Marcus Brent Patterson, Individually, as Independent Administrator of the Estate of Diane Patterson, and as Next Friend of Daniel Patterson and Danae Patterson, and Danae Patterson and Daniel Patterson (Now 18 Years of Age) v. Brewer Leasing, Inc. ( 2015 )


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  •                                                                                 ACCEPTED
    01-14-00013-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    7/27/2015 11:31:09 AM
    CHRISTOPHER PRINE
    CLERK
    NO. 01-14-00013-CV
    FILED IN
    1st COURT OF APPEALS
    In the Court of Appeals           HOUSTON, TEXAS
    for the First Supreme Judicial District    7/27/2015
    of  Texas11:31:09 AM
    CHRISTOPHER A. PRINE
    at Houston, Texas                   Clerk
    Marcus B. Patterson, individually, as Independent Administrator
    of the estate of Diane Patterson,
    and as next friend of Daniel Patterson and Danae Patterson,
    and Danae Patterson and Daniel Patterson (now 18 years old),
    Appellants
    v.
    Brewer Leasing, Inc., Appellee
    On appeal from the 334th Judicial District Court
    of Harris County, Texas
    The Honorable Judge Ken Wise presiding
    RESPONSE TO MOTION FOR REHEARING
    George W. Long
    State Bar No. 12517300
    2000 East 42nd Street, Suite C-110
    Odessa, Texas 79762
    432-614-1500 Telephone
    361-587-7705 Facsimile
    george.long.mexico@gmail.com
    2
    Response to Motion for Rehearing
    Winning is the goal of every attorney; winning within the rules should
    also be every attorney’s goal. Texas Disciplinary Rules 3.01 and 3.03,
    together with the Texas Lawyer’s Creed and the Standards for Appellate
    Conduct, prescribe boundaries within which an ethical lawyer’s conduct must
    conform.
    I cannot defend this appeal without a valid basis. At this point there is
    no valid basis upon which a defense can be based. No one has, or can,
    challenge the jury finding of 100% negligence by Charles Hitchens.
    The evidence conclusively establishes Brewer Leasing’s ownership of
    the trailer, a fact no one has ever denied. I see no way for Brewer Leasing
    to escape liability for Hitchens’ negligent operation of the trailer.
    This Court’s opinion absolves Brewer Leasing of liability for Hitchens’
    negligent operation of the power unit. Decades of experience in trucking
    force me to admit that Brewer Leasing cannot use a claim of an oral lease to
    shift liability onto its parent company. Virtually every trial level litigation case
    I currently prosecute (all of which relate to trucking), involve the state and
    federal requirement that commercial vehicle leases be in writing, a main
    purpose of which requirement is to clearly define liability between motor
    carriers working under contract or lease. The west Texas oil patch is rife with
    motor carriers who seek to avoid payment and other liabilities due their
    lessors by failing to enter written leases in order that they ‘re-write’ their lease
    at trial.
    The last thing I wish to see for the benefit of my clients and my practice
    is a Texas appellate court deciding a liability case between motor carriers
    based on and alleged oral contract. Such an appellate decision will
    3
    encourage and in part enable all non-paying motor carriers who lease trucks
    from other motor carriers to allege oral contracts knowing that they will be
    considered to assess liability, whether for payment between lessor and
    lessee or payment to third party claimants. It will declare ‘open season’ on
    small, unsophisticated owner-operator motor carriers by larger motor carriers
    who seek, from the beginning, to exploit them financially.
    Why would the insurance carrier for Brewer Leasing tender policy limits
    in this case prior to trial if they thought that they had a valid defense by virtue
    of an oral contract absolving Brewer Leasing of any liability? Even they knew
    that such a defense was legally improper, as do I.
    I wish I could agree with the opinion on that point, but my “concurrent
    duties to the legal system and the public good”, and to the overwhelming
    majority of the clients in my practice, require me to “avoid the infliction of
    harm on the appellate process, the courts, and the law”. I am required to
    fairly and accurately characterize and apply the law, including reporting legal
    authority adverse to my position. The court’s opinion on this point is wrong;
    the essence of trucking law from 1956 until today is to prohibit motor carriers
    (or non-motor carriers operating without legal authority) to evade
    responsibility based on oral claims that seek to shift responsibility for the
    vehicles they own or operate to others.
    Mr. Brewer and Mr. Box’s testimony, if viewed in their favor, might
    create doubt on this issue were it a legal defense, but it is not a proper legal
    defense.
    I have owned and managed registered motor carriers in Texas intra-
    and interstate commerce and in the Republic of Mexico continuously for the
    past twenty years. I owe it to the trucking industry and to this court to see
    that the law is correctly stated. No doubt the court believes that it has
    4
    reached a ‘logical’ decision on this point, but as Justice Oliver Wendell
    Holmes, Jr. reminded us, ‘the life of the law has not been logic, it has been
    experience’. The current state of the law that shuns accepting oral
    agreements to place or avoid liability for motor carriers stem from the wealth
    of experience acquired prior to 1956. I fear the court is looking narrowly and
    logically at this point and is not considering the huge body of regulatory and
    statutory law which derived from trucking experience, all of which demand
    that liability remain with the vehicle owner unless shifted, in writing, to
    another. The vehicle owner was Brewer Leasing. Brewer Leasing is liable.
    Respectfully Submitted:
    ________________________
    George W. Long
    Attorney for Appeallent
    State Bar No. 12517300
    2000 E. 42nd Street, Suite C-110
    Odessa, Texas 79762
    432-614-1500
    5
    CERTIFICATE OF COMPLIANCE
    This brief complies with the typeface and length requirements of
    Texas Rule of Appellate Procedure 9.4 because:
    (1)   This brief complies with typeface and the type style requirements
    of Rule 9.4(e) because the brief has been prepared in a
    conventional typeface using MSWord with Arial 14-point font.
    (2)   This brief complies with the length requirements of Rule
    9.4(i)(2)(B) because it contains 718 words, excluding the parts of
    the brief exempted by Rule 9.4(i)(1).
    _______________________
    George W. Long
    Attorney for Appellee
    6
    CERTIFICATE OF SERVICE
    This is to certify that in accordance with the Texas Rules of
    Appellate Procedure a true and correct copy of the above and
    foregoing Brief of Appellee has been sent to all parties and/or counsel
    of record listed below by fax on July 25, 2015.
    Harry Herzog
    Hherzog@hcmlegal.com
    David A. Carp
    Dcarp@hcmlegal.com
    Herzog & Carp
    P.O. Box 218845
    Houston, Texas 77218-8845
    713-781-7500 Telephone
    713-781-4797 Facsimile
    Dorothea ADotty@ L. Vidal
    Dvidal@gpd.com
    Geary, Porter & Donovan, P.C.
    One Bent Tree Tower
    16475 Dallas Parkway, Suite 400
    Addison, Texas 75001-6837
    972-349-2211 Telephone
    972-931-9901 Facsimile
    ___________________________
    George W. Long
    7
    

Document Info

Docket Number: 01-14-00013-CV

Filed Date: 7/27/2015

Precedential Status: Precedential

Modified Date: 9/29/2016