claims do not

alter the fact they were, at the most fundamental level, nothing more than differing

theories of negligence.       Each theory of negligence still requires evidence on each

element of a negligence claim: duty, breach, and damages proximately caused by the

breach (some cases break this down into four elements; some combine proximately

caused damages as a single element).

       The Hines defendants challenged Ibarra and Torres’s ability to present any

evidence on each of the elements of a negligence claim. Thus, the Hines defendants

argue there was no need to amend the no evidence motion for summary judgment

because it was broad enough to encompass Ibarra and Torres’s later-filed claims of

negligence. The Hines defendants are correct. “If a motion for summary judgment is

sufficiently broad to encompass later-filed claims, the movant need not amend his

motion.” Espeche v. Ritzell, 123 S.W.3d 657, 664 (Tex. App.—Houston [14th Dist.] 2003,

pet. denied). Just because a specific type negligence claim was not on file at the time a

motion for summary judgment was filed does not mean that the motion for summary

judgment must be amended. The trial court properly disposed of all the negligence-

based claims because Ibarra and Torres failed to present any evidence in response to the

no evidence motion for summary judgment that would give rise to a duty owed by any

of the Hines defendants to either of them. Having failed to establish any duty owed by




Ibarra v. The Hines Land Group, Ltd.                                               Page 3
the Hines defendants, the trial court properly rendered judgment that Ibarra and Torres

take nothing by their claims.



                                              TOM GRAY
                                              Chief Justice

Concurring opinion delivered and filed July 21, 2010
Judge Pozza joins this concurring opinion.1




1 The Honorable Karen H. Pozza, Judge of the 407th District Court, sitting by assignment of the Chief
Justice of the Supreme Court of Texas pursuant to section 74.003(h) of the Government Code. See TEX.
GOV'T CODE ANN. § 74.003(h) (Vernon 2005).

Ibarra v. The Hines Land Group, Ltd.                                                          Page 4
