                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                      No. 07-17-00213-CV


CORA SUE SANCHEZ, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE
      OF ANTHONY TONY SANCHEZ, DECEASED, JENNIFER PASOWICZ
               AND JULIE MARIE SANCHEZ, APPELLANTS

                                               V.

   ROBERT’S TRUCK CENTER OF TEXAS, LLC AND ROBERT’S TRUCK CENTER
                 HOLDING COMPANY, LLC, APPELLEES

                           On Appeal from the County Court at Law
                                     Ector County, Texas
                  Trial Court No. 21791-14-A, Honorable Jim Bobo, Presiding

                                       October 9, 2018

                               CONCURRING OPINION
                   Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

       I fully concur in the opinion of the majority but write to clarify my belief that the

expert was referring to a duty imposed by contract, i.e., the lease. As our Supreme Court

has said, “‘if the defendant’s conduct . . . would give rise to liability independent of the fact

that a contract exists between the parties, the plaintiff’s claim may also sound in tort.

Conversely, if the defendant’s conduct . . . would give rise to liability only because it

breaches the parties’ agreement, the plaintiff’s claim ordinarily sounds only in contract.’”
DeWitt Cty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 105 (Tex. 1999) (quoting Sw. Bell

Tel. Co. v. Delanney, 809 S.W.2d 493, 494 (Tex. 1991)). I do not understand the expert

to be referring to any duty imposed outside the contract. In other words, I do not

understand him to be suggesting that, irrespective of the lease, a reasonable person

under the same circumstances would have taken the action he accused Roberts of failing

to take. My position may best be explained by the narrative in University of Texas Medical

Branch v. Harrison, No.14-02-01276-CV, 2003 Tex. App. LEXIS 6768, at *7–8 (Tex.

App.—Houston [14th Dist.] Aug. 7, 2003, pet. denied) (mem. op.):

       a person who enters a neighbor’s property and cuts down trees with no
       contractual right to do so can be held liable in tort. . . . But if a contract
       spells out the parties’ respective rights about whether trees may be cut, then
       the contract, and not common law negligence, governs any dispute about
       whether or how trees may have been cut, i.e., even if any failure to comply
       with the contract resulted from negligence. . . . Therefore, the character of
       a claim, as between tort and contract, is determined by the source of the
       duty breached, not whether the breach results from negligence (versus
       some other cause such as inability to perform or intentional conduct).

In my view, the source of the duty under the expert’s analysis is limited to contract. Given

that source, the expert’s opinion is no evidence of a breached duty sounding in

negligence.




                                                               Brian Quinn
                                                               Chief Justice




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