Tex. 2011 Opinions by Justice Nathan Hecht

2012 LIAISON ASSIGNMENTS FOR JUSTICE HECHT:
Rules Advisory Committee
Rules of Civil Procedure
Rules of Appellate Procedure
Rules of Evidence
Administrative Rules
Ancillary Proceedings Task Force
Texas Access to Justice Foundation
Texas Access to Justice Commission
Uniform Forms Task Force
Task Force for Rules in Expedited Actions
Task Force for Rules in Small Claims Cases and Justice Court Proceedings

2011 Opinions by Justice Nathan Hecht
Including Concurrences
and Dissents

LAST UPDATED: 8/25/11

Anglo-Dutch Petro Int. Inc. v. Greenberg Peden, P.C.,
No. 08-0833 (Tex. Aug. 26, 2011)(Opinion by Justice Nathan Hecht)
ANGLO-DUTCH PETROLEUM INTERNATIONAL, INC. AND ANGLO-DUTCH (TENGE) L.L.C. v.
GREENBERG PEDEN, P.C. AND GERARD J. SWONKE; from Harris County; 14th district (14-07-00343-CV,
267 SW3d 454, 08-26-08)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Johnson, Justice
Willett, and Justice Guzman joined. [pdf]
Justice Wainwright delivered an opinion concurring in part and dissenting in part. [pdf]
Justice Lehrmann delivered a dissenting opinion, in which Justice Medina and Justice Green joined. [pdf]
Link to e-briefs including amicus briefs:
ANGLO-DUTCH PETROLEUM INTERNATIONAL, INC. v. GREENBERG PEDEN, P.C.

Combs v. Texas Entertainment Ass'n, Inc., No. 09-0481 (Tex. Aug. 26, 2011)(Opinion by Justice
Nathan Hecht)
SUSAN COMBS, COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF TEXAS, AND GREG
ABBOTT, ATTORNEY GENERAL OF THE STATE OF TEXAS v. TEXAS ENTERTAINMENT ASSOCIATION,
INC. AND KARPOD, INC.; from Travis County; 3rd district (03-08-00213-CV, 287 SW3d 852, 06-05-09)
The Court reverses the court of appeals' judgment and remands the case to the trial court. [pdf]
Justice Hecht delivered the opinion of the Court.
Link to e-briefs: COMBS v. TEXAS ENTERTAINMENT ASSOC., INC. (2 amicus briefs)

The Houston Exploration Co v. Wellington Underwriting Agencies, Ltd., No. 08-0890 (Tex. Aug. 26,
2011)(Opinion by Justice Nathan Hecht)
THE HOUSTON EXPLORATION CO. AND OFFSHORE SPECIALTY FABRICATORS, INC. v. WELLINGTON
UNDERWRITING AGENCIES, LTD., ET AL.; from Harris County; 14th district (14-07-00970-CV, 267 SW3d
277, 07-17-08) 2 petitions
The Court affirms the court of appeals' judgment.
Justice Hecht delivered the opinion of the Court, in which Justice Wainwright, Justice Medina, Justice
Green, and Justice Guzman joined, and in Parts I and III of which Justice Johnson joined. [pdf]
Justice Johnson delivered a concurring opinion. [pdf]
Chief Justice Jefferson delivered a dissenting opinion, in which Justice Willett and Justice Lehrmann joined.
[pdf]
Link to e-briefs including amicus briefs:
OFFSHORE SPECIALTY FABRICATORS, INC. v. WELLINGTON UNDERWRITING AGENCIES, LTD.

Merck & Co., Inc. v. Garza, No. 09-0073 (Tex. Aug. 26, 2011)(Opinion by Justice Nathan Hecht)
MERCK & CO., INC. v. FELICIA GARZA, ET AL.; from Starr County; 4th district (04-07-00234-CV, 277
SW3d 430, 12-10-08)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Hecht delivered the opinion of the Court. [pdf]
(Justice Willett and Justice Guzman not sitting)
Link to e-briefs: MERCK & CO., INC. v. GARZA

Lesley v. Veterans Land Board of Texas, No. 09-0306 (Tex. Aug. 26, 2011)(Opinion by Justice Nathan
Hecht)
BETTY YVON LESLEY, ET AL. v. VETERANS LAND BOARD OF THE STATE OF TEXAS, ET AL.; from
Erath County; 11th district (11-07-00034-CV, 281 SW3d 602, 01-22-09)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the
trial court.
Justice Hecht delivered the opinion of the Court, in which Justice Wainwright, Justice Medina, Justice
Green, Justice Johnson, Justice Willett, Justice Guzman, and Justice Lehrmann joined. [pdf]
(Chief Justice Jefferson not sitting)
Link to e-briefs: LESLEY v. VETERANS LAND BOARD OF THE STATE OF TEXAS (VLB) (amicus briefs)

Haygood v. Garza de Escabedo,
No. 09-0377 (Tex. Jul. 1, 2011)(Opinion by Justice Nathan L. Hecht) (what are reasonable health-care
expenses, what is incurred and recoverable?)
Damages for wrongful personal injury include the reasonable expenses for necessary medical care, but it
has become increasingly difficult to determine what expenses are reasonable. Health care providers set
charges they maintain are reasonable while agreeing to reimbursement at much lower rates determined by
insurers to be reasonable, resulting in great disparities between amounts billed and payments accepted.
Section 41.0105 of the Texas Civil Practice and Remedies Code, enacted in 2003 as part of a wide-
ranging package of tort-reform measures,1 provides that “recovery of medical or health care expenses
incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.”2 We agree with
the court of appeals3 that this statute limits recovery, and consequently the evidence at trial, to expenses
that the provider has a legal right to be paid.
Conclusion: [W]e hold that only evidence of recoverable medical expenses is admissible at trial. We
disapprove the cases that have reached conflicting decisions.64 Of course, the collateral source rule
continues to apply to such expenses, and the jury should not be told that they will be covered in whole or in
part by insurance. Nor should the jury be told that a health care provider adjusted its charges because of
insurance.
CASE DETAILS: AARON GLENN HAYGOOD v. MARGARITA GARZA DE ESCABEDO; from Angelina County; 12th district (12-
07-00130-CV, 283 SW3d 3, 02-18-09)
The Court affirms the court of appeals' judgment.
Justice Nathan L. Hecht delivered the opinion of the Court, in which Chief Justice Wallace B. Jefferson, Justice Dale
Wainwright, Justice Paul W. Green, Justice Phil Johnson, Justice Don R. Willett, and Justice Eva M. Guzman joined. [pdf]
Justice Debra Lehrmann delivered a dissenting opinion, in which Justice David Medina joined. [pdf]
Here is the link to e-briefs in case no. 09-0377 HAYGOOD v. GARZA DE ESCABEDO [including half a dozen amicus briefs]

Nafta Traders Inc. v. Quinn, No. 08-0613 (Tex. May 13, 2011)(Hecht)
“The answer to most questions regarding arbitration ‘flow inexorably from the fact that arbitration is simply
a matter of contract between the parties.’” Nevertheless, the United States Supreme Court has held in Hall
Street Associates, L.L.C. v. Mattel, Inc., that the grounds for vacating or modifying an arbitration award
under the Federal Arbitration Act (FAA) “are exclusive” and cannot be “supplemented by contract”. The
principal questions in this case are whether the Texas General Arbitration Act (TAA) likewise precludes an
agreement for judicial review of an arbitration award for reversible error, and if not, whether the FAA
preempts enforcement of such an agreement. We answer both questions in the negative and consequently
reverse the judgment of the court of appeals and remand the case to that court for further proceedings.
In the trial court, Nafta invoked the provision of its agreement with Quinn limiting the arbitrator’s authority
“to render a decision which contains a reversible error of state or federal law, or . . . to apply a cause of
action or remedy not expressly provided for under existing state or federal law”, and raised its arguments
under this provision for vacating the award. Since the trial court’s order confirming the award gives no
basis for its decision, we must presume that the court rejected Nafta’s arguments in substance. Nafta
raised the same arguments in the court of appeals, but the court did not reach them, concluding instead
that even if meritorious, they were not grounds for vacatur. Because we disagree, the judgment of the
court of appeals must be reversed and the case remanded to that court for consideration of the merits of
Nafta’s challenges to the arbitration award. It is so ordered.
NAFTA TRADERS, INC. v. MARGARET A. QUINN; from Dallas County; 5th district (05-07-00340-CV, 257 SW3d 795, 06-17-
08)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Medina,
Justice Green, Justice Johnson, Justice Willett, Justice Guzman, and Justice Lehrmann joined. [pdf]
Chief Justice Jefferson delivered a concurring opinion, in which Justice Wainwright and Justice Lehrmann joined. [pdf]
See Electronic Briefs in 08-0613 NAFTA TRADERS, INC. v. QUINN

Genesis Tax Loan Services v. Kothmann, No. 09-0828 (Tex. May 13, 2011)(Hecht)
Section 32.06 of the Texas Tax Code provides that a tax lien on real property, which takes priority over
many other liens, may be transferred, under specified conditions, to a person who pays the taxes with the
owner’s permission.1 The principal issue before us is whether those conditions were met in this case. The
court of appeals held that the statute does not permit a verified photocopy of the lien transfer to be
recorded when the original has been lost.2 We disagree and hold that the statutory conditions were met.
We reverse the judgment of the court of appeals and remand to the trial court.
We conclude that the judgment of the court of appeals must be reversed. We remand the case to the trial
court.
GENESIS TAX LOAN SERVICES, INC. AND M. SUZANNE FROSSARD, TRUSTEE v. KODY AND JANET KOTHMANN AND
KODY KOTHMANN, TRUSTEE; from Lubbock County; 7th district (07-08-00070-CV, ___ SW3d ___, 02-27-09)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Hecht delivered the opinion of the Court. [pdf]
See Electronic Briefs in 09-0828 GENESIS TAX LOAN SERVICES, INC. v. KOTHMANN

Italian Cowboy Partners, Ltd., No. 08-0989 (Tex. Apr. 15, 2011)(by Green)
We recognized decades ago that agreeing to a merger clause does not waive the right to sue for fraud
should a party later discover that the representations it relied upon before signing the contract were
fraudulent. See Dallas Farm Mach. Co. v. Reaves, 307 S.W.2d 233, 239 (Tex. 1957) (quoting Bates v.
Southgate, 31 N.E.2d 551, 558 (Mass. 1941)). The principal issue in this case is whether disclaimer-of-
representations language within a lease contract amounts to a standard merger clause, or also disclaims
reliance on representations, thus negating an element of the petitioner’s claim for fraudulent inducement of
that contract. We conclude that the contract language in this case does not disclaim reliance or bar a claim
based on fraudulent inducement. Accordingly, we reverse the take-nothing judgment of the court of
appeals and remand the case to that court for further proceedings consistent with this opinion. We render
judgment in favor of the lessee on its claim for rescission premised on breach of the implied warranty of
suitability.
ITALIAN COWBOY PARTNERS, LTD., FRANCESCO SECCHI AND JANE SECCHI v. THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA AND FOUR PARTNERS, LLC D/B/A PRIZM PARTNERS AND D/B/A UNITED COMMERCIAL
PROPERTY SERVICES; from Dallas County;
11th district (11-05-00264-CV, 270 SW3d 192, 07-24-08)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to that court.
Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Medina,
Justice Johnson, and Justice Lehrmann joined. [pdf]
Justice Hecht delivered a dissenting opinion, in which Justice Willett and Justice Guzman joined. [pdf]
View Electronic Briefs
08-0989 ITALIAN COWBOY PARTNERS, LTD. v. THE PRUDENTIAL INS. CO. OF AMERICA

Loftin v. Lee, No. 09-0313 (Tex. Apr. 29, 2011)(Hecht)
The Texas Equine Activity Limitation of Liability Act limits liability for inherent risks of equine activity. This
case raises two issues regarding the proper construction of the Act. One is whether risks are inherent in
equine activity only if they relate to animal behavior or are otherwise unavoidable. As we read the Act, an
inherent risk is one that, in its general character, is associated with activities involving equine animals. The
other issue is whether the Act limits liability for failing to fully assess a person’s ability to participate in
equine activity if that failure did not cause injury. We hold it does. We reverse the court of appeals’
judgment and render judgment for petitioner.
As a matter of law, Loftin’s liability was limited by the Act, and the trial court properly granted summary
judgment for Loftin. Therefore, the judgment of the court of appeals is reversed and judgment rendered
that the Lees take nothing.
TERRI LOFTIN v. JANICE LEE AND BOB LEE; from Angelina County; 12th district (12-07-00143-CV, 277 SW3d 519, 01-30-
09)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Hecht delivered the opinion of the Court. [pdf]
See Electronic Briefs in 09-0313 LOFTIN v. LEE

Basic Capital Management, Inc. v. Dynex Commercial, Inc.,No. 08-0244 (Tex. Apr. 1, 2011)
(Hecht)
This is an action for breach of a commitment to provide financing for future real estate investments. The
borrowers were to be entities that would be formed to hold each investment separately as opportunities
arose. We hold that the corporate owners of those entities were third-party beneficiaries of the
commitment, and that consequential damages for the lender’s breach of the commitment were foreseeable.
We reverse the judgment of the court of appeals and remand the case to that court for further
consideration. We reverse the judgment of the court of appeals and remand the case to that court for
further consideration.
BASIC CAPITAL MANAGEMENT, INC., AMERICAN REALTY TRUST, INC., TRANSCONTINENTAL REALTY INVESTORS, INC.,
CONTINENTAL POYDRAS CORP., CONTINENTAL COMMON, INC., AND CONTINENTAL BARONNE, INC. v. DYNEX
COMMERCIAL, INC. AND DYNEX CAPITAL, INC.; from Dallas County; 5th district (05-04-01358-CV, 254 SW3d 508, 02-22-
08)
motion for leave to amend petition for review dismissed as moot
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Hecht delivered the opinion of the Court. [pdf]
View Electronic Briefs In No. 08-0244 BASIC CAPITAL MANAGEMENT, INC. v. DYNEX COMMERCIAL, INC.

Franka MD v. Velasquez, No. 07-0131 (Tex. Jan 21, 2011)(Hecht)
Section 101.106(f) of the Texas Tort Claims Act provides that a suit against a government employee acting
within the general scope of his employment must be dismissed “if it could have been brought under this
chapter [that is, under the Act] against the governmental unit”.1 The court of appeals construed the
quoted clause to mean that, to be entitled to dismissal, the employee must establish that governmental
immunity from suit has been waived by the Act.2 But as we stated in Mission Consolidated Independent
School District v. Garcia: “we have never interpreted ‘under this chapter’ to only encompass tort claims for
which the Tort Claims Act waives immunity.” Rather, “all [common-law] tort theories alleged against a
governmental unit . . . are assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.”4
Accordingly, we reverse the judgment of the court of appeals and remand the case to the trial court for
further proceedings.
[...] we hold that for section 101.106(f), suit “could have been brought” under the Act against the
government regardless of whether the Act waives immunity from suit. We reverse the judgment of the court
of appeals and remand to the trial court for further proceedings.
JOHN CHRISTOPHER FRANKA, M.D. AND NAGAKRISHNA REDDY, M.D. v. STACEY VELASQUEZ AND SARAGOSA ALANIZ,
INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR CHILD, SARAGOSA MARIO ALANIZ; from Bexar County; 4th
district (04-06-00190-CV, 216 SW3d 409, 09-06-06)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Green, Justice
Johnson, and Justice Willett joined. [28 page opinion in pdf]
Justice Medina delivered a dissenting opinion, in which Justice Lehrmann joined. [21-page opinion in pdf]
(Justice Guzman not sitting)
View Electronic Briefs 07-0131 FRANKA, M.D. and NAGAKRISHNA REDDY, M.D. v. VELASQUEZ

UTHSC at San Antonio v. Bailey, No. 08-0419 (Tex. Jan. 21, 2011)(Hecht)
Section 101.106(f) of the Texas Tort Claims Act allows a plaintiff who has sued a government employee in
what is considered to be his official capacity to avoid dismissal of the action by substituting the
governmental employer as a defendant.1 The question in this case is whether action against the
substituted defendant is barred after limitations has run. The court of appeals answered no.2 We agree,
though for somewhat different reasons.
Under section 101.106(f), the Baileys’ suit against Sanders was, in all respects other than name, a suit
against the Center. In requiring a government employer to be substituted on the employee’s motion, the
statute is silent on whether the employer may complain of prejudice from the delay in being named a party.
In this case, the Center has made no such complaint. When the Center was substituted as the defendant
in Sanders’ place, there was no change in the real party in interest. Consequently, the Center cannot
prevail on its defense of limitations.
For these reasons, the court of appeals’ judgment is Affirmed.
THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO v. KIA BAILEY AND LARRY BAILEY; from Bexar
County; 4th district (04-07-00323-CV, 261 SW3d 147, 04-16-08)
The Court affirms the court of appeals' judgment.
Justice Hecht delivered the opinion of the Court. [10-page opinion in pdf]
View Electronic Briefs in 08-0419 UNIV. OF TX HEALTH SCIENCE CENTER AT SAN ANTONIO v. BAILEY